A/HRC/WGAD/2015/52

GE.16-05563(E)

*1605563*

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-fourth session,

30 November-4 December 2015

Opinion No. 52/2015 concerning Yara Sallam (Egypt)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. The Human Rights Council assumed the mandate in its

decision 1/102 and extended it for a three-year period in its resolution 15/18 of

30 September 2010. The mandate was extended for a further three years in resolution 24/7

of 26 September 2013.

2.

In accordance with its methods of work (A/HRC/30/69), on 5 March 2015 the

Working Group transmitted a communication to the Government of Egypt concerning Yara

Sallam. The Government replied to the communication on 7 May 2015. The State is a party

to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his

sentence or despite an amnesty law applicable to him) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

United Nations

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General Assembly

Distr.: General

6 April 2016

Original: English

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(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

Submissions

Communication from the source

4.

Yara Sallam is the Transitional Justice Officer at the Egyptian Initiative for Personal

Rights. She was awarded the North Africa Shield 2013 for her work on the Women’s

Human Rights Defenders Program at Nazra for Feminist Studies.

5.

It is reported that on 21 June 2014, between 7 p.m. and 8 p.m., Ms. Sallam and her

cousin were arrested while they were buying drinks from a local kiosk in Heliopolis, Cairo.

The source reports that they were forcibly shoved into a police transfer vehicle and taken to

the Masr al-Jadida police station. During her interrogation, Ms. Sallam was questioned,

without the presence of her lawyers, about the nature of her human rights work and about

the management of the Egyptian Initiative for Personal Rights.

6.

Shortly before Ms. Sallam’s arrest, a protest march had set off from the Al-Ahram

metro station towards the Ittihadiya Presidential Palace. The protesters were calling for the

release of prisoners of conscience and the repeal of Law 107 of 24 November 2013.

Approximately 30 individuals involved in the protest were arrested in Heliopolis on 21 June

2014. It is reported that Ms. Sallam was not actively participating in any demonstration at

the time of her arrest. Later that day, eight of those arrested were released without charge,

including Ms. Sallam’s cousin.

7.

On 22 June 2014, a second round of questioning occurred at the Masr al-Jadida

Prosecution Office, this time in the presence of lawyers. According to the source, lawyers

reported that Ms. Sallam was asked whether she had participated in the demonstration and

was questioned about the reasons behind her presence in the vicinity of the protest, before

being accused of taking part in the demonstration and of committing violent acts. She

denied all charges.

8.

Following their questioning, Ms. Sallam and the other defendants were transferred to

police stations. Neither their lawyers nor their relatives were informed of where they were

taken; instead, lawyers, relatives and activists were forced to actively search to discover the

locations of their clients and family members.

9.

On 23 June 2014, the Heliopolis Prosecution Office ordered the detention, until

25 June 2014, of Ms. Sallam and the group of other individuals implicated in the protest, on

charges of breaching the protest law under the Anti-Protest Law; sabotaging public

properties; possession of inflammable materials; and taking part in showing off force with

the objective of terrorizing the public during their alleged participation in a peaceful march.

10.

On 25 June 2014, the Heliopolis Public Prosecution submitted the case of

Ms. Sallam, and the other individuals implicated in the protest, to the Heliopolis

Misdemeanour Court. There were 12 provisions in the indictment order: articles 162, 361,

375 (bis) and 375 (bis A) of the Penal Code; articles 1-4 of Law 10 of 1914 on gatherings;

and articles 7, 8, 19 and 21 of Law 107 of 2013 on demonstrations and public rallies. These

provisions included: participating in an unauthorized demonstration whose aim was to stop

the implementation of the law and influence the effectiveness of the public authorities

during the carrying out of their work; organizing a demonstration without prior notice as

stipulated by the law and participating in a demonstration that breached and threatened

public security and the interests of citizens and disrupted transportation and transgressed

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public and private property; using force and violence to terrorize and intimidate citizens;

and deliberately destroying property owned by the aggrieved party as proved through

investigations.

11.

