Brief to the Supreme Judicial Council
on the Review of the Sentences Against Those Accused in Connection
with the Riyadh and Al-Khobar Bombings
Honorable President and Members of the Supreme
Judicial Council May Peace Be Upon You:
I am presenting this request on behalf of my
first, second, third, fourth, fifth and sixth clients, calling
for the review of the sentences against each one of them. I hope
that you will consider these cases, as you always do, with open
minds and hearts that seek to uphold justice and repel injustice.
Your sole premise is the fear of Almighty God, for He is All-watchful
and He is One and He has no associate.
I apologise for opening my rebuttal with a number
of facts which we think constitute an important framework for
considering this request and reviewing the unfounded convictions.
We are determined to present these facts in an unemotional, unbiased
and succinct manner.
The sentences against our clients are based on
written confessions that are allegedly genuine and legal since
our clients allegedly made and signed their confessions, then
affirmed them voluntarily before a judge or judges without any
coercion. So no wonder these judgments were handed down the way
they were, given their untrue and false basis. They were then
reviewed but upheld by the Supreme Judicial Council. The judge
or judges who affirmed these confessions and handed down these
sentences should have tried to uncover the flimsiness and weakness
of the basis upon which these convictions were built. The confessions
were illegal and were obtained by coercion and force. When they
appeared in front of a judge to confirm their confessions, all
our clients declared that they were innocent of the crimes for
which they were convicted. They were always antagonised and threatened
by the investigator, so they caved in for fear for their lives
and so as to avoid more physical, mental and psychological abuse.
Moreover, the process of affirming confessions is grossly flawed
and does not match the great legal responsibility attached to
it because the entire case is built on this procedure. The judges
who affirm the confessions did not go beyond asking our clients
whether the handwritings in the written confessions were theirs
and whether the signatures affixed on them were theirs. No questions
were asked about the content of the confessions and whether they
were given voluntarily and willingly. Save for sending our clients
back for a short period of time, the judges paid no attention
to their claim that they were coerced and tortured. The confessions
were quickly affirmed when our clients appeared again [before
the judges] after they had been threatened and intimidated, perhaps
even by the investigator. The judges should not have affirmed
the confessions; instead, they should have prepared reports on
the accused's claims and should have requested the competent authorities
to investigate these claims.
The sentencing document does not contain any
independent or conclusive evidence that may convict our clients.
The document contains only the confessions attributed to our clients
and presented by the Public Prosecutor. During all our meetings
with the investigator and officials from the Ministry of Interior,
we were not shown any other evidence or proof except the confessions.
Despite our constant requests to the officials in charge of the
case and to high-ranking officials in the Ministry of the Interior
to provide a single piece of evidence that may convict our clients,
our attempts were to no avail. The investigator has nothing to
say but to repeat the above-mentioned confessions.
Despite the gravity and ramifications of the
crimes committed in this case and their real motives, despite
the serious speculation about who is behind them and despite the
fact that all the accused in this case are foreigners who do not
speak Arabic, the official in charge of investigation and prosecution
is an officer with the rank of captain who does not speak any
foreign language at all. The person in charge of translation was
another officer with an inferior rank who has only a rudimentary
knowledge of English, which he learned in a summer course at his
own expense. I have no doubt that the honourable Council cannot
take for granted the statements made by the accused under these
conditions, which can, at the very least, be described as suspicious
and unreliable.
Though we were appointed as defence counsels
for our clients in October 2000, we have not been given any opportunity
to defend them, except for this brief, which we now present to
your honourable Council after the sentences have been handed down.
They were reviewed but upheld by the Supreme Judicial Council.
It is worth noting that this case has been tried by the competent
court and has been reviewed by the Court of Cassation or the Supreme
Judicial Council without us being notified and without the knowledge
of our clients, who told us countless times that they were not
aware they were facing trial. They thought they were participating
in some preparatory procedures that would eventually lead to a
trial, which they were looking forward to attending in order to
clear their names and put an end to their long suffering. I have
no doubt that your Honours are aware that these unfair procedures
have denied our clients access to much-needed legal counselling,
for which defence counsels were appointed. They needed legal counselling
because they are foreigners who do not know the culture and the
justice system of Saudi society and their rights. Such legal counselling
would have helped the court uncover the whole truth and take into
consideration certain circumstances that may lead to fair conclusions
in favour of the accused, such as the inadmissibility of the confessions
since they do not meet the legal requirements.
Despite our constant requests, we have not had
access to the investigation reports or any other related documents.
We only had a very brief access to the confessions attributed
to our clients at the centre where they were detained. We were
not able to obtain any written material from our clients because
they were denied access to a pen and a piece of paper to do so.
Whatever they wrote during our interviews with them was confiscated
by the prison authorities and we have not received them yet. We
immediately informed the President of the Supreme Judicial Council
and the Public Prosecutor of these matters. It is no secret to
you, your Honours, that these procedures, beside being illegal,
are unjust and hamper our task of defending our clients. They
deprive them of their basic rights to defend themselves. Such
rights are guaranteed by the Islamic model of rendering justice.
We request that your honourable Council take these facts into
account when considering our defence.
Our clients still do not know the content of
the sentences passed against them. Moreover, even their lawyers
were unable to obtain a copy of the sentencing document. We were
only allowed to see the document at the Public Prosecutor Office
but we were not allowed to take a copy or sections of the document
to discuss them with our clients. If this procedure seems to be
understandable, though we believe it has no merit, and can be
applied to cases where the accused were sentenced to death, in
accordance with the Ministry of Justice Order No. 82/M/T of 21
May 1973, which is based on the Royal Decree No. 8084 of 7 May
1973, it can by no means be applicable to other accused persons,
even those who were sentenced to death. It is unacceptable to
undermine the task of the defence counsel by refusing to disclose
all the details to him, particularly in the present case because
this one is more serious than the others. In such a secretive
case, how is the attorney supposed to defend the accused under
these circumstances?
