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.19-17404(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-fourth session, 24 April–3 May 2019
Opinion No. 29/2019 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. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. 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 10 December 2018 the
Working Group transmitted to the Government of Egypt a communication concerning the
minor. The Government has not replied to the communication. 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/2019/29
General Assembly
Distr.: General
9 October 2019
Original: English
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Submissions
Communication from the source
4.
The minor was born in March 1997. He is a former secondary school student. At the
time of his arrest, he was 17 years old.
(a)
Arrest and detention
5.
According to the source, at approximately 4 a.m. on 2 March 2015, officers from the
Egyptian Special Forces, Mabahith (State Security Investigations Service), the National
Security Agency and a special weapons and tactics unit forcibly entered the home of the
minor’s family in Ezbet El-Yemen in the town of Awsim and arrested the minor. The
minor’s family was present at the time. The operation involved 20 security officers,
including masked soldiers, and the use of armoured vehicles. The officers did not produce a
warrant and did not inform the minor of the reasons for his arrest. After arresting the minor,
the officers confiscated laptops belonging to his family, along with mobile phones, cash and
jewellery. The items were never returned.
6.
The source reports that, following the minor’s arrest, authorities in Egypt subjected
the minor to incommunicado detention from 2 March to 22 May 2015, a period of more
than 80 days. During this period, his family had no information about his whereabouts or
well-being, and the minor had no contact with the outside world or access to legal counsel.
7.
The source indicates that the minor was initially taken to Awsim police station upon
his arrest. Shortly thereafter, he was taken to the national security office in Imbaba. During
his time at the national security office, the source reports that the minor was tortured by
police officers who beat him with metal objects and subjected him to electric shocks during
questioning. For the entirety of his detention at this location, the minor was kept
blindfolded, including when he was forced to sign a false confession, which asserted that he
had planted simulated explosive devices and that he belonged to the Muslim Brotherhood.
The officers warned him that if he changed his story in any way, they would subject him to
further torture. Throughout this time, the minor did not have access to any medical care and
was not allowed to see his family or a lawyer.
8.
The source reports that, on 21 May 2015, officers brought the minor to the Giza
prosecution office in order to be questioned. The minor was then made to repeat the false
confession he had made following coercion by officers at the national security office in
Imbaba. At no point was the minor allowed access to legal counsel.
9.
Despite being 17 years old when he was arrested on 2 March 2015, the authorities of
Egypt listed the official arrest date for the minor as 21 May 2015, by which point he was 18
years old.
10.
According to the source, on 22 May 2015, the minor was transferred to the central
security camp. That day, for the first time since the beginning of his detention, a member of
his family was allowed to visit him. The family member reports that the minor appeared
very depressed and had been subjected to torture, because marks from electric shocks were
visible on his body. In addition, the minor’s eyesight had greatly deteriorated because he
had been blindfolded for the entirety of his detention. At the time, the minor was being held
in a cell measuring 8 metres by 1 metre, which he was sharing with 130 other inmates.
11.
The source explains that, on 1 November 2016, the minor was transferred from the
central security camp to El-Qanater Prison. During his time in El-Qanater Prison, the minor
was held in a cell measuring 5 metres by 8 metres with 30 other inmates, including both
adult and juvenile co-defendants, for more than 15 months. Inmates had infrequent access
to food, water and personal hygiene products and were forced to sleep on sheets on the
floor of the prison. The minor subsisted exclusively on food brought to the prison by his
family during visits. His sole opportunity to communicate with anyone on the outside was
during the visits with his family, which were limited to one hour per week.
12.
The source further explains that, for an extended period of time, the prosecutors
denied the minor’s requests to continue his studies inside El-Qanater Prison. However, after
a member of the minor’s family spoke with a member of the prison’s education
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administration, the minor was granted permission to take his secondary school exams. On 1
May 2018, the minor was transferred from solitary confinement in El-Qanater Prison to
Tora Prison to sit his exams, which took place from 2 to 14 May 2018. The minor remains
detained at Tora Prison.
13.
