A/HRC/WGAD/2022/23, Opinion No. 23/2022 concerning a minor whose name is known...

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

Volltext (verifizierbarer Originaltext)

GE.22-09084(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-third session, 30 March–8 April 2022

Opinion No. 23/2022 concerning a minor whose name is known to the

Working Group (Egypt)

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,1 on 20 December 2021 the Working Group

transmitted to the Government of Egypt a communication concerning the minor. The

Government has not replied to the communication. The State is a party to the International

Covenant on Civil and Political Rights.

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).

1 A/HRC/36/38.

United Nations

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General Assembly

Distr.: General

13 June 2022

Original: English

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Submissions

Communication from the source

The minor is an Egyptian national, born in 2005. He usually resides in North Sinai

governorate. At the time of his arrest, he had just turned 12 years old and was a student.

Arrest and detention

The source reports that on 5 December 2017, a relative of the minor was arrested and

at midnight on 31 December 2017, military personnel and police officers in uniform and

civilian clothes raided the minor’s house. During the raid, the military personnel reportedly

asked about another of the minor’s relatives and arrested the minor without presenting a

warrant.

According to the source, the minor was subjected to enforced disappearance for nearly

seven months. After he appeared for the first time before the State Security Court, it was

discovered that the minor had been held at the hands of the police and military forces within

the premises of Arish police station and Battalion 101. The source alleges that in Battalion

101, the minor was tortured by national security agents who hung him up by his hands and

put firewood under him to frighten him and force him to confess to crimes that he had not

committed, such as participating in setting up explosions.

The source reports that on 2 July 2018, the minor was brought before the State

Security Court and charged with belonging to a terrorist group and participating in

manufacturing explosions in 2018. Reportedly, the minor was held in solitary confinement

throughout the whole period of his detention. The source notes that the date of his arrest was

officially registered as 2 July 2018 and therefore that the period of involuntary disappearance

was not registered.

According to the source, the minor was prohibited from receiving visits, food, clothes

and medicine. Reportedly, his family was able to see him for the first time on 16 October

2018, during his appearance before the prosecution. The source reports that his lawyer was

able to see him only at his third session before the prosecution, nearly a month and a half

after the first investigation session. The source notes that the minor’s lawyer was not able to

visit him at the detention centre.

Allegedly, the minor was not allowed to take a shower and, as a result, became

infected with furuncles around June 2018. On 16 October 2018, an application for a medical

examination was submitted to the prosecution, but no answer was received.

10.

The source indicates that the minor was detained in Azbakeya police station from 2

July 2018 until 27 December 2018, when the juvenile court that tried the minor ordered his

release. He was transferred to Arish police station to await release. Following his transfer,

his family was not able to see him and was permitted only to deliver food and clothes for

him, which were allegedly collected by the police officers who affirmed that he was present

in Arish police station. Reportedly, on 11 January 2019, the minor’s family asked the officers

about his fate and whereabouts, but the officers at Arish police station denied having him in

custody.

11.

The source notes that the Working Group on Enforced and Involuntary

Disappearances forwarded the case of the minor to the Government of Egypt in 2019. The

Government reportedly replied in 2020, stating that the minor had been handed over to one

of his relatives. Upon verifying that claim, the source was informed that, on 18 January 2019,

one of the minor’s relatives was called to Arish police station and asked to sign the minor’s

release papers as a prerequisite to his release. Reportedly, once the papers had been signed,

the relative was told to go back the next day to collect the minor. However, the source reports

that the minor was not released the next day and that the officers denied that he was present

at Arish police station.

12.

According to the source, the minor’s family later filed a lawsuit before the State

Council against the Public Prosecutor, the Minister of Defence, the Minister of the Interior

and the head of prison administration requesting that they respond to the family’s inquiries

regarding the minor’s whereabouts. Reportedly, while the lawsuit was accepted, it was

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merely an administrative process and the government authorities ignored all requests to

clarify the minor’s fate.

