Opinion; Subjects: EGYPT, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.16-09789(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-fifth session, 18-27 April 2016
Opinion No. 7/2016 concerning Abdullah Ahmed Mohammed
Ismail Alfakharany, Samhy Mostafa Ahmed Abdulalim,
Mohamed Mohamed Aladili, Waleed Abdulraoof Shalaby,
Ahmed Sabii, Youssouf Talat Mahmoud Mahmoud
Abdulkarim, Hani Salheddin, Mosaad Albarbary and
Abdo Dasouki (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 22 September 2015, the
Working Group transmitted a communication to the Government of Egypt concerning
Abdullah Ahmed Mohammed Ismail Alfakharany, Samhy Mostafa Ahmed Abdulalim,
Mohamed Mohamed Aladili, Waleed Abdulraoof Shalaby, Ahmed Sabii, Youssouf Talat
Mahmoud Mahmoud Abdulkarim, Hani Salheddin, Mosaad Albarbary and Abdo Dasouki.
The Government replied to the communication on 25 November 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 or
her sentence or despite an amnesty law applicable to him or her) (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);
United Nations
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General Assembly
Distr.: General
14 June 2016
Original: English
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(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);
(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 rights (category V).
Submissions
Communication from the source
4.
The case submitted by the source involves nine male journalists who are all citizens
of Egypt. According to the source, the nine journalists were prosecuted in a mass trial
known as the “Rabaa Operations Room” case.
5.
On 11 April 2015, eight of the nine journalists were sentenced by the Cairo Criminal
Court to life imprisonment, while one was sentenced to death. The nine journalists have
appealed their sentences to the Court of Cassation. According to the source, the journalists
have been held for over two years in detention, during which they have all been subjected
to torture and ill-treatment. The detention and trial of the nine journalists is described
below.
Detention and trial of Abdullah Ahmed Mohammed Ismail Alfakharany,
Samhy Mostafa Ahmed Abdulalim and Mohamed Mohamed Aladili
6.
Abdullah Ahmed Mohammed Ismail Alfakharany is a 25-year-old student. He was
born in the United Arab Emirates but holds Egyptian nationality. Mr. Alfakharany is a
journalist and co-founder of Rassd News Network, a prominent news outlet in Cairo, and a
human rights activist. He is also a project officer at Euro-Mid Observer for Human Rights
and a member of the American Middle Eastern Network for Dialogue at Stanford
University.
7.
Samhy Mostafa Ahmed Abdulalim is a 27-year-old journalist and member of the
Rassd News Network Board.
8.
Mohamed Mohamed Aladili is a 31-year-old journalist. Before his arrest, he worked
for Misr 25 and Amjad television channels as a technical producer. He was expected to
begin working for Al-Jazeera had he not been detained.
9.
On 25 August 2013, Messrs. Alfakharany, Abdulalim and Aladili went to visit and
interview a friend who had been shot in the arm on 16 August 2013 during the violent
dispersal from Rabaa al-Adawiya Square in Cairo of supporters of the Muslim
Brotherhood. The source states that the three journalists were gathering information on this
incident in order to report about it.
10.
According to the source, shortly after Messrs. Alfakharany, Abdulalim and Aladili
entered their friend’s home, it was raided by 15 to 20 members of the Egyptian security
forces wearing civilian clothes. The officers were looking for the friend’s father, but he was
not present at the time. The officers questioned the four men for half an hour and beat them,
before taking them to Basateen Police Station to verify their identities. The officers did not
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produce a warrant. The three journalists were reportedly placed in a cell and held
incommunicado until warrants were issued by the prosecutor on 26 August 2013. The
source claims that the official police file states that the three journalists were arrested on
26 August 2013, but they were in fact arrested the day before.
11.
