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.24-08023 (E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-ninth session, 18–27 March 2024
Opinion No. 8/2024 concerning Moaaz Nagah Mansour Mansour
El-Sharqaoui (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 27 October 2023 the Working Group
transmitted to the Government of Egypt a communication concerning Moaaz Nagah Mansour
Mansour El-Sharqaoui. The Government submitted a late reply on 12 January 2024. 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).
* Miriam Estrada Castillo did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/8
General Assembly
Distr.: General
22 May 2024
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Moaaz Nagah Mansour Mansour El-Sharqaoui is a citizen of Egypt, born on 20 July
1993. He is a student, an activist and a human rights defender. He was the Vice-President of
the Student Union at Tanta University for the year 2015. At the time of the arrest, he was
living in Maadi, Cairo Governate.
(i)
Context
5.
The source submits that Mr. El-Sharqaoui’s arrest represents a pattern of detaining
individuals in order to silence opinions critical of the Government. It is reported that, since
the amendment to the Anti-Terrorism Law (No. 94 of 2015), which has broadened definitions
of “terrorist entity” and “terrorist act”, there has been an increase of instances of arbitrary
arrests and enforced disappearances.
6.
The source argues that the terrorism charges brought against Mr. El-Sharqaoui are not
based on empirical or evidential grounds and are similar to those used against other detainees
to exercise societal control.
(ii)
Arrest and detention
7.
The source submits that Mr. El-Sharqaoui was arrested at a security checkpoint in
Dahab in October 2018. He was then forcibly disappeared from 19 September to 13 October
2018, following his arrest, during which he was subjected to torture.
8.
Mr. El-Sharqaoui then appeared before the Supreme State Security Prosecution under
Case No. 440 of 2018 on charges of “joining and financing a terrorist group”. He was
allegedly imprisoned in Tora Prison for investigation and released in March 2020 with
precautionary measures. In April 2020, the measures were cancelled.
9.
In 2021, while Mr. El-Sharqaoui was at liberty, his case was referred to the Emergency
State Security Criminal Court. The source submits that the Court did not require
Mr. El-Sharqaoui’s presence, only that of his lawyer, and, on 29 May 2022, Mr. El-Sharqaoui
was sentenced in absentia to 10 years in prison and five years of probation. However, his
verdict was not ratified, and Mr. El-Sharqaoui remained at liberty.
10.
On 11 May 2023, at 2:00 p.m., Mr. El-Sharqaoui was arrested for the second time by
State Security agents at his house in Maadi. The agents, dressed in civilian clothes, reportedly
beat Mr. El-Sharqaoui during the arrest. The house was searched, and money was reportedly
stolen. The authorities carrying out the arrest did not present a warrant or any legal
documentation.
11.
Mr. El-Sharqaoui was then subjected to enforced disappearance from the time of his
arrest on 11 May to 3 June 2023. During his enforced disappearance, Mr. El-Sharqaoui was
subjected to torture through beatings and remained blindfolded during the entire period.
12.
The source submits that, during Mr. El-Sharqaoui’s enforced disappearance, his
defence team submitted a number of complaints to the Attorney General inquiring about his
whereabouts, which were left unanswered. Mr. El-Sharqaoui’s lawyer also asked about his
client at the Mokattam Police station, but the authorities reportedly denied his presence there.
13.
On 3 June 2023, Mr. El-Sharqaoui appeared before the Supreme State Security
Prosecution pending Supreme State Security Case No. 540 for 2023 on charges of joining
and financing a terrorist organization. Allegedly, the court did not take into consideration
Mr. El-Sharqaoui’s claims of torture.
14.
Furthermore, it is reported that, while attending the investigation session,
Mr. El-Sharqaoui’s defence team learned that the Office of the Public Prosecution had issued
a decision to detain Mr. El-Sharqaoui under charges under the Anti-Terrorism Law for a
period of 14 days, to be renewed once, on the grounds that he had committed a terrorist crime.
15.
