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A/HRC/WGAD/2023/20

Opinion No. 20/2023 concerning Islam Atef Omar Jaballah and Abdelsamad Mahmoud Mohamed al-Fiqi (Egypt)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2023-04-05 · en UN

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.23-09048 (E) 230523 230523

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-sixth session, 27 March–5 April 2023

Opinion No. 20/2023 concerning Islam Atef Omar Jaballah and

Abdelsamad Mahmoud Mohamed al-Fiqi (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 51/8.

2.

In accordance with its methods of work,1 on 11 August 2022 the Working Group

transmitted to the Government of Egypt a communication concerning Islam Atef Omar

Jaballah and Abdelsamad Mahmoud Mohamed al-Fiqi. 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).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2023/20

General Assembly

Distr.: General

23 May 2023

Original: English

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Submissions

Communication from the source

4.

Islam Atef Omar Jaballah is an Egyptian national born on 26 May 1984. He is a

pharmacist and is married with four children.

5.

Abdelsamad Mahmoud Mohamed al-Fiqi is an Egyptian national born on 7 December

1964. He usually resides in Disūq, Kafr el-Sheikh Governorate, Egypt. Prior to his arrest, Mr.

al-Fiqi worked in the educational field. He is married and has three children.

a.

Context

6.

According to the source, Mr. Jaballah and Mr. al-Fiqi were arrested and arbitrarily

deprived of their liberty through a practice termed “rotation”, whereby individuals are

repeatedly detained on the grounds of new criminal charges levied against them that prevent

them from being effectively released from pretrial detention. The source explains that, under

Egyptian law, the maximum limit for pretrial detention is two years. However, the source

reports that, through the practice of rotation, once individuals reach this limit or have served

their sentence, an entirely new case is brought against them, creating a new basis to hold

them in pretrial detention. The new case effectively restarts the detention period, creating a

scenario in which someone who has never been tried for a crime could be kept indefinitely

in pretrial detention. The source adds that, oftentimes, the detention renewal session occurs,

or new charges are brought, while the person is still detained, without being brought before

the prosecution or being allowed to access counsel. The source also reports that detainees’

families often suffer financially, as the person detained is often their primary financial

provider and families are forced to pay high fees for legal representation in proceedings that

can be drawn out for years.

7.

The source explains that repeated detention through the practice of rotation is

systematic in Egypt. Reportedly, subjects of rotation, having been granted release orders from

the prosecution or having already served their prison sentence, are transferred to the police

station for their place of residence, where they are detained for days, on the basis of waiting

for the national security decision. Allegedly, individuals wait for approval from the National

Security Agency to be released, upon which they are either released or taken from the police

station and transferred to one of the Agency’s premises and subjected to enforced

disappearance for a period ranging from days to months. The individuals are then brought

before the prosecution again and charged in a new case. The source submits that this practice

is contrary to international norms relating to the rights to a fair trial.

b.

Conditions of arrest and detention

Islam Atef Omar Jaballah

8.

According to the source, Mr. Jaballah was arrested on 4 May 2018, at around 1 p.m.,

by State security officers in plain clothes while he was walking home with a friend from the

mosque in Kawm Ḩamādah city. Reportedly, Mr. Jaballah was physically forced inside a

white State security van without being presented with a warrant or informed of the reason for

his arrest. The source reports that a witness told Mr. Jaballah’s family of the incident.

9.

The source explains that, upon his initial arrest, Mr. Jaballah was taken to an unknown

location and subjected to enforced disappearance for almost four months, from 4 May to 28

August 2018. Reportedly, he was taken to the National Security Agency headquarters in

Damanhur, and subjected to physical and psychological torture by State security officers,

including beatings, electrocution and being hung by an iron chain for several hours. The

source notes that Mr. Jaballah suffered chronic back pain as a result of this treatment.

10.

Reportedly, Mr. Jaballah’s lawyer submitted a request to the prosecution to present a

complaint regarding the allegations of torture, but the request was rejected. As a result, the

information regarding Mr. Jaballah’s treatment remains unheard by any judicial authority.

The source notes that Mr. Jaballah’s family did not file any additional complaints concerning

his treatment because they believed that such complaints would not be considered.

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11.

The source explains that State security officers denied that Mr. Jaballah had been

subjected to enforced disappearance and indicated in the police report that he had been

arrested the day he was first brought before the prosecution, namely, 28 August 2018.

12.

On 28 August 2018, Mr. Jaballah was reportedly brought for the first time before the

Supreme State Security Prosecution and charged with joining an unidentified banned group,

which was not named, and participating in its activities. Mr. Jaballah was then allegedly held

in pretrial detention in the National State Security headquarters of Damanhur until 5

September 2018, when he was transferred to the Tora Maximum Security Prison, known as

the “Scorpion Prison”. He reportedly remained incommunicado in pretrial detention there for

almost two years, banned from receiving visitors and in poor detention conditions in

inadequately ventilated, overcrowded and unhygienic cells. The source notes that his lawyer

filed a request for a medical examination for his back pain, which was denied by the prison

administration.

13.

On 30 August 2020, Mr. Jaballah reportedly reached the maximum two-year limit for

pretrial detention and his family learned, through Mr. Jaballah’s lawyer, that his release had

been ordered by the Supreme State Security Prosecution. The source explains that Mr.

