The author of the communication is Abdulrahman Ahmed al-Hawali Alghamdi, a national of Saudi Arabi born in 1950. He is acting on behalf of his disappeared uncle, Safar bin Abdulrahman al-Hawali, a national of Saudi Arabia who was 70 years old at the time of the initial submission. The author claims that Mr. Al-Hawali is the victim of violations by the State party of articles 5, 10–17 and 25, read alone and in conjunction with articles 1, 3, 4, 5 (3) and 21, and articles 10 and 25, read in conjunction with articles 11 and 14, of the Convention. The Optional Protocol entered into force for the State party on 24 July 2008. The author is represented by counsel.
On 6 November 2020, the Committee, acting through its Special Rapporteur on new communications and interim measures under article 4 of the Optional Protocol, requested the State party to take interim measures to avoid any irreparable harm to Mr. Al-Hawali in case of his continued detention. The Committee indicated that such measures should include: (a) providing Mr. Al-Hawali with adequate medical care as required by his situation while he remains detained or, in the event that this is not possible, to arrange for his immediate release pending the pretrial phase of the criminal procedure conducted against him; (b) ensuring that his family can visit him on a regular basis; (c) ensuring that he has access to a lawyer on a regular basis; (d) ensuring that he is brought, without further delay, before a judge to review the lawfulness of his detention; and (e) ensuring that he is informed of the charges brought against him without further delay. The Committee reminded the State party of its responsibility to ensure that individuals or groups seeking to cooperate or cooperating with treaty bodies, including the Committee, are not subjected to acts constituting intimidation or reprisals. The Committee reiterated these requests on 30 July 2021, 26 May 2022 and 18 August 2023.
On 5 March 2021, the State party requested that the admissibility of the communication be examined separately from the merits. On 30 November 2021, the Committee denied the State party’s request.
Facts as submitted by the author
Mr. Al-Hawali is a prominent religious scholar, member of the Al-Sahwa al-Islamiyya (which can be translated as “Islamic awakening”) movement and critic of the State party’s administration. In September 2017, the Government of the State party started to crackdown on the Sahwa movement, arresting members of this movement under the Counter-terrorism and Financing of Terrorism Act of 2017. According to the author, victims were subjected to unfair trials before the Specialized Criminal Court, a court of exception allegedly controlled by the executive branch.
Mr. Al-Hawali has permanent impairments due to strokes that occurred in 2005 and 2006 and which affected his communication and mobility skills and self-care ability. He has chronic apraxia of speech, which precludes him from moving his facial muscles to speak and be understood. He is unable to move around alone and has a broken pelvis and renal failure that require constant medical care.
On 12 July 2018, State security forces arrested Mr. Al-Hawali and one of his sons at their house and took them to an unknown location, without presenting an arrest or search warrant or explaining the reasons for their arrests. On 11 and 12 July 2018, Mr. Al-Hawali’s younger brother and three other sons were also arrested – one of them after having submitted an urgent appeal to the Working Group on Enforced or Involuntary Disappearances. Following Mr. Al-Hawali’s arrest, the authorities refused to disclose his fate and whereabouts to his family until 17 September 2018, when, in response to a letter from the Working Group on Enforced or Involuntary Disappearances, the State party’s authorities affirmed that Mr. Al-Hawali was detained at the prison of the General Directorate of Investigation in the Governorate of Jeddah. The authorities stated, without providing any further details, that he was under investigation for acts criminalized under the Counter-terrorism and Financing of Terrorism Act. In October 2019, Mr. Al-Hawali was transferred to the Al-Hayr prison in Riyadh, where he has allegedly remained since. His son Ibrahim was released in February 2019. His other sons and brother remain detained incommunicado.
The author notes that the Counter-terrorism and Financing of Terrorism Act allows State security to conduct searches and investigations, seize assets, carry out criminal and administrative prosecutions without independent judicial oversight; to retain a suspect in custody for up to 12 months before the case is referred to a judge; and to bar visits and contact with the accused for up to 90 days. Under articles 19 and 20 of the Act, the Specialized Criminal Court can extend detention indefinitely. The members of the Specialized Criminal Court are appointed directly by the Ministry of the Interior and therefore lack independence.4 The author argues that the Act has allowed for Mr. Al-Hawali’s prolonged detention without bringing him before a judge, without notifying him of the charges against him or affording him legal assistance and without offering him the possibility to challenge the legality of his detention. Mr. Al-Hawali has not been provided with any accommodation required by his disability.
- The author cites CAT/C/SAU/CO/2, para. 17. ↩
Despite the need for constant assistance to allow Mr. Al-Hawali to communicate, move around and perform his self-care routine, he has been denied medical and rehabilitative care. In the absence of measures to facilitate his communication, he is isolated in detention, unable to communicate his needs and deprived of any support. Visits have been allowed only sporadically. Family visits were denied from February to October 2020 allegedly on the basis of restrictions related to the coronavirus disease (COVID-19) pandemic.
The author contends that Mr. Al-Hawali’s detention constitutes punishment for his peaceful criticism of the Crown Prince, including through the publication of a book in which he criticized the policies of the Crown Prince and his rejection, days before his arrest, of the request by the authorities to reverse his position. The arrest deterred his family from taking any internal action. Moreover, as women in the State party cannot take administrative or medical decisions for the family or access justice without the authorization of their male guardians, Mr. Al-Hawali’s female relatives and grandchildren have lost their provider and legal guardian.
Mr. Al-Hawali’s physical and mental health and his impairments have deteriorated severely due to his isolation and the denial of appropriate medical and rehabilitative care. Within a month of being detained, he was urgently hospitalized, before being returned to detention without appropriate treatment or follow-up. His disability, old age and poor state of health make him vulnerable to COVID-19. The author argues that the decision by the authorities to send an ambulance when they arrested Mr. Al-Hawali and prior visits of representatives of the royal family demonstrate the authorities’ awareness of his disability.
