A report by the United Nations Secretariat on the issue of the death penalty confirmed that Saudi Arabia and other countries continue to violate international standards and laws in their implementation of the death penalty.
The report was presented on the sidelines of the 48th session of the Human Rights Council in September 2021 and focused on the consequences of the lack of transparency in the application and imposition of the death penalty on the enjoyment of human rights.
European Saudi Organization for Human Right Highlights the report's articles and highlights the Saudi government's practice regarding this punishment.
Recent Developments Towards the Abolition of the Death Penalty
In December 2020, a growing number of states voted in favor of the eighth General Assembly resolution on a moratorium on the use of the death penalty, and human rights reports indicate that there has been a significant reduction in known executions in 2020 compared to 2019.
As for Saudi Arabia, the number of executions recorded from the beginning of 2021 to October more than doubled from 2020, confirming that the drop in figures in the previous year was not in the context of developments to abolish the punishment.
Transparency and the Death Penalty: Legal Frameworks and National Practices
Under international human rights law, states that still impose or apply the death penalty should comply with international human rights standards. In particular, the death penalty may only be imposed for "the most serious crimes," which the UN Human Rights Committee has deemed limited to murder. They should also fully comply with fair trial and due process guarantees.
International standards stress the importance of making information available to the public, as a number of states still refuse to disclose information about executions under the pretext that it is a state secret. The UN called on states to publicize the number of people sentenced to death, the number of executions actually carried out, the number of death sentences reversed or commuted on appeal, and the number of cases in which pardons have been granted. In its resolutions on the moratorium on the use of the death penalty, the General Assembly also called upon all States that had retained the death penalty to provide the Secretary-General with information and to make that information available to the public.
In its report, the Human Rights Council noted that clandestine executions or those with little or no warning increased the suffering of persons sentenced to death, as well as other affected persons, and called on States to ensure that prisoners and their representatives were provided with adequate information about the execution, its date, time and location, and to allow a final visit or contact with the convicted person. It also stressed the importance of returning the body to the family for burial or to report the location of the body.
Saudi Arabia carries out the death penalty for crimes that are not considered the most serious, including those related to expression of opinion, demonstrations, drugs, and use of weapons without killing or causing harm. It also refuses to announce the number of individuals facing the death penalty, nor does it publish information and updates on the judicial stages or inform families of it, and there are doubts about the credibility of the execution numbers published by the Ministry of Interior.
As for the confidentiality of executions, according to the European Saudi Organization for Human Rights , Saudi Arabia does not inform families of executions or grant detainees the right to say goodbye to their families. In the case of young Mustafa al-Darwish, the family was waiting for his weekly call when they learned about his execution from the media.
While international standards point to the importance of returning the bodies to families, the organization's documentation indicates that Saudi Arabia is holding at least 90 people whose bodies had been executed or killed outside the judicial system.
Human rights consequences in the absence of transparency in the application and imposition of the death penalty
a. Right to a fair and transparent trial in death penalty
The Special Rapporteur on extrajudicial summary and arbitrary executions stated that transparency is essential for guaranteeing justice. The Special Rapporteur also noted that secrecy throughout the post-conviction process was constrained by the State's obligations to ensure due process rights and respect the right not to be subjected to cruel, inhuman or degrading treatment or punishment.
In its general comment No. 32 on the right to a fair trial, the Human Rights Committee noted that public hearings guaranteed transparency of proceedings and thus provided an important safeguard in the interests of the individual and of society as a whole. He stated that under international human rights law, even during a state of emergency, the non-observance of transparency rights in death penalty cases is never allowed.
The right to effective legal representation chosen by an individual at all stages of criminal proceedings is enshrined in international human rights law. Lawyers play a crucial role in upholding the rule of law, protecting human rights, and the lack of transparency in the application and enforcement of the death penalty can limit their ability to fully perform their professional functions in the interests of their clients.
ESOHR documentation confirms that trials in Saudi Arabia lack transparency, that lawyers are barred in various ways from practicing their work, and that individuals are prevented from accessing their right to self-defense until after the start of the trial hearings, which prevents the fairness of the trial.
b. Right to Request Amnesty or Commutation of the Death Penalty and Transparency
As provided for in article 6 (4) of the International Covenant on Civil and Political Rights, anyone sentenced to death should have the right to seek amnesty or commutation of sentence. It is important that the process by which requests for clemency, amnesty, commutation of sentence is made, processed, evaluated and decided clearly in law. However, many countries that retain the death penalty are unable to provide transparency in amnesty and commutation of sentence.