Though the investigator and the attorney of
the accused Belgian both claim that the accused Belgian was the
first to confess and that he voluntarily gave his confession without
any coercion, we would like to draw the attention of the honourable
Council to the following facts that cast serious doubt on the
claim of the investigator and the attorney:
1. The accused Belgian first chose Salah
Al-Hujailan as his defence attorney and legal counsel to represent
him in the present case. Mr Al-Hujailan was notified of this decision
by the Saudi Ministry of Foreign Affairs. However, afterwards,
another attorney was appointed to defend the accused and he built
his case entirely upon the affirmation of the confession attributed
to his client. This substitution was not justified and the first
attorney Mr Sl-Hujailan was not notified of this change.
2. On the first opportunity that was given
to the accused Belgian to meet one of the other accused, ie James
Patrick Lee, when they were put together in a prison cell, thus
ending their solitary confinement, he [the accused Belgian] told
him that he had been coerced to give a confession and that his
attorney, as well as his embassy's representatives, encouraged
him not to retract his confession. He told him about his serious
desire to change his attorney and withdraw his full confession,
insisting that he was innocent and that the investigator used
the carrot and stick tactics to extract a confession from him.
Our client James Patrick Lee told us about their conversation
and we passed on the information to the Belgian Ambassador, as
our professional duty requires us to do. Since all our interviews
with our clients were videotaped, we request that your honourable
Council demand the release of the videotape of that particular
interview in order to view its content.
3. After the above-mentioned interview with
our client, we were surprised by two incidents: First, when our
client returned to his prison cell after he had met with us and
had told us about his conversation with the accused Belgian, he
was surprised to find out that the accused Belgian had been moved
to another location. So he never saw him again. Second, when we
informed the Belgian Ambassador of the conversation between our
client and his compatriot, we received a lengthy letter from him
that reveals certain embarrassment and nervousness, hinting that
he took part in persuading the accused Belgian not to retract
his confession in the hope that he may be granted royal pardon.
All our clients insist that they are innocent
and that they were forced to give their confessions. They claim
that the confessions were extracted from them by torture. They
say that they were subjected to the following forms of abuse:
1. Sleep deprivation ranging from one
week to 10 continuous days. They were forced to stand up while
their hands were shackled with a chain to the top of the door.
2. Sudden slapping on the face and punches
to the body.
3. Their feet and hands were shackled
and their bodies were hanging upside down.
4. Threats to harm and threaten relatives.
5. Promise of pardon and quick release
if they confess to the bombings in a manner dictated by the investigator.
If all or parts of these claims are true, and
we tend to believe that most of them are true, they are enough
to dismiss the convictions that are based on the confessions.
We believe that the honourable Council is the
first and most capable institution that can investigate this matter
by ordering an independent investigation that can uncover the
truth and dissipate doubt. We want to make absolutely clear that
we do not want to point the finger at any official or to question
his integrity by requesting this investigation. On the contrary,
we would like to point out, as our professional duty requires
without any flattery and adulation, that His Royal Highness Prince
Minister of Interior, His Royal Highness Prince Deputy Minister
of Interior and other high-ranking officials in the Ministry of
Interior have all expressed a genuine desire to establish justice
and condemn any violation, injustice and abuse no matter where
it originates. Moreover, we know that His Royal Highness Prince
Minister of Interior has always given instructions that prohibit
any form of abuse or violation by the investigating authorities.
For instance, Order No 16/2055 of 3 January 1985 prohibits all
the departments of the Ministry of the Interior from extracting
any confession from an accused by torture. Likewise, we do not
want to question the intentions of the investigator and his genuine
desire to uncover the truth. However, we criticize his approach,
which was inherited by some departments of security agencies in
the Kingdom a long time ago from some neighbouring countries.
This inherited approach is based on extracting confessions by
force and coercion, assuming that it is the best and quickest
method to settle the case. This approach believes that the end
justifies the means and that is why these lamentable conclusions
were reached.
The hypothetical theory upon which the investigations
were conducted and the allegations made in the confessions that
stress that the British embassy or officials at the British embassy
were behind the bombings are groundless and grossly flawed, mainly
for the following reasons:
1. Let us assume, for the sake of argument—and
argument is a form of doubt that cannot replace certitude—that
Britain wanted to destabilize the security of the Kingdom of Saudi
Arabia or to cause strife, hoping that the religious movement
will be blamed for the blasts, as the investigator in charge of
the entire case announced. It does not stand to reason that the
British embassy in Riyadh or any official at the embassy entrusted
these accused persons with the very sensitive and risky mission
of carrying out the bombings, especially when we look at the large
number of perpetrators. As mentioned and repeated in the sentencing
document, the only thing that the perpetrator [of the blast] had
to do was to attach the bomb magnetically to where he wanted the
bomb to go off. It would have been easier and safer if one single
person had carried out the mission or if a professional who is
trained to conceal the trail of the crime had been hired for that
task, without having to recruit a large group of people from different
nationalities who have only limited and circumstantial ties in
common.
2. The victims of the blasts were British
and it does not stand to reason that the British government is
targeting its subjects to achieve the claims of the prosecution.
Britain has a parliamentary system based on competition between
political parties that vie for power. It is also based on transparency
and political accountability, and after all, it grants the media
the absolute freedom and right to question the accountability
of politicians. A large segment of this media is after political
scandals so it is impossible for the ruling party [in Britain]
to be involved in this political gamble that targets British nationals
and commits heinous crimes against them, knowing very well that
watchdogs from the media and political circles are watching them
closely and they will not hesitate to question the real motives
and the extraordinary reasons that may justify embarking on such
adventure without calculating the consequences.