The author argues that, in the light of the arrest of Mr. Al-Hawali’s male relatives, the lack of independence and impartiality of the judiciary in the State party and, particularly, the Specialized Criminal Court and the delay in Mr. Al-Hawali’s trial, pursuing domestic remedies would be futile and dangerous.5
- Ibid., paras. 21 and 26; and Al Adam v. Saudi Arabia (CRPD/C/20/D/38/2016), para. 10.4. ↩
Complaint
The author argues that Mr. Al-Hawali has been denied his right to equality before and under the law since his arrest, in violation of article 5 (1)–(3), read alone and in conjunction with articles 1, 3 and 4, of the Convention. In violation of the principle of equality, Mr. AlHawali was detained under the Counter-terrorism and Financing of Terrorism Act, which, together with a denial of reasonable accommodation, precluded him from enforcing his rights, including challenging his detention. According to the author, the State party’s authorities are subjecting Mr. Al-Hawali to direct and indirect discrimination on the grounds of his political opinions and impairments by detaining him and withholding reasonable accommodation. The author argues that the arrest of Mr. Al-Hawali and his other male relatives is a collective punishment and that effective remedies are unavailable, in violation of article 5 (2), read alone and in conjunction with articles 1, 3, 4 and 5 (3), of the Convention. The author claims that Mr. Al-Hawali is a victim of a violation of article 5 (3), read alone and in conjunction with articles 1–4, of the Convention as the State party’s authorities refuse to provide reasonable accommodation to Mr. Al-Hawali, including to communicate with his family and lawyer.
The author claims that the State party has failed to provide Mr. Al-Hawali with adequate support or accommodation to access justice, in violation of article 12 (1)–(4), read alone and in conjunction with articles 1, 3, 4 and 5 (3), of the Convention. The State party’s authorities have subjected Mr. Al-Hawali to enforced disappearance and denied his access to the outside world, contrary to article 12 (1) of the Convention. Mr. Al-Hawali has been detained incommunicado since 12 July 2018 and has received no support to exercise his legal capacity, in violation of article 12 (2) and (3) of the Convention. Moreover, in violation of article 12 (4) of the Convention, the Counter-terrorism and Financing of Terrorism Act lacks safeguards to protect his exercise of legal capacity against undue influence from the Crown, and there is no competent, independent and impartial authority to review the legality of his detention.
The author claims a violation of article 13 (1), read alone and in conjunction with articles 1, 3, 4, 5 (3) and 14, of the Convention as the State party’s authorities have failed to provide Mr. Al-Hawali with means to communicate with a lawyer and with independent intermediaries or facilitators trained to provide communication assistance, and to establish a mechanism able to hear complaints from persons with disabilities.6 According to the author, impunity for arbitrary detention and ill-treatment in the State party strongly suggests that the practice is officially endorsed.7 Mr. Al-Hawali’s incommunicado detention and the denial of visits preclude his equal access to justice, including by denying his legal standing and due process guarantees. Furthermore, any trial would be unfair as the Specialized Criminal Court lacks independence and impartiality.
The author submits that Mr. Al-Hawali’s arrest and detention violate his right to liberty and security on an equal basis with others under article 14 (1) (a), read alone and in conjunction with articles 1–4, 5 (3) and 21, of the Convention. He argues that Mr. Al-Hawali is detained arbitrarily and unlawfully, as his arrest and detention are not grounded in law and do not conform to international standards regarding legal assistance, the right to habeas corpus and procedural and reasonable accommodation, in violation of article 14 (1) (b), read alone and in conjunction with articles 1–4, 5 (3) and 21, of the Convention. Mr. Al-Hawali’s detention and isolation and the denial of reasonable accommodation are also arbitrary as a consequence of his exercise of freedom of opinion and expression.8 The author notes that, in its reply to the Working Group on Enforced or Involuntary Disappearances, the State party argued that Mr. Al-Hawali had been arrested pursuant to a warrant issued in accordance with article 5 of the Counter-terrorism and Financing of Terrorism Act. However, Mr. Al-Hawali has not been presented with any warrant and has not been officially notified of the exact charges against him. Moreover, as both the Office of the Public Prosecutor and the Presidency of State Security report directly to the King, any warrant would not be subjected to the control of a competent, impartial and independent body. The authorities have refused to provide accessibility and reasonable accommodation to allow Mr. Al-Hawali to challenge his detention. The author notes that the discretion of the Public Prosecutor to forbid lawyers from communicating with their clients is unconstrained.9
- The author notes that article 30 of the Counter-terrorism and Financing of Terrorism Act provides that anyone who directly or indirectly describes the King or Crown Prince in a way that is offensive to their religion or justice will be punished with between 5 and 10 years’ imprisonment. ↩
- A/HRC/40/52/Add.2, paras. 40 and 41. ↩
The author submits that Mr. Al-Hawali’s enforced disappearance and his conditions of detention constitute a violation of articles 15–17, read alone and in conjunction with articles 1, 3, 4, 5 (3) and 14 (2), of the Convention. The cruel and inhuman conditions of his detention in isolation negatively affect his health and constitute a violation of article 15 (1), read alone and in conjunction with articles 1, 3, 4, 5 (3) and 14 (2), of the Convention. Given his powerlessness, the denial of reasonable accommodation is in violation of article 15, read in conjunction with articles 5 (3) and 14 (2), and of article 17, read alone and in conjunction with articles 1, 3, 4, 5 (3) and 14 (2), of the Convention.10 The lack of effective prevention, monitoring and complaint mechanisms in detention to prevent torture and ill-treatment violates article 15 (2), read in conjunction with articles 5 (3) and 14 (2), of the Convention. The author also argues that the absence of measures to protect detainees with disabilities from torture violates the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and article 16 of the Convention.11 In addition, the author contends that the continued detention of Mr. Al-Hawali’s relatives outside the protection of the law amounts to torture.
