report

Comments on the Report of the State of Egypt Concerning the Implementation of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1]

November 2002

  OMCT would like to extend its gratitude for its support of the Special Procedures Programme to the Government of the United Kingdom.

1. Introduction.

2. Preliminary Observations.

3. General Background.

4. Legal and Institutional Structure.

4.1 Law Enforcement and Security Agencies.

4.2 Legal Provisions Relevant to the Practice of Torture.

4.3 Institutional Organization of the Criminal and Justice System.

4.4 The Emergency Law and Exceptional Courts.

5. The Practice of Torture.

6. Definition of Torture (Issues Under Articles 1 and 4)

7. Structural Institutional Problems and Potential Legal Limitations to the Prohibition of Torture (Issues Under Article 2)

7.1 Legislative and Administrative Problems - Restrictions on NGO Activities (Issues Under Article 2.1)

7.2 Legislative and Administrative Problems; Refusal by the Executive to Implement Judicial Orders 

8. Prevention of Torture (see attached document at bottom for clarification on this section)

8.1 Existing Norms and Practices Concerning Pre-trial Detention Practices (Issues Under Article 2.1 and 11)

8.1.1 Control of the Legality of Detention and the Right to Appeal

8.1.2 Communication with the outside world; access of persons arrested to a lawyer; family members and doctors.

8.1.3 Conclusion regarding pre-trial detention practices.

8.2 Registers of Persons in Detention and Monitoring of Places of Detention.

8.3 Prohibition of Statements Made Under Torture Being Used as Evidence (Issues Under Art. 15)

8.4 Training (Issues Under Article 10)

9. Right to Complain, Obligation to Investigate, Initiate Legal Proceedings and Punish Torture (Issues Under Articles 12 and 13)

10. Redress (Issues Under Article 14)

11. Issues Under Article 16.

11.1 Prisoners in Administrative Detention.

11.2 Conditions of Detention.

Recommendations

Following are our comments on Egypt’s fourth periodic report[2] to the UN Committee Against Torture (CAT) regarding its compliance with the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The information in this report is based on the following reports prepared by the Egyptian Organization for Human Rights:

v     The Egyptian Organization for Human Rights Annual Report;

v     Victims Without Rights;

v     EOHRs Report on Torture in Police Stations and Detention Centers in Egypt

To date the EOHR has issued nine (9) reports concerning torture. These are: 

v     "Crime Without Punishment: Torture in Egypt" (25/12/1993);

v     "Citizens Without Protection" (24/10/1994);

v     "Torture In Police Stations Must Be Stopped" (9/3/1997);

v     "The Belqas Tragedy: EOHR's Report on the Death of a Citizen in the Belqas Police Station" (28/4/1998);

v     "No Way Out: Fear of a New Stage of Social Violence" (12/9/1998);

v     "Collective Punishment in Al-Kosheh Village: Random Arrests, …" (28/9/1998);

v     "Torture in Egypt …Between Police Excesses and the Difficulty of Obtaining Evidence" (15/4/1999)

v     "The Millennium Has Begun…Will the Crime of Torture in Egypt Ever End?" (30/1/2000);

v     "Legal Protection for the Perpetrators of the Crime of Torture” (19/3/2001)

It should be noted that due to under-reporting, statistics regarding complaints received by EOHR are not an accurate reflection of the scale of violations in the country.

Rather, they are a mere sample of cases that have come to the attention of the organization.

2. Preliminary Observations

Egypt acceded to the Convention Against Torture[3] on 25 June 1986. At that time, Egypt did not make declarations under either Article 21, recognising the CAT’s competence to receive inter-state complaints, or Article 22, which would permit the CAT to receive individual complaints. Egypt did not make any reservation to the Convention against Torture.

To date, Egypt has presented four reports to the Committee Against Torture[4]. Between 1991 and 1994, the situation in Egypt was the object of the confidential inquiry procedure established under article 20, paragraphs 1 to 4 of the Convention, when information appears to indicate that torture is being systematically practiced by a State party. Further consultations, in accordance with paragraph 5 of that article, took place in 1996. To date, the Committee Against Torture has published accounts of such proceedings in the cases of only three countries: Egypt[5], Turkey, and Peru.

In his 2002 report, the Special Rapporteur on Torture noted that his 1996 request for an invitation to carry out an on-site visit to Egypt had yet to yield a positive result[6].

Egypt is party to the principle United Nations human treaties including: the United Nations Covenant on Economic Social and Cultural Rights[7]; the United Nations Covenant on Civil and Political Rights[8]; the International Convention on the Elimination of all Forms of Racial Discrimination[9]; the Convention on the Elimination of All Forms of Discrimination against Women[10]; the Convention on the Rights of the Child[11]; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families[12]; (not yet in force). At the regional level Egypt is party to the African Charter on Human and Peoples’ Rights[13]

3. General Background

Egypt’s political system is characterized by a concentration of power in the hands of the Executive, a Parliament (the People’s Assembly) dominated by one political party, the National Democratic Party, and a justice system that is relatively independent. The Cabinet and the country’s governors are appointed and can be dismissed by the President.

