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April 29, 2022   Beirut

Saudi Arabia should ensure that a forthcoming penal code fully complies with international human rights standards, Human Rights Watch said today. The authorities announced in February 2021 that justice reforms, including the country’s first written penal code for discretionary crimes – crimes whose punishments are not specified in sharia law – will be introduced this year, but no details have been published.

It will be important to clearly define all provisions that criminalize conduct. The penal code should not codify existing arbitrary charges as wide-ranging, catchall offenses that criminalize the rights to freedom of expression, association, and assembly, among other rights. Saudi Arabia should also use this opportunity to completely abolish the death penalty. The government should end its repression of independent civil society and critical voices so they can provide independent perspectives to increase the chances that reform efforts will be successful.

“To be fair, independent and effective, Saudi Arabia’s justice system is in dire need of a transformational change, but the repressive climate in which new laws are drafted don’t inspire confidence,” said Michael Page, deputy Middle East director at Human Rights Watch. “The fear is that Saudi Arabia will codify abusive practices that have developed in the decades-long absence of a written penal code.”

 

Human Rights Watch has repeatedly criticized rampant abuses in Saudi Arabia’s criminal justice system, including long periods of detention without charge or trial, denial of legal assistance, and the courts’ reliance on torture-tainted confessions as the sole basis of conviction. The violations of defendants’ rights are so fundamental and systemic that it is hard to reconcile Saudi Arabia’s criminal justice system with a system based on the basic principles of the rule of law and international human rights standards.

Human Rights Watch, based on its past documentation and in consultation with Saudi human rights activists abroad, has identified five key reforms that should be incorporated for the promised written penal code to satisfy international standards.

1. Ensure that all provisions in the penal code and other relevant laws criminalizing conduct or punishing conduct considered criminal are codified. All elements that constitute a crime and its potential punishment should be clearly identified so that an ordinary person could determine if their acts would constitute a criminal offense, and the crime should be clearly recognizable under international law.

In the absence of a written penal code, some Saudi judges have set out to prove that a defendant had engaged in a certain act, which they then classify as a crime, rather than proving that the defendant had committed a specific crime set out in the law. Previous court rulings do not bind Saudi judges, and there is little evidence that judges seek consistency in convicting or sentencing for similar crimes. Existing laws, including the notoriously abusive counterterrorism law and the anti-cybercrime law, include vague and overly broad provisions that have been widely interpreted and abused. Citizens, residents, and visitors have no means of knowing with any precision what acts constitute a criminal offense. People can also be punished more than once for the same offense.

2. Do not include provisions that permit the government to arbitrarily suppress and punish people for peacefully expressing their views, in breach of international legal obligations, including on grounds of endangering “national security.”

Since September 2017, three months after Mohammed bin Salman became crown prince, Saudi authorities have detained scores of prominent Saudis, including clerics, academics, public intellectuals, journalists, human rights activists, and women’s rights advocates, and convicted many of them on broad, catchall charges that do not represent recognizable crimes, including “supporting demonstrations,” “breaking allegiance with the ruler,” and “trying to distort the kingdom’s reputation.”

Saudi courts convicted many others on charges entirely unrecognizable in international law. In late December 2020, following a rushed trial, the specialized criminal court convicted the prominent women’s rights activists Loujain al-Hathloul on a host of charges entirely related to her peaceful human rights work. Charges included sharing information about women’s rights in Saudi Arabia with journalists, Saudi activists abroad, diplomats, international bodies, and human rights organizations.

Saudi Arabia’s penal code should define “national security” and the breaches against it in narrow terms that do not infringe on internationally guaranteed rights of free expression, association, and assembly. The penal code should not criminalize “insults” against religious figures and government leaders.

Saudi Arabia should also amend or abolish already-introduced abusive laws, including the counterterrorism law, the cybercrimes law and other legislation that permits the government to arbitrarily suppress and punish people for peaceful political expression.

3. Do not include provisions that violate people’s rights including to privacy, bodily autonomy, health, and nondiscrimination.

