Comprehensive Study Notes: General and Special Criminal Law in the Kingdom of Saudi Arabia

Introduction to and Mahiyah of Criminal Law

Criminal Law is defined through several legal lenses. It is a set of legal rules enacted by the state to clarify what is considered a crime and the penalties imposed for those crimes. Furthermore, it defines the policy of criminalization and punishment ($Tajreem$ and $Jaza$), as well as the method by which the state exercises its right to punish while guaranteeing the rights of the accused. In a comprehensive sense, it is the set of legal rules that specify acts considered crimes punishable by Sharia and the law, the prescribed penalties, and the procedures followed in pursuing, trying, and punishing the accused if their guilt is proven. This field of law identifies crimes and their secondary elements ($Arkan$) generally and determines specific punishments or precautionary measures for each crime individually.

Jurists have historically disagreed on the naming of this legal branch. Some term it "Criminal Law" ($Al-Qanoon al-Jinai$), referring to felonies ($Jinayah$), though this is criticized for potentially excluding misdemeanors and infractions. Others use "Penal Code" ($Qanoon al-Uqubat$), referring to the penalty, which is criticized for failing to encompass precautionary measures. In the Kingdom of Saudi Arabia, the regulator has adopted both terms—Criminal Law and Penal Law—which aligns with the principles of Islamic Sharia. The primary objectives of this law include achieving justice, which ensures individual satisfaction by equating the penalty with the gain of the perpetrator and preventing malice between parties. It also aims to achieve societal security by applying deterrent laws without discrimination, and to protect the individual, the family, and the state against threats to life, property (such as theft and extortion), and sovereign interests (such as the constitution and espionage).

Development and History of Criminal Law

The origins of Criminal Law trace back to the Sumerians approximately $4,000$ years ago. Sumerian laws were recorded on stone tablets and were exceptionally harsh; for instance, the punishment for murder and theft was death. Accusations of sorcery were handled by a water-based ordeal where the accused was immersed in water with an iron attached to their neck; if they did not drown, their innocence was proven. The Sumerian civilization is noted as the first to write criminal law texts around $2,050$ BC. Historically, علماء (scholars) divide the evolution of criminal law into four distinct eras.

First is the Stage of Individual Revenge, where tribes were independent and monolithic. If a member was attacked by an outsider, the entire tribe would seek revenge against the perpetrator and their tribe, leading to inter-tribal wars. This was the law of force rather than a formal penal code. Second is the Stage of State/Social Revenge, which began with the birth of the state. Punishment shifted to the state, initially focusing on crimes against the state and religion. Penalties were severe to atone for sin, and prisons did not observe health standards. Punishment varied based on social status. Third is the Humanitarian Stage, emerging in the $18$th century. Reformers like Montesquieu, in "The Spirit of the Laws," argued that law should prevent crime, not seek revenge. Jean-Jacques Rousseau, in "The Social Contract," called for reducing penalties to the minimum necessary for protection. In $1764$, Cesare Beccaria published "Crimes and Punishments," arguing that punishment should serve the social order. Fourth is the Modern/Scientific Stage, starting in the last third of the $19$th century with the Realist School ($Al-Madrasa al-Waqia$). This school focuses on the perpetrator rather than just the material act, viewing the crime as a manifestation of the criminal's danger stemming from psychological or social conditions. This school introduced the idea of precautionary measures ($Tadabir$) based on the criminal's level of danger.

Characteristics and Ethics of Criminal Law

Criminal Law possesses distinct characteristics that differentiate it from other legal branches. The first is Strict Specification ($Al-Tahdeed al-Daqeeq$). Unlike Civil Law, the criminal legislator must be precise and clear, leaving no room for interpretation or individual diligence ($Ijtihad$). If doubt exists, the rule "Doubt is always in favor of the accused" applies. The second characteristic is Equality, meaning the law applies to everyone regardless of social status or personality. Third is the Inadmissibility of Analogy ($Qiyas$) for criminalization in systems like the French system, where rules must be written and explicit. One cannot criminalize an act based on legal precedents if no text exists, to preserve the principle of legality (though $Qiyas$ and precedents are used in the UK). Fourth is the Penal Nature, where texts contain criminal penalties intended as a deterrent and a preventive measure.

