Summons and detention: what rights the accused has, and how long detention can run

A summons arrives, or a call from a security authority, and the questions pile up inside an hour. Do I attend? Do I take a lawyer with me? How long can I be held if I am detained? Who do I tell?

The answers are set out in the Law of Criminal Procedure, issued by Royal Decree No. (M/2) dated 22/1/1435H — not in custom and not in other people’s experience. What follows is what the law provides as to rights, periods and procedure.

The starting point: no arrest or detention without a provision

Article 2 lays down the rule: no person may be arrested, searched, detained or imprisoned except in the cases provided for by law, and detention or imprisonment may only be in the places designated for each and for the period fixed by the competent authority. It then adds an express prohibition: physical or moral harm to an arrested person is prohibited, as is subjecting them to torture or to treatment degrading to their dignity.

Article 3 prohibits imposing a criminal penalty on anyone except after their conviction for an act prohibited under Sharia or by law, following a trial conducted in accordance with Sharia requirements. A summons is not a conviction, and detention is not a penalty.

The right to a lawyer — from the first stage

Article 4 is explicit: every accused person has the right to engage an attorney or lawyer to defend them at both the investigation and the trial stage, and the implementing regulation sets out the rights of the accused that must be made known to them.

Article 65 repeats the right at its precise point: the accused has the right to engage an attorney or lawyer to attend the investigation. The right is not confined to the hearing before the court.

Article 70 is more exacting still: during the investigation the investigator may not separate the accused from the attorney or lawyer present with them. The attorney or lawyer may not intervene in the investigation except with the investigator’s permission, but may in all cases submit a written memorandum of observations to the investigator, who must add that memorandum to the case file.

That provision settles a recurring practical argument. A lawyer’s attendance is not advocacy inside the investigation record, and intervening requires permission. But the written memorandum is a right in all cases, and adding it to the file is the investigator’s duty, not a favour.

The summons — and what it must contain

Article 103 allows the investigator, in all cases, to order the attendance of the person to be investigated, or to issue an arrest order where the circumstances of the investigation require it.

Article 104 specifies what a summons must contain: the person’s full four-part name, nationality, profession or occupation, place of residence, the date of the order, the time and date of attendance, the investigator’s name and signature, and the official seal. An arrest-and-bring order additionally instructs public authority officers to arrest the accused and bring them before the investigator immediately if they refuse to attend voluntarily. A detention order additionally instructs the director of the detention facility to admit the accused, stating the charge attributed to them and its basis.

Article 105 sets out the method of notification: through a process server or public authority officers, with a copy handed to the person if present, failing which it is handed to a family member of full capacity living with them.

The practical use of these details is simple: read the paper before you attend. Anything arriving with no issuing body, no signature and no seal calls for verifying its source first.

Arrest: in flagrante and otherwise

Article 33 permits a criminal investigation officer, where an offence is being committed in flagrante, to arrest an accused person present at the scene against whom there are sufficient indications, provided he draws up a record and notifies the investigating authority immediately. Then the time limit: in all cases the person arrested may not be held in detention for more than twenty-four hours except by written order of the investigator.

Article 34 sets out the sequence after arrest: the officer must hear the arrested person’s statements immediately, and if sufficient indications appear, send them within twenty-four hours together with the record to the investigator, who must interrogate the arrested person within twenty-four hours and then order their detention or release.

Outside cases of flagrante delicto, article 35 is categorical: no person may be arrested or detained except by order of the competent authority.

The rights of a detained person

Article 36 brings together three rules:

• A detained person must be treated in a manner preserving their dignity; physical or moral harm to them is prohibited; they must be informed of the reasons for their detention; and they have the right to contact whomever they see fit to notify.
• The employer of a detained public employee must be notified as soon as the investigator orders continued detention.
• A woman’s statements, interrogation and investigation must take place in the presence of one of her male guardians, or failing that in a manner that prevents being alone with her.

Article 37 prohibits detention or imprisonment except in the places designated for it by law, and prohibits any prison or detention administration from admitting anyone except under a reasoned order specifying its duration and signed by the competent authority, and from holding them beyond the period fixed in that order.