13.

The source reports that, to date, the minor remains under enforced disappearance,

having disappeared on 11 January 2019 and never having been seen since.

Legal analysis

14.

The source argues that the detention of the minor is arbitrary under category III of the

working methods of the Working Group on Arbitrary Detention given that: (a) he was held

responsible for a criminal offence, despite being a minor; (b) he was brought before the State

Security Court, which is a special court; (c) he was subjected to enforced disappearance; (d)

he was tortured; (e) his right to counsel was violated; (f) he was detained in inhumane

conditions and was subjected to torture and ill-treatment; (g) his right to contact with the

outside world was violated; and (h) his right to health was violated.

Criminal responsibility for minors

15.

The source recalls that article 1 of the Convention on the Rights of the Child, article

2 of the African Charter on the Rights and Welfare of the Child and section O (a) of the

Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa define

a child as every human being below the age of 18 years. The source notes that the Committee

on the Rights of the Child concluded that 12 is the lowest internationally acceptable minimum

age of criminal responsibility. As a result, the source submits that not every child can be held

responsible for a criminal offence.

16.

In this regard, the source notes that the minor was detained and charged with

committing a criminal offence allegedly committed before he was 12 years old. The source

also underlines that arresting a child is a matter of concern given that the deprivation of a

child’s liberty must be a measure of last resort. Furthermore, the source recalls that laws

cannot be applied retroactively. As such, the source argues that individuals cannot be held

responsible for crimes committed when they were below the age of 12 years, even if they

were arrested after reaching 12 years old.

17.

The source concludes that the minor, who was arrested just after he had turned 12

years old for an offence allegedly perpetrated before he turned 12, should not have been

charged with committing a crime.

ii.

Use of special courts

18.

The source recalls that the right to a fair trial applies in trials before all courts,

including special or specialized courts and military courts. Nevertheless, the source notes that

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

freedoms while countering terrorism has called on States to avoid using special or specialized

courts in terrorism cases.2

19.

Furthermore, the source notes that, in accordance with principle 5 of the Basic

Principles on the Independence of the Judiciary and sections A (4) (e) and L (c) of the

Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, special

courts should not be created to displace the jurisdiction of ordinary courts, and therefore

should not examine offences falling under the jurisdiction of ordinary courts. In addition, the

source stresses that when special courts exist, they must be independent and impartial, and

must respect fair trial standards.

20.

According to the source, the reason why special courts should be used only

exceptionally is that fair trial rights are more likely to be violated before such courts. The

source notes that human rights bodies have raised concerns about procedures before special

courts that are inconsistent with fair trial rights, including the right to a trial before an

independent and impartial court, the exclusion of evidence obtained by torture or other ill-

treatment and the right to appeal to a higher tribunal.

2 The source refers to A/63/223, para. 45 (b).

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21.

In addition, the source refers to the case of Aboussedra v. Libyan Arab Jamahiryia, in

which the Human Rights Committee concluded that a trial before a special court violated the

individual’s fair trial rights.3

22.

The source contends that juvenile courts should be established for criminal

proceedings against persons who were below the age of 18 years at the time of the alleged

crime. In this regard, the source notes that, even though the minor was tried before a juvenile

court, he should not have been presented before the State Security Court, which it argues

constitutes a special court dealing with specific cases of terrorism. The source adds that

ordinary courts had jurisdiction over the minor’s case and that he should have been

investigated by a prosecutor specialized in children’s cases.

23.

The source concludes that, as a special court, the State Security Court had no

jurisdiction to hear the minor’s case from the outset and he should not have been brought

before it, regardless of whether the criminal acts he was charged with amounted to terrorist

acts.

iii.

Enforced disappearance

24.

The source notes that enforced disappearance is not only arbitrary per se, but is also

considered a violation of the rights to be detained in humane conditions and to be free from

torture and other forms of ill-treatment. The source submits that these rights are fundamental

to achieving a fair trial.