According to the source, following his initial appearance before a prosecutor on 21
May 2015, the minor was brought to a number of detention renewal hearings. From 21 May
2015 to approximately 17 September 2015 – the first 120 days of the minor’s detention, as
acknowledged by authorities of Egypt – detention renewal hearings took place every 15
days. After 17 September 2015, the hearings were scheduled every 45 days until the case
went to trial. At the minor’s second detention renewal hearing, in the presence of his
lawyer, the minor recanted his confession to the attending prosecutor. Nevertheless, the
prosecutor did not note this in any written records, as he was satisfied with the minor’s
initial confession.
(b)
Charges
14.
The source reports that, on 12 August 2015, the prosecution officially charged the
minor with the following alleged offences: (a) joining a terrorist organization with intent to
violate the Constitution and the law, as well as posing a threat to the general public, and
their rights and personal freedoms; (b) terrorizing an individual by placing a simulated
explosive device at the individual’s place of work in Awsim Electric Authority, with the
intent of causing terror and disturbing national security; (c) setting fire to a coffeehouse by
bombarding it with Molotov cocktails, while chanting in favour of the former President; (d)
being in possession of, and procuring, Molotov cocktails and flares; (e) throwing Molotov
cocktails at Awsim City Council; (f) attempting to murder a judge; (g) placing a simulated
explosive device in front of Awsim General Hospital; (h) being present while two other
defendants opened fire on the rear wall of the Awsim police station; and (i) joining a
terrorist organization and being in possession of weapons.
15.
The source explains that, although the minor is charged with eight offences, the
written judgment in the case is vague and does not indicate when the offences are alleged to
have occurred. According to the source, the prosecution’s narrative – in particular, relating
to a number of the incidents upon which the charges against the minor are based – is either
factually inaccurate or is misrepresented by the authorities as being linked to terrorism. In
addition, a number of offences for which the minor was arrested and subsequently
convicted were the result of his alleged participation in public gatherings or demonstrations.
The minor was charged with allegedly joining a terrorist organization, which is understood
to be a reference to the Muslim Brotherhood, specifically the Awsim Popular Resistance, an
alleged terrorist cell that operated in support of the Brotherhood. However, the minor’s
family has indicated that neither he nor they belong to any specific political groups or
organizations in Egypt, including the Muslim Brotherhood and the alleged terror cell.
16.
In fact, the source explains that the minor has attended peaceful demonstrations with
the Ultras Ahlawy, a group of football fans that supports Cairo’s Al-Ahly Sporting Club
football team. The minor has also engaged in street demonstrations, in accordance with his
right to freedom of opinion and expression and his right to freedom of peaceful assembly
and association. However, the minor’s family has indicated that he attended such
demonstrations only three times. Moreover, the last time he attended such a demonstration
was in December 2014, well before the occurrence of the offences he is alleged to have
committed.
17.
The source claims therefore that the minor is not a known member of a proscribed
organization in Egypt. Furthermore, contrary to the claims of the authorities, he has not
attended demonstrations that turned violent. His arrest was a form of retribution against his
father, who worked as a youth athletics coordinator for the regime of deposed President
Mubarak and has refused to support the current regime.
18.
The source reports that the minor was in fact already in police custody at the time
that he is alleged to have participated in the attempted assassination of a judge. The incident
in question, in which a small bomb exploded outside the outer compound wall of the
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judge’s house, took place on 23 March 2015, at which point the minor had already been in
police custody for 21 days.
19.
The minor and his family have consistently denied any affiliation with or
membership in the Muslim Brotherhood, which forms the basis of the first charge. The
authorities have alleged that his attendance at the Ultras Nahdawy demonstrations amounts
to membership in the Muslim Brotherhood; however, no evidence has ever been provided
to support the charge.
20.
In addition, the source explains that, although the minor was involved with the
Ultras Ahlawy, he has been accused and found guilty of being a member of the Ultras
Nahdawy group. However, the Ultras Nahdawy and Ultras Ahlawy groups are separate
organizations. Whereas Ultras Ahlawy is a group for fans of the Al-Ahly Football Club,
Ultras Nahdawy is a political group known for the sit-in protest of the deposition of
Mohammad Morsi, which took place in Cairo’s el-Nahda Square. Ultras Nahdawy have
organized political protests, and although there is no official affiliation to the Muslim
Brotherhood, there is some overlap in membership. The source claims that the minor has
never had any affiliation with the group Ultras Nahdawy.