Egypt is officially a democracy. Although elections are held regularly, a number of restrictive practices have been adopted which severely curtail the free functioning of institutions, the action of civil society and numerous individual rights. Many opposition parties are denied official recognition and thus cannot participate in the political process.

Freedom of expression frequently suffers limitations. News reports are often censored and newspapers and other material have been confiscated on several occasions. In addition, journalists are frequently summoned by the State Security Prosecution for questioning and in a number of cases, defendants have received prison sentences for libel and slander.

Though NGOs are allowed to function, in many cases they are (as is the case of the EOHR) unable to obtain official registration. Restrictive legislation concerning NGO activities has been the subject of controversy for several years. On certain occasions human rights defenders have been wrongfully detained and criminally prosecuted. Law 84 of 2002, which replaced law 153 of 1999 that was held unconstitutional, gives the Minister of Social Affairs the ability to ban by decree non-governmental agencies.

For many years now, the government has been actively involved in an anti-terrorism campaign against armed Islamic groups. In 1995, Islamic Groups made a declaration stating that they would lay down their weapons.  However, violent acts continued to occur notably the 1997 Luxor massacre. Following the massacre another declaration made that violence would cease and there have been no registered attacks since then.

A state of emergency has been in force almost continuously in Egypt since 1967.

A number of exceptional laws, including the current Emergency Law first passed in 1981 after the assassination of President Sadat, have been adopted which severely encroach on the average citizen’s basic rights. As a result, the basic rights of many have been severely curtailed and reports of arrests attributed to political beliefs, torture and referrals to military tribunals have been frequent. It is estimated that roughly 16,000 persons are currently being held in detention because of political crimes, many of whom have been detained merely on suspicion of having links or sympathy with extremist Islamic groups.

4. Legal and Institutional Structure

4.1 Law Enforcement and Security Agencies

Functions of police and public security are divided among four deputy Ministers of the Interior. The Minister himself retains responsibility for state security investigations and overall organization. The deputy minister for public security oversees sectors in charge of public safety, travel, immigration, passports, port security and criminal investigation. The deputy minister for special police oversees prison administration, the Central Security Forces, civil defence, etc. A deputy for personnel affairs is responsible for training institutions and personnel matters for both police and civilian employees and a deputy minister for administrative and financial affairs is in charge of administration, financial and legal matters among others.

A director of police commands all police in the jurisdiction of each governorate (muhafazah) and is responsible for public order. Both the governor and the director of the police report to the Ministry of the Interior on security matters. The police are the main body involved in repression and investigation of crime. The police also perform a variety of other functions such as processing passports and screening immigrants. The two main agencies involved in the Government’s campaign against terrorism are the State Security Investigations Sector (SSIS) that carries out investigations and interrogates detainees and the Central Security Force (CSF), which enforces curfews and bans on public demonstrations and conducts paramilitary operations. Most commonly, normal officials are accused of torturing average citizens and state security investigators are accused of torturing political detainees.

4.2 Legal Provisions Relevant to the Practice of Torture

Article 42 of the Egyptian Constitution provides that persons in detention shall be treated with dignity, that no physical or moral harm will be inflicted on them and that confessions proved to be made under duress or coercion shall be invalid. In addition, the Constitution provides that no statute of limitations applies in connection to the rights and freedoms guaranteed therein[14].

Moreover, Article 126 of the Criminal Code provides for criminal sanctions for the use of torture in order to obtain confessions. Article 282, paragraph 2 of the same code also provides for sanctions for all persons who illegally arrest, threaten with death or subject others to torture. Articles 40 and 41 of the Criminal Code stipulate that accomplices shall receive the same penalties as principals involved.

Regarding the use of corporal punishment it is noteworthy that on 22 December 2001 the People’s Assembly repealed legislation authorizing whipping

4.3 Institutional Organization of the Criminal and Justice System 

The legal/judicial system is based on Roman Civil Law (particularly the French Napoleonic Code) and Islamic (Shar’ia) law. Normally judges are appointed by the President upon the recommendation of the Higher Judicial Council, a body established by the Constitution and composed of senior judges.

The judiciary in Egypt is relatively independent and has adopted numerous decisions defending the legal rights of citizens against the State. Today, Egypt has practically two parallel criminal law systems, the ordinary system and the exceptional system created by the series of emergency laws that have been adopted over the years.

The prosecution is of great importance and is carried out by the Niyaba, or Department for Public Prosecution, a judicial body. Members of the prosecution are a part of the Egyptian judicial corps and many judges begin their careers in the Department for Public Prosecution. The Department for Public Prosecution is headed by the Attorney General 

The police, security agencies or private citizens must file a case with the Department for Public Prosecution denouncing a crime. The Department for Public Prosecution then carries out an investigation and if it is deemed that there is enough evidence, a case is filed with the court. The Prosecution’s decision to bring a case to trial is final. The Department for Public Prosecution investigation is central to criminal procedure. Witnesses are questioned and suspects can be cross-examined. Suspects being questioned by the prosecution have the right to be assisted by a lawyer.

