Human Rights Council
14 October 2009
Agenda item 3
Promotion and protection of all human rights, civil, political, economic,
social and cultural rights, including the right to development
Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin
Mission to Egypt*
At the invitation of the Government, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism conducted a visit to Egypt from 17 to 21 April 2009.
In this report the Special Rapporteur examines the emergency law, criminal law provisions on terrorist crimes, and amended article 179 of the Constitution which provides the current legal framework to combat terrorism in this country. He analyses some of the key issues and challenges that are expected to be addressed in the new anti-terrorism legislation under preparation which the Government has committed to enacting in order to lift the state of emergency that has been in force, almost continuously, for more than 50 years. The Special Rapporteur discusses the importance of a strict definition of the concept of terrorism so that it is not overly expansive in scope. He expresses concern about the potential use of relying on exceptional powers in relation to arrest and detention of terrorist suspects that are then inserted into the ordinary penal framework of an anti-terrorism law. He addresses the reliance on the practice of administrative detention without trial and expresses concern that this practice will continue in violation of international norms. The Special Rapporteur examines the renewal of detention orders and lack of compliance with court rulings regarding release. He addresses concern regarding the use of unofficial detention facilities and the heightened risk of torture to terrorist suspects and the lack of investigation and accountability. The Special Rapporteur examines the use of special courts to try terrorist suspects, including the use of emergency security courts and military courts, and calls for measures to ensure compliance with fair trial. Finally, the Special Rapporteur notes Egypt’s leadership role, particularly in the region, in regard to the international fight against terrorism and expresses concern regarding the use of extraordinary renditions.
The Special Rapporteur views his visit as an important step towards helping to facilitate the Government’s commitment to abolish the state of emergency but cautions the authorities against relying on amended article 179 of the Constitution as a legal basis due to its numerous deviations from other constitutional provisions and lack of adherence to international human rights law. The Special Rapporteur makes a number of key recommendations so that Egypt can develop a sustainable counter-terrorism programme that is both effective and in full compliance with human rights.
Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin
Mission to Egypt (17 to 21 April 2009)
I. Introduction 1–3 4
II. The Emergency Law and other laws currently regulating the fight against
terrorism 4–13 4
A. The Emergency Law 7–8 5
B. The definition of terrorist crimes in Egypt’s Penal Code 9–11 6
C. Assessment of amended article 179 of the Egyptian Constitution 12–13 7
III. Current challenges and prospects for change through proposed anti-terrorism
legislation 14–47 8
A. Definitional matters 14–16 8
B. Exceptional procedures 17–18 8
C. Administrative detention without trial 19–26 9
D. Irregular detention facilities and the use of torture during investigation
of alleged terrorist crimes 27–30 11
E. Investigation in terrorism cases and trials before special courts 31–39 12
F. International cooperation in the fight against terrorism 40–47 15
IV. Conclusion and recommendations 48–60 17
A. Conclusions 48 17
B. Recommendations 49–60 18
1. Pursuant to his mandate, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism visited Egypt from 17 to 21 April 2009 at the invitation of the Government. During his visit the Special Rapporteur met with the Minister of Legal and Parliamentary Affairs and the Ministries of Foreign Affairs, the Interior and Justice. He also met with the Chief of the Egyptian Supreme Constitutional Court, the Prosecutor General, the President of the People’s Assembly, Chairpersons of the Legal and Constitutional Committee and the Foreign and National Security Committee of Parliament, and the Vice-President of the Egyptian National Council of Human Rights. In addition, the Special Rapporteur benefited from consultations with lawyers, academics, non-governmental organizations and the international community.
2. The Special Rapporteur thanks the Government of Egypt for its invitation and cooperation during his visit. The country is of great interest to his mandate, not only because of its long experience in combating terrorism, but particularly because of the emergency law framework that is primarily used to countering terrorism in the country. The resort to exceptional powers in the prevention and investigation of terrorist crimes reflects, in the view of the Special Rapporteur, a worrying trend in which this phenomenon is perceived as an emergency triggering exceptional powers, rather than a serious crime subject to normal penal procedures. The recent commitment of the Government of Egypt to lift the country’s state of emergency and to confront the threat of terrorism through an anti-terrorism law, which at the time of the visit was still under preparation, gives the Special Rapporteur an opportunity to address the human rights risks emerging from the application of a state of emergency. The Special Rapporteur is convinced that an analysis of these measures together with an assessment of their compliance with international human rights standards can be a useful step in moving away from a culture of exceptionality.