The source reports that Messrs. Alfakharany, Abdulalim and Aladili were later
placed in custody together with approximately 70 other convicted defendants in a confined
cell, which was so crowded that they were forced to stand up. The three journalists reported
that they received death threats, were repeatedly beaten and subjected to degrading and
humiliating treatment by wardens during their first days of detention and were not provided
with sufficient food. According to the source, they reported this ill-treatment to the Public
Prosecutor, who took no action to follow up the complaints, despite being required to do so
under Egyptian law.
12.
On 31 August 2013, Messrs. Alfakharany, Abdulalim and Aladili were transferred in
overcrowded minivans to Wadi al-Natrum Prison. The source alleges that they were
tortured for six hours at the prison. On 1 September 2013, they were brought back to
Basateen Police Station and held in deplorable conditions. On 14 September 2013, they
were transferred to Tora Prison.
13.
On 25 January 2014, the case against Messrs. Alfakharany, Abdulalim and Aladili
was referred to the Cairo Criminal Court. The source states that all three journalists were
initially charged with “disturbing the peace”. However, in February 2014, the charges were
changed without explanation by the Public Prosecutor to “spreading false information” and
“spreading chaos”. Messrs. Alfakharany, Abdulalim and Aladili were accused of having
formed “an operations room to the Muslim Brotherhood to defy the Government” during
their coverage of events at Rabaa al-Adawiya Square. The matter thus became known as the
“Rabaa Operations Room” case. The three journalists were also alleged to have instructed
the protesters at the square to cause chaos.
14.
According to the source, the first hearing was held on 1 April 2014. The trial was
then continuously postponed over the course of a year. Messrs. Alfakharany, Abdulalim
and Aladili were finally sentenced to life imprisonment on 11 April 2015 by the Cairo
Criminal Court. Although the trial was held in the presence of the three journalists, the
source reports that they were not able to follow the proceedings because they were locked
in soundproof glass cages. The source also reports that they were forbidden to speak to the
judge to challenge their detention and that the judgment was partially based on secret
evidence and only the evidence provided by prosecution witnesses was considered.
Detention and trial of Waleed Abdulraoof Shalaby
15.
Waleed Abdulraoof Shalaby is a 52-year-old journalist. On 28 September 2013, he
was arrested while staying at his relative’s home. According to the source, members of the
security forces broke into the home without a warrant and conducted a search for evidence
to incriminate Mr. Shalaby. No evidence was found, but the officers removed an Islamic
book. The officers then took Mr. Shalaby to his own home, where they confiscated several
personal items, including his papers.
16.
Mr. Shalaby was then taken to the Al-Sharqia security forces facility, where he
stayed for the remainder of the day before being transferred to Al-Aqrab Prison. The source
alleges that, at Al-Aqrab Prison, Mr. Shalaby was placed in solitary confinement for six
months and forbidden to leave his cell. Another inmate was later put into his cell because of
overcrowding in other cells. Mr. Shalaby’s personal items were confiscated by the guards,
who reportedly regularly humiliated him. According to the source, on 1 February 2014,
guards entered Mr. Shalaby’s cell and stripped him of his clothes, leaving him naked. The
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guards also took his mattress and food. Mr. Shalaby’s family was subsequently forbidden
from seeing him for two months. Visits were also denied from 3 July to 14 August 2014.
17.
At the beginning of the “Rabaa Operations Room” trial, Mr. Shalaby reported that
he had been ill-treated and had received death threats while in detention, but this was not
taken into account by the judge. On 11 April 2015, Mr. Shalaby was sentenced to death. He
was the only one of the nine journalists sentenced to death.
Detention and trial of Ahmed Sabii
18.
Ahmed Sabii is a 41-year-old journalist and member of the Egyptian Journalists
Syndicate. Before his arrest, he was the manager of Al-Aqsa television channel. According
to the source, on 4 October 2013, at least 15 armed men came to Mr. Sabii’s home, arrested
him without a warrant and threatened his wife and children. Mr. Sabii was taken to Helwan
Prison. He was brought before the Public Prosecutor for interrogation the next morning and
formally charged in relation to the “Rabaa Operations Room” case.
