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Protecting human rights in the fight against terrorism in Egypt
Effect of the Emergency Law on suspected terrorists' right to a fair trial.
The Emergency Law frees security groups to act against individuals suspected of committed acts of armed violence in a manner which has led to broad transgressions. Powers granted to security groups under the Emergency Law have gradually freed them of their obligations under the Constitution, domestic legislation and international treaties. This is manifested in a widening of administrative detention and circumventing of judicial verdicts through, by example, the practice of repeated detention mentioned above. The use of the Emergency Law and its concomitant erosion of detainees' legal rights have led to a growth in the practice of torture and mistreatment. Under the state of emergency the district state security and supreme state security courts have been formed to examine crimes committed in contravention of Presidential decrees or Article 7(1) of the Emergency Law. It also allows the President to order the formation of a division of the state security court composed of one or two judges drawn from the armed forces. Divisions of the supreme district are composed of three counsellors and two officers. This is a gross violation of Constitutional and international standards concerned with the independence and immunity of the judiciary.
Article 12 of the Emergency Law prevents defendants from appealing verdicts to higher courts and leaves the implementation of judicial verdicts to the will of the state of emergency authorities. Article 6 allows the President to transfer any crimes listed under the Penal Code or any other law to military courts.
On the 8th February 1992 the Administrative Court overturned Presidential decree 375 [1992] which ordered that defendants in the "Retournees from Afghanistan" and "Gihad" cases be tried before a military judge. In response to this verdict the Government raised a case before the Supreme Administrative Court demanding that the verdict be overturned - which the Supreme Administrative Court did on the 23rd May 1993.
The Government also presented a request to the Supreme Constitutional Court asking that it explain Article 6 of the Military Orders Law which allows the President to transfer any crime listed under the first and second sections of the second chapter of the Penal Code to military courts. The conflict between the Administrative Court and the Supreme Administrative Court centred on the interpretation of the expression any crime in Article 6. The Administrative Court interpreted "crime" as meaning crimes which existed at the time the law was promulgated to the exclusion of crimes which subsequently came into existence.
The Supreme Constitutional Court concluded that the expression "any crime" according to Article 6 of the Military Orders Law which prompted the UN Human Rights Committee to express its concern in a session convened on the 19th July 1993 about the various roles played by the President as head of the executive branch and a part of the judicial system. In its defence the Government responded by saying that the President's judicial role is restricted to appeals for reduction of sentences.
2) Military courts
The transfer of civilians to military courts increased during the 1990s in reaction to an upsurge in acts of violence between armed Islamic groups and security groups. While terrorist violence is the principal source of the violation of the right life military courts represent the principal source of the violation of the right to a fair trial - especially since civilians who have no connection whatsoever with terrorist acts such as members of the Islamic Brotherhood are sent for trial before them.
Civilians were first sent to military courts in October 1992 when the President ordered that 48 defendants in the Retournees from Afghanistan and Gihad cases be tried in the Supreme Military Court in Alexandria. The Court issued death sentences against 8 of the defendants (7 of which were tried in absentia). Some 35 cases have been transferred to military courts since December 1992 (see attachment 1).
The transfer of civilians to military courts represents an attack on the right of the defendant to stand before his natural judge and erodes the independence of the judiciary.
Military court procedures do not respect fundamental guarantees of a fair trial such as provision of enough time to prepare a defence, allowing the defence access to case files, allowing defendants to consult their lawyers and non-admissibility of confessions gained through torture. In addition courts fail to investigate violations of detainee rights in prison and create unnecessary hardship for their lawyers and families by holding trials in courts long distances away from their homes. Upon their arrival in court lawyers are subject to intrusive searches.
Worryingly, EOHR has monitored an increase in the number of death sentences issued after trials which conclude with worrying speed - some trials last a mere 15 days. This widening in the use of the death penalty comes at a time when the international community is demanding a restriction on its use in preparation for its eventual abolition.
Despite the fact that the trial of civilians in military courts is not expressly forbidden by Egyptian legislation and international standards it is nonetheless a practice which conflicts with the principle of the independence of the judiciary and attacks the right of civilians to appear before their natural judge since civilians should be tried before a competent, independent and neutral court formed according to the law. The Commission on Human Rights and the American Commission have both stated that military courts must be divested of their power to try civilians.
The Commission on Human Rights has made clear that in some countries military trials do not rigorously apply justice in conformity with the standards outlined in Article 14 of the ICCPR. The American Commission has stated that the transfer of civilians to military courts conflicts with legal provisions and those military courts are exceptional courts charged with limited duties of maintaining discipline in the armed forces and the police only.
Military courts and the upsurge in acts of violence
The transfer of individuals suspected of having committed terrorist acts to military courts is one of the most serious human rights violations monitored by EOHR. The transfer of civilians to military courts has not stopped acts of violence but rather increased. The drop in violence after the Luxor slaughter was not a result of military courts or an increase in the use of the death penalty but was rather the result of security policies, initiatives to stop violence and other internal factors in these armed groups. Claims that military courts check acts of violence are disproved by the fact that members of the Islamic Brotherhood and others who have no connection with violence are tried in these courts.
