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A/HRC/WGAD/2017/83

Opinion no. 83/2017 concerning Mahmoud Hussein Gommaa Ali (Egypt)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2017-11-24 · en UN

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.18-00618 (E)

*1800618*

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eightieth session, 20–24 November 2017

Opinion No. 83/2017 concerning Mahmoud Hussein Gommaa Ali

(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. Pursuant to General Assembly resolution 60/251 and

Human Rights Council decision 1/102, the Council assumed that mandate and most recently

extended it for a three-year period in its resolution 33/30 of 30 September 2016.

2.

In accordance with its methods of work (A/HRC/36/38), on 13 June 2017, the

Working Group transmitted to the Government of Egypt a communication concerning

Mahmoud Hussein Gommaa Ali. The Government replied to the communication on 8 August

2017. 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 Covenant (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);

(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).

United Nations

A/HRC/WGAD/2017/83

General Assembly

Distr.: General

15 January 2018

Original: English

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Submissions

Communication from the source

4.

Mahmoud Hussein Gommaa Ali is an Egyptian national, born on 12 December 1966.

He is a prominent journalist. Before his arrest, Mr. Hussein had been news editor at Al-

Jazeera Arabic in Doha, where he resided.

Background

5.

According to the source, a number of political and legal measures implemented by the

Egyptian authorities in the past few years have severely constrained the rights of citizens and

civil society in Egypt. This includes measures leading to a crackdown on journalists and all

forms of independent reporting, criticism and dissent.

6.

Since 2011, 10 journalists have reportedly been killed, without proper investigations

being conducted. The source notes that Egypt ranks third in the world in terms of the number

of journalists incarcerated, with 24 journalists in detention in the country. Journalists,

especially those working for Al-Jazeera, have been consistently accused by the Government

of inciting sedition and spreading false news. Since 2013, the Government has accused Al-

Jazeera of supporting the Muslim Brotherhood, an organization outlawed by the Government

as a “terrorist” organization. The company has been banned from operating in Egypt.

7.

The source submits that the Terrorist Entities Law (2014) and the Counter-Terrorism

Law (2015) set forth vague definitions for “terrorism” and have been used increasingly to try

critics as terrorists and to implement exceptional measures, including the extension of pretrial

detention, the monitoring of private telephone calls and the designation of certain criminal

courts to hear terrorism cases. In addition, those laws have made it a crime to publish news

about terrorism that contradict the Government’s version of events and have enabled the

courts temporarily to ban journalists from practising, with infringements punishable by up to

two years in prison. Moreover, a state of emergency was declared in Egypt in March 2017,

giving even broader powers to the Government. The source claims that the Government has

been using pretrial detention frequently as a punitive measure against political prisoners and

prisoners of conscience.

Arrest and detention

8.

According to the source, Mr. Hussein joined the Cairo bureau of Al-Jazeera Arabic at

the end of 2010. The bureau was shut down by the Egyptian authorities in mid-2013. As a

result, Mr. Hussein moved to Doha in the third quarter of 2013 to continue his work for Al-

Jazeera and was in charge of covering news related to the European Union. Mr. Hussein still

frequently visited Egypt for personal reasons as members of his family, including his two

wives and nine children, still resided there.

9.

The source submits that, on 19 December 2016, Mr. Hussein was stopped, questioned

and detained at Cairo Airport upon arrival there to visit his family. His passport was

confiscated, and he was questioned for more than 15 hours, including about the nature of his

work with the Al-Jazeera media network and Al-Jazeera’s intentions in covering Egypt. The

source notes that, from the time Mr. Hussein moved to Qatar in 2013, Al-Jazeera had not sent

him to Egypt on business. During the course of the interrogation, Mr. Hussein was not

allowed to contact anyone, including his lawyer. He was then released and asked to retrieve

his passport from the police at a later date.

10.

The source reports that, on 22 December 2016, Mr. Hussein was arbitrarily arrested

outside his home in Giza, as he was leaving to go to the police station to collect his passport.

According to the source, the arresting officers — presumably Homeland Security agents —

did not show him an arrest warrant or any other official documents. The group of officials

that conducted the arrest was particularly large, including multiple police cars. Some officers

wore uniforms, while others did not. Mr. Hussein was held for over 12 hours without his

family’s knowledge. The same day, at around 11 p.m., police officers reportedly raided the

homes of Mr. Hussein’s father, brothers and sisters.

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11.

According to the source, after detaining Mr. Hussein for over 12 hours, the Homeland

Security agents took him — handcuffed — to his sister’s house and forced him to record a

series of “confession” videos, all allegedly made under coercion and severe duress. Mr.

Hussein’s family was not allowed to speak to him, and he was then taken away from his

sister’s house without being given any details as to where he was going, why he was being

detained or which authority had ordered his detention.

12.

On 23 December 2016, the authorities officially registered the arrest of Mr. Hussein.

He was then reportedly held incommunicado in an undisclosed location until 5 January 2017.

13.

The source notes that, on 25 December 2016, three videos showing Mr. Hussein’s

forced “confessions” were published or leaked online by the Egyptian authorities. The

“confessions” sought to demonstrate that Mr. Hussein had been arrested because of his

association with the Al-Jazeera documentary “Al-Asaker”, which was first aired on 27

November 2016. The documentary covered the issue of conscription in the Egyptian army

and the alleged mistreatment and exploitation of soldiers. In the first video, Mr. Hussein

expresses his disapproval of the documentary and states that, as an Egyptian, he had

expressed his objection to the management of Al-Jazeera. The media network subsequently

clarified that Mr. Hussein had never worked on the documentary in any capacity. In the

second forced “confession” video, Mr. Hussein is seen standing over media equipment

displayed on a table, explaining that he had been asked to keep it with him for safe keeping

following the 2013 events that lead to the attack on and fire at Al-Jazeera’s Cairo office. In

one of the videos, the narrator claims that the tapes on display contain evidence against Mr.

Hussein. According to the source, Mr. Hussein was coerced to repeat his forced “confessions”

around 20 times.

14.

On 25 December 2016, the Ministry of the Interior issued a statement on its Facebook

page announcing the arrest of Mr. Hussein.

15.

On 24, 25 and 27 December 2016, the authorities reportedly interrogated Mr. Hussein

without the presence of his attorney. According to the source, during each of the

interrogations, Mr. Hussein was asked about his involvement in the documentary “Al-

Asaker”. He repeatedly informed his interrogators that he had not been involved in the

documentary since he covered news in the European Union and not Egypt.

16.

