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.18-12380(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. 27/2018 concerning a minor whose name is known to the
Working Group (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.
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 a
minor whose name is known to the Working Group. 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/2018/27
General Assembly
Distr.: General
26 July 2018
Original: English
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Submissions
Communication from the source
4.
The source reports that at the time of his arrest, the minor was 17 years old and a
student attending a secondary school in the city of Mattay in Minya Governorate.
Arrest and detention
5.
The source reports that on 14 August 2013, the minor was visiting his aunt’s house
in Mattay to celebrate his cousin’s henna ceremony. Hearing noise, he stepped outside the
house to see what was happening.
6.
The source specifies that the house is located near the Mattay Police Station, which
was attacked on 14 August 2013 by individuals allegedly responsible for the capture and
murder of Colonel Mostafa Ragab Al-Atar, deputy sheriff of the Mattay Police Station, and
the attempted murder of another police officer, First Lieutenant Kareem Fouad Hendawy.
The source adds that this attack took place in the context of the nationwide unrest and
violence that transpired following the dispersal of the pro-Morsi sit-in at Rabaa al-Adawiya
Square in Cairo.
7.
The source indicates that at no stage did the minor participate in any protests or
violent acts taking place near his aunt’s home on 14 August 2013, nor did he offer any
encouragement to those who did.
8.
The source alleges that, on 2 February 2014, in the middle of the night, thus nearly
six months after the events of 14 August 2013, 25 police officers entered the home of the
minor’s family in the village of Koum Bassal, Mattay, and arrested the minor. The police
officers did not produce any identification or warrant authorizing his arrest, despite appeals
from his sister-in-law to do so. The reasons for the minor’s arrest were not provided to him
until the following day.
9.
According to the source, following his arrest, the minor was taken to Mattay Police
Station where he was detained until 23 March 2014. During this time, he was hospitalized
for five days at Mattay General Hospital for an infection of his lymphatic glands.
10.
Reportedly, on 23 March 2014, and without providing an explanation to either the
minor or his family, the minor was transferred to the Minya Transfer Prison (Segn al-
Tarheelat). The source reports that, while he was there, the minor was subjected to physical
and psychological abuse. He was detained in an overcrowded cell, 3 metres square, with 20
to 24 other inmates. The conditions forced the minor to take turns with his cellmates
sleeping on the hard concrete floor, leading to severe sleep deprivation and physical and
mental distress.
11.
Allegedly, on 6 August 2014, during his detention at Minya Transfer Prison, the
minor was beaten by prison guards when they discovered a contraband mobile phone in his
possession. In the period directly following this assault, the minor was denied adequate
medical attention and his family were denied access to him.
12.
The source acknowledges that the minor was permitted to continue his studies in
prison. However, imprisonment has negatively impacted his education. For example, he
was chained and guarded during exams, which has had a serious detrimental impact upon
his performance in assessments.
13.
The source also reports that, on or around 21 August 2014, the minor was
transferred to Minya General Prison, where he was placed in solitary confinement and
continued to be subjected to physical and mental abuse. Around this time, and at least five
months after his trial, he was informed that he had been found guilty by the court and
sentenced to death. This caused him mental distress, which was exacerbated by his
placement in solitary confinement without explanation.
14.
The source then explains that, on or around 11 November 2014, the minor was
transferred to the Minya East High Security Prison where he was once again placed in
solitary confinement. He remained in solitary confinement until 24 January 2015, when the
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Court of Cassation overturned the lower court’s verdict and ordered a retrial of the case, as
developed in the following section.
15.
The source further claims that during his imprisonment the minor has routinely been
denied access to his lawyers and his family. The minor was permitted to meet with a lawyer
one time after his arrest, and has not seen his lawyer since. As a result, the minor had no
opportunity to discuss or prepare his defence with his lawyer.
16.
The source asserts that the minor’s health and well-being have also suffered due to
his limited contact with his family. Apparently, while his family has made several journeys
to visit him, there have been multiple occasions when his family has been denied an
opportunity to talk to him. For example, following his beating in August 2014, family
members were refused permission to visit him. On four other consecutive occasions, family
members were told by prison officials that they had to have a permit from the public
prosecutor to visit. In response, the public prosecutor told the family each time that no
permit was required, as the minor had already been sentenced. When visits have been
permitted, meetings have often been very brief with no designated meeting space. Because
the minor has also been denied communication with anyone outside the prison, his family
has often been uninformed of his place of imprisonment, forced to make its own enquiries
as to his whereabouts and well-being through other families visiting fellow inmates. Since
the Court of Cassation overturned the minor’s original sentence, his family members have
visited him every three weeks. The cost of travelling to and from the prison prohibits them
from visiting more frequently.
