A/HRC/41/CRP.1 Only under exceptional circumstances,326 may courts have the power to exclude all or part of the public. In the opinion of the Special Rapporteur, such circumstances do not apply to the trial of Mr. Kashoggi. (f) The Government of Saudi Arabia has invited representatives of the permanent members of the Security Council and of Turkey to attend at least some of the hearings for the eleven individuals charged. However, the Special Rapporteur has been told that this was dependent on a non-disclosure agreement. As such, the observation is not a credible validation of the proceedings or of the investigation itself. One of the key objectives of trial observation ought to be exercising and enforcing the right to a public trial and the right to a fair trial. Those who agreed to observe ought to, at the minimum, release information regarding the circumstances, rules and outcomes of their observation. A shadowy presence of international observers cannot, although clearly meant to, lend credibility to eminently problematic proceedings. It is particularly concerning that, given the identity of the observers, it is the institution of the UN Security Council altogether, that has been made complicit in what may well amount to a miscarriage of justice. (g) The Prosecutor has demanded the death penalty for five of the defendants even though the aforementioned issues point to unfair proceedings and a risk of miscarriage of justice. If the death penalty was to be carried forward, it will amount to an arbitrary killing by the State. 402. In view of her concerns regarding the effectiveness, independence and transparency of the investigation highlighted in Part III of this report, and these grave concerns regarding the trial of the 11 suspects in Saudi Arabia, the Special Rapporteur is calling for the suspension of the trial. 403. She understands that while the Saudi Code of Criminal Procedure may in principle prohibit withdrawal (Article 5), she notes that it also recognizes exceptions to the rule. First, retrials can be ordered in cases of death penalty (Articles 10 and 11): if the Supreme Court does not uphold the death sentence, said sentence shall be overturned and the case shall be remanded to the court of first instance for retrial by other judges. Secondly, Article 204 allows for a "reconsideration of a final judgment": if a person is convicted for committing an act and another person is convicted for committing the same act, resulting in contradiction entailing that one of the two persons should not have been convicted; the judgment is based on documents that turn out to be forged, or on testimony that is found by the competent authority to be perjurious; if, after judgment, new evidence or facts that were unknown at the time of trial appear, which could have led to the acquittal of the accused or mitigation of the punishment. The Special Rapporteur notes in particular that a full and impartial investigation is likely to lead to “new evidence or facts” that would bear on the motivations and culpability of those currently on trial. 404. The Special Rapporteur also points out that the conduct of criminal prosecutions in an alternative jurisdiction would be justified on the basis that Saudi Arabia appears unwilling or 326 80 CCPR/C/GC/32: General Comment No. 32 on Article 14: Right to equality before courts and tribunals and to a fair trial, states that “Article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would be prejudicial to the interests of justice. Apart from such exceptional circumstances, a hearing must be open to the general public, including members of the media, and must not, for instance, be limited to a particular category of persons. Even in cases in which the public is excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public, except where the interest of juvenile persons otherwise requires, or the proceedings concern matrimonial disputes or the guardianship of children.” https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fG C%2f32&Lang=en