The ordinary court system functions at the following level

v     Court of Requests/Summary Courts which have jurisdiction to decide cases involving misdemeanours and minor offences, civil and commercial cases the value of which do not exceed £E 5, 000 as well as minor personal status issues and labour disputes arising between employers and employees;

v     Court of First Instance which have jurisdiction to decide cases involving a value exceeding £E 5, 000 and all major personal status matters, subject to right to appeal to the Court of Appeal. These Courts also have jurisdiction of hear appeals against decisions of the Summary courts in civil, commercial and misdemeanour criminal offences;

v     Courts of Appeals are located in the major cities of Egypt and have jurisdiction to hear appeals on civil, commercial, personal status decided in first instance by Courts of First Degree. These courts also have original jurisdiction to decide criminal cases in which potential sanctions are death or imprisonment with hard labour for three to twenty five years;

v     High Supreme Court (Cour de Cassation) hears cases on appeal from the Courts of Appeal (and cannot re-examine the facts, only alleged legal disputes). This court has two divisions, one for civil matters and the other for criminal matters. The civil court hears from the appellate court. The latter hears from the appellate misdemeanor court and felony court.

v     Superior Constitutional Court has exclusive jurisdiction to decide questions regarding the constitutionality of laws, rules and regulations;

v     Administrative Courts can award compensatory damages caused by administrative decrees. The Council of State can declare invalid and revoke all illegal, arbitrary or abusive administrative decrees issued by government officials and ministries;

4.4 The Emergency Law and Exceptional Courts

With the exception of a period of approximately one year, Egypt has been under a continuous state of emergency since 1967. On 27 February 2000 the Emergency Law, which has been in effect since 1981, was renewed for another 3 years. The application of this law has given rise to the restriction of many basic rights and has been the source of numerous cases of arbitrary and/or mass arrests, prolonged administrative detentions, torture, and infringement of privacy rights.

Articles 3 and 6 of the Law empower the President or his deputies, either the Prime Minister or the Minister of the Interior, to impose restrictions on the freedoms of assembly, movement, residence and arrest and detain those suspected of endangering security or public order as well as permitting individuals and their homes be searched without following the requirements of the Criminal Code of Procedure. In addition, the state of emergency allows for the transfer of certain criminal affairs to military or state security courts thereby establishing what is virtually a parallel justice system.

Emergency legislation permits arresting persons on the basis of suspicion and holding them in administrative detention for an indefinite period of time. Although detainees are able to challenge the legality of his or her detention at different moments, the manner in which such legislation is applied has resulted in a large number of persons being held indefinitely without trial. (see below chapter on Prisoners in Administrative Detention)

Cases considered to involve the “security of the state” can be brought before special courts known as the Supreme State Security Courts or Mah Kamet Amn al-Dawla al-‘Ulya. [15] The State Security Courts can hear two types of cases: 1) cases that arise under the Criminal Code but which are considered to pose a particular threat to the State and 2) cases that arise under the emergency laws. When hearing cases under the criminal code these courts are known as “National Security Courts” and when hearing cases under the emergency laws the Court is referred to as the “Supreme State Security Emergency Courts”.

It should be noted that the Criminal Code also contains a number of vague provisions which have been used to prosecute alleged acts of extremist violence.

The permanent National State Security Courts are divided into two sections, a lower court (a misdemeanour state security court whose jurisdiction is over incidents that threaten internal state security) and a higher court (the felony state security court whose jurisdiction is over incidents that threaten state security internally or externally). Cases are heard by the lower court which consists in a panel of three judges drawn from the Primary Courts of the ordinary justice system. Those convicted can appeal on procedural grounds to the higher court  which is staffed by a panel of judges from the appeals court of the ordinary system.

The President appoints judges to these courts from the civilian judiciary on the recommendation of the Supreme Judicial Council. The President appoints judges to the Military Courts upon recommendations of the Minister of Defence. Article Two of law 105 of 1980 stipulates that he has the right to appoint two military officers to sit as judges alongside the regular judges for trials within the jurisdiction of the state security court. The President may, but rarely chooses to, appoint military judges, who are usually trained lawyers who have obtained a degree in law.

The Emergency Section of the Supreme State Security Courts does not allow for appeals although the Military Governor (or President) is allowed to affirm the verdict or order a re-trial. In addition, there is much greater involvement of the executive in the composition and jurisdiction of this court. The President may alter or annul a decision of a State Security Emergency court. In addition, judgments of the State Security Courts must be ratified by the President and do not become final before such ratification.

In addition, as was observed above, although the military courts normally have jurisdiction only over cases involving members of the armed forces, during a state of emergency, the President can refer cases of civilians to the military court. This practice was challenged and confirmed by the Constitutional Court in 1989. These courts’ procedures are not public, making it difficult to monitor their activities. In its 2000-2001 report EOHR noted that according to its investigations from 1992, 34 trials had been carried out before these military courts resulting in execution orders for 92 suspects, 644 prison sentences and 297 acquittals (many of whom however, remained imprisoned because administrative decrees).

The State Security Prosecution (SSP) consists of the primary prosecutor and the members of the prosecution. Originally, the SSP was concerned with military crimes and crimes affecting state security (such crimes were generally lodged against newspapers and other publication channels). However, following a decree from the Minister of Justice, the powers and jurisdiction of the SSP were considerably widened. The SSP was given jurisdiction over any crime in any part of the country. Its powers increased to include investigating those crimes referred to it by the military ruler or the President. The amendment had the unfortunate effect of centralizing the powers of investigation and prosecution in the office of the SSP.

