The Egyptian Organization for human Rights (EOHR) issues its report on (The referral of the perpetrators who commit the crime of torture to trial …. A new step towards combating torture in Egypt). This report includes the illegal detention of some citizens without any charges as well as it monitors the phenomena of detention, torture, ill-treatment and abuses practiced by some policemen against citizens in police stations and centers which may lead mostly to the violation of the right to life.

            In this regard, the report deals with some cases that EOHR suspects of their death as a result of torture. It monitors the death of (11) citizens in police stations and centers in some Egyptian governorates during 2001 and 2002. Basically, EOHR received complaints from citizens and it sent fact-finding missions to the places where torture took place in order to investigate and document these cases as well as to get information from the official reports, the medical reports and testimonies of the witnesses which proved that torture occurred.

            This report reveals that the policemen’s mechanism which is used to search for the defendants who committed criminal crime, depends on a traditional old way as the investigation officers launch arbitrarily arrest campaign when a crime is committed in the constituency of the police station and they use the only quick way to get information which is torture instead of using the advanced skills of getting information during the interrogations. The old way arises many questions about the legality and the existence of torture tools used by the policemen in police stations? And where these tools are kept? If the policeman takes these tools to his house everyday and brings them to the station with him? If there is specific place where they are kept? Who pays for these tools? Are these tools exchanged among the police stations or not? Do the prosecutors examine the detention places and the police stations regularly and unexpectedly or not?

Moreover EOHR issues this report, it warns against the danger of the phenomena of ill-treatment and torture, which is increasing, and appeals to the officials to investigate the cases involved in this report and take the necessary measures to stop torture as well as to respond to EOHR recommendations, involved in all its reports concerning the campaign of EOHR against torture in Egypt. Also, EOHR calls all the forces of the Egyptian society to cooperate together to combat this phenomena which threats the safety, security and the right to life.

 It’s worth mentioning that the cases included in this report do not represent all the cases of torture in Egypt, leading always in systematic way to the death in the police stations of the Egyptian governorates. However, the ugliness of some cases of torture in police stations and centers, compel the authorities in Egypt to investigate this incident and to issue their orders to refer the perpetrators to trial. This step is welcomed by EOHR when the minister of interiors referred to the public prosecution on 9/3/2002, both the investigations officers Hazem El Derbi and Ashraf Gohar as well as the security officer because they tortured two citizens and one of them died as a result of torture. The criminal court of Nasr City is hearing this case ( No.165 of 2002) .

   On 12/5/2002, the public prosecutor referred the head of the investigation department of Embaba police station and his assistant to the criminal court because they tortured till death the citizen Medhat Gaber Tadros.

EOHR welcomes this positive and important step because which it shall deter the defendants who commit the crimes of torture and ill-treatment of citizens inside police stations and centers. Also, this step shows that this crimes, which is committed by the officer, are individual acts which reflect that these acts are odd which have not to do with the security men who are responsible for protecting and defending the citizen and this role is the fundamental role of the police and security men.

This report includes three sections:-

Section one:

A- The legal texts of the international covenants and the Egyptian legislation which prohibit the crime of torture and ill-treatment.

B- The weakness of the legislative structure in Egypt which result in the increase of torture and ill treatment in Egypt.

Section two:

This section includes 11 cases of the involuntary detention without any charge, and 11 cases of torture that led to the death of citizens inside the police stations.

Section three:

This section includes the EOHR ’s recommendations that are presented to the concerned authorities and the Egyptian civil organizations. EOHR believes that these recommendation and all their legal frameworks are important to stop torture inside police stations.  

Section One

First: The legal texts of the international covenants and the Egyptian legislation which prohibit the crime of torture and ill-treatment.

The increase of the phenomena of torture, which can be eliminated when the perpetrators are referred to an immediate trial:

Detained person" means any person deprived of his personal liberty either as a result of being or not convicted for an offense; All persons under any form of detention or imprisonment shall be treated in a human manner and with respect to the inherent dignity of the human person. Arrest, detention or imprisonment shall only be carried on strictly in accordance with the provisions of the law and by officials or persons authorized for that purpose.

