The International League Against Arbitrary Detention urges the Government of Egypt to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 17/2024 concerning Salwa Hassan Salem Ali, asking the Government of Egypt to immediately and unconditionally release her and accord her an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Salwa Hassan Salem Ali (Egypt): Opinion No. 17/2024.
MOTHER ARRESTED ON TERRORIST GROUNDS
Salwa Hassan Salem Ali is an Egyptian citizen, born in 1972. She is a widow, mother of five children and she usually resides in Al-Janayen, Suways Governorate, Egypt. Reportedly, at the time of the source's communication, she was held in the Tenth of Ramadan Prison, after having been transferred from the Al-Qanater prison for women in May 2023.
According to the source, Ms. Ali was arrested at her home by State security forces and police officers - in uniform or plain clothes - on 24 October 2020. She was then allegedly subjected to enforced disappearance for three months, until 18 January 2021, when she appeared before the prosecution and was charged with joining a banned group and financing a terrorist organisation in connection with case No. 810 of 2020, a high-level national security case.
During her alleged enforced disappearance, the source claimed that Ms. Ali was denied access to a lawyer and was subjected to ill-treatment and torture by State security forces. The source further reported that Ms. Ali suffers from severe cartilage pain and sciatica, yet has not been provided with proper medical treatment, apart from painkillers.
The source argued that Ms. Ali’s detention takes place within a broader context of arbitrary detentions and enforced disappearances of Egyptian citizens, aimed at discouraging opposition to the Egyptian Government and President. This broadening should be understood in relation to the amendments made in 2015 to the counter-terrorism law (No. 94 of 2015) which expanded its scope, resulting in widespread human rights violations and a crackdown on fundamental freedoms.
The Government of Egypt was given the opportunity to answer these allegations, which it did on 23 September 2023. According to its response, the case against Ms. Ali was then still pending before the judiciary, and no verdict had been issued yet at the time.
ARRESTED WITHOUT A WARRANT ANDÂ SUBJECTED TO ENFORCED DISAPPEARANCE
First, the source submitted that Ms. Ali was arrested without being shown an arrest warrant or informed of the legal basis for her arrest. In contrast, the Government responded that Ms. Ali was arrested based on a warrant issued by the public prosecution, on sound legal grounds, in connection with case No. 865 of 2020. Reportedly, she was then presented to the Public Prosecutor and interrogated in accordance with international norms. Ms. Ali was informed of the charges against her and afforded the opportunity to prepare her defense. Faced with opposing information, the Working Group recalled its approach to evidentiary issues: where the source establishes a prima facie case of breach of international law constituting arbitrary detention, the burden of proof is understood to rest upon the Government to refute the allegations. In this case, the Working Group noted that the Government did not refute the source’s claims, as issuing a warrant and presenting it are distinct actions, such as informing a person of the reasons of their arrest at the time of their arrest and informing them of the charges during their interrogation. Therefore, the Working Group accepted the account given by the source and concluded that no arrest warrant or equivalent document was shown to Ms. Ali at the time of her arrest, and that the authorities failed to inform her of the reasons for her arrest, in violation of articles 9(1) and 9(2) of the Covenant. Consequently, her rights to security and liberty of person and not to be arbitrarily arrested, enshrined in articles 3 and 9 of the Universal Declaration of Human Rights and article 9 of the Covenant, were violated.
Second, the source stated that Ms. Ali was subjected to enforced disappearance for three months after her arrest, namely from 24 October 2020 to 18 January 2021. Her family reportedly filed complaints with the authorities, requesting information on her whereabouts, but received no response. In reply, the Government stated that Ms. Ali was presented to the Public Prosecutor within 24 hours of her arrest, disproving the source’s claim. However, the Working Group noted that the Government did not provide sufficient information to establish Ms. Ali’s whereabouts for the three months following her arrest or to refute the source’s allegations. As a result, the Working Group found that Ms. Ali was subjected to enforced disappearance during this period. The Working Group recalled that deprivation of liberty without disclosure of a person’s location or fate is a particularly aggravated form of arbitrary detention, as it places the person outside the protection of the law and is contrary to article 9 (1) of the Covenant and article 6 of the Universal Declaration of Human Rights.
