A/HRC/WGAD/2020/6

GE.20-07802(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-seventh session, 27 April–1 May 2020

Opinion No. 6/2020 concerning Ahmed Tarek Ibrahim Abd El-Latif

Ziada (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 42/22.

2.

In accordance with its methods of work (A/HRC/36/38), on 10 January 2020 the

Working Group transmitted to the Government of Egypt a communication concerning

Ahmed Tarek Ibrahim Abd El-Latif Ziada. 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/2020/6

General Assembly

Distr.: General

12 June 2020

Original: English

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Submissions

Communication from the source

4.

Ahmed Tarek Ibrahim Abd El-Latif Ziada is an Egyptian citizen from Nahia, Giza,

and a graphic designer, affiliated to the April 6th Movement.

a.

Arrest and detention

5.

According to the source, on 18 February 2018 at 3.30 a.m., Mr. Ziada was arrested

at his house by State security forces, of whom some were uniformed and others were in

plain clothes. No warrant or official documents were shown to provide a reason for his

arrest.

6.

The source indicates that the State security forces raided the house and searched his

belongings. Mr. Ziada was also questioned for an hour before being arrested and taken to an

unknown place.

7.

The source reports that Mr. Ziada was forcibly disappeared and kept

incommunicado in the State security premises in Sheikh Zayed City for four days, until 21

February 2018. Mr. Ziada was blindfolded and had his hands tied behind his back. He

underwent psychological torture, as on a daily basis he heard other detainees being given

electric shocks.

8.

The source submits that a complaint was filed with the public prosecutor by Mr.

Ziada’s family within 10 hours of the arrest, for enforced disappearance. The complaint was

registered under No. 2253 on 19 February 2018.

9.

The source states that Mr. Ziada was referred to the Supreme State Security

Prosecution on 21 February 2018, where he was charged with affiliation to a terrorist group

and propagation of false news.

10.

The source reports that the detainee was then transferred, on 21 February 2018, to

Tora Prison. There he was prevented from practising physical exercise. In addition, he was

not examined by any doctor or medical services during his stay and no medical report was

issued.

11.

The source adds that Mr. Ziada’s lawyer was able to see him for the first time on 25

February 2018, for his second appearance before the Supreme State Security Prosecution.

Mr. Ziada’s detention was then renewed every 15 days by the prosecutor, pending further

investigation.

12.

The source reports that, after the initial period of incommunicado detention, family

visits were allowed regularly but were subjected to harassment by the guards.

13.

The source notes that Mr. Ziada is the sole suspect in this case. For the first two

months of his pretrial detention, he was held together with detainees convicted on terrorism

charges, before being transferred to another cell.

14.

According to the source, Mr. Ziada’s lawyer submitted eight appeals to challenge

the detention renewal orders. All of these appeals were ignored except for one, which was

heard on 25 September 2018 and rejected.

15.

The source indicates that on 28 May 2019, the court ordered Mr. Ziada’s release

conditional upon precautionary measures. He was only released 10 days later, on condition

that he reported twice a week to the Kirdasa police station in Giza. On 1 October 2019,

these conditions were reduced to one weekly visit to the police station. However, the police

administration has refused to apply this decision and continues to force Mr. Ziada to report

to the police station twice a week, without a legal basis.

16.

The source reports that on 16 February 2020, the Supreme State Security

Prosecution decided to cancel the precautionary measures and ordered Mr. Ziada’s release

with his case, No. 467 of 2018, still pending. He is now completely free, but has not been

acquitted of the charges. According to the source, this approach is used by security forces to

keep the victim in constant fear of arrest in relation to the same case when needed.

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b.

Legal analysis

17.

The source submits that several violations of the right to a fair trial occurred during

Mr. Ziada’s detention. These included violations of the right to trial before an independent

and impartial court, of the right to the assistance of a lawyer prior to the trial, of the right to

be promptly brought before a judge, and of the right to communicate and receive visits, as

well as psychological coercion.

18.

In particular, the source emphasizes that it is stated in article 9 (5) of the

International Covenant on Civil and Political Rights that “anyone who has been the victim

of unlawful arrest or detention shall have an enforceable right to compensation”. In addition,

it is stipulated in article 9 (1) of the Covenant that “everyone has the right to liberty and

security of person. No one shall be subjected to arbitrary arrest or detention. No one shall

be deprived of his liberty except on such grounds and in accordance with such procedure as

are established by law.”