On 29 December 2016, Mr. Hussein’s lawyer filed three applications with the Public

Prosecution Office. The first application included a request that Mr. Hussein’s lawyer be

notified of any interrogation sessions or of any renewal sessions, as required by article 124

of the Criminal Procedure Code. In the second, his lawyer sought approval to review the case

files, as required by article 125 of the Code. The third included an application that visitation

rights be granted to Mr. Hussein’s daughter. Each of the requests was reportedly unanswered.

17.

On 4 January 2017, Mr. Hussein appeared before the Homeland Security Prosecution,

which issued an order to detain him for 15 days pending investigation. On 18 January 2017,

that order was renewed for another 15 days.

18.

On 4 and 9 January 2017, Mr. Hussein’s lawyer applied for official visitation rights

to the Attorney General of the Homeland Security Prosecution. The source reports that both

applications were unanswered.

19.

According to the source, while Mr. Hussein has not yet been formally charged, the

Minister of the Interior has been quoted in the press accusing Mr. Hussein of: incitement

against State institutions; broadcasting false news with the aim of spreading chaos; using

several residences to avoid security monitoring in the light of Al-Jazeera’s unauthorized

work; being a member of an illegal organization; and receiving monetary funds from foreign

authorities in order to defame the State’s reputation.

20.

On 5 January 2017, it was confirmed for the first time since the beginning of his

detention that Mr. Hussein was being held in the Tora prison.

21.

On 10 January 2017, Mr. Hussein’s lawyer filed a complaint with the Attorney

General, stating that he had not been allowed to visit his client or review the case files, despite

having made several applications. That complaint was referred to the Homeland Security

Prosecution. The source reports that, at the date of submission of the present communication,

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the complaint remained unanswered. On 29 January 2017, Mr. Hussein’s family was finally

granted the official right to visit him once a week. On 1 February 2017, Mr. Hussein was

referred to the Giza Felonies Court, which renewed his detention order, initially for four days

and then for two further periods of 45 days each.

22.

On 21 March 2017, Mr. Hussein was finally released from solitary confinement after

89 days. According to the source, while in solitary confinement, Mr. Hussein was kept in a

small, dark cell infested with insects, with no electricity, no ventilation and a terrible smell.

Mr. Hussein was only allowed to urinate into a plastic bowl inside his cell. The source also

claims that the prison authorities denied Mr. Hussein access to winter clothes, despite the

very cold weather and the fact that the cell was not heated. The source further reports that

Mr. Hussein was only allowed out of his cell on very rare occasions, sometimes after as much

as a week. Mr. Hussein did not have access to sunlight and was reportedly forced to have his

head shaved. He was allegedly constantly mistreated and denied adequate food. As a result,

he lost a significant amount of weight. Mr. Hussein developed rashes from the contaminated

environment of his cell and complained of chest pains. To date, he reportedly continues to

suffer from shortness of breath and remains under severe physical and psychological stress.

23.

On 21 March 2017, Mr. Hussein was moved to a cell within the general prison

population, where he currently remains. According to the source, Mr. Hussein is being held

in a cell with three other inmates, all accused or convicted of crimes such as murder. He is

not allowed to interact with other political prisoners.

24.

The source reports that, on 19 April 2017, Mr. Hussein’s lawyer was finally allowed

to visit his client at the Cairo Prison. This was the first time that the lawyer was able to discuss

the case with his client. However, the visit was brief and held in the presence of the prison

warden.

25.

On 26 April 2017, the lawyer submitted a request to the Public Prosecutor to have

access to copies of the case files. The source reports that, at the date of submission of the

present communication, his application remained unanswered.

26.

On 29 April 2017, Mr. Hussein’s detention order was once again renewed for 45 days.

His lawyer appealed that decision and, for the first time, the appeal was accepted for review

by the court. However, the source reports that none of Mr. Hussein’s attorneys received

notification that the court had accepted the appeal. Mr. Hussein was taken to court on 16 May

2017 to review the merits of his appeal but without the presence of his lawyers. He was asked

by the Public Prosecution to plead his case himself. The source notes that, regrettably, Mr.

Hussein did not ask for his lawyer to be called upon and voluntarily accepted to speak before

the judge. The appeal was rejected and, at the date of submission of the present

communication, Mr. Hussein’s lawyer was in the process of filing a complaint regarding that

process.

27.

According to the source, two of Mr. Hussein’s brothers were also arrested on 22

December 2016, detained and questioned. Both brothers worked in the media sector in Egypt

for media groups unrelated to Al-Jazeera. On 2 January 2017, they were released from

custody without being formally charged. However, the source reports that, while in custody,

they were mistreated by the authorities, stripped naked and searched invasively. When their

detention was over, they were reportedly blindfolded, put into a car and released in the middle

of a street in the 6 October area of Cairo. The source further notes that, on 22 December

2016, the police raided the homes of Mr. Hussein’s brothers and destroyed some of their

belongings. Mr. Hussein’s home in Cairo and that of his sister were also raided and

unlawfully searched by the authorities. His sister’s home was reportedly raided by police

officers who had come in armed vehicles. The source notes that the police did not present

any warrant. Mr. Hussein’s sister was at home with her 12-year-old son at the time of the raid

on her home, and at one point the authorities allegedly pointed a gun at him. Finally, the

source reports that one of Mr. Hussein’s wives was suspended from her job at the Egyptian

State television company.

28.

The source submits that the detention of Mr. Hussein is arbitrary under categories I,

II, III and V of the categories applicable to the cases under consideration by the Working

Group.

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Category I

Violation of domestic regulations on pretrial detention

29.

According to the source, there is no legal basis in Egyptian law for Mr. Hussein’s

continued pretrial detention. Under the Egyptian Criminal Procedure Code, pretrial detention

is an exceptional legal measure available only in the following cases: for cases of in flagrante

delicto offences; when the accused is a flight risk; when there is a fear that the legal process

may be impeded or harmed; in cases implicating security and public order; and in cases

involving felony or misdemeanour crimes punishable by a prison sentence, when the accused

does not have a known residence in Egypt. The source submits that the pretrial detention of

Mr. Hussein does not satisfy any of those five categories.

Pretrial detention in Egypt violates domestic and international human rights obligations

30.

In any case, the source considers that the provisions of the Criminal Procedure Code

on pretrial detention, which have been used to uphold the continued detention of Mr. Hussein,

violate human rights protections enshrined in both domestic and international law and cannot

serve as a basis to continue keeping him in detention.

31.

According to the source, those provisions are vague and subject to excessive

discretion, facilitate pretrial detention for an egregiously lengthy period of up to two years

and leave little or no recourse for detainees who wish to challenge their continued detention,

in violation of articles 9, 10 and 11 of the Covenant; article 6 of the African Charter on

Human and Peoples’ Rights; and article 54 of the Constitution of Egypt.

Informal charges against Mr. Hussein are without merit

32.