Criminal Law is also deeply connected to the Rules of Ethics. Both aim for the happiness of individuals and the group by imposing commands and prohibitions. Many obligations in criminal law overlap with ethics, such as prohibitions on murder, wounding, theft, and betrayal. However, total congruence is impossible. Ethics may prohibit lying and hypocrisy, which the law does not punish unless they constitute fraud. Conversely, the law punishes administrative violations like traffic light infractions or not lighting car lamps at night, which have little relation to ethical principles but are essential for order.

Relationship with Other Braches of Law

Criminal Law has a close bond with all branches of law, intervening whenever a penalty is required to support their rules. In relation to Civil Law, it protects property rights by punishing theft, fraud, and breach of trust. Regarding Personal Status Law, it protects marital rights by punishing adultery and child abandonment. In Constitutional Law, it protects the state's form of government and punishes attempts to undermine state security, while the Constitution provides the principle that an accused is innocent until proven guilty. In Administrative Law, it criminalizes bribery, embezzlement of public funds, and abuse of power, while protecting public servants from assault. In Commercial Law, it protects the integrity of financial transactions, such as punishing the issuance of bad checks. In Public International Law, it organizes international solidarity to combat crime and handles matters of extradition and legal jurisdiction over crimes committed within or outside the state's territory.

The Principle of Legality and Sources of Saudi Law

The Principle of Criminal Legality is the cornerstone of criminal law, stating "No crime and no punishment without a text." This principle ensures that the state cannot criminalize behavior retroactively and that individuals have fair warning. In Common Law systems, judges interpret the law to see if behavior fits a definition, while in Civil Law systems, judges are bound by the literal meaning of the statute. This principle protects individuals from the whims of those in power who might fluctuate between criminalizing and legalizing acts based on current needs. The Quranic evidence for this principle is found in several Surahs: Surah Al-Qasas (Verse $59$) states that Allah does not destroy cities until He sends a messenger; Surah Al-Isra (Verse $15$) says "And We never punish until We have sent a messenger"; and similar sentiments are found in Surah Al-Nisa, Al-An'am, and Al-Nahl.

In the Kingdom of Saudi Arabia, Criminal Law is characterized by its flexibility and its reliance on the following sources: 1. The Holy Quran, which contains explicit texts regarding crimes like theft, murder, and adultery. 2. The Sunnah of the Prophet, which clarifies and completes Quranic rulings. 3. Ijtihad and Jurisprudence ($Fiqh$), where scholars of the four schools (Hanafi, Maliki, Shafi'i, and Hanbali) provide rulings when no explicit text exists in the Quran or Sunnah. 4. Regulations ($Anzimat$) and Bylaws, issued by the government to organize specific aspects like drug control and information technology crimes. According to Article $7$ of the Basic Law of Governance, the system is derived from the Book of Allah and the Sunnah.

Rules of Legal Jurisdiction: Territory and Time

The Principle of Territoriality ($Al-Iqlimiyah$) dictates that the state alone has the right to punish crimes occurring within its borders, regardless of the perpetrator's nationality, gender, or social status. An arriving foreigner cannot claim ignorance of the law as an excuse. There are exceptions: The Objective Principle ($Al-Ainiyah$) applies to crimes outside borders that touch the state's fundamental interests, and the Personal Principle ($Al-Shakhsiyah$) applies when a state's citizen commits a crime abroad. Regarding Time, a criminal text is effective from its publication in the official gazette until it is explicitly or implicitly repealed. Implicit repeal occurs when a new law contradicts an old one making concurrent application impossible. Key rules here are the Non-retroactivity of harsher penal laws and the Retroactive application of laws that are more favorable to the accused ($Al-Aslah lil-Muttaham$).

Concept and Classification of Crimes

Linguistically, the root "Jerm" refers to cutting, earning, sin, or the body, or can mean the penalty for an act. Technically, jurists define it in a general sense as "committing what Allah forbade and disobeying what He commanded" or more specifically as "legal prohibitions ($Mahzurat$) deterred by Allah through a Hadd or Ta'zir punishment." In man-made law, a crime is any violation of the criminal law causing societal harm, whereas "harm" ($Darar$) in civil law is an assault against an individual requiring compensation rather than punishment.