Jaballah remained detained in Kawm Ḩamādah police station for 30 days in preparation for

his release but, instead of being released, he was referred to the Supreme State Security

Prosecution on 10 October 2020.

14.

On 10 October 2020, the Supreme State Security Prosecution reportedly charged Mr.

Jaballah, in another case, with joining a banned group. The same day, a new pretrial detention

order was reportedly issued and Mr. Jaballah was transferred to Damanhur Prison, where he

has been detained to date.

15.

According to the source, Mr. Jaballah was subsequently charged, in a third case, with

joining a terrorist group. Mr. Jaballah’s family was informed of the new charge on 17 March

2021.

16.

The source notes that Mr. Jaballah has never been tried for charges under any of the

above-mentioned cases. The source explains that, every time that Mr. Jaballah’s pretrial

detention period reached the two-year maximum limit, the Supreme State Security

Prosecution issued a release order and Mr. Jaballah was charged under a new case, restarting

the detention period.

17.

According to the source, Mr. Jaballah’s lawyer was present during the initial

interrogation, detention renewal sessions and court proceedings. However, Mr. Jaballah’s

lawyer was reportedly never allowed to visit his client in the detention facilities. The source

reports that, as of May or June 2022, Mr. Jaballah no longer has access to legal counsel as

his family cannot afford to pay for it.

18.

The source claims that Mr. Jaballah’s family was first able to visit him on 10 August

2018, while he was detained in the National State Security headquarters in Damanhur. Once

Mr. Jaballah was transferred to Tora Maximum Security Prison, his family had the right to

visit him once a month, separated by wired glass. According to the source, Mr. Jaballah’s

family visited him on 23 July 2022.

19.

Reportedly, Mr. Jaballah’s family sent a complaint to the Ministry of Interior and the

Attorney General on 2 June 2018 and a report to the Damanhur Police Department; both

remain unanswered.

Abdelsamad Mahmoud Mohamed al-Fiqi

20.

According to the information received, Mr. al-Fiqi was first arrested on 21 June 2018,

at his residence. Reportedly, State security officers wearing plain clothes broke into his house

and arrested him, without providing him with an arrest warrant or a legal justification for his

arrest. The State security agents allegedly damaged items in the house and took hundreds of

thousands of Egyptian pounds and Mr. al-Fiqi’s passport.

21.

The source explains that, prior to this, on 10 June 2018, two of Mr. al-Fiqi’s relatives

had been arrested by the State security authorities at their place of residence. They were

reportedly tortured to find out where Mr. al-Fiqi had moved to for fear of being arrested, and

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eventually informed the authorities of Mr. al-Fiqi’s new address. According to the source,

after the address was confirmed, Mr. al-Fiqi’s relatives were both released.

22.

Mr. al-Fiqi was reportedly subjected to enforced disappearance from 21 June to 14

July 2018. Reportedly, it was later discovered that he had been held at the National Security

Agency headquarters in the Kafr el-Sheikh Police Directorate. During this period, he was

allegedly subjected to physical and psychological torture and inhumane and degrading

treatment by State security officers, including being beaten, stripped naked and electrocuted

on different body parts.

23.

According to the source, on 14 July 2018, Mr. al-Fiqi’s case was brought before the

Supreme State Security Prosecution and he was charged with joining a banned group,

participating in its work and financing it. That same day, Mr. al-Fiqi was reportedly

transferred to the Kafr el-Sheikh Prison. On 3 August 2018, he was transferred again to Tanta

Prison in Al-Gharbi Province, where he was detained until 15 August 2018. He was then

reportedly transferred to the Tora Maximum Security Prison, where he was banned from

receiving visitors. The source notes that Mr. al-Fiqi’s family did not know anything about his

whereabouts until 25 May 2019.

24.

On 25 May 2019, Mr. al-Fiqi was reportedly ordered to be released and was

transferred to the Disūq police station to wait for his release. According to the source, he

remained there for two weeks before being taken to an undisclosed location and subjected to

enforced disappearance for six months. During this period, he was allegedly subjected to

severe torture and ill-treatment again and he went on a hunger strike to protest such treatment.

The source reports that, as Mr. al-Fiqi was banned from receiving visitors, he could not

disclose information to his family or lawyer about the treatment he was subjected to.

Furthermore, the source explains that Mr. al-Fiqi was not physically present during his

detention renewal sessions and was therefore unable to file a complaint about the violations

he had been subjected to. Reportedly, he was finally able to inform his lawyer of his treatment

after a hearing before the Supreme State Security Prosecution on 23 November 2019.

25.

The source explains that, on 23 November 2019, Mr. al-Fiqi’s case was heard before

the Supreme State Security Prosecution. He was reportedly charged, in another case, with

joining a terrorist group. According to the source, Mr. al-Fiqi was first detained in Tora

Investigation Prison, where he was banned from receiving visits from family members.

Allegedly, on 19 November 2021, Mr. al-Fiqi was transferred to Abu Zaabal Prison, where

he has also been banned from receiving visits and where he remains detained to date. Upon

his arrival at Abu Zaabal Prison, Mr. al-Fiqi was reportedly subjected to beatings by prison

guards.

26.