Trial
17.
The source reports that, from 22 to 24 March 2014, the minor’s case was heard by
the Minya Criminal Court as part of a mass trial alongside 544 other defendants. All
defendants were charged with similar offences related to the alleged murder of Colonel
Mostafa Ragab al-Atar, the attempted murder of First Lieutenant Kareem Fouad Hendawy,
and related offences including damaging public property, seizing weapons, conducting an
illegal public gathering and being members of a banned organization. The minor himself
was not charged with Colonel al-Atar’s murder, but was charged with the attempted murder
of First Lieutenant Hendawy.
18.
The source explains that proceedings on 22 March 2014 lasted for less than an hour.
Only two days later, on 24 March 2014, the judge found 529 of the 545 defendants guilty
and sentenced them to death without providing any evidentiary basis for the ruling. The
judge acquitted the remaining 16 defendants, again without providing any reasoning for his
decision.
19.
According to the source, the trial was rife with procedural irregularities and breaches
of both domestic and international law. In particular, many defence lawyers were denied
access to the courtroom during the trial and those who were able to enter the courtroom
were prevented from arguing individual cases. The minor had no opportunity to properly
present his defence before the court.
20.
In addition, the source reports that the judge also denied to the defence counsels the
opportunity to cross-examine the prosecution’s sole witness, a police officer. Furthermore,
the defence was not permitted to submit witness testimonies in support of the defendants.
These witnesses included local police officers and neighbours of the minor’s aunt, who
would have confirmed that the minor did not participate in the alleged attack on the police
station. Defendants were also not afforded the right to testify, nor were questions put to the
defendants by the court or the prosecution, thus depriving the defendants and their counsel
of any opportunity to contest the charges brought against them.
21.
Moreover, the source claims that, on the first day of the trial, the prosecution
produced several thousand pages of new material. The submission of such a large body of
evidence without the defence having first had an opportunity to consider its contents,
should have resulted in the judge granting the defence additional time to examine the new
evidence. Yet, the judge denied such a request.
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22.
The source also specifies that defence lawyers sought to have the judge recuse
himself from the case, but these requests were ignored and the judge instead ordered that
the defence lawyers be surrounded by armed guards.
23.
Reportedly, on 24 March 2014, the judge handed down death sentences to 529 of the
545 defendants, including the minor. Following the consideration of the sentences by the
Grand Mufti of Egypt, the next month the judge commuted 492 of the death sentences to
life imprisonment, leaving in place 37 of the original death sentences, including that of the
minor.
24.
The source reports that on 24 January 2015, the Court of Cassation subsequently
overturned the convictions of 152 defendants involved in the original hearing (including
those of the 37 defendants who remained subject to the death penalty, among them the
minor), and ordered a retrial before the Minya Criminal Court. In its judgment, the Court of
Cassation specifically noted that the defendants in the original hearing had not been
afforded the opportunity to present their defence. The judgment also noted that some
defendants, including the minor, had not been correctly treated as minors and thus were not
afforded appropriate protections under both domestic and international law.
25.
Since the Court of Cassation overturned the lower court’s original decision in
January 2015, 15 separate hearings in the minor’s retrial have taken place: in March, June,
July, October and December 2015; in March, April, July, September, November and
December 2016; and on 4 January, 11 March, 5 April and 10 May 2017.
26.
According to the source, on 7 August 2017, the Minya Criminal Court of Appeal
delivered a verdict in the mass trial of about 400 persons, in which the minor was a co-
defendant facing the death penalty for offences alleged to have been committed as a minor.
Of the defendants, 12 had their death sentences upheld, 228 were acquitted, 157 were
sentenced to life in prison and 2 received 10-year prison sentences. Reportedly, the minor
was one of the two co-defendants receiving a 10-year sentence, with time served.
Legal analysis of the deprivation of liberty
27.
The source submits that the arrest and deprivation of liberty of the minor can be
qualified as arbitrary under categories I and III.