19.

The source also notes that according to the Committee against Torture, the right to

freedom from torture and other ill-treatment or punishment is absolute. It applies in all

circumstances, and it may never be restricted, including during times of war or states of

emergency. No exceptional circumstances whatsoever, including threats of terrorism or

other violent crime, may be invoked to justify torture or other ill-treatment. Such

prohibition applies irrespective of the offence allegedly committed by the accused person.

20.

According to the source, Mr. Ziada was submitted to psychological torture through

blindfolding and threats, which constitutes illegal coercive pressure.

21.

The source also emphasizes that the Human Rights Committee, in its general

comment No. 13 (1984) on the administration of justice, raised concerns regarding the

nature of military or special courts and stated that quite often the reason for the

establishment of such courts is to enable exceptional procedures to be applied which do not

comply with normal standards of justice.

22.

The source contends that the State security courts are active during the state of

emergency and that their jurisdiction covers a wide array of crimes, such as terrorism-

related offences. Their judgments are final and irrevocable and are submitted to the

President for ratification. The President can reduce, annul or commute the sentence, and

can order a retrial before another court if he wants to increase the sentence.

23.

The source points out that the fact that Mr. Ziada was prevented from challenging

his detention before a higher court violates the essence of the right to a fair trial, and

breaches the independence and the impartiality of the judiciary. Indeed, the President

appoints the members of the courts on recommendation from the ministers of defence and

of justice, and has the last word on sentences. According to the Special Rapporteur on the

independence of judges and lawyers, the body responsible for appointment, promotion and

discipline of judges should be independent of the executive in both its composition and its

work (A/HRC/11/41, paras. 23–34 and 97).

24.

The source further recalls that everyone arrested or detained has the right to the

assistance of legal counsel. The right to legal counsel prior to trial includes the right to have

the lawyer present during questioning and be able to consult with him or her during

questioning. According to the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment, this right is a safeguard for the rights of the accused

and serves as an important protection against torture and other ill-treatment, coerced

“confessions”, enforced disappearance and other human rights violations.

25.

The source indicates that, in this particular case, Mr. Ziada was questioned in the

absence of his lawyer on 21 February 2018 during his first interview with the prosecutor.

This constitutes a violation of his right to the assistance of a lawyer during questioning.

26.

The source submits that according to article 9 (3) of the Covenant, “anyone arrested

or detained on a criminal charge shall be brought promptly before a judge or other officer

authorized by law to exercise judicial power and shall be entitled to trial within a

reasonable time or to release. It shall not be the general rule that persons awaiting trial shall

be detained in custody, but release may be subject to guarantees to appear for trial.” In

addition, according to article 9 (4) of the Covenant, and article 17 (2) (f) of the International

Convention for the Protection of All Persons from Enforced Disappearance, everyone

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deprived of their liberty has the right to take proceedings before a court to challenge the

lawfulness of their detention. The court must rule without delay and order release if the

detention is unlawful.

27.

The source emphasizes that this right safeguards the right to liberty and security of

person and provides protection against human rights violations including torture and other

ill-treatment, arbitrary detention and enforced disappearance. This right is guaranteed to all

people deprived of their liberty, for whatever reason. It also applies to all forms of

deprivation of liberty, including administrative detention and, as a result, detention on

grounds of public security.

28.

According to the source, the facts of the case show that Mr. Ziada was forcibly

disappeared and was not brought promptly before a judge.

29.

The source states that the rights of detainees to communicate with the outside world

and to receive visits are fundamental safeguards against human rights violations, including

torture or other ill-treatment and enforced disappearance. They affect the ability of the

accused to prepare their defence and are required in order to protect the right to private and

family life and the right to health. The Human Rights Committee has also stated that the

rights of people held in police custody and pretrial detention to access doctors, families and

lawyers should be enshrined in law.

30.

The source contends that the right of Mr. Ziada to communicate with his family was

violated at the beginning of his detention.

31.

Considering all of the above, the source submits that Mr. Ziada’s detention and the

probation measures that followed are arbitrary under categories I, II and III.

Response from the Government

32.

