55. Within the constraints of the Kuwaiti system, it should be noted that certain aspects
accorded with international standards.
56. For example, Al-Drees has been represented by an independent lawyer of her
choosing. With minor restrictions, and through the auspices of the Judge, that lawyer
was able to ask questions of the police witness at the hearing on 24 November 2016.
57. But the fundamental issue of unfairness relates to the substantive content of the laws
being applied, which, by their very wording, make a successful defence exceptionally
difficult.
58. It is also unclear, from both the laws and the procedure, whether the Court is properly
seeking to place the burden of proof on the Prosecution or whether the Judge’s own
view of the tweets is ultimately determinative.
Conclusion
59. The prosecution of Al-Drees under Article 25 of the Penal Code and the new Cyber
Crimes Law is part of a concerning pattern of state action whereby freedom of
expression has been gravely eroded in Kuwait since 2011 and continues to come
under attack.
60. Al-Drees has already been subject to multiple charges, prima facie unlawful detention
and faces a maximum penalty of five years’ imprisonment for tweets which, on any
reasonable view, constitute a legitimate exercise in freedom of expression under
international law.
61. The residual independence of the Kuwaiti judicial system, in the face of decisions by
state security/the Public Prosecutor, is not adequate to remedy the unfairness created
by the laws themselves – Article 25, in particular.
Recommendations:
In view of the above, the Gulf Centre for Human Rights (GCHR), the Arabic Network
for Human Rights Information (ANHRI), International Service for Human Rights
(ISHR), and FIDH and the World Organisation Against Torture (OMCT) within the
framework of the Observatory for the Protection of Human Rights Defenders call on
the Kuwaiti authorities to:
(i) Drop all the charges against Sara Al-Drees, as they seem to merely aim at sanctioning
her human rights activities, including the exercise of her right to freedom of
expression on social media;
(ii) Ensure that the process leading to criminal prosecution of those arrested and detained
on criminal charges meet the international standards of transparency of investigation,
fairness of procedures in prosecution and standards of fair trial;
11