الاثنين، 31 مارس، 2014

Why they Imprison the Human Rights Activist Al-Nkhiffe 3 years and 8 months?

European Saudi Society for Human Rights
01/04/2014








Introduction:
Aesa Hamad Al-Nkhiffe
Due to various corrupt practices in the Al-Aradh province[1] in the southern city of Jazan by Saudi security authorities, the human right activist Aesa Hamad Al-Nkhiffe was arrested on 9/15/2012 as he was actively fighting corruption and other human rights violations such as the issue of the prisoners of conscience. Those problems have contributed to the emergence of his human rights activities. In a letter to Interior Minister Prince Ahmed bin Abdulaziz Al Saud on 09/09/2012, Al-Nkhiffe demands to “establish Human Rights organization in Jazan city due to the people suffering of injustice and administrative corruption and we want to expose you to that and be under your umbrella and inform you of what is happening Jazan city[2].
Arrests:
-       Al-Nkhiffe was first arrested in 1992, after defending an elderly man whose land was seized by the Prince of Jazan city at that time, Mohammed bin Turki Al Sudairy (1977-2001). Al-Nkhiffe was arrested and imprisoned where he was charged with using khat, therefore, spent 3 months and then acquitted after a pledging not to interfere with the Prince.
-       The second arrest was on 04/10/2006 until 11/09/2008, on charges of leading an international gang of Iraqi; Syrian; Palestinian and Saudi nationalities, where he was sentenced for 8 years in absentia with high treason by a military court.
Due to absence of evidence, Al-Nkhiffe demands death penalty on himself if they could prove the charges. The high treason charge is classified “under major military felony that requires applying the penalty of terrorism sanctions” and according to Article 25 of “the Saudi Arabian Army Penal System:[3]death; hand and leg cutting; internal or external exile”. After nearly two years, Al-Nkhiffe was brought from the prison to meet with Minister of Interior Assistant for Security Affairs at the time, Prince Mohammed bin Nayef in his office. The purpose of that meeting was to dissuade him from continuing his human rights activities. Al-Nkhiffe was then sent back to prison and stayed there 9 days more before releasing by a special order from Prince, which includes ignoring the issue, sign a pledge and to allocate him to early retirement. As a result, Al-Nkhiffe sent various grievance letters to the Saudi King Abdullah Bin Abdul Aziz, the Crown Prince Sultan and the Interior Minister Prince Nayef at the time.
-       Currently, Al-Nkhiffe is serving his third arrest of a 3 year and 8 months begun on 15/09/2012. This arrest happened 20 days after his participation by phone in a program called (ya hala) on Gulf Rotana TV on 8/26 / 2012. During the phone call, Al-Nkhiffe was speaking about the issue known by “the southern border “in Jizan[4], which located in the southwest corner of Saudi Arabia and directly north of the border with Yemen. He revealed that hundreds of villages were evacuated during the war that broke out on the Saudi/Yemen borders between the Saudi army and the Houthis[5]. This evacuation resulted in major crises for the residents, where they had to launch sit in protests after 4 years demanding the return of the remaining villages, which estimated to be 96 out 250 to 300 by the residents, where their homes and agricultural fields are. Al-Nkhiffe was actively documenting this issue and its contents, such as corruption cases that eventually have damaged the involved citizens’ business.
Up to now, Al-Nkhiffe has spent 563 days during his third arrest. And based on the charges, he is sentenced until May 2016. In a YouTube clip[6], three days before his arrest, Al-Nkhiffe explained the reasons behind his arrest, and then the Investigation Department of Jizan issued a warrant on 09/12/2012.
Marital Status:
The prisoner of conscience Al-Nkhiffe, born on 01/07/1971, is a resident of the city of Mecca; married and has six kids, five males and a girl. He held several jobs in the government sector before allocated to retire. He has served as a detective in the Follow Up Military Department of Saudi Security Hajji Forces and during the seasons, and after joining the Antiterrorism Parachuting Squad, he was promoted then as an antiterrorism trainer at the Center for specialized Training Center in the city of Mecca. Afterward, he was transferred to the Special Emergency Force, where he continued working as a trainer, next he was transferred to the Traffic Department in Jeddah city and then back to Mecca in the Traffic Department in the section of Joint Operations until he was arrested for the second time from his house in 2006.
Since the arrest, this event has been reflected negatively on his family as several physical and psychological signs have clearly indicate emotional stress. For instance, disease emergence and consequently noticeable poor academic performance of his children.
In addition, his family has been subjected to harassment by security through several phone calls threaten to arrest Al-Nkhiffe if he does not stop talking about the case in the media. Moreover, his family saw unidentified civilian cars standing close to their home, especially in the first months of Al-Nkhiffe’s detention.
