Case Summary and Outcome

The Specialized Criminal Court in Riyadh, Saudi Arabia, sentenced Shi’a cleric Sheikh Mohammed Al-Habib, to five years imprisonment, on top of a previous sentence of seven years, for breaking a pledge and inciting sedition and sectarianism.

Al-Habib is known for his activism in support of political and economic reforms and for denouncing discrimination against the Shi’a minority in Saudi Arabia. In 2018 he was sentenced to seven years imprisonment for breaking a 2012 pledge not to deliver sermons considered objectionable by the ruling authorities and hence inviting sedition. This subsequent case was brought on related charges but based on additional evidence, while he was incarcerated. The Court found him guilty of violations under the Terrorism Crimes and Financing Act and for endorsing extremist religious groups under Royal Order No. A/44.  Applying Sharia Law, the Court determined that he had violated his pledge, and was legally responsible for his confessed words and actions. The Court further invoked the Al Ta’zir penalty which gives the presiding judge full discretion to determine the appropriate punishment. This is the last in a series of decisions by the Specialized Criminal Court against Al-Habib for criticizing state sponsored discrimination.

On May 11, 2020 the UN Special Procedures including the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression issued a communication expressing their serious concern at the persecution and ongoing detention of Mohammed bin Hassan al-Habib. The Office of the United Nations High Commissioner for Human Rights is currently translating the reply received from Saudi Arabia.

On November 26, 2020, The United Nations Human Rights Council, Working Group on Arbitrary Detention adopted Opinion No. 86/2020 concerning Sheikh Mohammad bin Hassan Al Habib (Saudi Arabia). The Working Group found that his “arrest, detention and sentencing” were neither necessary nor proportionate and that the deprivation of liberty of Sheikh Mohammad bin Hassan Al Habib was in contravention of articles 2, 3, 6, 7, 8, 9, 10, 11, 13, 18, 19 and 20 of the Universal Declaration of Human Rights which renders his detention arbitrary. The Working Group requested the Government of Saudi Arabia to take the steps necessary to remedy the situation of Mr. Al Habib without delay and that the appropriate remedy would be the immediate release of Mr. Al-Habib and to afford him the right to compensation and other remedies in conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights.

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.

Information regarding this case was provided by MENA Rights Group.

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Facts

Mohammed Al-Habib is a Shi’a cleric. The Shi’a in Saudi Arabia are a Muslim religious minority and according to Human Rights Watch, “[d]ozens of Saudi Shia are in prison for participating in protests since 2011 calling for full equality and basic rights for all Saudis.” In 2012 the Shi’a dominated eastern region of Saudia Arabia was going through its own version of the Arab Spring and activists called for civil and political reforms. Specifically, they protested against economic inequality, political marginalization and religious exclusion in the social, educational and judicial systems.

Al-Habib has a history of persecution by the Saudi authorities which dates back to July 2012 when he delivered a sermon in which he denounced discrimination against the Shi’a minority and called for reforms including protection for freedom of expression and the release of detained activists. Saudi authorities claimed that Al-Habib’s sermons insulted Sunni religious leaders, fostered sectarianism and incited violence. In an effort to quell dissent, he was forced to sign a pledge on December 17, 2012, not to give sermons that could be considered “objectionable” by the authorities.

On July 8, 2016, he was arrested at the Khafji border crossing between Saudi Arabia and Kuwait for allegedly attempting to cross the borders illegally. According to a family member, Al-Habib was unaware that a travel ban had been issued against him.

On October 27, 2016, he was charged by the Specialized Criminal Court with violating the terms of the pledge he had signed in 2012.

At first, he was acquitted by the Specialized Criminal Court on August 22, 2017 which considered he was committed to his pledge and found insufficient evidence that he had breached it. However, the same court on appeal overturned this decision on January 4, 2018 and sentenced him to seven years in prison for charges of  “sectarianism” and “calling people for sedition”, based on Article 1, paragraph (a), of the Terrorism Crimes and Financing act and the Royal Order No. A/44.

While serving his sentence, in April 2018, he was further charged with “endeavouring to shake the societal fabric and national unity by supporting protests in inciting riots in al-Qatif Governorate,”; possessing documents that encourage disobedience of the Ruler; violating the Cybercrime Law; and attempting to leave Saudi Arabia for Kuwait irregularly. The new charges were brought based on evidence found on his computer, such as a photo of a Shi’a cleric executed by the Saudi regime.

