Amnesty
International
EGYPT
On and around 11
May 2001 some 60 men were arrested in various locations in Cairo. Over half
were arrested while in a night club on a boat, known as the Queen Boat,
moored on the banks of the River Nile. Others were taken from two locations in
downtown Cairo or from their homes. During the night of 11 May 2001, the
detainees were held at different locations, including ‘Abedin Police Station,
Azbekiya Police Station and the department of the State Security Intelligence
(SSI) in the Misr al-Gadida district of Cairo.
On 12 May 2001 they were presented
before the State Security Prosecution, who issued 54 of the men with a 15-day
detention order, and transferred to Tora Prison, in the south of Cairo.
Fifty-two were later prosecuted and all of them remained in detention until the
verdict was given on 14 November.
Detainees reported
that they were tortured, including by
being beaten with a stick on the soles of the feet (falaka), during the
first stages of their detention. Following their arrest, most men were detained in police stations, where
they were reportedly beaten and verbally abused by police officers. One of the
accused told Amnesty International:
“The real beatings started in the
police station. They beat us with their hands and legs and with a cane and a
thick stick. Then they made us strip down to our underwear and the insults and
humiliation continued.”
On 12 May when appearing before the
State Security Prosecution, this person - who requested not to be identified by
name - informed the prosecutor of the beatings to which he had been subjected
and showed him the marks on his body sustained as a result. The prosecutor
noted “red vertical lines on the middle of the back...which the accused alleged
were the result of beating with a slim stick...”. More than two weeks passed
until the accused was examined by forensic experts who noted scratches on his
arms but the injuries to his back had apparently faded. However, the forensic
examinations of the detainees were aimed at establishing whether the accused
had practised anal sex rather than identifying traces of torture.
On 18 May Amnesty International sent
a letter to the Public Prosecutor expressing concerns at reports of torture and
ill-treatment of the detainees. The authorities failed to ensure that a prompt,
independent and impartial investigation was conducted into the torture
allegations in violation of their obligations under international human rights
treaties. Over the past two decades thousands of detainees have been subjected
to torture and ill-treatment in Egypt. Victims come from all walks of life,
including women, young people and the elderly. Torture and ill-treatment remain
widespread because the Egyptian authorities refuse to take basic steps
necessary to stamp out their practice in police stations and other detention
centres[1].
Articles 12, 13 and 16 of the UN
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Convention against Torture)[2], to which Egypt is
a State Party, require states to ensure that a prompt and impartial
investigation is conducted whenever there are reasonable grounds to believe
that an act of torture or other cruel, inhuman or degrading treatment has been
committed. Article 12 makes it clear that this duty is not dependent on a
formal complaint by a detainee.
The detainees were particularly at
risk of torture and ill-treatment whilst their access to the outside world was
restricted during the initial period of detention. Reports suggest that the
rights of the detainees to have access to legal counsel were infringed. Most
detainees encountered their lawyers for
the first time when presented before the State Security Prosecution on and
around 24 May 2001. Until this time, they had no legal representation,
including during their first appearance before the prosecutor on 12 May 2001.
Principle 1 of the UN Basic Principles on the Role of Lawyers establishes the
right to assistance at all stages of the proceedings, including interrogations:
“All persons are entitled to call
upon the assistance of a lawyer of their choice to protect and establish their
rights and to defend them in all stages of criminal proceedings.[3]”
Family members report that they were
not officially informed of their relatives’ arrest and some report that they
only received news of their detention through the media. According to Amnesty
International’s information, the first time detainees were allowed to be
visited by members of their family was at least ten days after their arrest.
Prevention of access of family members to the detainees violates international
standards, as outlined in the UN Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment (Body of Principles).
Principle 19 of the Body of Principles establishes the right of detainees to
access to the outside world:
“A detained or imprisoned person
shall have the right to be visited by and to correspond with, in particular,
members of his family and shall be given adequate opportunity to communicate
with the outside world, subject to reasonable conditions and restrictions as
specified by law or lawful regulations.”
