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Second Chapter
Arbitrary Detention and Emergency Law in Egypt
First: How far the Egyptian government is committed to the objective conditions to declare a state of emergency:
One of the contradictions that are connotative is that the year that Egypt joined the international accord for civil and political rights, in the year 1981, is the same year that Egypt declared the emergency state in the country.
The connotation of this contradiction is that Egypt's joining to the accord should mark the beginning of a new era of committing to the international standards of human rights, and to have the required will to revise the national legislation so that it complies with international standards, but what actually happened only reflects legislative separation.
For what happened is that at the same historical moment the Egyptian government took two steps on the legislative level which are on two different ends.
So that the statements of the international accord of civil and political rights entered the emergency tunnel from the beginning, and in that tunnel the international accord has ceased to be an obligating document and is no more than a light of hope that reveals the darkness of the emergency state.
This serious contradiction is clear when it comes to this legislative separation, act number 2/2 from the accord states that: "Every country that is part of this accord vows to- If its already existing legislative or non-legislative procedures do not guarantee the application of the rights acknowledged in this accord- to take according to its constitutional procedures and the laws of this accord,, the legislative or non-legislative procedures for application".
The Egyptian government did not attempt to take any legislative step towards amending the laws that are restrictive for freedom in Egypt so that it complies with the international accord laws.
But the dangerous thing is that it put new legislations that completely contradict with the Egyptian constitution and the international accord laws with the excuse of fighting terror through preventive punishments and quick ending procedures.
On top of these legislations is act number 97 for the year 1992 known as (counter-terror act) which gave security institutions more validity.
Apparently it also decreased the legal and judicial guarantees for citizens and it applied more limits on the freedom of opinion and expression. it also limited the legitimacy that allow the efficacy of political parties in Egypt.
From the point view of application, the EOHR noted that the exceptional measures taken by the authorities executing the emergency state tress passed a lot of civil and political rights that are stated in the international accord of civil and political rights. No differentiating then between unapproachable rights and those stated in act number 2/4 of the international accord or the rights that can be restricted in the emergency state according to the necessity standard, and what it obliges of the of the obligation of the existence of(real equity between exceptional procedures and the actual existing danger).
The continuity of the application of the emergency law is one of the common questions that evoke those concerned about human rights in Egypt, locally and internationally.
On top of the list is the UN Human Rights Committee.
Who is responsible for the following up of the commitment of the participating countries to execute the bonds of the international accords for civil and political rights.
The UNHRC noticed that the emergency state is considered a major block for the full execution for the international accord rules.
The committee showed its remorse because Egypt did not inform other countries who are part of the accord through the Secretary General of the UN, of the laws that it abides to and the reason that forced her to do so.
The committee also expressed its deep concern towards the authority given to the president of the Republic of Egypt, as stated in the emergency law, especially the authority to confirm the verdicts issued by the Emergency State Security Court or his right to ask for an appeal.
Also the authority he has of referring legal claims to military courts.
The committee considers this as "a violation of the independence of the judiciary and separation of authorities".
The committee also showed its deep concern towards what is in the "anti-terrorism law" texts that conflict with the two acts 6, 15 from the international accord.
The definition of terrorism as it came in the mentioned law is so elastic to the extent that it includes a number of diverse prohibited actions.
The committee requested the Egyptian government to revise the terrorism definition and to rephrase it with more precision.
Especially that this definition increases the number of crimes that have a death punishment, as it is a violation of act number 6 from the international accord which limits the execution of this punishment to the most serious crimes.
It also asked the Egyptian government to issue a press-release about human rights and how Egypt is affected by the emergency law.
The EOHR sees that the on going application of the emergency law number 162 for the year 1958 is turning to a tool that gave a lot of freedom for the state security authorities against those who are suspected to participate in acts of violence and armed terrorism, which lead to vast violations.
These exceptional rights given by the emergency law allowed the state security to be gradually freed from constitutional and legal bonds and international obligations that Egypt has as a result of its reinforcement for international accords concerned with human rights.
This is represented in the increase of administrative detention and the manipulation of the final judiciary verdicts to release a great number of detainees.
What happens is that the detainees are released just on paper, then the state security authorities would issue another warrant for re-arresting them issued by dates that are after their release dates.
The security authorities did not stop the detention of people who have been proven to be innocent in civil and military courts.
Also those who were released because of the crimes they are charged with are not serious.
This is a serious violation of act number 72 of the constitution which states: "verdicts are issued and persecuted by the name of the people, not executing them or hindering their execution from the side of the concerned public employees is considered a crime that deserves to be punished by law, the defendant in this regard has the right to file a criminal law suit immediately before the specialized court". Also, the security authorities violate act number 465 from the procedures law that deems the application of judiciary laws obligatory.
The use of the Emergency Law- with its waste of the legal and judiciary rights of the detainees- lead to the growing of acts of torture and bad treatment in such a way that it lead to a number of deaths suspected to be the result of torture or the absence e of health care.