19.
Mr. Sabii was subsequently moved to Heliopolis Police Department, where he was
detained for 13 months, before being moved to Al-Aqrab Prison in November 2014. The
source alleges that Mr. Sabii was subjected to particularly harsh conditions of detention at
Al-Aqrab Prison, including placed in solitary confinement, deprived of his clothes and
forced to sleep on the floor without a mattress. The source reports that the guards often
confiscated Mr. Sabii’s food and denied him the right to go out to exercise. On 11 April
2015, Mr. Sabii was sentenced to life imprisonment. At the time that the present
communication was received from the source, he was detained in Al-Aqrab Prison.
Detention and trial of Youssouf Talat Mahmoud Mahmoud Abdulkarim
20.
Youssouf Talat Mahmoud Mahmoud Abdulkarim is a 32-year-old television
presenter and Director of Al-Shabab television channel. On the night of 19 August 2013,
while Mr. Abdulkarim was at work, the offices of Al-Shabab were raided by the security
forces. The source alleges that the officers broke filming equipment and did not produce a
warrant. They arrested Mr. Abdulkarim, forcibly pushed him to the ground and handcuffed
him. They also hit him on the head with a rifle, causing intense bleeding, and struck him on
other parts of his body.
21.
According to the source, during Mr. Abdulkarim’s first days in detention inside a
security forces facility, he was severely tortured, which caused permanent damage. As a
result of the torture, Mr. Abdulkarim is no longer able to stand up. His family asked the
authorities to allow him to see a doctor or at least have an x-ray performed so as to clearly
evaluate his injuries, but these requests were denied. The source reports that, despite
suffering from regular fainting, Mr. Abdulkarim has not been provided with any medical
attention and medication brought by his relatives is always confiscated. He was only
allowed to receive visits on a weekly basis for a maximum of five minutes.
22.
On 11 April 2015, Mr. Abdulkarim was sentenced to life imprisonment in the
“Rabaa Operations Room” case. At the time that the present communication was received
from the source, he was being detained in Tora Prison.
Detention and trial of Hani Salheddin
23.
Hani Salheddin is a 47-year-old syndicated journalist. Before his arrest, he was the
head of a department at Misr 25 television channel and a former editor at Youm 7. He is a
member of the Arab Journalists Union. On 28 November 2013, Mr. Salheddin was waiting
at Cairo airport for a flight to Lebanon to undergo eye surgery, when he was arrested by
police officers and taken to the Liman section of Tora Prison.
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24.
According to the source, while in detention at Tora Prison, Mr. Salheddin has been
denied medical treatment. He has been forced to sleep on the floor without a mattress and
has developed a painful hernia that has not been treated. His family was prevented from
visiting him for a month and a half. The source reports that Mr. Salheddin has been
subjected to ill-treatment, including the placement of dogs inside his cell to frighten him,
deprived of sleep by the guards and generally subjected to deplorable detention conditions.
25.
On 11 April 2015, Mr. Salheddin was sentenced to life imprisonment in the “Rabaa
Operations Room” case. At the time that the present communication was received from the
source, he was being detained in the Liman section of Tora Prison.
Detention and trial of Mosaad Albarbary
26.
Mosaad Albarbary is a 41-year-old journalist. Before his arrest, he was the
Executive Director and Vice-President of Misr 25 television channel. On 2 April 2014,
Mr. Albarbary was arrested by the Lebanese security forces in Beirut at the request of the
Egyptian authorities. The source states that there was no official extradition procedure to
return Mr. Albarbary to Egypt. Instead, he was detained for one week in a security forces
building before being handed over to the Egyptian intelligence services and deported to
Cairo. The source alleges that the Egyptian intelligence services falsely reported that
Mr. Albarbary had been arrested at Cairo Airport in order to have the records of his arrest
show that he was arrested on Egyptian territory. Mr. Albarbary was interrogated for five
hours at the airport.