5. The Practice of Torture

The practice of torture is pervasive in Egypt. In 2001, in his report to the United Nations Commission on Human Rights, the Special Rapporteur on Torture declared the practice of torture to be systematic in the country.

Torture in police stations is still central to interrogations and investigations. Persons held under suspicion of belonging to Islamic groups are particularly vulnerable to torture. However, persons held under suspicion of being responsible for ordinary criminal offences are also frequently subjected to torture.

Although typically torture is used during integrations in police precincts, it is also often carried out in prisons. In a certain number of cases victims could not identify the place of detention where they were tortured. The most common methods reported were:

v     Beatings including whipping with metal and wooden objects;

v     Blindfolding and stripping;

v     Burning;

v     Electric shocks (in particular by the State Security Investigations);

v     Suspension from ceiling

A relatively high percentage of documented cases torture results in death. In the period between 1999 and 2000, EOHR documented 37 deaths of persons, some confirmed by court decisions and some which raised considerable doubts, while in custody of the police. Investigations indicated that at least 22 of those were the result of severe torture. During that period EOHR also received reports of deaths of 15 political detainees due to denial of medical care in prison.

6. Definition of Torture (Issues Under Articles 1 and 4)

Article 126 of the Criminal Code stipulates: 

“Any public servant or official who orders, or participates in, the torture of an accused person with a view to inducing the said person to made a confession shall be punished by hard labour or imprisonment for a period of 3 to 10 years. If the victim dies, the penalty shall be that prescribed for premeditated murder[16].”

This provision is much narrower than the definition of Article 1 of the Convention as:

v     Possible victims are limited to persons accused so that other victims of torture such as persons who have already been convicted or even witness or family members, are not covered by this provision;

v     The only purpose mentioned is that of forcing a confession whereas the Convention mentions a much longer and exemplary list. As a result, persons who are tortured for other purposes such as punishment or intimidation are also not covered by this provision;

v     This article only seems to cover physical abuses and not, as is present in the Convention, acts which inflict mental pain.

Article 129 stipulates that the use of cruelty in the exercise of a public position causing harm to honour and physical pain will be sanctioned with no more than one year of imprisonment and a fine of no more than LE 200. The sanction provided for is clearly inadequate and cannot be considered to be in conformity with article 4.2 of the Convention.    

In addition Article 282, paragraph 2 of the Criminal Code provides:

“In all cases, anyone who unlawfully arrests a person and threatens to kill him or subjects him to physical torture shall be sentenced to hard labour.”

This article is also much more limited in scope than article 1 of the Convention as:

v     The provision only seems to refer to situations of illegal detention;

v     It only provides for cases of physical abuse and does not include, as is present in the Convention, acts which inflict mental pain;

v     It does not adequately address acts of torture carried out by public officials.

EOHR and OMCT consider that the adoption of a provision which adequately defines the crime of torture is a matter of urgency.

7. Structural Institutional Problems and Potential Legal Limitations to the Prohibition of Torture (Issues Under Article 2)

7.1 Legislative and Administrative Problems - Restrictions on NGO Activities (Issues Under Article 2.1)

The possibility for NGOs and other members of civil society to act freely to denounce torture is essential in order to end the practice. The existence of an open debate in which NGOs and others can bring their concerns to the attention of the authorities, as well as propose changes in legislation and practices inductive of torture is of crucial importance. In Egypt, however, NGOs have long been functioning under severe constraints and human rights defenders have frequently been targeted for persecution. In many cases NGOs have been refused the right to officially register. NGOs activists have, moreover, often been the victims of harassment and in a number of cases have been arrested, prosecuted and convicted because of their activities. EOHR has attempted to register on several occasions unsuccessfully; the government has long sponsored repressive legislation with the intent of seriously curtailing NGO activities.

The much criticized Law N° 153 of 1999 was ruled unconstitutional in 2000. However, on 3 June 2002 parliament passed a new law, N° 84 of 2002, which was largely based on the 1999 law. It provides for numerous restrictions to NGO management, operation and financing including criminal sanctions for a number of activities. The law stipulates that NGOs must seek and receive approval by the authorities in order carry out activities including receiving funds from abroad (Article 17) and joining organizations outside Egypt (Article 16). This law also authorizes the Ministry of Social Affairs to dissolve an NGO without seeking a court ruling. Reasons for seeking such dissolutions include receiving unauthorized funds from abroad.

Military Decree N° 4 of 1992 forbids collecting or receiving donations for any purpose without permission of the Ministry of Social Affairs and stipulates a minimum of 7 years imprisonment to punish human rights defenders. Both Hafez Abu Seada, secretary general of EOHR and Saad Eddin Ibrahim, director of the Ibn Khaloun Institute were imprisoned under this decree.

EOHR and OMCT call upon the Egyptian Government to take all necessary steps to repeal Law Number 84 of 2002 as well as Military Decree Number 4 of 1992.

