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.18-10841(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-first session, 17–26 April 2018
Opinion No. 26/2018 concerning Ola Yusuf al-Qaradawi and Hosam al-
Din Khalaf (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 the mandate of the
Commission. The Council most recently extended the mandate of the Working Group 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 16 January 2018 the
Working Group transmitted to the Government of Egypt a communication concerning Ola
Yusuf al-Qaradawi and Hosam al-Din Khalaf. The Government replied to the
communication on 27 March 2018. 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/2018/26
General Assembly
Distr.: General
2 July 2018
Original: English
A/HRC/WGAD/2018/26
2
Submissions
Communication from the source
4.
Ola Yusuf al-Qaradawi, age 56, is a Qatari citizen of Egyptian origin and Hosam al-
Din Khalaf, age 58, is an Egyptian citizen. They are also legal permanent residents of the
United States of America and have several immediate family members who are citizens of
the United States. They are a married couple and have three children. Ms. al-Qaradawi is
the daughter of well-known Islamic scholar, Sheikh Yusuf al-Qaradawi, and previously was
an administrative employee at the Embassy of Qatar in Egypt. Mr. Khalaf is an engineer
who worked in the construction business and was previously a volunteer administrator for
the Al-Wasat party, an Islamic political party that remains legal in Egypt. Reportedly, Mr.
Khalaf had been previously detained in Egypt from 2014 to 2016 on the unofficial
accusation of being part of the Muslim Brotherhood, which he had strongly denied. He was
later released without charge or trial.
Arrest and detention
5.
According to the source, Ms. al-Qaradawi and Mr. Khalaf were arrested on 30 June
2017, by agents from the Burg al-Arab Division of the State security agency, a branch of
the Ministry of the Interior, at the family’s vacation home in Ramses Village, Alexandria,
on the north coast of Egypt. The source states that no arrest warrant was presented and no
search warrant for the home was provided. The couple later learned that the agents had
detained them for questioning in relation to a violation of an asset freeze, because they were
moving furniture out of their vacation home. According to the source, the agents claimed
that the home belonged to Ms. al-Qaradawi’s father, Sheikh Yusuf al-Qaradawi, but in fact
he did not own the home.
6.
On 2 July 2017, Ms. al-Qaradawi and Mr. Khalaf were brought to the prosecutor’s
office of the State security agency, where they were informally told that they were under
investigation. They were also told that they had been added to Case No. 316, a pre-existing
mass investigation that appears to include over 250 people and involves vague allegations
related to terrorism. However, they were not informed of any specific allegations against
them.
7.
After that meeting, Ms. al-Qaradawi and Mr. Khalaf were reportedly transported to
prisons near Cairo that are under the control of the Ministry of the Interior. Ms. al-
Qaradawi was taken to Al-Qanater prison and Mr. Khalaf was taken to Tora prison. The
source informs the Working Group that, as they have not been charged with any crime, Ms.
al-Qaradawi and Mr. Khalaf are currently being detained pursuant to temporary orders,
which purport to authorize their detention.
8.
On 3 July 2017, State-run media in Egypt reported that Ms. Al-Qaradawi and Mr.
Khalaf had been arrested on the basis of allegations of being members of the Muslim
Brotherhood and harming national unity and peace. The source emphasizes that both deny
those unofficial allegations and that if Mr. Khalaf had any connection to the Muslim
Brotherhood he would likely have faced charges during his prior detention, which was
based on a similar accusation.
9.
On 17 August 2017, the media reported that the couple’s assets, along with those of
five of Ms. al-Qaradawi’s siblings, had been frozen, on the basis of allegations of affiliation
with the Muslim Brotherhood and terrorist activities. The source emphasizes that the tactic
of freezing assets has been used regularly by the Government against thousands of
Egyptians over the past several years. The source asserts that, in the present case, this has
led to Ms. al-Qaradawi and Mr. Khalaf being viewed as guilty by association without any
evidence having been presented or any opportunity given to them to refute the allegations.
10.
Despite various reports published by State-run media about charges allegedly having
been filed against the couple, no copy of any arrest warrant, search warrant or indictment
has been provided to Ms. al-Qaradawi, Mr. Khalaf or their lawyers.
11.
According to the source, under Egyptian law, State security prosecutors may order
15 days of preventative detention for individuals suspected of committing felonies. This
A/HRC/WGAD/2018/26
3
period of detention can be renewed by the prosecutor for up to five months, in 15-day
increments. To hold the individual past the five months, the prosecutor must submit the
case to a relevant judge, who can either release the accused or renew the detention period
for up to 45 days at a time.
12.
The source informs the Working Group that Ms. al-Qaradawi and Mr. Khalaf had
their temporary detention orders renewed nine times before being brought before a judge.
During each of the brief renewal meetings, they were both able to speak with their lawyers,
but not in private, for two to three minutes, which is how the conditions of their detention
are known.
