A/HRC/WGAD/2019/77, Opinion no. 77/2019 concerning Mohamed Hassan Alim Shareef...

Opinion; Subjects: EGYPT, SUDAN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Erwägungen (50 Absätze)

E. 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 42/22.

E. 2 In accordance with its methods of work (A/HRC/36/38), on 28 March 2019 the Working Group transmitted to the Government of Egypt a communication concerning Mohamed Hassan Alim Shareef, also known as Mohamed Boshi. The Government has not replied to the communication. The State is a party to the Covenant.

E. 3 In accordance with its methods of work, on 28 March 2019 the Working Group also transmitted to the Government of the Sudan the same communication concerning Mr. Boshi. The Government replied to the communication on 1 April 2019. The State is a party to the International Covenant on Civil and Political Rights.

E. 4 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); United Nations A/HRC/WGAD/2019/77 General Assembly Distr.: General 20 February 2020 Original: English A/HRC/WGAD/2019/77 2 (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). Submissions Communication from the source Background

E. 5 Mohamed Hassan Alim Shareef, also known as Mohamed Boshi, is a citizen of the Sudan born on 1 January 1985. Mr. Boshi is a political activist and a former member of the opposition Baath Party. His address of usual residence before his arrest was in Cairo.

E. 6 According to the source, in 2011, Mr. Boshi was arrested by the National Intelligence and Security Service and detained in Khartoum for several weeks for having publicly criticized an adviser of the President. Reportedly, during this period of detention, Mr. Boshi was subjected to torture in the form of severe beatings and held in inhumane conditions of detention.

E. 7 The source further explains that, in 2013, as part of the crackdown by the authorities on the nationwide demonstrations that had taken place that year, Mr. Boshi was arrested again by the National Intelligence and Security Service and detained for more than a month. During that period, he was subjected to torture in the form of severe beatings and held in inhumane conditions of detention.

E. 8 The source indicates that, owing to threats, violations of his rights, and the need for medical treatment for the injuries caused by torture during his detention, Mr. Boshi moved to Cairo in 2017. There, he sought the protection of the Office of the United Nations High Commissioner for Refugees (UNHCR) and applied for asylum. From Egypt, Mr. Boshi continued criticizing the Government of the Sudan through social media. Arrest and detention in Egypt

E. 9 The source reports that, during the night of 6 October 2018, Mr. Boshi was arrested at his apartment in Cairo by eight members of the Egyptian State security service without any warrant or explanation of the reasons for his arrest. Following his arrest, he was brought to an unknown location and detained incommunicado. Detention in the Sudan

E. 10 Allegedly, on 9 October 2018, the National Intelligence and Security Service contacted Mr. Boshi’s family to inform them that Mr. Boshi had been sent back to the Sudan and was in its custody, but refused to disclose his whereabouts. According to the source, this refusal to disclose Mr. Boshi’s location amounts to enforced disappearance.

E. 11 The source indicates that, on 8 November 2018, the director of the external relations department of the National Intelligence and Security Service announced to the press that the State security prosecution had opened a criminal case against Mr. Boshi. He declared that Mr. Boshi was being charged under the Penal Code (1991) with complicity to execute a criminal agreement (section 21), undermining the constitutional order (section 50), waging war against the State (section 51), espionage (section 53), sectarian hatred (section 64), propagation of false news (section 66), breach of public peace (section 69) and public nuisance (section 77). Mr. Boshi was also charged under the Cybercrime Act (2007) with fraud or impersonation (article 11), breach of public order and morality (article 14) and defamation (article 17), based on a request submitted by the legal department of the National Intelligence and Security Service. The source highlights that some of the charges against Mr. Boshi are punishable with the death penalty.

E. 12 The source reports that, following this declaration, Mr. Boshi’s relatives went to the police station located at the State security prosecutor’s office and requested authorization to A/HRC/WGAD/2019/77 3 provide Mr. Boshi with clothes and food. However, they were informed by the police officers that Mr. Boshi was not under its custody. On 19 November 2018, his family submitted a complaint to the first deputy prosecutor of the State security prosecution requesting to be informed of Mr. Boshi’s whereabouts and to be granted access to him, but to no avail.

E. 13 The source explains that, on 27 November 2018, one of Mr. Boshi’s family members was able to visit him at the National Intelligence and Security Service detention centre at Kober Prison in Khartoum, for one hour. Mr. Boshi was reportedly transferred to Kober Prison in order to meet with his family, but he was unable to identify the location of the detention facility in which he was being held because the National Intelligence and Security Service handcuffed and blindfolded him during the transfer. Since this visit, his family and lawyer have not been allowed to visit or contact him again. His lawyer has been submitting requests every day to the National Intelligence and Security Service to visit him. However, the Service has never allowed him to visit his client in prison, with the justification that interrogations were still ongoing.

E. 14 On 7 December 2018, Mr. Boshi was presented before the State security prosecution without the presence of his lawyer, who was informed of the meeting only after it had taken place.