On August 26, 2019, the Specialized Criminal Court sentenced Mr. Al Habib to an additional five years of imprisonment by a five-year travel ban. This decision was upheld on appeal on 15 December 2019.

On May 11, 2020 the UN Special Procedures including the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression issued a communication expressing their concern at the persecution and ongoing detention of Mohammed al-Habib. The Special Procedures highlighted the use of torture and ill-treatment to extract confessions and possible incriminating evidence as well as serious human rights violations, including the absence of due diligence and of fair trial guarantees, violations of the rights of children in conflict with the law, the non-respect of human rights of prisoners including with regard to access to adequate healthcare and the reported use of prolonged solitary confinement. As of this writing in August 2021, Sheikh Al-Habib remains in detention in Mabaheth prison in Dammam. Due to Covid-19 prison visits have reportedly been suspended until further notice and he has no access to proper medical care for his health condition.

Additionally, on 26 June 2020, the Human Rights Council Working Group on Arbitrary Detention received a communication from a source alleging that categories 1, 2, 3 & 5 under which the Working Group regards cases of deprivation of liberty arbitrary apply to Mr Al-Habib’s case.

Deprivation of Liberty is considered arbitrary under the following conditions:

Category (I): When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to him or her),

Category (II): When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the Covenant,

Allegations falling under Category II in the present case directly impacted the right to freedom of expression. In particular, the source claimed that the sentencing of Mr. Habib for “sectarianism,” “calling on people to sedition,” and “endeavoring to shake the societal fabric and national unity,” violated his right to freedom of conscience and freedom of expression protected under articles 18 and 19 of the Universal Declaration of Human Rights (UDHR). The Source observed that the Committee against Torture on the second periodic report of Saudi Arabia (CAT/C/SAU/CO/2) noted that the definition of terrorism in Royal Decree No. 44 was so broad that it could criminalize acts of freedom of expression protected under the UDHR as well as the Arab Charter on Human Rights. [para. 15]

Category (III): When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character,

Category (IV): When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy;

Category (V): When the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings.

In its communication of June, The Working Group requested the government to i. provide detailed information about Mr. Al Habib current situation and ii. to clarify the legal provisions justifying 1. His on-going detention, as well as 2. Its compatibility with the obligations of Saudi Arabia under international human rights law.  The Working Group, also, called upon Saudi Arabia Government to iii. Ensure Al-Habib physical and mental integrity.

It should be noted that Saudi Arabia is not a party to the International Covenant on Civil and Political Rights.

On the 21^st of August 2020, Saudi Arabia Government responded to the Working Group’s communication. The Government denounced the allegations transmitted claiming that the source did not provide any evidence and based the claims on incorrect information. The Government, also, highlighted that it cooperates with all international Human Rights mechanisms by responding to letters, appeals and reports submitted to it and that it further, hopes that these mechanisms cooperate by verifying the accuracy, objectivity and integrity of the conclusions reached by the source. The government response further confirmed that the detention is not arbitrary and that it does not falls within categories I, II, III & V providing that, among other justifications, i. the individual in question had access to legal counsel, in accordance with the law, and, that ii. Saudi laws do not include any provisions that discriminate against anyone, but instead criminalize and establish penalties for discrimination.

On November 26, 2020, The United Nations Human Rights Council, Working Group on Arbitrary Detention adopted Opinion No. 86/2020 concerning Sheikh Mohammad bin Hassan Al Habib (Saudi Arabia). In rendering its opinion, the Working Group considered the communications from the source and the official response from the government of Saudi Arabia to determine whether the arrest and detention of Sheikh Mohammad bin Hassan Al Habib was in contravention of international human rights law.

In determining whether or not Mr. Al Habib’s detention was arbitrary, the Working Group considered the principles established in its jurisprudence to deal with evidentiary issues. The Working Group recalled that it has repeatedly stated in its jurisprudence that even when the detention of a person is in conformity with national legislation, it must ensure that the detention is also consistent with the relevant provisions of international law. The Working Group referred to A/HRC/19/57, para. 68 to reiterate that the mere assertions by the Government that lawful procedures have been followed are not sufficient to rebut the source’s allegations.