25.

The source emphasizes that article 17 of the International Convention for the

Protection of All Persons from Enforced Disappearance provides that individuals deprived

of their liberty must be held in a place of detention that is officially recognized and that no

one should be held in secret detention. The source submits that children, especially, must not

only be held in official places of detention but must also be treated in a manner consistent

with their dignity and needs, and therefore must be detained in areas specific to children. The

source submits that, in other words, States must establish a separate child-oriented juvenile

justice system, in accordance with article 17 of the Arab Charter on Human Rights and

section O (m) of the Principles and Guidelines on the Right to a Fair Trial and Legal

Assistance in Africa.

26.

In addition, the source argues that enforced disappearance constitutes an act of torture,

in violation of fair trial principles. In this regard, it recalls that the Committee against Torture

found that the enforced disappearance of a victim constituted an act of torture within the

meaning of article 1 of the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment.4

27.

The source argues that by placing the minor in an unknown place for seven months,

the authorities placed him outside of the protection of the law. The source notes that in

addition to violating the law in itself, enforced disappearance provides the opportunity to

violate other rights. According to the source, the minor was more likely to be mistreated and

to make a confession under torture because he was enforcedly disappeared.

28.

In addition, the source submits that enforced disappearance constitutes torture, and

therefore that the minor was submitted to torture. Furthermore, the source contends that the

enforced disappearance violated the minor’s fair trial rights and that the violation of his fair

trial rights was so grave as to give his detention an arbitrary character.

iv.

Right to be free from torture

29.

The source submits that the minor was subjected to torture and ill-treatment, in

violation of national and international norms. In particular, it recalls that article 9 (1) of the

Covenant protects the right of all individuals to liberty and security of person, to be free from

arbitrary arrest or detention, and not to be deprived of their liberty except on such grounds

and in accordance with such procedure as are established by law.

3 CCPR/C/100/D/1751/2008, para. 7.8.

4 CAT/C/54/D/456/2011, para. 6.6.

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30.

The source notes that the right to be free from torture and other forms of ill-treatment

or punishment is absolute, applies in all circumstances, may never be restricted, including

during times of war or states of emergency, and irrespective of the offence allegedly

committed by the accused person. Furthermore, no exceptional circumstances, including

threats of terrorism or other violent crime, may be invoked to justify torture or other forms

of ill-treatment.

31.

The source recalls that the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment stated that blindfolding and psychological threats are

prohibited interrogation techniques and constitute pressure exerted through detention

conditions to counter resistance.5

32.

Furthermore, the source notes that any statement made as a result of torture cannot be

invoked as evidence, in accordance with article 15 of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment. Where allegations or

suspicions arise that a statement was obtained as a result of violations of human rights,

authorities are required to give the accused and the court information about the circumstances

in which it was obtained. The source adds that the court must then assess the issue in a

separate hearing before the evidence is admitted to trial. Consistent with the presumption of

innocence, the prosecution bears the burden of proving beyond reasonable doubt that the

evidence was obtained lawfully.

33.

In this regard, the source submits that the minor was hung up by his hands and that

firewood was placed under him to frighten him and force him to confess crimes he had not

committed. The source argues that such acts, especially when perpetrated against a 12-year-

old child, constitute psychological and physical torture.

34.

The source concludes that torturing a child is a grave crime which requires an

immediate trial of those responsible for the torture. The source adds that the minor’s rights

to a fair trial were violated in a serious manner.

Right to counsel during questioning

35.

The source contends that everyone who is arrested or detained, whether or not on a

criminal charge, and everyone who is facing a criminal charge, has the right to the assistance

of legal counsel, as provided by the Human Rights Committee in its general comment No.