Saudi Arabia punishes people for a range of “moral crimes” that criminalize private consensual relations such as khilwa (meeting of an unrelated man and woman, especially alone), zina (extramarital sex), sorcery and witchcraft, abortion, and other acts relating to expression of nonconforming gender identity or sexual orientation.

Criminalizing these activities contravenes international standards and charges are often applied in a manner that discriminates against women. The charges also can be used to prosecute victims of sexual violence or trafficking. For instance, pregnancy is used as evidence of zina offenses, and women who report rape or sexual violence can be deemed to have confessed to sex and prosecuted instead. Such offenses also carry corporal punishment sentences, including floggings and stoning.

4. Do not include provisions that allow for punishments that amount to torture or cruel, inhuman, and degrading treatment, including stoning, amputation, and flogging.

Saudi courts have sentenced people to flogging for extramarital sex, drinking alcohol, and other offenses. While rarely, if ever, carried out, stoning sentences have been issued for adultery. The authorities have used and carried out sentences, albeit rarely, for amputation of limbs for theft. In April 2020, Saudi Arabia introduced some criminal justice revisions that included ending flogging for ta’zir, discretionary crimes.

In a high-profile case, the Saudi blogger Raif Badawi in January 2015 was sentenced to 10 years in prison and 1,000 lashes for insulting Islam, though the full flogging sentence was not carried out in full. Badawi was released earlier this year, but remains under a travel ban.

Saudi Arabia’s legal system is based on a harsh interpretation of sharia law, which some clerics contend permits such punishments. Other scholars consider them a breach of standards in sharia law for legality, proof, privacy, and high evidentiary requirements.

The authorities also use flogging without a court sentence. Women detained in shelters, often for “deviat[ing] from the straight path” or disobeying the male guardians, have reported seeing shelter officials flog women for allegedly breaking the rules.

Saudi Arabia should adopt a definition of torture consistent with article 1 of the Convention against Torture to ensure that all acts of torture and cruel, inhuman, or degrading treatment are criminal offenses and institute penalties that reflect the grave nature of such offenses.

5) Do not include the death penalty as a punishment for any offense and explicitly abolish its use.

Saudi Arabia has one of the world’s highest execution rates and applies the death penalty for nonviolent offenses, including drug offenses. International human rights standards restrict the use of the death penalty to only “the most serious crimes,” typically those resulting in death, and only when the right to a fair trial is strictly guaranteed. Saudi Arabia is also one of only a handful of countries that impose the death penalty for child offenders. International law prohibits the death penalty for child offenders.

 

Despite promises to curtail their use of the death penalty, on March 12, Saudi authorities executed 81 men in one of the country’s largest recent mass executions. Rampant and systemic abuses in Saudi Arabia’s criminal justice system suggest it is highly unlikely that any of the men received a fair trial.

Despite statements by Saudi Arabia’s governmental Human Rights Commission in 2020 claiming that no one in Saudi Arabia will be executed for a crime committed as a child, people accused of committing crimes as children can – and still do – face the death penalty when charged with such categories as “crimes against God” and “retribution crimes.”

Capital punishment is unique in its cruelty and finality, and it is inevitably and universally plagued with arbitrariness, prejudice, and error. Human Rights Watch opposes capital punishment in all countries and under all circumstances. Saudi Arabia should abolish this cruel punishment outright.

The penal code is one of four previously announced draft reform bills to be introduced this year, the Saudi Press Agency reported. The others are the law of evidence, introduced on December 28, 2021; the personal status law, introduced this month, and the civic transactions law. One Saudi lawyer and activist abroad described the new law of evidence as “legally sound” but warned that many provisions protecting defendants’ rights had been included in previous laws and regulations but not effectively carried out.

Saudi authorities are drafting these reform bills against the backdrop of a complete shutdown of what had already been a narrow space for civil society that has left no one inside the country to ensure that the state is delivering on its promises, or advocate for further necessary changes.

“Saudi Arabia’s reform efforts cannot succeed without public consultation, in which people can share their views without fearing arrest,” Page said. “It is imperative for the upcoming reforms to avoid entrenching existing discrimination and criminalization of freedoms.”