3. Britain has absolutely no interest in
destabilizing the security of the Kingdom of Saudi Arabia. On
the contrary, any act that, God forbid, undermines the security
of the Kingdom will adversely affect British interests, particularly
since Britain is the Kingdom's most important economic partner
and has the best political relations with it.
Your Honours: There is no doubt that the testimony
of the accused Belgian as we demonstrated before—which is
a piece of evidence that the prosecution largely relies on to
incriminate the other accused, is a fabricated testimony that
cannot be used to lay charges against them, specially when the
life, the freedom or the honour of the accused is on the line.
While the prosecution finds that this fabricated story serves
its purpose very well and that the nature of the personality of
the accused Belgian fits the role of "the witness for the
prosecution", it failed to take the following matters into
consideration: first, the seriousness of the offence with which
the accused will be unjustly charged; second, the testimony of
the accused Belgian is unreliable and inadmissible since he is
known for his corruption, debauchery and bad conduct—his
involvement in promoting banned substances was proven—and
he is known for being a licentious man and a sinner whose words
cannot be trusted and whose testimony cannot be accepted; third,
the promise that the prosecution made to the accused Belgian to
entice him to falsely testify against the other accused persons
comes from a person of authority and it suggests an implicit threat
against this accused person. He was tricked into falsely testifying
against the others for crimes they did not commit. It is both
a promise and a threat that cannot be accepted, endorsed or admitted
because it is wrong to seek the truth by trickery, which is a
form of injustice that religion prohibits and condemns. Let us
come back to this fabricated story and see whether it is credible
and plausible enough to be the basis of the charges against the
accused. Is it plausible that an official at the British embassy,
regardless of his diplomatic position, incited the accused to
carry out those bombings, whether or not to settle personal scores
related to alcohol trading between the members of this community?
Let us assume that the British official is involved in this. Let
us assume, for the sake of argument—and argument is a form
of doubt that cannot replace certitude—that the said official
was behind the incitement, did he really have to recruit this
large number of people to carry out the bombings? Or it would
have been safer for him to be cautious and hire one person to
do the job. Why has the British embassy not been incriminated
in this suspicious scheme? Did the personalities and life styles
of the accused, as well as the nature of their work in the Kingdom,
make them better candidates to carry out this dangerous act? What
are their real motives for carrying out these bombings, if they
knew very well the consequences of their criminal acts? In a later
brief, we will present the curriculum vitae of each one of them
to show that it is impossible for the accused to commit these
serious crimes. We will also examine the motive behind these crimes
and whether there is any proof of criminal intent, which is an
issue ignored by the prosecution and needs to be highlighted.
We will also seek the help of some witnesses, including some family
members, who are familiar with the accused and know their behaviour.
While the testimony of the accused Belgian is
considered by the prosecution as damning evidence against the
accused, it gives rise, in our opinion, to suspicion and doubt.
A close examination of that testimony will certainly undermine
these charges and will shake the foundation of its legitimacy.
The conduct of the accused Belgian and his alliance with the prosecution
give rise to suspicion that rises to the level of conclusive evidence
that cannot go unnoticed by a bright and objective judge who is
guided by the light of religion. Therefore, we would like to cross-examine
the said accused in court and in the presence of lawyers in a
professional manner in order to find out the real psychological
motives behind his egoistic and opportunistic behaviour, which
pushed him to falsely incriminate the others. There is no doubt
that his testimony should be closely scrutinized to uncover the
truth, particularly since it is deceitful and deliberately obstructs
justice. The cross-examination will play an important part in
assessing the credibility of this witness. We are confident that
he will be exposed no matter how hard he may try to conceal the
truth and obstruct justice.
What happened in the prison regarding the confession
of the accused Belgian, his desire to withdraw it, his wish to
change his attorney retained by the Belgian embassy, the reaction
of the Belgian ambassador to these developments and the change
in the location of the accused Belgian and Briton confirm the
special treatment reserved to the accused Belgian by the investigators
since day one.
Another fundamental element in this case is
that the charges were laid against persons who were psychologically
depressed because they were involved in another offence. These
scenarios are common in many societies when additional charges
are brought against persons who are already charged in connection
with another crime, such as the possession of unregistered weapons,
drinking alcohol, falsifying official documents, drug trafficking
an so no. Another example is to bring the charges of drinking
alcohol and taking drugs against a person who was caught red handed
in a rape crime.
Your Honours: The facts that we have mentioned
before constitute an important part of this case. Therefore, they
should be taken into account when reviewing this case in accordance
with the present request, which we hope will deserve your attention
and will help put this review on the right track. God knows that
when we assumed the responsibility of defending our clients, we
found ourselves at the crossroad of two paths: an easy and comfortable
path where we can ignore the truth and carry favour with the security
authority that was in charge of the present case under the pretext
of patriotism and counter-terrorism; or a rough and difficult
path where we respect our responsibility towards All-mighty God,
our conscience and our professional duties and help the judicial
system establish the truth and justice on the basis of objectivity.
We chose the second path and we pray God to guide us and guide
you to rightness and correctness.
Your Honours: We insist in our present rebuttal
that the sentences against our clients are flawed and erroneous
as so far as the motives and how the conclusions were drawn are
concerned. Hence, the need to review them in light of the above-mentioned
facts, to which we add the following points:
The confessions upon which the convictions were
based were extracted by force. Consequently, our clients fully
retracted them. Evidence shows that those confessions were illegal
and lacked any reliable proof. This evidence includes the following:
1. There is a striking resemblance between
the phrases used by all the accused in their confessions, which
lack the elements that distinguish genuine and voluntary confessions,
be they written or videotaped. The fact that the accused did not
meet each other during the whole period of investigation, which
lasted more than a year and a half, raises serious questions about
the credibility of the identical phrases used in their confessions.