32 (2007) (para. 34). The source submits that although the right to the assistance of a lawyer

during detention, questioning and a preliminary investigation is not expressly provided for in

the Covenant, the Human Rights Committee has stated that it is required for the meaningful

exercise of the right to a fair trial.6 Therefore, the source concludes that the right to counsel

applies to the pretrial phase under the Covenant.

36.

Furthermore, the source submits that suspects and accused, whether or not they are

detained, should have access to and benefit from the assistance of counsel from the very

beginning of a criminal investigation. In particular, the source notes that any persons who are

arrested or detained should be granted access to a lawyer as soon as they are deprived of their

liberty and should benefit from the assistance of counsel during questioning by the police or

investigating judge, even if they choose to exercise their right to remain silent.

37.

The source argues that, during pretrial detention, the right to legal representation

includes the rights to access a lawyer, to have time to consult with the lawyer in confidence,

to have one’s lawyer present during questioning and to be able to consult with them during

questioning.

38.

The source notes that article 16 (4) of the Arab Charter on Human Rights requires that

a lawyer be appointed to represent individuals not represented by counsel of their choice.

39.

The source contends that the minor was not able to meet his lawyer until his third

appearance before the prosecution. Nevertheless, the prosecution proceeded with the first and

5 The source refers to A/56/156, para. 39 (f); A/HRC/13/42, paras. 27–28 and 292 (f);

A/HRC/6/17/Add.3, paras. 33–35; and A/56/156, para. 39 (f).

6 For example, CCPR/C/79/Add.75, para. 27, and CCPR/C/NLD/CO/4, para. 11.

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the second investigation sessions without the presence of the minor’s lawyer, in violation to

his right to counsel. The source argues that the prosecution should have adjourned the

investigation until a lawyer had been appointed.

40.

Furthermore, the source submits that the minor’s lawyer was not able to visit his client

during detention. Reportedly, the minor did not have the opportunity to consult with his

lawyer in confidence and his lawyer was unable to make sure that the minor enjoyed all of

his rights in detention and that none of his rights were violated.

41.

Accordingly, the source concludes that the minimum guarantees of the minor’s right

to counsel were violated.

vi.

Rights to humane detention conditions and freedom from torture and ill-treatment

42.

The source alleges that solitary confinement puts detainees outside of the protection

of the law, especially protection against torture and other ill-treatment, particularly when

solitary confinement is combined with isolation from the outside world, as stated by the

Human Rights Committee in its general comment No. 20 (1992) (para. 6).

43.

Furthermore, the source contends that solitary confinement must not be imposed on

children and, if it is imposed, it should be used only as an exceptional measure, for as short

a time as possible, and under judicial supervision.

44.

Accordingly, the source argues that placing the minor, a child, in solitary confinement

constituted a grave violation of international law. The source recalls that the minor was in

solitary confinement throughout the whole period of his detention in Azbakeya police station

and was isolated from the outside world. According to the source, this placed him outside of

the protection of the law against torture.

45.

The source concludes that placing the minor in solitary confinement violated his right

to humane detention conditions and his right to be free from torture and other forms of ill-

treatment.

vii.

Right to have access to the outside world

46.

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

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

torture, other forms of ill-treatment and enforced disappearance. The source submits that the

violation of these rights affects the ability of accused persons to prepare their defence and

that these rights are required to protect the right to private and family life and the right to

health.

47.

The source recalls that article 17 (2) (d) of the International Convention for the

Protection of All Persons from Enforced Disappearance and principle 19 of the Body of

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

provide that detained and imprisoned persons have the right to communicate with the outside

world, subject only to reasonable conditions and restrictions that are proportionate to a

legitimate aim.

48.

In addition, the source contends that any exception to the right to inform third parties

of the arrest or detention should be strictly limited in time and any delay should not exceed a

matter of days. The source recalls that the Human Rights Committee has indicated that the

right of persons held in police custody or pretrial detention to access defence counsel, a doctor

or their families should be enshrined in law.7

49.

