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The Egyptian Organization for Human Rights report |
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report
"Members of one Family are under detention."
EOHR's third report on the phenomenon of recurrent detention in Egypt 2002 Introduction:The Egyptian Organization for Human Rights is issuing its third report on the phenomenon of recurrent detention with the title Members of one Family are under detention. EOHR published during the year 1996 its report called "Prisoners without trial", in which it mentioned the increasing number of recurrent detention since the beginning of the nineties, and in 2001 EOHR issued its second report on the phenomenon of detention in Egypt with the title "A crime against freedom and personal security". This report Members of one Family are under detention includes a legal presentation on the legality of the detention decisions, issued by the authorities to detain the suspected citizens. The report also tackles the issue of the "emergency law", because it is an exceptional state, not a normal one, and which should be present only for a certain period of time and place. This emergency law started since the assassination of the president Anwar El Sadat in October 1981. It is still in force ever since this day until now, and it gets renewed every three years, as well as will be present until October 2003.Although the government justify the renewal of the "emergency law" by saying it is an exceptional state to combat terrorism. Also, although the government stresses the fact that it will not use the powers of the "emergency law" against anyone but the terrorists. However, EOHR regrets to say that the administrative right of detention, which is issued under the emergency law, is misused by the Ministry of Interior although these crimes could be punished by using the Egyptian Penal Code. Also adding to this, the fact that the rule of the "emergency law" is considered by the judiciary in Egypt to be the supreme and that people can not challenge the verdicts issued under this law in courts, but they can only challenge its implementation which is usually not implemented by the Ministry of Interior. This report deals with 30 cases of families, in which a member of the family was imprisoned, and in some cases the whole family was imprisoned, which is a blatant violation against the freedom and personal security and the principle of the necessity of the penalty to be personal. This report " Members of one Family are under detention" ends with a number of recommendations aiming at limiting the phenomenon of recurrent detention which violate a number of constitutional guarantees and rights in the international instruments on human rights. First: Identifying the phenomenon of recurrent detention and its legality: The "recurrent detention" is one of the characteristics of the misusing of power by the security forces, which was gained through the emergency law in the third article of the emergency law number 162 of the year 1958, which allows the detention of the suspects or those who endanger the peace and security of the public system. The simple identification of recurrent detention is:"Restricting the freedom of a person, who has not committed any crime that justifies his/her detention, by using repetitive administrational decisions, which violate the rule of law or by violating the decisions of the prosecution, which ordered the release of the detained person because the complaints were not serious.According to the EOHR's data and information, the repetitive prisoners could be divided into two groups: First group:Consists of the majority of the cases, where the prisoners are detained by administrational decisions according to the third article of the emergency law. Although most of them get their release permission by the Supreme State Security Court (Emergency), but still they are kept in prison, because the Ministry of Interior issues decrees to renew their detention. Usually those people are kept in the police stations within their governorates but then they are imprisoned again with a new number and date, and this act breaches the rule of the law and its legality, where it is stated that the state and the people should all comply with the law. Article 64 of the Egyptian Constitution states that "Sovereignty of the law shall be the basis of rule in the State" and in article 65 of the constitution it is stated that "The State shall be subject to law" and this basis is one of the main guarantees of human rights and the separation between the authorities. This basis is a general one that should be applied over all laws; including the penal and the criminal procedures code.Second group:This second group of those detainees consists of those, who receive final decisions of their release from the military court or state security courts, but then the Ministry of Interior orders their re-detention through administrational decisions. And sadly, EOHR stresses the fact that the Egyptian authorities has not replied to its constant calls concerning the release of the detainees who where recurrent detained, and the calls to review the situation of the detainees. In this regard, the Ministry of Interiors has not done any positive step in order to limit or stop this dangerous phenomenon, although the number of political detainees in Egypt is almost 16000 according the complaints received by EOHR from the detainees. This is the silent policy of the Ministry of Interiors, which decided not to publicize the real number of detainees in Egypt. The phenomenon of recurrent detention is one of those obvious examples of how the state does not respect the international instruments concerning the emergency mentioned in article four of the International Covenant on civil and political rights (ICCPR) which was ratified by Egypt. The Egyptian Organization of Human Rights also found out that the act of the recurrent detention, against thousands of citizens accusing them of being involved in violence or terrorism or being suspected of committing