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.23-19525 (E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on
Arbitrary Detention at its ninety-seventh session,
28 August–1 September 2023
Opinion No. 40/2023 concerning Aya Mohamed Ibrahim al-Afifi
(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 24 May 2023 the Working Group
transmitted to the Government of Egypt a communication concerning Aya Mohamed Ibrahim
al-Afifi. 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,
1 A/HRC/36/38.
United Nations
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General Assembly
Distr.: General
20 October 2023
Original: English
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or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
(a)
Communication from the source
4.
Aya Mohamed Ibrahim al-Afifi is an Egyptian citizen born on 10 January 1991. She
is married and the mother of two children, including a child with health issues. She is a doctor
and is the administrator of the Warm Houses Facebook group, which aims to support the
families of victims of arbitrary detention. She resides in Taqseem al-Zerayeen, Mansoura
1st district.
(i)
Arrest and detention
5.
According to the source, on 13 June 2022, State security officers illegally broke into
Ms. Al-Afifi’s house and arrested her in the presence of her relatives and neighbours. The
source notes that the officers failed to present an arrest warrant or any justification for
Ms. Al-Afifi’s arrest.
6.
The source argues that Ms. Al-Afifi was forcibly disappeared for three days, at an
unknown location. It was later revealed by her lawyer that she had been detained at Mansoura
State security headquarters. On 16 June 2022, Ms. Al-Afifi was brought by the State
authorities before the Public Prosecutor of Mansoura. The source explains that she was
accused of joining a banned group, funding a terrorist group, misusing social media and
establishing a group to support the families of individuals in terrorist groups. Ms. Al-Afifi
was placed in pretrial detention pending investigation.
7.
As reported by the source, Ms. Al-Afifi was represented by her lawyer during the first
interrogation before the Public Prosecutor. The source submits that the police report
contained no reference to the period of the enforced disappearance and the day of arrest was
stated as being 15 June 2022, the night before Ms. Al-Afifi was brought before the Public
Prosecutor.
8.
The source submits that Ms. Al-Afifi was transferred to Al-Qanater women’s prison,
where she has been detained to date. Since being detained in that prison, she has been denied
her right to receive visits from her family and lawyer. The detention review hearings before
the Public Prosecutor have been the only opportunity for Ms. Al-Afifi to meet with her lawyer
and share information about her conditions of detention. According to the source, the
detention facilities are unhygienic and overcrowded. Ms. Al-Afifi has been subject to
ill-treatment, including threats and verbal assaults. Women are not provided with female
hygiene products, even during their monthly menstruation. The source alleges that Egyptian
prison regulations allow detainees’ families to bring food and personal items to them while
they are held in pretrial detention. However, in the present case, the prison administration is
violating the law by banning the delivery of the most necessary items, such as food and
medication, to Ms. Al-Afifi.
9.
According to the source, the Egyptian authorities are utilizing counter-terrorism
legislation to punish critics and activists. The charges against Ms. Al-Afifi are similar to those
used against many other detained human rights defenders. The charges include joining a
terrorist organization or group while being aware of its purposes, which is punishable by
imprisonment with hard labour under article 12 of the Anti-Terrorism Law (Law No. 94 of
2015). Financing a terrorist group or a terrorist act is another frequently used charge, possibly
punishable by the death penalty under article 13 of the same law. The Egyptian Penal Code
(Law No. 58 of 1937), in article 86 and 86 bis, 86 bis (a) (b) and (c), also provides for capital
punishment and/or permanent hard labour as a punishment for such terrorism-related charges.
The source notes that, in most cases, as in Ms. Al-Afifi’s case, the authorities do not name
the organization, so as to facilitate its labelling as a terrorist organization.
(ii)
Legal analysis
10.
The source argues that Ms. Al-Afifi’s arrest is arbitrary under categories I, II and III
of the working methods of the Working Group on Arbitrary Detention.
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a.
Category I
11.
The source recalls that articles 3 and 9 of the Universal Declaration of Human Rights
protect the right to liberty. Furthermore, the Human Rights Committee, in its general
comment No. 35 (2014) states that all persons shall be informed, at the time of arrest, of the
reasons for the arrest and that this requirement applies broadly to the reasons for any
deprivation of liberty.
12.
The source adds that principle 10 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment provides that anyone who is arrested
shall be informed at the time of arrest of the reason for the arrest and shall be promptly
informed of any charges. The source notes that article 14 (3) of the Arab Charter on Human
Rights, which has been ratified by Egypt, emphasizes that anyone who is arrested should be
clearly informed of the reasons for the arrest and the charges.