3. The Special Rapporteur submits this mission report regretting that his first visit to Egypt in April 2009 and the constructive meetings held during that visit have not yet resulted in an invitation for a second visit, during which the Special Rapporteur could observe proceedings in terrorism-related court cases and visit places of detention, including private interviews of persons suspected of, or convicted for, terrorist crimes. The Special Rapporteur expresses his gratitude to the Government for the extensive written responses and comments he has received on the basis of a draft version of this report. These responses have been of great assistance in finalizing the current mission report. The Special Rapporteur expresses his wish that he may soon return to Egypt for a second visit, either prior to the consideration of this report by the Human Rights Council, or as a follow-up measure.
II. The emergency law and other laws currently regulating the fight against terrorism
4. In the past Egypt has faced situations which genuinely threatened the life of the nation, thereby reaching the threshold for proclaiming a state of emergency in which a State may derogate from some of its obligations under the International Covenant on Civil and Political Rights. On several occasions since the early 1970s Egypt has struggled with armed militants who have used a prolonged campaign of violence for the purpose of overthrowing the Government and replacing it with an Islamist State. The last time such a situation occurred was in the middle of the 1990s, when the terrorist organizations Jihad al-Islami and Al-Gama`a Islamiyya resorted to violence in a prolonged campaign, which reached its peak on 17 November 1997 in Luxor when 62 people were killed in an attack.
5. While acknowledging the right of a State to proclaim a state of emergency as a temporary measure determined by the exigencies of the situation, the Special Rapporteur is concerned that Egypt has been almost continuously governed by emergency law, which includes far-reaching restrictions on fundamental rights and freedoms, for more than 50 years. Egyptian authorities have justified this long-standing state of emergency predominantly by referring to a range of permanent “destabilizing factors” which are perceived as posing a threat to the country’s national security, including the position of the northern part of the Sinai desert which borders Gaza, the activities of the terrorist organization Hizbullah, the presence on the Egyptian territory of elements linked to the terrorist organization Al-Qaida, the increased accessibility of Al-Qaida’s propaganda online, the existence of Islamist movements in the Middle East in general and the presence of the Muslim Brotherhood in Egypt in particular.
6. The Special Rapporteur learned that Jihad al-Islami and Al-Gama`a Islamiyya were effectively dismantled by the end of the 1990s. Since then, the country has been shaken by a number of isolated and sporadic terrorist attacks, among which were three larger attacks in 2004–2006 directed at tourist resorts in the Sinai peninsula, killing at least 145 people and injuring up to 300. Although it seems there is no permanent threat of terrorism, the latest extension of the state of emergency, as approved by the Peoples’ Assembly on 28 May 2008, was officially explained on the basis of such a threat. Reiterating that terrorism as a phenomenon should in principle be combated through ordinary penal legislation, the Special Rapporteur acknowledges that a State under exceptional circumstances has a right to protect its society against the inexcusable methods of terrorism through the use of emergency measures. However, in the light of article 4 of the International Covenant and general comment No. 29 (2001) of the Human Rights Committee codifying its interpretation, such exceptional measures can be used only as a temporary tool, with the primary objective of restoring a state of normalcy where full compliance with international standards of human rights can be secured again. A state of emergency almost continuously in force for more than 50 years in Egypt is not a state of exceptionality; it has become the norm, which must never be the purpose of a state of emergency.
A. The Emergency Law
7. Emergency powers in Egypt are governed by Law No. 162 of 1958 (the Emergency Law). Provisions established in article 3 of that law authorize the conduct of counter-terrorism operations without restrictions by ordinary legislation which would guarantee, for example, that searches, seizures and surveillance as well as arrest and detention require judicial authorization, and that detention is limited in accordance with specific legal criteria that regulate its duration. In practice, counter-terrorism operations under the emergency law are carried out by officers of the State Security Investigations (SSI), which, under the supervision of the Ministry of the Interior, is the main body responsible for controlling the state of emergency in Egypt. The Special Rapporteur is troubled by the frequency and range of practices allowed for and facilitated by the wide powers established by the Emergency Law, only in part counterbalanced by the supervisory role of the Egyptian Court of Cassation. In line with United Nations human rights treaty monitoring bodies, he reiterates his concern that the state of emergency seriously hinders the full consolidation of the rule of law in the country.1 Again he wishes to draw attention to article 4 of the International Covenant, according to which all measures derogating from the Covenant are only permissible to the extent strictly required by the exigencies of the situation, and recalls that no provision of the Covenant, however validly derogated from, will be entirely inapplicable to the behaviour of a State party.2
8. The President may under provisions of the Emergency Law restrict a number of rights pertaining to freedom of assembly and expression and may, in addition to crimes concerning State security, refer offences involving public demonstrations and gatherings for prosecution in so-called Emergency Supreme State Security Courts,3 the establishment of which is provided for by the same law. The Special Rapporteur recalls that articles 19 and 21 of the International Covenant on the right to peaceful assembly and freedom of expression, as well as article 22 on the closely connected right to association, in themselves allow a State to introduce certain permissible restrictions, when necessary and regulated by the law, in order to protect, inter alia, national security. Limitations in accordance with these criteria should, in his view, suffice for fighting terrorism effectively, and consequently no further derogations from these rights should, in principle, be needed even under a state of emergency. While the maintenance of a democratic society is to a large extent based on the diversity of peaceful activities exercised through the enjoyment of the aforementioned rights, full compliance with the requirements of necessity and proportionality becomes crucial whenever restrictions are imposed.