The author affirms that, since his arrest, Mr. Al-Hawali has been denied appropriate medical care to treat his kidney failure and broken pelvis and to mitigate the consequences of his strokes. Such denial is contrary to the Nelson Mandela Rules and the heightened duty of care owed to persons with disabilities and in violation of articles 10 and 25, read alone and in conjunction with articles 1, 3, 4, 5 (3) and 14 (1), of the Convention.
The author claims that Mr. Al-Hawali’s life is under imminent, serious and irreversible threat as older adults are at increased risk of developing a severe disease following infection from COVID-19. His pre-existing health conditions make him more susceptible to contracting the virus and having more severe symptoms and there is no evidence that he has been provided with appropriate care and protection against COVID-19. Under articles 10 and 25, read in conjunction with articles 11 and 14, of the Convention, the State party’s authorities must therefore release him immediately.
The author notes that he reads all violations alone and in conjunction with articles 1, 3 and 4 (1), (2) and (3) of the Convention, as Mr. Al-Hawali’s situation exemplifies a pattern in the State party of systematic violations of the right to life, liberty and security of the person and equality and non-discrimination against peaceful opponents and human rights defenders.
The author requests the State party to: provide Mr. Al-Hawali with adequate redress and reparations, including the costs of his medical care and rehabilitation; release him and his relatives; immediately cease reprisals; hold an investigation into his arrest and detention and those of his relatives: and issue guarantees of non-repetition.
State party’s observations on admissibility
On 5 March 2021, the State party provided its observations on admissibility. The State party affirms its commitment to the Convention and argues that its domestic laws prohibit discrimination based on disability and guarantee the availability of reasonable accommodation.
The State party submits, first, that the communication is inadmissible under article 1 of the Optional Protocol, as Mr. Al-Hawali is not a person with a disability within the meaning of article 1 of the Convention.12 Second, the State party argues, under article 2 (b) of the Optional Protocol, that Alkarama has not provided proof of its authorization to act on behalf of Mr. Al-Hawali, nor that the author had such authorization. The State party argues that nothing prevents Mr. Al-Hawali from submitting a communication himself. Third, according to the State party, the author has not justified the lack of exhaustion of domestic remedies under article 2 (d) of the Optional Protocol. The State party affirms that domestic remedies are effective, not unduly delayed and available. Moreover, domestic laws guarantee effective means for persons with disabilities to resort to the judiciary on an equal basis with others. Fourth, the State party argues that the communication lacks a clear basis in evidence and is inadmissible under article 2 (e) of the Optional Protocol.
- The State party does not provide any further information. ↩
The State party observes that the interim measures requested by the Committee are guaranteed to all detainees in accordance with domestic law, including the rights to legal assistance, to object to the legality of arrest or detention and to be informed of the charges. The State party observes that Mr. Al-Hawali’s case remains under consideration and that he has refused to appoint a legal counsel. The State party argues that Mr. Al-Hawali enjoys his legal rights and all available services and programmes, that his health is “good” and that he receives medical care like other detainees. The State party provides an overview of family visits made to Mr. Al-Hawali and of four occasions of contact with his wife.
Author’s comments on the State party’s observations on admissibility
In his comments of 19 July 2021, the author notes that days after the registration of the present communication, the authorities denied visits to Mr. Al-Hawali. His family’s access to him was cut off completely and several family members were questioned about the present communication.
The author argues that, given the authorization signed by him, Alkarama has a valid mandate to submit the communication. Mr. Al-Hawali cannot submit the communication himself given his incommunicado detention and the reprisals against his family. The author reiterates that Mr. Al-Hawali is a person with a disability. The author argues that the State party’s observation that Mr. Al-Hawali’s case remains “under review” almost three years since his arrest confirms the ineffectiveness of domestic remedies. The unpredictability of his situation and the absence of any clear information on his trial make it even more unreasonable to expect him to initiate a domestic procedure.13 Furthermore, the State party provides no information suggesting that domestic remedies would have any chance of success. The General Directorate of Investigation, which detains Mr. Al-Hawali, does not afford the required control of detention.14 Mr. Al-Hawali’s case has been documented since his arrest and the State party provides no details in claiming that he had access to legal assistance and no information on any accommodation measures. His calls with family members are brief, monitored and preclude meaningful conversation.
On the merits, the author notes that the Ministry of the Interior has postponed hearings before the Specialized Criminal Court due to Mr. Al-Hawali’s inability to attend its sessions. According to the author, those postponements and the secret nature of the trial – acknowledged by the State party’s observation that his case was “ongoing” – confirm the arbitrariness of Mr. Al-Hawali’s detention. All his detained relatives have claimed to have been tortured and ill-treated and have received threats against female family members. None of those allegations have been investigated. Mr. Al-Hawali’s health and impairments have severely worsened, endangering his life given the authorities’ refusal to release vulnerable detainees during the COVID-19 pandemic and to act on the Committee’s request for interim measures.
State party’s additional observations
In its observations of 4 August 2021 and 17 November 2021, the State party reiterates that the communication is inadmissible under article 2 (b), (d) and (e) of the Optional Protocol. The State party argues that several judicial, governmental and non-governmental mechanisms provide effective remedies against human rights violations. The State party reiterates that the interim measures requested by the Committee are accorded to all detainees in accordance with domestic law. The State party reaffirms its commitment to the Convention and refers to its domestic law on non-discrimination based on disability and the provision of reasonable accommodation.