Category I
28.
The source argues that the failure to produce a warrant for the arrest of the minor,
the failure to bring his detention into conformity with the law and the fact that the law is
broadly defined constitute the basis for the establishing the minor’s arbitrary detention, as
there is no legal basis justifying the minor’s arrest.
29.
Regarding the failure to produce an arrest warrant, the source alleges that the
Egyptian authorities failed to present a warrant when arresting the minor despite requests
for this document from his family. The Egyptian authorities have failed to produce this
document to date. As such, the authorities have failed to comply with article 40 of the Code
of Criminal Procedure of Egypt and have failed to show that there were reasonable grounds
for the minor’s arrest.
30.
The source claims that, owing to the failure to respect the procedure established by
Egyptian law, there is no legal basis for the minor’s arrest, and consequently his detention.
His unlawful arrest is aggravated by the State’s failure to recognize him as a juvenile and
implement the enhanced requirements to protect children who have allegedly infringed the
Penal Code from arbitrary arrest.
31.
Regarding the failure to bring the minor’s detention into conformity with the law,
the source notes that authorities have failed to review his detention in line with domestic
legislation and article 37 of the Convention on the Rights of the Child, to which Egypt is a
party. Reportedly, the relevant legal bases applicable to the minor’s pretrial detention are
articles 142 and 143 of the Code of Criminal Procedure. According to the source, article
142 of the Code of Criminal Procedure provides that pretrial detention without charge
elapses after 15 days, after which the public prosecutor must bring the suspect before a
judge to authorize any further detention for a period not exceeding 45 days. Furthermore,
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article 143 of the Code provides that, where the accused faces charges that carry a death or
life sentence, pretrial detention can be extended for 45-day periods indefinitely upon the
authorization of the court hearing the case or the Court of Cassation.
32.
Yet, the source claims that the public prosecutor did not bring the minor before a
judge to authorize the extension of his pretrial detention upon the elapse of the first 15-day
period following his arrest in February 2014, in direct contravention of article 142 of the
Code of Criminal Procedure. Moreover, no official request for the minor’s continued
detention after his arrest has ever been presented to him, his family or his legal counsel, in
violation of article 143 of the Code of Criminal Procedure of Egypt.
33.
The source notes that the minor was not brought before a judge until nearly two
months after his arrest, upon his first appearance before the Minya Criminal Court on 22
March 2014. At this hearing, he was not provided with an opportunity to challenge the
legality of his arrest or detention, and the case proceeded to judgment just two days later.
34.
In addition, according to the source, the minor’s initial conviction was overturned by
the Court of Cassation on 24 January 2015, and the first hearing in his retrial did not
commence until March 2015. The source notes that though this period exceeded the 15-day
legal period, no document extending his detention was issued at this juncture either. While
the decision of the Court of Cassation in January 2015 ordered the minor’s detention in
Minya High Security Prison, no attempts to bring him before the court to allow him to
challenge his ongoing detention have been provided to him, in violation of article 143 of
the Code of Criminal Procedure.
35.
Furthermore, article 9 (3) of the International Covenant on Civil and Political Rights
states that detainees should be entitled to “trial within a reasonable time or to release”. The
relevant period of detention in relation to article 9 (3) is the date of arrest or
commencement of detention until the date of final judgment; this therefore includes the
period of detention during any appeal or retrial phase.
36.
The source asserts that the minor has been incarcerated for over two years since the
initial verdict against him was overturned by the Court of Cassation. The source argues that
the practice of keeping pretrial detainees incarcerated indefinitely clearly does not comply
with the Covenant’s article 9 (3) requirement that a trial conclude within a “reasonable
time”.
37.