(c)
Trial
21.
According to the source, since the date of the minor’s arrest, the minor has never
been allowed to meet with his lawyer other than at hearings. At detention renewal hearings,
and later at substantive procedural hearings, the minor has been able to whisper a few
words to his lawyer, but he has never been provided with an opportunity to confer with his
lawyer in order to discuss or prepare his defence.
22.
The source explains that the minor’s trial began on 31 October 2015. The minor was
tried together with 29 other defendants, all of whom were charged with similar offences.
None of the defendants was charged with a lethal offence. Two other co-defendants were
also under the age of 18 at the time of the alleged offences. The hearings were closed to the
public, and the family members of the defendants were not allowed to attend.
23.
The source claims that, during the first hearing, the minor’s lawyer submitted
documents demonstrating that the minor was a child at the time of his arrest and asked that
his client be transferred to a juvenile court. The minor’s lawyer also informed the judge that
his client had been tortured by national security officers into making a confession and asked
that the confession be excluded from evidence. No steps have been taken by the court or
any other authority to initiate an investigation into the minor’s torture and ill-treatment. In
addition, the minor informed the judge that his confession had been coerced through
torture.
24.
The source also explains that the case was transferred three times to new circuits. A
verdict hearing was held on 9 January 2018. At that hearing, the judge issued death
sentences to four of the 30 defendants, including the minor. In accordance with the laws of
Egypt, the death sentences were then referred to the Grand Mufti for his recommendation.
On 19 February 2018, the judge’s final decision was published. All 30 defendants were
found guilty. Four defendants, including the minor, received death sentences; 12 received
sentences of life imprisonment; and the remaining 14, including the minor’s brother,
received 15-year prison terms.
25.
The source indicates that the judge did not take into account the minor’s juvenile
status and the allegations that the confession was obtained by means of torture.
26.
According to the source, on 19 February 2018, the minor was transferred to solitary
confinement inside El-Qanater Prison.
27.
The source further explains that, on 17 April 2018, the minor’s appeal was filed
before the Court of Cassation of Egypt. No trial date has been set for the minor’s appeal.
The minor awaits a listing before the Court in Cairo in the final determination of his case.
No information has been provided to him, his lawyer or family on when a listing is
anticipated.
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(d)
Legal analysis
(i)
Category I
28.
According to the source, the minor was arrested at his home; he was not arrested in
flagrante delicto. Therefore, the authorities in Egypt failed to comply with article 40 of the
Code of Criminal Procedure, by failing to present an arrest warrant at the time of the
minor’s arrest. His unlawful arrest is further aggravated by the State’s failure to recognize
him as a juvenile and to implement the enhanced requirements to protect children alleged to
have infringed the penal code from arbitrary arrest, as recommended by the Committee on
the Rights of the Child.1
29.
The source also claims that the minor was subjected to enforced disappearance for
approximately 80 days following his arrest by Egyptian authorities. During this period, the
source alleges that the minor was subjected to torture. In addition, he was not formally
charged with any offence or informed of the specific offences for which he had been
arrested. This treatment amounts to a breach of articles 37 (c) and 40 (2) (b) (ii) of the
Convention on the Rights of the Child.
30.
In addition, according to the source, the prosecutor first questioned the minor,
without his lawyer present, on 21 May 2015, 80 days after his 2 March 2015 arrest. The
minor was then required to appear before prosecutors at approximately nine detention
renewal hearings between 21 May and 31 October 2015. On 31 October 2015, the minor
was brought before a judge for the first time. At that hearing, he was not provided with an
opportunity to challenge the legality of his arrest or detention, and the case proceeded to
trial 244 days after the date of his arrest. Thus, the source alleges that the minor has been in
continuous detention for three years and five months without any attempt by the authorities
in Egypt to sanction and review his detention in line with domestic legislation and article 37
of the Convention on the Rights of the Child. Furthermore, the source claims that, with
regard to the pretrial detention of the minor, the authorities did not act on the authorization
of the Court of Cassation and therefore acted in direct contravention of articles 142 and 143
of the Code of Criminal Procedure. In further contravention of article 143 of the Code, no
official request for the minor’s continued detention after his arrest has ever been presented
to him, his family or his legal counsel.
