Summary of Legal Argument in Appeal for Release of Raif Badawi

Background

1. Raif Badawi is a Saudi blogger who was accused, and arrested in 2012, under a Saudi Arabian law against cybercrime, of creating and administering an Internet site and publishing comments on his Facebook page that “infringe on religious values”.

2. Mr. Badawi was found guilty of the charges against him in July 2013. After an appeal, Mr. Badawi’s case was returned to the criminal court. In May 2014, he was once again convicted. That conviction was upheld by the court of appeal.

3. Mr. Badawi was sentenced to 10 years in prison, 1,000 lashes, and a fine of 1,000,000 riyals. He was also banned from travel and from using multimedia devices for 10 years.

4. The first session of floggings was carried out on Mr. Badawi on January 9, 2015. Citing medical reasons, Saudi authorities have postponed all subsequent sessions.

5. Subsequently, at the request of the King of Saudi Arabia, the Supreme Court of Saudi Arabia reviewed Mr. Badawi’s case. It rendered judgment on June 7, 2015 upholding the conviction.

Breach of the Right to a Fair Trial

6. The legal proceedings against Mr. Badawi were conducted in violation of his right to a fair trial and other related protections under both Saudi Arabian law and international law obligations assumed by Saudi Arabia.

7. Mr. Badawi was convicted by a court that lacked jurisdiction under Saudi law. A special committee of the Ministry of Culture and Information, not the Criminal Court of Jeddah, should have heard his case. Given the absence of material jurisdiction, Saudi law provides for either the dismissal of the file or the quashing of judgment.

8. Mr. Badawi was deprived of his right to access legal counsel of his choosing. In fact, Mr. Badawi’s chosen attorney, human rights lawyer Waleed Abu al-Khair, was himself imprisoned in April 2014 and sentenced to 15 years in prison.

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9. Under Saudi law, a witness’s credibility must be attested by two men. Yet this “screening of witnesses” was ignored by the court in Mr. Badawi’s case, in which only one person attested the credibility of two other witnesses.

10. Moreover, the “review” by the Supreme Court was conducted without Mr. Badawi’s legal representative being permitted to make submissions.

11. With respect to the charges brought against him, Mr. Badawi was not informed of all the charges and was not given the time and means necessary to prepare his defence. Indeed, Mr. Badawi was convicted of having authored comments published on his Facebook page, yet no charge relating to the publication of comments on Mr. Badawi’s Facebook page was recorded on the list of charges. Equally, excerpts from the “Free Saudi Liberals” website was used in assessing the evidence that led to Mr. Badawi’s conviction, yet this website was never referred to in the list of charges.

12. Comments made by third parties – over which Mr. Badawi had no control – were also used in the charges against Mr. Badawi and for his conviction, contrary to the rules set forth in the Qur’an (which obligate the Saudi judiciary).

13. The judgment against Mr. Badawi was thus rendered contrary to Islamic law, Saudi procedural rules and the national and international standards on the right to a fair trial.

Breach of the Right to Freedom of Opinion and Freedom of Expression

14. Mr. Badawi created a virtual platform for expression on issues including democracy and human rights – including the rights of women.

15. The Arab Charter on Human Rights (ratified by Saudi Arabia in 2009) guarantees freedom of expression and opinion, in language similar to the Universal Declaration of Human Rights. While the right to freedom of expression is admittedly not absolute, the Human Rights Committee has noted that it is not permissible for prohibitions to be used to punish criticism of religious leaders or commentary on religious doctrine. Sanctions for making critical comments violate the principles at the heart of freedom of expression protections.

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16. Mr. Badawi’s conviction breached his speech rights under the Arab Charter and Saudi Law. Such activities should not constitute offenses and should not be criminalized.

Breach of the Right Not to be Subjected to Torture

17. The administration of lashes violates the prohibition against torture under international law, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Saudi Arabia ratified in 1997. The Arab Charter on Human Rights also contains a provision which expressly states that “No one shall be subjected to physical or psychological torture or to cruel, degrading, humiliating or inhuman treatment”.

18. The prohibition on torture does not contain an exception for condemnations legally rendered by a court under Shari’ah law, contrary to Saudi Arabia’s previously expressed position.

Conclusion

19. In consideration of the above, Saudi Arabia, in respectful compliance with its own law, should release Mr. Badawi in order to remedy the breach of his human rights and to comply with its legal obligations based both on Saudi law and the obligations which Saudi Arabia has assumed under international law.

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