Egypt: Fair trial violations and threat of long term detention for Mohammad El-Baqer (joint communication)

The following is based on a communication written by the UN Special Rapporteur on Human Rights Defenders and other UN experts to the Government of Egypt on 17 March 2022. The communication remained confidential for 60 days before being made public. The Government did not respond within this period. Replies, if received, will be published on the UN Special Procedures’ database

This is a shorter version of the original communication.

Read the full communication

BACKGROUND

Topic:

  • Violations of due process and fair trial standards in the sentencing of human rights lawyer, Mohamed El- Baqer by Egypt’s Emergency State Security Misdemeanours Court in December 2021;
  • The continued inclusion of his name on the terrorist watch list despite lack of evidence;
  • His continued pre-trial detention in connection with another case;
  • The threat of a long term prison sentence.

Mr. Mohamed El-Baqer is a lawyer and human rights defender who has actively used social and other media outlets to publish and write about human rights issues, including on cases of enforced disappearances and torture allegedly involving the National Security Agency. Following his arrest in September 2019, he was detained arbitrarily for an extended period. He was also placed on Egypt’s domestic terrorist entities and terrorist list (hereinafter “terrorism watch list”) under Case No. 1781/2019.

We previously raised our human rights concerns with the Egyptian Government about the arrest and detention of Mr. El-Baqer and the inclusion of his name on Egypt’s terrorism watch list in communications EGY 11/2019, EGY 10/2020 and EGY 8/2021.. We regret that no reply has been received to any of these communications.

The case of Mr. El-Baqer was also included in the 2020 report of the Secretary-general (A/HRC/45/36, Annex I paras. 45-46) on cooperation with the UN on allegations that he had been targeted in relation to his engagement with the Universal Periodic Review of Egypt.

ALLEGATIONS

On 16 October 2021, Mr. El-Baqer was referred to the Emergency State Security Court (ESSC) by the Supreme State Security Prosecution under a new case without the knowledge of his lawyers who were prevented from presenting their defence, and who were not allowed to access his case file.

Mr. El-Baqer was accused under case No. 1228/2021 of “spreading false news undermining national security” and “using social media to commit publishing offenses.” These charges were among four accusations brought against him under an earlier case in 2019, case No. 1356/2019, which included accusations of “belonging to a terrorist group”, and “funding a terrorist group”, both of which remain in place and for which Mr. El-Baqer is held in pre-trial detention.

Although the state of emergency in Egypt was lifted on 26 October 2021, the ESSC remains in place for cases referred to it beforehand. Emergency Court verdicts are not subject to appeal and can only be commuted or overturned by the President of the republic.

On 11 November 2021, the ESSC rescheduled Mr. El-Baqer’s trial to 20 December 2021. His lawyers were not allowed to meet him or to have access to his case file, in violation of due process.

On 23 November 2021, the Court of Cassa tion rejected Mr. El-Baqer’s appeal to remove his name from the terrorism watch list issued a year earlier under Case No. 1781/2019, despite a lack of evidence or verdict justifying its decision.

On 20 December 2021, the ESSC Misdemeanor Court in New Cairo sentenced Mr. El-Baqer to four years in prison in case 1228/2021. In addition to his four-year sentence, Mr. El-Baqer continues to be held in pre- trial detention under Case No. 1356/2019 and, if tried and convicted by a Supreme State Security Court, he could face long-term imprisonment.

CONCERNS

Without prejudging the accuracy of the information received, we express serious concern regarding the allegations that Mr. El-Baqer was denied the right to due process and fair trial throughout his arbitrary detention and trial, his continued arbitrary detention, and the continued inclusion of his name on the terrorism watch list without apparent evidence, in what appears to be a misuse of this listing procedure against human rights defenders. We express further concerns regarding the reported lack of adequate sanitary conditions and adequate medical care to Mr. El-Baqer, as well as the alleged lack of regular access to and contact with his family and legal representatives.

In line with our previous communication EGY 4/2020, we reiterate our concerns about the vagueness of the counterterrorism and national security legislation in Egypt. We note with concern that this legislation is being misused to target, inter alia, human rights defenders critical to the Government.

As to Mr. El-Baqer’s alleged lack of due process, fair trial, and regular access and contact with his legal representatives, we remind the Egyptian Government that in its General Comment 32 (2007) on article 14, the Human Rights Committee stressed that the right to equality before the courts and tribunals and to a fair trial is a key element of humanrights protection and serves as a procedural means to safeguard the rule of law. (CCPR/C/GC/32, para 2). Article 14 of the ICCPR, ratified by Egypt, provides inter alia for the principle of equality before competent, independent, and impartial courts and tribunals, the presumption of innocence, provision of adequate time and facilities  for the preparation of the defense, and the right of accused persons to communicate with counsel of their own choosing (UA IRN 5/2020). The guarantees of a fair trial may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights (CCPR/C/GC/32, para 6). We further remind the Egyptian Government that paragraph 7 of resolution A/HRC/RES/42/18 affirms, in the context of counterterrorism, the need to ensure “access to independent and adequate legal representation”. And where the detainee has access to counsels, such access must be meaningful (EGY 4/2020).

Furthermore, in the same terms expressed in EGY 8/2021, we reiterate our regret on the upholding of Mr. El-Baqer’s inclusion in the terrorism watch list by the Court of Cassation. Once again, we expressed our serious concerns at the lack of adequate safeguards to prevent misuse and no clear means to guarantee the rights of those subject to national-level listing processes. Placement of individuals or groups on a terrorism watchlist should be necessary and proportionate and therefore only in response to an actual, distinct, and measurable terrorism act or demonstrated threats of an act of terrorism. Only through an adequately constructed definition of terrorist acts can the necessity and proportionality elements for listing be met to ensure that the Government’s listing is in response to an actual, distinct, and measurable threat as defined by law.

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