On 29 June 2014, the first hearing took place of the trial against Ms. Sallam,

together with the other individuals implicated in the protest. It is reported that although the

session was due to take place at the Heliopolis courthouse, at the time set for the start of the

session, lawyers and family members were informally told that the hearing of the case

would be transferred to the Police Academy inside the high security Tora Prison. They were

required to rush across the city to attend the trial. It is alleged that defence lawyers and

journalists faced difficulties in gaining access to the courtroom, while families of the

detainees were denied access.

12.

It is reported that the request for provisional release of the defendants on bail was

rejected by the court. The judge closed the hearing session and left the courtroom without

informing the lawyers about the date of the next hearing. Three hours later they were

informally told it was scheduled for 13 September 2014.

13.

On 3 July 2014, several special procedures of the Human Rights Council, including

the Chair-Rapporteur of the Working Group on Arbitrary Detention; the Chair-Rapporteur

of the Working Group on the issue of discrimination against women in law and in practice;

the Special Rapporteur on the promotion and protection of the right to freedom of opinion

and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and

of association; the Special Rapporteur on the situation of human rights defenders; and the

Special Rapporteur on violence against women, its causes and consequences, transmitted a

joint urgent appeal to the Government of Egypt. The special procedures expressed serious

concern at the arrest and subsequent indictment and detention of Ms. Sallam. Serious

concern was also expressed at the allegations of ill-treatment of demonstrators advocating

the abrogation of Law 107 during and after their arrest at a peaceful protest, as well as the

subsequent charges held against them and their detention. The special procedures called

attention to the worrying nature of the reports of threats and beatings of those individuals in

custody.

14.

On 28 November 2014, the Government responded to the allegations contained in

the joint urgent appeal, conveying the following details:

(a)

On 21 June 2014, around 100 people organized a march which began in front

of the Al-Ahram metro station and moved towards the Ittihadiya Presidential Palace.

During the course of the march, while passing through Ismailiya Square in the

Heliopolis neighbourhood of Cairo, participants blocked the road and impeded the

flow of traffic. As a result security forces were obliged to intervene and managed to

disperse the participants, arresting 24 individuals (17 young men and 7 young

women);

(b)

The Public Prosecutor ordered that those arrested be held in detention for

four days pending further investigation;

(c)

On 29 June and on 26 October 2014, the Heliopolis Criminal Court sentenced

each of the 22 accused to three years’ imprisonment and payment of a fine of 10,000

Egyptian pounds;

(d)

The defendants appealed against the sentence before the Heliopolis Court of

Criminal Appeal. On 9 November 2014, the Court postponed its review to 28

December 2014.

15.

The source reports that on 13 September 2014 the Heliopolis Misdemeanour Court

postponed the trial against Ms. Sallam, together with the other individuals implicated in the

protest, to 11 October 2014.

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16.

On 26 October 2014, Ms. Sallam, together with the other detainees, were sentenced

before the court of first instance to three years’ imprisonment; an additional three years of

police surveillance; payment of a LE10,000 fine; and repayment for property damages they

allegedly caused in relation to their alleged participation in the protest held on 21 June

2014.

17.

On 28 December 2014, the Heliopolis Appeal Misdemeanour Court reduced the

sentence against Ms. Sallam and the other individuals implicated in the protest, to two

years’ imprisonment and two years’ police surveillance. Ms. Sallam’s lawyers have

appealed to the court of cassation, which will only review the case with respect to

procedural matters. The source reports that it is unlikely that the court will render a decision

in this case before two years.

18.

On the basis of the foregoing, the source submits that the deprivation of liberty of

Ms. Sallam may be considered arbitrary, falling under categories II and III. Ms. Sallam is

being detained solely for exercising her rights to freedom of expression and assembly, and

her detention and sentencing aim to sanction her legitimate human rights activities.

Furthermore, there have been numerous breaches to the right to fair trial, including the

following:

• Ms. Sallam was initially questioned by unidentified individuals, without the

presence of her lawyer; throughout the process, she was threatened and pressured to

admit involvement in the protest.

• The case was referred to trial with excessive speed and her defence lawyer faced

major logistical challenges in obtaining the case file and information about the dates

and hearings; her lawyer was not notified to where she had been moved and had to

discover the location through his own efforts.

