A/HRC/WGAD/2021/45
88.
The Working Group is satisfied, on the basis of the unrebutted information submitted
by the source, that the four individuals were detained as a result of their peaceful exercise of
the right to freedom of opinion, expression, assembly and association, and the right to take
part in the conduct of public affairs, and that their detention was contrary to articles 19 and
21 of the Universal Declaration of Human Rights and articles 19 and 25 of the Covenant.
Their detention is arbitrary under category II. The Working Group refers this case to the
Special Rapporteur on the promotion and protection of the right to freedom of opinion and
expression, for further consideration of the circumstances of the case and, if necessary,
appropriate action.
89.
Moreover, the Working Group notes that these four individuals were charged with
crimes including publishing false news that endangered the public safety and interest; joining,
belonging to or cooperating with a terrorist group; receiving funds to carry out the goals of
the terrorist group; misusing social media; and inciting harm to the national economy. In this
context, it is worth noting 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. In addition, this guarantees that law enforcement officials, when they are
implementing these laws, cannot have uncontrolled, extensive and discretionary
interpretation over them.8 The Working Group recalls that broad, vague and imprecise laws
can present a risk of providing domestic legal coverage to situations that are considered
arbitrary detentions under international human rights law. 9
Category III
90.
Given its finding that the deprivation of liberty of Mr. El-Baker, Ms. El-Masry, Mr.
Imam and Ms. Hassan is arbitrary under category II, the Working Group wishes to emphasize
that no trial against these four human rights defenders and lawyers should take place.
Nevertheless, the source has raised serious violations to fair trial and due process rights in
the deprivation of liberty of these individuals. The Working Group will address these in turn.
91.
The source claims that the deprivation of liberty of three of the four human rights
defenders, namely, Mr. El-Baker, Mr. Imam and Ms. Hassan falls within category III as there
was total or partial non-observance of the international norms relating to the right to a fair
trial, which is alleged to be of such gravity as to give the deprivation of liberty an arbitrary
character. More precisely, Mr. El-Baker was questioned in an investigation session in
absence of his lawyer, in violation of the right to legal counsel before trial. In addition, he
reportedly was subjected to ill-treatment, in violation of his right to freedom from torture and
ill-treatment, and was kept in poor detention conditions, in violation of the right to humane
conditions of detention.
92.
Mr. El-Baker reportedly was suffering from a denial of medical care, in violation of
his right to health. Allegedly, this was done deliberately since Mr. El-Baker was not allowed
to be examined by a doctor since his detention began. Even when he asked to be examined
by a prison doctor, his request was denied.
93.
As regards Mr. Imam, the source claims that he was subjected to enforced
disappearance, in violation of his right to liberty and right to have access to the outside world,
which is essential to the fulfilment of a fair trial. Likewise, it is alleged that Ms. Hassan was
subjected to enforced disappearance, in violation of her right to liberty and the right to have
access to the outside world, which are essential rights to the fulfilment of a fair trial.
94.
The Working Group considers that, on the basis of the facts as submitted by the
source, the events leading to the arrest and detention of the four human rights defenders, as
well as the detention itself, were characterized by a denial of due process rights. In the case
8
9
12
resolution 70/161, in which the Assembly called upon States to take concrete steps to prevent and put
an end to the arbitrary arrest and detention of human rights defenders, and in that regard, strongly
urged the release of persons detained or imprisoned, in violation of the obligations and commitments
of States under international human rights law, for exercising their human rights and fundamental
freedoms.
Human Rights Committee, general comment No. 35, paras. 22 and 38.
Opinion No. 82/2020, paras. 50 and 59.