The trial of civilians in military courts is a violation of the right to a fair trial for the following reasons:
1. Military court verdicts are not subject to review by a higher court but rather are approved by the President acting in the capacity of chief of the armed forces.
2. The military judiciary must abide by the military service rules whose most important demand is obedience and compliance - which conflicts with the qualities required of a judge. Furthermore military judges are appointed for two year renewable periods and can be transferred or dismissed by the Defence Minister.
3. The military authorities themselves are responsible for deciding whether a crime falls within their jurisdiction.
4. The military law does not stipulate the maximum period of time individuals can be held in detention during investigation unlike Article 143 of the Criminal Procedures Code which limits it to 6 months.
5. The Military Orders Law does not conform to fundamental principles regarding in absentia trials (Article 77 of the Criminal Procedures Code) which provides for the invalidity of trial procedures and any verdict issued where the suspect hands himself in or is arrested before conclusion of the trial or during sentencing.
6. Verdicts issued by military courts must be approved by the President acting in his capacity as chief of the armed forces.
7. Military courts deny defendants fundamental guarantees of a fair trial such as the right to prepare a defence and the right to consult their lawyer in private. They are also subject to the threat of torture while in detention.
Formation of the Supreme State Security Court
Despite the Egyptian Government's annulling Law 105 concerned with the formation of ordinary state security courts emergency state security courts continue to be formed under the Emergency Law. Emergency state security criminal and felony courts are the most dangerous type of exceptional court because defendants are denied the right to appeal verdicts to higher courts.
In 2003 EOHR monitored the transfer of 4 cases to the Emergency State Security Court involving the Tahrir Party, the Revolutionary Socialists, the Sayyed Tulba case and the Matrayya case.
Fighting terrorism while protecting human rights
Fighting terrorism with another form of state terrorism will never succeed. This state terrorism takes the form of violation of citizen rights and suppression of civil society groups and trade unions through the enactment of legislation which contravenes the Egyptian Constitution and Egypt's international treaty obligations.
The frequent incidences of torture, repeated detention and violation of defendants' rights are evidence of the absence of the right to a fair trial in terrorism cases in Egypt. This demands that the Egyptian Government review the manner in which it deals with terrorist suspects, particularly since the incidences of terrorist acts have decreased since 1997. Such a review must take into account human rights in such a way that there is no conflict between the equally important priorities of fighting terrorism and respecting human rights. In the first stage this requires that:
1. The Egyptian Government annul the Emergency Law continuously in force since 1981 whose application can no longer be justified by the need to fight terrorism. Acts of terrorism have significantly reduced since 1997 and ordinary legislation adequately deals with terrorism while simultaneously upholding human rights. However the Government must also amend the 1992 Anti-Terrorism Law in order that terrorist suspects' rights are respected.
In reality the fight against the Emergency Law demands two-fold collective responsibility. For its part the Government must assume its responsibility towards society by declaring an end to the state of emergency. Social and political forces must in turn play their role by encouraging the authorities to repeal the Emergency Law while repairing the legal, political and social damage done by the Emergency Law. While the onus for the repeal of the Law falls squarely on the shoulders of the legislative and executive branches, building a future without a state of emergency can only be achieved through a collective effort involving all social elements.
If the Egyptian Government is serious about pursuing political and constitutional reform it must restrict announcements of a state of emergency to times of war and disasters and should delineate the period of time that the state of emergency will last. In addition its renewal must be subject to precise criteria and under the real and effective scrutiny of a legislative body. Finally Constitutional legislation and the natural judge must be reinstated as soon as possible since reform and states of emergency are mutually exclusive.
2. The Government end the practice of the transfer of civilians to military courts and honours its obligations under the ICCPR by ensuring that trials are in conformity with international fair trials. Law 25 [1966] must be amended in order to restrict military courts' jurisdiction to trying military defendants only.
3. All civil society groups and regional and international human rights organisations pressure the Egyptian Government until it puts an end to the practice of the transfer of civilians for trial before military courts which leads to an increase in violence in response.
4. Emergency state security courts must be abolished.
5. The right of all citizens to stand before his natural judge must be respected and the right to appeal fully implemented. The Government must observe fair trial standards for all defendants, even those suspected of having committed terrorist acts.
6. Democratic and human rights values must take root in Egyptian society. Public freedoms must be respected and restrictions on party political and civil society life be lifted in order to allow democracy to become fully entrenched. Terrorist suspects must be dealt with within the framework of respect for the Constitution, rule of law and democratic and human rights values.
In conclusion, while the state has a duty to fight terrorism and protect its civilian population, it must not abandon respect for human rights and international standards of justice in its fight against armed terrorist groups.
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