13.
On 26 November 2017, Ms. al-Qaradawi and Mr. Khalaf were presented to a judge
in Cairo Criminal Court who, under Egyptian law, will now see them every 45 days to
renew their detention. They were reportedly held in glass cages during their brief
appearances before the court and denied the ability to consult counsel.
14.
On 4 January 2018, the judge renewed Ms. al-Qaradawi’s detention order for a
second 45-day period. On 8 January 2018, he renewed Mr. Khalaf’s detention order for a
second 45-day period. The source notes that a United States consular official who sought to
observe both of these sessions was denied access to the courtroom.
Conditions of detention
15.
The source alleges that, while they have been held in detention for more than six
months, Ms. al-Qaradawi and Mr. Khalaf, in violation of Egyptian laws and regulations and
international law, have consistently been denied their right to have contact with their family
and access to counsel, and have been subjected to cruel, inhuman or degrading treatment
that may amount to torture. Both have been held in incommunicado solitary confinement 24
hours per day, and allowed only five minutes per day to go to the bathroom. Their cells are
dark, small, lack natural light and ventilation and have no beds or toilets. Unlike other
prisoners, they are not permitted to regularly purchase food and water from the canteen or
receive food and clothing from their family.
16.
According to the source, Ms. al-Qaradawi, in particular, seems to have been singled
out for disparate treatment. While her family has tried to visit her several times, they were,
every time, the only ones to be turned away and were told that she was not eligible for
family visits. Ms. al-Qaradawi was also denied consular visits from Qatari officials.
According to her lawyers, who have seen her only briefly during the detention renewal
sessions, Ms. al-Qaradawi has lost a significant amount of weight and appears very weak.
She became very ill and was brought to the prison clinic but it is unclear whether she
received any medication or treatment. In addition, during the renewal of her detention on 4
January 2018, Ms. al-Qaradawi had only about two minutes to speak with her counsel. The
source alleges that she has suffered serious physical abuse in the prison. The source notes
that, apparently, the guards sometimes use prisoners to cover their shifts watching the cells.
On several occasions, one prisoner, who has been detained for four years and appears
mentally unstable, has hit Ms. al-Qaradawi, pushed her to the ground and handled her
aggressively. Ms. al-Qaradawi’s repeated complaints to prison authorities have reportedly
been ignored.
17.
Mr. Khalaf, who is being held in Tora prison, one of the most notorious prisons in
Egypt, has been denied access to see a doctor for reported pain in his eyes. A second
request for a medical check-up was submitted to the prosecution but, reportedly, no action
has been taken thus far.
18.
The source reports that, as a result of these conditions, Ms. al-Qaradawi and Mr.
Khalaf are suffering severe mental and emotional stress. The extent of their suffering is,
however, unknown as they are not permitted any contact with the outside world. Their
respective ages, 56 and 58 years old, make Ms. al-Qaradawi and Mr. Khalaf particularly
vulnerable to cruel, inhuman and degrading treatment and torture. The source notes that,
without intervention, it is unclear how much longer they will be able to withstand the
physical and psychological distress imposed by prison authorities.
A/HRC/WGAD/2018/26
4
19.
The source emphasizes that the general situation for human rights in Egypt is dire,
noting independent reports that in the country there may be tens of thousands of arbitrarily
detained people, who are often subjected to years of pretrial detention with no charges or
trial and under harsh prison conditions. The source claims that the Government has a well-
documented practice of arresting real or purported political opponents and refusing them
access to lawyers and family and to evidence that could be challenged in a court.
Analysis of violations
20.
In the light of the foregoing, the source submits that Ms. al-Qaradawi and Mr.
Khalaf have been denied fair trial guarantees and that their deprivation of liberty is arbitrary
under category III of the categories applied by the Working Group.
Arrest without a warrant
21.
According to the source, under the Egyptian Constitution, citizens can be arrested
only on the basis of a judicial warrant, except in extreme cases. However, according to the
source, Ms. al-Qaradawi and Mr. Khalaf were not arrested pursuant to an arrest warrant.
When the State security agents arrived at the vacation home on 30 June 2017, they did not
show any type of warrant, nor did they inform the couple that they were under arrest.
Similarly, the search of the vacation home was illegal, as Egyptian law requires that
authorities have a valid and specific search warrant to enter private property. The agents did
not show any search warrant before they searched the vacation home or the couple’s
permanent residence in Cairo and seized personal property.
No reason given for arrest and no formal charges laid
22.
The source reports that, since their arrest on 30 June 2017, Ms. al-Qaradawi and Mr.
Khalaf have not been formally charged with any crime. At the time of the arrest, no reason
for the arrest was given to Ms. al-Qaradawi, Mr. Khalaf, their family or their lawyers. To
date they have not received any official explanation for their arrest and continued detention.
23.