The State party affirms that the author’s allegations of reprisals and intimidation are unfounded. Mr. Al-Hawali has been communicating periodically with his family, including after the registration of the present communication. Visits are currently limited to avoid the spread of COVID-19 in prisons. The State party observes that no one is arrested on its territory except on charges of committing crimes punishable by law. The State party argues that the decision of the Working Group on Enforced or Involuntary Disappearances to consider Mr. Al-Hawali’s case as clarified demonstrates its fulfilment of its international obligations.
The State party reiterates that Mr. Al-Hawali enjoys his rights and available services and programmes, that his health is “good” and that he receives medical care like other detainees. The State party observes that, despite a court notification of his right to legal assistance, he refused to appoint anyone or to have a public lawyer assigned and decided to represent himself. The State party affirms that Mr. Al-Hawali’s appearance at the hearings and access to legal assistance enable him to use effective, timely and available domestic remedies. Several judicial and other mechanisms are available in case of a human rights violation. Domestic law ensures that persons with disabilities have access to justice, on an equal basis with others, and a fully independent judiciary.
Author’s comments on the State party’s additional observations
In his comments of 8 March 2022, the author reiterates his arguments on admissibility. The author argues that he has a legitimate interest to defend his relative and that he is the only family member who could materially sign and submit the authorization for Alkarama, including because of the arrests of Mr. Al-Hawali’s male relatives. The State party’s information confirms that Mr. Al-Hawali has been allowed very few visits, that he has been allowed to speak with his wife only four times and that he has been unable to meet with a lawyer. The visits are held behind soundproof windows and no accommodation is provided so that he can express himself and be understood. All hearings have so far been held in camera, precluding Mr. Al-Hawali from defending himself or submitting any legal document and his family members from being informed of the dates and locations of such hearings.
The author refers to statements by special procedure mandate holders regarding the situation of enforced disappearances in the State party.15 The author argues that the State party conflates its reply to the Working Group on Enforced or Involuntary Disappearances with the fulfilment of its international obligations. He highlights that the case of Mr. AlHawali falls into a well-defined pattern of arbitrary arrests and detention of political opponents under the anti-terrorism legislation.16
- See https://www.ohchr.org/sites/default/files/Documents/Issues/Disappearances/Allegations/121-SaudiArabia.pdf; Working Group on Arbitrary Detention, opinions No. 22/2019, No. 26/2019, No. 56/2019, No. 71/2019, No. 33/2020, No. 86/2020 and No. 92/2020; and communications SAU 12/2020, SAU 3/2021 and SAU 6/2021. All communications mentioned in the present Views are available from https://spcommreports.ohchr.org/Tmsearch/TMDocuments. ↩
- The author cites the Working Group on Arbitrary Detention, opinions No. 44/2016, para. 37; No. 32/2017, para. 40; No. 33/2017, para. 102; No. 36/2017, para. 110; No. 41/2017, paras. 98–101; No. 51/2017, para. 57; No. 56/2017, para. 72; No. 93/2017, para. 61; No. 10/2018, para. 52; No. 62/2018, paras. 57–59; and No. 71/2019, para. 86. ↩
The author argues that the State party’s observation that Mr. Al-Hawali decided to defend himself is belied by his inability to be understood and amounts to victim-blaming. According to the author, the State party’s observation that Mr. Al-Hawali receives medical care “like other detainees” confirms the authorities’ denial of reasonable accommodation and rehabilitative care and their discrimination against him. The State party’s claim that Mr. AlHawali’s health is “good”, without providing any further information, is contradicted by the multiple statements from his relatives, who see a worsening of his health and ability to communicate with each visit and who fear he is being left to die in his cell as a punishment.
The author argues that the State party has not implemented the interim measures requested by the Committee and has not provided any information in this regard. The recent death of another religious scholar in detention, Musa al Garni, shows the real, personal and immediate threat to the life and physical integrity of Mr. Al-Hawali.
The author notes that, on 17 August 2021, the Specialized Criminal Court sentenced the three older sons and brother of Mr. Al-Hawali to four years of imprisonment without providing any grounds. They were denied legal assistance and family visits for long periods of time. According to the author, it appears that the sentences were pronounced as a form of collective punishment against Mr. Al-Hawali and his relatives.
From the State party
On 30 March 2022, the State party reiterates its arguments on admissibility. On the merits, the State party reiterates that the interim measures requested by the Committee are guaranteed to all detainees and that Mr. Al-Hawali’s case remains under consideration. The State party emphasizes that its laws guarantee the right to a fair and public trial before an independent and impartial judiciary. The State party observes that Islamic law requires justice; that there is no crime or punishment except that based on sharia; and that persons are not found guilty except by a final judgment.
According to the State party, the Human Rights Commission has ascertained that Mr. Al-Hawali is being regularly monitored by specialized medical clinics. The Prison and Detention Act provides for medical care for all detainees, for judicial, administrative, health and social inspections and for detainees’ right to complain. The State party observes that the author has had more than 78 visits and more than 20 instances of contact, in line with the Nelson Mandela Rules and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
The State party observes that, in order to limit the spread of COVID-19, the authorities have suspended final judgments, granted amnesties to reduce the number of detainees, vaccinated most detainees, assigned specialized medical teams to inspect new detainees and health screening units in detention facilities, organized daily disinfections and remote trials, raised awareness and reorganized family visits.
From the author
On 29 September 2022, the author reiterates his arguments on admissibility. He notes that there has been no hearing before a judicial authority and Mr. Al-Hawali’s case has been under review for four years now. The State party provides no details on the dates, location or conditions of any hearings. The author argues that the Human Rights Commission lacks independence and power and therefore cannot provide an independent and impartial remedy.17 According to the author, the State party has failed to show that domestic remedies are effective.