E. 15 According to the source, despite having been officially charged, Mr. Boshi has not yet been brought to trial. The State security prosecutor has been renewing his pretrial detention for further investigations and legal proceedings. General context

E. 16 According to the source, this case is in the context of a pattern of recurrent human rights violations by the National Intelligence and Security Service against journalists, political activists and members of the opposition in the Sudan.1 The source claims that the National Intelligence and Security Service systematically arrests individuals deemed to be opposing the authorities, and targets, in particular, journalists, members of the opposition, political activists, human rights defenders, students and peaceful protesters. In support of these claims, the source highlights the 2018 concluding observations of the review of the Sudan by the Human Rights Committee (CCPR/C/SDN/CO/5, para. 41). In addition, the source alleges that there is a pattern of arrests by the National Intelligence and Security Service of individuals who are then subjected to enforced disappearance by being held incommunicado for periods ranging from a few days to several years. While in custody, detainees are held with no charge, judicial review or trial, and they are systematically subjected to torture and/or ill-treatment as a form of punishment or to coerce them into signing self-incriminating statements.

E. 17 According to the source, this pattern of violations committed by the National Intelligence and Security Service against journalists and political activists in the Sudan is a direct consequence of the lack of fundamental legal protection in the domestic legislation. In particular, the source notes that the Human Rights Committee has stated that the legal regime governing arrest and detention in the Sudan is incompatible with article 9 of the Covenant (ibid., para. 41). For example, the source explains that articles 50 and 51 of the National Security Act (2010) do not mention the obligation to provide a judicial warrant in order to arrest an individual, nor do they mention the obligation to inform detained individuals of the charges against them and to provide them with legal assistance. Thus, as noted by the Human Rights Committee, under article 51 of the Act, suspects may be detained for up to four and a half months without judicial oversight (ibid., para. 41). Furthermore, the source indicates that under article 51 the detainee’s access to the outside 1 For this claim, the source refers to the following: African Centre for Justice and Peace Studies, “More detainees released as Sudanese authorities continue to target individuals with travel bans, arbitrary arrests and incommunicado detention”, 4 April 2018. Available at www.acjps.org/more-detainees- released-as-sudanese-authorities-continue-to-target-individuals-with-travel-bans-arbitrary-arrests-and- incommunicado-detention. A/HRC/WGAD/2019/77 4 world is conditional upon the approval of the detaining officers that such access “does not prejudice the progress of interrogation, enquiry and investigation”.

E. 18 The source notes that the Human Rights Committee highlighted that under article 79 of the Criminal Procedure Code, a custody period of up to two weeks is contemplated before the suspect is formally charged (ibid., para. 41). The source therefore alleges that the Code fails to prescribe the obligation to bring an arrested person before a judicial authority within 48 hours.2 Additionally, articles 4, 83 and 135 of the Code do not explicitly set a time limit by which a detained person is allowed to contact his lawyer and family, and makes such contact conditional upon the approval of the prosecution.

E. 19 The source also recalls that article 52 of the National Security Act, article 45 of the Police Act (2008), and articles 34 and 42 of the Armed Forces Act (2007) provide immunity from prosecution to members of the National Intelligence and Security Service, the police and the armed forces respectively. The source notes that the Human Rights Committee described such immunity as a barrier to a general system of accountability, free from undue political influence (CCPR/C/SDN/CO/5, para. 37). The immunity may be lifted only at the discretion of the heads of the respective forces, who routinely refuse to do so, without any judicial review available to monitor and challenge their decisions.3 This lack of legal protection in the domestic legislation is in contrast with the broad mandate given to the National Intelligence and Security Service under the National Security Act. In this context, the source claims that, under article 24 of that Act, the National Intelligence and Security Service has extensive and vaguely defined competences, including to protect the national security of the Sudan, its Constitution and the “social fabric and safety of its people”, to collect information and conduct searches and investigations relating to threats to national security, and to “detect threats” from activities such as “espionage, terrorism, extremism, conspiracy and sabotage”. This large scope of jurisdiction given to the security force allows it to interfere directly with the right of freedom of opinion and expression of journalists, opponents and other members of civil society. Furthermore, the National Security Act does not mention individuals’ right to challenge the decisions and actions of the National Intelligence and Security Service affecting their rights before an independent judicial body.

E. 20 The source reports that the National Security Council was established in 2010 under article 7 of the National Security Act, and is chaired by the President. According to article 25 of the National Security Act, the Council has the power to conduct investigations and to arrest and detain individuals. Legal analysis

E. 21 The source recalls that Mr. Boshi was arrested and forcibly disappeared after freely expressing his opinions in the media and on social networks and as a direct consequence of his published work. Thus, according to the source, Mr. Boshi’s arrest and detention amount to a violation of his right to freedom of expression under article 19 of the Covenant. The source further alleges that no restrictions, as provided for in article 19 (3) of the Covenant, are applicable in this case. Since Mr. Boshi was arrested as a result of having exercised his right to freedom of expression, his arrest and detention also amount to an arbitrary deprivation of liberty in violation of article 9 of the Covenant.

E. 22 The source further claims that Mr. Boshi was arrested without having been shown any warrant or provided with any reasons for his arrest, in breach of article 9 of the Covenant. Following his arrest, Mr. Boshi was held in secret and in incommunicado detention, thus being subjected to enforced disappearance, which amounts to a prima facie form of arbitrary detention in breach of article 9 of the Covenant, to torture in violation of article 7 of the Covenant, and to a violation of the fair trial guarantees enshrined in article 14 of the Covenant. 2 The sources refer specifically to articles 4, 75, 77, 79, 80, 81 and 83 of the Code. 3 The source refers to the African Commission on Human and Peoples’ Rights, Monim Elgak, Osman Hummeida and Amir Suliman (represented by FIDH and OMCT) v. Sudan, communication 379/09, March 2014, para. 25. A/HRC/WGAD/2019/77 5

E. 23 The source argues that, despite the authorities’ acknowledgement of Mr. Boshi’s detention and despite the fact that his family has been able to visit him once in Kober Prison, his whereabouts remain unknown at the time of the submission. Based on the definition of “enforced disappearance” in the Declaration on the Protection of All Persons from Enforced Disappearance, which includes an arrest by agents of the State followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, the source therefore claims that Mr. Boshi remains forcibly disappeared at the time of the submission.

