Ibrahim Halawa could be freed under Egyptian law, say lawyers

Civil liberties barristers urge Irish Government to formally request teen’s repatriation

Barristers examining the case of Ibrahim Halawa believe the release of the Irish teenager, who has been detained in Egypt for almost two years, could be secured before his trial.

A detailed legal opinion compiled by Doughty Street Chambers, a civil liberties law firm, says a number of unexplored legal options are open to the Government to secure Mr Halawa's release.

In particular, it says, under Egyptian law accused persons may be transferred to their country of origin before their trial concludes, which appears to contradict the position of the Government.

Minister for Foreign Affairs Charlie Flanagan is due to appear before the Oireachtas Committee on Foreign Affairs on Wednesday, as the two-year anniversary of Mr Halawa's arrest approaches.

He has maintained the Government cannot request Mr Halawa’s release from custody until such time as his trial is disposed of.

However, his case, and that of 493 other prisoners, has been continually adjourned and Mr Halawa is now understood to be on hunger strike.

Number of offences

Mr Halawa (19), was arrested in August 2013 at the al-Fateh mosque in Cairo.

He is charged with a number of offences including terrorism, murder (in a context similar to joint enterprise) and use of explosives, for which a potential sentence of death or life imprisonment may be applied, his lawyers say.

Doughty Street Chambers said the Government can either make a formal request for his transfer to Ireland as set out in Egyptian law, take diplomatic action to protect his human rights under international law, or put Egypt on notice of a potential legal action for breach of its obligations at the International Court of Justice (ICJ).

"The existing approaches which have been adopted to attempt to secure his swift release have not worked and so we now urge the Irish Government to take [these] specific steps," the document states.

Legal and Halawa family representatives met with Fianna Fáil Senator Mark Daly, a member of the Oireachtas Committee on Foreign Affairs, on Tuesday.

“The Government needs to take the opinion of Doughty Street Chambers very seriously and act upon it,” Mr Daly said.

“Its recommendation of looking for a release [under Egyptian law] needs to happen immediately and can happen immediately if the Taoiseach picks up the phone.”

Mr Flanagan has previously said that “irrespective of any political efforts made by foreign governments including high level requests, the trial must be completed before any political consideration of a possible release...can be taken”.

“It is unrealistic to expect that any release will take place before this initial trial concludes.”

Barristers’ opinion

Conversely, the barristers’ opinion cites Egyptian Law 140 of 2014 - addressing the deportation of foreign criminals - which allows for repatriation of suspected criminals before the completion of trial.

Although containing a number of conditions, it “does not impose any requirement that final judgment be reached...foreign persons may be transferred to their home state at any time during the criminal justice process from charge to after final conviction.”

Four months ago Mr Halawa’s Egyptian lawyer submitted such an application, but has not received a response. “A formal request from Mr Halawa’s home state would doubtless hold more sway than the existing request from his domestic lawyer,” the barristers said.

Doughty Street Chambers also warned that under Egyptian law enacted in 2013, those accused of serious offences may be held in custody indefinitely once sanctioned by the courts on a rolling 45-day basis.

The Department of Foreign Affairs responded only by saying Mr Flanagan would appear before the committee on Wednesday, where he will “address aspects of the case of Mr Halawa and give the up-to-date Government position”.