CANSANCIO FÍSICO Y MALESTAR GENERAL

On an international scale, the equality of arms concept has been safeguarded through the UDHR, which draws attention to a fair and public hearing.85 _{Furthermore, article}

14(3)(e) of the ICCPR and article 6 of the ECHR have both sought to ensure the provision of this right throughout the criminal process under what can be defined as ‘fairness of proceeding’.86

The ACHR is acknowledged as not making any direct reference to the equality of arms right; nevertheless, there are a number of articles that discuss this right

81

Law of Procedure Before Sharia Courts, art 118.

82

Law of Procedure Before Sharia Courts, art 118(1), (2).

83 _{Law of Procedure Before Sharia Courts, art 121.} 84 _{NSHR Second Report (2010) (n 53).}

85 _{UDHR, art 10.} 86

128 indirectly. For example, direct references have been made to the rights of the accused in the context of the in-trial process.87

Two different meanings are assigned to the concept of equality of arms: the first considers the accused’s rights to be provided with interpretative assistance should there be problems, such as if the accused is a minor or suffers from a mental illness;88

secondly, equality of arms may be defined as the degree of equality between parties throughout the trial process, wherein the accused should be given the opportunity to present himself to the court under the same conditions as those enjoyed by the prosecution.98

It is highlighted by Gans, Henning and Hunter that, ‘Equality of Arms between the prosecution and the defence presupposes the defendant to have equal access to justice and creates a new measure of equality of recourses to that between the individual and the state’.90 _{In this way, it can be stated that, in this particular context, equality of}

arms is seen to be between the individual and the state. Nevertheless, it is emphasized by Cassese that there are four different elements inherent in equality of arms, namely:

 To know, in depth, the charges made against the individual;

 To have the witness against the accused examined;

 To assign counsel; and

 To ensure the attendance of any and all witnesses.91

With the above taken into consideration, it can be argued that each of these rights has been devised in mind of the accused and not the prosecution. Notably, equality of arms must consider all parties equally; however, although it may be seen that the four aspects refer to the accused’s rights due to his position as the weaker party. Both parties must nevertheless be afforded and able to enjoy equal protection and fairness.92 _{It is also}

noted that the four inherited elements of equality of arms are compatible with the equality of arms in Islamic law.

In a domestic context, the LCP stipulates that the accused should not be physically restrained, in any way, during the court hearing, and should be adequately

87

See Arab Charter on Human Rights, May 22, 2004, reprinted in 12 Int'l Hum Rts Rep 893 (2005), entered into force 15 March 2008, arts 16 and 17, 1-7.

88 _{Jeremy Gans, Terese Henning and Jill Hunter, Criminal Process and Human Rights (The Federation}

Press 2011) 485.

98

Al-Eshaikh (n 46) 80.

90 _{Gans, Henning and Hunter (n 88) 486}

91 _{Antonio Cassese, International Criminal Law (2nd edn, OUP 2008) 385-386.}

92 _{Stefania Negri, ‘The Principle of “Equality of Arms” and the Evolving Law in International Criminal}

129 protected and not dismissed from any hearing throughout the duration of case deliberations, unless there is just cause; in such a situation, the proceedings will continue with the admittance of the accused whenever such a case for removal arises. Importantly, however, the court must, at all times, ensure the accused is kept informed of all developments made during any period of absence.93

7.1 Case 194

The case was before Taar Court in the south of the Saudi, where ‘K’ was accused of being in possession of a drug tablet in the rear seat of the car he was renting. The prosecution claimed that K was driving, at which point he was stopped by police and searched. The police found the tablet in K’s car, after which he was arrested and taken to the police station where the tablet was sent to the lab for examination. The result showed that the tablet found was Captagon, an illegal drug under Saudi Arabian domestic law. However, the prosecutor asked the judge to sentence K in accordance with the Law of Combating Narcotic Drugs and Psychotropic Substances.95

When the judge asked K whether or not he noticed the substance in the rear of the car, K claimed that he had no idea as the vehicle was from a car hire company. The judge asked K about the time he had rented the car, with K subsequently responding that he had rented the car for three days. Subsequently, the judge asked the prosecutor whether there was any other evidence to support the case, to which the reply was given that all evidence had been given to the court. After consideration, the judge decided that the claims from the prosecutor were invalid due to the fact that there was not enough evidence to incriminate K. In addition, the drug substance found in the car did not necessarily suggest that the accused knew about it, and therefore the prosecution case was dismissed.