In its opinion regarding Category 1, The Working Group also recalled its “jurisprudence concerning Saudi Arabia where it has consistently held that an arrest warrant, even assuming that it was issued by the Minister of the Interior or by delegated organs such as the General Directorate of Investigation (Al Mabahith), does not meet the requirement that any form of detention or imprisonment should be ordered by, or be subject to the effective control of, a judicial or other authority under the law, whose status and tenure should afford the strongest possible guarantees of competence, impartiality and independence, in accordance with principle 4 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.” [para. 59]

Among other considerations, the Working Group noted that Mr. Al Habib was not brought promptly before a judge, nor had he been afforded the right to take proceedings before a court so that it could decide without delay on the lawfulness of his detention. In this regard, it considered that judicial oversight of detention is a fundamental safeguard of personal liberty which is essential to ensure that detention has a legal basis.

Article 6 of the Cybercrime Law, under which Mr. Al Habib was convicted pursuant to the lèsemajesté provisions, was also found to be vague following previous jurisprudence and hence violated the principle of legal certainty and had no legal basis. The Working Group considered that such vague and overly broad laws can have a chilling effect on “the exercise of the rights to freedom of thought, conscience and religion, freedom of opinion and expression, freedom of peaceful assembly and association, participation in political and public affairs, equality and non-discrimination, and protection of persons belonging to ethnic, religious or linguistic minorities, as such laws have the potential for abuse, including the arbitrary deprivation of liberty.” [para. 68]

As for the violations alleged under Category II, the opinion outlined that they are directly related to Mr. Habib’s exercise of his right to freedom of conscience and freedom of expression in giving peaceful sermons. The Working Group found that Saudi Arabia in its reply failed to provide any explanation or evidence of criminal acts committed by Mr. Habib while delivering his sermons. Further, the Working Group determined that the restrictions imposed on Mr. Habib, were not justifiable under Article 29(2) of the Universal Declaration of Human Rights as his actions could not be considered as a threat to the rights of others, public order, morality or democratic society. Therefore, the Working Group found that his “arrest, detention and sentencing” were neither necessary nor proportionate. [para. 73] The Working Group concluded that Mr. Habib’s deprivation of liberty was arbitrary and in violation of articles 13, 18, 19, and 20 of the UDHR. Violations under Category II were referred to the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression for “appropriate action.” [para. 75]

Under Category 3, given that Mr. Al Habib was not able to challenge the legality of his detention, and had a right not to profess guilt under threat of torture, his rights under articles 10 and 11 of the Universal Declaration of Human Rights, as well as article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, were also violated. [para. 81]

In conclusion of the opinion, the Working Group found that the deprivation of liberty of Sheikh Mohammad bin Hassan Al Habib was in contravention of articles 2, 3, 6, 7, 8, 9, 10, 11, 13, 18, 19 and 20 of the Universal Declaration of Human Rights which renders his detention arbitrary and falling within categories I, II, III and V. [para. 94]

Accordingly, the Working Group requested the Government of Saudi Arabia to take the steps necessary to remedy the situation of Mr. Al Habib without delay and that the appropriate remedy would be the immediate release of Mr. Al-Habib and to afford him the right to compensation and other remedies in conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights. It, further, urged the Government to insure full and independent investigation on the surrounding circumstances of Mr. Al-Habib and to hold accountable those responsible for the violations of his rights.

The Working Group requested, both, the source and the Government to provide it with information on actions taken in follow-up to the recommendations made in the present opinion within 6 months of the date of transmission of the present opinion. Such information is to include the following:

(a) Whether Mr. Al Habib has been released and, if so, on what date;

(b) Whether compensation or other reparations have been made to Mr. Al Habib;

(c) Whether an investigation has been conducted into the violation of Mr. Al Habib’s rights and, if so, the outcome of the investigation;

(d) Whether any legislative amendments or changes in practice have been made to harmonize the laws and practices of Saudi Arabia with its international obligations in line with the present opinion;

(e) Whether any other action has been taken to implement the present opinion.

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Decision Overview

The Specialized Criminal Court, established in 2008 and competent for terrorism-related crimes, delivered the verdict on August 26, 2019.

