The Detention Dilemma: Unconstrained Persecution in Egypt

By Amogh Sharma, HNLU Raipur, India

In a chilling exemplification of a repressive regime, Egyptian security forces under President Abdel-Fattah el-Sisi have been accused of arbitrarily arresting and torturing children aged as young as 12. A report documented by Human Rights Watch (HRW) underscores that prosecutors and judges have exacerbated these abuses through due process violations and unfair trials. The unnerving account details the use of varied modus operandi for torture. To enlist a few: seven children were shocked with electricity during interrogation, including shocks in the face with stun guns; others were suspended from their arms, consequently, dislocating their shoulders; some were denied blankets or warm clothing in unheated cells during winter, apart from other brazen displays of brutalization. While such instances of torture are not new-fangled nor are they idiosyncratic to Egypt; given the gravity of their impact, this article seeks to provide an insight into the same, and establishes the non-conformity of the Egyptian authorities vis-à-vis appropriate law.

Infringement of Relevant Law

Egypt’s constitution considers all forms of torture to be a crime with no statute of limitations. The state is further obligated to respect and guarantee dignity for every person (Art. 51 & Art. 52). Most relevant to the current context is that restrictions on personal freedom or arrests can only be done on the basis of a causal judicial warrant necessitated by an investigation, and those apprehended cannot be tortured, terrorized, or coerced. Confinement is required to be in designated locations that are appropriate according to humanitarian and health standards (Art. 54 & Art. 55).

The Convention on the Rights of the Child further unambiguously prohibits torture or degrading treatment of any kind. Likewise, the arrest or deprivation of liberty of children cannot be done so arbitrarily, moreover, detention should only be used as a measure of last resort (Art. 37). This is similar to what applies to everybody under Article 7 of the International Covenant on Civil and Political Rights (See Sandberg at p.16).

The Robben Island Guidelines (Guidelines) which were adopted by the African Commission (AC) during its 32nd ordinary session are considered to be a systematic tool for the examination and evaluation of periodic reports by the AC (See Baptiste and Lessène at p. 22). Not unlike the above mentioned legal framework, they put forward the essentiality for states to pay particular attention to the prohibition and prevention of torture and ill-treatment of youngsters. Those found guilty of having committed acts of torture shall be subjected to appropriate sanctions that reflect the gravity of the offence (See Guidelines at p. 11).

Prima facie apart from the constitution, other Egyptian lex scripta are additionally oriented towards prevention of torture, and although, they can be made more severe, to an extent they confer with the international framework. Reference may be made to Egypt’s Penal Code which provides for a penalty of hard labour or imprisonment for 3-10 years, in the event any civil servant employs the use of torture for any purpose (Art. 126). In general, any public official employing cruelty or physical harm may be detained for a year (Art. 129). Such penalties are analogous to laws in other neighbouring countries like Israel (See Israeli Penal Code; section 277).

Considerations Involved in a Potential Investigation

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(CAT) necessitates any state to proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed (Art. 12). Not dissimilar to the above reported violations, as recently as in 2018, Amnesty International in its report mentioned that Egyptian security had forcibly disappeared and physically tortured various children since 2015 in relation to political cases. No separate demarcation was made in detention for the children from adults. In a response to this, the Egyptian State Information Service strongly denied the violationsmentioned in the report. While such reported violations fulfil the requisite for conducting impartial investigations; in the event, the reports are actually veritable, Egypt’s denial would  amount to clear cut suppressio veri, and this would date far back  (See ¶ 62). Without a shred of doubt, there will be a wary and sceptical outlook to any response given by the government regarding the HRW report.

In an idyllic scenario, an impartial investigation should be expedited. The European Court of Human Rights in Bati and Others v. Turkey commented on state investigation processes and specified that while there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, it may generally be regarded as essential for the authorities to launch an investigation promptly in order to maintain public confidence in their adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts (See ¶ 136).

I believe that this, however, results in yet another conundrum, which would be that of the investigation being conducted by the Egyptian authorities themselves, thereby, evoking a reasonable suspicion of bias. Another significant encumbrance would be that of the victims themselves fearing risk of further reprisals by filing a complaint against security forces (See here at p. 12). Admittedly, the CAT provides for steps to be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of the complaint (Art. 13), yet considering the apprehension laden in the minds of the Egyptian general public, this does not seem in itself plentiful to suffice.

The UN Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment require an investigation to be undertaken even in the absence of an express complaint, provided there are other indications that torture or ill-treatment might have occurred. The investigators involved in such investigations have to be independent of the suspected perpetrators (See ¶ 2). In Egypt’s case, ill-advisedly, instances of interrogations by prosecution in the presence of policemen often disparages the possibility of an efficacious complaint (See here at “I. 3- Obstacles due to police pressures”).

Possible Recompense

There is no doubt about the fumus boni iuris available to those tortured by public officials for extorting confessions. The CAT very tersely puts forth the need for a victim to have an enforceable right to fair and adequate compensation (Art. 14), but the lack of initiative showcased by the Supreme State Security Prosecution paints a bleak picture. Although, on a minor level, the Egyptian judiciary has endeavoured to allay concerns regarding total impunity given to public officials, nonetheless, the sheer scale of the purported misdemeanour of power renders the overall impact not more than marginal.

Perhaps, one way to combat Egyptian security’s stifling nonchalance would be for EU member states to act in pursuance of the Guidelines on EU Policy Towards Third Countries on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The guidelines stress the need for EU member states to engage with third countries to take effective measures against torture, and to express the imperative need for all countries to adhere to relevant international norms and standards (See p. 10).

It might also be worthwhile to consider the usage of technology whilst interrogating those detained. Devising a system for ensuring adequate videography via placement of cameras in detention centres could act as a means of deterrence and prevent torture. Senior police officers could be given the responsibility of maintaining the operationality of the system. Further, in no condition should security officers implicated in a complaint be permitted to partake in the investigation in any manner, rather there is an incessant need to outsource all such complaints to an external agency.

Another possible constraint when juxtaposed with the reported happenings of torture would be El-Sisi’s recent ratification of emergency law amendments. Even though the official reasoning behind such ratification seems oriented to limit the flow of the COVID-19, the fears of additional sweeping powers given to security agencies as a consequence of these amendments, unsurprisingly raises some concerns.

The most optimal outcome that may be arrived at might be dependent on the stance taken by the Egyptian administration. A resolute clampdown on torture could be manoeuvred by a stern display of public disapproval towards any transgression by security forces. This could be accomplished by a regular array of official statements and press releases not only condemning torture, but simultaneously warning about severe action to be taken against the perpetrators. Remarkably, as far as economic integration is concerned, El-Sisi has received acclaim for solidifying Egypt’s position in the continent but, nota bene, there is still a lot of work cut out for him to ward off claims regarding the free reign given to Egyptian forces. In eventuality, only time will permit a clear bearing about how Egypt will tread, in what has now become a precarious situation.