In this regard, the source submits that the minor was able to see his family only once

during the entire year following his arrest on 31 December 2017, until he was brought before

the prosecution. According to the source, after he appeared before the prosecution, he was

detained and banned from receiving visits. As a result, his family reportedly did not know

whether or not the minor was subjected to ill-treatment or torture during his detention.

7 CCPR/C/CAF/CO/2, para. 14.

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50.

The source concludes that the minor’s right to have access to the outside world was

violated, exposing him to possible violations of his rights inside the prison.

viii.

Right to health

51.

The source argues that, under article 12 of the International Covenant on Economic,

Social and Cultural Rights, article 16 of the African Charter on Human and Peoples’ Rights

and rules 25 and 27 of the United Nations Standard Minimum Rules for the Treatment of

Prisoners (the Nelson Mandela Rules), individuals have the right to the highest attainable

standard of physical and mental health. According to the source, this right extends not only

to timely and appropriate health care, but also to underlying determinants of health, such as

adequate food, water and sanitation. The source adds that failure to provide access to

adequate health care has been held to violate the right to health.

52.

In this regard, the source submits that, although the arresting authorities were under

the obligation to assess the minor’s health, he was not examined by any doctor at the place

of detention. The source further contends that, due to the lack of hygiene, the minor was

infected with furuncles. Moreover, the source notes that the minor’s request for medical care

was rejected despite his serious need for a doctor.

53.

The source therefore concludes that the minor did not benefit from the minimum

guarantees to the right to health, which constituted deliberate medical negligence.

Response from the Government

54.

On 20 December 2021 the Working Group transmitted the allegations from the source

to the Government under its regular communications procedure. The Working Group

requested the Government to provide, by 18 February 2022, detailed information about the

current situation of the minor and to clarify the legal provisions justifying his continued

detention, as well as the compatibility of his detention with the obligations of Egypt under

international human rights law and in particular, with regard to the treaties Egypt has ratified.

Moreover, the Working Group called upon the Government of Egypt to ensure the minor’s

physical and mental integrity.

55.

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

notes that the Government did not seek an extension, as it is permitted to do under paragraph

16 of Working Group’s methods of work. In the absence of a response from the Government,

the Working Group has decided to render the present opinion, in conformity with paragraph

15 of its methods of work.

Discussion

56.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

57.

In determining whether the minor’s detention was arbitrary, the Working Group has

regard to the principles established in its jurisprudence to deal with evidentiary issues. If the

source has established a prima facie case for breach of international law constituting arbitrary

detention, the burden of proof should be understood to rest upon the Government if it wishes

to refute the allegations. In the present case, the Government has chosen not to challenge the

prima facie credible allegations made by the source.8

58.

The Working Group wishes to reaffirm that States have the obligation to respect,

protect and fulfil all human rights and fundamental freedoms, including liberty of person, of

all persons and that any national law allowing deprivation of liberty should be made and

implemented in conformity with the relevant international standards set forth in the Universal

Declaration of Human Rights, the Covenant and other applicable international and regional

instruments.9 Consequently, even if the detention is in conformity with national legislation,

8 A/HRC/19/57, para. 68.

9 General Assembly resolution 72/180 and Human Rights Council resolutions 41/2 and 41/17. See also

Commission on Human Rights resolutions 1991/42 and 1997/50, Human Rights Council resolutions

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regulations and practices, the Working Group is entitled and indeed obliged to assess the

circumstances of the detention and the law itself to determine whether such detention is also

consistent with the relevant provisions of international human rights law.10

59.

The source has argued that the detention of the minor is arbitrary and falls under

category III of the working methods of the Working Group as: (a) he was held responsible

for a criminal offence, despite being a minor; (b) he was brought before the State Security

Court, which is a special court; (c) he was subjected to enforced disappearance; (d) he was

tortured; (e) his right to counsel was violated; (f) he was detained in inhumane conditions

and was subjected to torture and ill-treatment; (g) his right to contact with the outside world

was violated; and (h) his right to health was violated.