7.2 Legislative and Administrative Problems; Refusal by the Executive to Implement Judicial Orders

Members of the executive and in particular the Ministry of the Interior routinely refuse to implement or ignore decisions of the judiciary. This practice is in violation of basic rights of citizens and severely undermines the respect for the rule of law. In numerous cases, the Minister of the Interior simply refuses to implement judicial orders regarding prisoners, in particular release orders for administrative prisoners. The Ministry also frequently circumvents orders allowing visits to prisoners and sometimes attempts to restrict lawyers’ visits with their clients.

8. Prevention of Torture (see attached document at bottom for clarification on this section)

8.1 Existing Norms and Practices Concerning Pre-trial Detention Practices (Issues Under Article 2.1 and 11)

Egyptian law and regulations, and even the emergency laws, contain a number of provisions that may be applied in the protection of persons in detention. However, as will be seen below, present legislation is insufficient to protect persons from torture and existing guarantees are frequently ignored.

8.1.1 Control of the Legality of Detention and the Right to Appeal

Article 71 of the Constitution provides that any person arrested or detained should be informed forthwith of the reasons for his arrest or detention. That article also stipulates that persons arrested must be informed, as soon as possible, of the charges against them. In addition, the same article provides the right to any person to complain to the Court regarding measures taken to restrict his or her individual freedom and prescribes that such complaints be dealt within a finite period or the detainee released.

Article 36 of the Criminal Code of Procedure states that the arresting officer shall immediately hear the statements of the newly-arrested defendant.  If the arresting officer considers that  defendant has not proven his innocence, s/he shall be referred to the public prosecution within 24 hours.  The public prosecution (Article 36) or the investigation judge (Article 131) shall investigate the defendant within 24 hours and take a decision on whether to release or detain him. It is should be noted that an amendment adopted in 1992 (Amendment no.79of 1992, article 7 para. 2) allows police officers, in certain cases, to detain persons for up to seven days without charging or referring them to the public prosecuto

According to Article 142, pre trial detention should not exceed fifteen days.  However, the investigation judge, after hearing the statements of public prosecutors and the defendant, has the right to extend imprisonment for up to forty-five days.  In cases of misdemeanours, however,  a release order must be issued within eight days of the investigation. 

Article 143 states that if the investigation has not been concluded during the prescribed period the case shall be referred to an appeal misdemeanour court. Proceedings under this article are held in the court’s consultant room. The appeals misdemeanour court hears statements from public prosecutors and defendants and then decides to either release the defendant or authorize the detention to continue.  The appellate court can, for the benefit of the investigation, issue orders authorizing the extension of consecutive periods of imprisonment up to forty-five days; the court may also release defendants with or without bail.  If a defendant is held for more than three months the matter is referred to the public prosecutor; who should adopt the required procedures to conclude the investigation.  The total period of pre-trial detention should not exceed six months unless a verdict from a competent court is issued authorizing a further extension of no more than forty-five days. 

No specific complaint procedure for questioning the legality of a detention, such as a habeas corpus, is currently provided for by law, even though article 71 of the Constitution guarantees to persons in detention the rights to lodge complaints before the courts against all measures restricting individual freedom.

Under the emergency law, the provisions of the Criminal Code of Procedure are replaced by law 105 of 1980 that regulates state security investigations.  According to Article 7 of Law number 105/1980 the public prosecution shall investigate crimes within the state security court’s jurisdiction.  This will normally be done in conformity to the rules and procedures established in the Criminal Code of Procedure unless the law states otherwise. 

Under the Emergency Law, the public prosecution (in addition to its recognized jurisdiction) will have the same powers as the investigations judge in relation to crimes under the state security court’s jurisdiction. According to Article 7 bis of law number 105/1980, the State Security prosecutor shall have, in addition to the authorities of the investigation judge, the powers and authority of the misdemeanour court held in the consultant’s room. As a result the public prosecutor  exercises exceptional powers and is entitled not only to order the detention of any defendant for 45 days—as Investigation Judge—and but also has the competence,  normally exercised by the appeals misdemeanour court, to authorize the extension of a detention for a period of six months.

That is to say, during a state security investigation under law 105 of 1980, investigating judges are replaced with state security investigators who take their mandate from investigating judges (see above description of the State Security Courts under the Emergency Laws). 

In this regard, EOHR has observed that the issuing of pre-trial detention orders for six months by state security prosecutors has been used as a punishment against political detainees, especially members of the Muslim Brotherhood.

Article 67 of the Constitution guarantees the right of the accused to be defended by a lawyer and to be tried by a competent tribunal. However, emergency legislation permits authorities to circumvent the regular court system. 

Even emergency legislation provides for certain safeguards. Article 3 bis of the Emergency Law, amended by Law 37 of 1972, states that:

“Anyone arrested or detained shall be immediately informed of the reasons for his arrest or detention. He shall be given the right to contact those whom he deems must be informed of his detention, and to seek the help of defence. He shall be treated in the same manner as those in preventive detention.”