The source reports that Mr. al-Fiqi’s lawyer was not present during his initial

interrogation before the State Security Prosecution and was only present for the second

detention hearing. Moreover, Mr. al-Fiqi’s lawyer was reportedly banned from visiting him

in the detention facilities.

27.

Lastly, the source reports that Mr. al-Fiqi’s family sent complaints to the Attorney

General and the Minister of the Interior on 23 June 2018, but the complaints remain

unanswered.

c.

Legal analysis

28.

The source argues that the arrests and detentions of Mr. Jaballah and Mr. al-Fiqi are

arbitrary under categories I and III of the working methods of the Working Group.

i.

Category I

29.

The source argues that the arrests and detentions of Mr. Jaballah and Mr. al-Fiqi are

arbitrary under category I as they lack legal basis or justification.

Legality of the arrest

30.

The source recalls that article 9 of the Universal Declaration of Human Rights

prohibits arbitrary arrest, as a safeguard to the right to liberty guaranteed under article 3. This

was reiterated by the Human Rights Committee in its general comment No. 35 (2014).

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According to the source, the right of individuals to be informed, at the time of their arrest, of

the reason for their arrest, and to be promptly informed of any charges brought against them

is also protected under principle 10 of the Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment and article 14 (3) of the Arab Charter on

Human Rights, which has been ratified by Egypt.

31.

The source concludes that the arrests of Mr. Jaballah and Mr. al-Fiqi were arbitrary

as, at the time of the arrest, neither was shown an arrest warrant or provided with an

explanation of the reasons for the arrest.

Enforced disappearance

32.

The source recalls that the prohibition of enforced disappearance is non-derogable,

even in a state of emergency.2 The source claims that Mr. Jaballah was subjected to enforced

disappearance for four months. Mr. Al-Fiqi was reportedly subjected to enforced

disappearance twice, the first time for 24 days and the second time for six months.

33.

According to the source, the enforced disappearances of Mr. Jaballah and Mr. al-Fiqi

violate articles 17 and 18 of the International Convention for the Protection of All Persons

from Enforced Disappearance, which state that detention should only be carried out in

officially recognized locations and that States must ensure that no one is detained secretly

and that the detainee’s family and lawyer are provided with accurate information about the

detention.

Prolonged arbitrary detention

34.

The source argues that the current prolonged detention of Mr. Jaballah and Mr. al-Fiqi

is arbitrary in nature, without legal justification and politically motivated. It is alleged that

their prolonged detention is part of a systematic practice whereby Egyptian authorities detain

political prisoners as part of multiple separate cases, usually on similar charges, to ensure

that they remain in pretrial detention. Once a detainee is ordered to be released under one

case, or completes the two-year maximum term for pretrial detention as specified under the

Criminal Procedure Code of Egypt, they reportedly remain in pretrial detention pending

investigation into another case.

35.

The source contends that Mr. Jaballah and Mr. al-Fiqi both remained detained pending

investigation in a second case under similar charges, despite having completed the two-year

maximum pretrial detention period, in violation of their right to liberty under article 9 of the

Universal Declaration of Human Rights and article 9 (1) and (2) of the Covenant.

Review by an independent, objective and impartial authority, right to habeas corpus, and

implementation of release orders

36.

The source recalls that, under article 9 (3) of the Covenant, persons held on criminal

charges must be brought promptly before a judge or another officer authorized by law to

exercise judicial power for judicial control of the detention. Once the individual has been

brought before the judge, the judge must decide whether the individual should be released or

remanded in custody for additional investigation or to await trial.

37.

The source recalls Human Rights Committee general comment No. 35 (2014), in

which the Committee reiterated that the reviewing authority is required to be independent,

objective and impartial in relation to the issues dealt with. This therefore excludes public

prosecutors. The source contends that, if a person already detained on one criminal charge is

ordered into detention under another charge, that person must be brought before such a

reviewing authority to verify the second detention. The source recalls that, as a general rule,

persons awaiting trial are not to be detained and that pretrial detention is permissible as an

exception only, when it is necessary to prevent flight, interference with evidence or the

recurrence of crime.3 The source contends that the necessity of pretrial detention must be

determined on the basis of an individual assessment and that alternatives to pretrial detention

must be considered. According to the Committee in its general comment No. 35 (2014), the

2 International Convention for the Protection of All Persons from Enforced Disappearance, art. 1 (2);

and A/HRC/13/42, para. 50.

3 General comment No. 35 (2014), para. 38.

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necessity and reasonableness of pretrial detention must be reassessed through periodic re-

examinations and, where there is no lawful basis for continuing the detention, the judge must

order the individual’s release.

38.

The source explains that, under articles 142 and 143 of the Code of Criminal

Procedure, pretrial detention for felonies can be renewed for 15-day periods by an

investigating judge or a prosecutor, for a maximum of 150 days. After this, pretrial detention

can be renewed in 45-day increments, but must be reviewed by a judge. Furthermore, article

143 of the same Code stipulates that pretrial detention can be extended only if it is in the

interest of the investigation, specifically when the investigation is not yet concluded, and

must be based on credible evidence.

39.