E. 24 Lastly, the source argues that, during the past periods of detention prior to his enforced disappearance, Mr. Boshi had been repeatedly subjected to torture that had permanently affected his health. In light of this fact, the source claims that Mr. Boshi’s forced return to the Sudan constituted a violation by Egypt of its obligations under the principle of non-refoulement, in breach of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The source therefore argues that the authorities of both the Sudan and Egypt have violated article 7 of the Covenant and are thus responsible for the violation of Mr. Boshi’s right not to be subjected to torture. Response from the Government

E. 25 On 28 March 2019, the Working Group submitted an identical communication to each of the two defendant States.

E. 26 On 1 April 2019, the Government of the Sudan submitted its response. It confirms that Mr. Boshi was arrested in accordance with the Penal Code and was charged pursuant to articles 50, 51, 53 and 69 for incitement of hatred against the State. The Government further indicates that Mr. Boshi’s rights under the Criminal Procedure Code have been respected.

E. 27 The Government of the Sudan states that, at the time of submission of the response, Mr. Boshi’s trial is ongoing, with the last hearing held on 21 March 2019, and that he is represented by a defence team.

E. 28 The Government of the Sudan further states that it will keep the Working Group informed in due course of the court’s ruling and the case details. In addition, the Government reaffirms its commitment to all human rights instruments and its cooperation with the Working Group.

E. 29 On 14 May 2019, the Government of Egypt requested an extension to the deadline, which was granted, with a new deadline of 27 June 2019. However, the Government failed to submit any response before the Working Group’s eighty-sixth session. Further observations from the source

E. 30 Upon receipt of the response from the Government of the Sudan, the Working Group notified the source. The source then submitted the following additional information.

E. 31 The source reports that it was informed that Mr. Boshi had been released on 15 April 2019 and that all the charges against him had been dropped pursuant to a decision by the Transitional Military Council.

E. 32 The source submits that Mr. Boshi has not been provided with adequate, effective and prompt reparations and remedies for the enforced disappearance and arbitrary detention to which he was subjected. The source requests that reparations include measures of compensation for the physical and mental harm suffered, for the related legal and medical expenses and for the lost employment opportunities, as well as full physical and psychological rehabilitation.

E. 33 Furthermore, the source argues that, as a guarantee of non-repetition, domestic laws and practice concerning the deprivation of liberty – especially the National Security Act and the Criminal Procedure Code – must be amended to ensure compliance with international and human rights standards. A/HRC/WGAD/2019/77 6 Discussion

E. 34 Two Member States are concerned in this case. The Government of one responded, while the Government of the other did not. Despite the absence of a response from the Government of Egypt, the Working Group has decided to render the present opinion, in conformity with paragraph 15 of its methods of work. The Working Group is grateful for the cooperation of the source and the Government of the Sudan.

E. 35 The Working Group acknowledges the information about the release of Mr. Boshi. However, the circumstances of the case are such that the Working Group considers it still relevant to render an opinion on whether the deprivation of liberty was arbitrary, pursuant to paragraph 17 (a) of its methods of work.

E. 36 The Working Group considers that the source is reliable and the information that it brought for consideration has been corroborated in its core elements by the Government of the Sudan, in particular the arrest and the detention.

E. 37 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 of Egypt has chosen not to challenge the prima facie credible allegations made by the source, while the Government of the Sudan has provided a brief response without any supporting evidence.

E. 38 The source alleges that Mr. Boshi was arrested without a warrant. This is a violation of the obligation set in article 9 (1) of the Covenant. He was not promptly informed of the charges against him: it eventually took approximately 30 days for the charges were made known to him. These allegations constitute violations of article 9 (2) of the Covenant.

E. 39 In addition, Mr. Boshi was held incommunicado – first in Egypt, then in the Sudan – which prevented him from communicating with the outside world, including his family and lawyer. It is worth recalling that incommunicado detention is a priori arbitrary, as it places the detainee outside the protection of the law. In this case, Mr. Boshi was also forcibly disappeared – first in Egypt for three days, and then in the Sudan for almost a month – since his family was only informed of his detention on 8 November 2018. These serious allegations have not been contested by either Government and are therefore considered credible by the Working Group.

E. 40 The source submits that, as at the date of the submission, Mr. Boshi had still not been brought before a judge. The Government of the Sudan has answered this allegation by stating that, as at the date of its reply, a trial was ongoing. However, the Working Group notes that the only hearing date shared by the Government of the Sudan is 21 March 2019, which is six months after the arrest. He was therefore unable to challenge the legality of his arrest and detention and he was not brought promptly before a judge, as required by article 9 (3) and (4) of the Covenant.

E. 41 Considering all of these violations, the Working Group concludes that Mr. Boshi’s arrest in Egypt and detention in Egypt and the Sudan are arbitrary, falling within category I.