On 22 October 2023, the Military Governor ratified the ruling of the Emergency State
Security Criminal Court of 29 May 2022, sentencing Mr. El-Sharqaoui to 10 years in prison
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and five years of probation under the charges of joining a terrorist organization. The source
notes that the ruling is considered final and not subject to appeal. Mr. El-Sharqaoui is
currently held in Badr Prison No. 3.
16.
The source asserts that Mr. El-Sharqaoui’s arrests and sentencing are representative
of the authorities’ systematic targeting of human rights defenders, activists, including student
activists, and political opponents. According to the source, the Anti-Terrorism Law is being
used to silence civil society and curtail freedom of expression.
17.
The prosecution has allegedly failed to provide sufficient evidence to support
terrorism-related charges against Mr. El-Sharqaoui. Moreover, since March 2018,
Mr. El-Sharqaoui has been placed on the terrorist list, which is automatically renewed every
five years.
18.
According to the source, following Mr. El-Sharqaoui’s first arrest and prior to his
second arrest on 11 May 2023, he was diagnosed with severe depression, and he suffers from
acute suicidal tendencies. It is also reported that, since Mr. El-Sharqaoui’s reappearance on
3 June 2023, family visits have been banned and, since his transfer to Badr Prison No. 3 on
23 June 2023, Mr. El-Sharqaoui has been held in solitary confinement. Moreover,
Mr. El-Sharqaoui has reportedly faced retaliation and violence while in detention.
(iii)
Legal analysis
19.
The source argues that Mr. El-Sharqaoui’s arrest and detention are arbitrary and fall
under categories I and III of the of the arbitrary detention categories referred to by the
Working Group when considering cases submitted to it.
a.
Category I
i.
Lack of legal basis for the arrest
20.
The source argues that the arrest of Mr. El-Sharqaoui is arbitrary under category I, as
there is no legal basis or justification for the deprivation of his liberty. The source notes that
State security agents were the responsible authorities for the arrest of Mr. El-Sharqaoui.
21.
The source recalls that arbitrary arrests are prohibited under article 9 of the Universal
Declaration of Human Rights, as they violate the right to life and liberty safeguarded by
article 3 thereof. The source also recalls general comment No. 35 (2014) on liberty and
security of person of the Human Rights Committee, in which it stated that any person is to
be informed, at the time of arrest, of the reasons for the arrest and that that requirement
applied broadly to the reasons for any deprivation of liberty.
22.
In addition, it is recalled that principle 10 of the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment clearly states that anyone who
is arrested is to be informed at the time of their arrest of the reason for their arrest and is to
be promptly informed of any charges against them.
23.
The source notes that article 6 of the African Charter on Human and Peoples’ Rights,
ratified by Egypt on 21 October 1986, reaffirms that every individual is to have the right to
liberty and security of person. The source asserts that no one may be deprived of their
freedom except for reasons and conditions previously laid down by law and that no one may
be arbitrarily arrested or detained.
24.
As a result, the source concludes that Mr. El-Sharqaoui’s right to liberty has been
violated through his arbitrary arrests, which were conducted without an arrest warrant or any
justificatory legal explanation.
ii.
Enforced disappearance
25.
The source submits that Mr. El-Sharqaoui was subjected to enforced disappearance
on two different occasions, for 24 days from 19 September to 13 October 2018 and for 23
days from 11 May to 3 June 2023.
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26.
The source notes that the right of persons not to be subjected to enforced
disappearance is considered to be one of the fundamental guarantees under customary
international law and non-derogable rights, even in a state of emergency.
27.
The source recalls that people deprived of liberty must be held only in an officially
recognized place of detention. In addition, the source asserts that States are obligated to
ensure that no one is held secretly in detention and must provide the detainee’s family and
lawyer with accurate information on the detention.
b.
Category III
28.
The source argues that Mr. El-Sharqaoui’s detention is arbitrary under category III, as
he has been denied the right to due process.
i.
Violation of the right to effective legal counsel
29.