60.

The Working Group will examine each allegation in turn. Before doing so, the

Working Group wishes to raise an issue which has not been raised by the source, but which

the Working Group nonetheless considers significant – the failure to present an arrest warrant

at the time of the minor’s arrest.

61.

The source indicates that when, at midnight on 31 December 2017, military personnel

and police officers in uniform and civilian clothes raided the minor’s house and arrested the

minor, they did so without presenting a warrant.

Category I

Absence of an arrest warrant

62.

The Working Group recalls that the international 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 and the prohibition of arbitrary deprivation under articles 3

and 9 of the Universal Declaration of Human Rights and principles 2, 4 and 10 of the Body

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

Imprisonment.11

63.

The Working Group is also mindful that article 9 (2) of the Covenant requires that

anyone who is arrested is not only informed of the reasons for the arrest but also promptly

informed of any charges against his or her. As explained by the Human Rights Committee in

its general comment No. 35 (2014), the obligation encapsulated in article 9 (2) has two

elements: information about the reasons for the arrest must be provided immediately upon

arrest (para. 27) and there must be prompt information about the charges provided thereafter

(para. 30).

64.

The Working Group notes that, although at the time of his arrest the raiding forces

reportedly asked about one of the minor’s relatives, no arrest warrant was in fact produced

and the Government has chosen not to contest this. The Working Group therefore concludes

that the arrest of the minor was carried out in violation of article 9 of the Universal

Declaration of Human rights and article 9 of the Covenant and was arbitrary under category

ii.

Criminal responsibility of the minor

65.

The source notes that the minor was arrested just after he had turned 12 years old for

an offence allegedly perpetrated before he was 12 years of age. The source submits that the

minor should not have been charged and detained for the alleged crime.

6/4 and 10/9 and opinions No. 41/2014, para. 24; No. 42/2019, para. 43; No. 13/2020, para. 39; and

No. 32/2020, para. 29.

10 See opinions No. 82/2018, para. 25; No. 76/2019, para. 36; No. 14/2020, para. 45; and No. 32/2020,

para. 29.

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

a warrant renders their detention arbitrary. For more recent jurisprudence, see opinions No. 21/2017,

para. 46; No. 68/2018, para. 39; and No. 34/2020, para. 46. See also art. 14 (1) of the Arab Charter on

Human Rights.

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66.

The Working Group acknowledges that under international human rights law, the

significance of the minimum age of criminal responsibility lies in the recognition that a child

has attained the emotional, mental and intellectual maturity to be held responsible for his or

her actions. The Working Group is thus mindful that a child under the age of criminal

responsibility lacks the capacity to commit a crime, meaning that the child is immune from

criminal prosecution and cannot be formally charged by the authorities with an offence nor

be subjected to any criminal law procedures or measures.

67.

Under article 40 (3) of the Convention on the Rights of the Child, States parties are

encouraged to establish a minimum age below which children are presumed not to have the

capacity to infringe the criminal law. In its general comment No. 24 (2019), the Committee

on the Rights of the Child stated that: “Documented evidence in the fields of child

development and neuroscience indicates that maturity and the capacity for abstract reasoning

is still evolving in children aged 12 to 13 years due to the fact that their frontal cortex is still

developing. Therefore, they are unlikely to understand the impact of their actions or to

comprehend criminal proceedings.” The Committee therefore commended States parties that

had a higher minimum age, for instance 15 or 16 years of age, and urged States parties not to

reduce the minimum age of criminal responsibility under any circumstances, in accordance

with article 41 of the Convention (para. 22). Additional guidance is also provided in rule 4

of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice

(the Beijing Rules), which recommends that any minimum age of criminal responsibility

“shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and

intellectual maturity”. Article 1 of the Convention on the Rights of the Child, article 2 of the

African Charter on the Rights and Welfare of the Child, and section O (a) of the Principles

and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa define a child as

any human being under the age of 18.