Finally, the source claims that the law is broadly defined, leading to arbitrary arrest
and detention as it incorporates elements of “inappropriateness”. The source explains that
the mass trials conducted by Egyptian courts have followed charges under Law 10/1914,
which ascribes criminal responsibility to any person present at an illegal assembly where an
offence is committed. That practice has resulted in the arrest, detention and conviction of
thousands of persons, and the handing down of death sentences to hundreds, for a range of
offences, without considering individual responsibility for the offence. Such provisions
clearly incorporate elements of unpredictability and abrogate due process. They allow
anyone allegedly present at the time of an illegal assembly to be charged with serious
offences, including murder. This facilitates unjust charging practices whereby collective
responsibility is ascribed without the need to investigate individual responsibility for the
offence, in clear violation of the due process of law, namely the right to be presumed
innocent until proven guilty. The law therefore lacks predictability in its application
because any person can be considered an accomplice to an offence by virtue of being in the
vicinity of an illegal assembly. The source asserts that Law 10/1914 has been applied
arbitrarily to conduct unlawful arrests, resulting in arbitrary deprivation of liberty. It has
been used to charge, convict and sentence the minor to death on the basis of joint criminal
responsibility, without regard to the due process of law, rendering his deprivation of liberty
arbitrary under category I.
Category III
38.
The source considers that the failure to recognize the rights of the child in the
present case constitutes grounds for establishing arbitrary detention under category III.
These failures include: the violation of the prohibition on the death penalty for juveniles;
the failure to meet legal thresholds for a death sentence; the violation of the right to be free
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from ill-treatment and to be treated with dignity; the violation of the right to a fair trial
owing to trial en masse; the violation of the presumption of innocence; the violation of the
right to be informed promptly of the charges; the violation of the right to a lawyer in the
preparation of one’s defence; the violation of the right to a public trial before a competent,
impartial court; and the violation of the right to a trial without unreasonable delay.
39.
The source claims that at the time of his arrest the minor was 17 years old and
therefore a juvenile under domestic and international law. As such, Egypt was obligated to
recognize the minor as a juvenile and to comply with the special rules for dealing with
juveniles alleged to have infringed the penal law, as stipulated in articles 37 and 40 of the
Convention on the Rights of the Child. The failure of the arresting authority and the public
prosecutor to recognize the minor as a juvenile in conflict with the law resulted in non-
compliance with the applicable international human rights standards, which Egypt is bound
to uphold.
40.
The source reports that article 111 of the Child Law of Egypt prohibits the
imposition of a death sentence or life imprisonment on a minor. The minor’s initial death
sentence was therefore unlawful under domestic and international law.
41.
The source claims that the minor has not been charged with an offence that meets
the internationally recognized threshold of “most serious crimes”, thus excluding the
application of the death penalty. While the death penalty is not prohibited under
international law, article 6 of the Covenant requires that retentionist States only apply
capital punishment following strict adherence to due process and fair trial guarantees, and
for offences that meet the “most serious crimes” threshold.
42.
The source argues that the minor is not charged with an offence under Egyptian law
that can carry the death penalty. The prosecution’s request that the minor receive a death
sentence upon retrial therefore runs counter to the duty of Egypt to ensure that capital
punishment is only reserved for offences resulting in death.
43.
The source reports that the minor has been subjected to egregious prison conditions
and severe violations of due process. This constitutes a violation of the prohibition against
ill-treatment and of the right to be treated with dignity. In particular, the source considers
that the following facts constitute such a violation: (a) being beaten by prison guards; (b)
being forced to share a small and severely overcrowded prison cell; (c) being placed in
solitary confinement while imprisoned by State authorities; (d) being forced to submit to
unsanitary prison conditions, which provoked severe health problems that led to the minor’s
hospitalization; and (e) being granted only limited access to family, thereby depriving the
minor of family support. In addition, the source reports that until his eighteenth birthday,
the minor was held in the Minya Transfer Prison, which is not a juvenile detention facility.
During this period, he was detained in a cell with other individuals, and the source claims
that some of them were adults. The source notes that the Minya Transfer Prison is not
designated by the Egyptian Government as a place of detention for juveniles. This placed
the minor at risk of ill-treatment and violated his rights under article 37 (c) of the
Convention on the Rights of the Child. Moreover, the authorities’ failure to use pretrial
detention as a last resort and their detention of the minor without affording him recourse to
challenge the legality of his arrest and detention amounts to the clear use of detention as a
form of punishment.
44.
The source claims that the minor’s right to a fair trial was violated. In particular, the
source claims that the prosecution’s continued failure to sever or amend the indictment to
recognize that the minor was a juvenile and rescind the request for the application of the
death penalty reflects the arbitrary application of the law in order to secure convictions
without due regard for fairness. In addition, in arresting and detaining the minor without a
warrant and failing to bring his detention under any legal framework, the authorities have
acted under the assumption that he is guilty of the alleged offences, violating the
presumption of innocence. In particular, the Egyptian authorities’ continued inappropriate
pretrial detention of the minor indicates the Government’s belief that his guilt has been
predetermined. The minor’s lengthy pretrial detention without judicial oversight amounts to
a clear use of pretrial detention as punishment, running counter to the presumption of
innocence.