Crimes are classified by their severity into Hudud, Qisas/Diyyah, and Ta'zir. Hudud are seven crimes with fixed punishments considered the Right of Allah: 1. Adultery ($Zina$), 2. Slander ($Qadhf$), 3. Drinking ($Shurb$), 4. Theft ($Sariqah$), 5. Highway Robbery ($Hirabah$), 6. Apostasy ($Riddah$), and 7. Sedition ($Baghi$). Qisas and Diyyah involve five crimes where the punishment is the right of the individual (allowing pardon): 1. Intentional murder, 2. Quasi-intentional murder, 3. Accidental murder, 4. Intentional injury less than death, 5. Accidental injury less than death. Ta'zir crimes are those without fixed penalties, giving judges the discretion to choose a punishment ranging from the lightest to the heaviest based on circumstances. Man-made laws categorize crimes into Felonies ($Jinayat$) with penalties like death or life imprisonment ($5-15$ years), Misdemeanors ($Junah$) with imprisonment from $3$ months to $5$ years or fines, and Infractions ($Mukhalafat$) with simple imprisonment from $24$ hours to 3 months or small fines.\n\n# Elements of a Crime (Arkan al-Jareemah)\n\nA crime consists of three fundamental pillars (Arkan):\n1. The Legal Element (Al-Rukn al-Shar'i$): The existence of a legal text that criminalizes the behavior. Without a text, the act is permissible based on the principle "The origin of things is permissibility" ($Al-Asl fi al-Ashya al-Ibaha), unless it causes harm, based on the Hadith "No harm and no reciprocating of harm."\n2. The Material Element (Al-Rukn al-Maddi$): This involves the tangible, sensory aspects of the crime. It consists of the Criminal Act ($Al-Suluk$), which can be positive (an action like hitting) or negative (omission or$Imtina$like failing to save a drowning person); the Criminal Result ($Al-Nateejah$), which can be physical (death, loss of property) or legal (violation of a protected right); and the Causal Relationship ($Al-Alaqah al-Sababiyah), which links the act directly to the result. Without this link, the material element is incomplete.\n3. The Mental Element (Al-Rukn al-Ma'nawi$): This is the criminal intent ($Qasd$) or negligence ($Khata). Criminal Intent involves Knowledge and Will. The perpetrator must know the facts and the illegality of the act and must willfully direct their intent toward the act. Intent is divided into Direct Intent (wanting a specific result) and Probabilistic Intent (anticipating a result and accepting it). It is also categorized as General Intent (common to most crimes) and Special Intent (required for specific crimes like bribery or forgery). Criminal Error involves negligence, recklessness, or non-compliance with regulations.\n\n# Justifications and Causes of Permissibility (Asbab al-Ibaha)\n\nThese are objective circumstances that accompany an act, removing its criminal nature. They affect the Legal Element (Al-Rukn al-Shar'i). They are divided into General (applying to all crimes, like performing a duty) and Special (applying to specific ones). They are also classified as Absolute (usable by anyone, like private defense) or Relative (usable by specific roles, like a doctor's surgery).\n\nKey justifications include:\n1. Exercising a Right: Acts performed in the exercise of a right granted by law, such as the right of parents or teachers to discipline children (limited to light strikes that cause no injury or fracture according to custom). This is restricted by the condition of not abusing the right.\n2. Private Defense (Al-Difa al-Shar'i): The right to use force to ward off an immediate, unlawful threat to oneself, property, or another's life/property. Conditions for the threat: it must be non-permissible, not provoked by the defender, and must be either imminent or currently occurring. Conditions for the act of defense: it must be necessary (no other way to escape) and proportionate to the danger.\n3. Performing a Duty: Acts committed to satisfy a duty imposed by law, such as entering a house without consent to save a victim of a fire.\n4. Consent of the Victim: Usually not a justification except in specific cases like medical surgeries (performed by a licensed doctor for the purpose of treatment with consent) or sports violence (adhering to the rules of the game).\n\n# Bars to Criminal Responsibility (Mawani' al-Mas'uliyah)\n\nUnlike justifications, these relate to the perpetrator's mental state or capacity (Ahliyah) rather than the act. They occur when the will is stripped of legal value due to a lack of perception or choice at the time of the act.