- Al Adam v. Saudi Arabia, para. 10.4; and CAT/C/SAU/CO/2, para. 34. ↩
The author argues that the State party has not explained the measures taken to protect Mr. Al-Hawali’s rights and that it only provides general statements lacking any concrete information. The author refers to statements by special procedure mandate holders on the occurrence of enforced disappearances and arbitrary detention in the State party.18 The author argues that the information provided by the State party shows that visits with more than one family member were counted as if each member visited him separately, and that he was held incommunicado in between these visits. No visit by a legal counsel is mentioned. The author affirms that Mr. Al-Hawali has been detained and discriminated against based on his political opinion and disability as a reprisal for his peaceful dissent.
- See https://www.ohchr.org/Documents/Issues/Disappearances/Allegations/121-SaudiArabia.pdf; Working Group on Arbitrary Detention, opinions No. 22/2019, No. 26/2019, No. 56/2019, No. 71/2019, No. 33/2020, No. 86/2020, No. 92/2020 and No. 59/2021; and communications SAU 8/2020, SAU 12/2020, SAU 3/2021 SAU 6/2021 and SAU 14/2021. ↩
The author argues that the State party provides no details on Mr. Al-Hawali’s health status or on any care or rehabilitation provided to him. The author argues that, since his arrest, Mr. Al-Hawali has been denied appropriate care to treat his kidney failure and broken pelvis and therapy to mitigate the consequences of his strokes, as illustrated by the State party’s failure to implement the Committee’s request for interim measures. According to the author, Mr. Al-Hawali is detained indefinitely in cruel and inhuman conditions in which he is being left to die, cut off from the outside world and living in fear of threats to his sons and brothers in violation of the State party’s heightened duty of care under the Convention and the Nelson Mandela Rules (rules 24–35). Mr. Al-Hawali cannot complain about his conditions of detention as he is left alone without any appropriate care, rehabilitation or accommodation, there are no independent monitoring mechanisms and he is not informed of the dates of his hearings or given time or accommodation to prepare.
From the State party
In its further additional observations of 16 January 2023, the State party reiterates its arguments on admissibility. The State party observes that it has no secret places of detention and the law protects adequately against enforced disappearances. All places of detention are subject to judicial, administrative, health and social inspection in accordance with the Prison and Detention Act. The Act also mandates the Office of the Public Prosecutor to receive detainees’ complaints, to verify the lawfulness of their detention and to release them.
According to the State party, Mr. Al-Hawali has so far had 162 visits and 104 instances of contact. The State party argues that Mr. Al-Hawali may file a complaint in accordance with article 39 of the Code of Criminal Procedure, in response to which an independent office would be assigned to a prosecutor to monitor his conditions of detention. The State party affirms that Mr. Al-Hawali is regularly receiving the necessary and appropriate health care and treatment “for his condition” and that he is under the observation of the Central Security Hospital in Al-Hayr. His vital signs are normal and he moves and walks normally. The State party notes that detainees receive comprehensive medical care, including a medical examination upon detention. Medication is provided and families are informed of the matter. Each prison has an integrated hospital with all medical specialties and state-of-the-art equipment.
The State party observes that Mr. Al-Hawali is aware that his case is pending before the Specialized Criminal Court, which, it affirms, is an independent court with the same procedures as other criminal courts. The State party disputes that Mr. Al-Hawali has not yet been tried, affirming that the first of several hearings was held on 18 October 2018 and that he was informed of the charges against him in court. The State party refers to its legislation on the delivery of the original detention warrant upon detention and the possibility for provisional detainees to challenge their detention.
The State party argues that the charges against Mr. Al-Hawali are unrelated to freedom of opinion and expression, that terrorism is one of the most serious threats to international peace and security and that its legislation on the criminalization of terrorism is sufficiently precise. The State party reaffirms its commitment to the right of accused persons to a fair and public trial before an independent judiciary. The State party notes that its Human Rights Commission is independent and competent to receive complaints. The State party reiterates that the conditions of detention of Mr. Al-Hawali are in conformity with international standards.
From the author
In his comments of 2 May 2023, the author argues that the State party’s further additional observations amount to “information dumping”. He reiterates his arguments regarding the admissibility of the communication.
The author notes that if Mr. Al-Hawali was indeed presented to the Specialized Criminal Court on 18 October 2018, that occurred three months and six days after his arrest, far beyond international standards regarding presentation before a judge and on the provision of prompt and effective information of accusations. The author disputes that detainees have an effective habeas corpus right, as the Office of the Public Prosecutor is under the direct control of the King, who is judge and party. Furthermore, the State party’s observation regarding Mr. Al-Hawali’s attendance at trial is contradicted by the lack of hearings since 2018 and the fact that no trial has started. The author argues that the State party does not specify the nature of the acts for which it is prosecuting Mr. Al-Hawali and that the pending status of the case for more than four years demonstrates the unfairness of the proceedings. The author reiterates that the Specialized Criminal Court is neither independent nor impartial. Mr. Al-Hawali’s calls with family members remain short and sporadic and he cannot clearly express himself or be understood.