Individuals are often held indefinitely without charge. After a month in detention, detainees can appeal the legality of their detention before the state security court. However, detainees may obtain release orders, even in some cases on an as many as two separate occasions and still continue to be held in prison due to the bureaucratic cycle of detention implemented by the Ministry of the Interior. If the Minister of Interior chooses he can appeal release orders. New orders may be issued. Appeals waiting to be heard anywhere between fifteen and thirty days can last indefinitely ensuring no substantive, practical way out of prison for those detained. (see below chapter on Prisoners in Administrative Detention)

8.1.2 Communication with the outside world; access of persons arrested to a lawyer; family members and doctors

Article 71 of the Constitution provides that persons arrested have the right to communicate, inform and ask for aid of anyone as prescribed in the law. Detainees should thus have access to lawyers and family members from the moment of detention. Unfortunately, this is not always guaranteed in practice.

Under the emergency law authorities are supposed to notify the defendant’s family of his or her whereabouts. In practice this is by no means guaranteed. It is common during the first month of detention, that detainees be kept incommunicado and not allowed visits from family members. 

There is no provision in Egyptian law guaranteeing persons detained the right to be examined by an independent doctor upon their arrival and departure to and from detention.

8.1.3 Conclusion regarding pre-trial detention practices

EOHR and OMCT would like to urge the Egyptian government to take all legislative and other appropriate measures so as to ensure the right of all persons detained to meet with his or her lawyer immediately upon detention and have the right to notify family members of their whereabouts as well and the right to be examined by an independent doctor upon detention and release or transfer to another facility.

8.2 Registers of Persons in Detention and Monitoring of Places of Detention 

According to Article 40 of the Criminal Code of Procedure, officers are must seek and receive authorization from the prosecutor’s office in order to register and arrest a citizen. Their initial detention should not to exceed 24 hours and detention for longer periods requires the permission of the prosecutor involved. At least in theory, detained persons should be supervised and protected by the public prosecutor. According to Article 140 of the Criminal Code of Procedure, public officials such as policemen are not allowed to contact a detainee without written permission from the public prosecutor. However, in practice this is rarely adhered to and police (state security) easily have access to prisoners.

According to Articles 85 and 86 of Law 396 on prisons the public prosecutor and the Head of the Court of Cassation and his or her deputy have the right to enter all prisons and places of detention in Egypt to monitor the application of the law. In addition, heads of Courts of Appeal and attorneys of the courts are authorized to inspect prisons and places of detention under their jurisdiction. Finally, Deputy Attorney Generals have the obligation of supervising prisons in their jurisdiction, although certain places of detention are excluded by order of the Ministry of the Interior.

Due to a number of factors such as the relevant authorities’ enormous workload, the routine manner in which inspections are carried out and the fact that in most cases, visits are announced, these visits have not been effective.

EOHR and OMCT believe that a separate mechanism should be created to perform regular and unannounced visits to all places of detention. This mechanism should include not only magistrates but also persons from independent organizations.

8.3 Prohibition of Statements Made Under Torture Being Used as Evidence (Issues Under Art. 15)

Article 42 of the Egyptian Constitution provides that confessions proved to be made under duress or coercion shall be invalid. In addition, Article 302 of the Criminal Code determines that statements made by either a suspect or a witness under threat or coercion shall be considered null and void. In practice, however, military courts routinely ignore allegations of torture and use evidence obtained under torture to convict the accused.

8.4 Training (Issues Under Article 10)

EOHR and OMCT welcome recent government efforts to train public servants but urge the government to build upon its efforts and include members of civil society to participate as well.   EOHR and OMCT welcome the new government effort to train police officers and public prosecutors but note that such training is limited in nature and would be much improved  if members of civil society were allowed to participate.

9. Right to Complain, Obligation to Investigate, Initiate Legal Proceedings and Punish Torture (Issues Under Articles 12 and 13)

Article 63 of the Code of Criminal Procedure (as amended by law number 121 of year 1956) confines the right to file a case against public officials to the Public Prosecutor. As a result private individuals are, in effect, prevented from appealing directly to a judge or court in cases of torture and only the prosecutor can initiate a criminal case against a public servant or police personnel for violations committed during the course of their work.

In addition, the right to complain is severely impaired by a lack of adequate protection for victims and their family members from retaliation. In many cases persons who complain are either threatened themselves or have their families threatened. Prosecutors rarely act with the adequate competence and transparency. Investigations of cases often last indefinitely as a result.

In addition, statistics of complaints or any sort of organized information regarding investigations carried out is rarely if ever published, rendering it extremely difficult to ascertain the efficacy of procedures currently in place. An example is the case of lawyer and torture victim Abdel-Hareth Madami in 1994. To date the Prosecution has yet to disclose the results of the investigation in spite of both domestic and international pressure.

In its report to CAT the government refers to the prosecution of 78 officers by the criminal court during from 1997 to 2000. However, the government failed to mention how many complaints were made. It is estimated that complaints submitted by human rights organizations such as the EOHR and the Human Rights Center for the Assistance of Prisoners during that period numbered over 2,000[17].