On 10 January 2020, 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 10 March 2020, detailed information about

the current situation of Mr. Ziada and any comments on the source’s allegations. Moreover,

the Working Group called upon the Government to ensure Mr. Ziada’s physical and mental

integrity.

33.

The Working Group regrets that it did not receive a response from the Government

to that communication, nor did the Government request an extension of the time limit for its

reply as provided for in paragraph 16 of the Working Group’s methods of work.

Discussion

34.

At the outset, the Working Group notes Mr. Ziada’s release 10 days after the court

order of 28 May 2019 and the prosecution’s decision to cancel the precautionary measures

and to order his release with his case, No. 467 of 2018, still pending. Following his release,

the Working Group has the option of filing the case or rendering an opinion as to the

arbitrariness of the detention, in conformity with paragraph 17 (a) of its methods of work.

In this particular case, the Working Group has decided to render the present opinion, given

the absence of a response from the Government, in conformity with paragraph 15 of its

methods of work. In making this decision, the Working Group gives particular weight to

the fact that, although Mr. Ziada has been released: (a) the circumstances in which he was

detained were serious and warrant further attention, as he was allegedly subjected to

enforced disappearance and incommunicado detention; (b) he was deprived of liberty for

one year and three months in prison; (c) the police refused to release him for 10 days

following the court order of 28 May 2019 prescribing the precautionary measure of

reporting to the police station; (d) he remained under house arrest, which the Working

Group considers as deprivation of liberty, 1 until the cancellation of the precautionary

measures on 16 February 2020; (e) from 1 October 2019, when the precautionary measures

had been reduced to one weekly visit to the police station, to 16 February 2020, when the

precautionary measures were lifted, the police continued to force him to report to the police

1 Deliberation No. 1 (E/CN.4/1993/24, para. 20); deliberation No. 9 (A/HRC/22/44, para. 59); and

opinion No. 54/2015, para. 87.

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station twice a week, without a legal basis; (f) the security forces can still keep him in

constant fear of deprivation of liberty in relation to the same case, as he has not been

acquitted of the charges; and (g) the Government has failed to share information about the

present case, including his release, let alone provide guarantees of non-repetition.2

35.

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.

36.

The Working Group wishes to reaffirm that States have 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 and

regional standards set forth in the Universal Declaration of Human Rights, the International

Covenant on Civil and Political Rights and other applicable international and regional

instruments.3 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.4

Category I

37.

The Working Group will first consider whether there have been violations under

category I, which concerns deprivation of liberty without any legal basis.

38.

The source submits, and the Government does not contest, that Mr. Ziada was not

presented with an arrest warrant or informed of the reasons for his arrest at the time of

arrest on 18 February 2018.

39.

As the Working Group has stated, in order for a deprivation of liberty to have a legal

basis, it is not sufficient for there to be a law authorizing the arrest. The authorities must

invoke that legal basis and apply it to the circumstances of the case through an arrest

warrant, which was not implemented in the present case.5

40.

The international human rights law on detention includes 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 of person and the prohibition of arbitrary deprivation under articles 3

and 9 of the Universal Declaration of Human Rights and article 9 (1) of the Covenant, 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.6 The Working Group has been presented

with no valid grounds, such as a situation of flagrante delicto, to justify an exception to this

principle in the present case. Furthermore, the search of his property without a warrant also

violated article 12 of the Universal Declaration of Human Rights and article 17 (1) and (2)

of the Covenant.

41.

The Working Group also finds that, in order to invoke a legal basis for deprivation

of liberty, the authorities should have informed Mr. Ziada of the reasons for his arrest, at

the time of arrest, and promptly informed him of the charges against him.7 Their failure to

2 Opinions No. 88/2017, para. 21; and No. 94/2017, para. 44.

3 General Assembly resolution 72/180, fifth preambular paragraph; Commission on Human Rights

resolutions 1991/42, para. 2; and 1997/50, para. 15; and Human Rights Council resolutions 6/4,

para. 1 (a); and 10/9.