According to the source, the Supreme State Security Prosecution is the authority in

charge of persons charged with terrorism-related offences, such as the two defendants. The

Supreme State Security Prosecution is empowered to initiate an investigation and issue

pretrial detention decisions after questioning the individuals. It can reportedly renew the

pretrial detention in 15-day intervals for a maximum of 150 days. Once this maximum term

is reached, the Terrorism Judicial Circuit (or trial court) reviews the pretrial detention.

40.

The source argues that the existing domestic framework, which permits Supreme State

Security prosecutors to assume the powers of judges to issue pretrial detention decisions, is

flawed in itself, as the Working Group has deemed the Supreme State Security Prosecution

insufficiently independent, objective and impartial.4 The source reports that, in practice, the

Supreme State Security Prosecution systematically orders the accused to be detained after

questioning and repeatedly renews pretrial detention in 15-day intervals up to the maximum

period of 150 days. The Supreme State Security Prosecution then reportedly keeps defendants

detained by requesting judges to renew their pretrial detention. The source argues that the

Supreme State Security Prosecution has undue power and influence and can release those

detained at any time, but regularly chooses not to do so.

41.

The source submits that the Supreme State Security Prosecution regularly fails to

implement release orders. Even when courts order a release, the Supreme State Security

Prosecution reportedly appeals the order or keeps defendants in detention without a legal

basis. The source alleges that State security authorities subject defendants to enforced

disappearance and arbitrary detention to obstruct release orders until they create a new case

with similar charges, keeping the defendant in pretrial detention without a trial almost

indefinitely. Moreover, the source contends that the Supreme State Security Prosecution is

complicit in ignoring and failing to investigate complaints regarding the obstruction of

release orders and other grave practices such as enforced disappearance and torture, thereby

contributing to the sustainability of the violations.

42.

In the case at hand, the source submits that the Supreme State Security Prosecution

failed to implement the release orders of Mr. Jaballah and Mr. al-Fiqi and kept the two men

in pretrial detention until they were charged with another case, in violation of their rights

under the Covenant and the Criminal Procedure Code of Egypt.

43.

For the above-mentioned reasons, the source concludes that the detention of Mr.

Jaballah and Mr. al-Fiqi is arbitrary under category I.

ii.

Category III

44.

The source argues that the detention of Mr. Jaballah and Mr. al-Fiqi is arbitrary under

category III as they have been denied their rights to due process.

Right to access an effective legal counsel

45.

The source recalls that, according to principle 15 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment, detainees should

not be denied the right to communicate with the outside world, in particular with their family

or counsel, for more than a matter of days. According to the source, in its general comment

No. 32 (2007), the Human Rights Committee specified that the right to promptly access legal

4 Opinion No. 14/2020, para. 52.

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representation includes the right for lawyers to privately communicate with their clients and

to be present at interrogation sessions without interference or restrictions.

46.

Furthermore, it is noted that, under the Basic Principles on the Role of Lawyers, the

competent authorities have the duty to ensure detainees’ access to effective counsel, which

includes ensuring that lawyers have access to appropriate information, files and documents

in their possession or control at the earliest appropriate time and for sufficient time so as to

enable them to provide effective legal assistance to their clients. The source argues that the

right to effective counsel is fundamentally related to the principle of equality of arms,

enshrined in article 11 of the Universal Declaration of Human Rights, which includes the

right to be given the time and facilities necessary to prepare and present a defence with

counsel prior to trial.

47.

The source has documented that, in most cases of detention containing terrorism-

related charges, lawyers are not authorized to argue the case during the trial, and only receive

from the court a copy of the documentation setting out the charges and sentence.

48.

Accordingly, the source argues that the complete denial of the right of Mr. Jaballah

and Mr. al-Fiqi to promptly seek legal representation and communicate with their lawyers

while in detention violates their right to effective legal assistance.

Right to family visits

49.

The source recalls that the right to communicate with the outside world and be visited

by family members is a fundamental safeguard against human rights violations, including

torture, ill-treatment and enforced disappearance.

50.

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

Protection of All Persons from Enforced Disappearance, individuals detained and imprisoned

have the right to communicate and be visited by their families. The source argues that this

right applies regardless of the offence of which someone is suspected or accused.

51.

The source also refers to the Egyptian prison regulations, under which all persons in

pretrial detention have the right to receive one family visit per week and sentenced persons

have the right to receive two visits per month. In March 2020, the Government of Egypt

reportedly announced a state of emergency owing to the coronavirus disease (COVID-19)

pandemic and halted all prison visits and communication with prisoners. On 15 August 2020,

the Ministry of Interior announced that prison visits would be reinstated. Prison visits

reportedly resumed on 22 August, although with severe limitations. According to the source,

although the state of emergency was officially lifted in October 2021, restrictions on family

visits are still imposed by the authorities to circumvent fundamental human rights. The source

argues that the denial of family visits to detainees predates the COVID-19 crisis and that, for

years, the authorities have been preventing detainees, including political opponents, critics

and human rights lawyers, from contacting their family members or lawyers. The source

expresses particular concern for individuals, such as Mr. al-Fiqi, held in politically motivated

cases who have been denied this right.

52.

The source recalls that, while Mr. Jaballah currently receives only one family visit per

month, he has been subjected to incommunicado detention as the prison administration

prevents some individuals held in connection to political cases from exchanging letters with

their family members.

53.