The source recalls principle 2 of the Basic Principles on the Role of Lawyers, whereby
a detainee should have access to an effective counsel, defined as the duty of the competent
authorities to ensure lawyers’ access to appropriate information, files and documents in their
possession or control in sufficient time to enable lawyers to provide effective legal assistance
and that such access should be provided at the earliest appropriate time.
30.
The source asserts that the effectiveness of a legal counsel is fundamentally related to
the principle of equality of arms, 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 the counsel in time for the trial.
31.
According to the source, Mr. El-Sharqaoui’s lawyer was not informed in a timely
manner of the decision by the Office of the Public Prosecution to detain Mr. El-Sharqaoui on
charges of terrorism. In this context, the source recalls that Mr. El-Sharqaoui was arrested at
his home on 11 May 2023 without a warrant and then forcibly disappeared for 23 days. The
source notes that, by omitting and delaying access to appropriate information, the Office of
the Public Prosecution has hampered the possibility of effective counsel and violated the
principle of equality of arms.
32.
In addition, the source informs the Working Group that, whereas Mr. El-Sharqaoui’s
lawyer was present during all of Mr. El-Sharqaoui’s appearances before the Office of the
Public Prosecution, he has not been able to visit his client in detention, which the source
considers represents a violation of the right to unrestricted legal counsel, which entails the
right to have private communication and meetings with the detainee.
ii.
Violation of the prohibition of torture and cruel and inhuman treatment
33.
The source submits that Mr. El-Sharqaoui was subjected to torture by State security
agents during the period of his enforced disappearance, which is in violation of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
34.
The source recalls that the prohibition of torture and other ill-treatment or punishment
is absolute, applies in all circumstances and may never be restricted, including during times
of war or states of emergency. The source argues that no exceptional circumstances,
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.
iii.
Violation of the right to family visits
35.
The source submits that Mr. El-Sharqaoui has been denied the right to family
visitation since his arrest and recalls that detained and imprisoned people have the right to
communicate and be visited by their families.
36.
The source notes that the right to receive visits applies to all detainees, regardless of
the offence of which they are suspected or accused. Furthermore, the source adds that the
right of any detainee to communicate with the outside world and be visited by their family
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are fundamental safeguards against any attempts by the authorities to perpetrate human rights
violations, including torture or another ill-treatment and enforced disappearance, on the
detainee.
(b)
Response from the Government
37.
On 27 October 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 26 December 2023, detailed information about the
current situation of Mr. El-Sharqaoui and to clarify the legal provisions justifying his
continued detention, as well as its compatibility with the Government’s obligations under
international human rights law, in particular with regard to the treaties ratified by the State.
Moreover, the Working Group called upon the Government of Egypt to ensure his physical
and mental integrity.
38.
The Government submitted its response on 12 January 2024, which was after the
deadline. The Government did not request an extension of the time limit for its reply, as
provided for in the Working Group’s methods of work. Consequently, the Working Group
cannot accept the reply as if it were presented within the time limit.
2.
Discussion
39.
In determining whether Mr. El-Sharqaoui’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.2 In the present case, the Government has chosen not to
challenge in a timely fashion the prima facie credible allegations made by the source.
(a)
Category I
40.
The Working Group recalls that it considers detention to be arbitrary and to fall under
category I if such a detention lacks a legal basis. In the present case, the Working Group must
examine the circumstances of Mr. El-Sharqaoui’s arrest on 11 May 2023.
41.
According to the information provided by the source, the security agents who arrested
Mr. El-Sharqaoui did not present a warrant or any legal documentation that might justify their
forcible actions. While, in its late reply, the Government argued that Mr. El-Sharqaoui’s
arrest was legal considering that the investigating authority had issued a reasoned arrest
warrant against him on 19 April 2023, it offered no further information to confirm that the
warrant was invoked at the time of arrest or in the subsequent proceedings.
42.
Article 9 (2) of the Covenant provides that anyone who is arrested is to be informed
at the time of arrest of the reasons for the arrest and is to be promptly informed of any charges.