In light of her enforced disappearance, the Working Group found that Ms. Ali was deprived of the right to challenge the legality of her detention before a court, in violation of article 9 (3) and (4) of the Covenant, and was placed outside of the protection of the law, in violation of article 6 of the Universal Declaration of Human Rights and article 16 of the Covenant. Her right to an effective remedy was thus also violated, as protected in article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant. Lastly, forcibly disappeared for 3 months, Ms. Ali’s right to be presented promptly before a judge following her arrest, enshrined in article 9 (3) of the Covenant, was also violated, as according to the Human Rights Committee, any delay longer than 48 hours must remain exceptional and be justified under the circumstances.
Therefore, the Working Group found that the Government failed to establish a legal basis for Ms. Ali’s arrest and detention, rendering her detention arbitrary under category I.
DENIED ACCESS TO A LAWYER, SUBJECTED TO TORTURE AND ILL-TREATMENT, AND CONFESSION UNDER DURESS
The source argued that Ms. Ali’s right to a fair trial was denied, as she did not have access to effective legal counsel and was subjected to torture and ill-treatment.
Regarding her access to legal assistance, the Working Group recalled that this right is a fundamental aspect of the right to a fair trial. It is notably protected by article 14 (3) of the Covenant, and reinforced by article 11 of the Universal Declaration of Human Rights. In light of Ms. Ali’s enforced disappearance following her arrest, the Working Group found that the authorities violated her right to have access to a lawyer immediately upon arrest, in violation of article 14 of the Covenant.
Moreover, the source submitted that Ms. Ali was subjected to physical and psychological torture by State security forces. In addition to alleged acts of beating and electrocution, the source claimed that the authorities subjected one of Ms. Ali’s close relatives to enforced disappearance for a week to force her to confess. The Government denied the allegations of physical torture, stating that no injuries were observed on Ms. Ali during the public prosecution’s investigations and that no complaint was filed. However, the Working Group emphasized that the definition of torture under the Convention against Torture is broad and not limited to acts causing visible injuries or physical manifestations of pain. The Working Group also noted the Government’s failure to address the source’s claim of psychological torture through the enforced disappearance of Ms. Ali’s close relative. It deemed the Government’s response insufficient to rebut the source’s credible prima facie allegations. Therefore, the Working Group concluded that the facts presented reveal a prima facie breach of the absolute prohibition of ill-treatment and torture. Â
Additionally, the Working Group observed that torture undermines an individual’s ability to defend themselves, particularly in light of the right to be presumed innocent under article 14 (2) of the Covenant and article 11 of the Universal Declaration of Human Rights and the right not to be compelled to confess guilt under article 14 (3) (g) of the Covenant. Based on the above, the Working Group accepted the source’s claim that Ms. Ali was coerced into confessing, and that her confession was used as evidence, in violation of the above mentioned articles.
The Working Group therefore concluded that the violations of Ms. Ali’s right to a fair trial and to due process were of such gravity as to render her detention arbitrary under category III.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
The Working Group expressed deep concerns about the source’s allegations regarding the conditions in Al-Qadater prison for women, recalling Egypt’s international obligations under article 10 of the Covenant to treat all persons deprived of their liberty with humanity and with respect for the inherent dignity of the human person, and to take into account women prisoners’ specifics needs, in accordance with the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules).
Moreover, the Working Group stressed the Nelson Mandela Rules, requiring that all persons deprived of their liberty must be treated with humanity and with respect for their inherent dignity as human being, in regard with the source’s concerns over Ms. Ali’s Health and its allegation that she is not provided with proper care and treatment.
Finally, the Woking Group expressed dismay at the Government failure to address the source’s allegation that in order to exert psychological pressure on Ms. Ali, the authorities subjected one of her close relatives to enforced disappearance for a week.
In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Salwa Hassan Salem Ali was arbitrary and fell under categories I and III because her deprivation of liberty was in contravention of articles 3, 6, 8, 9 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 requested that the Government of Egypt take the steps necessary to remedy the situation of Ms. Ali 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 her immediately and accord her an enforceable right to compensation and other reparations, in accordance with international law.
The Working Group urged the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms. Ali and to take appropriate measures against those responsible for the violation of her rights.Â
Eventually, the Working Group also noted this opinion is one of many in recent years to find the Government of Egypt to be in violation of its international human rights obligations, and expressed concern that it could indicate a systemic problem. As such, it recalled that widespread or systematic imprisonment or other severe deprivation of liberty in violation of the rules of international law could constitute crimes against humanity under specific circumstances.
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