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45.
Furthermore, the source recalls that the minor’s first meeting with his legal
representative occurred two months after his arrest, at his first appearance before the Minya
Criminal Court on 22 March 2014. The authorities therefore did not provide the minor with
the appropriate conditions for him to confer with a lawyer that would have enabled the
preparation of a substantive defence.
46.
The source also argues that the failure of the prosecution to provide the minor’s
lawyers with disclosure of the case against him prevented him from preparing an
appropriate defence on his behalf or challenging the prosecution’s evidence against him. In
turn, the prosecution acted in violation of the principle of equality of arms, prejudicing the
minor’s ability to mount a meaningful defence. Moreover, the Court failed to uphold the
minor’s right to effective participation in the proceedings against him. This right includes
ensuring the minor comprehends the charges and possible consequences and penalties in
order to direct his legal representative when challenging witnesses, providing an account of
events and in making appropriate decisions, inter alia, about evidence and testimony.
47.
Therefore, the source claims that by acting in violation of the minor’s right to legal
counsel, the Court failed to provide him with the opportunity to direct his lawyer
appropriately in the preparation of his defence and to comprehend the nature of the
proceedings against him. Further, neither the minor nor his lawyers were permitted time to
address the court, nor was he called to give testimony, in clear contravention of his right to
participate in the trial.
48.
Therefore, according to the source, the Egyptian authorities have severely
constrained the minor’s right to adequate time and appropriate facilities to prepare his
defence, in contravention of his fair trial rights enshrined in article 40 of the Convention on
the Rights of the Child and article 14 of the International Covenant on Civil and Political
Rights.
49.
Moreover, the source claims that the Minya Criminal Court was not competent or
impartial: the Court’s failure to uphold the minor’s right to full equality of arms in the
proceedings against him, while providing the prosecution with full procedural rights in
presenting its case, shows bias in favour of the State. This bias is further supported by the
Court’s decision to issue a judgment in a mass trial of 545 defendants after just two
hearings, as it cannot be objectively reasoned that the minor’s individual criminal
responsibility for the crimes he has allegedly committed was given due regard.
Furthermore, the Minya Criminal Court was not competent to hear the minor’s case.
According to the source, the Child Law establishes a separate justice system for minors.
The source also claims that the trial was not public, therefore resulting in a breach of the
law. Indeed, the Court tried the minor in closed hearings with the intention of obscuring the
transparency of the proceedings, rather than protecting his right to privacy. The minor’s
family were barred from attending the hearings in the case. The minor himself has been
prevented from attending certain proceedings, including the second session of the initial
trial when his sentence was handed down (to which the minor’s lawyer was also denied
access). The minor did not learn of the outcome of this second hearing until five months
after it took place.
50.
Finally, the source claims that the procedural delay of over two years is in violation
of the minor’s right to trial without undue delay, enshrined in article 14 (3) (c) of the
Covenant.
Response from the Government
51.
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 the
minor and any comment on the source’s allegations. 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.
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52.
In its response, the Government affirms, firstly, that the Egyptian legal system
affords sufficient safeguards to those deprived of their liberty, in conformity with
international standards, including articles 9 and 10 of the International Covenant on Civil
and Political Rights and articles 11 and 12 of the International Covenant on Economic,
Social and Cultural Rights. Torture by officials is also liable to punishment under the Penal
Code and the health rights of persons deprived of their liberty are protected.
53.
According to the Government, the minor was arrested and interrogated by the public
prosecutor in case No. 8473 of 2012, Mattay (reference No. 1842 of 2013 North Minya).
The public prosecutor initiated the accusations against the minor and others by order of
referral No. 115 on 14 August 2013 in Mattay Directorate, Minya Province. The co-
defendants were accused of gathering with the purpose of committing crimes against
persons and properties; intimidating victims; murder; attempted murder; the use of force
and violence against public officials; destruction of State-owned buildings; damaging
public assets (Mattay Police Station and police cars); disruption of work at a public office
(Mattay Police Station); setting Mattay Police Station on fire; deliberate destruction of
original files and records of State documents at Mattay Police Station; assisting the escape
of 12 arrested persons; possession of machine guns and ammunition; and the possession of
other weapons, such as sticks, batons, stones and Molotov cocktails.