Medical examinations to determine
whether detainees had engaged in anal sex, carried out by forensic experts,
amounted to cruel, inhuman and degrading treatment. One of the accused
described the manner in which medical professionals conducted the anal
examination:
“The first time was in front of
four people, including one woman. They asked me to strip but I didn’t want to
take my clothes off in front of a woman. They made me kneel down....It was
really humiliating.”
The examination lasted approximately
45 minutes and on completion the chief doctor questioned the results and
ordered that the examination be immediately re-conducted. Prior to both
examinations, the accused was threatened with beatings when he expressed
reluctance to be examined in this way.
The detainees were reportedly also
beaten by prison staff. On at least one occasion, the men were reportedly
beaten by other detainees in prison with sticks and canes, which could only
have taken place with the acquiescence of or in collusion with the prison
administration.
Media coverage by
Egyptian newspapers, particularly during the early stages of the case, raised
serious concern for the detainees’ right to privacy. In many instances,
detailed information pertaining to the men was published in the press,
including in at least one case the address of the family of an accused. On 15
May 2001 the semi-official Egyptian newspaper al-Gumhuriya published an
article referring to the men as “the deviant slaves of Satan” in which it
listed the names of many of the accused and, where known to the newspaper,
their workplaces. Concerns arising from the negative portrayal of the men and
its potential impact on their lives were raised by the defence during the
trial. The negative coverage in the media exposed the men and their families to
the risk of harassment and threats to their physical integrity.
In a letter addressed to the Public
Prosecutor on 18 May 2001, Amnesty International expressed concern that
publication of this material infringes the right to privacy of the accused. In
accordance with Article 17 of the ICCPR, State Parties are obliged to safeguard
the right of every person to privacy,
“1. No one shall be subjected to
arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the
protection of the law against such interference or attacks.”
Moreover, the
availability of personal details of the accused in the media at such an early
stage raises questions as to whether such details were leaked by the
authorities.[4]
All 52 men faced
the charge of “habitual debauchery”[5] under Articles 9
(c) and 15 of Law 10 of 1961 on Combatting Prostitution while two faced an
additional charge of “contempt of religion” under Article 98 (f) of the Penal
Code.
•
Charge of “habitual debauchery”
Article 9 (c)
stipulates prison sentences of between three months and three years for those
who “habitually practice debauchery” or prostitution. Article 15 allows for
police supervision to be imposed, for a period up to the equivalent of their
prison sentence, on release from detention.
Although there is no explicit
reference to homosexuality within Egyptian legislation, the term “debauchery”
is applied to same sex relations in the context of prostitution of men as well
as consensual sexual relations between men. Little definition is provided for
“debauchery” within the law itself but it is elaborated in the deliberation
accompanying the written verdict. The written verdict does not confine itself
to the term “debauchery” and makes numerous references to “sexual deviancy”[6] - a pejorative
word for homosexuality. “Habitual debauchery”, as defined in the verdict, can
amount to merely practising consensual sexual relations between men.[7]
•
Charge of “contempt of religion”
Two of the accused,
Sherif Hasan Mursi Farahat and Mahmud Ahmad ‘Allam Daqla, faced an additional
charge of “contempt of religion” under Article 98 (f) of the penal code which
stipulates imprisonment for “exploiting religion (…) for extremist ideas with
the aim of provoking a conflict or of showing scorn or contempt for one of the
divinely revealed religions (…) or harming national unity or social peace”.
This charge was based on accusations
that Sherif Hasan Mursi Farahat allegedly saw prophetic visions which led him
to establish a religious group named “God’s Agency on Earth”. These visions and
religious ideas were allegedly further elaborated in written form as a book. He
was further accused of developing variant religious practices, most notably an
alternative manner of prayer. Alongside Sherif Hasan Mursi Farahat, Mahmud
Ahmad ‘Allam Daqla was accused of spreading these ideas, particularly in gay
meeting places, such as the Queen Boat. The prosecution alleged that
Sherif Hasan Mursi Farahat was using religion in order to “provoke a conflict
and cause confusion between citizens so that they become satisfied with
practising sexual deviancy and consider it normal...”[8].