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.3 This is typically done
through an arrest warrant or arrest order (or equivalent document).4 The reasons for the 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 the alleged victim.5 Lacking any proof from the
Government to the contrary, the Working Group finds that this legal protection was denied
to Mr. El-Sharqaoui, in violation of articles 3 and 9 of the Universal Declaration of Human
Rights and article 9 (1) and (2) of the Covenant.
2 A/HRC/19/57, para. 68.
3 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
4 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of arrests
made in flagrante delicto, the opportunity to obtain a warrant will not be typically available.
5 Opinion No. 2021/85, para. 69.
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43.
The Working Group notes that Mr. El-Sharqaoui was not brought promptly before a
judge, i.e. within 48 hours of his arrest, in accordance with the international standard.6 This
was not denied by the Government in its late reply. As the Working Group has previously
stated, a prosecutorial body cannot be considered a judicial authority for the purposes of
article 9 (3) of the Covenant, and it therefore finds that this provision was violated in the
present case.7
44.
Moreover, it appears that, following his arrest, Mr. El-Sharqaoui was then forcibly
disappeared for 23 days, before he appeared on 3 June 2023 before the Supreme State
Security Prosecution. According to the Government in its late reply, under article 40 of the
Anti-Terrorism Law, the alleged forced disappearance of Mr. El-Sharqaoui was authorized
and permitted for a precautionary period of 14 days, which was renewed once, as allowed for
by the law, to gather final information about his activities. The Government, however, has
not put forward any further information to substantiate the claim that this extension was
necessary other than in reference to the law in question. The Government recalls that “the
custody period shall be calculated as part of the precautionary detention, and the accused
shall be kept in a legally designated area”, yet it failed to mention where Mr. El-Sharqaoui
was held during the 23-day period.
45.
In addition, the source claims that Mr. El-Sharqaoui’s legal team and family were
never informed of his whereabouts during this period, despite asking numerous times in all
police stations near his residence. Personnel there all denied that he was there.
Mr. El-Sharqaoui’s legal team and family also submitted several complaints to the Attorney
General inquiring about Mr. El-Sharqaoui’s whereabouts, but they were not answered. In its
late reply, the Government asserted that Mr. El-Sharqaoui was being held in pretrial detention
at the Badr Reform and Rehabilitation Centre No. 3 but did not specify where he was during
the alleged period of his enforced disappearance.
46.
Enforced disappearance is prohibited by international law and constitutes a
particularly aggravated form of arbitrary detention. 8 Mr. El-Sharqaoui was also placed
outside the protection of the law, in violation of his right to be recognized as a person before
the law under article 6 of the Universal Declaration of Human Rights and article 16 of the
Covenant.
47.
Noting the foregoing, the Working Group considers that, in the arrest and pretrial
detention of Mr. El-Sharqaoui, the Government acted contrary to article 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.
48.
The Working Group concludes that the arrest and detention of Mr. El-Sharqaoui are
arbitrary under category I. The Working Group finds that Mr. El-Sharqaoui’s deprivation of
liberty is disproportionate to the strict exigencies of the situation and that the Government
failed to submit sufficient proof to the contrary.
(b)
Category III
49.
The source contends that there were three violations of Mr. El-Sharqaoui’s rights to a
fair trial that would qualify under category III. The Working Group will now consider
whether these alleged violations were grave enough so as to render his deprivation of liberty
as arbitrary under category III.
6 See, e.g. opinion No. 57/2016, paras. 110 and 111; No. 1/2018, para. 60; No. 2/2018, para. 49;
No. 20/2018, paras. 64 and 69; No. 83/2018, para. 47; No. 11/2019, para. 66; No. 26/2019, para. 89;
No. 30/2019, para. 30; No. 36/2019, para. 36; No. 42/2019, para. 49; No. 51/2019, para. 59;
No. 56/2019, para. 80; No. 76/2019, para. 38; and No. 82/2019, para. 76. See also Human Rights
Committee, general comment No. 35 (2014) on liberty and security of person, para. 33.