54.
On 9 April 2014, the case was referred to the criminal court, which ordered the
continued detention of the accused and the issue of arrest and detention orders against the
fugitives tried in absentia. According to the public prosecutor, the minor was arrested on 28
April 2014 and was detained until 23 August 2014 in a legally allocated place at the Mattay
Police Station in accordance with the court referral order.
55.
On 7 August 2017, the court sentenced the minor to a 10-year prison term and
ordered the transfer of the weapons seized to the Ministry of the Interior, the confiscation of
weapons and ammunition possessed by any of the accused persons and the payment of a
fine equal to the value of the damaged properties.
56.
On 27 August 2017, the minor decided to challenge the verdict under reference No.
1177. Case No. 10675 was referred to the Court of Cassation on 28 October 2017.
57.
The Government states that the minor was already 18 and not 17 years old at the
time of his imprisonment as an adult.
58.
The Government also states that the minor received a medical examination in prison
that showed no specific illnesses. It also claims to possess the visitation record for the
minor from the beginning of his detention, which shows that he received his last visit on 28
February 2018. Since the minor had submitted no complaint to the competent authorities,
the source’s allegations are invalid and lack factual or legal evidence.
Further comments from the source
59.
The response from the Government was transmitted to the source for its further
comments on 27 March 2018. In its response of 12 April 2018, the source submits that the
Government has not responded to the substance of the allegations of the minor’s arbitrary
arrest, detention and trial. In particular, the Government has failed to address the procedural
history of his mass trial and initial death sentence delivered while he was a juvenile and has
made factually inaccurate representations.
60.
The source submits that the minor was arrested on 2 February 2014 when he was 17
years and 5 months old, and refers to the complete absence in the Government’s submission
of any mention of the mass trial of more than 500 individuals, including the minor, in
March 2014 and of the death sentences issued for 37 of the co-defendants, including the
minor, delivered on 24 March 2014 (the written judgment was issued on 28 April 2014)
when he was 17 years and 9 months old. The accused was a minor at the time of his alleged
crime in August 2013 and also at the time of his arrest and initial sentencing. The
Government’s claim that the minor was arrested on 28 April 2014 is erroneous as he had
been in custody for more than two months by that time and had already been sentenced to
death. Nor does the Government acknowledge the Court of Cassation’s judgment
overturning the minor’s death sentence, along with a number of others, from the minor’s
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initial mass trial, which cited, among other things, the minor’s age as one of the grounds for
the reversal. The 10-year sentence against the minor, referred to by the Government, was
actually from his retrial and is currently the subject of a second appeal before the Court of
Cassation.
61.
In addition, according to the source, the Government has not addressed the
violations of the minor’s rights: to a fair trial, owing to the mass trial; to be informed
promptly of the charges and to be tried without delay; to a lawyer for the preparation of his
defence; to a public trial before a competent, impartial court; and to a trial without
unreasonable delay.
62.
The source further emphasizes that the Government has not provided details about
the legality of the minor’s detention and whether the Government will investigate his
allegation of ill-treatment in prison in accordance with its obligations under the
international and domestic laws that it cites.
Discussion
63.
The Working Group thanks the source and the Government for their extensive
engagement and for their submissions in relation to the minor’s detention.
64.
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 (see
A/HRC/19/57, para. 68).
65.
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.1
66.
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.2 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. 3 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.4
Category I
67.
The Working Group will examine the relevant categories applicable to its
consideration of this case, including category I, which concerns deprivation of liberty
without invoking any legal basis.
68.
While the Government states that the minor was arrested in accordance with the law
and due process, and that its laws provide for the legal guarantees and judicial supervision
1 See Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits,
Judgment, I.C.J. Reports 2010, p. 639, at pp. 660–661, para. 55; and opinions Nos. 41/2013, para. 27,
and 59/2016, para. 61.
2 See General Assembly resolution 72/180, fifth preambular paragraph; 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.
3 See opinions Nos. 94/2017, para. 47; 76/2017, para. 49; 1/2003, para. 17; 5/1999, para. 15; and
1/1998, para. 13.