\n1. State of Necessity (Al-Darurah): Committing a crime to save oneself or another from a serious, imminent danger that cannot be avoided otherwise (e.g., one passenger pushing another off a floating piece of wood that cannot hold both to avoid drowning). In Sharia, "Necessity is measured by its extent."\n2. Coercion (Al-Ikrah): This can be Physical (a force that completely nullifies the will, like a storm throwing a person onto another) or Moral (threats of harm, like a threat to kill a child if a document is not forged). The coercion must be serious, unforeseen, and occurring during the act.\n3. Infancy (Sighar al-Sinn$): Children below the age of$7$are considered to have no perception and thus no responsibility. Many systems set the age of full responsibility at$15$or$18, with reduced responsibility for juveniles in between.\n4. Lack of Sanity: This includes Insanity or mental defects that strip the person of perception. It also includes Intoxication (Al-Sukr). If the intoxication is involuntary (forced), it is a bar to responsibility. If it is voluntary, most laws (including Saudi) hold the person responsible for their actions.\n\n# Crime of Bribery (Al-Rashwah)\n\nBribery is defined broadly as an agreement between a public servant and a client where the servant receives a benefit or promise in exchange for performing or omitting a duty. Narrowly, it is the "trading" of office for personal gain. The parties include the Bribe-taker (Al-Murtashi$), the Bribe-giver ($Al-Rashi$), and the Intermediary ($Al-Ra'ish$). Saudi Law has evolved through several stages: from the General Officers Regulation ($1350$H) and the Public Employees Regulation ($1364$H,$1371$H) to the first specific Bribery Law in$1377$H. The current regulation was issued in$1412$H. Notably, a Cabinet Decision ($No. 255$on$1443/4/25 H) replaced the term "Public Servant" with "Every Person" in the first three articles of the law.\n\nA "Public Servant" in the administrative sense includes those appointed to a permanent job in a public facility. Under Article 8$, those treated as public servants include state employees, arbitrators, experts appointed by the government, employees of companies managing public facilities (like Saudi Airlines), and heads or members of NGOs or international organizations in international trade. The Material Element involves the Request, the Promise, or the Actual Taking of the bribe. The bribe can be material (money, jewelry) or an intangible benefit. The Mental Element is General Intent (knowledge and will), and most jurists argue that Special Intent (intent to trade office) is presumed once general intent is proven. Penalties include up to$10$years in prison, a fine up to$1 million Riyals, confiscation of the bribe, and dismissal from public office. Bribery-givers or intermediaries are exempt from punishment if they report the crime before its discovery.\n\n# Crimes of Forgery and Counterfeiting (Al-Tazwir wa al-Tazyif)\n\nForgery (Al-Tazwir$) is the alteration of truth in a document in a legally defined manner, intended to deceive and cause harm. Counterfeiting ($Tazyif$) specifically refers to the unauthorized production of imitation currency or stamps. In Saudi Arabia, the Penal System for Forgery Crimes was issued by Royal Decree$M/11$in$1435$H, following previous regulations from$1380$H. The elements are: 1. Material Element: Altering the truth in a document through methods like changing signatures, seals, or data. Documents are classified as Official (issued by public servants) or Private/Informal ($Urfi). 2. Damage: The alteration must cause actual or potential material harm (financial loss) or moral harm (reputation). 3. Mental Element: General intent (knowledge of the lie and will to alter) and Special intent (intent to use the forged document for its intended purpose).\n\nMethods of forgery include changing a physical document or creating a false one (Material Forgery) or including false statements in a document that is physically authentic (Moral Forgery). Specific categories in the law include Ordinary Forgery (official vs. private documents), Aggravated Forgery (documents attributed to the King, Crown Prince, or Prime Minister; or forgery by a public servant in their specific jurisdiction), and Mitigated Forgery (forged medical reports or exam answers). The law also punishes the "Use of a Forged Document" (Isti'mal$) as a separate crime, which requires the user to know the document is forged. If an individual forges a document and then uses it, the principle of "Overlap" ($Al-Tadakhul$$) applies, and they are punished with the harsher of the two penalties.