Article 39 gives every imprisoned or detained person the right to submit, at any time, a written or oral complaint to the director of the prison or detention facility and to ask for it to be conveyed to the member of the investigating authority. The director must accept it, convey it immediately after entering it in a register kept for the purpose, and give the complainant proof of receipt.

Interrogation

Article 102 imposes three constraints: the interrogation must take place in circumstances in which there is no influence on the accused person’s will in giving their statements; they may not be put on oath; coercive means may not be used against them; and the accused may not be interrogated outside the premises of the investigating authority except out of a necessity assessed by the investigator.

Periods of detention

This is the most asked-about point, and the one on which the most inaccurate information circulates. The periods are prescribed in stages:

• Five days: article 113 requires the investigator — where it appears after interrogation that the evidence against the accused is sufficient in a major offence, or where the interest of the investigation requires detention — to issue a detention order for a period not exceeding five days from the date of arrest.
• Forty days: article 114 ends the detention after five days unless, before it expires, the papers are placed before the branch head or his delegate, who issues an order for release or for extension for one or more successive periods not exceeding forty days in total from the date of arrest.
• One hundred and eighty days: where a longer period is required, the matter goes to the head of the investigating authority or his authorised deputy, who may order extension for one or more successive periods, none exceeding thirty days and none totalling more than one hundred and eighty days from the date of the accused’s arrest, after which the accused must immediately be referred to the competent court or released.
• Beyond that: in exceptional cases requiring a longer period, the court may approve a request to extend the detention for one or more successive periods as it sees fit, by a reasoned judicial order.

Article 115 opens the route to challenge: a person held in pre-trial detention may contest the detention order or the extension order. The challenge is submitted to the head of the investigation department to which the investigator belongs, the branch head, or the Attorney General as the case may be, and is decided within five days of its submission.

Release

Article 120 allows the investigator at any time, on his own initiative or on the accused person’s application, to order release where he finds that the detention has no justification, that releasing them will not harm the investigation, and that there is no fear of their fleeing or disappearing — on condition that the accused undertakes to attend when required.

Outside the cases where release is mandatory, article 121 requires the accused to designate a place approved by the investigator before being released. Article 122 makes clear that a release order does not prevent the investigator from issuing a fresh arrest or detention order where the evidence against the accused strengthens, where they breach a condition imposed on them, or where circumstances call for it.

The inviolability of the home, and searches

Article 41 provides that persons, their homes, their offices and their vehicles have an inviolability that must be preserved, and the inviolability of a home extends to any walled place, any place enclosed by a barrier, and any place prepared for use as a dwelling.

Article 42 does not allow a criminal investigation officer to enter or search an inhabited place except in the cases provided for by law and under a reasoned order from the investigating authority; for places other than dwellings a reasoned permission from the investigator suffices. It then excepts cases of necessity: a call for help from inside, a collapse, flooding, fire or the like, or the entry of an assailant while being pursued for arrest.

Article 43 permits the search of an accused person in the cases where their arrest is permitted, covering their body, clothing and belongings, and requires that where the accused is a woman the search be carried out by a woman designated by the criminal investigation officer.

What to do when a summons arrives

• Read the paper or message carefully: is it a summons to attend or an arrest order? Which body issued it? What is the date and time of attendance?
• Verify the source with the issuing body itself if anything about it raises doubt. Impersonation happens, and checking costs nothing.
• Engage an attorney or lawyer before attending rather than after, since the right applies at the investigation stage.
• Prepare a written memorandum of observations to submit to the investigator for the file.
• Identify one person to be notified and to stay in contact, since the right to contact whoever you see fit to notify is provided for.
• Gather the documents relating to the incident before attending: contracts, transfers, correspondence, anything establishing dates.
• Do not sign a record you have not read and understood.

In short

The law gives the accused defined rights: a lawyer at the investigation and the trial, being informed of the reasons for detention, contacting whoever they see fit to notify, not being put on oath or coerced during interrogation, detention only under a reasoned order specifying its duration, and a challenge against the detention order or its extension.

None of these rights operates unless it is known at the time. What is learned after the investigation closes does not change its course.