2. The investigation period lasted more
than a year and a half, during which the accused were held incommunicado
and in solitary confinement. If the accused really voluntarily
confessed, why it took that long to keep them in detention and
why those draconian and unjustified measures were taken?
3. The interrogation of the accused was
conducted during the entire investigation period with the knowledge
of one officer, though they did not speak a common language to
help them understand each other since the investigation does not
speak English very well. The accused were subjected during the
entire period of investigation to psychological and mental pressures
that clouded their judgment and choice. Their confessions were
given under the conditions of coercion, despair, frustration and
capitulation to the will and desire of the investigator.
4. All the accused were terrified of the
investigator who interrogated them. Had he not subjected them
to abuse, torture and fear, their opinions of him and their reactions
would not have been identical.
5. All the accused retracted their confessions
on the first opportunity they were allowed to speak freely and
they stood by their retraction.
6. The accused wanted and still want to
take a polygraph test to prove the truthfulness of their claims.
7. The accused adamantly refused the idea
of affirming their confessions in exchange for reduced sentences
by the authorities. It is an idea that was offered to them by
the defence attorneys when reviewing the different scenarios available
to them.
8. The traditions of the judicial system
in the Kingdom of Saudi Arabia and the official instructions from
the Ministry of Justice and the Ministry of Interior require that
confessions extracted by force should not be admissible and should
not be used for passing sentences. For instance, the Order of
His Royal Highness Minister of Interior No 16/2055 of 3 January
1985 instructs all the directorates of the Ministry of Interior
not to obtain any confession from any accuse by force.
9. The Islamic model of rendering justice
applied in the Kingdom of Saudi Arabia and the guidelines of the
supreme judicial authorities in the Kingdom discredit any confession
obtained during investigation at the police stations and security
agencies. For example, the President of the Supreme Judicial Council
said, in his letter No C/F/ 430 of 11 October 1959 that if the
accused does not confess legally before the court, and if the
rulers have no witness to affirm his confession, then his confession
to the police, if denied afterwards, is inadmissible.
10. The general principle is not to accept
any proof as evidence for the prosecution in the crimes under
the Islamic penal law (Hodood) in the Saudi judicial system. The
only evidence accepted in the crimes under the Islamic penal law,
as agreed upon by all Muslim jurists, is witness testimony and
confession provided that certain legal conditions, rules and standards
are met.
The Saudi judicial system spares no effort in
establishing justice and protecting society in line with the teachings
of the Koran: "Indeed, We sent Our Messengers with the clear
signs, and We sent down with them the Book and the Balance so
that men might uphold justice". One of the fundamental rules
of the Islamic law (Shari'a) is that it insists that no one should
be convicted without legal evidence in the form of his confession
to the charges laid against him voluntarily and willingly or in
the form of the testimony of a witness and so on. Needless to
say that the crucial part of criminal trials is the final examination
and investigations conducted by the judge or the judges in charge
of the case. The real final evidence originates from the examination
and investigation conducted by the court, leading to the truth.
As for the investigations conducted by the police and security
agencies, they are just a first stage of the case before the court,
and in most cases, they are just an element of various elements
in the case that should be examined by the judge before he decides
on the case.
Human experience shows that, in many instances,
confession cannot be accurate and true. The accused confesses
to put an end to the torture he is subjected to or to put an end
to the psychological and mental conditions triggered by detention
and inculpation. Therefore, throughout history, legislations,
namely the Islamic shari'a (law), agree that confession cannot
be considered as evidence unless it meets the following requirements
that prove its credibility:
1. The confession should be given voluntarily
and willingly, which means that the accused should be in possession
of his free will, free to give or not to give his confession.
If the free will of the accused is taken away from him by torture,
intimidation or enticement, the confession is deemed inaccurate
and illegal. Therefore, it should not be used as evidence for
conviction. Civilized laws, particularly the Islamic law, do not
recognize confessions given under the influence of physical force,
mental pressure or promise and enticement. Therefore, Muslim jurists
agree that a minimum degree of coercion is enough to reject and
discredit a confession. We have already mentioned that His Royal
Highness Minister of Interior issued an order in 1985 stipulating
that confession cannot be obtained by causing physical harm and
torture. Article 14 (3g) of International Covenant on Civil and
Political Rights provides that the accused should not be compelled
to testify against himself or to confess guilt.
2. The confession should be explicit and
unambiguous about the commission of the Copy of Brief. (P.11-P.20)
3. The confession should be explicit and
unambiguous about the commission of the acts that constitute the
crime. Therefore, the judge should question the accused about
his confession. He should focus on the requirements of the confession
and whether it includes the elements of the crime. The accused's
confession to the crime is not enough. This is clearly and explicitly
outlined in articles 162 and 163 of the new Penal Procedures Regulations.
4. The confession must match the truth and
does not contradict reason or logic. It should be coherent and
does not contradict itself and should be based on sound interrogation
and investigation methods.
5. The confession should be made before
a judge in an environment where the accused should feel that he
has the right to confess or not. The author of Sanaei wrote: "A
confession should be made before a judge; otherwise, it is illegal
because the confession of Maez was before the Prophet Mohamed
(may God's peace be upon him). If the confession was not made
before a judge but there are witnesses who can testify about the
confession, their testimony is not acceptable because if the accused
really did confess, then there is no need for a witness testimony.
Confession prevails over witness testimony. If the accused does
not confess, he is allowed to change his mind. Withdrawing confession
is allowed within limits."