68.

The Working Group particularly notes that, as stated by the Committee on the Rights

of the Child in its general comment No. 24 (2019):

Children who are below the minimum age of criminal responsibility at the time of the

commission of an offence cannot be held responsible in criminal law proceedings.

Children at or above the minimum age at the time of the commission of an offence

but younger than 18 years can be formally charged and subjected to child justice

procedures, in full compliance with the Convention. The Committee reminds States

parties that the relevant age is the age at the time of the commission of the offence

(para. 20).

69.

It follows from this that the minor in the present case should never have been arrested,

since the offence that he was alleged to have committed was committed prior to him attaining

12 years of age, which is the age of criminal responsibility set in Egypt. Consequently, by

arresting the minor in the present case, Egypt violated its own domestic legislation as well as

its obligations under article 40 (3) (a) of the Convention on the Rights of the Child. The

Working Group is of the view that the Government of Egypt should have used alternatives

other than arrest or detention, given that the minor had not yet reached the age of criminal

responsibility established by national legislation. The Working Group thus concludes that

there was no valid legal basis for the arrest of the minor and that the arrest consequently

violated article 9 of the Covenant.

iii.

Enforced disappearance

70.

The source refers to a communication sent by the Working Group on Enforced or

Involuntary Disappearances to the Government of Egypt on 3 May 2019 inquiring about the

alleged enforced disappearance of the minor, which the Government allegedly answered on

24 January 2020, explaining that the minor had been released into the care of one of his

relatives. However, the source denies this claim and reports that the minor’s relative was

called to the police station to sign the release papers and to go back the next day to collect

the minor. The next day, however, the police denied that the minor was present at the police

station and as a result, the minor has reportedly been forcibly disappeared since 11 January

2019. Moreover, following his appearance in court, the minor reportedly went missing again

and his whereabouts have been unknown for the past three years. These very serious

allegations were put to the Government, which has chosen not to address them.

A/HRC/WGAD/2022/23

71.

The Working Group finds the allegations of the source credible and therefore

concludes that the minor was subjected to enforced disappearance for seven months after his

arrest, as well as following his court appearance, in violation of article 9 (1) of the Covenant

and articles 37 (c) and 40 (1) of the Convention on the Rights of the Child. Enforced

disappearances are prohibited under international law and constitute a particularly aggravated

form of arbitrary detention.12

72.

As the Working Group has also repeatedly asserted, holding persons at secret,

undisclosed locations and in circumstances undisclosed to the person’s family violates their

right to contest the legality of their detention before a court or tribunal under article 9 (4) of

the Covenant. Judicial oversight of any detention is a central safeguard for personal liberty

and is critical in ensuring that the detention has a legitimate basis. In the present case, given

that the minor is detained at an unknown location, the Working Group finds that his rights to

an effective remedy under article 8 of the Universal Declaration of Human Rights and article

2 (3) of the Covenant were also violated. The Government’s failure to notify the minor’s

family of his arrest and the location of his detention also violated principle 16 (1) of the Body

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

73.

The Working Group is particularly disturbed that the minor was only 12 years of age

at the time of these grave violations of his rights. To place a child at such a young age in the

situation of enforced disappearance for years is an absolute denial of his rights under every

international human rights treaty that Egypt has undertaken to abide by and especially article

9 of the Covenant. The minor was also placed outside the protection of the law, in violation

of his right to be recognized as a person before the law under article 6 of the Universal

Declaration of Human Rights and article 16 of the Covenant. The Working Group condemns

this in the strongest terms and refers the case to the Working Group on Enforced or

Involuntary Disappearances for appropriate action.

74.

Noting the authorities’ failure to present an arrest warrant at the time of the minor’s

arrest, that the minor was arrested for an offence which was allegedly committed prior to him

reaching the age of criminal responsibility established by the national legislation, and that

the minor was subjected to enforced disappearance, the Working Group concludes that the

arrest and subsequent detention of the minor was arbitrary as it lacked a legal basis and

therefore falls under category I.