27.
The source reports that Mr. Albarbary was then held in custody for two and a half
months in the Giza Migration Department in particularly harsh conditions. His cell had no
ventilation and was extremely overcrowded. Mr. Albarbary was then transferred to the
Istiqbal section of Tora Prison where he was denied regular meals, medication and visits.
28.
On 11 April 2015, Mr. Albarbary was sentenced to life imprisonment in the “Rabaa
Operations Room” case. At the time that the present communication was received from the
source, he was being detained in the Istiqbal section of Tora Prison.
Detention and trial of Abdo Dasouki
29.
Abdo Dasouki is a 39-year-old journalist. Before his arrest, Mr. Dasouki was the
Director of Ikhwan wiki, an Arabic wiki encyclopedia established by the Egyptian Muslim
Brotherhood.
30.
Mr. Dasouki was arrested on 16 August 2013, the day that supporters of the Muslim
Brotherhood were dispersed from Rabaa al-Adawiya Square. At the time of his arrest,
Mr. Dasouki was in the vicinity of the Fateh Mosque, after the police and the army had
dispersed protesters from Ramses Square. The source alleges that Mr. Dasouki was brought
to a police station in Cairo where he was tortured for several hours. Mr. Dasouki was
charged in relation to the “Rabaa Operations Room” case. According to the source, he was
transferred to Tora Prison where he was again tortured by officers.
31.
The source reports that Mr. Dasouki complained to the Public Prosecutor about his
ill-treatment, but every time he did so, the officers at Tora Prison retaliated by putting him
in solitary confinement. According to the source, the Public Prosecutor did not take any
action to stop the torture or to investigate it.
32.
On 11 April 2015, Mr. Dasouki was sentenced to life imprisonment in the “Rabaa
Operations Room” case. At the time that the present communication was received from the
source, he was being detained in the Liman section of Tora Prison.
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Submissions regarding arbitrary detention
33.
The source submits that the detention of Messrs. Alfakharany, Abdulalim, Aladili,
Shalaby, Sabii, Abdulkarim, Salheddin, Albarbary and Dasouki is arbitrary under
categories II and III of the arbitrary detention categories referred to by the Working Group
when considering cases submitted to it.
34.
The source reiterates that the nine individuals who were arrested and are currently
detained are all journalists who were covering events relating to the dispersal of protesters
from Rabaa al-Adawiya Square on 16 August 2013. As noted above, Messrs. Alfakharany,
Abdulalim and Aladili were interviewing a victim of the events in the square at the time of
their arrest. Messrs. Shalaby, Sabii, Abdulkarim, Salheddin, Albarbary and Dasouki were
all working for media channels, newspapers or websites allegedly affiliated with the
Muslim Brotherhood that opposed the military coup of July 2013 and their media outlets
were covering the events in the square. Their arrests stemmed from their work with these
media outlets that opposed the behaviour of the Egyptian authorities. The source argues that
the sole fact of working for media and websites linked to the Muslim Brotherhood was
sufficient reason for the authorities to arrest them because these media outlets were
considered to be disseminating false information, regardless of what the journalists may or
may not have done.
35.
The source therefore argues that the charges against the nine journalists in relation to
the “Rabaa Operations Room”, including the charge of “spreading false information”, were
directly related to their coverage of that event, in violation of their rights to freedom of
opinion and expression under article 19 (1) and (2) of the International Covenant on Civil
and Political Rights. The source states that the Egyptian authorities often resort to criminal
charges to suppress independent voices, especially journalists, and that this is a form of
censorship and an infringement of the right to form and hold opinions, and receive and
impart information. The source submits that the vagueness of the charges against the nine
journalists suggests that they were arrested to impede them from independently and
impartially carrying out their work as journalists.
36.
