EGYPT: ARBITRARY DETENTION OF AN EGYPTIAN HIGH SCHOOL STUDENT

The International League Against Arbitrary Detention urges the Government of Egypt to take all necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 20/2024 concerning Mohamed Mahmoud Marghany Mahmoud Mubarak, asking the Government of Egypt to immediately and unconditionally release Mr. Mubarak and to accord him an enforceable right to compensation and other reparations, in accordance with international law.

Read the full WGAD opinion concerning Mohamed Mahmoud Marghany Mahmoud Mubarak (Egypt): Opinion No. 20/2024.

HIGH SCHOOL STUDENT ARRESTED IN THE CLASSROOM

Mr. Mubarak, born in 1998, is a high school student and an Egyptian citizen.

He was first arrested on 20 June 2016, while taking an exam at school, by state security agents in civilian clothes, without a warrant. He was forcibly disappeared for 21 days, during which his family’s complaints were ignored. When he reappeared on 11 July 2016, he reported being tortured into confessing to crimes he had not committed. He was charged under case No. 2694 of 2016 for "joining and participating in demonstrations" and spent three years in pretrial detention.

Although acquitted in 2019, he was forcibly disappeared for 35 days and was immediately rearrested under a new case (No. 694 of 2019) on the basis of identical charges. On 11 May 2019, Mr. Mubarak was sentenced to a year in prison and a penalty of 50,000 Egyptian pounds by the Supreme State Security Court. Following his appeal, an additional year was added to his sentence. After completing his sentence in 2022, he faced another case (No. 3076 of 2022) for "possessing leaflets" and remains in detention under harsh conditions. He remains in pre-trial detention and is currently awaiting trial.

The Government of Egypt was given the opportunity to respond to the source’s allegations on 27 October 2023, but chose not to respond.

ARRESTED WITHOUT A WARRANT AND SUBJECTED TO ENFORCED DISAPPEARANCE

According to the source, Mr. Mubarak's arrest and detention violated several human rights provisions as the authorities did not provide an arrest warrant, legal documentation, or any justification for his arrest. Furthermore, Mr. Mubarak was a minor at the time of his first arrest. In that regard, the Working Group recalled that for deprivation of liberty to have a legal basis, the authorities must invoke an arrest warrant and cannot base the arrest solely on the law. Therefore, due to the absence of an arrest warrant and a lack of justification, the Working Group found a violation of article 9 (2) of the Covenant, articles 3 and 9 of the Universal Declaration of Human Rights and article 40 (2) (b) (ii) of the Convention on the Rights of the Child, which requires deprivation of liberty to have legal basis.

Moreover, the source submitted that the authorities did not disclose his whereabouts during his two enforced disappearances. The Working Group recalled that incommunicado detention prevents prompt presentation before a judge and the right to challenge the lawfulness of the detention before a court and place the person outside the protection of the law. Therefore, the Working Group found a violation of articles 9 (1) of the Covenant, given that enforced disappearance is an aggravated form of arbitrary detention. It also found a violation of articles 2 (3), 9 (3) and (4) and 16 of the Covenant, and articles 6 and 8 of the Universal Declaration of Human Rights as Mr. Mubarak was placed outside the protection of the law, was not able to challenge his detention, thereby violating his right to an effective remedy. 

Lastly, the source submitted that Mr. Mubarak was only brought before a judge three years after being first arrested and that he is still awaiting trial regarding the third case against him. The Working Group recalled that pre-trial detention must be based on an individualized determination and is an exception rather than the norm. The Government did not respond to the Working Group and therefore failed to justify Mr. Mubarak’s pre-trial detention. As a result, his pre-trial detention lacked an individualized determination in violation of article 9 (3) of the Covenant. The Working Group also expressed some concerns over the so-called rotation practice whereby release is ordered but never effected and new charges are brought against the person concerned.

In light of the above, the Working Group concluded that Mr. Mubarak's arrest and detention were arbitrary under Category I.

DENIED FAIR TRIAL RIGHTS AND USE OF SELF-INCRIMINATORY STATEMENTS UNDER DURESS OR TORTURE

The source argued that Mr. Mubarak's detention violated several key human rights, such as the right to due process and to a fair trial. Indeed, it was submitted that he was held incommunicado and had restricted access to his lawyer, and even now, especially with the online investigation sessions, his lawyer cannot attend. For these reasons, the Working Group considered that the extremely limited access to legal assistance amounted to a violation of his right to equality of arms, to adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing under article 14 (3) of the Covenant, article 11 of the Universal Declaration of Human Rights, and articles 37 (d) and 40 (2) (b) (ii) of the Convention on the Rights of the Child.

Additionally, the source pointed out the fact that Mr. Mubarak endured torture during his enforced disappearances to obtain a confession. In relation to Mr. Mubarak, the Working Group recalled his rights under article 37 (a) and (c) of the Convention on the Rights of the Child and articles 2 and 16 of the Convention against Torture and noted that the use of physical or psychological force on a child is a serious abuse of power lacking in necessity and proportionality. It also recalled the prohibition of self-incriminating confessions, especially when the victim is a child and Mr. Mubarak’s right to be presumed innocent. Hence, the Working Group found the situation to be in violation of article 40 (2) (b) (i) and (iv) of the Convention on the Rights of the Child and of article 14 (2) and (3) (g) of the Covenant.

The Working Group thus concluded that the violations of the individual’s fair trial and due process rights were of such gravity as to render his detention arbitrary under category III.

CONCLUSIONS OF THE UNITED NATIONS WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Mohamed Mahmoud Marghany Mahmoud Mubarak was arbitrary and fell under categories I and III because his deprivation of liberty was in contravention of articles 3, 6, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 9, 14 and 16 of the International Covenant on Civil and Political Rights.

The Working Group recommended that the Government of Egypt take the steps necessary to remedy the situation of Mr. Mubarak without delay and bring it into conformity with the relevant international norms. The Working Group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release him immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.

The Working Group also urged the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mohamed Mahmoud Marghany Mahmoud Mubarak and to take appropriate measures and to bring its laws into conformity with the recommendations of the opinion.

Finally, the Working Group referred the case to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, for appropriate action.