31.
As previously noted, the source claims that the minor has been incarcerated for more
than three years since the date of his arrest and remains incarcerated pending the outcome
of his appeal. It is therefore submitted that such incarceration does not comply with article
9 (3) of the International Covenant on Civil and Political Rights and that the minor’s trial
has most definitely not been carried out within a reasonable time.
32.
Moreover, the source alleges that the minor was charged, convicted and sentenced to
death for a number of offences pursuant to Laws 107/2013 (the “Protest Law”) and Law
10/1914 (the “Assembly Law”). The minor is charged under articles 1, 2, 4, 8, 9, 16, 17, 20,
21 and 22 of the Assembly Law, which was amended by the Protest Law. Article 1 of the
Assembly Law criminalizes a gathering or five or more persons if security personnel deem
it to infringe upon public peace, thereby giving the security personnel complete discretion
to assess the impact upon public peace. In addition, the term “public peace” is not defined.
Under article 2 of the Assembly Law, an assembly of five or more persons is subject to
criminal sanction if their intent is to commit a crime, even if the crime does not take place.
Article 4 of the Assembly Law punishes assembly organizers for every act committed by
the persons in the gathering, even if they are not present at the time. The authorities have
not suggested that the minor was an organizer, which indicates the lack of due process of
law and the arbitrary nature of the detention. These provisions clearly incorporate elements
of unpredictability and lack due process of the law. In that connection, the source reports
that charges brought under the Assembly Law have resulted in the arrest, detention and
conviction of thousands, and the death sentences of hundreds, for a range of offences, and
without consideration of individual responsibility in the offence.
1 CRC/C/GC/10, para. 36.
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(ii)
Category II
33.
The source submits that the minor’s arrest, detention and trial are arbitrary under
category II because they are motivated by the Government’s retaliation against the minor’s
father, who refused to encourage youth athletes in Egypt to support the regime.
Furthermore, the minor’s brother was also arrested and detained in similar circumstances.
He was a co-defendant in the case and, as a result of the trial, was sentenced to a prison
term of 15 years. The arrest of both siblings is a clear indicator of the motivation of the
authorities of Egypt to punish their father and therefore renders the minor’s arrest arbitrary
under category II.
(iii)
Category III
34.
According to the source, the minor was tried in a mass trial with 29 other
defendants. The mass trial procedure cannot, and did not, allow for the minor’s individual
responsibility in the alleged offences to be determined, and consequently a decision on
culpability beyond reasonable doubt could not be reached. The minor’s trial was conducted
in clear violation of his right to a fair trial as protected by article 10 of the Universal
Declaration of Human Rights; article 40 (2) (b) (iii) of the Convention on the Rights of the
Child; and articles 9 (1)–(4), 14 (2), (3) (a)–(c) and (3) (e) of the Covenant. These breaches
are aggravated by the fact that the minor was not able to speak with his lawyer properly
during the trial proceedings, therefore prohibiting him from access to legal representation.
35.
The source also claims that the authorities failed to recognize the minor’s juvenile
status. At the time of his arrest, the minor was 17 years old and therefore a juvenile under
domestic and international law. As a result, Egypt was obliged 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. In addition, following the minor’s trial in the Criminal Court, he was
sentenced to death – a sentence that can only be imposed on adult defendants.
36.
Moreover, the source indicates that the minor has not been charged with an offence
that meets the internationally recognized threshold of “most serious crimes”; the application
of the death penalty should therefore be excluded, as provided by article 6 of the Covenant.
The minor was neither charged with nor convicted of any lethal offence. Nonetheless, he
and three other defendants were sentenced to death for the alleged commission of number
of non-lethal offences. The prosecution’s request that the minor receive the death sentence
therefore runs counter to the duty of Egypt under international law to ensure that capital
punishment is only ordered for offences that meet the “most serious crimes” threshold.
37.