The author notes that the Al-Hawali family was informed on 15 February 2023 that during an in camera hearing earlier that month, the Appeal Court increased the prison sentences of Mr. Al-Hawali’s sons and brother from 10 years to between 14 and 17 years to punish them for challenging the decision of the Specialized Criminal Court. In addition, the Specialized Criminal Court sentenced the director of Mr. Al-Hawali’s office to 10 years of imprisonment. Mr. Al-Hawali’s sons thereupon commenced a hunger strike. According to the author, the increased sentences constitute additional reprisals.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee notes the State party’s argument that it lacks competence to consider the present communication under article 1 of the Optional Protocol as Mr. Al-Hawali is not a person with a disability within the meaning of article 1 of the Convention. The Committee, however, notes the author’s undisputed statements that Mr. Al-Hawali has permanent impairments related to his communication and mobility skills and self-care ability, including chronic apraxia of speech and an inability to move around alone, as well as a broken pelvis and renal failure. In that regard, the Committee recalls that a human rights-based model of disability requires the diversity of persons with disabilities to be taken into account (Convention, preamble, para. (i)), together with the interaction between individuals with impairments and attitudinal and environmental barriers (ibid., para. (e)).19 In view thereof, the Committee considers that Mr. Al-Hawali is a person with disabilities within the meaning of article 1 of the Convention and that the State party has not substantiated its argument to the contrary. The Committee therefore concludes that article 1 of the Optional Protocol does not preclude it from considering the present communication.
- S.C. v. Brazil (CRPD/C/12/D/10/2013), para. 6.3; X v. United Republic of Tanzania (CRPD/C/18/D/22/2014), para. 7.6; Y v. United Republic of Tanzania, para. 7.5; and Z v. United Republic of Tanzania (CRPD/C/22/D/24/2014), para. 7.3. ↩
The Committee notes the State party’s argument that Alkarama has not provided proof of its authorization to act on behalf of Mr. Al-Hawali. The Committee notes, however, that the communication includes a copy of a signed document by which the author, who is Mr. AlHawali’s nephew, authorizes Alkarama to file the communication to the Committee on behalf of Mr. Al-Hawali. The Committee also notes the author’s arguments that Mr. AlHawali is detained incommunicado and has been unable to communicate with his family in the absence of reasonable accommodation. The Committee further notes the author’s argument that reprisals have been taken against Mr. Al-Hawali’s male relatives, most of whom are also in incommunicado detention. In those circumstances,20 the Committee concludes that the author has jus standi under article 1 of the Optional Protocol.
- Committee’s rules of procedure, rule 69. ↩
The Committee notes the State party’s submission that the author has failed to exhaust domestic remedies, as Mr. Al-Hawali’s criminal case remains pending, and he has not complained to the Office of the Public Prosecutor or the Human Rights Commission about his detention conditions. The Committee notes that the State party has not provided any information demonstrating the effectiveness of the remedies to which it refers. The Committee further notes the author’s claim that pursuing domestic remedies would be dangerous given the reprisals carried out against Mr. Al-Hawali and his male relatives. Furthermore, the Committee recalls concerns that the Human Rights Commission and the General Directorate of Investigation, its control body, lack independence and power in cases of alleged arbitrary detention and therefore cannot provide an independent and impartial remedy.21 The Committee notes the author’s claim that complaining to the Office of the Public Prosecutor would not constitute an effective remedy, as the Office is under the direct control of the King, who is ultimately judge and party. Moreover, without any details regarding the progress in Mr. Al-Hawali’s criminal case since the first hearing on 18 October 2018, the Committee considers that these proceedings are unreasonably prolonged. In view thereof, the Committee concludes that the remedies referred to by the State party would not be available or effective for the author and that the communication is admissible under article 2 (d) of the Optional Protocol.
- Al Adam v. Saudi Arabia, para. 10.4; and CAT/C/SAU/CO/2, para. 34. ↩
The Committee notes that, according to the State party, the communication is inadmissible as insufficiently substantiated under article 2 (e) of the Optional Protocol. The Committee considers that the author has not sufficiently substantiated his claims under articles 12 (2) and (3) and 16, which are already encompassed within the claims raised under articles 5, 13–15 and 17 of the Convention. The Committee also considers that the author’s claim under article 12 (4) of the Convention, which outlines the safeguards that must be present in a system of support in the exercise of legal capacity,22 is insufficiently substantiated, in the absence of indications that Mr. Al-Hawali is subject to such a support system. Furthermore, in view of the information on file, the Committee considers that the author has insufficiently substantiated his claim of the insufficiency of COVID-19-related measures under articles 10 and 25, read in conjunction with articles 11 and 14, of the Convention, noting the absence of information regarding the sanitary conditions of Mr. AlHawali’s detention. The Committee therefore finds that those claims are insufficiently substantiated and inadmissible under article 2 (e) of the Optional Protocol.
- General comment No. 1 (2014), para. 20. ↩
The Committee considers, however, that the author has sufficiently substantiated, for the purpose of admissibility, his remaining claims regarding the alleged violations of Mr. AlHawali’s rights under articles 5, 10, 12 (1), 13–15, 17 and 25 of the Convention concerning his arbitrary detention and enforced disappearance, his conditions of detention, including the lack of reasonable accommodation, and the alleged discrimination based on his disability.
The Committee notes that the author claims that the rights of the male relatives of Mr. Al-Hawali were violated, but that he does not submit the communication on their behalf and does not claim that they are persons with disabilities. The Committee therefore considers that this part of the communication is inadmissible under article 1 of the Optional Protocol.
The Committee notes that an urgent appeal concerning Mr. Al-Hawali has been examined by the Working Group on Enforced and Involuntary Disappearances. The Committee recalls, however, that extra-conventional procedures or mechanisms established by the Human Rights Council, including the Working Group on Enforced or Involuntary Disappearances, do not generally constitute a procedure of international investigation or settlement within the meaning of article 2 (c) of the Optional Protocol.23 Accordingly, the Committee considers that that provision does not preclude it from examining the present communication.
- Al-Sayed and Mangisto v. State of Palestine (CRPD/C/28/D/67/2019 and 68/2019), para. 7.5. ↩
In the absence of any other challenges to its admissibility, the Committee declares the communication, based on articles 5, 10, 13–15 and 17 of the Convention, admissible insofar as it is sufficiently substantiated and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the present communication in the light of all the information that it has received, in accordance with article 5 of the Optional Protocol and rule 73 (1) of the Committee’s rules of procedure.