In addition, the source refers to allegations that the nine journalists had formed a
group aimed at undermining the Government of Egypt in an attempt to overthrow it. The
source argues that, given that there was no evidence presented to support such allegations,
it is clear that the authorities only wanted to prevent the journalists from disclosing
information relating to the events of 16 August 2013 in Rabaa al-Adawiya Square. Finally,
the source notes that all of the journalists reported that they had been tortured and subjected
to ill-treatment in retaliation for their work as journalists, which demonstrates that they
were only arrested to suppress their freedom of expression.
37.
The source also submits that there had been numerous violations of due process
during the arrest, detention and trial of Messrs. Alfakharany, Abdulalim, Aladili, Shalaby,
Sabii, Abdulkarim, Salheddin, Albarbary and Dasouki. The source argues that the
violations were of such gravity as to render their deprivation of liberty arbitrary under
category III of the arbitrary detention categories defined by the Working Group. The
alleged violations include:
(a)
Failure to present a warrant when the nine journalists were arrested, contrary
to article 9 (1) of the International Covenant on Civil and Political Rights;
(b)
Failure to inform the journalists of the charges against them, contrary to
article 9 (2) of the Covenant: the journalists were not informed of the charges against them
during their first days in custody and some of them remained in detention without charges
for several months. With the exception of Mr. Shalaby, the charge of belonging to the
“Rabaa Operations Room” group was only brought against the journalists in February 2014,
six months after most of them had been arrested in August 2013;
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(c)
Change of the dates of arrest to hide the time spent by the journalists in
incommunicado detention, contrary to article 9 of the Covenant. In the case of Messrs.
Alfakharany, Abdulalim and Aladili, the authorities changed the official date of their arrest,
stating that they had been arrested on 26 August 2013 and not 25 August 2013. Similarly,
Mr. Albarbary was detained by the intelligence services in Lebanon for one week before the
authorities brought him back to Egypt and it was falsely reported that he had been arrested
on Egyptian territory;
(d)
Holding the journalists in incommunicado detention, which is a prima facie
form of arbitrary detention, contrary to article 10 of the Covenant and article 1 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. They were also detained with convicted criminals, even though they had not
yet been tried, in violation of article 10 (2) (a) of the Covenant;
(e)
Denial of the right to challenge the lawfulness of detention, contrary to
article 9 (4) of the Covenant. The journalists’ lawyers were not granted the right to
challenge the lawfulness of their detention, even though they had requested the Public
Prosecutor to do so;
(f)
Failure to try the journalists without undue delay, contrary to article 14 (3) (c)
of the Covenant. The first hearing of the case before a judge was on 1 April 2014, nearly
seven months after the respective arrests of the journalists. Their trial was held over the
course of one year owing to regular and vaguely justified postponements by the judge or the
prosecution;
(g)
Failure to provide a fair trial, contrary to article 14 of the Covenant. Most of
the evidence against the journalists was brought to the judge by the intelligence services
and was not communicated to their lawyers, rendering it impossible for them to challenge
its veracity. Only prosecution witnesses testified in court, giving the appearance that the
trial was not impartial, contrary to article 14 (1) and (3) (e) of the Covenant;
(h)
Torture and other ill-treatment of the journalists, contrary to article 1 of the
Convention against Torture. All of the journalists reported that they had been subjected to
torture and/or ill-treatment during their detention, were still at a high risk of being ill-
treated and were being detained in harsh conditions. Furthermore, all of the reports made to
the Public Prosecutor regarding these violations were dismissed and no investigations were
launched into the complaints, in violation of article 12 of the Convention;
(i)
Failure to try the journalists in their presence, contrary to article 14 (3) (d) of
the Covenant. Not all the journalists were inside the courtroom — some were at the
entrance — when they were sentenced. They were nevertheless considered as being
present.
38.
On 20 August 2015, the source provided the Working Group with an update on the
situation of the nine journalists. According to the source, the first session of their appeal
was expected to be held on 1 October 2015. Messrs. Alfakharany, Abdulalim and Aladili
remained in detention in Tora Prison, but it was not possible for the source to determine
where the other six journalists were being detained. At the time that this update was
received, Messrs. Alfakharany, Abdulalim and Aladili had been allowed to receive visits
from their families and from their lawyers.
