Yasser Mohamed Salah, et al. v. Egypt

Opinion No. 7/2002 (Egypt); E/CN.4/2003/8/Add.1 at 68
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At least 55 men were arrested in Cairo on grounds of their sexual orientation during a police raid of a discotheque. The raid occurred after undercover officers entered the bar and observed and filmed dancing. The police targeted men who appeared to be homosexuals or who were not accompanied by women. One man was slapped by officers and called a derogatory name when he refused to leave the club. The men were held in incommunicado detention at the police station and denied access to a lawyer. The men were charged with immoral behaviour and contempt of religion, both punishable as criminal offenses. They were later subject to an anal examination to determine whether they had engaged in sexual acts with other men.

The Government of Egypt claimed that the men were not arrested on account of their sexual orientation. It stated that there were no laws in Egypt that provided for the prosecution of a person on account of his or her sexual orientation. It also claimed that the laws under which the men were charged did not take account of gender or sexual orientation, but were neutral in their proscription of particular conduct.

The Working Group on Arbitrary Detention (the Working Group) learned from an independent source that all but two of the men were charged with “making homosexual practices a fundamental principle of their group in order to create social dissensions, and engaging in debauchery with men.”

The Working Group examined the approach of UN human rights bodies in their interpretation of the term “sex” in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, and concluded that the term includes “sexual orientation and affiliation.” In particular, the Working Group noted the Human Rights Committee’s decision in Toonen v. Australia; paragraph 18 of General Comment 14 of the Committee on Economic, Social and Cultural Rights; and the Office of the United Nations High Commissioner for Refugees’ ‘Guidelines on International Protection: gender-related persecution within the context of article 1 A (2) of the 1951 Convention and its 1967 Protocol relating to the Status of Refugees’.

The Working Group found that the detention based on sexual orientation constitutes a deprivation of their liberty. The Working Group requested the Government of Egypt to amend its legislation to bring it in line with the Universal Declaration of Human Rights and other relevant international instruments to which Egypt is a party.

27. The question, therefore, is whether the reference to “sex” may be regarded as covering “sexual orientation or affiliation”, and whether it follows that the detention of the defendants can be considered arbitrary on the grounds that it was ordered on the basis of a domestic legislation provision (namely article 98, paragraph 1 of the Egyptian Penal Code) not in accordance with the international standards set forth in article 2, paragraph 1, of the Universal Declaration of Human Rights, and articles 2, paragraph 1, and 26 of the Covenant to which the Government refers. The
approach adopted by United Nations human rights bodies with regard to this question would argue in favour of an affirmative answer. Of particular relevance in this regard are the following:
28. In the light of the foregoing and of the approach adopted by United Nations human rights bodies in this regard, the Working Group renders the following opinion:

The detention of the above-mentioned persons prosecuted on the grounds that, by their sexual orientation, they incited “social dissention” constitutes an arbitrary deprivation of liberty, being in contravention of the provisions of article 2, paragraph 1, of the Universal Declaration of Human Rights, and articles 2, paragraph 1, and 26 of the International Covenant on Civil and Political Rights to which the Government is a party.

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