The Committee notes the author’s claim that Mr. Al-Hawali’s arrest and detention violated his right under article 14 (1) (a), read alone and in conjunction with articles 1–4, 5 (3) and 21, of the Convention, as he was arrested and subjected to prolonged incommunicado detention under the Counter-terrorism and Financing of Terrorism Act for his opposition to the Crown. The Committee notes the State party’s argument that Mr. Al-Hawali was detained under the Counter-terrorism and Financing of Terrorism Act on charges of crimes under that Act. The Committee notes, however, that an arrest or detention may be authorized by domestic law and nonetheless be arbitrary.24 The notion of “arbitrariness” is not to be equated with “against the law” but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.25
In the present case, the Committee notes the author’s uncontested statements that Mr. Al-Hawali was arrested and detained by State security forces for his dissent against the Crown, that the State party’s authorities did not disclose Mr. Al-Hawali’s whereabouts to his family members until 17 September 2018, more than two months after his arrest, that the Specialized Criminal Court in charge of his case lacks independence as its members are appointed by the Government,26 that the trial has still not started more than five years after his detention and that, other than referring to COVID-19-related measures, the State party has not explained the denial of visits since Mr. Al-Hawali’s detention on 12 July 2018.27 The Committee also notes the State party’s affirmation, without further details, that Mr. AlHawali was informed of the charges against him in court, but that he was not brought before a judge until 18 October 2018, more than three months after his arrest. The Committee notes, moreover, that the State party provides no documentation regarding the evidence held against Mr. Al-Hawali that would justify his detention28 or any concrete information on the progress of the trial since the first hearing more than five years ago. In view thereof, the Committee considers that, even if Mr. Al-Hawali’s detention had a basis in domestic law, the authorities’ detention and treatment of Mr. Al-Hawali and the delays in acknowledging his whereabouts and of the trial are inappropriate, unjustified and unreasonable. The Committee therefore considers that Mr. Al-Hawali’s detention is arbitrary. Moreover, recalling that reasonable accommodation is an intrinsic part of the immediately applicable duty of non-discrimination in the context of disability, the Committee notes that no accommodation has been provided to Mr. Al-Hawali to ensure his effective access to complaint mechanisms taking into account his speech impairment, or to monitor and investigate the violations of his right to liberty and security and fair trial rights.29 Considering the foregoing (paras. 13.2 and 13.3), the Committee finds that the State party has violated Mr. Al-Hawali’s rights under articles 5 (1)–(3) and 14, read alone and in conjunction with articles 3 (b), (c) and (f), 4 and 21, of the Convention.
- CAT/C/SAU/CO/2, para. 17. ↩
- Human Rights Committee, general comment No. 35 (2014), para. 59. ↩
- Human Rights Committee, Alakuş v. Türkiye (CCPR/C/135/D/3736/2020), para. 10.3. ↩
- General comment No. 6 (2018), para. 23; and guidelines on the right to liberty and security of persons with disabilities, para. 19. ↩
The Committee notes the author’s claim that the State party subjected Mr. Al-Hawali to an enforced disappearance. The Committee considers that, while the term “enforced disappearance” does not appear expressly in any article of the Convention, enforced disappearance constitutes a single, integrated group of acts that represents a continuing violation of various rights recognized in that treaty, including the right to life, the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment and the right to liberty and security of person.30 The Committee also notes that enforced disappearance represents a paradigmatic violation of the right to be recognized as a person before the law.31 The Committee notes the author’s uncontested claim that State party agents detained Mr. Al-Hawali on 12 July 2018 and that it failed to acknowledge his fate and whereabouts to his family until 17 September 2018, more than two months later, putting him outside the protection of the law. The Committee notes that, while the State party has generally argued that its domestic law adequately protects against enforced disappearances and that all places of detention are subject to inspection, it has failed to provide any information to explain the delay in acknowledging the deprivation of liberty of Mr. AlHawali to his family. In the light of the foregoing, the Committee considers that the State party subjected Mr. Al-Hawali to enforced disappearance, in violation of his rights under articles 10, 12 (1), 14 and 15 of the Convention.
- Similarly, see the following Views of the Human Rights Committee: Ferhati et al. v. Algeria (CCPR/C/135/D/3125/2018), para. 8.4; El Boathi and El Boathi v. Algeria (CCPR/C/119/D/2259/2013), para. 7.4; Serna et al. v. Colombia (CCPR/C/114/D/2134/2012), para. 9.4; and Katwal and Katwal v. Nepal (CCPR/C/113/D/2000/2010), para. 11.3. See also Human Rights Committee, general comment No. 36 (2018), para. 58. ↩
- Working Group on Enforced or Involuntary Disappearances, general comment on the right to recognition as a person before the law in the context of enforced disappearances (A/HRC/19/58/Rev.1), para. 1. ↩
The Committee notes the author’s claim of a violation of Mr. Al-Hawali’s right to access to justice under article 13 (1), read alone and in conjunction with articles 1, 3, 4, 5 (3) and 14, of the Convention. The Committee notes the State party’s argument that its laws guarantee a fair and public trial before an independent and impartial judiciary. The Committee also notes that the State party affirms that Mr. Al-Hawali was informed of his right to a lawyer but refused to appoint one, instead deciding to defend himself. The Committee recalls that, according to article 13 (1) of the Convention, States parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants. That entails the respect of all components of the right to fair trial.32 In accordance with article 4, the State party is also under an obligation to promote effective access to justice for all persons with disabilities without discrimination of any kind on the basis of disability. In that regard, the Committee recalls that the rights and obligations with respect to equality and non-discrimination outlined in article 5 raise particular considerations with respect to article 13, which, among others, call for the provision of procedural accommodations. Those accommodations are distinguishable from reasonable accommodation in that procedural accommodations are not limited by disproportionality. In the present case, the Committee notes the author’s uncontested arguments that, due to his impairments, Mr. Al-Hawali cannot express himself or be understood, and that the State party’s authorities have taken no measures to allow him to express himself before the judiciary and to bring complaints. The Committee notes that the State party has not provided any information regarding measures taken to fulfil Mr. AlHawali’s due process rights taking into account his disabilities. Therefore, the Committee finds that the State party has violated his rights under article 13, read alone and in conjunction with articles 3 (b), (c) and (f) and 4, of the Convention.