This is the legal definition of the detainees but EOHR monitored that the detainees are those who are lucky enough to escape death as a result of torture (See Section Two) .It is known that everyone has the right to life , personal safety and security. This right is affirmed by the international instruments and is one of the fundamental rights which can not be separated from the right of being protected against arbitrary detention without any legal basis affirmed by article 9 of the Universal Declaration on Human Rights “No one shall be subjected to arbitrary arrest, detention or exile”.

Everyone shall enjoy the right s mentioned in this article even those who are criminal detainees. Although the authorities have the right to prevent some individuals from their freedoms in some cases, the international standards guarantee for the individuals not to be deprived of their freedom arbitrarily or without any legal basis as well as protect them against ill treatment .In this regard, paragraph 1 of article 9 of the International Covenant on Civil and Political Rights (ICCPR) states that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Also, the Egyptian Constitutions of 1923 till the present constitution of 1971 guarantee the rights to freedom and personal safety of individuals, which shall be applied by virtue of the Constitution.

The Human Rights Committee pointed out that “ Arbitrarily detention” does not only mean the illegal detention but it can also described as inadequate and lack justice as well as it can not be predicted. Moreover, this committee affirmed the detention, which precedes the trial, shall be for a short time and exceptional till the end of investigations and the issuance of the charges list. The committee also affirmed that being suspected of committing a crime is enough reason for detention. It said that the only reason for detention is when that person dangerously threatens society.  

The guarantees for the detainee:

Anyone who is arrested shall be informed immediately of the reason of his arrest and shall be promptly informed of any charges against him as well as he/she shall be informed of his rights including the right to have a lawyers. This information is very important to enable him/her to challenge the order of his/her arrest and detention. Article 9 – Paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR) states “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”.

The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment affirms in principle 10 states “Anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him.”. Paragraph 2 of Principle 11 states that “. A detained person and his counsel, if any, shall receive prompt and full communication of any order of detention, together with the reasons therefore”.

In the Egyptian law, the Egyptian legislator consider the executive judiciary policemen opponents to the defendant and that is clear in article 131 of the Criminal Procedures Law which states “The investigation judge shall interrogate the arrested defendant immediately and if it is not possible to do so, the defendants shall be kept in a prison till he is interrogated and he shall not stay in the prison for more than 24 hours. After this period passed, the head of the prison shall deport him to the public prosecutor amicably. The investigation judge must immediately try the suspected person and if the investigated judge is not available, he can be replaced by the head of the court, the judge of the first class of the court, or any judge specified by the head of the court. The suspected person must be released if he is not tried.”

Moreover, when the suspect is arrested in a district that does not belong to the court before which he is judged, he must be deported to the prosecution of this district, which must verify his personal ID, inform him of his charges, and write down his speech according to article No.132 of the criminal procedures code. When the suspicious denounce these procedures, or his health condition does not enable him to be questioned, the investigations judge must issue his decision according to the article no. 133 of the criminal law. In the case of combating terrorism, the legislator gave the policemen the right to detain the suspected persons for 7 days. In this regard ,  the second paragraph of article 47, law No. 97, of 1993 states “ the officer who is responsible for implementing the verdicts can take the necessary procedures if he gets enough proofs to charge a person of committing a crime mentioned in Section one , second chapter of the second volume of the penal code. In this case, he can ask the public prosecution to permit him to arrest the suspect within 24 hours and so the suspect shall be detained for a period not more than 7 days and this officer has to interrogate the suspect and then refer him to the competent public prosecution after the period mentioned is passed in this article”

The question here is, where is the suspect detained during this period whether it was long or not? Article 42 of the Egyptian Constitution states  “Any person arrested, detained or his freedom restricted shall be treated in a respected human manner. No physical or moral harm shall be inflicted upon him. He may not be detained or imprisoned except in places supervised by laws organizing prisons. If a confession is proved to have been made by a person under any of the aforementioned forms of duress or coercion, it shall be considered invalid and futile.”