The source explains that Mr. al-Fiqi was entirely denied the right to be visited by his

family during his detention in Tora Maximum Security Prison. In this regard, the source

explains that many detainees held in that prison are banned from receiving visitors. Mr. al-

Fiqi has reportedly also been banned from receiving visitors at Abu Zaabal Prison, where he

is currently detained.

54.

The source also explains that the Ministry of Interior has published the telephone

numbers of 44 prisons across Egypt. However, it reportedly left out both maximum security

prisons within the Tora Prison complex, where Mr. Jaballah is held along with other human

rights defenders and political activists, thereby further limiting detainees’ contact with their

families.

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55.

The source alleges that such restrictions on and prevention of family visits were not

implemented to pursue a legitimate aim and thereby violate the detainees’ right to

communicate with the outside world.

Right to be free from torture and ill-treatment

56.

The source submits that Mr. Jaballah and Mr. al-Fiqi were subjected to severe torture

and ill-treatment, especially during the period that they were disappeared. The source alleges

that such ill-treatment and torture were carried out to coerce the defendants into making a

confession and incriminating themselves. According to the source, Mr. Jaballah’s lawyer

attempted to file a complaint with the prosecution regarding the allegations of torture, but the

complaint was rejected. The source contends that Mr. al-Fiqi was also subjected to physical

and psychological torture during the two periods that he was subjected to enforced

disappearance. However, since he was banned from receiving visits from his lawyer and

family and was not physically present during detention renewal sessions, Mr. al-Fiqi was

unable to report his treatment until he met with his lawyer after a hearing before the Supreme

State Security Prosecution on 23 November 2019.

57.

The source argues that these practices violate the right of Mr. Jaballah and Mr. al-Fiqi

to be free from torture, ill-treatment and degrading punishment, guaranteed by article 2 of

the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment. Furthermore, the source adds that the Committee against Torture has specified

the absolute nature of this right, which applies irrespective of the offence alleged and cannot

be restricted, including in times of war or states of emergency, and cannot be justified,

including by threats of terrorism or other violent crime.5

Right to health

58.

The source recalls that, under article 16 of the African Charter on Human and Peoples’

Rights, article 12 of the International Covenant on Economic, Social and Cultural Rights and

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

Prisoners (the Nelson Mandela Rules), every detainee has the right to attain the highest

standard of physical and mental health, which includes access to timely and appropriate

health care, but also to underlying determinants of health, such as adequate food, water and

sanitation.6 The source cites the Standard Minimum Rules for the Treatment of Prisoners in

observing that sick prisoners whose health requires special treatment must be transferred to

specialized institutions or civil hospitals and the failure to provide access to adequate health

care violates the right to health.7

59.

In the light of the alleged ailing health of Mr. Jaballah and Mr. al-Fiqi, the source

concludes that the authorities’ refusal to allow them access to proper medical examinations

and treatment, thereby putting them at serious risk of irreparable damage to their health and

even death, violates their right to access adequate health care.

60.

For the above-mentioned reasons, the source concludes that the detention of Mr.

Jaballah and Mr. al-Fiqi is arbitrary under category III.

Response from the Government

61.

On 11 August 2022, the Working Group transmitted the allegations from the source

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

requested the Government to provide detailed information by 10 October 2022 about the

situation of Mr. Jaballah and Mr. al-Fiqi. The Working Group also requested the Government

5 Official Records of the General Assembly, Fifty-seventh Session, Supplement No. 44 (A/57/44), para.

53 (i). See also Human Rights Committee, general comment No. 20 (1992), para. 3.

6 See also the third general report of the European Committee for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment, document CPT/Inf (93) 12, para. 53.

7 African Commission on Human and People’s Rights, Media Rights Agenda and Constitutional Rights

Project v. Nigeria, Communications No. 105/93, No. 128/94, No. 130/94 and No. 152/96, Decision,

31 October 1998; and African Commission on Human and People’s Rights, International Pen,

Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties

Organisation v. Nigeria, Communications No. 137/94, No. 139/94, No. 154/96 and No. 161/97,

Decision, 31 October 1998.

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to clarify the legal provisions justifying their continued detention, as well as the compatibility

of their detention with the State’s obligations under international human rights law, and in

particular with regard to the treaties ratified by Egypt. Moreover, the Working Group called

upon the Government to ensure Mr. Jaballah’s and Mr. al-Fiqi’s physical and mental

integrity.

62.

The Working Group regrets that the Government did not submit a reply to the

communication, nor did it 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

63.

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.

64.

In determining whether Mr. Jaballah’s and Mr. al-Fiqi’s detention is 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.8 In the present case, the Government

has chosen not to challenge the prima facie credible allegations made by the source.

65.

The source has argued that Mr. Jaballah’s and Mr. al-Fiqi’s detention is arbitrary and

falls under categories I and III. The Working Group shall examine these in turn.

Category I

66.

The source argues that Mr. Jaballah was arrested on 4 May 2018 and Mr. al-Fiqi on

21 June 2018 by State security officers in plain clothes, without being presented with any

type of warrant or informed of the charges against them. Furthermore, it is suggested that

they were both subjected to enforced disappearance: Mr. Jaballah for almost four months,

from 4 May to 28 August 2018; and Mr. al-Fiqi, firstly, from 21 June to 14 July 2018, and,

subsequently, from May to November 2019. The Government has chosen not to address these

allegations even though it was provided an opportunity to do so.