4 See, for example, opinions No. 1/1998, para. 13; No. 51/2019, para. 53; and No. 56/2019, para. 74.

5 See, for example, opinions No. 93/2017, para. 44; No. 45/2019, para. 51; and No. 46/2019, para. 51.

6 The Working Group has maintained from its early years that the practice of arresting persons without

a warrant renders their detention arbitrary. See, for example, decision No. 1/1993, paras. 6–7; and

opinions No. 51/2019, para. 56; and No. 56/2019, para. 77. See also article 6 of the African Charter

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

7 See, for example, opinion No. 10/2015, para. 34. See also, for example, opinions No. 45/2019,

para. 51; and No. 46/2019, para. 51.

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do so violates article 9 of the Universal Declaration of Human Rights and article 9 (2) of

the Covenant, as well as principle 10 of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment, and renders his arrest devoid of

any legal basis.8

42.

The source further maintains, and the Government again does not dispute, that Mr.

Ziada was subjected to enforced disappearance and incommunicado detention for four days

from 18 February to 21 February 2018.

43.

The Working Group recalls that enforced disappearances violate numerous

substantive and procedural provisions of the Covenant, including articles 9 and 14, and

constitute a particularly aggravated form of arbitrary detention.9 Such deprivation of liberty,

entailing a refusal to disclose the fate or whereabouts of the persons concerned or to

acknowledge their 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.10

The Working Group refers the present case to the Working Group on Enforced or

Involuntary Disappearances.

44.

The Working Group further recalls that it has consistently stated that holding

persons incommunicado is not permitted under international human rights law11 because it

violates the right to be brought promptly before a judge and to challenge the lawfulness of

detention before a court, enshrined in article 9 (3) and (4) of the Covenant.12 The Working

Group regards judicial oversight of deprivation of liberty as a fundamental safeguard of

personal liberty which is essential in ensuring that detention has a legal basis. Such

oversight by an independent judicial authority was absent in the present case. The Working

Group thus considers that the incommunicado detention violates article 10 of the Universal

Declaration of Human Rights and article 9 (3) and (4) of the Covenant. As a result, Mr.

Ziada’s right to an effective remedy under article 8 of the Universal Declaration of Human

Rights and article 2 (3) of the Covenant was also violated.

45.

In view of the facts, the Working Group finds that Mr. Ziada was not brought

promptly before a judge, within 48 hours of his arrest, barring absolutely exceptional

circumstances, which is the international standard. 13 Moreover, it finds that pretrial

detention, which should be the exception rather than the rule, was in the present case not

based on an individualized determination of necessity and reasonableness that took into

account all the circumstances, for such purposes specified in law as to prevent flight,

interference with evidence or the recurrence of crime, accompanied by consideration of

alternatives; consequently, his detention was without a legal basis. 14 Therefore, the

Working Group finds a violation of article 9 of the Universal Declaration of Human Rights

and article 9 (1) and (3) of the Covenant as well as of principles 11, 37 and 38 of the Body

of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment.15

8 See also article 6 of the African Charter on Human and Peoples’ Rights and article 14 (1) and (3) of

the Arab Charter on Human Rights.

9 See Human Rights Committee, general comment No. 35 (2014) on liberty and security of person,

para. 17. See also opinions No. 11/2020, No. 5/2020 and No. 13/2020.

10 See the Declaration on the Protection of All Persons from Enforced Disappearance. See, for example,

opinions No. 82/2018, para. 28; No. 51/2019, para. 58; and No. 56/2019, para. 79; as well as article 5

of the African Charter on Human and Peoples’ Rights and article 22 of the Arab Charter on Human

Rights.

11 A/HRC/13/39/Add.5, para. 156.

12 See, for example, opinions No. 45/2019, No. 44/2019 and No. 45/2017.

13 See Human Rights Committee, general comment No. 35, para. 33, citing Kovsh v. Belarus

(CCPR/C/107/D/1787/2008), paras. 7.3–7.5. See also CCPR/C/79/Add.89, para. 17;

CCPR/C/SLV/CO/6, para. 14; and CCPR/CO/70/GAB, para. 13. See, for example, opinions

No. 57/2016, paras. 110–111; No. 76/2019, para. 38; and No. 82/2019, para. 76.

14 See Human Rights Committee, general comment No. 35, para. 38. See also A/HRC/19/57, paras. 48–

58.

15 See also article 6 of the African Charter on Human and Peoples’ Rights and article 14 (1) and (5) of

the Arab Charter on Human Rights.