            According to article 140 of the Criminal Procedures Code amended by law no. 353 of 1952 states “ The public officers shall not contact the defendant in the prison except by a written permission from the public prosecution which means that the defendant shall be supervised by the public prosecution and be under its protection even when he in put in the preventive detention , this place shall be inspected and no one of the public officers shall be able to visit the defendant except by a written permission.” 

Therefore, the defendant may not be detained or imprisoned except in places supervised by laws organizing prisons. If a confession is proved to have been made by a person under any of the aforementioned forms of duress or coercion, it shall be considered invalid and futile. On the other hand the policemen should be the executive authorities who are responsible for implementing the law as well As to preserve security, peace and stability under the jurisdiction of law and the respect of the rights of citizens and their freedoms. This is clear in article 40 of the Egyptian Constitution of 1971 which states “All citizens are equal before the law. They have equal public rights and duties without discrimination due to sex, ethnic origin, language, religion or creed.” Article 41 states “Individual freedom is a natural right not subject to violation except in cases of flagrante delicto. No person may be arrested, inspected, detained or have his freedom restricted in any way or be prevented from free movement except by an order necessitated by investigations and the preservation of public security. This order shall be given by the competent judge or the Public Prosecution in accordance with the provisions of the law.” The constitution also determined the period of preventive detention in article 71 of the constitution ““Any person arrested or detained shall be informed forthwith of the reasons for his arrest or his detention. He shall have the right to communicate with whoever he sees fit and inform them of what has taken place and to ask for help in the way organized by law. He must be notified, as soon as possible, with the charges directed against him. Any person may lodge a complaint to the courts against any measure taken to restrict his personal freedom. The Law shall regulate the right of complaint in a manner ensuring a decision regarding it within a definite period or else release shall be imperative.”

Concerning the right of personal freedom, article 42 of the constitution states “Any citizen arrested, detained or whose freedom is restricted shall be treated in a manner concomitant with the preservation of his dignity. No physical or moral harm is to be inflicted upon him. He may not be detained or imprisoned except in places defined by laws organizing prisons. If a confession is proved to have been made by a person under any of the aforementioned forms of duress or coercion, it shall be considered invalid and futile. ”

Article 44 states ” Homes shall have their sanctity and they may not be entered or inspected except by a causal judicial warrant as prescribed by the law.

Article 45 states ” The law shall protect the inviolability of the private life of citizens. Correspondence wires, telephone calls and other means of communication shall have their own sanctity and their secrecy shall be guaranteed. They may not be confiscated or monitored except by a causal judicial warrant and for a definite period and according to the provisions of the law. Article 43 states ” Any medical or scientific experiment must not be performed on any person without his free consent.”

  Because of the importance of the personal freedom in its all-different forms and varied aspects, any violation of this personal freedom must not be dropped by the pass of time and the citizen must be compensated according to the legislation. Article 57 states “Any assault on individual freedom or on the inviolability of the private life of citizens and any other public rights and liberties guaranteed by the Constitution and the law shall be considered a crime, whose criminal and civil lawsuit is not liable to prescription. The State shall grant a fair compensation to the victim of such an assault.” Article 184 states “Police authority shall be a civil disciplinary body. Its Supreme Chief shall be the President of the Republic. Police Authority shall perform its duty in the service of the people maintain peace and security for the citizens, preserve order, public security and morality, and undertake the implementation of the duties imposed upon it by laws and regulations, in the manner prescribed by the law” . The law No. 109 of 1971 of the police law, Article 3 states “The police body is obliged to keep the public order, safety, and moral behaviors, to protect the citizens and their properties, and especially to prevent the committing of crimes and arrest the criminals, also to sponsor the safety and peacefulness of society in all fields, and apply the laws and rules”. The relation between the policemen and the sponsorship of human rights emerge through the last two texts. According to the policemen’s duties, they must keep the safety, which is serenity for the spirit that does not become serene unless the person does everything freely and with no restrictions except under the rule of law, the progress of any one is related to his ability to call for his rights. When the policeman violates the right to personal freedom without any legal bases, this threatens the security of people, which the policeman must maintain. Moreover there are number of principles which regulate the authority of the administration regarding its power to restrict the personal freedom in order to keep and protect he public order. These principles also restrict the power of the policemen in selecting the ways of arresting which are as follows:

1 – The practice of the right to freedom must not be entirely prohibited.  The policemen have no right to prevent anyone from practicing his personal freedom unless it is the only way to maintain the public order. On condition that it is the only way to maintain the public order, the prevention must be temporary and limited to specific places.

2- There must not be a defined way to face the danger. The officials should attract the citizen’s attention to the public order rules that must be held, as well as the citizens must not break the public order by practicing their personal freedom in any way as well as the citizens have the right to choose the way they can use to avoid danger. This rule is not applied except in the case that the bad results of the disorder are slight, or in the case of when there is urgent matters when the conditions do not give a chance to people to choose the best way to avoid danger

From the above texts the relation between policemen and the guarantee of human rights and freedom, becomes obvious.  Policemen are by nature of their job, the protectors of security, and security is serenity, and serenity only exists when a person is certain his movements are free and only restricted by the law, and the movement of a person in life depends on the ability to pursue his/her designated rights.

And therefore, if a policeman intercepts in the freedom of persons in situations other than those prescribed by law, he is actually undermining the security of which he is the protector.

There are a number of principles defining the power of the executive authorities in restricting freedom to protect the public order.

These principles limit the policeman's power in choosing the control procedure in various aspects:

1-       The pursuit of freedom must not be absolutely prohibited, unless there is no other method to guarantee or retain public order.  And such measures must be on temporary basis.  So prohibiting certain activities is limited to specific places only when this aims at protecting the public order.

2-       No specific method to face danger must be imposed i.e. the executive powers must only draw people's attention to the aspects of disorder to be prevented and to assign them to avoid the sources that cause public disorder when pursuing their freedom, leaving it up to them to choose the effective methods of its prevention.  This rule however is only applied when the harm caused by disorder is minor and it is also only applied

On the 27^th of July 1982, the Human Rights Committee of the United Nations stressed in an official comment the point that to enact article 7 of the International Agreement of "Civil and Political Rights and the Prevention of Torture, Cruel, Inhumane or Humiliating Treatment" it is not enough for governments to consider or define these actions as crimes, because these actions do take place despite the existence of legislations incriminating them.  That is why countries must apply additional preventive and corrective procedures to guarantee effective and productive control.  According to the committee, the least these procedures must include is the following:  "1) The concerned authorities must effectively investigate all maltreatment complaints and to punish the convicted.  The victims of torture must be offered effective and just methods including the right to compensation.  One of the guarantees that can make censorship especially effective is the existence of legislations prohibiting solitary imprisonment and allowing different persons like doctors, lawyers and family members of the detained to visit without disturbing the legal procedures.  2) Legislations that the places of detention be publicly known and acknowledged and that the names of detained and their place of detention be listed in a central record accessible to all concerned (like relatives).  3) Legislations that no court shall accept any confession made under the pressure of torture or maltreatment.  4) Procedures and special instructions to the personnel of the executive authority to refrain from such action."

The UN Human Right Committee issued on 27/7/1982 a formal commentary, in which it stressed that in order to apply Article No. 7 of The International Convention for civil and political rights and stopping the torture, punishment, ill-treatment or inhuman treatment, the government must not classify the abuse in the criminal law only, but get additional, reformational, and preventive measures also to assure efficient and productive control. Because these violations are enrolled in penal code, it often happens and so the committee thinks that the following steps are the measures at least to stop these phenomena:

  “ The competent authorities must efficiently examine the ill-treatment complaints, penalize the convicts, provide the torture victim with the efficient doing justice ways, including compensation, to take their rights. There are measures to ensure the efficient inspection, among these measures are abolishment the solitary confinement, allow the doctor, the lawyer and the relatives to meet the detainee on condition that this meeting does not affect the investigation, the detention place must be known, and it must be a central register that has enrollment of all the detainees to whom they may concern as their relatives. The judge must refuse any confession taken by the torture or any action that is incompatible with Article 7. The detention officials must receive the instructions to do not torture or abuse the detainees.”