Muslim jurists agree that one of the requirements
of the legality of the confession is that the accused should have
the right to confess or not to confess and that the confession
should be given voluntarily and willingly, far from any influence
that is beyond his control. Accordingly, a coerced confession
is invalid. There is a consensus among Muslim jurists that the
types of coercion that strip the accused off his will and cloud
his judgement include beating, torture, incarceration, shackling,
intimidation and enticement. According to the legal school of
Imam Ahmad, enticement and intimidation by themselves are considered
as coercion.
The majority of Muslim jurists back up the illegality
of coercion by referring to the Koran, the Sunnah (tradition of
the Prophet Mohamed), the Athar (followers of the Sunnah) and
logic. Almighty God says in the Koran:
"Excepting him who has been coerced,
and his heart is still at rest in his belief,".
The significance of this Koranic verse is that
God Almighty makes coercion nullify a confession to blasphemy,
let alone to other acts and offences. It was narrated from the
tradition of the Prophet (may God's peace be upon him) that the
Prophet, in a sermon to his followers, said, "Your blood,
your money, your honour and your property are sacred and inviolable".
What we can infer from this that God Almighty, through the Prophet
(MPBH) holds the lives, the money, the honour and the property
of people sacred and inviolable. To subject a human being to beating,
insult or intimidation contravenes the words of the Prophet. Therefore,
to torture an accused to confess is not acceptable. Muslim jurists
also refer to what Abu Thar El Ghifari narrated. He quoted the
Messenger of God (MPBH) as saying, "God forgives my nation
in cases of error, forgetfulness and whatever they were coerced
to do". From the tradition of the followers of the Sunnah,
the jurists quote Omar Ibn Al-Khatab as saying, "A man does
not feel secure about himself if you starve him, terrify him or
shackle him". Judge Sharih, may God bless his soul, was quoted
as saying, "Shackling is coercion, incarceration is coercion,
intimidation is coercion and beating is coercion". From logic,
they concluded that the confession of a coerced person is words
that he was compelled to utter; therefore, it is not valid. Besides,
confession is legal evidence that proves the innocence of a man
and clears suspicion around him. No reasonable man will harm himself.
In case of confession, it is more likely that a person confesses
to avoid the abuse of coercion and the fact that he does not claim
innocence is suspicious. Therefore this confession is invalid.
To validate a confession, the following requirements
should be met, and if all or parts of the requirements are not
met, coercion cannot exist and the confessor is not deemed coerced:
Coercion should originate from somebody
who has control over the coerced person, i.e. he can carry out
his threats against him. The coerced person was under the impression
that if he did not comply with what he was asked to do, the threats
against him would be carried out. The threats should be so harmful
that they strip the accused off his will and cloud his judgment,
such as beating, incarceration, starving the person or depriving
him of sleep or food or depriving him of exercising his rights.
The coerced person is threatened with something
that will likely happen if he does not comply.
Therefore, we conclude that Muslim jurists seem
to refuse the confession of a coerced person, a conclusion that
can be backed up by authentic sayings of the Prophet (MPBH) and
the quotations of his companions that confirm that a coerced person
should not be accountable for what he said in a confession. Punishment
can be avoided by reasonable doubt and a coerced confession is
an exaggerated form of confirming them.
II. The prosecution did not provide a single
independent piece of evidence that may incriminate our clients
and did not provide any proof that may link them to the crimes
for which they were charged. All the evidence shows that our clients
are innocent of the charges against them and puts them at the
bottom of the list of suspects.
III. The logical defect in the hypothetical
theory upon which the interpretation and justification of events
were based is, by itself, the strongest argument that can be used
to refute the prosecution's claims. We have already demonstrated
the shortcomings of the [prosecutor's] claims and their violation
of the simplest standards of reason and logic. Additionally, the
conditions under which the accused confessed raise serious questions
and doubt about the credibility of the confessions and whether
they can be relied upon to issue a conviction, given the coercion
the accused were subjected to, which stripped them off their freedom
and will and clouded their choice.
IV. The bombings for which our clients were
charged did not stop after my clients had been arrested but they
continued and the latest blast occurred in Riyadh three weeks
ago. It was similar, in several aspects, to the blasts for which
our clients were charged. All these facts shake the foundation
of the charges and refute the prosecution's evidence.
V. An important event happened in this case
and raises serious doubt about the credibility of the confession.
Two foreigners, a Briton and a Canadian, confessed to the crimes
attributed to our clients. Their confession was affirmed but the
Supreme Command in the Ministry of Interior seriously questioned
the credibility of the confession and was suspicious that they
were given by force. Consequently, it ordered that a new investigation
be launched by another investigating team that later found that
the two accused were innocent and that the confessions were obtained
by force, so they were released. This event proves that our clients'
claims are true and that their punishment should be avoided.
VI. The sudden changing of the attorney
of the accused Belgian and his sudden removal to solitary confinement
after he had told one of our clients about his desire to withdraw
his confession, in addition to the positions of the Belgium Ambassador
and the pressure he exerted on his compatriot to persuade him
not to withdraw his confession, are all facts that raise questions
and doubt about the confession of this accused and the role that
the investigator played in them. The prosecution finds that this
fabricated story to incriminate the other accused serves its purpose
very well and that the nature of the personality of the accused
Belgian fits the role of "the witness for the prosecution"
in this case, but it failed to take the following matters into
consideration:
1. The seriousness of the offence with which
the accused will be unjustly charged.
2. The testimony of the accused Belgian is
unreliable and inadmissible since he is known for his corruption,
debauchery and bad conduct.
3. The promise that the prosecution made
to the accused Belgian to entice him to give his fabricated testimony
comes from a person of authority and it suggests an implicit threat
against this accused person. He was tricked into falsely testifying
against the others for crimes they did not commit. It is a form
of threat that cannot be accepted.