7 See opinions No. 14/2015, para. 28; No. 5/2020, para. 72; No. 41/2020, para. 60; and No. 52/2023,
para. 60; and A/HRC/45/16/Add.1, para. 35.
8 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. 25/2021, No. 38/2021, No. 20/2023 and
No. 36/2023.
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(i)
Violation of the right to effective legal counsel
50.
The Working Group notes that, the source contends that Mr. El-Sharqaoui was held
under enforced disappearance for 23 days, from 11 May to 3 June 2023. The source notes
that Mr. El-Sharqaoui’s lawyer was not informed in a timely manner of the decision to detain
Mr. El-Sharqaoui. In addition, while Mr. El-Sharqaoui’s lawyer was present during all
appearances before the prosecution, it is asserted that his lawyer was not able to visit him in
detention. The Working Group recalls that article 14 (3) (b) of the Covenant guarantees the
right to adequate time and facilities for the preparation of one’s defence and to communicate
with counsel of one’s choosing. 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 provide that 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 apprehension, that they must be promptly informed of
this right upon apprehension and that access to legal counsel should not be unlawfully or
unreasonably restricted.9
51.
In its late reply, the Government argued that Mr. El-Sharqaoui and his lawyer were
allowed to present oral argument, submit requests and express objections in a manner
consistent with international standards. In addition, while the Government contends that
Mr. El-Sharqaoui’s lawyer was present during the investigation, it did not specifically
address whether the lawyer was able to actually visit Mr. El-Sharqaoui in detention.
52.
According to principle 2 of the Basic Principles on the Role of Lawyers, the detainee
should have access to an effective counsel at the earliest appropriate time. The Working
Group is of the view that this principle is fundamentally related to the principle of equality
of arms, as enshrined in article 2 of the Universal Declaration of Human Rights. The Working
Group is therefore concerned that no confidential meetings with a lawyer were guaranteed to
Mr. El-Sharqaoui. It reiterates that respect for lawyer-client confidentiality is an important
part of defence rights. The right of a defendant to have private discussions with his or her
legal counsel, without surveillance, constitutes one of the fundamental aspects of a fair trial.
If a lawyer is incapable of conferring with his or her client and obtaining confidential
instructions, the legal assistance significantly loses its purpose. In this respect, the Human
Rights Committee has stressed that counsel should be able to meet their clients in private and
to communicate with the accused in conditions that fully respect the confidentiality of their
communications. Furthermore, lawyers should be able to advise persons charged with a
criminal offence without restrictions, influence, pressure or undue interference from any
quarter.10
53.
Lacking any information to the contrary, the Working Group concludes that
Mr. El-Sharqaoui was denied his right to effective legal counsel.
(ii)
Violation of the right to be free from torture and cruel and inhuman treatment
54.
The Working Group expresses its gravest concern at the allegations of torture of
Mr. El-Sharqaoui, which appear to constitute violations of articles 5 and 25 (1) of the
Universal Declaration of Human Rights and article 7 and 10 (1) of the Covenant. Not only is
torture 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, especially in the
light of the right to be presumed innocent under article 14 (2) of the Covenant. The Working
Group notes that the use of confessions extracted through ill-treatment that is tantamount if
not equivalent to torture is a breach of article 14 (3) (g) of the Covenant and may also
constitute a violation of the State’s obligations under article 15 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.11 Furthermore,
the Body of Principles specifically prohibits taking undue advantage of the situation of
detention to compel confession or incriminating statements.
9 A/HRC/30/37, annex, paras. 12–15 and 67–71.
10 Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and
tribunals and to a fair trial, para. 34.
11 Human Rights Committee, general comment No. 32 (2007), para. 49.
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55.
The source submits that Mr. El-Sharqaoui was subjected to torture during the period
of his enforced disappearance. The Government failed to respond to these allegations directly,
despite having the opportunity to do so. Instead, the Government submitted, in its late reply,
that Mr. El-Sharqaoui was examined at the prison hospital on three separate occasions, on
13 June 2023, more than a month after the first alleged instance of torture, on 11 July 2023
and on 25 July 2023, and deemed his vital signs to be within normal ranges. According to the
source, however, a doctor has never examined Mr. El-Sharqaoui since his arrest. In any case,
the Government failed to explain the significant delay in addressing the complaint of
ill-treatment, as, according to the Government, a doctor had seen Mr. El-Sharqaoui a month
after the first alleged instance of torture, when the signs of torture might have disappeared.