On the basis of a
presidential decree on 28 June 2001 case number 182 of the year 2001/
Misdemeanours (Registrar number 655/2001) of the 52 alleged gays was tried
before the (Emergency) State Security Court for Misdemeanours in Cairo, an
exceptional court as established under emergency legislation[9] In the light of the serious
human rights violations that have been facilitated by emergency legislation,
Amnesty International has strong reservations about the continuation of the
state of emergency. In February 2000, Amnesty International asked the Egyptian
government to consider not renewing the state of emergency and to conduct a
review of the emergency legislation in order to bring it into line with
international human rights standards. The state of emergency was extended in
May 2000 without any review having been conducted. Amnesty International
recommends that while the state of emergency remains in force a number of
measures should be taken to minimize the risk of abuse (see Egypt: Muzzling
civil society [AI Index: MDE 12/21/00] for further details).. Contrary to
international standards for fair trial, people convicted in an (Emergency)
State Security Court for Misdemeanours do not have the right for any appeal or
review before a higher tribunal. According to Article 14 (5) of the ICCPR: "Everyone convicted of a
crime shall have the right to his conviction and sentence being reviewed by a
higher tribunal according to law."
Proceedings before this court not
only violate the fundamental right of the accused to appeal but also contravene
principles of the independence of the judiciary as its verdicts have to be
submitted to the Military Governor who ultimately decides whether to uphold or
quash the verdict or to order a retrial. Such interference by the executive
powers constitutes a flagrant violation of the UN Basic Principles on the
Independence of the Judiciary.
Lawyers of the Hisham Mubarak Law
Center[10], an Egyptian human
rights organization, have challenged the referral of this case by a presidential decree to the (Emergency) State
Security Court for Misdemeanours before the Administrative Court. They argued
that presidential powers to refer a case to court breach the independence of
the judiciary, as guaranteed under Article 165 and 166 of the Egyptian
Constitution.
Amnesty International has been
raising its concerns about the issue of unfair trials in Egypt for many years[11], most notably
those held in military courts and courts established under emergency
legislation. Trials before these courts violate fundamental requirements of
international law and standards for fair trial, as recognized by Article 14 of
the ICCPR. This includes the right to be tried before a competent, independent
and impartial court established by law and the right to a full review before a
higher tribunal.
On 14 November
2001, 23 allegedly gay men were sentenced to prison terms of between one and
five years by the (Emergency) State Security Court for Misdemeanours in Cairo;
29 others in the same trial were acquitted. Twenty-one men were convicted for
“habitual debauchery”, one for “contempt of religion” and another for both.
On 29 November, following
discussions on the ratification of the Euro-Mediterranean Association Agreement
between the European Union (EU) and Egypt, the European Parliament adopted a
resolution on the importance of Egypt resolving outstanding human rights
issues, making explicit reference to the case of the 52 alleged gays[12]. The resolution
provoked a written response to the President of the European Parliament from
the Speaker of the Egyptian Parliament, Fathi Surur, who rejected the view that
the men had been convicted for homosexuality. According to an article in the
semi-official newspaper Akhbar El-Yom on 1 December, Fathi Surur argued
that the men were convicted for “debauchery” and a lack of respect for
religions, emphasizing that Egyptian law does not make reference to “sexual
deviancy” - a pejorative word for homosexuality.
•
Conviction under charges of “habitual debauchery”
The case documents,
including the records of the investigations, the medical reports and the
verdict, leave no doubt that the men
have been convicted for having engaged in consensual sexual relations with
other men.
Convictions under the charge of
“habitual debauchery” were mainly based on three kind of evidence all of which
aimed to establish whether the men had had sexual relations with other men:
namely confessions of the accused; medical examinations; and photographs.