67.

Article 9 (2) of the Covenant provides that anyone who is arrested shall be informed,

at the time of arrest, of the reasons for the arrest and shall be promptly informed of any

charges against him or her. The Working Group has previously stated that, for a deprivation

of liberty to have a legal basis, it is not sufficient that there is a law that may authorize the

arrest. The authorities must invoke that legal basis and apply it to the circumstances of the

case. 9 This is typically 10 done through an arrest warrant or arrest order (or equivalent

document).11 The reasons for arrest must be provided immediately upon arrest and must

include not only the general legal basis of the arrest, but also enough factual specifics to

indicate the substance of the complaint, such as the wrongful act and the identity of an alleged

victim.12 It is also required that the decision on whether the arrest is warranted be taken by

an outside authority that is a competent, independent and impartial judicial body. This is

procedurally inherent in the right to personal liberty and security and the prohibition of

arbitrary deprivation of liberty under articles 3 and 9 of the Universal Declaration of Human

Rights, article 9 of the Covenant and principles 2, 4 and 10 of the Body of Principles for the

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

68.

The Working Group finds that the authorities’ failure to present a warrant to Mr.

Jaballah and Mr. al-Fiqi and to provide them with an explanation of the reasons for their

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

9 Except for arrests in flagrante delicto, where the opportunity to obtain a warrant will not be typically

available.

10 Human Rights Committee, general comment No. 35 (2014), para. 23. See also opinions No. 88/2017,

para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. See further Arab Charter on Human Rights,

art. 14 (1).

11 Human Rights Committee, general comment No. 35 (2014), para. 27; and opinion No. 30/2017, paras.

58 and 59.

12 Opinion No. 85/2021, para. 69.

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arrest at the time of their arrest violates the above provisions and renders their arrest devoid

of any legal basis. Therefore, as Mr. Jaballah and Mr. al-Fiqi were arrested in violation of the

above provisions, their detention is arbitrary.

69.

The Working Group further cannot but find that Mr. Jaballah and Mr. al-Fiqi were

subjected to enforced disappearance for significant periods of time (four months for Mr.

Jaballah and almost seven months cumulatively for Mr. al-Fiqi), in violation of article 9 (1)

of the Covenant. Enforced disappearances are prohibited by international law and constitute

a particularly aggravated form of arbitrary detention.13 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.14 The Working Group refers

the present case to the Working Group on Enforced or Involuntary Disappearances.

70.

Moreover, the Working Group notes that these enforced disappearances resulted in

the incommunicado detention of Mr. Jaballah and Mr. al-Fiqi and thus precluded them from

being brought promptly before a judge or other officer authorized by law to exercise judicial

power as required under article 9 (3) of the Covenant. Noting that both Mr. Jaballah and Mr.

al-Fiqi were subsequently brought before the Supreme State Security Prosecution, which

charged them with criminal offences and ordered their pretrial detention, the Working Group

recalls that the prosecutorial body cannot be considered a judicial authority for the purposes

of article 9 (3) of the Covenant.15

71.

In addition, in order to establish that a detention is indeed legal, anyone detained has

the right to challenge the legality of his or her detention before a court, as envisaged in article

9 (4) of the Covenant. The Working Group recalls that the right to challenge the lawfulness

of detention before a court is a self-standing human right that is essential to preserve legality

in a democratic society.16 This right, which is in fact a peremptory norm of international law,

applies to all forms of deprivation of liberty and to all situations of deprivation of liberty,

including not only to detention for purposes of criminal proceedings but also to situations of

detention under administrative and other fields of law, including military detention, security

detention and detention under counter-terrorism measures.17 Moreover, it applies irrespective

of the place of detention, or the legal terminology used in the legislation. Any form of

deprivation of liberty on any ground must be subject to effective oversight and control by the

judiciary.18

72.

The right to take proceedings before a court in order that that court may decide upon

the lawfulness of detention must also be afforded without delay, as specified in article 9 (4)

of the Covenant. As the Human Rights Committee specified in its general comment No. 35

(2014) (para. 47), the adjudication of the case should take place as expeditiously as possible.

In the present case, while Mr. Jaballah and Mr. al-Fiqi appeared before the prosecution after

long periods of enforced disappearance – which in itself is a violation of article 9 (4) of the

Covenant – it remains unclear when and if they appeared before a judge. The Working Group

13 Human Rights Committee, general comment No. 35 (2014), para. 17. See also opinions No. 5/2020,

No. 6/2020, No. 11/2020, No. 13/2020, No. 77/2020, No. 38/2021 and No. 25/2022.

14 See article 1 of the Declaration on the Protection of All Persons from Enforced Disappearance, in

which any act of enforced disappearance is condemned as a denial of the purposes of the Charter of

the United Nations and as a grave and flagrant violation of the human rights and fundamental

freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in

international instruments in that field; and opinions No. 82/2018, para. 28; No. 18/2019, para. 33; No.