Ms. al-Qaradawi and Mr. Khalaf’s lawyers have been told informally that the couple
were suspected of “terrorist” activities. However, the source asserts that this claim is
patently false and runs counter to the original reason given for their detention, which was
the removal of furniture that Egyptian authorities believed was a violation of the asset
freeze that had been imposed on the father of Ms. al-Qaradawi.
24.
The source emphasizes that, though public media reports state that Ms. al-Qaradawi
and Mr. Khalaf have been charged, neither they nor their lawyers have ever been presented
with even a single paper in writing asserting what they are suspected of doing, let alone that
they have been charged with a crime.
Extended pretrial detention
25.
The source submits that for almost five months Ms. al-Qaradawi and Mr. Khalaf
have been held in pretrial detention pursuant to multiple 15-day temporary detention orders,
which were issued by the prosecutor and not by a judge. They have not been given any
reason justifying their ongoing pretrial detention, or any opportunity to meaningfully
contest the detention. While their lawyers have attempted to challenge their detention, all
requests have been summarily denied. As such, Ms. al-Qaradawi and Mr. Khalaf have not
been afforded any opportunity for conditional release, and are therefore being detained in
violation of the international law, which bars preventative detention except in exceptional
circumstances.
Incommunicado detention
26.
The source submits that Ms. al-Qaradawi and Mr. Khalaf have been detained
incommunicado since 30 June 2017. There are brief moments every 15 days, when their
detention orders have been renewed, when they see their counsel, but otherwise they are
totally cut off from the outside world.
A/HRC/WGAD/2018/26
5
27.
For the first two days of their detention, their whereabouts were reportedly
completely unknown to their family and lawyers. Since their detention in Al-Qanater and
Tora prisons — as of 2 July 2017 — they have been held in ongoing solitary confinement
and thus prohibited from communicating with their family. No visits or phone calls have
been permitted.
Lack of access to legal counsel
28.
When Ms. al-Qaradawi and Mr. Khalaf were arrested and initially questioned by the
State security agents, their lawyers were not informed and were therefore not present,
which is in direct violation of the Egyptian Constitution. As their detention continues, they
have been denied all visits with their lawyers outside of the brief contact during the
detention renewal sessions. At the sessions, Ms. al-Qaradawi and Mr. Khalaf cannot discuss
any details of their case. Any conversations they have are in the presence of the State
security prosecutor and are therefore not confidential.
Denial of access to all information
29.
Ms. al-Qaradawi, Mr. Khalaf and their counsel have seen no official documents or
evidence from the Government of Egypt explaining the reasons for the couple’s arrest and
detention, or any formal charges against them. As such, Ms. al-Qaradawi and Mr. Khalaf
are completely unable to meaningfully challenge their ongoing temporary detention, and
are unable to even contemplate preparing a defence to any potential charges that may be
levelled against them.
Denial of the presumption of innocence
30.
The source notes that the right to the presumption of innocence is protected in the
Constitution of 2014, which explicitly states in article 96 that an accused person is innocent
until proven guilty in a fair court of law that provides guarantees for the person to defend
himself.
31.
Since the arrests, fabricated statements about the couple’s case, inter alia, those
labelling them as members of the Muslim Brotherhood and as terrorists, have been made
public through the State-run media. Ms. al-Qaradawi and Mr. Khalaf have not been
provided with any opportunity to refute the informal claims. As such, they have effectively
been tried in the court of public opinion without being charged with any crime.
Joint communications by special procedures mandate holders
32.
Ms. al-Qaradawi and Mr. Khalaf have previously been the subject of a joint urgent
appeal (EGY 15/2017) issued on 12 October 2017 by the Working Group on Arbitrary
Detention, the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health and the Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment. The Working Group
acknowledges the reply from the Government of Egypt, received on 21 December 2017.
Response from the Government
33.
On 16 January 2018, the Working Group transmitted the source’s allegations to the
Government under its regular communication procedure, requesting the Government to
provide detailed information by 18 March 2018 concerning the current situation of Ms. al-
Qaradawi and Mr. Khalaf and any comment on the source’s allegations. The Working
Group also requested the Government to clarify the factual and legal grounds justifying
their continued detention and to provide details regarding the conformity of the relevant
legal provisions and proceedings with international law, in particular the norms of
international human rights law, that bind Egypt. Moreover, the Working Group called upon
the Government to ensure Ms. al-Qaradawi and Mr. Khalaf’s physical and mental integrity.
34.
On 8 March 2018, the Government sought an extension of the deadline to submit its
response. In conformity with paragraph 16 of its methods of work, the Working Group
granted an extension for the Government to submit its response by 2 April 2018. The
Government submitted its response to the regular communication on 27 March 2018.
A/HRC/WGAD/2018/26
6
35.