• When Ms. Sallam was brought in front of a judge, she was held in a cage, thereby

violating the principle of presumption of innocence.

• The initial hearing on the merits of the ongoing detention of Ms. Sallam was not

held; there was no form of individualized hearing on the merits of the detention; and,

when the judge was asked to release the defendants, he refused without providing

any reasons for that refusal.

19.

In the light of the above, the source submits that Ms. Sallam’s detention is in

contravention of her rights guaranteed in articles 9, 10, 19 and 20 of the Universal

Declaration of Human Rights and articles 9, 14, 19 and 21 of the International Covenant on

Civil and Political Rights.

Response from the Government

20.

In its response of 7 May 2015 the Government submitted to the Working Group a

memorandum from the Office for International Cooperation of the Office of the Prosecutor-

General. In the memorandum, the representative of the Office provided the following

information.

21.

On 21 June 2014, the chief officer at Masr al-Jadida police station was informed that

a group of individuals had gathered at the Al-Ahram metro station. On arriving at the site,

he found that around 50 people had assembled there with the intention of marching together

to the Presidential Palace. When he asked whether they had obtained a permit for the

demonstration and march, they replied in the negative. The officer therefore advised and

instructed them to disperse, but they failed to do so.

22.

According to the officer, the number of demonstrators increased and they began to

march, blocking a public thoroughfare in both directions. At that point, passers-by and

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workers in shops along the street began challenging the demonstrators and asking them to

disperse. The demonstrators responded with threats of force and violence. They then began

throwing stones and Molotov cocktails, damaging a number of shops, billboards, trees and

a police car, at which point the police chief intervened and ordered the arrest of the

perpetrators, including Ms. Sallam.

23.

The investigations were conducted by officials from the Public Prosecutor’s Office

and six police officers were questioned to establish the facts set forth above. The officials

also questioned workers in the shops that were damaged, and prosecutors travelled to the

location of the incident for an on-site examination.

24.

Officials from the Public Prosecutor’s Office also questioned the accused, who

denied the facts and the charges against them. However, one of them admitted that she had

urged her friends to join the demonstration, posting a message on her Facebook page

entitled “Freedom for detainees” and specifying that the gathering was to take place on the

evening of 21 June 2014 at the Al-Ahram metro station. The officials decided to keep all

the persons charged in pretrial detention.

25.

On 24 June 2014, the Public Prosecutor’s Office referred the accused to the Masr al-

Jadida Misdemeanour Court on charges of unlawful assembly, disorderly conduct,

participation in an unauthorized demonstration, and destruction of public and private

property. These offences are punishable under articles 162 (1) and (2), 361 (1) and (2), 375

bis and 375 (a) bis (1) of the Criminal Code, articles 1, 2 (1), 3, 3 bis and 4 of Law No. 10

of 1914 as amended, and articles 7, 8, 19 and 21 of Law No. 107 of 2013.

26.

At the hearing on 26 October 2014, the court sentenced all the accused to three years

of imprisonment and to a fine of LE10,000. The accused filed an appeal against the

judgement and the appeal court reduced the sentence to two years of imprisonment on

28 December 2014.

27.

It is also reported in the memorandum from the Public Prosecutor’s Office in general

terms that Egyptian legislators have established a highly effective system for administering

criminal law, the aim being to strike the requisite balance between the public interest and

respect for accused persons’ constitutional rights. The Government further described in its

response the relevant legal principles and domestic legislation.

28.

The memorandum also describes in detail the general legal principles and domestic

legislation concerning the right to personal liberty, the right to be tried before a judge, and

the right to defence. It further contains detailed descriptions of other general matters such as

the functioning of the Public Prosecutor’s Office and investigating judges in Egypt.

29.

The Public Prosecutor’s Office also informed the Working Group that the accused

persons had failed to abide by the law. They had not provided advance notification of the

demonstration and they failed to comply with the police order to disperse. In fact, they

began disrupting traffic and attacking public and private facilities, using stones and

Molotov cocktails. It followed that the participants were no longer simply exercising their

rights under the Constitution, but were also undermining the rights and freedoms of others.