Formal charges have not yet been brought against Mr. Hussein. However, the source

submits that the informal accusations made by the Government against him are without merit

and may not constitute a valid basis on which to keep him in pretrial detention. The source

highlights that the authorities have failed to produce a single piece of evidence against Mr.

Hussein that could justify any of the charges informally brought against him.

33.

For the reasons above, the source submits that the detention of Mr. Hussein is arbitrary

under category I.

Category II

34.

According to the source, the detention of Mr. Hussein is also arbitrary under category

II because his detention resulted from the exercise of his fundamental rights to freedom of

opinion and expression and his right to freedom of association.

35.

In an interview in March 2016, Mr. Hussein said that freedom of expression was

valuable to him and that he had cherished that principle throughout his career. He said that,

at Al-Jazeera, he had never been asked either to change or stop anything he had written or

reported, or to say anything in particular. Moreover, he felt that it was by always seeking

accurate information and news that Al-Jazeera had earned its credibility in the world.

36.

According to the source, by working for Al-Jazeera in Qatar as a prominent journalist,

Mr. Hussein was exercising his rights to freedom of expression and freedom of association.

The source recalls the pattern of abuse by the Egyptian authorities against Al-Jazeera

journalists.

37.

The source submits that Mr. Hussein was arrested, physically mistreated, held in

solitary confinement and arbitrarily detained simply for exercising his fundamental rights to

freedom of expression and freedom of association, in violation of articles 19 (1) and (2) and

22 (1) of the Covenant; articles 19 and 20 (1) of the Universal Declaration of Human Rights;

and articles 65 and 75 of the Constitution. The source recalls that the Human Rights

Committee has stated in its general comment No. 34 (2011) on the freedoms of opinion and

expression that the right to freedom of expression includes the right to express a dissenting

political opinion. The source further states that the exercise by Mr. Hussein of his rights to

freedom of expression and freedom of association does not fall under any of the permissible

limitations set forth by the Covenant.

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Category III

38.

According to the source, the detention of Mr. Hussein is arbitrary under category III

for the following reasons:

(a)

Mr. Hussein was detained without a judicial order, in violation of article 9 (1)

of the Covenant, principles 2 and 4 of the Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment and article 54 of the Constitution;

(b)

The authorities failed to inform Mr. Hussein of the charges against him, in

violation of articles 9 (2) and 14 (3) (a) of the Covenant, principles 10 and 13 of the Body of

Principles and article 54 of the Constitution;

(c)

The authorities failed to bring Mr. Hussein promptly before a judge and to try

him without undue delay, in violation of articles 9 (3) and 14 (3) (c) of the Covenant and

principle 11 (1) of the Body of Principles. The source recalls that, upon his arrest on 22

December 2016, Mr. Hussein was held in an unknown location until 5 January 2017. During

that period, he was not brought before a judge;

(d)

The authorities failed to grant Mr. Hussein the opportunity to appeal the

lawfulness of his detention, in violation of article 9 (4) of the Covenant, principle 11 (3) of

the Body of Principles and article 54 of the Constitution. Although Mr. Hussein was brought

before a court for regular pretrial detention renewal sessions, the source notes that neither he

nor his legal representative were granted a proper opportunity to be heard and to make a case

for conditional release and/or bail. Furthermore, the authorities failed to provide any

documentation or evidence regarding the informal accusations or potential pending charges

against Mr. Hussein, denying him an opportunity to become fully aware of the reasons for

his detention and, ultimately, to appeal the status of his detention. According to the source,

the near automatic nature of the detention renewals — despite the fact that none of the five

guidelines set forth under Egyptian law for pretrial detention had been established by the

prosecution or the court — demonstrates that Mr. Hussein has been denied an actual and

realistic opportunity to appeal the lawfulness of his detention;

(e)

The authorities violated the right of Mr. Hussein to be presumed innocent until

proven guilty, in violation of article 14 (2) of the Covenant, article 11 (1) of the Universal

Declaration of Human Rights, principle 36 of the Body of Principles and article 96 of the

Constitution. The source recalls paragraph 7 of Human Rights Committee general comment

No. 13 (1984) on the administration of justice, in which the Committee states that the burden

of proof of the charge is on the prosecution and the accused has the benefit of the doubt. The

source submits that, by placing Mr. Hussein in pretrial detention, continuously renewing his

detention in a near-automatic manner and not giving proper due process consideration to his

conditional release and/or granting of bail, the authorities have acted under the assumption

that Mr. Hussein is guilty and treated him as such. Furthermore, the source highlights that

government-controlled media outlets have engaged in a smear campaign against Mr. Hussein,

portraying him as guilty without an opportunity to first be presumed innocent. Moreover, the

source submits that, by placing Mr. Hussein in the Tora prison, a detention centre where

convicted criminals serve their sentences, Egyptian authorities have treated Mr. Hussein as

guilty before charging him, in violation of article 10 (2) (a) of the Covenant and principle 8

of the Body of Principles;

(f)

The authorities violated the right of Mr. Hussein to have access to a lawyer as

well as adequate time and facilities for the preparation of his defence, in violation of article

14 (3) (b) of the Covenant. The source recalls that, in paragraph 9 of its general comment No.

13, the Human Rights Committee states that facilities must include access to documents and

other evidence that the accused requires to prepare his or her case. The source recalls that

Mr. Hussein’s lawyer was only able to meet his client for the first time on 19 April 2017,

almost four months after his arrest. Moreover, the source claims that the prosecution has

failed to provide Mr. Hussein’s counsel with the case files or to provide any documentation

from the case to substantiate the informal allegations or potential pending charges against

Mr. Hussein;

(g)

The authorities violated the right of Mr. Hussein to be equal before the courts,

as protected by article 14 (1) of the Covenant. The source recalls that, in paragraph 8 of its

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general comment No. 32 (2007) on the right to equality before courts and tribunals and to a

fair trial, the Human Rights Committee states that this ensures that the parties to the

proceedings in question are treated without any discrimination and the principle of “equality

of arms”. The source submits that, for Mr. Hussein and other prisoners of conscience, release

pending trial is almost impossible. This contrasts with the situation of criminal detainees —

who may face murder, rape or theft charges — who undergo a regularized legal process that

can enable their possible release pending trial. The source notes that many such detainees are

granted conditional release;

(h)

The authorities violated the right of Mr. Hussein to be free from torture or other

cruel, inhuman or degrading treatment or punishment, in violation of article 7 of the

Covenant; articles 1, 2, 4, 5, 6 and 7 of the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment; article 5 of the Universal Declaration of

Human Rights; principle 6 of the Body of Principles; and articles 52 and 55 of the

Constitution. The source recalls that, following recent amendments, the domestic legal

framework of Egypt allows solitary confinement for up to six months, although that practice

violates the country’s international human rights obligations. According to the source, by

holding Mr. Hussein in prolonged solitary confinement (89 days), the authorities subjected

him to cruel, inhuman and degrading treatment that may amount to torture. The conditions in

which Mr. Hussein was detained during those 89 days were reportedly extremely harsh and

caused him severe psychological and physical stress. At the date of submission of the present

communication, the source reports that Mr. Hussein has still not been able to see a doctor and

has not received any medication. Moreover, the source claims that Mr. Hussein was forced

to record his three “confessions” under duress. The source concludes that, during his initial

arrest and throughout his time at the Tora Prison, including in prolonged solitary

confinement, Mr. Hussein has been subjected to physical and mental abuse.