First, the Government notes that it is a party to several international treaties on
human rights, including:
(a)
The International Covenant on Civil and Political Rights, ratified by
Egypt in 1982;
(b)
The Convention on the Elimination of All Forms of Discrimination
against Women, ratified by Egypt in 1982;
(c)
The Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, acceded to by Egypt in 1986;
(d)
The Convention on the Rights of the Child, ratified by Egypt in 1990.
36.
According to the Government, the Constitution affirms a number of rights and
responsibilities, including those set out in human rights frameworks at the local and
international levels, that must be respected, including: the rights to dignity, to personal
liberty and to physical integrity, the independence of the judiciary, freedom of opinion and
the right to fair and impartial trials, as detailed in articles 52, 65, 86 and 94 to 100 of the
Constitution. The Government states that these rights represent a symbol of democracy and
are essential to ensuring full respect for human rights. They are also directly linked to the
response to the incorrectness of the allegations contained in the complaint.
37.
The Government alleges that Ms. al-Qaradawi and Mr. Khalaf’s case was based on
an investigation undertaken by the Homeland Security Agency as recorded in the minutes
of meetings, held on 19 and 26 February 2017, 4 April 2017, 13 and 25 May 2017 and 29
June 2017, on the plot by the senior leaders of the Muslim Brotherhood, including
Mahmoud Ezzat Ibrahim Eissa (Supreme Guide) and Ahmed Ibrahim Munir Mustafa
(Deputy Supreme Guide), to create an armed wing to conduct hostile operations aimed at
the overthrow of the Government and to coordinate with Ansar Bait al-Maqdis (Supporters
of the Holy House) to target Christians.
38.
The Government further alleges that Qatar has backed the conspiracy, providing
monthly payments of more than $30 million, with the accused Yusuf Abdullah Ali al-
Qaradawi acting as the go-between. It alleges that Turkey also provided financial support,
with the accused Hussein Mahmoud al-Qazzaz in charge of coordination. The Government
states that Mohamed Kamal, a senior leader killed by the security forces in October 2016,
was responsible for the creation of armed groups whose members would receive military
training abroad.
39.
According to the Government, Ola Yusuf al-Qaradawi and Hosam al-Din Khalaf
were tasked with delivering instructions from exiled Muslim Brotherhood leaders in Qatar
to their colleagues in Egypt, taking advantage of their position in the Qatari embassy in
Egypt. The Government states that Ms. al-Qaradawi used the vacation home in Ramses
Village to hold organizational meetings with Muslim Brotherhood leaders to deliver
assignments and hand over money, and that the couple kept documents and money in the
vacation home and used a car registered by Mr. Khalaf for the works of the Muslim
Brotherhood.
40.
The Government states that Ms. al-Qaradawi and Mr. Khalaf were arrested and their
residence searched on 1 July 2017 in accordance with the seizure and inspection order
issued by the public prosecution on 30 June 2017, as detailed in case No. 316 of 2017. They
were charged with being members of an illegal terrorist group aimed at disrupting the
Constitution and the law; preventing the State organs and public authorities from executing
their tasks; attacking public and private rights and freedoms; harming national unity and
social peace by means of terrorism; and knowingly providing material aid to a terrorist
group through financial support. The public prosecution initially issued a decision to
imprison them for 15 days pending investigation, and as at the time of writing they
remained in custody.
41.
The Government maintains that the health rights of persons deprived of their liberty
are protected by articles 33 to 37 of Law No. 396 of 1956 concerning the organization of
prisons. All prisons are required to have at least one resident physician for the care of the
A/HRC/WGAD/2018/26
7
inmates. The prisoners who cannot be treated in the prison or who are in critical condition
may be transferred to an outside hospital.
42.
According to the Government, Ms. al-Qaradawi, who is being held in the women’s
section of Al-Qanater prison, was examined by the prison’s doctor, who reported that she
did not have any health issues, and she regularly visits the prison cafeteria, where she spent
600 Egyptian pounds in October. Mr. Khalaf, who is being held in maximum-security
prison No. 2 in Tora, also received a medical examination, which revealed that he was
suffering from early symptoms of cataracts and posterior vitreous detachment. He received
appropriate treatment from the prison medical staff and regularly visits the prison cafeteria,
where he spent 2,000 Egyptian pounds in October. The prison records indicate that neither
have received any visits from their family members since the beginning of their custody.
43.
It is the Government’s view that Ms. al-Qaradawi and Mr. Khalaf have received due
care under the Law concerning the organization of prisons and the prison regulations, in
compliance with article 12 of the International Covenant on Economic, Social and Cultural
Rights. The Government submits that the allegations made by the source are groundless.
44.
Furthermore, the Government contends that the Egyptian legal system affords
sufficient safeguards to those deprived of their liberty in conformity with international
standards, including article 9 of the International Covenant on Civil and Political Rights.