E. 42 As the Working Group has previously observed,4 freedom of expression includes the right to seek, receive and impart information and ideas of all kinds regardless of frontiers. This right also encompasses the expression and receipt of communications of every form of idea and opinion capable of transmission to others, including political opinions. Moreover, the permitted restrictions to this right may relate either to respect of the rights or reputations of others or to the protection of national security, public order (ordre public), public health or morals. As the Human Rights Committee has stipulated, restrictions are not allowed on grounds not specified in article 19 (3) of the Covenant, even if such grounds would justify restrictions to other rights protected in the Covenant, and restrictions must be applied only 4 See opinions No. 32/2019 and No. 16/2017. A/HRC/WGAD/2019/77 7 for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.5

E. 43 From the facts of the case as stated by the source, which are partially corroborated in the reply from the Government of the Sudan, Mr. Boshi was charged for expressing publicly his views on politics in his country of nationality. Freedom of expression is protected through article 19 of the Covenant. While article 19 (3) provides for restrictions on freedom of expression under certain conditions, the Government has not presented any argument to justify such restriction in this case. The charges were eventually, and rightly, dismissed by the court. However, the Working Group can still conclude that Mr. Boshi’s arrest and detention resulted from the exercise of his freedom of expression.

E. 44 Moreover, the Working Group notes that Mr. Boshi requested international protection in Egypt. His status as an asylum seeker entailed a prohibition of his transfer to a country in which he would face a real risk of irreparable harm – in this case the country that he was fleeing, the Sudan – and an obligation for the Government of Egypt to grant him all the protections provided for by the Covenant. 6 The principle of non-refoulement is an imperative norm of international law and is established in both customary and conventional law. The Working Group specifically observes that Egypt is a party to both the Convention relating to the Status of Refugees (1951) and the 1Protocol relating to the Status of Refugees (1967), both of which prohibit the refoulement of refugees to their country. Article 14 of the Universal Declaration of Human Rights provides for the right to seek asylum, a right which Mr. Boshi had in Egypt. In addition, article 13 of the Covenant specifically provides for the conditions under which a State Party may expel an alien lawfully in its territory, which have not been demonstrated to have been met in this case by the Government of Egypt. Yet, the Government of Egypt not only arrested him, but subsequently transferred him to the Sudan, where he was immediately detained.

E. 45 Accordingly, an order to remove a person to a State where there is a genuine risk that the person will be detained without legal basis or without charges over a prolonged time, or tried before a court that manifestly follows orders from the executive branch, cannot be considered compatible with the obligation under article 2 of the Covenant for States parties to respect and to ensure to all individuals in their territory and subject to their control the rights recognized in the Covenant.

E. 46 The Working Group therefore concludes that the detention is arbitrary under category II.

E. 47 Given its finding that Mr. Boshi’s deprivation of liberty is arbitrary under category II, the Working Group wishes to emphasize that no trial should have taken place. However, since the trial did take place, the Working Group will now consider whether the alleged violations of the rights to a fair trial and due process were grave enough to give his deprivation of liberty an arbitrary character, so as to fall within category III.

E. 48 The Working Group notes that the direct consequence of the fact that Mr. Boshi was held incommunicado is that he did not have access to a lawyer. The source states that he had no lawyer present at his first hearing with the State security prosecution, on 7 December 2018. The Government of the Sudan failed to address this allegation, but made a general statement that the rights of the accused were respected and that he had a lawyer. However, the Government’s response does not state when the lawyer was appointed and whether he had any meaningful interaction with the accused. The Working Group will therefore trust the information as provided by the source and concludes that this is a violation of Mr. Moshi’s right to legal assistance and his right to be afforded adequate time and facilities to prepare his defence, as provided for by article 14 (3) (b) and (d). 5 Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and expression, para. 22. 6 Human Rights Committee, general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para. 10: “... [T]he enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. ...”. A/HRC/WGAD/2019/77 8

E. 49 The Working Group therefore concludes that the violation of article 14 of the Covenant is so serious that the detention can be considered arbitrary within category III.

E. 50 As stated earlier, this case involves two Governments and both were given an

opportunity to respond. The Governments of Egypt and the Sudan fully cooperated with

one another in the process leading to the complaint: the Government of Egypt arrested and

detained Mr. Boshi, before transferring him to the Sudan, where he was further detained.

The Working Group has concluded that the arrest and detention were arbitrary and fell

within categories I, II and III. The Working Group recalls that it is possible for another

State to share responsibility for human rights violations where its actions contribute to the

arbitrary deprivation of liberty. The complementarity of the actions between the two States

and the continuity in the detention make it logical that the two share responsibility for the

violations. As a result, the two States have a joint obligation to provide reparation to Mr.

Boshi.7

51.

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

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

treatment or punishment, the Special Rapporteur on the promotion and protection of the

right to freedom of opinion and expression and the Special Rapporteur on the independence

of judges and lawyers, and requests both Governments to translate and publish the present

opinion.

52.

In conclusion, the Working Group wishes to express its concerns at the grave

violations of international human rights standards identified in the submissions of the

source that the Government of the Sudan has failed to refute. In order to guarantee non-

repetition of the violations, it is therefore necessary that the National Security Act be

repealed.

Disposition

53.

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

The deprivation of liberty of Mohamed Hassan Alim Shareef, also known as

Mohamed Boshi, being in contravention of article 14 of the Universal Declaration of

Human Rights and articles 2, 9, 13, 14 and 19 of the International Covenant on Civil

and Political Rights, is arbitrary and falls within categories I, II and III.

54.

The Working Group requests the Government of Egypt and the Government of the

Sudan to take the steps necessary to remedy the situation of Mr. Boshi 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.

55.