B. The definition of terrorist crimes in Egypt’s Penal Code
9. The Special Rapporteur in his previous reports has advocated that domestic counter-terrorism provisions should, in the absence of a comprehensive international definition of the crime of terrorism, adhere to the three-step cumulative characterization according to which an act, in order to be classified as terrorist, must have been:
(a) Committed against members of the general population, or segments of it, with the intention of causing death or serious bodily injury, or the taking of hostages;
(b) Committed for the purpose of provoking a state of terror, intimidating a population, or compelling a Government or international organization to do or abstain from doing any act;
(c) Correspond to all elements of a serious crime as defined by the law.
This approach is reflected also in Security Council resolution 1566 (2004) which provides further guidance for what crimes can be defined as terrorist ones under item (c), by referring to existing international conventions and protocols against terrorism.
10. In addition to the three requirements above, the Special Rapporteur endorses the requirement that any provision criminalizing terrorism must comply with the principle of legality, as enshrined in article 15 of the International Covenant, and consequently be formulated with sufficient precision so as to allow the individual to regulate his conduct and anticipate the elements that make an activity a terrorist crime. Any terrorist act proscribed by the law must comprise or have sufficient relation to the intentional element of causing deadly or otherwise serious bodily harm.
11. In Egypt, legal provisions on counter-terrorism are, in addition to the Emergency Law, regulated through the Penal Code in Law No. 974 which establishes a number of terrorism-related offences and their corresponding penalties. The Special Rapporteur notes that the definition of terrorism, as provided for in article 86 of that law, in addition to violent acts extends to include “any threat or intimidation” with the aim of “disturbing the peace or jeopardizing the safety and security of the society” and, furthermore, contains a wide range of purposes, such as “to prevent or impede the public authorities in the performance of their work or thwart the application of the Constitution or of laws or regulations”. The definition in article 86, including the substantial and intentional elements as well as its purposes, is notably much broader than the three-step cumulative characterization presented above and therefore, in the view of the Special Rapporteur, runs the risk of including acts that do not comprise a sufficient relation to violent terrorist crimes. Of particular concern is that a number of offences based on this definition are subject to the death penalty, and the Special Rapporteur recalls that in cases where States have not already abolished this punishment it can only be applied to the most serious crimes.5
C. Assessment of amended article 179 of the Egyptian Constitution
12. In May 2007, 34 articles of the Egyptian Constitution were amended by parliamentary vote. Consequently, the text of article 179 as amended stipulates the State’s responsibility to counter the dangers of terrorism and, on that basis, establishes that legal provisions “related to the leading inquiry and investigation procedures required to encounter these dangers” shall not be precluded by constitutional provisions that guarantee the judicial oversight of detention, home searches and surveillance or seizure of communications.6 The Special Rapporteur is troubled by the fact that theoretically article 179 predefines as constitutional any legally regulated proceedings deviating from the above-mentioned constitutional safeguards, including a blanket authorization for the unrestricted limitation of the rights protected therein. Even if technically constitutional, such proceedings would fall short of compliance with legally binding international standards protecting personal liberty and the right to privacy, as established in articles 9 and 17 of the International Covenant on Civil and Political Rights.
13. Article 179 of the Constitution is considered to be the basis for an anti-terrorism law currently under preparation. Egyptian authorities, however, firmly assured that any proceedings allowed for under the new law would come under strict judicial oversight. The Special Rapporteur endorses the requirement that any violation of the protection against arbitrary deprivation of liberty in article 9 of the International Covenant as well as against arbitrary or unlawful interference with privacy, family, home or correspondence in article 17 must be based on a judicial warrant issued in advance of any investigative measures taken within this context. In his view, article 179, even if the state of emergency is lifted, is not conducive to a genuine move away from practices that are facilitated by the emergency law framework and climate currently prevailing in Egypt. In short, article 179 of the Constitution carries features of a permanent state of emergency, although under a new name.