13.
The source alleges that, in the case of Ms. Al-Afifi, her right to liberty was violated
when she was arbitrarily arrested, without being shown any arrest warrant or provided with
a legal explanation of the reasons for her arrest.
14.
In addition, the source recalls that the prohibition of enforced disappearance is
non-derogable, even in states of emergency. The source notes that, in accordance with
articles 17 and 18 of the International Convention for the Protection of All Persons from
Enforced Disappearance, persons deprived of their liberty must only be held in officially
recognized places of detention and States must ensure that no one is held secretly in detention
and must provide detainees’ families and lawyers with accurate information about their
detention.
15.
The source alleges that Ms. Al-Afifi was arrested on 13 June 2022 and was subjected
to enforced disappearance for three days, until 16 June 2022, when she was brought before
the Public Prosecutor. Furthermore, the source notes that the police report contained no
reference to the period of the enforced disappearance and stated instead that she had been
arrested on 15 June 2022.
b.
Category II
16.
The source contends that the arrest and arbitrary prolonged detention of Ms. Al-Afifi
are a violation of her right to liberty and security guaranteed by articles 9 (1) and 22 of the
International Covenant on Civil and Political Rights. The source notes that Ms. Al-Afifi is
the administrator of the Warm Houses Facebook group, which aims to support the families
of victims of arbitrary detention. However, the authorities stated in her case file that Ms. Al-
Afifi had established a group to support the families of individuals in terrorist groups.
17.
The source recalls that article 15 of the Covenant contains the prohibition for States
parties to detain an individual for an act or omission that does not constitute a criminal
offence under national or international law. Freedom of association is a right and a freedom
guaranteed by the Covenant, to which Egypt is a State party. According to the source, the
abuse of terrorism-related charges to restrict that right has been highlighted by the
United Nations.
18.
The source notes that, in October 2020, several special rapporteurs stated that
“terrorism charges and exceptional courts are being used to target legitimate human rights
activities and have a profound chilling effect on civil society as a whole” and “the use of
terrorism courts to target and harass civil society is inconsistent with the rule of law”.2
According to the source, this shows that the amendments made in February 2020 to the
Terrorist Entities Law (Law No. 8 of 2015) and the Anti-Terrorism Law are being used for
the large-scale targeting of human rights defenders in Egypt and have threatened their
cooperation with United Nations mechanisms.
2 See https://www.ohchr.org/en/press-releases/2020/10/egypt-uses-terrorism-trials-target-human-rights-
activists-say-un-experts.
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19.
The source adds that United Nations experts, in press releases issued on
7 December 2020, 22 January 2021 and 11 February 2021, highlighted and criticized the use
of counter-terrorism charges by the Egyptian authorities to target human rights defenders.3
c.
Category III
20.
According to the source, Ms. Al-Afifi’s detention is arbitrary because she has been
denied her right to due process.
21.
The source argues that there has been a violation of the right to access an effective
legal counsel. The source recalls principle 15 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment, which provides that
communication of the detained or imprisoned person with the outside world, and in particular
family or counsel, shall not be denied for more than a matter of days. In addition, the source
notes that the Human Rights Committee, in its general comment No. 32 (2007), states that a
detainee has the right to have prompt access to legal counsel, which means that a lawyer is
granted the right to have private communication and meetings with the detainee and to attend
all investigations without interference or restrictions.
22.
The source argues that the effectiveness of the legal counsel is fundamentally related
to the principle of equality of arms, as enshrined in article 11 of the Universal Declaration of
Human Rights, which draws on the right of detainees to be given the time and facilities
necessary to prepare and present their defence with their counsel for when the trial takes
place. Ms. Al-Afifi only had recourse to her lawyer during her first interrogation before the
Public Prosecutor, and the first detention renewal hearing. However, according to the source,
all requests for visits from her counsel within the detention facility have been denied.
23.
The source alleges that the right to family visits has also been violated in the present
case. The sources notes that the rights of detainees to communicate with the outside world
and be visited by their families are fundamental safeguards against any attempts by the
authorities to exercise human rights violations, including torture or another ill-treatment and
enforced disappearance, with respect to the detainee. The source recalls article 17 (2) (d) of
the International Convention for the Protection of All Persons from Enforced Disappearance,
which states that detained and imprisoned people 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. Under principle 19 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment, this right
may be subject only to reasonable conditions and restrictions as specified by law or lawful
regulations.