As such, the Working Group concludes that the treatment described may constitute a breach
of the absolute prohibition of torture.12
(iii)
Violation of the right to family visits
56.
The source claims that Mr. El-Sharqaoui’s family has been unable to visit him since
his arrest on 11 May 2023. Detained and imprisoned people have the right to communicate
and be visited by their families regardless of the offence of which they are suspected or
accused. In a direct contradiction, in its late reply, the Government contested that point,
asserting that Mr. El-Sharqaoui regularly received visits from his family, with the latest visit
being on 11 December 2023. In the further comments from the source, there was no response
to the Government’s claim. The Working Group is thus unable to conclude that the right to
family visits has been denied to Mr. El-Sharqaoui.
57.
In view of the above, the Working Group concludes that the violations of
Mr. El-Sharqaoui’s right to a fair trial are of such a gravity as to deem his deprivation of
liberty as arbitrary under category III.
(c)
Concluding remarks
58.
The Working Group notes that the present opinion is only one of many opinions in
recent years in which it has found the Government of Egypt to be in violation of its
international human rights obligations.13 It remains 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.14 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.15 The Working Group has alluded
to this possibility in its past cases concerning Egypt.16
3.
Disposition
59.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Moaaz Nagah Mansour Mansour El-Sharqaoui, being in
contravention of article 3, 6 and 9 of the Universal Declaration of Human Rights and
12 See, for example, opinions No. 83/2018; and No. 3/2023, para. 84.
13 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, No. 53/2022, No. 60/2022, No. 12/2023, No. 20/2023,
No. 31/2023, No. 36/2023 and No. 40/2023.
14 Opinions No. 47/2018, para. 85; and No. 14/2020, para. 74.
15 A/HRC/13/42, para. 30. See also, for example, opinions No. 1/2011, para. 21; No. 51/2017, para. 57;
No. 56/2017, para. 72; No. 66/2020, para. 67; No. 67/2020, para. 96; and No. 84/2020, para. 76.
16 See, for example, opinions No. 60/2016, para. 27; No. 26/2018, para. 81; No. 27/2018, para. 83;
No. 29/2019, para. 69; No. 65/2019, para. 87; No. 79/2020, para. 49; No. 53/2022, para. 95;
No. 12/2023, para. 107; No. 20/2023, para. 85; No. 26/2023, para. 94; and No. 70/2023, para. 102.
A/HRC/WGAD/2024/8
GE.24-08023
9
articles 9, 14 and 16 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I and III.
60.
The Working Group requests that the Government of Egypt to take the steps necessary to
remedy the situation of Mr. El-Sharqaoui without delay and bring 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.
61.
The Working Group considers that, taking into account all the circumstances of the case,
the appropriate remedy would be to release Mr. El-Sharqaoui immediately and accord him an
enforcement right to compensation and other reparations, in accordance with international law.
62.
The Working Group urges the Government to ensure a full and independent investigation
of the circumstances surrounding the arbitrary deprivation of liberty of Mr. El-Sharqaoui and to
take appropriate measures against those responsible for the violation of his rights.
63.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers the
present case to the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment
or punishment, for appropriate action.
64.
The Working Group requests the Government to disseminate the present opinion through
all available means and as widely as possible.
4.
Follow-up procedure
65.
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 actions taken in follow-up to the
recommendations made in the present opinion, including:
(a)
Whether Mr. El-Sharqaoui has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to him;
(c)
Whether an investigation has been conducted into the violation of his 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 action has been taken to implement the present opinion.
66.
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.
67.
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 act.
68.
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.17
[Adopted on 19 March 2024]
17 Human Rights Council resolution 51/8, paras. 6 and 9.