Secondly: Political Detention: Closed door policy:
Recurrent detention is one of the eccentric applications resulting from the misuse of the security authorities for their exceptional jurisdictions, according to the third act of the emergency law which allows the detention of suspects or those who endanger safety and public order.
The EOHR confirms that recurrent detention is not an exception or just some individual cases of misuse of power that the security authorities might fall into while arresting suspects, those who endanger safety or public order, In fact it has taken the form of a general extending phenomenon.
Taking into consideration the huge number of detainees arrested by recurrent detention whom the security authorities detains recurrently by issuing new administrative warrants as soon as they have their final release verdicts.
Recurrent detainees- according to the information that the EOHR gathered- can be divided into two categories:
1. Detainees by administrative warrants according to act number 3 from the Emergency Law. A lot of them had release verdicts from the emergency state security court when looking into their appeal according to act number 3 duplicated of the emergency law.
In spite of that but they remained under detention.
Because the foreign ministry issues new detention warrants with dates later to their release dates.
2. Persons who are not guilty in some military and civil cases, but whom the Ministry of Foreign Affairs detained with recurrent detention warrants.
The phenomenon of "Recurrent Detention" is considered an extreme violation of basic rights and freedoms that are stated in the Egyptian constitution.
It violates the concept of the separation between authority and the predominance of law.
It is also considered a violation for the constitutional standards and international standards for human rights for the following reasons:
1. Recurrent detention is a violation of the people's right to freedom and personal safety which is stated in act number 41 of the constitution.
It states that "Personal freedom is a natural right which is well protected -excepting the state of being caught on the spot of the crime persecution- No body should be arrested, searched, put to confinement, to be deprived of his freedom with any kind of confinement measures or not to be allowed freedom of movement, unless due to an obliging questioning procedure or to protect society's security.
This order is issued by the specialized judge or the Public Persecution according to the power of the law.
According to that statement, it is not allowed to deprive a person of his freedom unless it is an order from the specialized judge or the Public Persecution.
Detention should follow this basic rule, for act number 71 from the constitution states that:" any one who is arrested or detained should be informed of the reason of his detention/arrest, and he should have the right to call whom he wants to, or can assist him according to law procedures, he has to be informed as soon as possible with the charges set against him , he also has the right to appeal in front of a court against the procedure taken against him to deprive him of his freedom.
Law organizes the right to appeal, so that it can be looked in a limited time or that he has to be released immediately".
This statement equaled between detentions and arrest in that they both require a warrant, because they are procedures which are depriving of freedom according to act number 41 of the constitution.
Act number 3 of the emergency law is an exception of this general rule.
It gives authorities that apply the emergency state, the right to arrest persons who endanger security and public order and those who are suspected according to an administrative order.
This is considered a violation of act number 41 from the constitution.
What makes things worse for personal freedom by applying act number 3 is that the authorities that apply the state of emergency is always not abiding by the act number 3 and act number 3 (duplicated) from the emergency law by depriving defendants -who got release warrants- of their right to appeal in front of the High State Security Court.
This is considered a great violation of the sanctity of the judicial verdicts and the judicial authority.
2. Security Authorities purposefully neglects the final verdicts issued by civil and military courts of releasing a lot of persons as they are recurrently detained according to recurrent administrative orders.
This is a great violation of the principle of supremacy of law, stated in act number 64 from the constitution.
It also neglects the principle of the independency of the law according to act number 65 from the constitution.
According to the information that EOHR has there are cases of detention that are under detention for ten years. In spite of the fact that there were a lot of appeals that had release verdicts, these orders were not executed.
This deprived a lot of persons from their right for freedom and personal security for a long time according to recurrent an unfair administrative orders that were issued as going against the constitutional and legal rules or to by pass the legal rules.
Thirdly: Criminal Detention: Revolving Door policy:
Criminal detention is an issuing of a detention warrant for a person who is famous for committing crimes or acts that are stated in the suspect's law or more than one final verdict has been issued against him for committing one of the crimes that are stated in the suspect's law.
- The rights of the criminal detainees in the light of the emergency state:
- Acts number 3 and number 3 duplicated from the emergency law defines the legal system of detention and ways of appealing against it.
Act number 3 duplicated states that:" The president- as long as the emergency state is declared- has the right to arrest those who are suspected to, or those who endanger the security and public order and to detain them". Also act number 3 duplicated stated that:" Those who are arrested or detained according to the later act should be informed with the reasons for arrest or detention, the captured also has the right to telephone call a person whom he thinks should be informed of the detention and to seek assistance from a lawyer, and he should be treated as a temporary detainee".
The detainee or any body in question has the right to appeal if 3o days have passed since it was issued without him being released; the appeal is done with an application applied with no cost at all to the High State Security Court, who judges him according to legal laws.