Articles 54 to 56 of the Constitution provide for appropriate guarantees; articles 85 and 86
of the Law concerning the organization of prisons allow judicial supervision of prisons. It is
impossible to state that the conditions of the detainees are poor and that proper living and
health conditions are not provided since the law empowers the judicial authority to take the
steps it deems appropriate to maintain all forms of legal detention.
45.
The Government concludes that all actions taken with regard to Ms. al-Qaradawi
and Mr. Khalaf were in accordance with international standards, the Constitution and
domestic laws. The source’s allegations are without legal or factual grounds.
Further comments from the source
46.
The response from the Government was transmitted to the source on 27 March 2018
for further comment. In its response of 9 April 2018, the source maintains that Ms. al-
Qaradawi and Mr. Khalaf’s arrest and ongoing detention are arbitrary and in violation of
international law, notwithstanding the Government’s claims to the contrary. The source
observes that almost half of the Government’s response discusses unrelated accusations
against senior members of the Muslim Brotherhood, including Ms. al-Qaradawi’s father,
Sheikh Yusuf al-Qaradawi, ascribing guilt by association to Ms. al-Qaradawi and Mr.
Khalaf, and that the Government repeatedly tries to counter specific allegations in the initial
communication with general denials by merely quoting articles of international and
domestic human rights law.
47.
The source provides further information to support its allegations that Ms. al-
Qaradawi and Mr. Khalaf’s detention falls under category III for violating their due process
rights by reason of: (a) arrest without a warrant; (b) failure to provide a reason for arrest
and holding without charge; (c) subjection to extended pretrial detention; (d)
incommunicado detention; (e) denial of access to legal counsel; (f) denial of all access to
information; and (g) violation of the right to the presumption of innocence. The source
states that, while Qatar does not currently have an embassy operating in Egypt, the rights
and interests of its citizens are represented by the embassy of Oman, which has made
numerous requests for visits, transfers, improvement of detention conditions, release and
more information only to face categorical denial.
48.
The source also reinforces its claims that the conditions of detention amount to
cruel, inhuman and degrading treatment on the basis of: (a) abuse and mistreatment with
impunity; (b) denial of appropriate medical care; and (c) prolonged solitary confinement.
A/HRC/WGAD/2018/26
8
Discussion
49.
The Working Group thanks the source and the Government for their extensive
engagement and for their submissions in relation to Ms. al-Qaradawi and Mr. Khalaf’s
detention.
50.
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
understood to rest upon the Government if it wishes to refute the allegations.1
51.
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
52.
The Working Group wishes to reaffirm that the Government has the obligation to
respect, protect and fulfil the right to liberty of person and that any national law allowing
deprivation of liberty should be made and implemented in conformity with the relevant
international standards set forth in the Universal Declaration of Human Rights and other
applicable international or regional instruments.3 Consequently, even if the detention is in
conformity with national legislation, regulations and practices, the Working Group must
assess whether such detention is also consistent with the relevant provisions of international
human rights law. 4 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.5
Category I
53.
The Working Group will consider whether there have been violations under category
I, which concerns deprivation of liberty without invoking any legal basis.
54.
According to the information provided by the source, which the Government has
failed to rebut with credible evidence, Ms. al-Qaradawi and Mr. Khalaf were arrested
without the presentation of warrant. In principle, arrest without a valid warrant must be
considered ipso facto a violation of articles 3 and 9 of the Universal Declaration of Human
Rights and article 9 (1) of the International Covenant on Civil and Political Rights due to
the lack of legal basis.
55.
The alleged legal basis for Ms. al-Qaradawi and Mr. Khalaf’s arrest and detention
further suffers from other serious defects. As stated in the Basic Principles and Guidelines
on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring
Proceedings Before a Court, deprivation of liberty is regarded as unlawful when it is not on
such grounds and in accordance with procedures established by law.6 In order to ascertain
such a legal basis, the authorities should have informed Ms. al-Qaradawi and Mr. Khalaf of
the reasons for their arrest or the charges against them at the time of their arrest; their
failure to do so violates article 9 of the Universal Declaration of Human Rights and article 9
(2) of the Covenant.
1 See A/HRC/19/57, para. 68.
2 See Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits,
Judgment, I.C.J. Reports 2010, p. 639, para. 55; and opinions No. 41/2013, para. 27; and No.
59/2016, para. 61.
3 See General Assembly resolution 72/180, preambular para. 5; Commission on Human Rights
resolutions 1991/42, para. 2 and 1997/50, para. 15 and Human Rights Council resolutions 6/4, para. 1
(a) and 10/9.
4 See opinions No. 94/2017, para. 47; No. 76/2017, para. 49; No. 1/2003, para. 17; No. 5/1999, para.
15; and No. 1/1998, para. 13.
5 See opinions No. 94/2017, para. 48; No. 88/2017, para. 24; No. 83/2017, para. 60; No. 76/2017, para.
50; and No. 33/2015, para. 80.