YOUR HONOURS
Justice is the most valuable virtue in human
existence after the belief in Almighty God and His oneness. It
is a right entitled to any person, regardless of his race, ethnicity
or social class. It is also a right that even sinners, aggressors
and criminals are entitled to, and why not since Almighty God
says in the Koran, "O believers, be you securers of justice,
witnesses for God. Let not detestation for people move you not
to be equitable; be equitable—that is nearer to godfearing.
And fear God; surely God is aware of the things you do".
Justice is the balance on which the heavens and earth were created;
it is the second main commandment after the belief in God and
His oneness. It is the reason messengers and prophets were sent
in line with what Almighty God said in the Koran: "Indeed,
We sent Our Messengers with the clear signs, and We sent down
with them the Book and the Balance so that men might uphold justice".
Ibn Kathir, may God bless his soul, said: "so that men might
uphold justice" means rightness and justice. Almighty God
says in the Koran: "God commands you to deliver trusts back
to their owners; and when you judge between people, that you judge
with justice." and "Say my Lord has commanded justice".
The prophet, may God's peace be upon him, quoting God, said, "Oh
my servants! I forbade injustice for Myself and I made it forbidden
among you, so do not do injustice among yourselves". In Sahih
Moslim, Jaber Ibn Abdallah quoted the Prophet (MPBH) as saying:
"Avoid injustice, for injustice is multiplied in the hereafter,
and avoid avarice, for avarice has destroyed people who came before
you, it made them kill each other and violate their inviolable".
We can read in Sahih Moslim too that: "People who do justice
are sitting, in the hospitality of God, in alters of light on
the right of the Merciful Almighty—both His hands are right—they
are those who are just in their judgment and in their families
and they never fail to do so".
YOUR HONOURS
My clients belong to Ahl Dhima community (non-Muslims
living in a Muslim country) who are guaranteed safety and security.
They came to work in our country under our protection. They fall
under our responsibilities in accordance with contracts that fulfill
the needs of our country. Therefore, they have rights and responsibilities.
One of their main rights is to benefit from the protection of
the state and society against any domestic or foreign aggression
or injustice. We can read in Mataleb Ula Nahy, a book that is
considered an authority in Hanbali school of jurisprudence, that,
"The Imam should protect Ahl Dhima and stop those who harm
them; they should be released from prison and he should punish
those who try to harm them". In his book Al-Forook, Iman
Al Quarafi, may God bless his soul, quotes Imam Ibn Hazem, may
God bless his soul, in his book Marateb Al Ijemae as saying, "If
outside forces came to our country to target Ahl Dhima, we should
fight them with trotters and weapons and we may die in the process
in order to protect those who are under the responsibility of
Almighty God and the responsibility of the Prophet (MPBH). To
extradite him would be a violation of the Dhima contract".
The entire Islamic nation seems to agree on that. As a commentary,
Imam Al-Quarafi wrote, "A contract that demands the sacrifice
of lives and money to protect a contracting party must be very
important". And why not since the Prophet (MPBH) said, "Anyone
who does injustice to a person with whom we have a treaty, violates
one of his rights, pushes him beyond his limits or takes something
away from him against his will will have to deal with me in the
hereafter". And why not since the Prophet (MPBH) also said,
"Harming a Dhimi (a non-Muslim person living in a Muslim
country) is tantamount to harming me, and harming me is tantamount
to harming God". He also said, "Whoever kills a person
with whom we have a treaty will never smell the fragrance of Heaven,
and its fragrance can be smelt from a distance of forty-year walk".
In Sahih Termidi, the Prophet is quoted as saying, "Whoever
kills a person with whom we have a treaty and who enjoys the protection
of God and His prophet is deemed to have despised the protection
of God and he will never smell the fragrance of Heaven, and its
fragrance can be smelt from a distance of forty-autumn walk".
In his book about history, Al-Tabari said that the Caliph Omar
Ibn Al-Khatab always asked envoys from other provinces about the
status of Ahl Dhima, for fear that a Muslim might have harmed
one of them. Their reply was, "the only thing we know is
compliance", ie compliance with the pact and contract between
them and non-Muslims. It is quoted in Sahih Al-Boukhari that,
"Adam Ben Iyass said that Shoebah Abu Hamza said that I heard
Jawiriya Ben Kodama Tamimi said that I heard Omar Ibn Al-Khatab
said he was told to give some advice, and he said take care of
those non-Muslims who are under the protection of God because
it is the protection of your Prophet and the livelihood of your
children". It is also quoted in Fateh Al-Bari that, "In
the version of Amr Ben Maymoun: advised them to protect those
who are under the protection of God and His prophet and honour
your promises towards them and fight on their side and do not
push them beyond their limits". Muslim scholars unanimously
agreed throughout history that Muslims should ward off injustice
against Ahl Dhima and protect them. One of them, Iman Ibn Abedeen,
said that the injustice done to a Dhimi is more serious than the
injustice against a Muslim, because a Dhimi in an Islamic country
is weaker and the injustice perpetrated by a strong party against
a weaker party is more serious in terms of sins. In his book,
Al-Kharaj, Abu Youssef talked about the pact between the Prophet
(MPBH) and the Christian Najran community. He wrote, "Najran
and its vicinity enjoy the protection of God and the protection
of Mohamed, the Messenger of God (MPBH)". In the era of the
Caliph Omar Ibn Al-Khatab, Abu Obeida Ben Al-Jarah wrote: "Muslims
eschewed doing injustice to them (Ahl Dhima), harming them or
taking away their money unless for a reason". In his book
Al-Forouk, Imam Quarafi, may God bless his soul, wrote: "The
pact with Ahl Dhima imposes certain obligations upon us because
they live under our protection and under our responsibility, the
responsibility of Almighty God and the responsibility of His Prophet
(MPBH) and the religion of Islam. Any one who assaults them, even
with verbal abuse and libel, has violated the responsibility of
God, the responsibility of His Prophet (MPBH) and the responsibility
of the religion of Islam."