these acts. The problem with these accusations is that they are not based on facts and evidence, but they are just assumptions of the authorities and officials, which is a gross violation of the political and civil rights. Those rights should not be violated even during the state of emergency, and this is stated in the ICCPR , article 4/2.Nevertheless, investigations proved that prisons and detention centers are one of the main channels of recruiting new members in the fanatic groups already existing in Egypt. This happens when young, innocent detainees meet with the elder ones, who are members if not leaders of the fundamentalists group, inside the prisons and detention centers, where the older leaders brainwash the young people with their ideas and beliefs. Furthermore, due to the fact that these young people go through lots of suffering and unfairness, they are usually fragile and more than ready to adopt and embrace such fanatic ideas, and to become active members in such extremist groups after their release. Recurrent detention is a gross violation of the detainees' rights to have freedom, personal security and to have the right to resort to their natural judge and to challenge the legality of their recurrent detention. It also violates their right to enforce the court's decision of their release, which is one of the rights that should not be violated even under the emergency law. The Supreme Administrational Court stressed this fact and explained that "the emergency law is not a natural state, but an exceptional one enforced within certain situations and events, which oblige constitutionally to announce it in order to achieve the peace and security of the nation. This is why the emergency law -as any other exception- should only be applied and used to achieve its specified aims, and should be used only by the authorities identified in it ". EOHR also realized that the security forces keep practicing the recurrent detention, which is considered to be a great violation of Egypt's commitment to its international obligations according to articles 2 and 4 of the ICCPR, which obliges the Egyptian government to implement the rights mentioned in the ICCPR (article 2/2) as well as not to allow the authorities to make exceptions to these articles in the case of an emergency which could have effects on the rights. These rights should not be restricted under the emergency law, especially the right to life, and the right of physical and mental security (article 4/2). EOHR also found out that detention and recurrent detention becomes a natural entrance to violate the right to life, and the right of physical and mental and security by the authorities, who misuse the emergency law in Egypt, because of torture and the lack of health care within the prisons. And while some detainees spent between one and twelve years in prison, the phenomenon of recurrent detention is a blatant violation on a number of basic rights stated in the Egyptian constitution. Adding to this, the fact that there is no separation between the authorities and the rule of law, and this is another violation and crime that the constitution punishes. 1- On the one hand, the recurrent detention violates the right of the people to have freedom and personal security, which is stated in the article 41 of the constitution and which says that Individual freedom is a natural right and shall not be touched. Except in cases of flagrante delicto no person may be arrested, inspected, detained or his freedom restricted or prevented from free movement except by an order necessitated by investigations and preservation of the security of the society. This order shall be given by the competent judge or the public prosecution in accordance with the provisions of the law". According to the law as stated in article 71 of the constitution that " Any person arrested or detained should be informed , forthwith with the reasons for his arrest or detention. He has the right to communicate , inform , and ask the held of anyone as prescribed in the law. He must be faced , as soon as possible , with the charges directed against him.. Any person may lodge a complaint to the courts against any measures taken to restrict his individual freedom. The law regulates the right of complaint in a manner ensuring a ruling regarding it within a definite period, or else release is imperative." Article (3) of the emergency law is a way out from this general rule, because it gives the authorities responsible for the state of emergency law the power to arrest people, who are dangerous to the security and the public system or the suspects, with an administrative decision "which is an obvious violation to article 41 of the constitution, although those laws made by the legislative and the regulations made by the executive are supposed to be in accordance with the constitution. 2- The intention of the security authorities to keep disrespecting the final decisions of the civil and military court ruling the release of many people by continuously using administrative decisions, is a great violation of the "Rule of Law" stated in article (64) of the constitution. It also violates the principal of the independence of the judiciary (article 65 of the constitution). EOHR also refers to the fact that re-arresting those people after they got their release decision and without law or a jury decision is considered to be another violation of article 66 of the constitution, which states that "There shall be no crime or penalty except by virtue of the law. No penalty shall be inflicted except by a judicial sentence". 