Response from the Government
39.
On 22 September 2015, the Working Group transmitted the source’s allegations to
the Government of Egypt through its regular communication procedure. The Working
Group requested the Government to provide detailed information by 23 November 2015
about the situation of Messrs. Alfakharany, Abdulalim, Aladili, Shalaby, Sabii,
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Abdulkarim, Salheddin, Albarbary and Dasouki. The Working Group also requested the
Government to clarify the legal provisions justifying their continued deprivation of liberty.
40.
In its response, the Government forwarded a copy of the verdict issued by the Cairo
Criminal Court in this case. The Government also requested an extension of time, which
was granted under paragraph 16 of the Working Group’s methods of work. The deadline
was extended to 23 December 2015, but the Government did not forward any further
information by that date.
41.
The translation (from Arabic) of the verdict that was forwarded by the Government
in November 2015 was received on 8 April 2016, in time for the seventy-fifth session of the
Working Group. The verdict contains a list of 37 individuals who had been convicted by
the Cairo Criminal Court (North Giza), including the nine men involved in the present case.
It also includes information on the sentences handed down to each of the nine men.
Further comments from the source
42.
On 10 December 2015, the source notified the Working Group that, on 3 December
2015, the Court of Cassation had rendered its decision in the appeals brought by the nine
men in this case. According to the source, the Court of Cassation revoked all of the
sentences previously imposed on the nine men (including the death penalty imposed on
Mr. Shalaby) and ordered a retrial by the Cairo Criminal Court. The nine men remain in
custody pending the retrial.
43.
The first retrial session was due to be held on 8 February 2016. However, the source
informed the Working Group that the nine men were never brought to court by the
authorities and that the judge had postponed the retrial to 1 March 2016, then to 7 March
2016. In an update dated 2 March 2016 the source expressed concern that
Messrs. Alfakharany, Abdulalim and Aladili had been transferred to the high security
section of Al-Aqrab prison, where many detainees were on a hunger strike to protest against
their conditions of detention and the no-visit policy established by the prison personnel.
44.
On 11 March 2016, the source submitted that the Cairo Criminal Court verdict
submitted by the Government in November 2015 was not a copy of the Court’s ruling, but a
document from the Public Prosecutor that had not been used during the trial. The source
submits that this document had been written after the Court’s decision in this case and did
not address any of the observations made by the source in its original communication to the
Working Group. The Working Group has not received any further update on the status of
the retrial of the nine men. In any event, the Working Group does not require that domestic
remedies be exhausted before it can consider a communication and render an opinion.
Discussion
45.
The Working Group considers that the Government’s submission that was received
on 25 November 2015 did not respond to any of the allegations made by the source. The
Working Group also notes that the Government did not provide further information by the
extended deadline. In accordance with paragraph 16 of its methods of work, the Working
Group may render an opinion on the basis of all the information it has obtained, even if no
reply has been received upon expiry of the time limit set.
46.
In its jurisprudence, the Working Group has established the ways in which it deals
with evidentiary issues.1 Where the source has established a prima facie case for breach of
1 See, for example, A/HRC/19/57, para. 68; and opinion No. 52/2014.
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international requirements constituting arbitrary detention, the burden of proof rest on the
Government if it wishes to refute the allegations.
47.
The Working Group has taken into account all of the allegations made by the nine
journalists in relation to the “Rabaa Operations Room” case. Even though the nine
journalists were arrested and detained at different times and under different circumstances,
their accounts are similar in all material respects, which lends credibility to their
allegations. The Working Group is therefore of the view that the case submitted by the
source is credible.
48.