YOUR HONOURS
Some of you have taught us that when a scholar
ponders a new unprecedented issue or when a judge rules and issues
a verdict, he has to consider the acts that are the subject of
his judgment or endeavour and has to assess the consequences of
his fatwa or verdict. His mission should not be restricted to
passing a religious verdict in an abstract way but his true mission
is to look at the facts and their consequences. He should pass
a judgment while he is fully aware of its consequences and effects.
Judgments are tied to consequences. The scholar who ponders new
unprecedented issues and the judge, who are acting on behalf of
religion, should be keen on considering the consequences when
passing judgments and on leading the religious obligations to
its best ends. It is wonderful what Imam Shatibi, may God bless
his soul, said in his book Al-Mowafakat, "Considering
the consequences of acts is religiously desirable, whether the
acts are wrong or right because the scholar who ponders new unprecedented
issues does not decide whether a particular act is an act of commission
or an act of omission until he looks at the consequences of that
act".
In the tradition of the Prophet we find guiding
examples for this matter. The Prophet (MPBH) prohibited the killing
and the deportation of the hypocrites and traitors, though he
was familiar with them and though he knew that they deserved that.
He (MPBH) said, "I am afraid that people may say that Mohamed
kills his people". He (MPBH) cancelled the project of reconstructing
the Holy Site so as to avoid confusion among the new Muslims.
When a countryman urinated in the mosque and the companions rushed
to rebuke and stop him, He (MPBH) said, "Do not harm him,
leave him alone". If the consequences had not been taken
into consideration, the traitors would have been killed or deported;
the Holy Site would have been reconstructed upon the foundation
of Abraham (may peace be upon him) and the countryman would have
been prevented from committing his disgusting act. But if the
punishment had been carried out, people, in the first example,
would have shunned Islam, in the second example, the Arab would
have thought that the Prophet was bent on destroying sacred places,
and in the third example, the urinating person would have urine
all over his body and clothes and perhaps urine would have been
splattered on other places in the mosques, let alone the serious
damage he might have sustained. Along this line, we mention the
story of Ibn Abbas when a man came and asked him, "Does a
man who killed a believer on purpose have any chance of repentance?
"No, only hellfire", he replied. When the man left,
Ibn Abbas was told, "Was that your verdict? You used to tell
us that the repentance of a killer is valid". "I think
he is an angry man who wants to kill a believer", he said.
When they followed the man and investigated the matter, they found
out that what he had told them was true.
Muslim scholars believe that a verdict or judgment
can vary according to time, space and person. Beside all this,
taking consequences into account requires knowledge of time, space
and persons so that a scholar who ponders a new unprecedented
issue or a judge may assess the consequences and the effects of
his verdicts or judgments.
If we want to apply these noble principles on
the case at hand, the principle of consequences requires us to
consider the disadvantages or the benefits of reviewing the passed
judgments, namely:
The way the sentences were handed down, despite
the numerous and serious flaws in the investigation, is a form
of injustice against the accused that leads to deviation, and
helps cover up the violations and encourages the violation of
the instructions given by the people in authority. The way the
sentences were handed down tarnishes the image of religion and
gives ammunition to those who criticizes the application of Shari'a
(Islamic law) in Muslim countries. It also undermines the reputation
of the judicial system in Saudi Arabia and questions its credibility
and independence.
The way the sentences were handed down will
lead, at this particular juncture in the history of the Kingdom
when various powers have joined forces to harm and tarnish the
reputation of the Kingdom, to the exacerbation of this assault;
it will make the task of the bashers easy and will harm vital
interests that should be protected.
The justice system in Saudi Arabia guarantees
the protection of social and moral values that should prevail
in our Islamic society, in a way that confirms the superiority
of the Islamic law over other worldly laws that are man-made whereas
the Shari'a (Islamic law) comes from God. And there lies the difference
between the superiority and integrity of Shari'a and the shortcomings
and ineptitude of human beings.
CONCLUSION
By reviewing the circumstances and conditions
under which the accused gave their confessions while they were
under investigation and interrogation and the methods used to
register their confessions, as well as their solitary confinement,
the unjust treatment they were subjected to, the role that the
prosecution played against them, the alliance between the prosecution
and the accused Belgian in order to fabricate charges against
the rest of the accused, the suspicions around his testimony,
the psychological state of the accused, their feelings of humiliation
and fear, the rush to lay charges against them, the absence of
attorneys to inform them about the seriousness of the charges
against them, the consequences of confessing under coercion, the
lack of a common language between the prosecution and the accused,
the inability of the accused to understand what was happening,
the questions they were asked and the language in which the investigation
was conducted, the televising of their confessions without their
knowledge and their miserable psychological conditions as a result
of solitary confinement, all these facts cast serious doubt about
the credibility of the confessions and raise serious questions
about their reliability due to the usage of coercion that stripped
the accused off their free will and clouded their choice and judgment.
Moreover, the basis of the charges has started to crumble and
the prosecution finds itself in a serious predicament regarding
the charges laid against the accused in connection with the bombings,
particularly when a blast has occurred lately in Riyadh, as announce
by security authorities.
The victim was British and he died in circumstances
that remind us of the bombings that took place in Riyadh and Al-Khobar,
for which the accused were charged. Who is really behind this
latest criminal act? The question will be answered by the current
investigation into the blast. The findings may help acquit the
persons accused in the present case, especially since they are
still held in prison.