24.
According to the source, Egyptian prison regulations state that all detainees in pretrial
detention have the right to receive one family visit per week. However, since the Government
of Egypt announced the state of health emergency due to the coronavirus disease
(COVID-19) pandemic in March 2020, all prison visits and communications were halted until
August 2020, when they were resumed with severe limitations. The source argues that the
Egyptian authorities are still using the state of health emergency to jeopardize fundamental
human rights, although it was officially lifted in October 2021. In addition, the source
contends that the authorities have denied Ms. Al-Afifi the right to family visits.
25.
The source argues that Ms. Al-Afifi was subjected to ill-treatment and psychological
torture in the form of threats and verbal assaults from the prison guards. The source, in this
regard, recalls that the Committee against Torture, in its general comment No. 2 (2007), states
that the prohibition against torture is absolute. This applies in all circumstances, and it may
never be restricted, including in times of war or states of emergency. No exceptional
circumstances whatsoever, including threats of terrorism or other violent crime, may be
invoked to justify torture or other ill-treatment. Such prohibition applies irrespective of the
offence allegedly committed by the accused person.
26.
The source adds that, according to jurisprudence of the European Court for Human
Rights, article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading
3 Available from https://www.ohchr.org/en/media-centre.
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Treatment or Punishment is applicable not only to physical injuries but also to mental or
psychological suffering. According to the source, the Court has stated that degrading and/or
inhuman treatment may be involved if psychological anguish reaches a sufficiently intense
and serious level.
(b)
Response from the Government
27.
On 24 May 2023, 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 24 July 2023, detailed information about the situation of
Ms. Al-Afifi and to clarify the legal provisions justifying her continued detention, as well as
its compatibility with the obligations of Egypt under international human rights law, and in
particular with regard to the treaties ratified by the State.
28.
The Government requested an extension in accordance with paragraph 16 of the
methods of work, which was granted with a deadline of 17 August 2023. The Working Group
regrets that despite this, it has received no reply from the Government.
2.
Discussion
29.
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.
30.
In determining whether Ms. Al-Afifi’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.4 In the present case, the Government has chosen not to challenge the
prima facie credible allegations made by the source.
31.
The source has argued that the detention of Ms. Al-Afifi is arbitrary and falls under
categories I, II and III. The Working Group shall proceed to examine these in turn.
(a)
Category I
32.
The source has argued that Ms. Al-Afifi was detained without an arrest warrant. She
was reportedly arrested on 13 June 2022 and not informed of the reasons for her arrest or the
charges against her. She was subjected to enforced disappearance for three days, until she
appeared on 16 June 2022 before the prosecuting authorities.
33.
The Working Group recalls that a detention is considered arbitrary under category I if
it lacks legal basis. As it has previously stated, for a deprivation of liberty case 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.5 This is typically6 done
through an arrest warrant or arrest order (or equivalent document).7 In addition, any form of
detention or imprisonment should be ordered by, or be subjected to, the effective control of
a judicial or other authority under the law, whose status and tenure should afford the strongest
possible guarantees of competence, impartiality and independence, in accordance with
principle 4 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment. Noting the lack of response from the Government, the Working
Group finds that this was denied to Ms. Al-Afifi, in violation of articles 3 and 9 of the
Universal Declaration of Human Rights and article 9 (1) of the Covenant.
34.
Moreover, it appears that, following her arrest, she was subjected to enforced
disappearance for three days. These allegations were put to the Government, which chose not
to address them. The Working Group therefore finds that she was subjected to de facto
4 A/HRC/19/57, para. 68.
5 In cases of in flagrante delicto, the opportunity to obtain a warrant will not be typically available.
6 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; and Arab Charter on Human Rights,
art. 14.
7 Opinion No. 30/2017, paras. 58 and 59.
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enforced disappearance in breach of article 9 (1) of the Covenant. Enforced disappearances
are prohibited by international law and constitute a particularly aggravated form of arbitrary
detention. 8 Ms. Al-Afifi was thus placed outside the protection of the law, in violation of her
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.9
35.
Furthermore, the Working Group recalls that article 9 (2) of the Covenant requires
that anyone who is arrested is not only informed of the reasons for arrest but also promptly
informed of any charges. The right to be promptly informed of charges concerns notice of
criminal charges and, as noted by the Human Rights Committee in its general comment
No. 35 (2014), this right applies in connection with ordinary criminal prosecutions and also
in connection with military prosecutions or other special regimes directed at criminal
punishment (para. 29).
