A/HRC/WGAD/2011/8

General Assembly

Distr. General
27 February 2012

Original: English

Human Rights Council
Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary Detention at its sixtieth session, 2-6 May 2011

No. 8/2011 (Egypt)

Communication addressed to the Government on 23 December 2010

Concerning: Nizar Ahmed Sultan Abdelhalem (hereinafter Mr. Abdelhalem)

The State is a party to the International Covenant on Civil and Political Rights.

1. The Working Group on Arbitrary Detention was established in resolution 1991/42 of the Commission on Human Rights. The mandate of the Working Group was clarified and extended in Commission resolution 1997/50. The Human Rights Council assumed the mandate in its decision No. 2006/102. The mandate was extended for a further three-year period in Council resolution 15/18 of 30 September 2010.

2. 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 sentence or despite an amnesty law applicable to him) (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 International Covenant on Civil and Political Rights (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 for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; disability or other status, and which aims towards or can result in ignoring the equality of human rights (category V).

Submissions

Communication from the Source

3. According to the source, in May 2010, Mr. Abdelhalem was summoned to the State Security Intelligence (SSI) Services in Nasr city. On 29 May 2010, Mr. Abdelhalem presented himself to the SSI, where he was arrested.

4. The source submits that Mr. Abdelhalem has been held incommunicado for nearly six months, allegedly being subjected to torture and ill-treatment, including electric shocks to sensitive parts of his body and severe beatings. According to the source, the SSI was trying to extract information regarding Mr. Abdelhalem’s alleged relationship with a terrorist group.

5. The source reports that Mr. Abdelhalem had successfully challenged his administrative detention before the Emergency Supreme State Security Court in accordance with the Emergency Law. On 13 July 2010, the Emergency Supreme State Security Court issued an order for Mr. Abdelhalem’s release. On 7 August 2010, the Prosecutor-General of the same Court issued another order for Mr. Abdelhalem’s release.

6. Notwithstanding the two orders, the Ministry of Interior has not yet released Mr. Abdelhalem. The source contends that, instead of releasing Mr. Abdelhalem, the Ministry of Interior transferred him temporarily to another location before issuing a new administrative detention order. Specifically, the source reports that, on 29 July 2010, Mr. Abdelhalem was transferred to Torah Prison, Cairo, where he remains detained incommunicado.

7. Reportedly, Mr. Abdelhalem has been detained incommunicado and allowed no access to legal assistance. Mr. Abdelhalem was allowed to meet his lawyer only once, on 8 August 2010.

8. In the source’s view, Mr. Abdelhalem was arrested and detained without a judicial order and was not informed of any reasons justifying his arrest and detention. In this regard, the source refers to article 41 of the Egyptian Constitution, which stipulates that “[i]ndividual freedom is a natural right not subject to violation except in cases of flagrante delicto. No person may be arrested, inspected, detained or have his freedom restricted in any way or be prevented from free movement except by an order necessitated by investigations and the preservation of public security. This order shall be given by the competent judge or the Public Prosecution in accordance with the provisions of the law”.

9. The source argues that Mr. Abdelhalem is being detained in violation of articles 9(2) and 14(1) of the International Covenant on Civil and Political Rights. In particular, the source opines that Mr. Abdelhalem has not been given the right to a fair trial. He was not informed of any charges against him either at the moment of his arrest or thereafter.

Response from the Government

10. In its letter of 23 December 2010, the Working Group provided the Government with the summary of the case and requested any information which the Government would wish to provide regarding the allegations. The Working Group regrets that the Government has not responded to the allegations transmitted by the Group within 90 days, as provided for in paragraph 16 of the Working Group’s methods of work; nor did it request extension of this time limit within 90 days.

11. According to paragraph 16 of its methods of work, a timely submitted request for extension of the time limit may be granted by the Working Group. In the present case, however, the Working Group notes that the request for the extension of the reply was received on 21 April 2011, i.e. long after the expiry of the 90-day period. In such circumstances, and although appreciative of the Government’s cooperation, the Working Group considers that it cannot afford a further delay in rendering its opinion.

Discussion

12. The Working Group considers it is in a position to render its opinion on the detention of Mr. Abdelhalem in conformity with paragraph 16 of its methods of work.

13. In its opinion No. 21/2007, paragraph 19, as well as on earlier occasions (see opinion No. 5/2005 (Egypt), para. 19, decision No. 45/1995 (Egypt), para. 6, and decision No. 61/1993 (Egypt), para. 6), the Working Group considered that maintaining a person in administrative detention once his release has been ordered by the court competent to exercise control over the legality of detention renders the deprivation of liberty arbitrary.

14. The Working Group reiterates its opinion that, in such cases, no legal basis can be invoked to justify the detention, least of all an administrative order issued to circumvent a judicial decision ordering the release.

15. In the present case, despite the judicial order of 13 July 2010 to release Mr. Abdelhalem, he is still being kept in detention. The Working Group considers that maintaining a person in detention once his release has been ordered by the court competent to exercise control over the legality of detention renders the deprivation of liberty arbitrary. Arbitrary detention violates article 9 of the International Covenant on Civil and Political Rights. The case thus falls into category I of the categories applicable to the consideration of cases submitted to the Working Group.

16. Since his arrest on 29 May 2010, Mr. Abdelhalem has not been formally charged or tried. In the Working Group’s view, due to these facts of non-observance of the right to fair trial, as provided for in article 14 of the International Covenant on Civil and Political Rights, the case also falls into category III of the categories applicable to the consideration of the cases submitted to the Working Group.

Disposition

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

The deprivation of liberty of Mr. Abdelhalem is arbitrary, being in contravention of articles 9 and 14 of the International Covenant on Civil and Political Rights and falls within categories I and III of the categories applicable to the consideration of the cases submitted to the Working Group.

18. Consequent upon the opinion rendered, the Working Group requests the Government of Egypt to take the necessary steps to remedy the situation of Mr. Abdelhalem and bring it into conformity with the standards and principles set forth in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

19. The Working Group believes that, taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Abdelhalem and accord him an enforceable right to compensation in accordance with article 9(5) of the International Covenant on Civil and Political Rights.

[Adopted on 4 May 2011]