3- The intention of the security authorities to keep disrespecting the decisions of the court calling for the release of certain people by discharging them of the crimes that they were accused of doing, is another crime punished by the law under the article 72 of the constitution, which states that Sentences hall be passed and executed in the name of the people. Likewise, refraining to execute sentences or obstructing them on the part of the concerned civil servant (the ministry of interiors) is considered a crime punishable by law. In this case, those whom the sentence is in favor of, have the right to sue a direct penal lawsuit before the competent court. Adding to all this the fact that there are many cases of families, where not only one member of the family is arrested, but two or three, which is another violation to the principal of the constitution stating that penalty shall be personal. Second: The effects of recurrent detention on the prisoners and their families:The negative effects of recurrent detention are not only in the fact that these people are deprived of their natural rights; like freedom and personal security, but also in the fact that these people and their families face lots of financial, mental and psychological problems when they go through such an experience.The effect of recurrent detention on the prisoners: Recurrent detention became actually one of the main channels for violating many human and the basic rights of the citizens . On the one hand, the prisoner faces lots of abuses, such as bad and deteriorating health care. At the beginning of the 1990s, EOHR made an observation on the health condition of people in detention and EOHR found out that many of the people imprisoned face dangerous illnesses within the prison, although the Ministry of Interior established a number of hospitals for this cause, but still the Egyptian prisons are full of Sick people. Also being detained for a long period of time prevents many students of continuing their studies, because their universities are far away from the prison, but mainly because they do not attend the classes, lectures and exams, and they fail repetitively. Furthermore, the detainees are prevented from getting any visits and from having contact with the outside world which is another violation of the article (38) of the law of the prison's system number 396 of 1956, which gives the prisoner or the person under custody the right to correspondence and visits, and also articles 37 and 93 specify the model of the basic rules for treating prisoners. The effect of recurrent detention on the detainees' families:The recurrent detention causes social and economic damages on the families of the prisoners. Concerning the social effects of recurrent detention on more than one person within a family, these are obvious in the absence of a supporter and bread winner for a long period of time, which has a negative impact on the children. This consequently causes an imbalance in the structure of the society, because there is no leader to direct the family and children to the righteous way. Even if there was another person in the family taking care of the situation, still the absence of the father has a negative effect on the family and this leads to a lack of cultural and moral principals necessary for a healthy society. Consequently, the absence of the supporter creates within the family feelings of hatred against the society and its system which will finally lead to the collapse of the social principals within our society.Concerning the economic effects:In a family, where more than one person is in prison, money shortage is always the case and the financial source becomes usually an old father, who carries the load all alone and has to meet the basic needs of his children and maybe grandchildren, too. This shortage and the inability to meet all the basic needs of the family creates a feeling of deprivation, which is the main reason for the increased hatred and resentment and the growing violent attitude among these people, who see their daily life as a heavy burden and a source of constant tension.A person living under these conditions for a long time is more prone to participate in violent actions and to get involved with certain violent groups. Furthermore, the expenses for the families to go visit their children in detention are very high, and what is even more expensive is that usually prisoners from the same family are put in different prisons, that are far away from each other. The Egyptian Organization for Human Rights observed that sometimes up to three or four persons from the same family are being detained for no other reason except that they are relatives. This action is another obvious violation of the principle of the Egyptian Constitution, which states in article 66 that the "There shall be no crime or penalty except by virtue of the law. No penalty shall be inflicted except by a judicial sentence. Penalty shall be inflicted only for acts committed subsequent to the promulgation of the law prescribing them.". Moreover, innocent people, who get detained usually have strong feelings of vengeance towards the police agency and the country as a whole which leads some of these young people to join already existing violent groups immediately after their release. Sometimes detainees of the same family are put in far away prisons, which add up to the difficulties that the family faces under these circumstances, where a family tries to visit the prisoners in these different prisons and faces lots of financial problems during the process. In some situations, the detainee is a father with young children and this means that this family does not have a financial resource. Here usually the grandfather takes charge of the whole family, which affects him physically and mentally. More problems exist if the grandfather got a certain illness that prevents him from moving freely, or if he was already dead, where the financial load and problems are thrown on the grandmother's shoulders, who has to take care of her husband (if he's sick) and of the children, whose father is detained. These young children are deprived of many basic rights and life pleasures that other kids of their age are enjoying. They sometimes are prevented from going to school, because of the financial problems, and in other cases the children have to work in order to provide additional money for the family. All these circumstances naturally lead these children to the road of violence and crime. |
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