Moreover, the source claims that there was a violation of the right to a public trial
before a competent, impartial court. The source claims that it is apparent from the Criminal
Court’s failure to apply the country’s Child Law – Law No. 12/1996, as well as the
amendments made to it through Law No. 126/2008 – to the minor that the Court before
which he was tried was not competent. The minor was thus unable to obtain the following
rights enshrined in the Child Law: (a) restrictions on who is permitted to attend his trial; (b)
the right to have a guardian or custodian attend his trial; (c) the right to be exempt from a
trial and have a guardian or custodian attend in his place; (d) the right for social observers
to attend his trial and open a file for him containing a comprehensive assessment of his
education, psychological, mental, physical and social status; (e) the requirement for the
Court to deal with the case in the light of the information in the file compiled by a social
observer; and (f) the right to be in a special punitive institution for children following a
penalty restricting his freedom. The fact that the minor was unable to access his rights as a
juvenile defendant means that he was unlawfully sentenced to death, contrary to both
national and international law. The source also indicates that the transfer of the case to new
circuits demonstrates the lack of impartiality.
38.
Furthermore, according to the source, the fact that the minor’s family was denied
access to all of his hearings demonstrates a violation of the minor’s right to a public trial, as
enshrined in article 14 (1) of the Covenant.
39.
The source claims further that no warrant detailing the charges against him was
provided at the time of the arrest, and it was not until 21 May 2015 that the minor was
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informed of the charges. This is in clear violation of his right to be promptly informed of
the charges against him, as enshrined in article 14 (3) (a) of the Covenant. Further, the
minor was not brought before a judge until 244 days after his arrest, and his first instance
trial was not concluded until three years after his arrest. This procedural timetable, during
which time the minor was held in prison and subjected to torture, beatings and cramped
conditions, is in clear violation of his right to be tried without delay, as enshrined in article
14 (3) (c) of the Covenant.
40.
According to the source, the minor has not been afforded the opportunity to prepare
his defence with a lawyer. The minor’s lawyer was only allowed to meet with the minor for
the first time at a detention renewal session on or around 5 June 2015. Prior to that meeting
with his lawyer – which did not take place in private but rather at the Giza prosecution
office – the minor had been tortured extensively and questioned by a prosecutor without a
lawyer present. Thereafter, the minor was prevented from speaking with his lawyer except
during hearings, first at the prosecution office and later in court. The fact that the minor was
not able to consult a lawyer in advance of his hearings to challenge the legality of his arrest
or detention or to prepare his defence is contrary to his rights as enshrined in article 14 (3)
(b) of the Covenant and article 37 (d) of the Convention on the Rights of the Child.
41.
The source alleges that, during the trial, the minor’s lawyer argued that the minor
had been tortured and subjected to ill-treatment upon arrest and in detention for the purpose
of obtaining a forced confession. No steps had been taken by the courts to investigate the
minor’s allegations ex officio as required by articles 12 and 13 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As a result, the
minor’s confession was submitted as evidence at the trial, in violation of article 15 of the
Convention against Torture, which requires the exclusion of such evidence. The court’s
reliance on this evidence amounts to a violation of the minor’s right to be free from self-
incrimination.
42.
Furthermore, the source claims that the minor has been subjected to egregious prison
conditions including torture, overcrowded prison cells, solitary confinement, unsanitary
conditions and limited access to his family.
43.
The source also claims that the authorities failed to use pretrial detention as a last
resort, and that the minor was subject to detention without being allowed recourse to
challenge the legality of his arrest and detention. On the basis of these observations, the
source claims that these actions amount to the use of detention as a form of punishment.
(iv)
Category V
44.
The source also claims that the minor has been discriminated against because the
authorities of Egypt have failed to afford him protections associated with his status as a
juvenile. Furthermore, as the motivation for his arrest, detention and trial is a form of
retribution against the minor’s father, the source submits that it amounts to discrimination
contrary to article 2 of the Convention on the Rights of the Child. For these reasons, the
minor’s arrest is arbitrary under category V.
Response from the Government
45.
On 10 December 2018, the Working Group transmitted the allegations made by the
source to the Government through its regular communication procedure. The Working
Group requested the Government to provide, by 8 February 2019, detailed information
about the current situation of the minor and any comments on the source’s allegations.
Moreover, the Working Group called upon the Government to ensure the minor’s physical
and mental integrity.
46.