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46.

The Working Group further observes that Mr. Ziada was 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, articles 2 (3) and 9 (1) and (4) of the Covenant, as well as principles 11, 32 and 37

of the Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment.16 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 indicate 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 is

essential to preserve legality in a democratic society (A/HRC/30/37, paras. 2–3). This right,

which is in fact a peremptory norm of international law, applies to all forms and situations

of deprivation of liberty.17

47.

The Working Group notes that Mr. Ziada has been subjected to pretrial detention by

preventive detention orders issued and extended in a series of hearings by the Supreme

State Security Prosecution. In view of Human Rights Committee general comment No. 35

(2014) on liberty and security of person (see para. 32), the Working Group considers that

such prosecuting authorities cannot be considered as competent, independent and impartial

officers ensuring judicial power. The absence of such judicial authority violates article 9 (3)

of the Covenant. Moreover, the Working Group observes, and raises grave concern,

regarding the fact that the near-automatic extension of pretrial detention by prosecutors for

prolonged periods of time is a common practice 18 and is not based on individualized

determinations or periodic judicial reviews.

48.

The Working Group also notes that for 10 days the police failed to implement the

court order of 28 May 2019 to release Mr. Ziada, in violation of article 9 of the Universal

Declaration of Human Rights and article 9 (1) of the Covenant.

49.

The Working Group further recalls that vaguely and broadly worded provisions,

which cannot qualify as lex certa, violate the due process of law which is undergirded by

the principle of legality in article 11 (2) of the Universal Declaration of Human Rights.

Furthermore, the Working Group notes that the Human Rights Committee has found, in its

jurisprudence, that detention pursuant to proceedings that are incompatible with article 15

(1) of the Covenant are necessarily arbitrary within the meaning of article 9 (1) of the

Covenant.19

50.

In this light, the Working Group considers that the vague provisions of the Penal

Code, the Telecommunication Regulation Law (Law No. 10 of 2003) and the Anti-

Terrorism Law (Law No. 94 of 2015) cannot qualify as lex certa and may be used to

deprive individuals of their liberty without a specific legal basis and violate the due process

of law underpinned by the principle of legality that is stipulated in article 11 (2) of the

Universal Declaration of Human Rights and article 15 (1) of the Covenant. The Working

Group considers that the provisions of the Anti-Terrorism Law (Law No. 94 of 2015),

which prescribe various prison terms for harmless online postings, are neither necessary to

protect the public, or private interests, against injury, nor proportionate to guilt. In addition,

the requirements of lex praevia, lex stricta, lex certa and lex scripta must be construed

more strictly in proportion to the severity of the prescribed punishment. As the Working

Group has previously stated, the principle of legality requires that laws be formulated with

sufficient precision so that the individual can access and understand the law, and regulate

his or her conduct accordingly.20

51.

The Working Group also emphasizes that laws that are vaguely and/or broadly

worded may have a deterrent effect on the exercise of the rights and freedoms of

individuals, as they have the potential to cause abuse, including arbitrary deprivation of

16 See also article 6 of the African Charter on Human and Peoples’ Rights and article 14 (1) and (6) of

the Arab Charter on Human Rights.

17 Opinion No. 39/2018, para. 35.

18 See, for example, opinions No. 63/2018, No. 82/2018, No. 87/2018, No. 29/2019, No. 41/2019 and

No. 65/2019.

19 Fardon v. Australia (CCPR/C/98/D/1629/2007), para. 7.4 (2). See opinions No. 41/2017, para. 99;

No. 36/2017, para. 103; and No. 20/2017, para. 51.

20 See opinions No. 62/2018, para. 57; and No. 42/2019, para. 60.

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liberty.21 The Working Group therefore reiterates the concerns expressed by the Special

Rapporteur on the promotion and protection of human rights and fundamental freedoms

while countering terrorism, about the recent amendments to the Anti-Terrorism Law (Law

No. 94 of 2015) that could result in more abuses and more chilling effect, not less,22 and

refers the case to this Special Rapporteur.

52.

For these reasons, the Working Group considers that Mr. Ziada’s deprivation of

liberty lacks a legal basis and is thus arbitrary, falling under category I.

Category III

53.