6 See A/HRC/30/37, para. 12.
A/HRC/WGAD/2018/26
9
56.
The Working Group notes that the Government has failed to specify when Ms. al-
Qaradawi and Mr. Khalaf were allowed to contact or receive their family, lawyers or
consular officials or to provide documentary evidence, such as a copy of the arrest warrants
and visitation logs or phone registries to prove any contact that has been made with either
of them since their arrest on 30 June 2017. It also notes that Ms. al-Qaradawi and Mr.
Khalaf were not brought promptly before a judge or afforded the right to take proceedings
before a court so that it may decide without delay on the lawfulness of their detention in
accordance with article 9 (3) and (4) of the Covenant. This also deprived them of an
effective judicial remedy for the violation of their rights and freedoms as provided for in
articles 8 and 10 of the Universal Declaration and articles 2 (3) and 14 (1) of the Covenant.
57.
The Working Group expresses its grave concern that Ms. al-Qaradawi and Mr.
Khalaf have been held in incommunicado detention, have been denied access to a lawyer,
to medical care and to medication and have been subjected to forced sleep deprivation. The
Working Group, in its jurisprudence, has consistently argued that holding a person
incommunicado breaches the right to challenge the lawfulness of detention before a judge.7
Articles 8, 10 and 11 of the Universal Declaration of Human Rights and articles 9 and 14 of
the International Covenant on Civil and Political Rights also confirm the impermissibility
of incommunicado detention.
58.
The Working Group notes, in this regard, that the Committee against Torture has
made it clear that incommunicado detention creates conditions that lead to violations of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.8 The Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment has also consistently urged States to declare incommunicado
detention illegal. 9 The beatings and denial of access to medical care and medication
endured by Ms. al-Qaradawi and Mr. Khalaf appear to confirm the worst fears about
incommunicado detention. Arrestees or detainees who have been beaten and are not
provided the minimum conditions to maintain their health, in violation of articles 5 and 25
(1) of the Universal Declaration of Human Rights and articles 7 and 10 of the International
Covenant on Civil and Political Rights, will find it difficult to take proper judicial
proceedings to challenge the lawfulness of their detention.
59.
The Working Group therefore considers that Ms. al-Qaradawi and Mr. Khalaf’s
arrest, detention and imprisonment lack a legal basis and are thus arbitrary, falling under
category I.
Category III
60.
The Working Group will now consider whether the violations of the right to a fair
trial and due process suffered by Ms. al-Qaradawi and Mr. Khalaf were of such gravity as
to give their deprivation of liberty an arbitrary character with respect to category III.
61.
According to the information provided by the source, which the Government has
failed to rebut with credible evidence, Ms. al-Qaradawi and Mr. Khalaf were arrested
without the presentation of warrant and were not promptly informed of the reasons for their
arrest or of any charges against them. While the Government states that Ms. al-Qaradawi
and Mr. Khalaf were arrested in accordance with the law and due process and that its laws
provide for legal guarantees and judicial supervision in accordance with international
standards, it has failed to specify when Ms. al-Qaradawi and Mr. Khalaf were allowed to
contact or receive their family, lawyers or consular officials or to provide documentary
evidence such as a copy of the arrest warrant and visitation logs or phone registries to prove
any contact that has been made with either of them since their arrest on 30 June 2017.
62.
The Working Group notes that temporary detention orders are not so “temporary”
when they are renewed automatically and indefinitely. While the reasonableness of any
delay in bringing the case to trial has to be assessed in the circumstances of each case,
7 See opinion No. 93/2017, para. 49.
8 See A/54/44, para. 182 (a).
9 See A/54/426, para. 42 and A/HRC/13/39/Add.5, para. 156.
A/HRC/WGAD/2018/26
10
taking into account the complexity of the case, in this instance the Government failed to
provide, on the basis of the principles of legitimacy, necessity and proportionality, any
justification for Ms. al-Qaradawi and Mr. Khalaf’s pretrial detention, which has already
lasted almost 10 months with no sign that their criminal trial will take place soon. In the
present case, the Working Group finds that the Government neither tried Ms. al-Qaradawi
and Mr. Khalaf within a reasonable time nor released them, in violation of article 11 (1) of
the Universal Declaration of Human Rights and articles 9 (3) and 14 (3) (c) of the
International Covenant on Civil and Political Rights.
63.
Furthermore, the Government did not respect Ms. al-Qaradawi and Mr. Khalaf’s
right to legal assistance at all times — which is inherent in the right to liberty and security
of person — or their 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. Ms. al-
Qaradawi and Mr. Khalaf were able to speak with their lawyer for two to three minutes
each time, but not in private, when they were brought before a judge for the renewal of their
temporary detention orders.
64.
The Government further failed to respect Ms. al-Qaradawi and Mr. Khalaf’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 for the Protection of All Persons under Any Form of Detention or Imprisonment.