Confessions alone
were considered by the court sufficient evidence to lead to a conviction.
Medical examinations, which
allegedly found positive evidence of anal sex having been practised, alone led
to the conviction of many of the accused. For others, medical examinations
produced negative results; nevertheless, the court confirmed that such relations
had taken place on the basis of confessions by the accused themselves. On
numerous occasions, the court noted that anal examinations were not conclusive,
stating that “it is possible for an adult male to carry out penetrative sodomy[13] without that
leaving a trace, by using lubricants and extreme care and with consent between
the two parties”[14].
Some 800 photographs were presented
to the court by the prosecution as evidence. A substantial number were taken
from the house of the first defendant, Sherif Hasan Mursi Farahat, whose
conviction was based in part on photographs of naked men. The verdict accuses
him of having taken photographs featuring “naked boys and in sexual positions”.
At present, Amnesty International is not in a position to confirm or refute
accusations relating to these photographs allegedly featuring juveniles and
confiscated in the house of the defendant. Therefore, the organization has not
finalized its assessment of whether Sherif Hasan Mursi Farahat is a prisoner of
conscience.
As to the conviction of the 21 men
who have been sentenced to imprisonment
of up to two years on charges of
“habitual debauchery”, Amnesty International considers them prisoners of
conscience, solely detained for their actual or perceived sexual
orientation. Their imprisonment is in
disregard of the right to freedom from discrimination on the basis of sex,
which includes sexual orientation, as it is expressly recognized in Article 2
(1) of the ICCPR, to which Egypt is a state party.
“Each State Party to the present
Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.”
In 1994, the UN
Human Rights Committee noted that reference to sex in the non-discrimination
clauses of the ICCPR include “sexual orientation”, thereby affirming that the
rights set out in the ICCPR cannot be denied to any individual because of their
sexual orientation[15].
•
Conviction under charges of “contempt of religion”
On the charge of
contempt of religion, the court sentenced Sherif Hasan Mursi Farahat to a
maximum five year sentence in addition to three years of police supervision
following his release on the basis of both charges of “habitual debauchery” and
“contempt of religion”. Mahmud Ahmad ‘Allam Daqla was convicted solely for
“contempt of religion” and sentenced to a three year prison term.
The conviction of the two men on the
basis of Article 98 (f) is a clear violation of the rights of the accused to
freedom of thought, conscience and religion, as set out in national and
international law. Article 18 of the ICCPR states:
“(1). Everyone shall have the
right to freedom of thought, conscience and religion. This right shall include
freedom to have or to adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and teaching.
(2). No one shall be subject to
coercion which would impair his freedom to have or to adopt a religion or
belief of his choice.
(3). Freedom to manifest one's
religion or beliefs may be subject only to such limitations as are prescribed
by law and are necessary to protect public safety, order, health, or morals or
the fundamental rights and freedoms of others.
The right to freedom of conscience
and religion is also guaranteed under Article 8 of the African Charter on Human
and Peoples’ Rights.
Amnesty International has repeatedly
raised concerns about Article 98 (f) of the penal code which prescribes prison
sentences of a minimum of six months and a maximum of five years for “contempt
of religion”. This vaguely-worded article has been used as the legal pretext
for the imprisonment of prisoners of conscience. Some people have been
sentenced for the publication of materials discussing religious issues, whilst
others have been imprisoned because their religious practice has been
considered a criminal offence. Over the
last three years, at least 26 people have been sentenced under Article 98 (f)
for “exploiting religion for extremist ideas” to imprisonment of up to five
years , though none of them has used or advocated the use of violence.