22/2019, para. 67; No. 26/2019, para. 88; No. 28/2019, para. 61; No. 29/2019, para. 54; No. 36/2019,

para. 35; No. 41/2019, para. 32; No. 42/2019, para. 48; No. 51/2019, para. 58; No. 56/2019, para. 79;

No. 6/2020, para. 43; No. 11/2020, para. 41; and No. 34/2020, para. 49. See also article 22 of the

Arab Charter on Human Rights.

15 Human Rights Committee, general comment No. 35 (2014), para. 32. See also opinions No. 14/2015,

para. 28; No. 5/2020, para. 72; No. 6/2020, para. 47; and No. 41/2020, para. 60. See further

A/HRC/45/16/Add.1, para. 35.

16 A/HRC/30/37, paras. 2 and 3.

17 Ibid., para. 11, and annex, para. 47 (a).

18 Ibid., annex, para. 47 (b).

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GE.23-09048

11

therefore finds a breach of article 9 (4) of the Covenant. Given that they were not able to

challenge their detention, their 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.

73.

Lastly, the Working Group recalls that it is a well-established norm of international

law that pretrial detention should be the exception and not the rule, and that it should be

ordered for as short a time as possible.19 Article 9 (3) of the Covenant provides that it is not

to be the general rule that persons awaiting trial are to be detained, but release may be subject

to guarantees to appear for trial and at any other stage of the judicial proceedings. In order to

give effect to this principle, pretrial detention must be based on an individualized

determination that it is reasonable and necessary, for such purposes as to prevent flight,

interference with evidence or the recurrence of crime. The courts must examine whether

alternatives to detention, such as bail, would render custodial measures unnecessary in the

particular case.

74.

It follows from the source’s submissions, which the Government has chosen not to

contest, that Mr. Jaballah’s and Mr. al-Fiqi’s continued periods of pretrial detention were

never substantiated.

75.

The Working Group has already had a chance to express its concern over the so-called

rotation practice, whereby release is ordered but never effected and new charges are brought

against the person concerned.20 This practice of recycling of charges and the consequent

repetition of pretrial detention on charges that are very similar to previous ones is akin to

“revolving door” pretrial detention and is entirely incompatible with article 9 (3) of the

Covenant. Given that this practice materialized in both cases, the Working Group considers

that not only were the rights of Mr. Jaballah and Mr. al-Fiqi further violated under article 9

(3) of the Covenant, but the authorities’ failure to comply with the release orders also violated

article 9 (1) of the Covenant.

76.

In view of the above, the Working Group concludes that the arrests and detentions of

Mr. Jaballah and Mr. al-Fiqi are arbitrary under category I.

Category III

77.

The source has submitted, and the Government has chosen not to contest, that Mr.

Jaballah and Mr. al-Fiqi were denied the right to promptly seek legal representation and

communicate with their lawyers while in detention.

78.

The Working Group recalls 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, according to which 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 that such

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

disappearances and incommunicado detentions to which both Mr. Jaballah and Mr. al-Fiqi

were subjected to by definition deprived them of their right to legal counsel at a critical stage

of criminal proceedings and exposed them to a risk of coercion, which according to the source

indeed took place.

79.

The Working Group considers that, in order for a trial to be fair, an accused should be

able to obtain the whole range of legal services from the outset of the proceedings, including

a possibility to discuss the case, to organize the defence, to collect evidence favourable to the

accused, to get legal support to prevent ill-treatment and, if it took place, to effectively

complain about it, and to ensure that the privilege against self-incrimination is duly respected.

80.

Holding an accused incommunicado at the crucial initial period of detention, as was

the case with both Mr. Jaballah and Mr. al-Fiqi, violates the essence of the right to legal

assistance and to prepare a defence and the principle of equality of arms, guaranteed under

19 Opinions No. 28/2014, para. 43; No. 49/2014, para. 23; No. 57/2014, para. 26; No. 1/2020, para. 53;

and No. 8/2020, para. 54. See also Human Rights Committee, general comment No. 35 (2014), para.

38; and A/HRC/19/57, paras. 48–58.

20 Opinions No. 53/2022, para. 73; and No. 60/2022, para. 74.

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articles 10 and 11 (1) of the Universal Declaration of Human Rights and article 14 (3) (b) of

the Covenant. The Working Group considers that these violations substantially undermined

and compromised Mr. Jaballah’s and Mr. al-Fiqi’s capacity to defend themselves in any court

proceedings that could arise.

81.

The Working Group stresses that, under international human rights law, all detained

and imprisoned individuals have the right to communicate with and be visited by their

families. The right to receive visits applies to all detainees, regardless of the offence of which

they are suspected or accused. According to principle 19 of the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment, this right may only

be subject to conditions and restrictions as specified by law or lawful regulations. However,

both petitioners were held incommunicado during the initial period of their detention, and

Mr. al-Fiqi was apparently denied the right to be visited by his family during his detention in

the Tora Maximum Security Prison and at Abu Zaabal Prison, where he is currently detained.

82.