Individuals in Saudi Arabia are denied their right to request amnesty, and the lack of transparency and misinformation provided by the government to individuals serves to deny them this right. In the case of Haidar al-Laif, the Saudi government said in a letter to the United Nations that it had lifted his death sentence, but then executed him, denying him his right to claim amnesty.
c.Right to Consular Assistance and Transparency in Death Penalty Cases
Access to consular assistance is an important aspect of the protection of foreign nationals facing the death penalty abroad. Under article 36 of the Vienna Convention on Consular Relations, local authorities must inform all detained foreigners "without delay" of their right to notify their consulate of their detention and to communicate with their consular representatives. This applies to all foreign detainees, but is particularly important for those facing the death penalty for non-refoulement. Lack of transparency in public information on the death penalty can negatively affect the ability of foreigners to seek and receive consular assistance in a timely manner.
The report cited Saudi Arabia as an example of these abuses, with many foreigners reported to have been sentenced to death, some reportedly without consular services. One of these cases that received special attention from many UN special procedures mandate holders was the case of Jordanian national Hussein Abu Al-Khair, who was sentenced to death for drug trafficking in May 2015. He was reportedly not allowed access to a lawyer until after the verdict. Among other things, special procedures mandate holders were also concerned that the accused might not have been granted the possibility to seek consular assistance from the Jordanian authorities.
d. Right to Freedom of Information and Transparency in Death Penalty Cases
The Special Rapporteurs on the promotion and protection of the right to freedom of opinion and expression emphasized that the right to freedom of opinion and expression is an enabler of other rights and that access to information is often necessary for individuals seeking to realize those rights. The right to seek and receive information also includes the right of individuals to access information of public interest that can contribute to public debate.
Previous reports of the Secretary-General have already stressed the importance and effectiveness of the debate on the death penalty and its transparency in ensuring public access to balanced information, including accurate information and statistics on crime and various effective means.
The Saudi government prevents individuals from expressing their opinion in general, in particular judicial proceedings leading to death sentences, and prevents individuals, media and organizations from accessing sufficient information that could contribute to public debate..
e. Prohibition of Torture and Transparency in Death Penalty Cases
Lack of transparency about executions can lead to torture or other cruel, inhuman or degrading treatment, both in relation to the convicted person and their family members, and the right to issue a minimal or no warning to convicted prisoners and their families.
The Human Rights Committee recommended that families of prisoners sentenced to death be given reasonable advance notice of the date and time of execution, with a view to alleviating the psychological suffering caused by the lack of opportunity to prepare for execution.
The Saudi government does not inform the detainees of the suspension of the execution of the sentence, and accordingly, it practices torture against the detainee and his family, who are deprived of knowing the time of execution and consequently his farewell, and does not inform them in an official and humanitarian way. Rather, it publishes the news in the media in order to receive news from news outlets or social media sites.
f. Method of implementation and transparency
In its general comment No. 36, the Human Rights Committee recalled that article 7 of the International Covenant on Civil and Political Rights prohibits certain methods of execution, as they constitute torture or cruel, inhuman or degrading punishment. Many countries that retain the death penalty maintain secrecy as to how they are carried out through legislation, protocols and practices that contravene international standards of transparency in the imposition of the death penalty.
Saudi Arabia used to carry out public executions by decapitation, but according to information received by the organization, Saudi Arabia stopped public executions in public squares and began to do so in prison. The method and location of the execution cannot be verified for several reasons, including failure to inform families and failure to hand over their bodies.
ESOHR emphasizes that Saudi Arabia violates the standards set forth in the UN report regarding transparency and the death penalty, as it prevents individuals, organizations and families from having access to adequate and accurate information about the sentences and enjoys free circulation. In addition, Saudi Arabia's approach to secrecy regarding the time and method of execution of sentences and the policy of detaining the two bodies is a flagrant violation of international laws and standards.
The organization points out that the Saudi government claims in international forums that it abides by the standards set by the United Nations for the application of the death penalty, but the reality is the opposite. The death toll figures carried out since the beginning of 2021 confirm that there is no official intention to reduce the number of penalties or to apply the standards in order to guarantee the rights of individuals.