Category V

39.

Finally, the source claims that the arrest and detention of Mr. Hussein is a

manifestation of the discrimination currently being perpetrated against him by the authorities

in the light of his protected status as a journalist, in violation of article 19 of the Covenant

and article 19 of the Universal Declaration of Human Rights. Thus, the source submits that

the detention of Mr. Hussein is arbitrary under category V.

Response from the Government

40.

On 13 June 2017, the Working Group transmitted the allegations from the source to

the Government under its regular communication procedure, requesting the Government to

provide detailed information by 14 August 2017 about the current situation of Mr. Hussein

and any comment on the source’s allegations. The Working Group also requested the

Government to clarify the factual and legal grounds justifying his continued detention and to

provide details regarding the conformity of the relevant legal provisions and proceedings

with the international norms on detention. Moreover, the Working Group called upon the

Government to ensure Mr. Hussein’s physical and mental integrity.

41.

In its response dated 8 August 2017, the Government provided the information below.

42.

The Government reaffirms that all detainees in its prisons were persons who had been

convicted by a court or placed in detention by a judicial order. The Government asserts that

the detainees enjoyed rights and safeguards, reflecting international standards, such as the

right to contact and meet in private the lawyer; the right of visitation and communication; the

right to health care; the right to adequate standard of living; and the prohibition of cruel,

inhuman or degrading treatment.

43.

The Government notes with regard to the right to life and liberty and security of person

that it respected all the ratified international treaties and ensured that the national legal

framework was in accordance with those conventions and its provisions, specifically articles

6 and 9 of the Covenant. According to the Government, any violation of those rights was

considered a serious offense resulting in penal sanctions against the perpetrators. The national

legislation took into account the international standards on the criminal justice and fair trial

as enshrined in the provisions of the Constitution and the ratified international treaties.

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44.

According to the Government, Mr. Hussein was being detained in Cairo Prison under

national security case No. 1152 (2016) for his membership of an illegal organization, for

having defamed Egyptian State institutions, notably the Armed Forces, by producing a film

for the Qatari broadcaster Al-Jazeera, and for keeping at his brother’s house the equipment

and material from the Al-Jazeera office in Cairo that had been the subject of the broadcaster’s

$150 million damage claim against Egypt brought for arbitration to the International Centre

for Settlement of Investment Disputes, under the allegation that it had been looted or

confiscated by Egypt during the 2013 protests and coup d’état.

45.

The Government claims that Mr. Hussein enjoyed the right to regular visits by his

family, stating that he had received 31 visits since his arrest, the last one being on 12 July

2017. His lawyer visited him on 21 February and 19 April 2017.

46.

According to a medical examination by a prison doctor, Mr. Hussein did not suffer

from any chronic illnesses but did suffer from a dislocation of the left elbow joint he suffered

after falling in prison in June 2017. When asked, Mr. Hussein denied suffering from any

chronic disease and approved of the good treatment he, like other inmates, received from the

prison authorities.

47.

The Government states that the Ministry of the Interior included an internal unit

mandated to raise awareness on human rights and constitutional safeguards among Ministry

staff, including the police force, through seminars and training, and to receive complaints

about torture or ill-treatment. Rules and regulations were issued to ensure respectful

treatment of prisoners and to prohibit and punish any coercive measures as criminal, civil

and administrative offences.

48.

The Government maintains that it guaranteed the freedom of opinion and expression

for everyone without any censorship or criminalization provided that it was exercised in

accordance with articles 65-74 and 211-213 of the 2014 Constitution and Law No. 96 (1996)

on regulating journalism and its amendments.

49.

The Government concludes that Mr. Hussein’s detention was sustained by a court

order and that he enjoyed all of his rights enshrined in the Constitution and ratified

international treaties. He had committed crimes punishable under the law, and all the

measures taken against him were in accordance with the law. There was no legal or factual

basis for the allegations in the communication.

Further comments from the source

50.

The response from the Government was transmitted to the source for its further

comments on 15 August 2017. In its response of 13 November 2017, the source reports that

Mr. Hussein remained arbitrarily deprived of his liberty at the notorious Tora Prison in Cairo.

His arbitrary detention had lasted more than 300 days and continued to be renewed.

51.

According to the source, the Government failed to demonstrate how any of the

“guarantees and rights” that supposedly exist within the domestic legal framework were in

fact applied in practice with respect to the case of Mr. Hussein, let alone in the country more

generally. Specifically, the Government failed to demonstrate how the existence of a “section

for human rights” within the Ministry of the Interior ensured that human rights were

respected, protected or fulfilled in practice, both in general and in the case of Mr. Hussein.

52.

The source states that, despite the Government’s general, unsubstantiated assertions,

the truth remains that Mr. Hussein’s rights with respect to his arbitrary detention have been

routinely and continually ignored and violated, including the following:

(a)

The authorities failed to provide an arrest warrant to Mr. Hussein upon his

arrest;

(b)

Mr. Hussein was not told why he was being arrested before he was coerced

into recording the false confessions;

(c)

To date, despite numerous filings and requests, the Government has failed to

provide Mr. Hussein’s attorney with access to the full case file, failing even to respond or

given reason for this denial and violation of Mr. Hussein’s rights under the Constitution and

international law;

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(d)

The courts continue to deny Mr. Hussein and his attorney any meaningful

opportunity to appeal his detention;

(e)

The Government has failed to bring him promptly before a judge and for over

300 days has failed to try him without undue delay;

(f)

Mr. Hussein was held in prolonged solitary confinement from 23 December

2016 to 20 March 2017 (89 days), with only sporadic interaction with the outside world or

the ability to leave his cell.

53.

According to the source, the Government failed to address the petitioner’s evidence

and arguments demonstrating that Mr. Hussein had been targeted, mistreated and arbitrarily

detained for exercising his fundamental right to freedom of expression and opinion, and his

right to freedom of association, as a journalist and an employee of Al-Jazeera. In fact, during

the same period that the Government was responding to the Working Group, it was also

calling on the Government of Qatar to shut down the Al-Jazeera network. The Office of the

United Nations High Commissioner for Human Rights called the move “extraordinary,

unprecedented and clearly unreasonable”, and “an unacceptable attack on the right to

freedom of expression and opinion”.1

54.