30.

Concerning Ms. Sallam, the Public Prosecutor’s Office informed the Working

Group that it had invited a lawyer for Ms. Sallam to be present during the investigations

into her case. The accused was informed of the charges against her and the evidence

indicating that she had committed the offences. She was then given the possibility to

present her defence and respond to the charges or, alternatively, to exercise her

constitutional right to remain silent and not to reveal her line of defence. At no point was

she subjected to any form of coercion.

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31.

Ms. Sallam was informed of the date on which her case would be heard, allowing

her adequate time to choose a defence lawyer and to prepare for the trial. She and the other

accused were present at their trial.

Further comments from the source

32.

The source maintains that the Government failed to demonstrate that Ms. Sallam’s

deprivation of liberty does not result from the exercise of the right to freedom of opinion

and expression, and the right to freedom of assembly and association.

33.

According to the source, Law No. 107 of 2013 in violation of which Ms. Sallam was

convicted, has introduced bureaucratic hurdles that significantly restrict the exercise of the

right to protest and to peaceful assembly as well as prison sentences for the exercise of the

right to protest and peaceful assembly.

34.

Furthermore, the source maintains that Ms. Sallam was not arrested while

participating in the protest, as the Government of Egypt alleges, but rather she was arrested

while buying drinks from a kiosk in Heliopolis in the vicinity of the protest after it had been

dispersed by security forces. During the trial, on 13 September 2014, two videos were

shown at the request of the defendants’ lawyers. None of the defendants and no weapon

appeared in the videos. In fact, the video showed individuals wearing civilian outfits

standing alongside the riot police forces who were assaulting what appeared to be peaceful

protesters, using stones and metal bars. The video showed that the police made no attempt

to protect the peaceful protesters.

35.

The source reiterates that during the interrogation Ms. Sallam was questioned about

her position at the Egyptian Initiative for Personal Rights, which demonstrates that she was

targeted owing to her legitimate human rights activities.

36.

In regard to the Government’s reply that the defendants had the opportunity to

challenge the pretrial detention before a judge, the source points out that Ms. Sallam should

have been presented before a court on 25 June 2014 after the expiry of her four-day

detention. However, she was not brought to court, and the prosecution issued an indictment

order instead, before she had a chance to challenge her pretrial detention before an

independent judicial body.

37.

The source is of the opinion that the Government used pretrial detention against

Ms. Sallam without grounds or justification — a practice that is now routinely used as a

punitive measure against political prisoners and human rights defenders while they are

awaiting trial.

38.

The source states that on 29 June 2014, when the court hearing took place at the

Police Academy inside the high security Tora Prison, access to the courtroom was heavily

restricted, defence lawyers and journalists facing difficulties in gaining access to the room.

39.

The source maintains that the handling of the case by the judicial authorities was

marred by numerous breaches to the right to a fair trial, including the right to defence and

the right to public debate. Despite the claims of the Government, the judiciary in Egypt has

become extremely politicized and has been using a legal arsenal of repressive laws to target

and imprison peaceful dissenting voices in the country, in particular human rights

defenders.

40.

The source later informed the Working Group that Ms. Sallam had been released

from prison on 23 September 2015 upon presidential pardon.

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Discussion

41.

Although Ms. Sallam was released, the Working Group, in accordance with

paragraph 17 (a) of its methods of work, reserves the right to render an opinion whether or

not the deprivation of liberty was arbitrary, notwithstanding the release.

42.

Ms. Sallam is a human rights activist, the Transitional Justice Officer at the

Egyptian Initiative for Personal Rights. She was awarded the North Africa Shield 2013 for

her work on the Women’s Human Rights Defenders Program at Nazra for Feminist Studies.

Upon her arrest, Ms. Sallam was questioned by the police about the nature of her human

rights work and about the management of the Initiative. This confirms that the deprivation

of liberty of Ms. Sallam related to her human rights activities.

43.