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

case, the appropriate remedy would be to accord Mr. Boshi an enforceable right to

compensation and other reparations, in accordance with international law. In addition, the

Government of the Sudan must repeal its current National Security Act or amend it to bring

it in conformity with international law.

56.

The Working Group urges both Governments to ensure a full and independent

investigation of the circumstances surrounding the arbitrary arrest and subsequent

deprivation of liberty of Mr. Boshi and to take appropriate measures against those

responsible for the violation of his rights.

57.

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

refers the present case to the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment, the Special Rapporteur on the promotion and protection

of the right to freedom of opinion and expression and the Special Rapporteur on the

independence of judges and lawyers, for appropriate action.

7 See opinions No. 56/2016, No. 53/2016 and No. 50/2014.

A/HRC/WGAD/2019/77

58.

The Working Group requests both Governments to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

59.

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

requests the source and both Governments to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

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

(b)

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

(c)

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

Boshi’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 and the Sudan with their international

obligations in line with the present opinion;

(e)

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

60.

Both Governments are invited to inform the Working Group of any difficulties they

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.

61.

The Working Group requests the source and both Governments 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.

62.

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.8

[Adopted on 21 November 2019]

8 Human Rights Council resolution 42/22, paras. 3 and 7.

Volltext (verifizierbarer Originaltext)

GE.20-02667(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-sixth session, 18–22 November 2019

Opinion No. 77/2019 concerning Mohamed Hassan Alim Shareef (Egypt

and Sudan)

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 42/22.

In accordance with its methods of work (A/HRC/36/38), on 28 March 2019 the

Working Group transmitted to the Government of Egypt a communication concerning

Mohamed Hassan Alim Shareef, also known as Mohamed Boshi. The Government has not

replied to the communication. The State is a party to the Covenant.

In accordance with its methods of work, on 28 March 2019 the Working Group also

transmitted to the Government of the Sudan the same communication concerning Mr.

Boshi. The Government replied to the communication on 1 April 2019. The State is a party

to the International Covenant on Civil and Political Rights.

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);

United Nations

A/HRC/WGAD/2019/77

General Assembly

Distr.: General

20 February 2020

Original: English

A/HRC/WGAD/2019/77

(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).

Submissions

Communication from the source

Background

Mohamed Hassan Alim Shareef, also known as Mohamed Boshi, is a citizen of the

Sudan born on 1 January 1985. Mr. Boshi is a political activist and a former member of the

opposition Baath Party. His address of usual residence before his arrest was in Cairo.

According to the source, in 2011, Mr. Boshi was arrested by the National

Intelligence and Security Service and detained in Khartoum for several weeks for having

publicly criticized an adviser of the President. Reportedly, during this period of detention,

Mr. Boshi was subjected to torture in the form of severe beatings and held in inhumane

conditions of detention.

The source further explains that, in 2013, as part of the crackdown by the authorities

on the nationwide demonstrations that had taken place that year, Mr. Boshi was arrested

again by the National Intelligence and Security Service and detained for more than a month.

During that period, he was subjected to torture in the form of severe beatings and held in

inhumane conditions of detention.

The source indicates that, owing to threats, violations of his rights, and the need for

medical treatment for the injuries caused by torture during his detention, Mr. Boshi moved

to Cairo in 2017. There, he sought the protection of the Office of the United Nations High

Commissioner for Refugees (UNHCR) and applied for asylum. From Egypt, Mr. Boshi

continued criticizing the Government of the Sudan through social media.

Arrest and detention in Egypt

The source reports that, during the night of 6 October 2018, Mr. Boshi was arrested

at his apartment in Cairo by eight members of the Egyptian State security service without

any warrant or explanation of the reasons for his arrest. Following his arrest, he was

brought to an unknown location and detained incommunicado.

Detention in the Sudan

10.

Allegedly, on 9 October 2018, the National Intelligence and Security Service

contacted Mr. Boshi’s family to inform them that Mr. Boshi had been sent back to the

Sudan and was in its custody, but refused to disclose his whereabouts. According to the

source, this refusal to disclose Mr. Boshi’s location amounts to enforced disappearance.

11.

The source indicates that, on 8 November 2018, the director of the external relations

department of the National Intelligence and Security Service announced to the press that the

State security prosecution had opened a criminal case against Mr. Boshi. He declared that

Mr. Boshi was being charged under the Penal Code (1991) with complicity to execute a

criminal agreement (section 21), undermining the constitutional order (section 50), waging

war against the State (section 51), espionage (section 53), sectarian hatred (section 64),

propagation of false news (section 66), breach of public peace (section 69) and public

nuisance (section 77). Mr. Boshi was also charged under the Cybercrime Act (2007) with

fraud or impersonation (article 11), breach of public order and morality (article 14) and

defamation (article 17), based on a request submitted by the legal department of the

National Intelligence and Security Service. The source highlights that some of the charges

against Mr. Boshi are punishable with the death penalty.

12.

The source reports that, following this declaration, Mr. Boshi’s relatives went to the

police station located at the State security prosecutor’s office and requested authorization to

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provide Mr. Boshi with clothes and food. However, they were informed by the police

officers that Mr. Boshi was not under its custody. On 19 November 2018, his family

submitted a complaint to the first deputy prosecutor of the State security prosecution

requesting to be informed of Mr. Boshi’s whereabouts and to be granted access to him, but

to no avail.

13.