The source concludes that Mr. Hussein’s arrest and continued detention violate:

(a)

The right to be free from arbitrary detention;

(b)

The right to freedom of association and expression;

(c)

The right to due process, including the right to be brought promptly before a

judge, the right to appeal the lawfulness of detention, the right to prepare an adequate defence,

the right to be presumed innocent before guilty and the right to be equal before the courts;

(d)

The right to dignity and the right to be free from torture and cruel, inhuman or

degrading treatment or punishment.

55.

The source adds that Mr. Hussein’s medical condition, including the physical and

psychological well-being, remains of grave concern. On 13 June 2017, Mr. Hussein slipped

and broke his elbow inside Tora Prison, where he is being detained arbitrarily. Mr. Hussein

did not receive medical attention for his injury for 72 hours. When he was finally allowed to

see a State-appointed doctor in the detention facility, the doctor placed Mr. Hussein’s arm in

a cast. The cast was poorly administered and his wound became infected. Mr. Hussein’s

attorney filed a request with the warden of the detention facility to allow him to be taken to

a private hospital at his own expense.

56.

This request was raised again at Mr. Hussein’s detention renewal hearing, on 22 June

2017, but went unanswered. On 17 July 2017, Mr. Hussein was taken to a hospital and

allowed to undergo x-rays, but was denied the necessary medical procedure to change the

poorly administered cast or address the infection of his wound. Subsequently, Mr. Hussein’s

attorney filed a complaint to the Public Prosecutor on 30 July 2017 regarding the delay in

providing Mr. Hussein with the necessary medical treatment. In the complaint, the attorney

requested that the Public Prosecutor investigate the delay and inspect the situation with the

warden and detention facility. He also reiterated his request that Mr. Hussein be taken to a

private hospital to receive immediate medical treatment at his own expense. That request

remains unanswered to date. With each day passing, Mr. Hussein risks further permanent

damage to his arm, or even its amputation.

Discussion

57.

The Working Group thanks the source and the Government for their engagement and

for their submissions in relation to Mr. Hussein’s detention.

58.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

1 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21818&LangID=E.

A/HRC/WGAD/2017/83

10

understood to rest upon the Government if it wishes to refute the allegations (see

A/HRC/19/57, para. 68).

59.

The Working Group recalls that, where it is alleged that a person has not been afforded

by a public authority certain procedural guarantees to which he or she was entitled, the burden

of proof should rest with the public authority, because the latter is in a better position to

demonstrate that it has followed the appropriate procedures and applied the guarantees

required by law.2

60.

The Working Group considers that it is entitled to assess the proceedings of a court

and the law itself to determine whether they meet international standards.3 However, the

Working Group reiterates that it has consistently refrained from taking the place of the

national judicial authorities or acting as a kind of supranational tribunal when it is urged to

review the application of national law by the judiciary.4

61.

The Working Group reiterates that it applies a heightened standard of review in cases

where the freedom of expression and opinion is restricted or where human rights defenders

are involved. 5 Mr. Hussein’s role as a journalist of an international broadcaster whose

operation in Egypt has been banned by the Government for broadcasting alleged false news,

requires the Working Group to undertake that kind of strict scrutiny.

Category I

62.

The Working Group will examine the relevant categories applicable to its

consideration of this case, including category I.

63.

The Working Group notes that, on 19 December 2016, Mr. Hussein was initially

detained at Cairo Airport and questioned for more than 15 hours without access to his lawyer

before being released, with his passport confiscated. The Working Group considers that any

detention of an individual at a police station — even to perform a brief identity check —

amounts to a deprivation of liberty. The Working Group adds that persons deprived of their

liberty are entitled to the right to legal assistance at all times, which is inherent in the right to

liberty and security of person and the right to a fair and public hearing by a competent,

independent and impartial tribunal, as established by law under articles 3 and 9 of the

Universal Declaration of Human Rights and articles 9 (1) and 14 (1) of the Covenant.6

64.

The Working Group further observes that the Government has not provided the legal

basis for either Mr. Hussein’s deprivation of liberty lasting over 15 hours or the confiscation

of his passport, which infringes upon his right to freedom of movement in violation of articles

3, 9 and 13 (2) of the Universal Declaration of Human Rights and articles 9 (1) and 12 (2)

and (4) of the Covenant.7

65.

On 22 December 2016, Mr. Hussein was again arrested without a warrant outside his

home in Giza. He was held incommunicado for over 12 hours and continues to be held in

2 See Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits,

Judgment, I.C.J. Reports 2010, para. 55; and opinions No. 59/2016, para. 61; and No. 41/2013, para.

27.

3 See opinion No. 33/2015, para. 80.

4 See opinions Nos. 63/2017, para. 45; 59/2016, para. 60; 12/2007, para. 18; 40/2005, para. 22;

10/2002, para. 18.

5 See opinions Nos. 57/2017, para. 46; 38/2017, para. 95; 62/2012, para. 39; 54/2012, para. 29;

64/2011, para. 20. Domestic authorities and international supervisory bodies should apply the

heightened standard of review of government action especially when there are claims of a pattern of

harassment. See opinion No. 39/2012, para. 45. See also Declaration on the Right and Responsibility

of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human

Rights and Fundamental Freedoms, article 9 (3).

6 See also principle 9 of the United Nations Basic Principles and Guidelines on Remedies and

Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court,

and principle 18 (3) of the Body of Principles. See articles 6 and 7 of the African Charter on Human

and Peoples’ Rights and articles 12, 13, 14, 15 and 16 of the Arab Charter on Human Rights.

7 See also articles 6 and 12 (2) of the African Charter on Human and Peoples’ Rights and articles 14 (1)

and (2) and 27 of the Arab Charter on Human Rights.

A/HRC/WGAD/2017/83

11

custody to date, awaiting trial. Any deprivation of liberty without a valid arrest warrant issued

by a competent, independent and impartial judicial authority is arbitrary and lacks any legal

basis, in violation of articles 3 and 9 of the Universal Declaration of Human Rights and article

9 (1) of the Covenant.8

66.

The failure at the time of arrest to inform Mr. Hussein of the reasons for his arrest and

of his rights and to inform him promptly of any charges against him further violated articles

3 and 9 of the Universal Declaration of Human Rights, articles 9 (2) and 14 (3) (a) of the

Covenant, principles 10 and 13 of the Body of Principles and article 54 of the Constitution.

67.