Category III

Use of special courts

75.

In the present case the source reports that on 2 July 2018, the minor was brought

before the State Security Court and charged with belonging to a terrorist group and

participating in manufacturing explosives. He was reportedly kept in solitary confinement

throughout the whole period of his detention.

76.

Although he was initially tried before a juvenile court, the minor was subsequently

presented before the State Security Court, which was constituted as a special court dealing

with specific cases of terrorism.

77.

The source recalls that the right to a fair trial applies in trials before all courts,

including special or specialized courts and military courts. Nevertheless, the source notes that

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

freedoms while countering terrorism has called on States to avoid using special or specialized

courts in terrorism cases.

78.

Furthermore, the source notes that, in accordance with principle 5 of the Basic

Principles on the Independence of the Judiciary and sections A (4) (e) and L (c) of the

Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, special

courts should not be created to displace the jurisdiction of ordinary courts, and therefore

should not examine offences falling under the jurisdiction of ordinary courts. In addition, the

12 See opinions No. 5/2020, No. 6/2020, No. 11/2020 and No. 13/2020. See also Human Rights

Committee, general comment No. 35 (2014), para. 17.

A/HRC/WGAD/2022/23

source stresses that when special courts exist, they must be independent and impartial, and

must respect fair trial standards.

79.

According to the source, the reason why special courts should be used only

exceptionally is that fair trial rights are more likely to be violated before such courts. The

source notes that human rights bodies have raised concerns about procedures before special

courts that are inconsistent with fair trial rights, including the right to a trial before an

independent and impartial court, the exclusion of evidence obtained by torture or other ill-

treatment and the right to appeal to a higher tribunal.

80.

The source contends that juvenile courts should be established for criminal

proceedings against persons who were below the age of 18 years at the time of the alleged

crime. In this regard, the source notes that, even though the minor was tried before a juvenile

court, he should not have been presented before the State Security Court, which it argues

constitutes a special court dealing with specific cases of terrorism. The source adds that

ordinary courts had jurisdiction over the minor’s case and that he should have been

investigated by a prosecutor specialized in children’s cases.

81.

The source concludes that, as a special court, the State Security Court had no

jurisdiction to hear the minor’s case from the outset and he should not have been brought

before it, regardless of whether the criminal acts he was charged with amounted to terrorist

acts.

82.

The Working Group observes that all these specific and very serious allegations were

put to the Government, which chose not to address any of them. In particular, the Working

Group notes the failure of the Government to present any exceptional reasons to justify the

referral of the minor to specialized courts. In these circumstances, the Working Group finds

that the rights of the minor under article 10 of the Universal Declaration of Human Rights

and article 14 (1) of the Covenant, as well as article 40 (2) (b) (iii) of the Convention on the

Rights of the Child, were violated as the minor was not tried by an independent and impartial

court. In making this finding the Working Group wishes to emphasize once again that the

alleged crime was committed before the minor reached the age of criminal responsibility

established in the national legalisation and consequently, the minor should never have

appeared before any court in this matter.

ii.

Right to be free from torture and solitary confinement

83.

The source submits that the minor was subjected to torture and ill-treatment, in

violation of national and international norms.

84.

The source notes that the right to be free from torture and other forms of ill-treatment

or punishment is absolute, applies in all circumstances, may never be restricted, including

during times of war or states of emergency, and irrespective of the offence allegedly

committed by the accused person. Furthermore, no exceptional circumstances, including

threats of terrorism or other violent crime, may be invoked to justify torture or other forms

of ill-treatment.

85.

The source refers to the observation by the Special Rapporteur on torture and other

cruel, inhuman or degrading treatment or punishment that blindfolding and psychological

threats are prohibited interrogation techniques and constitute pressure exerted through

detention conditions to counter resistance.

86.