The source alleges, and the Government does not contest, that Mr. Ziada was not

able to be assisted by his lawyer on 21 February 2018 during his first appearance before the

Supreme State Security Prosecution and that he was able to do so for the first time on 25

February 2018 during his second interrogation. The Working Group considers that the

denial of access to legal counsel at such a critical stage undermined the ability to mount an

effective legal defence. As the Working Group has stated in principle 9 and guideline 8 of

the United Nations Basic Principles and Guidelines on Remedies and Procedures on the

Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, persons

deprived of their liberty have the right to legal assistance by counsel of their choice at any

time during their detention, including immediately after the moment of apprehension, and

such access is to be provided without delay. The Working Group finds that the authorities

failed to respect the right of Mr. Ziada to legal assistance at all times, which is inherent in

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

competent, independent and impartial tribunal established by law, under articles 3, 9, 10

and 11 (1) of the Universal Declaration of Human Rights and articles 9 (1) and 14 (1) of the

Covenant. The Working Group therefore finds a serious violation of these articles as well as

of principles 17 and 18 of the Body of Principles for the Protection of All Persons under

Any Form of Detention or Imprisonment.23

54.

The Working Group further notes the denial of Mr. Ziada’s right to be visited by and

to correspond with his family and to be given adequate opportunity to communicate with

the outside world, subject to reasonable conditions and restrictions as specified by law or

lawful regulations in accordance with principle 19 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment. The Human

Rights Committee has observed in its general comment No. 35 (see para. 58) that giving

prompt and regular access to family members, as well as to independent medical personnel

and lawyers, is an essential and necessary safeguard for the prevention of torture and for

protection against arbitrary detention and infringement of personal security. In view of the

allegations that Mr. Ziada was held, for a period of two months, with convicted individuals,

the Working Group also recalls principle 8 of the Body of Principles in which it is stated

that “persons in detention shall be subject to treatment appropriate to their unconvicted

status. Accordingly, they shall, whenever possible, be kept separate from imprisoned

persons.”

55.

The Working Group also concludes that Mr. Ziada’s pretrial detention which began

on 18 February 2018 and lasted for over one year and three months without an

individualized judicial determination has undermined the presumption of innocence

guaranteed under article 11 (1) of the Universal Declaration of Human Rights and article 14

(2) of the Covenant as well as principle 36 (1) of the Body of Principles for the Protection

of All Persons under Any Form of Detention or Imprisonment.24

56.

Furthermore, there can be no justification for such a prolonged pretrial detention

with no prospect of a trial – a manifest violation of the right to be tried without undue delay

21 See opinion No. 10/2018, para. 55.

22 Office of the United Nations High Commissioner for Human Rights, “Egypt’s updated terrorism law

opens the door to more rights abuses, says UN expert”, available at

www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25787.

23 See also article 7 (1) (c) of the African Charter on Human and Peoples’ Rights and arts. 12, 13 (1) and

16 (2) and (3) of the Arab Charter on Human Rights.

24 See also article 7 (1) (b) of the African Charter on Human and Peoples’ Rights and article 16 of the

Arab Charter on Human Rights.

A/HRC/WGAD/2020/6

9

that is guaranteed under articles 10 and 11 (1) of the Universal Declaration of Human

Rights and article 14 (1) and (3) (c) of the Covenant.25

57.

The Working Group also expresses its gravest concern at the prima facie credible

allegation of psychological torture of Mr. Ziada as he listened to other detainees being

tortured, while he was blindfolded and had his hands tied behind his back. The Working

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

or degrading treatment or punishment, for further consideration.

58.

The Working Group also considers that the Emergency State Security Courts, which

are trying Mr. Ziada, do not meet the international standard for a competent, independent

and impartial tribunal as their judges are appointed by the President upon recommendation

from the defence and justice ministers, in violation of articles 10 and 11 (1) of the Universal

Declaration of Human Rights and article 14 (1) of the Covenant.26 These special courts also

do not permit appeal for the defendants, a right guaranteed by article 14 (5) of the

Covenant.27

59.

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 Mr. Ziada’s deprivation of liberty an

arbitrary character that falls within category III.

60.