The Working Group notes with concern that Mr. Hussein’s incommunicado detention

effectively nullified his right to recognition everywhere as a person before the law, as

enshrined under article 6 of the Universal Declaration of Human Rights and article 16 of the

Covenant.9 It also nullified his right to be brought promptly before a judge or other officer

authorized by law to exercise judicial power, as established under article 9 (3) of the

Covenant, until his appearance before the Homeland Security Prosecution on 4 January

2017,10 and his right to challenge the lawfulness of his detention before a court, as established

under article 9 (4) of the Covenant.11

68.

The Working Group further notes that article 134 of the Criminal Procedure Code

provides for overly broad and vague grounds for pretrial detention, such as the catch-all

“harming national security or the public order”. The Working Group notes the Human Rights

Committee’s recommendation that legislation enabling any police officer to arrest persons

without a warrant in a large number of circumstances is to be confined so as to bring it into

conformity with article 9 (1) of the Covenant (see CCPR/CO/70/TTO, para. 16). Article 134

of the Criminal Procedure Code does not establish a sufficient legal basis for deprivation of

liberty for the purpose of article 9 (1) of the Covenant.

69.

Given the above observations, the Working Group determines that no legal basis has

been invoked for Mr. Hussein’s 15-hour interrogation on 19 December 2016 and his

continuous detention from 22 December 2016 including his initial 12-hour incommunicado

custody, is in violation of articles 3, 6, 9 and 13 of the Universal Declaration of Human Rights

and articles 9, 12 and 16 of the Covenant, falling within category I.

Category II

70.

The Working Group recalls that holding and expressing opinions, including those that

are not in accordance with official government policy, are protected by article 19 of the

Universal Declaration of Human Rights and article 19 of the Covenant.12 The Government

must respect, protect and fulfil the right to freedom of opinion and expression even if the

rights-holder is not to its liking under the peremptory norms (jus cogens) of customary

international law.

71.

According to the Human Rights Committee, States parties should not prohibit

criticism of institutions, such as the army or the administration, and the penalization of a

8 See also principles 2 and 4 of the Body of Principles. The Working Group also notes that the

Government has made no claims that Mr. Hussein’s arrest was a case of in flagrante delicto, which is

the only permissible exception to the requirement of judicial warrant under article 54 of the

Constitution and article 40 of the Criminal Procedure Code. The lack of plausible legal basis for arrest

under domestic law constitutes an additional violation of articles 3 and 9 of the Universal Declaration

of Human Rights and article 9 (1) of the Covenant as well as article 6 of the Charter on Human and

Peoples’ Rights and article 14 (1) of the Arab Charter on Human Rights.

9 See opinion No. 63/2017, para. 67. See also article 5 of the African Charter on Human and Peoples’

Rights and article 22 of the Arab Charter on Human Rights.

10 See also principle 11 (1) of the Body of Principles; and Human Rights Committee general comment

No. 34 (2011) on the freedoms of opinion and expression, para. 33. The Working Group notes that

article 54 of the Constitution stipulates a stricter 24-hour limitation.

11 See also principle 11 (3) of the Body of Principles and article 14 (5) and (6) of the Arab Charter on

Human Rights.

12 See also article 9 of the African Charter on Human and Peoples’ Rights and article 32 of the Arab

Charter on Human Rights.

A/HRC/WGAD/2017/83

12

media outlet, publisher or journalist solely for being critical of the Government or the

political social system espoused by the Government can never be considered to be a necessary

restriction of freedom of expression. 13 The Special Rapporteur on the promotion and

protection of the right to freedom of opinion and expression has stated that the right to

freedom of expression includes expression of views and opinions that offend, shock or

disturb.14

72.

The Working Group recalls that States parties should ensure that legislative and

administrative frameworks for the regulation of the mass media are consistent with the

provisions of article 19 (3) of the Covenant, which only permit restrictions upon the freedom

of expression that are provided by law and are necessary (a) for respect of the rights or

reputations of others; and (b) for the protection of national security or of public order (ordre

public), or of public health or morals.15

73.

It is ironic that Mr. Hussein has been accused of and held in custody awaiting trial for

the production of the Al-Jazeera documentary entitled “Al-Asaker”, which exposed the abuse

of conscript soldiers in the armed forces that, in all likelihood, he took no part in. Even if he

did, it is unacceptable to charge such a routine report with incitement against State institutions

or broadcasting false news with the aim of spreading chaos. Mr. Hussein’s detention for his

alleged exercise of his right to freedom of expression under article 19 of the Universal

Declaration of Human Rights and article 19 of the Covenant serves no legitimate aim in a

democratic society.

74.

It also appears that Mr. Hussein has been detained as much for his employment by the

banned Al-Jazeera network as for any specific act such as the production of “Al-Asaker”.

While “associations” for the purpose of the “freedom of association” in article 20 of the

Universal Declaration of Human Rights and article 22 of the Covenant16 usually refer to trade

unions, non-governmental organizations or private businesses, it is natural to include

international broadcasters such as Al-Jazeera.17 Furthermore, Mr. Hussein enjoys the right to

choose freely to work for Al-Jazeera under article 23 of the Universal Declaration of Human

Rights and article 6 of the International Covenant on Economic, Social and Cultural Rights.18

Mr. Hussein has also been deprived of his liberty for the exercise of those rights.

75.

The Working Group is of the opinion that Mr. Hussein’s deprivation of liberty is in

violation of articles 19, 20 and 23 of the Universal Declaration and articles 19 and 22 of the

Covenant and falls within category II.

Category III

76.

The Working Group has also considered whether violations of the right to a fair trial

and due process suffered by Mr. Hussein were grave enough to give his deprivation of liberty

an arbitrary character falling within category III. The Government has failed to dispute a

number of serious violations alleged by the source.

77.

The Government neither tried Mr. Hussein within a reasonable time nor released him,

in violation of article 11 (1) of the Universal Declaration of Human Rights and articles 9 (3)

and 14 (3) (c) of the Covenant.19 While the reasonableness of any delay in bringing the case

to trial has to be assessed in the circumstances of each case, taking into account the

13 Human Rights Committee, general comment No. 34, paras. 38 and 42. See also 27-2(A) KCCR 700,

2013 Hun-Ga 20, 21 October 2015 (Republic of Korea).

14 See A/HRC/17/27, para. 37. See also Human Rights Council resolution 12/16, para. 5 (p) (i)).

15 Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and

expression, para. 39.

16 See also article 10 of the African Charter on Human and Peoples’ Rights and article 24 (5) and (6) of

the Arab Charter on Human Rights.

17 See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR commentary (Kehl;

Arlington: N.P. Engel, 1993), p. 386.

18 See also article 15 of the African Charter on Human and Peoples’ Rights and article 34 of the Arab

Charter on Human Rights.

19 See also article 7 (1) (d) of the African Charter on Human and Peoples’ Rights and article 14 (5) of

the Arab Charter on Human Rights.