The Working Group also took into account other reliable information that supports
the source’s claims and demonstrates that there is a systemic problem of arbitrary
deprivation of liberty of journalists in Egypt. The Working Group refers to its previous
opinions concerning individual communications from various sources regarding arbitrary
arrests and detention in Egypt.2 In these cases, The Working Group found that journalists
and bloggers had been subjected to arbitrary detention for peacefully exercising their rights
to freedom of opinion and expression under the Universal Declaration of Human Rights and
the International Covenant on Civil and Political Rights.
49.
Furthermore, on 11 November 2015, the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression and the Special Rapporteur on
the situation of human rights defenders issued a joint statement that was endorsed by the
Working Group, in which they expressed “grave concern at the situation of fear and
intimidation of journalists and human rights defenders which inhibit the legitimate exercise
of their rights and the performance of their work in Egypt”. Referring to the detention and
recent release of a journalist, they noted that, “according to credible reporting, we
understand that dozens of reporters are being held by Egyptian authorities today”.3 This
statement followed an earlier expression of concern by the Special Rapporteur on the right
to freedom of opinion and expression in September 2015, which was also endorsed by the
Working Group, about the arrest, detention and sentencing of three Al-Jazeera journalists in
Egypt. In that statement, the Special Rapporteur said that, “with nearly two dozen other
journalists in jails, according to reliable information, these sentences reinforce the sense
that freedom of expression is under attack in Egypt”.4
50.
The Working Group considers that the Government has not rebutted the prima facie
reliable assertion made by the source that the nine journalists were arrested, detained and
sentenced solely for peacefully exercising their right to freedom of opinion and expression,
in violation of article 19 of the Universal Declaration of Human Rights and article 19 of the
International Covenant on Civil and Political Rights. Their deprivation of liberty therefore
2 See, for example, opinions No. 50/2011 and No. 35/2008.
3 See Office of the United Nations High Commissioner for Human Rights (OHCHR), “Egypt: UN
experts welcome release of Hossam Bahgat but concerns remain on the situation of journalists and
rights defenders”, press release (Geneva, 11 November 2015), available from www.ohchr.org/en/
NewsEvents/Pages/DisplayNews.aspx?NewsID=16738&LangID=E.
4 See OHCHR, “Egypt/Al Jazeera trial: UN rights expert condemns sentence, urges immediate release
of detained journalists”, press release (Geneva, 1 September 2015), available from
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16370&LangID=E. The
statement was made in relation to the case of Mohamed Fahmy, Bahar Mohamed and Peter Greste.
The Special Rapporteur also noted that “the broadcasting of information should never be restricted,
certainly not without evidence of a serious immediate threat to a legitimate national security interest.”
In the present case, the Working Group notes that the Government has not provided any evidence to
show evidence of such a threat in the case of the nine journalists or that its response to the perceived
threat was necessary and proportionate.
A/HRC/WGAD/2016/7
10
falls within category II of the arbitrary detention categories referred to by the Working
Group when considering communications submitted to it.
51.
The Working Group also considers that the source’s allegations disclose violations
of the right to a fair trial, some of which apply to all of the journalists, while other
allegations only applied to some of them (as outlined in the source’s submissions above).
The Government has not rebutted any of these allegations. The Working Group considers
that the violations include the failure on the part of the arresting officers to present a
warrant and denial of the journalists’ rights to be informed promptly of the charges against
them, to the opportunity to challenge the lawfulness of their detention,5 to be tried without
undue delay by an independent and impartial tribunal and to be tried in their presence.
52.
The Working Group considers that the breaches of articles 9, 10 and 11 of the
Universal Declaration of Human Rights and articles 9 and 14 of the International Covenant
on Civil and Political Rights in the case of the nine journalists are of such gravity as to give
their deprivation of liberty an arbitrary character and it falls within category III of the
arbitrary detention categories defined by the Working Group.
53.