In this case, some points can be considered, as follows:

1. There was an interrogation process during the court hearing and, although the evidence was sufficient, the judge played a positive role and did not rely upon

93 _{LCP, art 158.} 94

K, Case number 128, Reviewed by the Court of Appeal, G/1/3/991, 8/1/1427 (2007).

95

The Law Combating Narcotic Drugs and Psychotropic Substances, art 39 gives the judge authority to sentence for up to five years if the person uses the drug, and capital punishment for the drug dealer. See the full English version of the Law at the Bureau of Experts at the Council of Ministers <http://boe.gov.sa/ViewSystemDetails.aspx?lang=ar&SystemID=31&languageid=2> accessed 15 March 2013.

130 the prosecution evidence. This is in accordance with the international safeguards set out in the UDHR, as well as article 16 of the ACHR.96

2. The case highlights the influence of Islamic jurisprudence on Shariah courts, where the role of the prosecutor as well as the role of the accused can be seen to have been treated equally.

In relation to the final point, it may be worth highlighting that the influence of Islamic theory in regard to equality of arms is rooted in the Quran through general statements. For example, the Quran states: ‘Verily, Allah commands that you should render back the trusts to those to whom they are due, and that when you judge between men, you judge with justice’.97

A comparison between equality of arms in Saudi Arabia and the international human rights standards leads to a particular conclusion being drawn. Firstly, equality of arms, in the domestic law within the KSA, is similar to that required in the international human rights standards, particularly in the cases brought in the Saudi courts. It seems that there are no direct references made to the right to equality of arms in the context of Saudi Arabia, although it remains that the concept can be understood within the practice of the cases in relation to the Shariah court. Secondly, equality of arms in Islam is considered, albeit in a general statement without in-depth study or any reference to the concept.

Nevertheless, in its first and third reports, the NSHR has highlighted a number of issues surrounding the prevention of the accused from defending himself during the court hearing, which means to some extent a lack of equality of arms. In addition, the NSHR has been subject to a number of compliance-related claims, stating that litigation has been rejected by the court in writing. Moreover, a number of issues have been raised in regard to the pressure placed upon the accused during the process of the trial, which is seen as violating article 158 of the LCP, as well as various regional and international treaties sanctioned by the KSA.98 _{Equality of arms ultimately results in the need to}

examine one of the main aspects of the right of the accused during the court hearing, which will be clarified in the following discussion.

96 _{UDHR, art 10; see also ICCPR, art 26.} 97 _{Surah 4, Verse no. 58.}

98

131 8. The right to be tried without undue delay

Throughout the criminal process, one of the most prominent and significant rights is the right to be tried without undue delay, which is due to the fact that the right of the accused, throughout the criminal process, could be affected by the time spent in the pre- trial or in-trial process. Importantly, this right has its roots in common law jurisprudence,99 _{although it is known that the right has been guaranteed through the}

ICCPR, which states: ‘Everyone shall be entitled to the following minimum guarantees, in full equality … to be tried without undue delay.’100 _{Moreover, the ACHR—again,}

sanctioned by the KSA—makes direct and keen reference to the fact that any individual considered deprived of such a liberty, whether through arrest or detention, is recognized as being entitled to proceed before the court so as to ensure that the lawfulness of such an arrest is determined by the court. With this taken into account, it is emphasized that any individual arrested or detained on the basis of a criminal accusation should be quickly and without delay brought before a judge or other official recognized by law with the aim of exercising judicial power, and shall also be afforded the right to a trial within an adequate time or otherwise released. Ultimately, it is stipulated that release may be subject to guarantees to appear for trial, although pre-trial detention should, in no case, be the general rule of thumb.101

Furthermore, there are also a number of cases wherein a breach of the right of due process has been recognized, especially in the context of international criminal court jurisprudence.102 _{For example, there is the case of Michael and Brain Hill v Spain}

where the accused was held for almost three years between arrest and final appeal.103

Furthermore, the case of Paul Kelly v Jamaica shows the complainant claiming that his right was violated through the delay of his trial for more than eighteen months.104 _It

seems that there is an apparent overlap between article 14(3)(d) and article 9(3) of the ICCPR in relation to the right of the accused to have a speedy trial, with both articles referring to the right of the accused to be provided with a timely trial. However, as seen

99 _{Gans, Henning and Hunter (n 88) 471-73; See also David Corker and David Young, Abuse of Process}

in Criminal Proceedings (2nd edn, LexisNexis 2003) 22-23.