Family visits are permitted only an hour per month, where, according to the law, it is four times a week and it seems that Al-Nkhiffe is an exception of this law. This permitted hour is rescheduled irregularly by the management of the prison, where he sits with his family in a specific room. Moreover, Al-Nkhiffe’s family is subjected to a humiliating inspection every time they visit, and this is essentially a common problem experienced by the families of the prisoners in Saudi. In one of the visits, Al-Nkhiffe refused to go out to meet his family because he was deliberately handcuffed and restrained.
Torture:
Al-Nkhiffe was held in a solitary confinement for more than 13 days at the beginning of his detention, and prohibited from communicating with the outside world. Also, the solitary confinement was very cold because the air-conditioner there were deliberately set on high cool and the thermostat at lowest degree setting, and during this time, Al-Nkhiffe was only wearing a short pants and an undershirt. This form of torture has caused bone problems that later he was taken to the hospital for treatment; also, other health issues are still ongoing such as clear weight loss. Al-Nkhiffe was also subjected to inhuman and degrading treatment during the investigations.
In Part I specifically Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, joined by Saudi Arabia in the September 23, 1997, torture that “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions[7]. Accordingly, what Al-Nkhiffe has been subjected to is clearly violating international law, which according to Article 4 requires prosecution of the responsible official. Also, the Saudi and its competent authorities should proceed to a prompt and impartial investigation of Al-Nkhiffe’s case, according to Article 12 “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction[8], under “the right to complain to, and to have his case promptly and impartially examined by, its competent authorities”[9] in accordance with Article 13.
Court Hearings:
So far, Al-Nkhiffe had more than seven sessions in court and none of them had the requirements for a fair trial, and even three sessions held without the presence of anyone except Al-Nkhiffe.
At the third hearing, two members of the Human Rights Union Society, banned now[10], attended and were represented by the human rights activists Mohammed Abdullah Al-Otaibi and the founder of the organization Abdullah Al-Atawi. Both activists are currently under trial due to their human rights activities in Saudi Arabia.
As it was observed, the trial procedures did not comply with international fair trial standards such as an unbiased trial; must be conducted publicly; presumption of innocence; the right not to be compelled to confess guilt; exclusion of evidence obtained through torture or other forms of coercion and right to trial without delay[11].
Additionally, Al-Nkhiffe had his first trial on 03/20/2013, the third one on 04/23/2013 and in the fourth trail he was announced guilty on 04/29/2013.
Charges[12]:
Al-Nkhiffe is accused of several charges, similar to prisoners of conscience’s accusations, as follow:
1.      Incitementing to overthrow the guardian, wali al amr[13], impugning the oath of allegiance to the leader, Bay'ah[14], according to the Islamic law.
2.      Challenging the judicial authority integrity and questioning its legal proceeding.
3.       Mocking and severely criticizing the Council of Senior Scholars.
4.      Accusing government institutions and officials of negligence in performing their duties towards the citizens.
5.      Participating in a heretical uprising “Fitnah” by coordinating and incitementing sit-in and demonstration activities.
6.      Preparing, storing and sending what could disobey the public order, which is a criminal act and punishable according to the Anti-Cybercrime Law.
These charges were built upon Al-Nkhiffe activities, according to the prosecution, including:
-       His involvement in issuing and publishing a statement entitled “The legitimacy of Bay'ah and its terms, we urge the people to demand[15]
-       Al-Nkhiffe activities in his social network accounts, Facebook; Twitter and other sites, including his participation in signing the statement “Twenty Proposals to Double the Success of the Demonstrations[16]”, the statement “The Legitimate Demand to Release the Prisoners of Conscience”, the statement “The Saudi People Demanding the Release Sheikh Yusuf Al-Ahmad”, the article “will be there bribes to the people after the sit-in 21 Muharram?[17]”, publishing  the declaration of forming the coordination committee to visit the families of prisoners to the king on Tuesday 10/04/2012 and others.
-       A phone call participation in talk shows on the Alhiwar TV channel.
And accordingly, the prosecutor approved the defendant's conviction and demanded for the following penalties:
1.      Sentenced to the maximum penalty specified in paragraph 1, article 6 of the Anti-Cyber Crime Law, which issued on 27/03/2007.
2.      Close and delete his accounts in Facebook T7TAL-majhr.com and Twitter @ aesa2002, in accordance with Article 13 in the Anti-Cybercrime Law.