The Working Group also expresses its gravest concern at the allegations of torture and

ill-treatment, unrebutted by the Government, including allegations of beatings, electrocution,

being hung by an iron chain for several hours, in the case of Mr. Jaballah, and being beaten,

stripped naked and electrocuted on different body parts, in the case of Mr. al-Fiqi. In the

Working Group’s view, not only is torture a grave violation of human rights per se, but it

seriously undermines the ability of persons to defend themselves and hinders their exercise

of the right to a fair trial, especially in the light of the right, under article 14 (3) (g) of the

Covenant, not to be compelled to testify against oneself or to confess guilt. As the Working

Group has stated before, confessions made in the absence of legal representation are not

admissible as evidence in criminal proceedings. 21 Furthermore, the use of a confession

extracted through ill-treatment in any proceedings remains prohibited under article 15 of the

Convention against Torture and principle 21 of the Body of Principles for the Protection of

All Persons under Any Form of Detention or Imprisonment and automatically renders the

entire proceedings unfair, regardless of whether other evidence was available to support the

verdict. 22 The treatment described above reveals a prima facie breach of the absolute

prohibition of torture, which is a peremptory norm of international law, and of the Convention

against Torture, principle 6 of the Body of Principles for the Protection of All Persons under

Any Form of Detention or Imprisonment and rule 1 of the Nelson Mandela Rules. The

Working Group therefore refers the present case to the Special Rapporteur on torture and

other cruel, inhuman or degrading treatment or punishment.

83.

Lastly, the Working Group notes that both Mr. Jaballah and Mr. al-Fiqi spent about

five years in pretrial detention. The Working Group recalls that the right of the accused to be

tried without undue delay, set out in article 14 (3) (c) of the Covenant, is designed not only

to avoid keeping persons too long in a state of uncertainty about their fate and, if held in

detention during the period of the trial, to ensure that such deprivation of liberty does not last

longer than necessary in the circumstances of the specific case, but also to serve the interests

of justice.23 However, what is reasonable has to be assessed in the circumstances of each case,

taking into account mainly the complexity of the case, the conduct of the accused and the

manner in which the matter was dealt with by the administrative and judicial authorities. In

the present cases, the Working Group has been presented with no reasons to justify such

delays. It therefore finds a violation of article 14 (3) (c) of the Covenant.

84.

In view of the above, the Working Group concludes that the arrest and detention of

Mr. Jaballah and Mr. al-Fiqi are arbitrary under category III.

Concluding remarks

85.

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

recent years in which it has found the Government to be in violation of its international human

21 A/HRC/45/16, para 53. See also opinions No. 1/2014, para. 22; No. 14/2019, para. 71; No. 59/2019,

para. 70; and No. 73/2019, para. 91. See further E/CN.4/2003/68, para. 26 (e).

22 Opinions No. 43/2012, para. 51; No. 34/2015, para. 28; No. 52/2018, para. 79 (i); No. 32/2019, para.

43; No. 59/2019, para. 70; and No. 73/2019, para. 91. See also opinions No. 48/2016, No. 3/2017, No.

6/2017, No. 29/2017 and No. 39/2018.

23 Human Rights Committee, general comment No. 32 (2007), para. 35.

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13

rights obligations.24 The Working Group is concerned that this indicates a systemic problem

with arbitrary detention in Egypt, including through the unlawful practice of rotation,

whereby release is ordered but never effected and new charges are brought against the person

concerned, which, if it continues, may amount to a serious violation of international law. The

duty to comply with international human rights standards rests with all State organs, officers

and agents as well as with all other natural and legal persons. 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.

86.

The Working Group also notes that both individuals were tortured and the source’s

uncontested allegations that both individuals’ health is deteriorating and that neither

individual has been allowed access to proper medical examinations and treatment. It thus

feels obliged to remind the Government that, in accordance with article 10 of the Covenant,

all persons deprived of their liberty must be treated with humanity and with respect for the

inherent dignity of the human person and that denial of medical assistance constitutes a

violation of the Nelson Mandela Rules, rules 18, 22, 24, 25, 27, 30 and 42 in particular, as

well as principle 24 of the Body of Principles for the Protection of All Persons under Any

Form of Detention or Imprisonment.

Disposition

87.

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

The deprivation of liberty of Islam Atef Omar Jaballah and Abdelsamad Mahmoud

Mohamed al-Fiqi, being in contravention of articles 3, 8, 9, 10 and 11 of the Universal

Declaration of Human Rights and articles 2, 6, 9, 14 and 16 of the International

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

III.

88.

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

remedy the situations of Mr. Jaballah and Mr. al-Fiqi without delay and bring them 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.

89.

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

cases, the appropriate remedy would be to release Mr. Jaballah and Mr. al-Fiqi immediately

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

with international law.

90.

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

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

Jaballah and Mr. al-Fiqi and to take appropriate measures against those responsible for the

violation of their rights.

91.

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

the present case to the Working Group on Enforced or Involuntary Disappearances and to the

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment, for appropriate action.

92.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

24 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, No. 77/2019, No. 6/2020, No. 80/2020, No. 45/2021, No. 79/2021, No. 83/2021, No.

23/2022, No. 34/2022, No. 53/2022 and No. 60/2022.

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Follow-up procedure

93.

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. Jaballah and Mr. al-Fiqi have been released and, if so, on what

date;

(b)

Whether compensation or other reparations have been made to Mr. Jaballah

and Mr. al-Fiqi;

(c)

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

Jaballah’s and Mr. al-Fiqi’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.

94.

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.

95.

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 cases 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.

96.

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.25

[Adopted on 30 March 2023]

25 Human Rights Council resolution 51/8, paras. 6 and 9.