The Working Group notes that the present opinion is only one of many other

opinions in recent years in which the Working Group has found the Government to be in

violation of its international human rights obligations.28 The Working Group is concerned

that this indicates a systemic problem with arbitrary detention in Egypt, which, if it

continues, may amount to a serious violation of international law.29 The duty to comply

with international human rights standards that are peremptory and are erga omnes norms,

such as the prohibition of arbitrary deprivation of liberty and life as well as of torture and

enforced disappearance, rests with all State organs, officers and agents, as well as with all

other natural and legal persons. 30 The Working Group recalls that, under certain

circumstances, widespread or systematic imprisonment or other severe deprivation of

liberty in violation of the rules of international law may constitute crimes against

humanity.31

61.

Lastly, the Working Group would welcome the opportunity to visit Egypt in order to

engage with the Government in a constructive manner.

Disposition

62.

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

The deprivation of liberty of Ahmed Tarek Ibrahim Abd El-Latif Ziada, being in

contravention of articles 3, 6, 8, 9, 10, 11 (1) and (2) and 12 of the Universal

Declaration of Human Rights, and of articles 2 (3), 9 (1), (2), (3) and (4), 14 (1), (2),

(3) (b), (c) and (d) and (5), 15 (1), 16, and 17 (1) and (2) of the International

25 See also article 7 (1) (d) of the African Charter on Human and Peoples’ Rights and article 13 (1) of

the Arab Charter on Human Rights.

26 Opinion No. 63/2018, para. 20.

27 See also article 16 (7) of the Arab Charter on Human Rights.

28 See, for example, opinions No. 6/2016, No. 7/2016, No. 41/2016, No. 42/2016, No. 54/2016,

No. 60/2016, No. 30/2017, No. 78/2017, No. 83/2017, No. 26/2018, No. 27/2018, No. 47/2018,

No. 63/2018, No. 82/2018, No. 87/2018, No. 21/2019, No. 29/2019, No. 41/2019, No. 42/2019,

No. 65/2019 and No. 77/2019.

29 Opinion No. 47/2018, para. 85.

30 The domestic political and judicial organs are under a positive obligation to ensure an effective

remedy and reparation for violations of international human rights law by removing the statute of

limitations, sovereign immunity, the forum non conveniens doctrine or other procedural obstacles to

redress in such cases through legislative or judicial action. See opinions No. 52/2014, para. 51;

No. 42/2019, para. 68; No. 51/2019, para. 80; and No. 56/2019, para. 97. See also CAT/C/CAN/CO/6,

para. 15; and CAT/C/CAN/CO/7, paras. 40–41.

31 A/HRC/13/42, para. 30; and see, for example, opinions No. 1/2011, para. 21; No. 51/2017, para. 57;

and No. 56/2017, para. 72.

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10

Covenant on Civil and Political Rights, is arbitrary and falls within categories I and

III.

63.

The Working Group requests the Government of Egypt to take the steps necessary to

remedy the situation of Mr. Ziada 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.

64.

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

case, the appropriate remedy would be to formally drop all outstanding charges against Mr.

Ziada so that he no longer faces the risk of being detained again for those charges, and

accord him an enforceable right to compensation and other reparations, in accordance with

international law. In the current context of the global coronavirus disease (COVID-19)

pandemic and the threat that it poses in places of detention, the Working Group calls upon

the Government to take urgent action to ensure the immediate release of Mr. Ziada.

65.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Ziada and to take appropriate measures against those responsible for the violation of his

rights.

66.

The Working Group requests the Government to bring its laws, in particular the

Anti-Terrorism Law (Law No. 94 of 2015), into conformity with the recommendations

made in the present opinion and with the commitments made by Egypt under international

human rights law.

67.

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 Working Group on Enforced or Involuntary

Disappearances, and the Special Rapporteur on the promotion and protection of human

rights and fundamental freedoms while countering terrorism, for appropriate action.

68.

The Working Group encourages the Government to ratify the Optional Protocol to

the International Covenant on Civil and Political Rights, the Optional Protocol to the

International Covenant on Economic, Social and Cultural Rights, the International

Convention for the Protection of All Persons from Enforced Disappearance and the Rome

Statute of the International Criminal Court.

69.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

70.

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

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

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

(a)

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

(b)

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

(c)

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

Ziada’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.

71.

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.

72.

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

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11

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.

73.

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.32

[Adopted on 1 May 2020]

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