The domestic legislation has criminated torture in the following articles:

Article No. 126 of the Penal Code :   

This article deals with one case when torture is committed to compel a person to confess. However, in Egypt, It has been proved that the officers used torture for many reasons that do not have to do with confession.

 Article No. 129 of the Penal Code

Article 129 of the penal code states that " each civil servant or public officer , and any person commissioned with a public service, resorting to cruelty with people, depending on his position, hence offending their dignity or inflicting physical harm on them, shall be sentenced to an arrest period of no longer than one year, or with a fine not to exceed L.E. 200 ".
Articles No. 162 and No. 210 of the criminal procedures code:

Those two articles both prohibit those who claim for their civil rights to appeal the case, in which the investigation judge or the prosecutor took a decision, in any way, if this case is against a civil officer for any offence that he committed during his job or because of his job.

Article No. 282 of The Penal Code

As for Article 282 of the penal code , the penalties reach the degree of a felony. However, the provisions have not differentiated between such actions happening by an individual against another, or by an authority against an individual. Penalty should have rather been strengthened in the latter case, as the representatives of the authority commit such crimes not in their personal capacities, but depending on their positions.

Going through the legal texts related to the crime of torture, it is found out that those laws do not conform with the International Instruments of Human Right especially article no. 1 of the convention against torture, which defined the torture widely as “the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

            The Egyptian government ratified this convention, which becomes part of its domestic laws due to article no. 151 of the Egyptian constitution which states that “ The president signed any convention and refer it to the peoples assembly. This convention is valid after the confirmation, ratification, and announcement with its details”

Also, Article 5 of the Universal Declaration for Human Rights states “ No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. And, Article 31 of the Standard Minimum Rules for the Treatment of Prisoners states “ Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences”.

Article No. 5 of the Code of Conduct for Law Enforcement Officials states that “ No law enforcement official may inflict, investigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.”

The legislative inadequacy and its influence on the spread of the phenomena of torture in Egypt:

  Not only the domestic laws do not agree completely with the International Instruments, but also it can not deter the criminals from torturing the citizens on one hand, and do not allow the victims to present their complaints before the courts on the other hand.

Although Egypt ratified the International Covenant on Civil and Political Rights and The Convention against Torture, there is not any suitable legislative development which shall have do not the necessary measures to protect the citizens from torture and all forms of inhuman and cruel treatment. Moreover, the existing measures and legislations are still inadequate to protect the citizen from torture and all forms of inhuman and ill-treatment as the following:

1-Concerning the crime of torture stated in article 126 of the Penal Code , this article does not provide legal protection and mental safety because this article deals with one case when torture is committed to compel a person to confess . When the public servant or officer torture the defendant or any other person for other purpose of compelling the victim to confess, the normal criminal rules are applied instead of applying article 123 of the Penal Code.

2- Article no.129 of the penal code: concerning the crime of using cruelty, its penalty is weak in a manner makes it useless. This penalty shall be applied in the case when cruelty takes the form of assaulting a person without hitting him. However, this penalty applied when cruelty is used to offend people’s dignity or t inflict physical harm on them and the penalty is to be sentenced to an arrest period o no longer than one year , or with a fine not to exceed L.E 200.” Therefore, it seems that this penalty is given to a citizen who committed cruelty not to a public servant or officer who represent authority.

3-As for article no.282 of the penal code, the penalties reach the degree of a felony. However, the provisions have not differentiated between such actions happening by an individual against another, or by an authority against an individual. Penalty should have rather been strengthened in the latter case, as the representatives of the authority commit such crimes not in their personal capacities, but depending on their positions.