On 28 January 2019, 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 of one month for the Government to submit its response by 8 March
2019. The Working Group regrets that it did not receive a response from the Government.
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Discussion
47.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
48.
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
(A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source.
49.
The Working Group wishes to reaffirm that the Government has the obligation to
respect, protect and fulfil the right to liberty 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, the Covenant and other
applicable international and regional instruments.2 Consequently, even if the detention is in
conformity with national legislation, regulations and practices, the Working Group is
entitled and obliged to assess the judicial proceedings and the law itself to determine
whether such detention is also consistent with the relevant provisions of international
human rights law.3
50.
In the discharge of its mandate to investigate cases of deprivation of liberty imposed
arbitrarily, the Working Group refers to relevant international standards, including the
Convention on the Rights of the Child, the United Nations Rules for the Protection of
Juveniles Deprived of their Liberty and the United Nations Standard Minimum Rules for
the Administration of Juvenile Justice (the Beijing Rules), in accordance with paragraph 7
of its methods of work. The Working Group notes that Egypt informed the Secretary-
General on 31 July 2003 that it had decided to withdraw its reservation made upon its
signature of the Convention on the Rights of the Child on 5 February 1990, and confirmed
its ratification of the Convention on 6 July 1990. Moreover, the Working Group takes notes
of the views of the Committee on the Rights of the Child, which urged Egypt not to carry
out the death penalty on children or on persons who were under the age of 18 at the time of
the commission of the crime, in compliance with its obligations under international and
domestic law (CRC/C/EGY/CO/3-4, para. 39).
Category I
51.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without any legal basis being invoked.
52.
In line with article 9 (1) of the Covenant, no one shall be deprived of his or her
liberty except on such grounds and in accordance with such procedures as are established
by law. The source submits, and the Government does not contest, that the minor was not
presented with an arrest warrant or informed of the reasons for his arrest when he was taken
into custody on 2 March 2015. The Working Group recalls the right to be presented with an
arrest warrant to ensure the exercise of effective control by a competent, independent and
impartial judicial authority, which is procedurally inherent in the right to liberty and
security and the prohibition of arbitrary deprivation of liberty under articles 3 and 9 of the
Universal Declaration of Human Rights, article 9 (1) of the Covenant and article 37 (b) of
the Convention on the Rights of the Child, as well as principles 2, 4 and 10 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.4 The Working Group finds no valid grounds to justify exception to this
principle in the present case and finds a violation of article 9 of the Universal Declaration
2 General Assembly resolution 72/180; Commission on Human Rights resolutions 1991/42 and
1997/50; and Human Rights Council resolutions 6/4 and 10/9.
3 Opinions No. 1/1998, para. 13; No. 5/1999, para. 15; No. 1/2003, para. 17; No. 76/2017, para. 49; and
No. 94/2017, para. 47.
4 Opinions No. 51/2018, para. 80; 63/2018, para. 27; 68/2018, para. 39; 82/2018, para. 29.
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of Human Rights, article 9 (1) and (2) of the Covenant, article 40 (2) (b) (ii) of the
Convention on the Rights of the Child and principle 10 of the Body of Principles.5
53.
Moreover, the source argues that the minor was not promptly informed of any
charges against him. Article 9 (2) of the Covenant requires that a person who has been
arrested be given prompt notice of any charges in order to facilitate the determination of
whether provisional detention is appropriate.6 In this case, the minor was first informed of
the charges on 21 May 2015, which therefore amounts to a failure to promptly inform him
of the charges and violates article 9 (2) of the Covenant. The Working Group thus
concludes that the first 11 weeks of detention after his arrest are without any legal basis.
54.
The source further maintains, and the Government does not dispute, that the minor
was held incommunicado between 2 March 2015 and 22 May 2015, for a period of more
than 80 days. Such deprivation of liberty, entailing a refusal to disclose the fate or
whereabouts or to acknowledge detention, lacks any valid legal basis under any
circumstance and is inherently arbitrary as it places the person outside the protection of the
law in violation of article 6 of the Universal Declaration of Human Rights and article 16 of
the Covenant.7
55.