Ms. Sallam was convicted for violation of Law No. 107 of 24 November 2013 for

alleged participation in the protest march calling for the release of prisoners of conscience

and the repeal of that Law. However, in its response, the Government did not rebut the

prima facie reliable information that Ms. Sallam was not actively participating in any

demonstration at the time of her arrest. Instead the Government merely stated in general

terms that participants in the demonstration blocked the road and impeded the flow of

traffic. No information on any evidence of Ms. Sallam’s role, if any, in the demonstration

(including alleged violence) was provided by the Government to the Working Group.

44.

In regard to Law No. 107, the Working Group points out that the United Nations

High Commissioner for Human Rights expressed concern regarding the Law, which

“criminalizes acts by demonstrators which may breach ‘security and public order’, without

clearly defining these terms, leaves the door open to a very restrictive and repressive

interpretation”.1 The High Commissioner also expressed concern as to the “collective”

responsibility under this Law. In particular, she stressed that the Law created “a real risk

that the lives of peaceful protestors will be put at risk because of the violent behaviour of a

few”.2

45.

The Working Group considers that Ms. Sallam has been deprived of liberty for

having peacefully exercised her right to freedom of expression and freedom of association

as guaranteed by articles 19 and 20 of the Universal Declaration of Human Rights and

articles 19 and 22 of the International Covenant on Civil and Political Rights. Thus, the

deprivation of liberty of Ms. Sallam falls within category II of the categories applicable to

the consideration of the cases submitted to the Working Group.

46.

Ms. Sallam was arrested on 21 June 2014 and, in violation of article 9 (3) of the

International Covenant on Civil and Political Rights, was not brought before a judicial

authority for eight days. During those eight days, in violation of article 9 (4) of the

Covenant, Ms. Sallam was deprived of the right to challenge the lawfulness of her detention

before a court. Only on 29 June 2014 was she brought before the court for the first hearing.

Indeed, pursuant to article 9 (3), anyone detained on a criminal charge shall be brought

promptly before a judge or other officer authorized by law to exercise judicial power. The

Human Rights Committee emphasized that: “While the exact meaning of ‘promptly’ may

vary depending on objective circumstances, delays should not exceed a few days from the

time of arrest ... any delay longer than 48 hours must remain absolutely exceptional and be

justified under the circumstances.”3

1 “New anti-demonstration law in Egypt must be amended, urges UN rights chief”, statement of

26 November 2013, available from www.un.org.

2 Ibid.

3 General comment No. 35 (2014) on liberty and security of person, para. 33.

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47.

Furthermore, the Government has not refuted the prima facie reliable allegation that

Ms. Sallam was initially interrogated by the police without the presence of a lawyer in

violation of her right to immediate access to a lawyer. In this regard, the Working Group

recalls that, according to the Human Rights Committee: “States parties should permit and

facilitate access to counsel for detainees in criminal cases, from the outset of their

detention.”4

48.

The Working Group considers that the non-observance of the international norms

relating to the right to a fair trial and to liberty and security, established in article 9 of the

Universal Declaration of Human Rights and article 9 of the International Covenant on Civil

and Political Rights, in this case is of such gravity as to give the deprivation of liberty of

Ms. Sallam an arbitrary character. Thus, the deprivation of liberty of Ms. Sallam falls

within category III of the categories applicable to the consideration of the cases submitted

to the Working Group.

Disposition

49.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Ms. Sallam is arbitrary, being in contravention of

articles 9, 19 and 20 of the Universal Declaration of Human Rights and articles 9, 19

and 22 of the International Covenant on Civil and Political Rights and falls within

categories II and III of the categories applicable to the consideration of the cases

submitted to the Working Group.

50.

Consequent upon the opinion rendered, the Working Group requests the

Government to take the steps necessary to remedy the situation of Ms. Sallam and bring it

into conformity with the standards and principles enshrined in the Universal Declaration of

Human Rights and the International Covenant on Civil and Political Rights.

51.

The Working Group believes that, taking into account all the circumstances of the

case, including her release on 23 September 2015, the adequate remedy would be accord

her an enforceable right to compensation in accordance with article 9 (5) of the

International Covenant on Civil and Political Rights.

[Adopted on 4 December 2015]

4 Ibid., para. 35.