36.
Lacking any explanation from the Government in this respect, the Working Group
cannot but conclude that there has been a breach of article 9 (2) of the Covenant in respect of
Ms. Al-Afifi.
37.
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.10 Article 9 (3) of the Covenant provides that it shall
not be the general rule that persons awaiting trial shall be detained in custody, but release
may be subject to guarantees to appear for trial and at any other stage of the judicial
proceedings. It follows that liberty is recognized as a principle and detention as an exception
in the interests of justice. In the present case, it appears that Ms. Al-Afifi was detained without
any explanation, and no information was provided by the Government on why less harsh
preventive measures would be insufficient.
38.
According to article 9 (3) of the Covenant, anyone arrested or detained on a criminal
charge shall be brought promptly before a judge. As the Human Rights Committee has stated,
48 hours is ordinarily sufficient to satisfy the requirement of bringing a detainee “promptly”
before a judge following arrest and any longer delay must remain absolutely exceptional and
be justified under the circumstances.11 In the present case, Ms. Al-Afifi does not appear to
have been brought before a judicial authority within 48 hours of her arrest, in violation of
article 9 (3) of the Covenant.
39.
Noting all the above, the Working Group considers that, in the arrest and pretrial
detention of Ms. Al-Afifi, the Government acted contrary to articles 3 and 9 of the Universal
Declaration of Human Rights, article 9 of the Covenant and principles 11, 37 and 38 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
40.
Accordingly, the Working Group considers that her arrest and subsequent detention
were arbitrary under category I.
8 See opinions No. 5/2020, No. 6/2020, No. 11/2020, No. 13/2020, No. 77/2020, No. 38/2021 and
No. 25/2022. See also Human Rights Committee, general comment No. 35 (2014), para. 17.
9 See also 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; and No. 20/2023, para. 69.
10 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.
11 Human Rights Committee, general comment No. 35 (2014), para. 33.
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(b)
Category II
41.
The source contends that the detention of Ms. Al-Afifi resulted from the exercise of
the freedom guaranteed by article 22 of the Covenant, as she was detained as the
administrator of the Warm Houses Facebook group, which aims to support the families of
victims of arbitrary detention. The authorities have stated that Ms. Al-Afifi established the
group to support the families of individuals in terrorist groups.
42.
The Working Group considers that the conduct of the human rights defenders is
protected by the Universal Declaration of Human Rights and the Covenant, both of which
recognize that everyone has the right to freedom of association. Their work is also protected
by the Declaration on the Right and Responsibility of Individuals, Groups and Organs of
Society to Promote and Protect Universally Recognized Human Rights and Fundamental
Freedoms, which states that everyone has the right, individually and in association with
others, to promote and to strive for the protection and realization of human rights and
fundamental freedoms at the national and international levels, to communicate with
non-governmental organizations and to have effective access to participation in the conduct
of public affairs (arts. 1, 5 (a) and (c), 8 (1) and 9 (3)).
43.
The Working Group is satisfied, on the basis of the unrefuted information submitted
by the source, that Ms. Al-Afifi was detained as a result of her peaceful exercise of the right
to freedom of association and the right to take part in the conduct of public affairs, and that
her detention was thus contrary to article 20 of the Universal Declaration of Human Rights
and article 22 of the Covenant.
44.
Moreover, the Working Group notes that Ms. Al-Afifi was charged with the crimes
of joining a banned group, funding a terrorist group, misusing social media and establishing
a group to support the families of individuals in terrorist groups. The Working Group also
notes the source’s submission that the amendments made in February 2020 to the Terrorist
Entities Law and the Anti-Terrorism Law are being used for the large-scale targeting of
human rights defenders in Egypt and have threatened their cooperation with United Nations
mechanisms. It recalls that international human rights law requires that such penal laws are
drafted with precision, so that individuals can understand them and adapt their behaviour
accordingly and so that law enforcement officials, when they are implementing these laws,
cannot have uncontrolled, extensive and discretionary interpretation over them.12 Broad,
vague and imprecise laws can present a risk of providing domestic legal coverage to
situations that are considered arbitrary detention under international human rights law.13
45.
The Working Group concludes that detention of Ms. Al-Afifi is arbitrary under
category II.
(c)
Category III
46.