III. Current challenges and prospects for change through proposed anti-terrorism legislation
A. Definitional matters
14. The promotion of an adequate and strict definition of the concept of terrorism is essential in the mandate of the Special Rapporteur. This issue constituted an important focus in his meetings with Egyptian authorities, particularly in regard to the drafting of the future anti-terrorism law. While regretting that the authorities were not willing to share with him a draft that would have allowed a more thorough assessment in this mission report, he is encouraged by having received, in principle, agreement from the side of the authorities on the three-step cumulative characterization supported in paragraph 9 above. However, on the basis of informal reports on the drafting of the proposed anti-terrorism law, he notes that the draft law appears to include in the definition of terrorism acts that do not entail physical violence against human beings, such as the occupation of the environment or buildings, or the prevention of activities or practices of religious centres or of those pertaining to legislative, executive and judicial authorities. The Special Rapporteur takes the view that the inclusion of such supplementary forms of conduct runs the risk of attaching the stigma of terrorism to separate acts which do not fall within the scope of terrorism and which should be provided for and penalized elsewhere in the law, if needed.
15. A closely connected issue relates to the matter of criminalization of a terrorist organization. The Special Rapporteur during his meetings with Egyptian authorities strongly advised against any wording in the future anti-terrorism law that would define a terrorist organization on the basis of its aim to commit any act legally characterized as terrorist, rather than on the commission of specific acts. He also spoke against penalizing leadership of such an organization with the death penalty. He stressed that legal provisions applicable to terrorist organizations, including the criminal responsibility of its members, should essentially be based on the use of or calls for deadly or otherwise serious violence against civilians. Any criminalization of a terrorist organization that is exclusively based on the goals of the organization risks inadequately expanding the concept of terrorism.
16. Any anti-terrorism law that is not properly confined to the countering of terrorism is problematic, not only because an overly expansive scope of such a law weakens its own legitimacy and ultimately may prove to be counter-productive, but particularly because it may unjustifiably restrict the enjoyment of human rights pertaining to the exercise of peaceful activities, including dissent and political opposition, through legitimate associations. The Special Rapporteur expresses concern that practices allowed for by the Emergency Law have been frequently applied in circumstances that have no clear link to terrorist violence. He refers to the prosecution of 49 persons before an Emergency Supreme State Security Court for their involvement in violent demonstrations in Mahalla al-Kobra on 6 April 2008, as well as to the arrest and detention of a number of Internet bloggers critical of the Government, human rights activists, members of the country’s largest opposition group the Muslim Brotherhood, and journalists. Against this background, he calls upon the Government of Egypt to strictly limit all measures provided for in the proposed anti-terrorism legislation to countering terrorism alone, as well as to ensure explicit safeguards against any abuse of such measures.
B. Exceptional procedures
17. A decision to lift the state of emergency would, according to some Egyptian authorities, seriously challenge their capacity to conduct in particular preventive counter-terrorism operations. As current provisions in the ordinary penal law framework would not adequately cover such operations, a model of so-called pre-charge detention has been elaborated for inclusion in the proposed anti-terrorism law. Such detention would, in exceptional cases, allow up to 29 days in custody without charge. Encouraged by assurances to the effect that a detainee subject to this procedure would enjoy certain safeguards, including the right to be informed of the reasons for detention, the right to contact legal counsel and family members and the right to challenge the legality of detention and present any arguments concerning the detention before a judicial authority, the Special Rapporteur urges that all cases of deprivation of liberty allow for prompt and substantive judicial review, and that each of the above-mentioned guarantees be explicitly provided for in the same law, in order to avoid any misunderstanding that the anti-terrorism law constitutes an exception to otherwise available guarantees. Access to judicial review within the first 24 hours of detention, as suggested to the Special Rapporteur by the Egyptian authorities, followed by regular and independent court review more often than once per week are, in the view of the Special Rapporteur, indispensible conditions for reaching compliance with article 9 of the International Covenant.
18. The future enactment of provisions regulating arrest and detention of terrorist suspects is closely dependent on the amended text of article 179 of the Egyptian Constitution. The Special Rapporteur is aware of a widely spread fear amongst his interlocutors that whereas article 179 exempts the affected persons from the constitutional protections against, inter alia, warrantless arrest and detention, the adoption of the proposed anti-terrorism law, even if the state of emergency is lifted, might make applicable the sweeping powers currently allowed for by the Emergency Law. In view of the human rights risks inherently attributed to the Egyptian emergency legislation, the Special Rapporteur strongly advises against inserting any provisions of an emergency nature into the ordinary penal framework. In sections C and D below he analyses in detail specific problematic aspects of the detention procedures allowed for by the current Emergency Law.