3.      Travel ban based on Article 6 of the Saudi Travel Document System issued 08/28/2000.
The defense presented his argument to the jury on 04/15/2013[18], which includes clarification of the arrests violations as:
-       The origin of the of the case and the arrest is in regard to fight against corruption and human rights activities, and there is no criminal offense committed by the detainee that specified in the Law of Criminal Procedure (LCP)[19]. Therefore, the arrest is illegal and it is specified in Article 36 of LCP “The administration of any prison or detention center shall not receive any person except pursuant to an order specifying the reasons and period for such imprisonment duly signed by the competent authority.  The accused shall not remain in custody following the expiry of the period specified in that order”, as well as in Article 35 of LCP “In cases other than flagrante delicto, no person shall be arrested or detained except on the basis of order from the competent authority”.
-       The detention period after arrest lasted more than six months, until the beginning of the first trial on 03/20/2013, where Article 114 of LCP states, “The detention shall end with the passage of five days, unless the Investigator sees fit to extend the detention period.  In that case, he shall, prior to expiry of that period, refer the file to the Chairman of the branch of Bureau of Investigation and Prosecution in the relevant province so that he may issue an order for extending the period of the detention for a period or successive periods provided that they do not exceed in their aggregate forty days from the date of arrest, or otherwise release the accused.  In cases that require a detention for a longer period, the matter shall be referred to the Director of the Bureau of Investigation and Prosecution to issue an order that the arrest be extended for a period or successive periods, none of which shall exceed thirty days and their aggregate shall not exceed six months from the date of arrest of the accused.  Thereafter, the accused shall be directly transferred to the competent court, or be released” and throughout the long and unjustified detention period of Al-Nkhiffe, none of this rules were applied.
-       Not only the first trial in court violates the legal requirements, Al-Nkhiffe was not even informed about it, which was scheduled on 20/03/2013. This is another clear violation of Article 139 of LCP, which states “Detainees or prisoners shall be summoned through the detention officer or prison warden, or their deputies, but the judge held Al-Nkhiffe responsible for not attending the first trial.
-       The Bureau of Investigation and Public Prosecution practiced an administrative violation by investigating Al-Nkhiffe in the “Department of Ethical/sexual Assaults Cases” while there is the “Department of State Security Cases” that deal with prisoners of conscience as Al-Nkhiffe charges indicates, and doing such a step is a distortion of his social reputation.
-       Al-Nkhiffe is accused of incitement to overthrow wali al amr and impugn Bay'ah, challenging the judicial authority integrity and questioning its legal proceeding. Besides proving these charges, Al-Nkhiffe’s activities in terms of fighting corruptions and human rights prove the contrary.  
-       In addition, one of the charges is accusing government institutions and officials of negligence in performing their duties towards the citizens. Government institutions and officials’ performance have always been criticized in the official and none official medias due to the bad service quality.
-       Also, accusations such as challenging the judicial authority integrity, mocking and severely criticizing the Council of Senior Scholars and coordinating sit-in and demonstrations activities are all in regards to Al-Nkhiffe’s writing activities which primarily aim for development, administrative reform, independence of scholars, separation of powers and in compliance with the state laws that guaranteed the right of peaceful protest.
Punishments[20]:
The judge Omar Al-Haseen sentenced Al-Nkhiffe to the followings:
1.      3 years in prison, including a year in accordance with Article 6 Anti-Cybercrime Law[21] and the rest of the period is Tazir[22].
2.      Close his account in Facebook and Twitter in accordance with Article 13 of the Anti-Cybercrime Law[23].
3.      Travel bans for 4 years that begin after the releasing date[24].

The defense attorney raised objections list to the judicial decision[25], but it did not prevent the Court of Appeal to rise the sentence. As a result, the judge added 8 more months without giving the defendant a document of the added time, and then the case was closed with a final decision of 3 years and 8 months.
And beyond the legal frameworks, Al-Nkhiffe’s representative Abdulrahman Jaman Al-Dosari faced a direct threat and was forced to sign a pledge in the Detective Bureau to stop the case, although he has official letter of attorney issued by the Second Notary in Makkah on 1/14/2003 that states' legal right of Al-Dosari to represent and pursue all the affairs of Al-Nkhiffe’s case[26]. Al-Dosari is a previous prisoner of conscience and was released on 16/06/2005. 
The European Saudi Society for Human Rights (ESSHR) believes that the LCP is not considered objectively and seriously, therefore, calling on the government to abide by the terms of LCP and other laws, which do not conflict with the international and regional conventions and treaties that Saudi have joined. Furthermore, as ESSHR observed, there are repetitive violations practice in Saudi such as delaying many of the detainees’ trials, accumulating for more than 215 months for 9 detainees cases[27] with no trial, where the local law states 6 months as a maximum extension or could be extended further more by a court order in accordance with Article 114 of the LCP.
