Advance unedited version A/HRC/WGAD/2022/ Right to a fair trial by a competent, independent, and impartial tribunal 90. The source claims that Mr. Abdel Aziz and Mr. Ali were tried before a military court even though they are both civilians, contrary to their right to a fair trial, before a competent, independent, and impartial tribunal under article 14 of the Covenant. 91. The Working Group recalls that fair trial rights apply in trials before all courts, including special or specialized courts and military courts. The Working Group in its practice has consistently found that the trial of civilians by military courts is in violation of the Covenant and customary international law and that, under international law, military tribunals can only be competent to try military personnel for military offences. 12 Further, in accordance with principle 5 of the Basic Principles on the Independence of the Judiciary and sections A(4)(e) and L(c) of the Principles on Fair Trial in Africa, special courts shall not be created to displace the jurisdiction of ordinary courts, and therefore should not examine offences falling under the jurisdiction of ordinary courts. When special courts exist, they must be independent and impartial, and must respect fair trial standards. Article 26 of the African Charter on Human and Peoples’ Rights (the “African Charter”), which has been ratified by Egypt, also requires States to guarantee courts’ independence. 92. In the present case, the Working Group notes that while it had the opportunity to explain the involvement of a military court in the case of Mr. Abdel Aziz and Mr. Ali, the Government failed to do so. The Working Group agrees with the source that the use of special courts makes it more likely that fair trial rights are violated before such courts. This is why human rights bodies have raised concerns about procedures before special courts, which are inconsistent with fair trial rights, including the right to a trial before an independent and impartial court, the exclusion of evidence obtained by torture or other ill-treatment and the right to appeal to a higher tribunal. 93. For the reasons enumerated above, the Working Group finds that the trial of Mr. Abdel Aziz and Mr. Ali before a military court violated their right to a trial before a competent, independent, and impartial court, in violation of article 14 of the Covenant. Right to access an effective legal counsel 94. According to the source, Messrs. Abdel Aziz, Sahloob, Khalil, and Ali were denied the right to promptly seek legal representation and communicate with their lawyers in detention. The source submits that Mr. Abdel Aziz, Mr. Sahloob and Mr. Khalil were denied the right to receive visits from their lawyers, and that their lawyers were only permitted to attend their respective clients’ hearings. The source also contends that Mr. Ali was denied the right to communicate with his lawyer in detention. The Government has chosen not to rebut any of these allegations, despite having an opportunity to do so. 95. As the Working Group has stated in principle 9 and guideline 8 of the Basic Principles and Guidelines, persons deprived of their liberty have the right to legal assistance by a counsel of their choice, at any time during their detention, including immediately after the moment of apprehension; must be promptly informed of this right upon apprehension; and access to legal counsel should not be unlawfully or unreasonably restricted. 13 As provided in General Comment No. 32, a detainee has the right to have “prompt access” to legal counsel, which means that a lawyer is granted the right to have private communication and meetings with the detainee and to attend all the investigations without interference or restrictions. 14 96. Every detainee should also have access to “effective counsel.” According to principle 2 of the Basic Principles on the Role of Lawyers, this means that the authorities have the duty 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 to their clients, and such access should be provided at the earliest appropriate time. The effectiveness of legal counsel is fundamentally related to the principle of equality of arms, as enshrined in 12 13 14 12 A/HRC/27/48, paras. 66–70. See also opinions No. 48/2020, No. 66/2019, No. 32/2018, No. 28/2018, No. 30/2017 and No. 44/2016. Basic Principles and Guidelines, principle 9 and guideline 8. See also Human Rights Committee, general comment No. 32 (2007), para. 34. General comment No. 32, para. 34.