A/HRC/WGAD/2017/83

13

complexity of the case, the conduct of the accused during the proceeding and the manner in

which the matter was dealt with by the executive and judicial authorities, the Working Group

considers that a delay exceeding six months from the time of arrest to the end of trial must

be exceptional and that the burden lies with the Government to prove its legitimacy, necessity

and proportionality. In this instance, the Government failed to provide any justification for

Mr. Hussein’s pretrial detention that has already lasted almost a full year with no sign that

his criminal trial will take place soon.

78.

Furthermore, the Government did not respect Mr. Hussein’s right to legal assistance

at all times — which is inherent in the right to liberty and security of person — and his right

to a fair and public hearing by a competent, independent and impartial tribunal established

by law, in accordance with articles 3 and 9 of the Universal Declaration of Human Rights

and articles 9 (1) and 14 (1) of the Covenant.20 Mr. Hussein was first allowed to meet with

his lawyer briefly in the presence of the prison warden on 19 April 2017, almost 4 months

after his arrest on 22 December 2016. The Working Group considers that the delay violated

Mr. Hussein’s right to be brought promptly before a judge and to challenge the lawfulness of

detention before a court without delay, which entails the right to visitation and confidential

communication with legal counsel beforehand in order to have adequate time and facilities

for the preparation of his defence as in any other judicial process. The Government then

inexplicably failed to inform Mr. Hussein’s lawyers about the acceptance of the appeal

against his third 45-day pretrial detention order, thereby denying him the right to be

represented by his legal counsel at the appeal hearing on 16 May 2017. The Working Group

emphasizes that the judicial character of the habeas corpus proceedings entitles the petitioner

to the due process and fair trial rights provided for in article 14 of the Covenant.

79.

The Government further failed to respect Mr. Hussein’s presumption of innocence in

violation of article 11 (1) of the Universal Declaration of Human Rights, articles 10 (1) and

14 (2) of the Covenant, and principle 36 of the Body of Principles.21 In broadcasting his

coerced confession before his trial — which has yet to even commence — the Government

violated Mr. Hussein’s right to be presumed innocent and to have his human dignity

respected. The Working Group recalls that all public officials have a duty to refrain from

prejudging the outcome of a trial, for example by abstaining from making public statements

affirming the guilt of the accused.22 While the presumption of innocence needs to be balanced

with the public’s right to know in a democratic society, the latter must be proportionate to

the former.23 The near-automatic extension of Mr. Hussein’s pretrial detention by courts with

no regard for his due process and fair trial rights, and his confinement with convicted felons

in Tora prison, are also symptomatic of the violation of the presumption of innocence.

80.

Throughout Mr. Hussein’s detention and his legal challenges against it, the

Government has denied his right to have adequate time and facilities for the preparation of

his defence and to communicate with counsel, in violation of article 14 (3) (b) and (d) of the

Covenant and principles 17 and 18 of the Body of Principles. Not only were Mr. Hussein’s

lawyers prevented from meeting his clients until 19 April 2017, but a prison warden was

present during their meeting. The right to communicate with counsel requires that the accused

be granted prompt access to counsel and that counsel should be able to meet their clients in

private and to communicate with the accused in conditions that fully respect the

confidentiality of their communications.24 Repeated requests to gain access to case files by

Mr. Hussein’s attorneys also went unanswered. For the purpose of the right to a fair trial,

“adequate facilities” must include access to documents and other evidence, and that access

20 See also articles 6 and 7 of the African Charter on Human and Peoples’ Rights and articles 12, 13, 14,

15 and 16 of the Arab Charter on Human Rights.

21 See also article 96 of the Constitution.

22 Opinion No. 33/2017, para. 86 (e). See also, Human Rights Committee general comment No. 35

(2014) on liberty and security of person, para. 30; and Gridin v. the Russian Federation

(CCPR/C/69/D/770/1997), paras. 3.5 and 8.3.

23 See Bundesverfassungsgericht judgment, BVerfGE 35, 202–245, 5 June 1973 (Germany) and 26-1(A)

KCCR 534, 2012 Hun-Ma 652, 27 March 2014 (Republic of Korea).

24 See Human Rights Committee general comment No. 32 (2007) on right to equality before courts and

tribunals and to fair trial, para. 34.

A/HRC/WGAD/2017/83

14

must include all materials that the prosecution plans to offer in court against the accused or

that are exculpatory.25 The right to legal representation applies at all stages of the criminal

process and the accused must be informed of that right from the onset of investigation, as

implied in articles 3 and 9 of the Universal Declaration of Human Rights and article 9 (1) of

the Covenant and as set out explicitly in principle 17 (1) of the Body of Principles.

81.

The Working Group is of the view that Mr. Hussein’s right to a fair and public hearing

by a competent, independent and impartial tribunal established by law, in accordance with

article 10 of the Universal Declaration of Human Rights and article 14 (1) of the Covenant,

would appear to have been prejudiced. The court’s apparent failure to order the prosecution

to turn over Mr. Hussein’s case files to his lawyers, to enjoin the authorities to end his 89-

day solitary confinement and other ill-treatments and to allow reasonable access to his family

and attorneys — as well as its perfunctory extension of his pretrial detention periods and

inaction in the face of the absence of his counsel at the hearing on 16 May 2017 — raise

serious doubts about the fairness of the proceedings.

82.

Mr. Hussein’s ordeals at the notorious Tora Prison also amounted to cruel, inhuman

and degrading treatment, in violation of article 5 of the Universal Declaration of Human

Rights, articles 7 and 10 of the Covenant and Principle 6 of the Body of Principles, in addition

to the relevant provisions of the Convention against Torture. With regard to Mr. Hussein’s

89-day solitary confinement, the Working Group refers to Rule 45 (1) of the United Nations

Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), which

stipulates that solitary confinement shall be used only in exceptional cases as a last resort, for

as short a time as possible and subject to independent review, and only pursuant to the

authorization by a competent authority. Rule 44 refers to prolonged solitary confinement as

solitary confinement for a time period in excess of 15 consecutive days. The Human Rights

Committee has noted that prolonged solitary confinement of the detained or imprisoned

person may amount to acts prohibited by article 7.26 The Working Group notes that the

authorities have failed to treat Mr. Hussein’s broken elbow properly since 13 June 2017, with

the growing risk that he might need to have the arm amputated, as well as the rashes, chest

pain, shortness of breath and other severe physical and psychological stress that Mr. Hussein

has suffered during detention.

83.

In the light of the foregoing, the Working Group concludes that the non-observance

of the international norms relating to the right to a fair trial is of such gravity as to give Mr.

Hussein’s deprivation of liberty an arbitrary character, falling under category III.

Category V

84.