4 See opinions Nos. 94/2017, para. 48; 88/2017, para. 24; 83/2017, para. 60; 76/2017, para. 50; and
33/2015, para. 80.
A/HRC/WGAD/2018/27
10
in accordance with international standards, it has been unable to provide the Working
Group with the correct date of his arrest, initial trial and death sentence and appeal. This
wholesale omission of key information raises doubts about the purported documentary
evidence presented by the Government. In any case, the Government has not provided a
copy of the arrest warrant for the minor’s arrest. According to the information provided by
the source, which the Government has failed to rebut with credible evidence, the minor was
arrested not on the alleged “crime scene”, in flagrante delicto, but nearly six months after
the event of 14 August 2013, without the presentation of a 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, articles 9 (1) of the International Covenant on
Civil and Political Rights and article 37 (b) of the Convention on the Rights of the Child for
want of a legal basis.
69.
The alleged legal basis for the minor’s arrest and detention further suffers from other
serious defects. As stated in paragraph 12 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, deprivation of liberty is regarded as unlawful when it
is not on such grounds and in accordance with procedures established by law. In order to
ascertain such a legal basis, the authorities should have informed the minor of the reasons
for his arrest or charges against him at the time of his arrest, but this did not happen until
the following day, in violation of article 9 of the Universal Declaration of Human Rights
and article 9 (2) of the Covenant.
70.
Furthermore, the minor was not brought promptly before a judge or afforded the
right to take proceedings before a court so that it could decide without delay on the
lawfulness of his detention in accordance with article 9 (3) and (4) of the Covenant and
article 37 (d) of the Convention on the Rights of the Child. This also deprived him of an
effective judicial remedy for the violation of his rights and freedoms, as provided in articles
8 and 10 of the Universal Declaration of Human Rights and articles 2 (3) and 14 (1) of the
Covenant.
71.
The Working Group also expresses its grave concern at the minor’s incommunicado
detention and denial of access to a lawyer. 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. 5 Articles 8, 10 and 11 of the Universal
Declaration of Human Rights, articles 2 (3), 9 and 14 of the Covenant and article 37 (c) and
(d) of the Convention on the Rights of the Child also confirm the impermissibility of
incommunicado detention.
72.
Furthermore, 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 (see A/54/44, para. 182 (a)).
The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment has also consistently urged States to declare incommunicado detention illegal
(see A/54/426, annex, para. 42; and A/HRC/13/39/Add.5, para. 156). The beatings and
denial of medical care endured by the minor appear to confirm the serious concerns about
incommunicado detention. An arrestee or detainee that is beaten and sick, in violation of
articles 5 and 25 (1) of the Universal Declaration of Human Rights, articles 7 and 10 of the
International Covenant on Civil and Political Rights and article 37 (c) of the Convention on
the Rights of the Child, will find it difficult to take proper judicial proceedings to challenge
the lawfulness of detention.
73.
The Working Group therefore considers that the minor’s arrest, detention and
imprisonment lack a legal basis and are thus arbitrary, falling under category I.
5 See opinion No. 93/2017, para. 49.
A/HRC/WGAD/2018/27
11
Category III
74.
The Working Group will now consider whether the violations of the right to a fair
trial and due process suffered by the minor were of such gravity as to give his deprivation
of liberty an arbitrary character, falling within category III.
75.
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 complexity of the case and other
relevant elements, the Working Group considers that the excessive delay from the time of
arrest to the end of trial is 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, and that the burden lies with the Government to prove its legitimacy,
necessity and proportionality. In this instance, the minor has been held in custody since his
initial arrest on 2 February 2014. The Government failed to provide any justification for the
minor’s continued pretrial detention even though the Court of Cassation quashed his initial
conviction and death sentence on 24 January 2015 and the trial court did not deliver its 10-
year sentence against the minor until 7 August 2017. In this regard, the Working Group
finds that the Government neither tried the minor 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. Such a delay also breached the minor’s right to appeal,
in violation of the article 14 (5) of the Covenant.
76.
Furthermore, the Government did not respect the minor’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,
articles 9 (1) and 14 (1) of the International Covenant on Civil and Political Rights and
articles 37 (d) and 40 (2) (b) (ii) and (iii) of the Convention on the Rights of the Child.