Firstly: the issuing of the Criminal Detention Warrant:
The extensive use of the emergency law resulted in a number of detention cases without setting any charges against them or the existence of what is known as "previous legal charges". This is according to the following:
When the leader of the investigations bureau thinks that a person endangers public order in the area of his police office, a warrant is issued and it is presented to the security main office in his area then to the ministry of Interior Affairs to issue a detention order.
According to the follow up of EOHR, it appeared that when the leader of the investigations bureau asks one of the persons to be a source for information (spy) to report on what is happening in the area of that police office, on the case of his refusal for this offer, a detention warrant might be issued against him as a punishment for his refusal.
This is done through issuing a warrant notifying that this person is a threat to public security and sending it to the state security main office that the police office is a division of it, who puts this warrant in front the Ministry of Interior Affairs.
As soon as a detention order has been issued wit the name of the concerned person, he is given a specific number and the date of the issuing of the order then he is sent to the police station in his area.
Then the person is deported to the prison that he is scheduled to spend his detention time in.
During the year 2002 the number of criminal detainees has increased in an obvious way.
The total number of appeals of detention orders through the period extending from January till December of the same year is approximately 20017 appeals.
It is worth mentioning that there might be more than one appeal from a single person, because he appealed and he wasn't given a release verdict from the court or he had release verdict but he was issued another detention order.
This number of appeals is considered to be huge for duration of one year.
Secondly: Appealing to the decision of Criminal Detention:
The family of the detainee or the lawyer appointed for his defense can go through appealing procedures, after the passing of 30 days from the issuing of the order of criminal detention.
This is done through filing an appeal against the detention decision having the data of the detainee and the prison he is in and then it is proposed the Ministry of Foreign Affairs building to an office that is specialized in taking appeals.
Where the person in charge takes the appeal attached to it an identification document of the appealing person. If a relative (brother, father, mother, sister, son) he/she has to provide an identification card, but if it was a wife she has to attach a copy of the marriage agreement and a copy of the identification card.
But if it was an appointed lawyer, he has to provide a copy of the contract, and the request has to be free of charge and all this should be registered in a book.
This way the issuing of the criminal detention order and the appeal from the same body who is the Ministry of Foreign Affairs.
After waiting 8 days the person who appealed goes to the complex of court buildings in Galaa, the administration of detainees' affairs to the concerned employee to ask about the appeal that is filed. The detainee is supposed to attend the session to look into the detention decision, but what actually happens is that the documents of the detention is what is represented to be looked in. When the release warrant is issued they have to wait for more than 15 days for the objection of the ministry of foreign affairs.
Then a session to look into the opposition is held in an area other than the one which issued the release warrant.
If the minister did not object to the release decision, the decision is confirmed and the detainee is sent to the prison which issued the detention order, so that he is released or the procedures are done all over gain.
But in the case that the appeal does not get a release decision in the first session and the appeal is denied, he has to wait for another 30 days to file another appeal.
Thirdly: getting a release decision and executing it:
After deciding on the date of the hearing and after getting the initial release verdict, the detainee is informed that he has got a release verdict and then they wait for his confirmation of the decision through the objection hearing.
Two days after the release -maximum- the criminal detainee is transferred from the prison he is in to the department of deportation in Khalifa prison in Cairo.
The detainee spends there more or less 24 hours, and then he is deported to the security administration of his area and then he is deported to the police station of his area.
In the police station releasing the criminal detainee could take a long time even after his release warrant is issued due to the red tape procedures that are taken to release such a person. So that way he is considered to be free, unless the detention order is renewed which starts another journey of suffering, for the same miseries are repeated again.
That is what usually happens in most of the criminal detention cases which results in complications for the detainee and his family who endure the suffering as a result of these complications.
This is a violation of act number 3 duplicated from the emergency law that states:" The detainee has the right to appeal against the decision of detention after the passing of 30 days from the date of detention and the court looks into the appeal within 15 days If the jurisdiction system sets him free, the Minister of Interior affairs has the right to object to the release decision and in that case another hearing is scheduled within 15 days to look into the objection request.
If the court confirmed the release decision, then it has to be executed immediately, the Minister of interior Affairs in that case can not re-detain the released detainee".
Fourthly: Visiting Procedures:
The detainee's family can visit the detainee every week, but a visit through cables. For the detainee's family to visit him, they have to get a visiting warrant from the DA bureau. This requires producing an appeal to get the number of the appeal to write it on the request for a visiting warrant.
The request is in the name of the counselor head of the appeal court. The request includes the names of the people requesting the visit, in addition to providing what proves the family relation of the visitors to the detainee.
Then the person has to go to the ninth floor in the Galaa complex to produce the visit request.
Then he has to wait till the end of the procedures of granting the visit. Usually the application time of the request is until 12:00 PM, and the visit warrant is handed next day at 2:00 PM.
The duration of the visit is for 6 days.
If the visit did not take place in that time of the warrant, it can be renewed with the same previous procedures.
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Copyright © 2002 EOHR. All rights reserved. 