In broadcasting in the State media statements labelling them as members of the Muslim
Brotherhood and as terrorists before they had even been formally charged or tried, when
they had no chance to refute such informal claims, the Government violated Ms. al-
Qaradawi and Mr. Khalaf’s right to be presumed innocent. 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.10
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. Furthermore, the near-
automatic extension of Ms. al-Qaradawi and Mr. Khalaf’s pretrial detention by courts with
no regard for their due process and fair trial rights are also indicative of the violation of the
presumption of innocence.
65.
Ms. al-Qaradawi and Mr. Khalaf’s ordeals in prison 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. 11 Such a situation would
seriously undermine their ability to defend themselves and hinder their exercise of the right
to a fair trial.
66.
Furthermore, the Working Group refers to rule 45 (1) of the United Nations
Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules),
which stipulates that solitary confinement is to 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 describes 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 a detained or
imprisoned person may amount to acts prohibited by article 7.12
10 See opinions No. 83/2017, para. 79; and 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.
Russian Federation (CCPR/C/69/D/770/1997), paras. 3.5 and 8.3.
11 See also article 13 of the Arab Charter on Human Rights and article 5 of the African Charter on
Human and Peoples’ Rights.
12 See the Committee’s general comment No. 20 (1992) on prohibition of torture or other cruel,
inhuman or degrading treatment or punishment, para. 6.
A/HRC/WGAD/2018/26
11
Right to consular assistance
67.
The Working Group notes that, vis-à-vis Ms. al-Qaradawi, the Government failed to
take the formal procedures necessary to establish the legal basis for the arrest and detention
of a foreign national under the provisions of article 16 (7) of the International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their Families and
article 36 of the Vienna Convention on Consular Relations, to which Egypt is a party.
68.
According to article 16 (7) of the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families, when a migrant worker or
a member of his or her family is arrested or committed to prison or custody pending trial or
is detained in any other manner: (a) the consular or diplomatic authorities of his or her State
of origin or of a State representing the interests of that State is to, if he or she so requests,
be informed without delay of his or her arrest or detention and of the reasons therefor; (b)
the person concerned is to have the right to communicate with the said authorities and any
communication by the person to the said authorities is to be forwarded without delay, and
he or she is to also have the right to receive communications sent by the said authorities
without delay; (c) the person concerned is to be informed without delay of this right and of
rights deriving from relevant treaties, if any, applicable between the States concerned, to
correspond and to meet with representatives of the said authorities and to make
arrangements with them for his or her legal representation.
69.
Article 36 (1) (b) of the Vienna Convention on Consular Relations provides that a
foreign national arrested or committed to prison or to custody pending trial or is detained in
any other manner should be informed without delay of his or her rights to inform consular
officers about his or her detention and to have any communication addressed to them
forwarded without delay. This is in addition to the consular officers’ right to be informed of
the detention and to maintain communication (art. 36 (1) (b)) and their right to arrange for
legal representation and to visit in person (art. 36 (1) (c)).
70.
The Working Group notes that the General Assembly has reaffirmed emphatically
the duty of States parties to ensure full respect for and observance of the Vienna
Convention on Consular Relations, in particular with regard to the right of all foreign
nationals, regardless of their migration status, to communicate with a consular official of
the sending State in case of arrest, imprisonment, custody or detention, and the obligation
of the receiving State to inform the foreign national without delay of his or her rights under
the Convention.13
71.
Furthermore, the Body of Principles recognizes in principle 16 (2) the importance of
consular assistance for a detained or imprisoned foreign national by specifically mentioning
his or her right to communicate by appropriate means with a consular post or the diplomatic
mission of the State of which he or she is a national.
72.
The Nelson Mandela Rules provide, in rule 62, paragraph 1, that prisoners who are
foreign nationals are to be allowed reasonable facilities to communicate with the diplomatic
and consular representatives of the State to which they belong.14
73.
Given the limited availability of remedies for individuals in the international sphere,
consular protection is invaluable for foreign nationals who are disadvantaged by the lack of
familiarity with the local law, customs and even language. Furthermore, it should be noted
that the institution of consular protection not only serves the interests of the detained
foreign individual and of the State that espouses such interests, but also furthers the
interests of the international community as a whole by facilitating international exchange
and reducing the potential for friction between States over the treatment of their nationals.15
13 See General Assembly resolution 72/179, para. 32. See also General Assembly resolutions 72/149,
para. 4 (k) and 72/188, para. 15 (g) and Human Rights Council resolution 37/28, para. 2 (j).
14 See also A/HRC/30/37, annex, guideline 21, stipulating the monitoring of all places of immigration
detention and public reporting by consular officials (conditional upon request by persons in
immigration detention).
15 See opinion No. 58/2017, para. 64.
A/HRC/WGAD/2018/26
12
74.