According to the source, the minor’s first meeting with his legal representative occurred
two months after his arrest, at his first appearance before the Minya Criminal Court on 22
March 2014, two days before he was convicted and sentenced to death; the Government
therefore did not provide him with the appropriate conditions for him to confer with a
lawyer that would have enabled the preparation of a substantive defence. The Government
recited the provisions of the Constitution but provided no substantial rebuttals to the
source’s specific claims.
77.
The Working Group also has serious doubts about the fairness of a trial for more
than 500 defendants, where the judgment was delivered in just two days after proceedings
that lasted less than an hour. The death sentences imposed on more than 500 defendants and
the lack of individual sentences fall short of the requirements for a fair trial and are
arbitrary in themselves. Then, although the minor’s conviction and death sentence were
overturned by the Court of Cassation, he was again convicted and sentenced to 10-year
prison term in yet another mass trial of almost 400 defendants. 6 The Working Group
therefore concludes that his right to a fair trial has been repeatedly violated.
78.
Specifically, the Working Group considers that the imposition of the death penalty
following a flawed procedure is in violation of article 6 (2) of the International Covenant on
Civil and Political Rights, which provides that the imposition of the death penalty should
not be contrary to other provisions of the Covenant.7
79.
The Working Group further finds the death sentence imposed on a minor at the time
of the commission of an alleged crime is in violation of both customary international law
and the domestic law of Egypt. Article 6 (5) of the Covenant states unequivocally that the
death sentence “shall not be imposed for crimes committed by persons below eighteen
years of age”. Article 37 (a) of the Convention on the Rights of the Child also clearly
prohibits capital punishment for persons below eighteen years of age. Indeed, the
imposition of a death sentence for the act of a legal minor is a violation of the fundamental
right to life stipulated in article 3 of the Universal Declaration of Human Rights as well.
6 See opinion No. 41/2016, para. 27.
7 See opinion No. 32/2017, para. 18.
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12
80.
The Working Group notes that the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment specifically found that “international law
does not attribute a different value to the right to life of different groups of human beings,
such as juveniles … or persons sentenced after an unfair trial, but considers the imposition
and enforcement of the death penalty in such cases as … in violation of article 7 of the
Covenant and articles 1 and 16 of the Convention against Torture” (A/67/279, para. 58).
81.
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 the
minor’s deprivation of liberty an arbitrary character, falling under category III.
82.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers this case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, the Special Rapporteur on extrajudicial, summary or arbitrary
executions, the Special Rapporteur on the independence of judges and lawyers and the
Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism, for appropriate action.
83.
The Working Group notes that the present opinion is only one of many other
opinions in the past five years in which the Working Group finds the Government of Egypt
to be in violation of its international human rights obligations.8 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.
Disposition
84.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of the minor, being in contravention of articles 3, 5, 6, 7,
8, 9, 10, 11, 12, 13 and 25 of the Universal Declaration of Human Rights, of articles
2, 6, 7, 9, 10, 12 and 14 of the International Covenant on Civil and Political Rights
and of articles 24, 37 and 40 of the Convention on the Rights of the Child, is
arbitrary and falls within categories I and III.
85.
The Working Group requests the Government of Egypt to take the steps necessary to
remedy the situation of the minor without delay and to bring it into conformity with the
relevant international norms, including those set out in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
86.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release the minor immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
87.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of the
minor and to take appropriate measures against those responsible for the violation of his
rights.
88.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers this case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, the Special Rapporteur on extrajudicial, summary or arbitrary
executions, the Special Rapporteur on the independence of judges and lawyers and the
Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism, for appropriate action.
8 See, for example, opinions Nos. 83/2017, 78/2017, 30/2017, 60/2016, 54/2016, 42/2016, 41/2016,
7/2016 and 6/2016. The Working Group expresses its particular concern at the spate of grave human
rights violations, including arbitrary detention, following the 2013 coup d’état.
A/HRC/WGAD/2018/27
13
Follow-up procedure
89.
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 the minor has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to the minor;
(c)
Whether an investigation has been conducted into the violation of the minor’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.
90.
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.
91.
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.
92.
The Government should disseminate through all available means the present opinion
among all stakeholders.
93.
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.9
[Adopted on 24 April 2018]
9 See Human Rights Council resolution 33/30, paras. 3 and 7.