The source explains that, on 27 November 2018, one of Mr. Boshi’s family

members was able to visit him at the National Intelligence and Security Service detention

centre at Kober Prison in Khartoum, for one hour. Mr. Boshi was reportedly transferred to

Kober Prison in order to meet with his family, but he was unable to identify the location of

the detention facility in which he was being held because the National Intelligence and

Security Service handcuffed and blindfolded him during the transfer. Since this visit, his

family and lawyer have not been allowed to visit or contact him again. His lawyer has been

submitting requests every day to the National Intelligence and Security Service to visit him.

However, the Service has never allowed him to visit his client in prison, with the

justification that interrogations were still ongoing.

14.

On 7 December 2018, Mr. Boshi was presented before the State security prosecution

without the presence of his lawyer, who was informed of the meeting only after it had taken

place.

15.

According to the source, despite having been officially charged, Mr. Boshi has not

yet been brought to trial. The State security prosecutor has been renewing his pretrial

detention for further investigations and legal proceedings.

General context

16.

According to the source, this case is in the context of a pattern of recurrent human

rights violations by the National Intelligence and Security Service against journalists,

political activists and members of the opposition in the Sudan.1 The source claims that the

National Intelligence and Security Service systematically arrests individuals deemed to be

opposing the authorities, and targets, in particular, journalists, members of the opposition,

political activists, human rights defenders, students and peaceful protesters. In support of

these claims, the source highlights the 2018 concluding observations of the review of the

Sudan by the Human Rights Committee (CCPR/C/SDN/CO/5, para. 41). In addition, the

source alleges that there is a pattern of arrests by the National Intelligence and Security

Service of individuals who are then subjected to enforced disappearance by being held

incommunicado for periods ranging from a few days to several years. While in custody,

detainees are held with no charge, judicial review or trial, and they are systematically

subjected to torture and/or ill-treatment as a form of punishment or to coerce them into

signing self-incriminating statements.

17.

According to the source, this pattern of violations committed by the National

Intelligence and Security Service against journalists and political activists in the Sudan is a

direct consequence of the lack of fundamental legal protection in the domestic legislation.

In particular, the source notes that the Human Rights Committee has stated that the legal

regime governing arrest and detention in the Sudan is incompatible with article 9 of the

Covenant (ibid., para. 41). For example, the source explains that articles 50 and 51 of the

National Security Act (2010) do not mention the obligation to provide a judicial warrant in

order to arrest an individual, nor do they mention the obligation to inform detained

individuals of the charges against them and to provide them with legal assistance. Thus, as

noted by the Human Rights Committee, under article 51 of the Act, suspects may be

detained for up to four and a half months without judicial oversight (ibid., para. 41).

Furthermore, the source indicates that under article 51 the detainee’s access to the outside

1 For this claim, the source refers to the following: African Centre for Justice and Peace Studies, “More

detainees released as Sudanese authorities continue to target individuals with travel bans, arbitrary

arrests and incommunicado detention”, 4 April 2018. Available at www.acjps.org/more-detainees-

released-as-sudanese-authorities-continue-to-target-individuals-with-travel-bans-arbitrary-arrests-and-

incommunicado-detention.

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world is conditional upon the approval of the detaining officers that such access “does not

prejudice the progress of interrogation, enquiry and investigation”.

18.

The source notes that the Human Rights Committee highlighted that under article 79

of the Criminal Procedure Code, a custody period of up to two weeks is contemplated

before the suspect is formally charged (ibid., para. 41). The source therefore alleges that the

Code fails to prescribe the obligation to bring an arrested person before a judicial authority

within 48 hours.2 Additionally, articles 4, 83 and 135 of the Code do not explicitly set a

time limit by which a detained person is allowed to contact his lawyer and family, and

makes such contact conditional upon the approval of the prosecution.

19.

The source also recalls that article 52 of the National Security Act, article 45 of the

Police Act (2008), and articles 34 and 42 of the Armed Forces Act (2007) provide

immunity from prosecution to members of the National Intelligence and Security Service,

the police and the armed forces respectively. The source notes that the Human Rights

Committee described such immunity as a barrier to a general system of accountability, free

from undue political influence (CCPR/C/SDN/CO/5, para. 37). The immunity may be lifted

only at the discretion of the heads of the respective forces, who routinely refuse to do so,

without any judicial review available to monitor and challenge their decisions.3 This lack of

legal protection in the domestic legislation is in contrast with the broad mandate given to

the National Intelligence and Security Service under the National Security Act. In this

context, the source claims that, under article 24 of that Act, the National Intelligence and

Security Service has extensive and vaguely defined competences, including to protect the

national security of the Sudan, its Constitution and the “social fabric and safety of its

people”, to collect information and conduct searches and investigations relating to threats to

national security, and to “detect threats” from activities such as “espionage, terrorism,

extremism, conspiracy and sabotage”. This large scope of jurisdiction given to the security

force allows it to interfere directly with the right of freedom of opinion and expression of

journalists, opponents and other members of civil society. Furthermore, the National

Security Act does not mention individuals’ right to challenge the decisions and actions of

the National Intelligence and Security Service affecting their rights before an independent

judicial body.

20.

The source reports that the National Security Council was established in 2010 under

article 7 of the National Security Act, and is chaired by the President. According to article

25 of the National Security Act, the Council has the power to conduct investigations and to

arrest and detain individuals.

Legal analysis

21.