ESSHR calls the Saudi authorities to drop all the charges against the human rights activist       Al-Nkhiffe, and release him unconditionally with full compensation for all the damage done to him by this unlawful arrest, and to conduct an impartial and fair investigation and to prosecute the responsible officials.
Al-Nkhiffe is just an example of what human rights activists go through just because of their efforts calling and supporting human rights laws. In light of his commitment to freedom of expression, Al-Nkhiffe wrote a statement on 17/02/2013 calling to apply and enforce human rights laws and to fight against impunity in Saudi Arabia[28].
We also express our concern about Al-Nkhiffe physical safety due to certain health problems and blaming the Saudi government full responsibility for any ill due to medical negligence.



[2] A photocopy of the letter sent by Al-Nkhiffe to Interior Minister Prince Ahmad Al Saud (P. 14), which he made a request to establish a Human Rights Association https://docs.google.com/file/d/0Bydrk6ISJkqjemJkWlpyS3I2ZDA/edit
[4] YouTube: Al-Nkiffe phone participation where he was arrested 20 days after it. He started from 00:12:20 (the emigrants of #southern_border, four years of Spreading)
[5] Wikipidia: Houthis are a Zaidi Shia insurgent group operating in Yemen.
[6] YouTube: Reasons for Al-Nkiffe’s arrest warrants
[7] United Nations: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx
[8] Same as source 7
[9] Same as source 7
[10] YouTube: Isa Al-Hamid comment on the sixth session of the trial of Omar Al-Saae https://www.youtube.com/watch?v=5ZSoSIvgG0U
[12] The declaration presented by prosecutor against Al-Nkiffe https://docs.google.com/file/d/0Bydrk6ISJkqjemJkWlpyS3I2ZDA/edit
[13] Wikipedia: Wali in Islamic terminology means someone who has "Walayah" (authority or guardianship) over someone else
[14] Wikipedia: Bay’ ah in Islamic terminology means is an oath of allegiance to a leader.
[15] Saudi Civil And Political Rights Association (ACPRA): “The legitimacy of Bay'ah and its terms, we urge the people to demand
[16] Saudiwave: the statement of “Twenty Proposals to Double the Success of the Demonstrations
[17] A3lamona: “will be there bribes to the people after the sit-in 21 Muharramhttp://a3lamona.blogspot.de/2011/12/21.html
[18] The defense declaration submitted by the Al-Nkhiffe, starting from P. 7 https://docs.google.com/file/d/0Bydrk6ISJkqjemJkWlpyS3I2ZDA/edit
[20] Judicial ruling issued against the human rights activist Al-Nkhiffe on 30/04/2013 http://www.gulfup.com/?iRiMtN
[21] Saudi Embassy: Anti-Cybercrime Law. Article 6 states “Any person who commits one of the following cyber-crimes shall be subject to imprisonment for a period not exceeding five years and a fine not exceeding three million riyals or to either punishment:
1. Production, preparation, transmission, or storage of material impinging on public order, religious values, public morals, and privacy, through the information network or computers.
2. The construction or publicizing of a website on the information network or computer to promote or facilitate human trafficking.
3. The preparation, publication, and promotion of material for pornographic or gambling sites, which violates public morals.
4. The construction or publicizing of a web site on the information network or computer to trade in, distribute, demonstrate method of use or facilitate dealing in narcotic and psychotropic drugs”.
[22] Wikipidia: Tazi, in Islamic Law, refers to punishment, usually corporal, that can be administered at the discretion of the judge, called a Qadi, Kadi,  as opposed to the hudud.
[23] Saudi Embassy: Anti-Cybercrime Law. Article 13 states “Without prejudice to the rights of bona fide persons, equipment, software, and means used in perpetrating any of the crimes stipulated in this Law or the proceeds generated therefrom may be confiscated. In addition, the website or the venue where the service is provided may be shut down permanently or temporarily if it is the source for perpetrating the crime and the crime is committed with the owner's knowledge”.
[24] Bureau of Experts at the Council of Ministers presented: Paragraph 2 of Article 6 of the Travel Document Systems states “shall not be prevented from traveling without a court order or decision issued by the Minister of Interior for specific reasons related to security and for a known period of time, and in both cases, the person who is banned from traveling shall be informed in a period not exceeding one week from the date of the judgment or decision of banning from traveling.
[25] The defense attorney objections list to the judicial decision.
[26] A photocopy of the power of attorney that Abdurrahman Jaman Al-Dosari legally obtained to represent             Al-Nkhiffe on 25/12/2012

[27] Rasid News Nework: “The Forgotten prisoners
[28] The activist Al-Nkhiffe calls all sheikhs, activists, scholars and intellectuals to sign the statement