The Working Group also notes that the minor was not brought promptly before a
judge, that is within 24 hours of his arrest, barring absolutely exceptional circumstances, as
per the international standard.8 The minor was also not 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 articles 3, 8 and 9 of the Universal Declaration of Human
Rights; article 2 (3) and article 9 (1), (3) and (4) of the Covenant; article 37 (d) of the
Convention on the Rights of the Child; and principles 11, 32 and 37 of the Body of
Principles.9 In addition, it is indicated in the report of the Working Group on 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 (A/HRC/30/37,
paras. 2 and 3) that the right to challenge the lawfulness of detention before a court is a self-
standing human right, the absence of which constitutes a human rights violation, and that
that right is essential to preserve legality in a democratic society. This right applies to all
forms and situations of deprivation of liberty.10
56.
In addition, the Working Group observes that the death sentence against the minor
for the offences he is alleged to have committed when he was below 18 years of age is in
contravention of article 6 (5) of the Covenant and article 37 (a) of the Convention on the
Rights of the Child.11
57.
For these reasons, the Working Group considers that the minor’s arrest, detention and
death sentence lack a legal basis and are thus arbitrary, falling under category I.
Category III
58.
The Working Group will now consider whether the alleged violations of the right to
a fair trial and due process were grave enough to give the minor’s deprivation of liberty an
arbitrary character, so that it falls within category III.
59.
First, the source explains that the minor did not have the opportunity to prepare his
defence with a lawyer, as he was only allowed to meet him for the first time at his detention
5 See also articles 14 (3) and 16 (1) of the Arab Charter on Human Rights.
6 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para.
30.
7 See also the Declaration on the Protection of All Persons from Enforced Disappearance; article 22 of
the Arab Charter on Human Rights; article 5 of the African Charter on Human and Peoples’ Rights;
and opinion No. 82/2018, para. 28.
8 Committee on the Rights of the Child, General Comment No. 10 (2007) on children’s rights in
juvenile justice, para. 83.
9 See also articles 12, 14 (5) and (6), and 23 of the Arab Charter on Human Rights.
10 Opinion No. 39/2018, para. 35.
11 See also article 5 (3) of the African Charter on the Rights and Welfare of the Child.
A/HRC/WGAD/2019/29
10
renewal hearing on about 5 June 2015, and that meeting was not held in private. The source
submits that the minor was tortured and questioned by the prosecutor without the presence
of his lawyer. The minor was not able to speak to his lawyer, except during hearings, and
could not consult him to prepare for his defence. The Working Group thus considers that
the interrogation of the minor without the presence of his lawyer deprived him of his right
to legal counsel at the critical stage of criminal proceedings and removed the effective
checks against torture and other coercive means used to extract his confession. Moreover,
the Working Group takes note of the fact that the minor’s family was denied access to the
trial and that the minor raised the allegations of torture during the trial, but the allegations
were not followed by any investigation, in contravention of his right to a fair and public
hearing by a competent, independent and impartial tribunal established by law. The
Working Group therefore finds serious violations of articles 10 and 11 (1) of the Universal
Declaration of Human Rights; article 14 (1) and (3) (d) of the Covenant; and article 40 (2)
(b) (ii) and (iii) of the Convention on the Rights of the Child.12
60.
The source also contends, and the Government does not rebut, that the mass trial
conducted together with 29 other defendants undermined the due process of the minor, his
fair trial rights and the presumption of innocence guaranteed by article 11 (1) of the
Universal Declaration of Human Rights, article 14 (2) of the Covenant and article 40 (2) (b)
(i) of the Convention on the Rights of the Child.13 The Working Group is also of the view
that such mass trials are incompatible with the interest of justice or human rights.
61.
The Working Group cannot fail to express its gravest concern at the allegations of
torture and ill-treatment, which would amount to violations of articles 5 and 25 (1) of the
Universal Declaration of Human Rights, articles 7 and 10 (1) of the Covenant and articles
24 (1) and 37 (a) and (c) of the Convention on the Rights of the Child. The Working Group
therefore refers the present case to the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment for further consideration.14
62.
In the Working Group’s view, not only is torture a grave violation of human rights
per se, but it also undermines the ability of persons to defend themselves and hinders their
exercise of the right to a fair trial, especially in the light of the right not to be compelled to
testify against oneself or to confess guilt, pursuant to article 14 (3) (g) of the Covenant,
article 15 of the Convention against Torture and article 40 (2) (b) (iv) of the Convention on
the Rights of the Child.15
63.