Police officers accused of torturing individuals are not suspended and continue to perform their duties so that they are in a position to obstruct ongoing investigations. Furthermore, the issuance of a punishment against an officer must be executed by a ministerial decree or by a decree from the competent authority such as the General Directorate for Inspection on the police officer according to law number 109 of 1971 concerning the police body. EOHR and OMCT would like to urge the government to:

v     Amend the Code of Criminal Procedure so as to allow victims the right to complain directly to the courts;

v     Adopt and implement a witness protection programme for victims of torture and their families during investigations and court proceedings concerning allegations of torture;

v     Adopt a delay of no longer than seven days for the Prosecution to complete investigations into allegations of torture or other ill-treatment;

v     Make public on a regular basis the number of complaints received by the Prosecution’s Office and take action taken in response;

v     Ensure that police officers accused of torture, irrespective of rank, get suspended until the end of investigations

10. Redress (Issues Under Article 14)

In accordance with Article 57 of the Constitution the State guarantees the right to seek compensation to those who suffer an infringement of their rights and freedoms as described therein. This right is not subject to a statute of limitations. It is noteworthy that it is possible to obtain civil compensation from officials involved and from the State even in the absence of criminal convictions.

As addressed in the Government’s report, Egyptian Courts have awarded monetary compensation to torture victims in a number of cases. However, the amounts awarded are not sufficiently prohibitive to reduce or eliminate instances of torture. Unfortunately, monetary compensation is rarely accompanied by criminal or administrative sanctions therefore only providing partial redress to the victims.

11. Issues Under Article 16

11.1 Prisoners in Administrative Detention

Article 3 of the Emergency Law states that the President of the Republic or his delegate has the right during a state of emergency to arrest and detain those suspected of posing a danger to security or public order. This vague law has permitted the detention of large numbers of individuals considered “dangerous” even though they had not committed crimes as defined by the criminal code. There is no formal obligatory judicial control of the legality of a detention.

In the past challenges against such detentions were heard by administrative courts which frequently held that, considering the gravity of such measures, detention orders must rely on factual and concrete acts. Moreover the administrative courts held that the mere fact that a person belonged to an extremist group was insufficient in the absence of concrete acts to justify a detention.

Later, jurisdiction to hear challenges to administrative detention was transferred to the Supreme State Security Emergency Courts. Today, persons may be held in administrative detention for a period of one month after which the detainee is able to challenge the legality of his or her detention at the State Security Court. Such challenges must be refused or allowed within fifteen days. If the person is unsuccessful in challenging the detention order, he or she can lodge a new challenge once again after one month. If the original challenge is allowed, the Minister of Justice may nevertheless veto the Court’s decision within 15 days and the person may be re-detained, at which time he/she can re-challenge the detention after one month. Such appeals must be heard within 15 days by another division and are final. Thus, while a theoretical method of challenging detention exists, in reality the system operates as an on-going cycle of recurrent detention.[18]

The law also stipulates that the court shall issue a decision regarding such complaints within fifteen days of submission after interviewing the detainee. If the court fails to issue a decision the detainee should be released. The President may object to the court’s decision within a period of fifteen days and transfer the case to another court chamber within another fifteen days of objection. The new court has fifteen days to issue a decision that is final.

In practice, the Ministry of the Interior has employed numerous manners of circumventing release orders. In many cases detainees are simply transferred to a new detention facility while a new detention order is prepared. This practice is known as recurrent detention and its widespread use has rendered control by the courts of detentions virtually meaningless. It is estimated that approximately  16, 000 people are currently being detained.

11.2 Conditions of Detention

Egyptian legislation contains numerous and detailed provisions to ensure adequate conditions of detention. [19] However, prisoners and organizations that work with prisoners have reported a serious deterioration of conditions of detention in recent years, aggravated by the high percentage of prisoners contaminated with tuberculosis. Overcrowding, bad or insufficient food and a lack of activities for prisoners are among the most common complaints.

Harsh punishment, including physical abuse and torture as well as the frequent use of isolation are also frequently reported. Prison regulations authorize the use of isolation for up to 15 days. Prisoners can also be kept in disciplinary cells for up to 6 months. During these periods prisoners are not allowed to receive visits or to correspond with the outside world. [20]

The internal regulation of prisons issued by decree number 79 of 1961 authorizes the punishment of solitary confinement which is often applied for prolonged periods. It should be noted that both the CAT and the Human Rights Committee have expressed concern over the application of measures of solitary confinement.[21]

Numerous families have reported great difficulties in visiting their imprisoned relatives. In many cases their right to visit family members has been deliberately obstructed. Lawyers have also found their right to interview their clients in private obstructed. The Ministry of the Interior has systematically imposed restrictions on visits lawyers-client visits, such as obliging lawyers to meet with their clients behind bars allegedly for security reasons.

Two prisons in Egypt, Lemaan Abo Zahbel and the High Security Prison in Torah.  are completely closed to the outside world, and neither lawyers nor family members can visit persons who are imprisoned there.

The spread of tuberculosis and the lack of adequate medical care have been issues of particular concern. In January, 2002 EOHR issued a report regarding the spread of tuberculosis in the prisons of El Wadi El Gadeed and Damanhour.[22] In this report EOHR revealed that according to the information received by the organization, a medical vehicle with X-ray equipped went to Al-Wadi Al- Gadid prison in July 1997 and started examining prisoners to segregate those infected. Later, however, the vehicle discontinued examination after discovering that a large enough percentage of inmates had contracted TB, which therefore made futile further examinations because the population in its entirety would soon be infected. From then (1997) to now (2002) no procedures have been taken by Egyptian authorities to eradicate the disease and have yet to adopt measures to address the generally appalling conditions of Egyptian prisons.