The source recalls that Mr. Boshi was arrested and forcibly disappeared after freely

expressing his opinions in the media and on social networks and as a direct consequence of

his published work. Thus, according to the source, Mr. Boshi’s arrest and detention amount

to a violation of his right to freedom of expression under article 19 of the Covenant. The

source further alleges that no restrictions, as provided for in article 19 (3) of the Covenant,

are applicable in this case. Since Mr. Boshi was arrested as a result of having exercised his

right to freedom of expression, his arrest and detention also amount to an arbitrary

deprivation of liberty in violation of article 9 of the Covenant.

22.

The source further claims that Mr. Boshi was arrested without having been shown

any warrant or provided with any reasons for his arrest, in breach of article 9 of the

Covenant. Following his arrest, Mr. Boshi was held in secret and in incommunicado

detention, thus being subjected to enforced disappearance, which amounts to a prima facie

form of arbitrary detention in breach of article 9 of the Covenant, to torture in violation of

article 7 of the Covenant, and to a violation of the fair trial guarantees enshrined in article

14 of the Covenant.

2 The sources refer specifically to articles 4, 75, 77, 79, 80, 81 and 83 of the Code.

3 The source refers to the African Commission on Human and Peoples’ Rights, Monim Elgak, Osman

Hummeida and Amir Suliman (represented by FIDH and OMCT) v. Sudan, communication 379/09,

March 2014, para. 25.

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23.

The source argues that, despite the authorities’ acknowledgement of Mr. Boshi’s

detention and despite the fact that his family has been able to visit him once in Kober

Prison, his whereabouts remain unknown at the time of the submission. Based on the

definition of “enforced disappearance” in the Declaration on the Protection of All Persons

from Enforced Disappearance, which includes an arrest by agents of the State followed by a

refusal to acknowledge the deprivation of liberty or by concealment of the fate or

whereabouts of the disappeared person, the source therefore claims that Mr. Boshi remains

forcibly disappeared at the time of the submission.

24.

Lastly, the source argues that, during the past periods of detention prior to his

enforced disappearance, Mr. Boshi had been repeatedly subjected to torture that had

permanently affected his health. In light of this fact, the source claims that Mr. Boshi’s

forced return to the Sudan constituted a violation by Egypt of its obligations under the

principle of non-refoulement, in breach of article 3 of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment. The source therefore argues

that the authorities of both the Sudan and Egypt have violated article 7 of the Covenant and

are thus responsible for the violation of Mr. Boshi’s right not to be subjected to torture.

Response from the Government

25.

On 28 March 2019, the Working Group submitted an identical communication to

each of the two defendant States.

26.

On 1 April 2019, the Government of the Sudan submitted its response. It confirms

that Mr. Boshi was arrested in accordance with the Penal Code and was charged pursuant to

articles 50, 51, 53 and 69 for incitement of hatred against the State. The Government

further indicates that Mr. Boshi’s rights under the Criminal Procedure Code have been

respected.

27.

The Government of the Sudan states that, at the time of submission of the response,

Mr. Boshi’s trial is ongoing, with the last hearing held on 21 March 2019, and that he is

represented by a defence team.

28.

The Government of the Sudan further states that it will keep the Working Group

informed in due course of the court’s ruling and the case details. In addition, the

Government reaffirms its commitment to all human rights instruments and its cooperation

with the Working Group.

29.

On 14 May 2019, the Government of Egypt requested an extension to the deadline,

which was granted, with a new deadline of 27 June 2019. However, the Government failed

to submit any response before the Working Group’s eighty-sixth session.

Further observations from the source

30.

Upon receipt of the response from the Government of the Sudan, the Working

Group notified the source. The source then submitted the following additional information.

31.

The source reports that it was informed that Mr. Boshi had been released on 15 April

2019 and that all the charges against him had been dropped pursuant to a decision by the

Transitional Military Council.

32.

The source submits that Mr. Boshi has not been provided with adequate, effective

and prompt reparations and remedies for the enforced disappearance and arbitrary detention

to which he was subjected. The source requests that reparations include measures of

compensation for the physical and mental harm suffered, for the related legal and medical

expenses and for the lost employment opportunities, as well as full physical and

psychological rehabilitation.

33.

Furthermore, the source argues that, as a guarantee of non-repetition, domestic laws

and practice concerning the deprivation of liberty – especially the National Security Act

and the Criminal Procedure Code – must be amended to ensure compliance with

international and human rights standards.

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Discussion

34.

Two Member States are concerned in this case. The Government of one responded,

while the Government of the other did not. Despite the absence of a response from the

Government of Egypt, the Working Group has decided to render the present opinion, in

conformity with paragraph 15 of its methods of work. The Working Group is grateful for

the cooperation of the source and the Government of the Sudan.

35.

The Working Group acknowledges the information about the release of Mr. Boshi.

However, the circumstances of the case are such that the Working Group considers it still

relevant to render an opinion on whether the deprivation of liberty was arbitrary, pursuant

to paragraph 17 (a) of its methods of work.

36.

The Working Group considers that the source is reliable and the information that it

brought for consideration has been corroborated in its core elements by the Government of

the Sudan, in particular the arrest and the detention.

37.

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 of Egypt has chosen not to

challenge the prima facie credible allegations made by the source, while the Government of

the Sudan has provided a brief response without any supporting evidence.

38.

The source alleges that Mr. Boshi was arrested without a warrant. This is a violation

of the obligation set in article 9 (1) of the Covenant. He was not promptly informed of the

charges against him: it eventually took approximately 30 days for the charges were made

known to him. These allegations constitute violations of article 9 (2) of the Covenant.

39.