The Working Group will now examine whether Mr. Hussein’s deprivation of liberty

constitutes illegal discrimination under international law for the purpose of category V.

85.

As noted above, it seems improbable that Mr. Hussein was in fact involved in the

production of the Al-Jazeera documentary “Al-Asaker”. Rather, Mr. Hussein’s prolonged

detention without trial appears to be part of the Government’s widespread crackdown on the

independent media and bloggers for political opinion at odds with its own.27

86.

Al-Jazeera in particular has been targeted by the Government for its alleged false

news, as the arrest and detention of its journalists in the past demonstrate.28 Having expelled

Al-Jazeera from the country, the Government is currently contesting its arbitration claims for

the alleged destruction of its media business in Egypt, with the arrest and detention of its

employees, attacks on its facilities, interference with its transmissions and broadcasts, closure

25 Ibid., para. 33.

26 Human Rights Committee, general comment No. 20 (1992) on prohibition of torture, or other cruel,

inhuman or degrading treatment or punishment, para. 6.

27 See https://rsf.org/en/news/egyptian-regime-takes-over-four-independent-media; and

www.amnesty.org/en/latest/news/2017/09/egyptian-blogger-among-24-facing-jail-terms-for-

insulting-the-judiciary.

28 See www.amnesty.org/en/latest/news/2015/08/egypt-guilty-verdict-against-al-jazeera-journalists-

affront-to-justice.

A/HRC/WGAD/2017/83

15

of its offices, cancellation of the claimant’s broadcasting licence and compulsory liquidation

of its local branch during and after the 2013 protests and coup d’état.29

87.

It is difficult for the Working Group not to conclude that discrimination by the

Government on the basis of political opinion — or, more precisely, journalistic affiliation to

an international broadcaster blacklisted by the Government for its political opinion — that

aims at ignoring the equality of human beings is the only plausible explanation for Mr.

Hussein’s arrest and detention without trial. The Working Group therefore concludes that

Mr. Hussein has been arbitrarily deprived of his liberty because of his guilt by association

with Al-Jazeera as part of the Government’s collective punishment for Al-Jazeera’s

purported political opinion, in violation of articles 2 and 7 of the Universal Declaration of

Human Rights and articles 2 (1) and 26 of the Covenant, and falls within category V.30

88.

The Working Group also notes that the arrest and detention of Mr. Hussein’s two

brothers, the raiding of his sister’s home without a warrant and the suspension of his close

relatives from their positions at the State television station may be considered as collective

punishment for their guilt by association with Mr. Hussein, and lacking any legal basis. Not

only do such deprivations of liberty and other collective acts of reprisal violate international

law that protects individuals from discrimination on the basis of birth and family ties, they

also qualify as flagrant violations of the right: (a) to liberty and security of person, as

enshrined in articles 3 and 9 of the Universal Declaration of Human Rights and article 9 of

the Covenant; and to freedom from arbitrary or unlawful interference with the family and

home, as enshrined in article 12 of the Universal Declaration of Human Rights and article 17

of the Covenant.

Homeland Security Agency (Qita’ Al-Amn al-Watani)

89.

The Working Group wishes to express its grave concern about the pattern of arbitrary

detention, torture and enforced disappearance perpetrated by the Ministry of the Interior

Homeland Security Agency (Qita’ Al-Amn al-Watani). The Working Group recalls that,

under certain circumstances, widespread or systematic imprisonment or other severe

deprivation of physical liberty in violation of fundamental rules of international law may

constitute crimes against humanity.31

90.

The duty to comply with international human rights standards that are peremptory and

erga omnes norms, such as the prohibition of arbitrary detention, rests on all bodies and

representatives of the State, all officials, including judges, prosecutors, police and security

officers, and prison officers with relevant responsibilities, and all other natural and legal

persons.32

91.

The Working Group would again welcome the opportunity to conduct a country visit

to Egypt, in accordance with the request it made on 25 November 2016, so that it can engage

with the Government constructively and offer assistance in addressing its serious concerns

relating to the arbitrary deprivation of liberty.33 The Working Group notes in particular the

recent cases considered by the Working Group.34

Disposition

92.

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

29 See https://icsid.worldbank.org/en/Pages/cases/casedetail.aspx?CaseNo=ARB/16/1; and

http://investmentpolicyhub.unctad.org/ISDS/Details/700.

30 See also articles 2 and 3 of the African Charter on Human and Peoples’ Rights, and articles 3 and 11

of the Arab Charter on Human Rights.

31 See article 7 (1) (e) of the Rome Statute of the International Criminal Court. See also opinions Nos.

44/2016, para. 37; 32/2017, para. 40; 33/2017, para. 102; 36/2017, para. 110; 51/2017, para. 57; and

56/2017, para. 72.

32 See opinions Nos. 22/2014, para. 25; 48/2013, para. 14; 36/2013, paras. 34 and 36; 35/2013, paras. 35

and 37; 34/2013 paras. 33 and 35; 9/2013, para. 40; 60/2012; para. 21; 50/2012, para. 27; and

47/2012, paras. 19 and 22.

33 See opinion No. 60/2016, para. 27.

34 See opinion No. 60/2016.

A/HRC/WGAD/2017/83

16

The deprivation of liberty of Mahmoud Hussein Gommaa Ali, being in contravention

of articles 2, 3, 5, 6, 7, 9, 10, 11, 12, 13, 19 and 20 of the Universal Declaration of

Human Rights and of articles 2, 7, 9, 10, 12, 14, 16, 17, 19, 20 and 26 of the

International Covenant on Civil and Political Rights, is arbitrary and falls within

categories I, II, III and V.

93.

Consequent upon the opinion rendered, the Working Group requests the Government

of Egypt to take the steps necessary to remedy the situation of Mr. Hussein without delay and

bring it into conformity with the standards and principles set forth in the international norms

on detention, including the Universal Declaration of Human Rights and the International

Covenant on Civil and Political Rights.

94.

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

case, the appropriate remedy would be to release Mr. Hussein immediately and accord him

and his family an enforceable right to compensation and other reparations especially the

reinstatement of his close relatives to their former positions at the State television station, in

accordance with international law.

95.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the case to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment

or punishment, the Special Rapporteur on the independence of judges and lawyers, and the

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

expression.

Follow-up procedure

96.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Hussein has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Hussein;

(c)

Whether an investigation has been conducted into the violation of Mr.

Hussein’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Egypt with its international obligations in line with the

present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

97.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example, through a visit by the Working

Group.

98.

The Working Group requests the source and the Government to provide the above

information within six months of the date of the transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action would

enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

99.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and requested them to take account of its views and,

where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.35

[Adopted on 22 November 2017]

35 See Human Rights Council resolution 33/30, paras. 3 and 7.