The main issue before the court was to decide whether the speeches and sermons delivered by Mohammed Al-Habib, which called for the end of discrimination against the Shi’a minority, amounted to a call for rebellion and an act of terrorism in infringement of The Terrorism Crimes and Financing Act and the Royal order No. A/44.

The Terrorism Crimes and Financing Act defines a terrorist crime under Article 1 paragraph (a) as being: “Every act committed by the perpetrator in implementation of a criminal project, individually or collectively, directly or indirectly, intended to disturb public order, to undermine the security of society and the state’s stability, or endanger its national unity, to disrupt the basic statute of government or some of its articles, or to damage the state’s reputation or its position, or cause damage to one of the state’s facilities or its natural resources, or an attempt to compel one of its authorities to take action or refrain from it, or threaten to carry out actions that lead to or incite the mentioned purposes.” The court referred to this specific article to indict Mohammed Al-Habib for inviting people to sedition.

Royal Order No. A/44, issued on February 3^rd 2014 by King Abdullah, mainly concerns supporting terrorist groups outside Saudi Arabia, it does however punish according to its Article 1 paragraph (2): “Affiliation with extremist religious or intellectual currents or groups, or those classified as terrorist organizations internally, regionally or internationally, or endorsing them or adopting their ideas or approach in any way, or expressing sympathy with them in any way, or providing any of the forms financial or moral support for it, or inciting or encouraging any of it, or promoting it by saying or writing in any way.”

The Royal Order itself doesn’t specify which groups are classified as terrorists but Article 1 paragraph 4 directs the creation of a committee to do so: “A committee shall be formed from the Ministry of Interior, the Ministry of Foreign Affairs, the Ministry of Islamic Affairs, Endowments, Advocacy and Guidance, the Ministry of Justice, the Board of Grievances, and the Bureau of Investigation and Public Prosecution, whose task will be to prepare a list – updated periodically – with the currents and groups referred to in Paragraph (2) of Article 1 of  this order, and submit it to us, for consideration of its approval.”

The Court then quoted phrases from a few of Al-Habib’s sermons which it believed proved he had broken his pledge and contained prohibited language, such as “when a Shi’a goes to a Sunni judge, would he receive him with tolerance? Or even from within he feels hatred towards him!” The court considered that since defendant admitted to giving the speeches which were attributed to him, he was “legally capable, responsible for his words and actions.” The Court also established that it is “agreed upon that whoever commits a forbidden act or abandons a duty deserves punishment, if it is not addressed by Shari’ah, then it is for the endeavor of the ruler [to determine what is appropriate], as decided by Ibn Taymiyah (may Allah have mercy on him) in his book ‘The Shari’ah policy.’”

The court also considered that compliance and obedience to the Ruler is an Islamic Doctrine that one must abide by, because it is linked to the higher obedience of God (Allah), hence every disobedience of the Ruler is disobedience of Allah. The Court explained that “[i]n prophetic tradition (Allah establishes checks by the State authority on things for which check by Qur’an is not enough) and as evidenced by the Sharia texts, it is obligatory to listen to and obey the imam, where compliance and obedience to the ruler is considered Doctrine of the Sunnis and the community.”

In assessing the charges of sedition and “shaking” national unity, the Court cited Islamic Scholars who established that being “committed to the group… is one of the priorities of interest that Islamic law seeks to achieve in society: to call for the unity of word and rows, to support the rulers and obey them, Allah says (interpretation of the meaning) : ‘And hold fast, all of you together, to the Rope of Allah, and be not divided among yourselves.’” It further referred to a statement by the Supreme Council of  Scholars at its fifty-ninth session in 2003, dated 14/6/1424 AH, which  states: “The Council warns of the advocates of misguidance and sedition who appeared in these times, they confused the Muslims and incited them to disobey their rulers, which is a major prohibition, however, one should adhere to this true faith and walk on the straight path based on the Quran and the Sunnah as per the understanding of the Sahaabah.”

The court also referred to the Anti Cybercrime law to condemn the defendant for possession of documents that criticize the State, and the travel documents law for his illegal escape attempt.

Accordingly, the Court found the defendant guilty of the charges of inviting people to sedation and sectarianism which falls under disobeying the Ruler, in addition to attempting to leave the country illegally. For this, he was sentenced to five additional years in prison, over and above the previous seven, as well as a five-year travel ban after he finishes his entire twelve-year sentence.

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