In addition, Mr. Boshi was held incommunicado – first in Egypt, then in the Sudan –

which prevented him from communicating with the outside world, including his family and

lawyer. It is worth recalling that incommunicado detention is a priori arbitrary, as it places

the detainee outside the protection of the law. In this case, Mr. Boshi was also forcibly

disappeared – first in Egypt for three days, and then in the Sudan for almost a month – since

his family was only informed of his detention on 8 November 2018. These serious

allegations have not been contested by either Government and are therefore considered

credible by the Working Group.

40.

The source submits that, as at the date of the submission, Mr. Boshi had still not

been brought before a judge. The Government of the Sudan has answered this allegation by

stating that, as at the date of its reply, a trial was ongoing. However, the Working Group

notes that the only hearing date shared by the Government of the Sudan is 21 March 2019,

which is six months after the arrest. He was therefore unable to challenge the legality of his

arrest and detention and he was not brought promptly before a judge, as required by article

9 (3) and (4) of the Covenant.

41.

Considering all of these violations, the Working Group concludes that Mr. Boshi’s

arrest in Egypt and detention in Egypt and the Sudan are arbitrary, falling within category I.

42.

As the Working Group has previously observed,4 freedom of expression includes the

right to seek, receive and impart information and ideas of all kinds regardless of frontiers.

This right also encompasses the expression and receipt of communications of every form of

idea and opinion capable of transmission to others, including political opinions. Moreover,

the permitted restrictions to this right may relate either to respect of the rights or reputations

of others or to the protection of national security, public order (ordre public), public health

or morals. As the Human Rights Committee has stipulated, restrictions are not allowed on

grounds not specified in article 19 (3) of the Covenant, even if such grounds would justify

restrictions to other rights protected in the Covenant, and restrictions must be applied only

4 See opinions No. 32/2019 and No. 16/2017.

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for those purposes for which they were prescribed and must be directly related to the

specific need on which they are predicated.5

43.

From the facts of the case as stated by the source, which are partially corroborated in

the reply from the Government of the Sudan, Mr. Boshi was charged for expressing

publicly his views on politics in his country of nationality. Freedom of expression is

protected through article 19 of the Covenant. While article 19 (3) provides for restrictions

on freedom of expression under certain conditions, the Government has not presented any

argument to justify such restriction in this case. The charges were eventually, and rightly,

dismissed by the court. However, the Working Group can still conclude that Mr. Boshi’s

arrest and detention resulted from the exercise of his freedom of expression.

44.

Moreover, the Working Group notes that Mr. Boshi requested international

protection in Egypt. His status as an asylum seeker entailed a prohibition of his transfer to a

country in which he would face a real risk of irreparable harm – in this case the country that

he was fleeing, the Sudan – and an obligation for the Government of Egypt to grant him all

the protections provided for by the Covenant. 6 The principle of non-refoulement is an

imperative norm of international law and is established in both customary and conventional

law. The Working Group specifically observes that Egypt is a party to both the Convention

relating to the Status of Refugees (1951) and the 1Protocol relating to the Status of

Refugees (1967), both of which prohibit the refoulement of refugees to their country.

Article 14 of the Universal Declaration of Human Rights provides for the right to seek

asylum, a right which Mr. Boshi had in Egypt. In addition, article 13 of the Covenant

specifically provides for the conditions under which a State Party may expel an alien

lawfully in its territory, which have not been demonstrated to have been met in this case by

the Government of Egypt. Yet, the Government of Egypt not only arrested him, but

subsequently transferred him to the Sudan, where he was immediately detained.

45.

Accordingly, an order to remove a person to a State where there is a genuine risk

that the person will be detained without legal basis or without charges over a prolonged

time, or tried before a court that manifestly follows orders from the executive branch,

cannot be considered compatible with the obligation under article 2 of the Covenant for

States parties to respect and to ensure to all individuals in their territory and subject to their

control the rights recognized in the Covenant.

46.

The Working Group therefore concludes that the detention is arbitrary under

category II.

47.

Given its finding that Mr. Boshi’s deprivation of liberty is arbitrary under category

II, the Working Group wishes to emphasize that no trial should have taken place. However,

since the trial did take place, the Working Group will now consider whether the alleged

violations of the rights to a fair trial and due process were grave enough to give his

deprivation of liberty an arbitrary character, so as to fall within category III.

48.

The Working Group notes that the direct consequence of the fact that Mr. Boshi was

held incommunicado is that he did not have access to a lawyer. The source states that he

had no lawyer present at his first hearing with the State security prosecution, on 7

December 2018. The Government of the Sudan failed to address this allegation, but made a

general statement that the rights of the accused were respected and that he had a lawyer.

However, the Government’s response does not state when the lawyer was appointed and

whether he had any meaningful interaction with the accused. The Working Group will

therefore trust the information as provided by the source and concludes that this is a

violation of Mr. Moshi’s right to legal assistance and his right to be afforded adequate time

and facilities to prepare his defence, as provided for by article 14 (3) (b) and (d).

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

expression, para. 22.

6 Human Rights Committee, general comment No. 31 (2004) on the nature of the general legal

obligation imposed on States parties to the Covenant, para. 10: “... [T]he enjoyment of Covenant

rights is not limited to citizens of States Parties but must also be available to all individuals,

regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other

persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. ...”.

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49.

The Working Group therefore concludes that the violation of article 14 of the

Covenant is so serious that the detention can be considered arbitrary within category III.

50.

As stated earlier, this case involves two Governments and both were given an