The Working Group is particularly concerned about the alleged torture and ill-
treatment of the nine journalists. In particular, the Working Group refers to the allegations
made by the source that they were beaten, subjected to degrading and humiliating
treatment, including death threats, held incommunicado, held in solitary confinement for
prolonged periods, subjected to retaliation after making complaints, detained in
overcrowded and deplorable conditions with convicted criminals and denied medical
treatment and medication, contrary to their rights under article 5 of the Universal
Declaration of Human Rights and articles 7 and 10 of the International Covenant on Civil
and Political Rights. Moreover, the Government did not address the source’s allegations
that the Public Prosecutor failed to investigate the journalists’ reports of torture and ill-
treatment. This conduct is contrary to the duty of prosecutors to respect and protect human
dignity and uphold human rights6 and contrary to the obligations of Egypt under articles 12,
13 and 16 of the Convention against Torture. The Working Group will therefore refer the
matter to the relevant Special Rapporteur for further consideration of the circumstances of
the case and, if necessary, appropriate action.
54.
Finally, the Working Group notes that the source alleged that the Lebanese security
forces arrested Mr. Albarbary in Beirut at the request of the Egyptian authorities and
detained him for one week. The Lebanese security forces then reportedly handed him over
to the Egyptian intelligence services and he was deported to Egypt without any official
extradition procedure. The Working Group recalls that it is possible for another State to
share responsibility for human rights violations where its actions contribute to the arbitrary
deprivation of liberty. However, in the present case, no evidence was submitted in relation
to the conduct of the Lebanese authorities and the Working Group has decided not to
pursue this matter.
5 See A/HRC/30/37, annex, principle 3, in which the Working Group notes that any individual who is
deprived of liberty in any situation by or on behalf of a governmental authority at any level has the
right to take proceedings before a court in the State’s jurisdiction to challenge the arbitrariness and
lawfulness of his or her deprivation of liberty and to receive without delay appropriate and accessible
remedies.
6 See the Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, held in Havana from 27 August to 7 September
1990, para. 12.
A/HRC/WGAD/2016/7
11
Disposition
55.
In the light of the foregoing, the Working Group renders the following opinion:
56.
The deprivation of liberty of Abdullah Ahmed Mohammed Ismail Alfakharany,
Samhy Mostafa Ahmed Abdulalim, Mohamed Mohamed Aladili, Waleed Abdulraoof
Shalaby, Ahmed Sabii, Youssouf Talat Mahmoud Mahmoud Abdulkarim, Hani Salheddin,
Mosaad Albarbary and Abdo Dasouki is arbitrary, being in contravention of articles 5, 9,
10, 11 and 19 of the Universal Declaration of Human Rights and articles 7, 9, 10, 14 and 19
of the International Covenant on Civil and Political Rights, and falls within categories II
and III of the arbitrary detention categories referred to by the Working Group when
considering cases submitted to it.
57.
Consequent upon the opinion rendered, the Working Group requests the
Government to take the steps necessary to remedy the situation of Messrs. Alfakharany,
Abdulalim, Aladili, Shalaby, Sabii, Abdulkarim, Salheddin, Albarbary and Dasouki,
without delay, 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.
58.
Taking into account all the circumstances of the case, the Working Group considers
that the adequate remedy would be to release Messrs. Alfakharany, Abdulalim, Aladili,
Shalaby, Sabii, Abdulkarim, Salheddin, Albarbary and Dasouki immediately and accord
them an enforceable right to compensation in accordance with article 9 (5) of the
International Covenant on Civil and Political Rights.
59.
The Working Group urges the Government to ensure that Messrs. Alfakharany,
Abdulalim, Aladili, Shalaby, Sabii, Abdulkarim, Salheddin, Albarbary and Dasouki are not
subjected to further torture or ill-treatment. The Working Group also urges the Government
to fully investigate the circumstances surrounding the arbitrary detention of the nine men
and to take appropriate measures against those responsible for the violation of their rights.
60.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
considers it appropriate to refer the allegations of torture and ill-treatment to the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment for
appropriate action.
[Adopted on19 April 2016]