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Torture in Egypt…an unchecked
phenomenon
Chapter Two
Reasons for the spread of torture in Egypt
The physical and psychological damage of torture makes it one of the most serious violations of human rights. Articles 42 and 57 of the Egyptian Constitution and Article 41 of the Criminal Procedures Code criminalizes torture. Egyptian anti-torture legislation was further strengthened through Egypt's ratification of the CAT in 1986.
However, a review of Egyptian legislation shows that many provisions in Egyptian Law grant vast powers of arrest and detention to the authorities. Moreover, the penalties defined by the penal codes against those who perpetuate torture are weak and provide no deterrent.
These administrative and legal restrictions combine to form a legislative obstacle in the fight against torture. As a result of the ease with which its perpetrators escape punishment, torture has changed from being a minor excess carried out by some officers into a widespread phenomenon. EOHR stresses the urgent need to confront and tackle these legislative shortcomings.
There is a vast variety of legal, procedural, and security factors that provide a fertile land for torture to grow and spread. The following factors are some of the most important.
The continuation of the Emergency Law
Emergency Law no. 162 [1958] provides a fertile environment for the spread of torture in Egypt, providing legal protection for those who commit torture. Article 3 of the Emergency Law states:
Upon a declaration of a state of emergency, the President may take appropriate measures to maintain security and public order by imposing restrictions on individuals' freedom to meet, travel and reside in particular places, and by arresting and detaining suspects…
Under these broad powers the practice of recurrent detention has emerged. Emergency authorities have the power to detain individuals for long periods of time and re-detain released detainees with fresh detention orders. Furthermore places of detention are not subject to the judicial monitoring and supervision that might prevent torture.
The Interior Ministry detention practices are in complete violation of judicial orders. Detainees are formally 'released' from prison, taken to the nearest Police Station and held there for a week or two until a new detention order is issued according to which they are returned to prison.
Despite the fact that Article 2(1) of the CAT obliges its signatories to take all legal measures necessary to prevent torture (including cancellation of the Emergency Law), the Egyptian Government has never put these provisions into effect. The CAT explicitly states:
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. (Article 2(2))
Article 4(2) of the ICCPR that there can be no derogation from Article 7 that prohibits torture.
Penal Code 58 [1937]
The Penal Code includes controversial provisions frequently criticised by human rights organisations as providing a way for perpetrators of torture to escape punishment.
1. Article 126 does not provide the effective legal protection necessary to ensure detainees' physical and mental well-being as it only criminalises torture employed to extract a confession. Where torture occurs for any other purpose it falls outside the ambit of Article 126 and is punishable under ordinary criminal laws.
This makes for a vast disparity between Article 126 and the CAT with regard to the definition of torture. The CAT's definition of torture is broad:
For the purposes of this Convention, 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.(Article 1/1)
Unlike the CAT therefore, Article 126 does not define as torture acts committed in order to extract information or a confession from a third person or in order to punish or frighten the victim.
In practice torture is used for a variety of reasons other than forcing confessions. Egyptian legislation allows officers who incite witness or remain silent about torture to escape punishment, and does not criminalise those who commit torture under orders from their superiors. 42 In contradiction with the CAT, Article 126 does not include psychological torture.
2. The Penal Code's light penalties provide no deterrent. Article (129) provides:
Public employees or officials, and individuals assigned to a public service who use their position to treat an individual cruelly by comprising honour, causing pain or hurting them, shall be punished by imprisonment for a period of up to a year or by a fine that shall not exceed LE 200.
The legislator further increases the protection given to public officials through Article 63 of the Penal Code which provides:
No crime occurs where an act is carried out by a public official in execution of an order given by a superior which he is obliged to follow or if his intentions were good in committing the act he committed it according to his obligation under the law, or according to what he believed to be his sphere of authority.
This provision allows officers to defend acts of torture by claiming that in committing these acts they were acting in good faith - a claim whose genuineness, motives and reasons it is difficult for a judge to establish. An officer can escape punishment merely by proving that he was unaware that his acts were illegal.
3. Physical torture (dealt with under Article 282 of the Penal Code), makes illegal arrest accompanied by the threat to kill or torture a felony, but does not differentiate between acts carried out by a citizen against a citizen and those committed by a state authority against an individual. Where acts are committed by individuals representing the state the penalty should be more severe since they are not acting in a personal capacity but rather are abusing the power afforded to them by their post.