In the light of the factual and legal considerations above, the Working Group
considers that the Government has failed to respect Ms. al-Qaradawi’s right to consular
protection under customary international law, as codified in article 16 (7) of the
International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families and article 36 of the Vienna Convention on Consular Relations,
during her initial arrest and detention, in violation of article 9 of the Universal Declaration
of Human Rights, article 9 of the International Covenant on Civil and Political Rights and
principle 16 (2) of the Body of Principles.
75.
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 Ms.
al-Qaradawi and Mr. Khalaf’s deprivation of liberty an arbitrary character, falling under
category III.
Category V
76.
The Working Group will now examine whether Ms. al-Qaradawi and Mr. Khalaf’s
deprivation of liberty constitutes discrimination under international law with respect to
category V.
77.
The source maintains that Ms. al-Qaradawi and Mr. Khalaf have been targeted by
the Government for guilt by association as the daughter and son-in-law of Sheikh Yusuf al-
Qaradawi, a prominent figure of the Muslim Brotherhood based in Qatar. The Government
initially claimed that Ms. al-Qaradawi and Mr. Khalaf had been arrested for violating the
asset freeze imposed on Sheikh Yusuf al-Qaradawi before levelling more substantial
allegations against them that the asset in question, the vacation home in Ramses Village,
served as the meeting place for their father’s compatriots.
78.
While the Government claims that Ms. al-Qaradawi and Mr. Khalaf were arrested
and charged for membership of an illegal terrorist group, it has offered few details other
than making vague assertions that their home served as the hideout for the Muslim
Brotherhood. Nor have the two been formally charged or tried for their alleged crime.
79.
The Working Group cannot but conclude that Ms. al-Qaradawi and Mr. Khalaf have
been arrested and detained for their family ties with Sheikh Yusuf al-Qaradawi. This is the
only plausible explanation for the subversion of the equal protection of the law they
experienced, as observed above. No one should be deprived of liberty for the crimes, real or
not, committed by their family member by birth or marriage in a free, democratic society.
80.
For these reasons, the Working Group considers that Ms. al-Qaradawi and Mr.
Khalaf’s deprivation of liberty constitutes a violation of article 2 of the Universal
Declaration of Human Rights and articles 2 (1) and 26 of the International Covenant on
Civil and Political Rights on the grounds of discrimination based on birth and family
relations aimed at and resulting in ignoring the equality of human beings and that it
therefore falls under category V.
81.
This case is one of several cases brought before the Working Group in the past five
years concerning the arbitrary deprivation of liberty of persons in Egypt.16 The Working
Group recalls that, under certain circumstances, widespread or systematic imprisonment or
other severe deprivation of liberty in violation of the rules of international law may
constitute crimes against humanity.17
Disposition
82.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Ola Yusuf al-Qaradawi and Hosam al-Din
Khalaf, being in contravention of articles 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13 and
16 See, for example, opinions No. 83/2017, No. 78/2017, 30/2017, No. 60/2016, No. 54/2016, No.
42/2016, No. 41/2016, No. 7/2016 and No. 6/2016.
17 See, for example, opinions No. 32/2017, para. 40; No. 33/2017, para. 102; No. 51/2017, para. 57; No.
56/2017, para. 72; No. 78/2017, para. 86; and No. 83/2017, para. 89.
A/HRC/WGAD/2018/26
13
25 of the Universal Declaration of Human Rights, of articles 2, 7, 9, 10, 12,
14, 16, 17 and 26 of the International Covenant on Civil and Political Rights,
and of article 16 (7) of the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families, is arbitrary
and falls within categories I, III and V.
83.
Consequent upon the opinion rendered, the Working Group requests the
Government of Egypt to take the steps necessary to remedy the situation of Ms. al-
Qaradawi and Mr. Khalaf without delay and bring it into conformity with the standards and
principles set out in international norms on detention, including those set out in the
Universal Declaration of Human Rights.
84.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to immediately release Ms. al-Qaradawi and Mr.
Khalaf and accord them an enforceable right to compensation and other reparations, in
accordance with international law.
85.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms. al-
Qaradawi and Mr. Khalaf, and to take appropriate measures against those responsible for
the violation of their rights.
86.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment and the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism, for
appropriate action.
Follow-up procedure
87.
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 Ms. al-Qaradawi and Mr. Khalaf have been released and, if so, on
what date;
(b)
Whether compensation or other reparations have been made to Ms. al-
Qaradawi and Mr. Khalaf;
(c)
Whether an investigation has been conducted into the violation of the rights
of Ms. al-Qaradawi and Mr. Khalaf 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.
88.
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.
89.
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.
90.
The Working Group requests the Government to disseminate through all available
means the present opinion among all stakeholders.
91.
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
A/HRC/WGAD/2018/26
14
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. 18
[Adopted on 23 April 2018]
18 See Human Rights Council resolution 33/30, paras. 3 and 7.