100

Art 14(3).

101 _{ACHR, art 14(5-6).}

102 _{Wayne Jordash and Scott Martin, Due Process and Fair Trial Rights at the Special Court: How the}

Desire for Accountability Outweighed the Demands of Justice at the Special Court for Sierra Leone (2010) 23 Leiden Journal of International Law 607.

103 _{See Michael and Brian Hill v Spain, Communication No 526/1993, UN Doc CCPR/C/59/D/526/1993}

(2 April 1997) para 12.4.

104 _{Paul Kelly v Jamaica, Communication No 253/1987, UN Doc CCPR/C/41/D/253/1987, 60 (1991)}

132 in the previous chapter, article 9(3) regulates the length of detention before trial, whereas article 14(3)(d) refers to the actual time between arrest and trial.105

In relation to Saudi law, as detailed in the previous chapter, delay during the in- trial process has been assigned much attention in terms of protection through the LCP, which details a maximum time of six months from the time of arrest.106 _{However, it is}

known that any delay during the trial process can be challenged by the accused, along with the exercising of the right to compensation during the trial. Trial delays may be accrued in two different ways:107

first, by the court judges owing to absence; and second, for some other reason. In this same context, under the Saudi Judiciary Law, a committee has been established and assigned with a number of functions; nevertheless, the committee’s tasks must adhere to the Judiciary Law, as detailed below.

1. The High Judicial Council is required to establish a committee known as ‘Judges Investigation’, which must be assigned a director and various judges, all appointed by the committee, and recognized as being from the Court of Appeal and the High Court.

2. The responsibilities of the committee are as follows:

a. Supervision and investigation of the judges’ rulings in both the High Court, and the Court of Appeal; this is to ensure a date upon which the capacity of judges is clear.

b. Investigation into the compliance of judges in regard to certain cases. c. Conduct of visits and investigations, whether or not any complaint has

been made, with supervision twice annually.108

Under article 56, the committee is given its own rating. Notably, the committee is required to communicate with the judge in terms of the results of any complaints against him, at which point the judge has 30 days during which an appeal can be made. Furthermore, all appellant papers must be transferred to the High Judiciary Council, with a decision required to be made within 56 days.

Undoubtedly, the committee is perceived as being fundamental within the judicial system of the KSA, and it is acknowledged that visitation twice annually is

105

Joseph, Schulz and Castan (n 59) 432.

106

LCP, s 8, arts 12-19.

107 _{It might be worth mentioning here that there are different ways to delay in Islamic jurisprudence than}

in the Saudi legal system, see Al-Eshaikh, ‘Mabda, surat al bat Fe Alkada al Shari’ (2002) 8 Al Adl Journal.

108

133 critical in order to ensure effective adherence to the rules. Nevertheless, at this point in time, no significant decisions have been made by this committee, which could be due to the fact that the committee has only been recently established, and may therefore require additional time to be more effective.

A comparison drawn between international human rights standards and the Saudi law shows that there is no direct reference in regard to the latter to the right of the accused to be tried without undue delay; the only mention in regard to the detention time that is compatible with article 14(3c) is in the LCP. However, in some cases, it can be seen that the trial may be extended for more than five years,109 _{which is not from the}

time of detention where the accused is under the interrogation, but is the actual length of the trial. More importantly, the delay may occur not because of the time given to the accused to prepare a defence, but due to the complaint of the accused during the hearing that the confession was made under torture. In such a situation, the judge (in this case in Shariah law) will ask the accused to be sent back to the interrogation institution (which is in this case the BIPP) to be investigated and to ensure that the confession is valid.

9. The right not to be subjected to retroactive criminal law or more severe