Under Articles 126 and 282 of the Penal Code acts committed against the relatives of the accused in order to force him to confess and which harm his mental or physiological well being are not considered torture. Where the arrest is legal the following torture techniques are also not considered torture under these Articles:
- prolonged interrogation,
- shining dazzling light on the detainee while he sleeps,
- the use of sensory effects such as repeated irritating noises,
- forcing an individual to listen to others calling for help or screaming under torture,
- insults,
- constant blindfolding or handcuffing,
- threats to humiliate or kill him,
- deprivation of food and clothes,
- holding the individual in isolation
Constitutional guarantees under Article 42 and international anti-torture instruments ratified by Egypt are useless as long they are not accompanied by an evolution in the Penal Code.
3. Civil claims
Under Article 232(2) direct civil claims cannot be brought against public officials or officers for a crime committed while he was in the course of discharging his duties. This is a breach of the principle of equality under the law and grants officers protection at the expense of the citizen.
This provision perhaps proves the overriding aim of the legislator to protect officers; its barring claims against public officials who commit crimes during the performance of their functions is unjustifiably broad.
Furthermore Articles 162 and 210 of the Criminal Procedures Code ban the plaintiff from appealing orders issued by the inquiry judge or the public prosecution on the grounds that there is no basis for raising a criminal case against a public official for a crime which occurred during the course of his duties.
EOHR asserts that such provisions allow police officers accused of torture to escape punishment, especially since the investigation in such incidents takes between a year and a half to two years at best, and in the majority of cases the investigation is left on file.
In justification of the prevention of civil claims against public employees, it is claimed that the public employee would no longer be protected against cases raised against him for malicious reasons undermining his ability to perform his duties. This is a violation of Article 57 of the Constitution that states that any attack on the rights of citizens is a crime, and that the criminal and civil lawsuit arising from it "is not liable to prescription."
In practice the right to bring a claim in these circumstances exists on paper only, and reaching an amicable agreement with the police officer outside court is the only possible solution for torture victims.
4. Broad powers for police officers
Egyptian legislation grants police officers unlimited powers in order to enable them to perform their functions while simultaneously depriving suspects held in Police Stations of legal guarantees during evidence gathering and investigation. This gives police officers carte blanche to violate the rights of suspects.
Article 102 of Police Authority Code 109 [1971] grants the policeman the rights to "use the amount of force necessary in order to perform his duties where this is the only means of performing these duties." The meaning of "amount" is left to the officer's discretion, which opens the door to the abuse of force in the absence of clear rules.
Article 23 of the Penal Procedures Code designates the followingas members of the administrative police: "law officers in their area of jurisdiction … police officers, policemen, constables and police station chiefs…" Article (23) describes the duties of police officers and their subordinates as crime detection, arrest of criminals and evidence gathering necessary for investigation and prosecution.
In their capacity as law enforcers Egyptian legislation grants police officers numerous powers such as those of arrest and reporting of individuals. The majority of human rights violations which occur in Police Stations are due to the abuse of these powers or weaknesses in the law itself.Arrest is one of the most important powers granted to police officers. The abuse of arrest powers is a betrayal of Article 41 of the Constitution.
Article 34 of the Penal Procedures Code gives police officers the power to arrest individuals suspected of having committed a crime where two conditions are met. Firstly, there must exist "sufficient proof" that the individual has committed the crime and secondly, the crime must be a felony or misdemeanor with a penalty of at least 3 months imprisonment. However, the term "sufficient proof" is vague and imprecise, with no control, therefore, the extent of available elements depend n police officers' assessment.
The Penal Procedures Code does not guarantee suspects the right to contact a lawyer during the evidence gathering (isstidlalaat) and fact finding (taharriyaat) stages which are the province of officers from the Police Station. This process differs from the investigation process (tahqiq) during which the law grants suspects the right to seek recourse to a lawyer- whether this is conducted by the prosecution office or the police (to whom the prosecution office can delegate its powers.)
The absence of these legal guarantees in the evidentiary fact-finding stage enables police officers to freely violate suspects' rights: suspects are obliged to sign police reports without knowing their content and confessions are extracted from them through the use of physical violence and psychological pressure.
Laws have been passed to prevent police officers misusing powers granted to them. Articles 42 and 43 of the Penal Procedures Code permit the public prosecution office to inspect Police Stations and determine whether individuals are in detention without a legal basis. However, these provisions are incapable of preventing attacks on individuals in police custody, especially given the limited number of prosecution office officials and the enormous number of Police Stations and detention places that require inspection.
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