Given the above, the Working Group concludes that the violations of the right to a
fair trial and due process are of such gravity as to give the minor’s deprivation of liberty an
arbitrary character that falls within category III.
Category V
64.
The Working Group will now examine whether the minor’s deprivation of liberty
constitutes discrimination under international law with respect to category V.
65.
The source maintains, and the Government does not contest, that the minor has been
targeted by the Government as a form of retribution against his father, who worked as a
youth athletics coordinator for the regime of the former President and has refused to
support the current regime. The minor’s brother was also arrested, detained and prosecuted
in similar circumstances, and was tried and sentenced to a term of 15 years. To the source,
this is another indication of the Government’s motivation to retaliate against their father,
which the Government did not contest.
12 See also articles 12, 13 (1) and 16 (2) and (3) of the Arab Charter on Human Rights; article 7 (1) (c)
of the African Charter on Human and Peoples’ Rights; and article 17 (2) (c) (iii) of the African
Charter on the Rights and Welfare of the Child.
13 See also article 16 of the Arab Charter on Human Rights; article 7 (1) (b) of the African Charter on
Human and Peoples’ Rights; and article 17 (2) (c) (i) of the African Charter on the Rights and
Welfare of the Child.
14 Opinion No. 39/2018, para. 42.
15 See also article 16 (6) of the Arab Charter on Human Rights.
A/HRC/WGAD/2019/29
11
66.
The Working Group is of the view that this case relates to the political opinion of the
minor’s father and considers it as retaliation, therefore falling under category V, rather than
category II.
67.
The Working Group reaffirms that no one should be deprived of his or her liberty for
the crimes, real or not, committed by his or her family member by birth or marriage in a
free, democratic society. The practice of collective punishment or guilt by association has
no place in modern criminal law, which is built upon the principle of individual criminal
responsibility.16
68.
Therefore, the Working Group considers that the minor’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 Covenant 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.
69.
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 has found the Government to
be in violation of its international human rights obligations. 17 The Working Group is
concerned that this indicates a systemic problem with arbitrary detention in Egypt, which, if
it continues, could amount to a serious violation of international law.18 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 could constitute
crimes against humanity.
70.
Finally, the Working Group expresses its grave concern in relation to the death
sentence imposed on the minor. Given the finding of the Working Group that he was
arbitrarily deprived of his liberty without any legal basis and in violation of his right to a
fair trial and non-discrimination, the Working Group urges the Government not to proceed
with carrying out the death sentence. The Working Group also reminds the Government
that the General Assembly in its resolution 73/175 of 17 December 2018 called upon all
States to establish a moratorium on executions with a view to abolishing the death penalty.
Disposition
71.
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 2, 3,8, 9,
10, 11 (1) of the Universal Declaration of Human Rights; articles 2 (1), 6 (5), 9 (1),
(2), (3) and (4), 14 (1), (2), (3) (d) and (g), 16 and 26 of the International Covenant
on Civil and Political Rights; and articles 24 (1), 37 (a), (b), (c) and (d), and 40 (2)
(b) (ii), (iii) and (iv) of the Convention on the Rights of the Child is arbitrary and
falls within categories I, III and V.
72.
The Working Group requests the Government of Egypt to take the steps necessary to
remedy the situation of the minor without delay and 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.
73.
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.
74.
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.
16 Opinions No. 33/2017, para. 98, and No. 38/2018, para. 76.
17 See, for example, opinions No. 83/2017, No. 26/2018, No. 27/2018, No. 47/2018, No. 63/2018, No.
82/2018 and No. 87/2018.
18 Opinion No. 47/2018, para. 85.
A/HRC/WGAD/2019/29
12
75.
The Working Group requests the Government to end the practice of mass trials,
which are incompatible with the right to a fair trial and the presumption of innocence under
international law.
76.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on extrajudicial, summary or arbitrary
executions, and the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment.
77.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
78.
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.
79.
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.
80.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of 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.
81.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and has 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.19
[Adopted on 3 May 2019]
19 Human Rights Council resolution 33/30, paras. 3 and 7.