These suspicious events need to be examined
and scrutinized. The confessions should be reassessed because
they were given in an illegal environment, where the free will
of the accused was dissolved and they could not defend themselves
under fear, anguish and anxiety. Therefore, a just balance should
be struck between protecting public interest and between protecting
the individual rights of the accused so that one may not prevail
over the other and so that an innocent person may not be punished
for a crime he did not commit and so that a guilty person may
not escape justice and punishment.
Since the accused withdrew the confessions they
were forced to give and since the confession of the accused Belgian
was used as the basis for the charges against them, their confessions
should be thrown out, and we leave that decision to the discretion
of the law that should confirm that the confessions given by the
accused came as a result of their nervous breakdown and their
subjugation to despondency and despair because they were confronted
with false accusations and the fabricated testimony of the accused
Belgian, who wanted to save his neck in a very egoistic and opportunistic
manner.
YOUR HONOURS
This case has far-reaching consequences and
the truth must be known without a shadow of doubt in order to
implement the goals of our tolerant religion. We should not punish
innocent people, for there is no punishment without a legal reason
and justification. Otherwise, the guilty parties may escape justice.
Everybody knows that this type of crimes does
not occur in our country as often as in other societies. So it
is only natural that the security authorities lack the experience
that other security agencies have; and we should not be ashamed
of that. Otherwise, confusion will reign and the process of implementing
justice expediently and maintaining order strictly and firmly
will disintegrate into an unacceptable rush to lay charges and
interpret criminal instincts.
In modern society, the aspects and elements
of crimes have become various, diverse and overlapping. The people
who mastermind the crimes are smart and well versed in criminal
plots and in covering the trails. Throughout history, many international
figures were victims of homicide and serious crimes that were
committed during the last few years but, up to now, nobody knows
the identity of the persons who committed those acts or homicides
despite the huge available resources and the media and security
campaigns that accompanied them. These homicides, assassinations
and terrorist acts occurred in the United States and Europe during
the last half of the century.
Your honours, we believe that there is nothing
that stands against launching a new investigation in the bombings,
particularly when we take into consideration what happened in
Riyadh two weeks ago and the similar criminal acts that were committed.
You should be aware, yours honours, that the
videotapes of my clients, contained, and we do not know the reason
why, a controversial phrase that says that the accused received
orders to carry out the bombing from a source. We have to admit
that this enigma haunts all our communications and it is constantly
repeated by foreign sides and media outlets. We do not think that
hiding this piece of information will serve the transparency of
our present case.
Therefore, we believe that launching a new investigation
into this entire case will make a good impression on those who
follow it at the domestic and international levels. It will deepen
the trust in our security apparatus and will ensure its good functioning,
its legitimate procedures and its ability to maintain rightness
and justice in society.
Your Honours, this is a sensitive task in a
case that lacks hard evidence. It is solely based on a fabricated
testimony, false and suspicious confessions in terms of form and
content, which makes them unreliable, particularly after they
have been withdrawn by the accused. Since the task is sensitive
and crucial, Almighty God, revealed in His Holy Book the instructions
to be followed by the people in authority and the judges in order
to establish justice and fairness, while fearing no one but Almighty
God. The Prophet, may God's peace be upon him, warned that those
who are in charge of justice should be well aware of the grave
responsibility they have assumed. He (MPBH) felt pity for those
who are in charge of rendering justice between people when he
said, "Being in charge of justice is tantamount to being
slain without a knife."
Innocence is the presumed character of men.
So no one should be declared guilty and should be punished with
reasonable doubt. "It is better for an Iman to err on the
side of pardon than to err on the side of punishment", the
Prophet (MPBH) said. Hence, the judge should not convict unless
he is absolutely convinced of the truthfulness of charges against
the accused physically and mentally by conclusive and irrefutable
legal evidence. Those are the requirements of our tolerant religion
that Muslims should know to increase their knowledge and that
non-Muslims should be familiar with to better understand the tolerance
of Islam and its determination to protect the dignity and humanity
of human beings. Our religious duty dictates that we should not
hide this light from those people because they need it to better
understand the virtue, the integrity and the sustainability of
our religion. Everybody should know that the civilized principle
of guaranteeing the rights of the accused that the West so much
brags about is nothing more than a drop of the sea of rights guaranteed
by the Islamic Shari'a, where you can find real advancement and
real guarantees.
For those reasons and for other reasons that
yours Honours may consider, we request Yours Honours:
To repudiate the sentences and to dismiss the
case for lack of evidence.
To temporarily release all the accused and to
keep them in the country for a limited time not exceeding three
or six months.
To find, later on, ways to compensate the accused
for the damages they sustained in accordance with the new penal
procedures, as well as with similar previous instances, such as
the decision by the Custodian of the Two Holy Mosques to compensate
a British national, Neville Morton, and pay him 12,000.00 Saudi
riyals, ie 1 million riyals for each year he was banned from travelling
outside the country and from going to his country, family and
relatives because he was implicated in a case and he was barred
from traveling abroad for several years.
In conclusion, we pray God that your Honours
will succeed in your task in the same manner that the Prophet
(MPBH) prayed to God when he sent Ali Ibn Abi Taleb (may God glorify
him) as a judge to Yemen while he was still a young man, with
little knowledge of the justice system. The Prophet said, "Oh
God guide him and bless his tongue". Ali then told him, "By
God who split the grain, I never hesitated in rendering justice
between two persons".
I pray Almighty God to prevent you from error
and to guide you to the path of rightness and justice, for God
is an excellent Protector and an excellent Helper.
Yours truly,
Ahmed Othman Al-Tuwaijry
Salah Al-Hujailan
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