Given its finding that the deprivation of liberty of Ms. Al-Afifi is arbitrary under
category II, the Working Group wishes to emphasize that no trial against her should take
place. Nevertheless, the source has raised allegations of violations to fair trial and due process
rights, and the Working Group will address them.
47.
The source argues that Ms. Al-Afifi only had recourse to her lawyer during her first
interrogation before the Public Prosecutor, and the first detention renewal hearing. However,
all visits from her counsel within the detention facility have been denied and thus she was
deprived of effective legal representation and possibilities to prepare her defence.
48.
The Working Group recalls that all persons deprived of their liberty have the right to
legal assistance by the counsel of their choice at any time during their detention, and that
such access must be provided without delay.14 It appears from the information provided by
the source that Ms. Al-Afifi did not have sufficient time to consult confidentially with her
12 Ibid., para. 22.
13 Opinion No. 82/2020, paras. 50 and 59.
14 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, principle 9 and guideline 8; Human
Rights Committee, general comment No. 35 (2014), para. 35; and A/HRC/45/16, para. 51.
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lawyer. As this allegation was not refuted by the Government, the Working Group considers
that the failure to provide Ms. Al-Afifi with sufficient access to her lawyer violates her right
to adequate time and facilities for the preparation of her defence under article 14 (3) (b) of
the Covenant.
49.
What is more, the Working Group expresses its concern at the non-contested
allegations of ill-treatment of Ms. Al-Afifi, which constitute violations of article 5 of the
Universal Declaration of Human Rights and articles 7 and 10 (1) of the Covenant. In the
Working Group’s view, not only is ill-treatment a grave violation of human rights per se, but
it also undermines the ability of persons to defend themselves and hinders their exercise of
the right to a fair trial.
50.
Furthermore, 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. Moreover, every detainee has the right to the highest
attainable standard of physical and mental health. 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. In this respect, the Working Group refers to its deliberation No. 12 on
women deprived of their liberty, in which it recognized that women experience additional
and different obstacles relating to conditions of detention based on their sex or gender,
including a failure to respect the hygiene needs of women, including inadequate facilities that
do not protect women’s privacy and failure to provide personal hygiene items.15 This also
materialized, according to the source, in Ms. Al-Afifi’s case, and the Government has chosen
not to respond to these allegations.
51.
Given the foregoing, the Working Group concludes that the violations of the right to
a fair trial and due process are of such gravity as to give Ms. Al-Afifi’s deprivation of liberty
an arbitrary character that falls within category III.
(d)
Concluding remarks
52.
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
rights obligations.16 It is concerned that this indicates a systemic problem with arbitrary
detention in Egypt, which, if it continues, may amount to a serious violation of international
law. 17 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.18 The Working Group has alluded
to this possibility in its past cases concerning Egypt.
3.
Disposition
53.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Aya Mohamed Ibrahim al-Afifi, being in contravention
of articles 3, 5, 6, 9 and 20 of the Universal Declaration of Human Rights and
articles 9, 7, 10, 14, 16 and 22 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories I, II and III.
54.
The Working Group requests the Government of Egypt to take the steps necessary to
remedy the situation of Ms. Al-Afifi without delay and bring it into conformity with the
15 A/HRC/48/55, annex, para. 23 (d).
16 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. 14/2020, No. 80/2020, No. 45/2021, No. 79/2021,
No. 83/2021, No. 23/2022, No. 34/2022 and No. 60/2022.
17 Opinions No. 47/2018, para. 85; and No. 14/2020, para. 74.
18 A/HRC/13/42, para. 30. See also, for example, opinions No. 1/2011, para. 21; No. 51/2017, para. 57;
and No. 56/2017, para. 72.
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relevant international norms, including those set out in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
55.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Al-Afifi immediately and accord her
an enforceable right to compensation and other reparations, in accordance with international
law. In the current context of the global COVID-19 pandemic and the threat that it poses in
places of detention, the Working Group calls upon the Government to take urgent action to
ensure the immediate unconditional release of Ms. Al-Afifi.
56.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Ms. Al-Afifi and to take appropriate measures against those responsible for the violation of
her rights.
57.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
58.
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 Ms. Al-Afifi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Al-Afifi;
(c)
Whether an investigation has been conducted into the violation of
Ms. Al-Afifi’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.
59.
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.
60.
The Working Group requests the source and the Government to provide the
above-mentioned information within six months of the date of transmission of the present
opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as of any failure to take action.
61.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.19
[Adopted on 29 August 2023]
19 Human Rights Council resolution 51/8, paras. 6 and 9.