Recommendations

EOHR and OMCT believe that the following measures should be urgently adopted to ensure the eradication of torture in Egypt:

v     The Government should end the State of Emergency that has been enforced since 1981 and which gives police officers the power to arrest and detain persons without a legal basis. In addition, the Emergency Law should be amended to conform with Egypt’s obligations under international law;

v     The Government should issue an invitation to the Special Rapporteur on Torture to carry out an on-site visit to Egypt, as has been requested since 1996.

v     The Government should make the declarations under Articles 21 & 22 of the Convention against Torture authorizing the UN Committee against Torture to receive complaints filed by other State parties and individuals regarding alleged violations of Egypt’s obligations under the Convention. By accepting these two declarations, Egypt would signal that the authorities have fully committed themselves to prosecute all acts of torture and ill treatment;

v     Article 126 of the Criminal Code should be amended to render it compatible with the Convention’s definition, which recognizes that both physical and mental anguish may constitute torture and which includes a non-exhaustive list of purposes as opposed to merely coerced confessions, as currently stipulated by the Egyptian Law; Article 129 of the Penal Code should also be amended so that sanctions provided correspond with the gravity of the crime;

v     The Government should continue its efforts to organize educational and training courses for police officers, in particular those who work in the criminal investigation departments, on how to treat detainees inside police stations. It would be important that members of civil society be involved in such activities.

v     The Government should set fixed restrictions, standards and instructions to monitor the performance of police officers, especially officers in charge of investigations. Currently these officers have an incentive to torture suspects in order to illicit confessions and thereby seemingly reducing crime rates;

v     The Government should adopt legislation and other measures to guarantee that all detainees can, in practice, contact the outside world so as to protect them from serious human rights violations such as disappearances and/or torture. Such legislation should also guarantee every detainee the right not to be detained except in official places of detention and also should guarantee that detentions be carried out as a result of detention orders. It should also be stipulated that, generally, when the place a detainee will be held is decided, that it be near his or her residence;

v     The government should take all necessary legal and practical measures to ensure that the authorities keep in formal files and in central archives a list of the names of all detainee so as to ensure that detainees do not disappear mysteriously. These files should be updated and lawyers and detainees’ families should have regular access to such information;

v     The Government should establish machinery for a systematic review of interrogation rules, methods and practices, in particular in police stations;

v     Measures should be taken to ensure that the judiciary and the Department for Public Prosecution comply with their legal obligation to periodically inspect prisons and other detention centres. In addition, a separate mechanism should be created to perform regular and unannounced visits to all places of detention. This mechanism should include not only magistrates but also persons from independent organizations;

v     The Government should adopt legislation to ensure that the head of police stations are held responsible for illegal detentions;

v     To Government should investigate complaints and reports of illegal detention. Officials who detain people illegally should be immediately sanctioned by the Ministry of Interior;

v     Measures should be taken to ensure that the Department for Public Prosecution immediately investigates complaints made by individuals and organizations regarding alleged acts of aggression carried out against those held in prisons and other places of detention. In addition the Criminal Code of Procedure should be amended so as to allow victims the right to complain directly to the courts;

v     The Government should create an administrative investigation system parallel to that which is conducted by the Department for Public Prosecution;

v     Government officials should cooperate with members of Egyptian human rights organizations. They should investigate all complaints such organizations submit to the Attorney General and the Minister of the Interior and provide them with information and investigation results as well as authorize their representatives to inspect conditions of all detention cells;

v     In addition the Government should create, in accordance with the CAT’s recommendations to the Government of Egypt in 1994 reiterated at the conclusion of its Article 20 inquiry, an independent investigation machinery, including in its composition competent judges, lawyers and medical doctors and bring allegations to court swiftly. This independent group should also monitor the safeguards against torture guaranteed to persons deprived of their liberty under Egyptian law, in particular by having access to all the places where allegations of torture have been reported, by alerting immediately to the authorities where those safeguards are not fully respected and by making proposals to the authorities concerned to ensure that those safeguards are respected in all places where persons are detained. The competent authorities should not only be permitted to enter all places of detention and but also have access to all information and data. This body’s role should not be confined to legal matters, but should extend to embrace all political, social and psychological dimensions of violence inside police stations, and it shall provide alternative solutions to put an end to this phenomenon.

v     A law should be adopted providing for the creation of a judicial police system, affiliated with the Ministry of Justice. This new body should be authorized to conduct judicial seizures, and other tasks that would assist in enforcing justice and implementing judicial rulings;

v     Lastly, we urge the removal of the restriction against civil society and human rights organizations who diligently work to combat torture and raise awareness about human rights issues in general

 It is our most sincere hope that upon reading this report, the government will implement many if not all of the recommendations we have listed. Doing so will help end torture as a means of punishment employed systematically by the Egyptian government