- Al Adam v. Saudi Arabia, para. 11.4. ↩
The Committee notes the author’s claim that Mr. Al-Hawali has been denied appropriate medical care and therapy to treat his kidney failure and broken pelvis and to mitigate the consequences of his strokes, in violation of articles 10 and 25, read alone and in conjunction with articles 1, 3, 4, 5 (3) and 14 (1), of the Convention. The Committee recalls, in the light of article 25, read in conjunction with article 14 (2), of the Convention, that States parties have a special responsibility to uphold human rights when prison authorities exercise significant control or power over persons with disabilities who have been deprived of their liberty by a court of law.33 In the present case, the Committee takes note that Mr. Al-Hawali requires constant medical care due to his speech impairment, reduced mobility and self-care ability, broken pelvis and renal failure. The Committee notes the State party’s affirmation, without further details, that Mr. Al-Hawali’s health is “good”, that his vital signs are normal, that he moves and walks normally and receives medical care. The Committee notes that Mr. Al-Hawali has had access to a hospital, although the State party provides no information on the treatment provided. The Committee considers that, by claiming that Mr. Al-Hawali “receives medical care like other detainees”, the State party does not demonstrate that its authorities have responded to his specific medical needs or have prevented his impairments from worsening. The Committee notes the author’s claims that his relatives have seen his health worsen and his ability to communicate decrease and that his health has precluded him from attending court sessions. The Committee considers, given the information at its disposal, which is partially unclear, that it has insufficient evidence before it to conclude that the lack of medical care provided constitutes a violation of article 10 of the Convention. However, given the degradation of Mr. Al-Hawali’s health and impairments in detention and the lack of information regarding the provision of necessary medical care and therapy, the Committee considers that the State party has violated article 25, read alone and in conjunction with articles 3 (b), (c) and (f), 4, 5 (3) and 14 (1), of the Convention.
- X v. Argentina (CRPD/C/11/D/8/2012), para. 8.9; and Al Adam v. Saudi Arabia, para. 11.6. ↩
The Committee notes the author’s claim that the conditions of Mr. Al-Hawali’s detention constitute violations of articles 15 and 17, read alone and in conjunction with articles 1, 3, 4, 5 (3) and 14 (2), of the Convention. The Committee recalls that the failure to adopt relevant measures and to provide sufficient reasonable accommodation when they are required by persons with disabilities who have been deprived of their liberty may constitute a violation of articles 15 (2) and 17 of the Convention.34 The Committee also recalls that persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; they must be treated in accordance with, inter alia, the Nelson Mandela Rules. The Committee notes that, according to the information on file, the lack of reasonable accommodation and visit restrictions have resulted in Mr. AlHawali’s isolation in detention, including in the court proceedings and with his family members. Recognizing the degree of suffering involved in prolonged isolation, the Committee considers that the State party has violated the rights of Mr. Al-Hawali under articles 15 and 17, read alone and in conjunction with articles 3 (b), (c) and (f), 4, 5 (3) and 14 (2), of the Convention.
- X v. Argentina, para. 8.7; and guidelines on the right to liberty and security of persons with disabilities, para. 18. ↩
C. Conclusion and recommendations
The Committee, acting under article 5 of the Optional Protocol, is of the view that the State party has failed to fulfil its obligations under articles 5 (1), (2) and (3) and 14, read alone and in conjunction with articles 3 (b), (c) and (f), 4 and 21; articles 10, 12 (1), 14 and 15; article 13, read alone and in conjunction with articles 3 (b), (c) and (f) and 4; article 25, read alone and in conjunction with articles 3 (b), (c) and (f), 4, 5 (3) and 14 (1); and articles 15 and 17, read alone and in conjunction with articles 3 (b), (c) and (f), 4, 5 (3) and 14 (2), of the Convention. The Committee therefore makes the following recommendations to the State party:
(a) With respect to Mr. Al-Hawali, the State party is under an obligation:
In accordance with article 5 of the Optional Protocol and rule 75 of the Committee’s rules of procedure, the State party should submit to the Committee, within six months, a written response, including information on any action taken in the light of the present Views and recommendations of the Committee.
Annex
With regard to the violation of article 10, if it is argued that the Committee has no evidence that the health conditions Mr. Al-Hawali could cause death, the Committee would have to say the same in respect of everything reported to it by both the author and the State party. The Committee has been provided with the information that Mr. Al-Hawali has suffered two strokes, has kidney failure and the sequelae of the coronavirus disease (COVID19) pandemic, lives in terrible conditions in isolation in incommunicado detention and has been denied medical care, all of which are conditions that definitely put him at risk, because of his disabilities, of dying, more so than others who do not have a disability. The prison does not provide him with his basic needs as a person with disabilities. The risk to life, according to medical considerations, is sufficient to say that article 10 has been affected. It is not necessary to wait until Mr. Al-Hawali is sentenced to death or dies in prison for the Committee to accept that article 10 has been violated.