Amnesty International believes that
Sherif Hasan Mursi Farahat and Mahmud Ahmad ‘Allam Daqla have been convicted
under charges of “contempt of religion” for the non-violent expression of their
real or allegedly held beliefs. Amnesty International considers Mahmud Ahmad
‘Allam Daqla a prisoner of conscience. The organization considers Sherif Hasan
Mursi Farahat a prisoner of conscience in relation to his conviction on the
charge of “contempt of religion”. However, in the light of the aformentioned
photographs, the organization has not finalized its assessment of whether
Sherif Hasan Mursi Farahat is a prisoner of conscience.
[1] For further information, please refer to Egypt: Torture remains rife as cries for justice go unheeded (AI Index: MDE 12/001/2001); Egypt: Women targeted by association (AI Index: MDE 12/11/97); and Egypt: Indefinite detention and systematic torture: the forgotten victims (AI Index: MDE 12/13/96).
[2] Under Article 151 of the Egyptian Constitution, international treaties such as the Convention against Torture, ICCPR and the African Charter on Human and Peoples’ Rights became part of domestic legislation after they had been signed by the President of the Republic, ratified by parliament, and published in the official law gazette.
[3] The Human Rights Committee has also stressed that “all persons arrested must have immediate access to counsel.” (Concluding Observations of the Human Rights Committee: Georgia, UN Doc. CCPR/C/79/ Add.74, 9 April 1997, para. 28)
[4]Amnesty International expressed similar concerns about documents having been leaked to the media during the early days of investigations into the case of the Ibn Khaldun Center for Development Studies (Egypt: Imprisonment of human rights defenders, June 2001, AI Index: MDE 12/016/2001).
[5]In previous public statements by Amnesty International on the case the broader term of “immoral behaviour” has been used instead of “debauchery” to express the Arabic “fugur”. See Amnesty International joint statements on the case: Concerns over detention of alleged gays (8 June 2001, AI Index MDE 12/015/2001 - News Service Nr. 100); Release child imprisoned for sexual orientation (30 October 2001, AI Index MDE 12/029/2001- News Service Nr.191); and Verdict due in unfair trial of 52 men prosecuted for alleged sexual orientation (12 November 2001, AI Index 12/030/2001 - News Service Nr. 197).
[6]The Arabic word “shudhudh” denotes “sexual deviancy”.
[7]According to the verdict, “habitual debauchery”, under Law 10 of 1961, has three key elements: firstly, that “debauchery” has been practised between men; secondly, that the physical act is carried out in full knowledge of the absence of a legal bond, without discretion or consideration of remuneration; and finally, this act must have been practised on more than one occasion.
[8] Quoted from the verdict (page 7).
[9] The state of
emergency has been renewed repeatedly since its re-imposition on 6 October
1981, following President Anwar al-Sadat’s assassination. Amnesty International
believes that emergency legislation has brought about a deterioration in the
enjoyment of human rights and has resulted in an increased risk of human rights
violations in Egypt. Amnesty International is concerned that under the
Emergency Law some basic provisions of the ICCPR have been violated, including
Article 14 (fair trial).
The Human Rights
Committee has also expressed concern about “the existence in Egypt of many
special courts, such as the military courts whose functioning would suggest
that they are subordinate to the head of the executive branch, since some
provisions of the Act on the State of Emergency authorize the President of the
Republic to refer cases to the State security courts and to approve the
decisions handed down.” (Concluding observations of the Committee against
Torture : Egypt. 12/06/94. A/49/44, para. 88)
Furthermore Amnesty
International believes that emergency legislation has been used to place
impermissible restrictions on other rights, including the right to freedom of
thought (Article 18), expression (Article 19) and association (Article 22),
thereby constituting further violations of Egypt’s obligations under the ICCPR.
[10] Lawyers of the Hisham Mubarak Law Center defended several of the accused in this trial.
[11] For further information, please refer to Egypt: Imprisonment of human rights defenders (AI Index: MDE 12/016/2001); Egypt: Muzzling civil society (AI Index: MDE 12/21/00); Egypt: Indefinite detention and systematic torture: the forgotten victims (AI Index: MDE 12/13/96); and Egypt: Military Trials of Civilians (AI Index: 12/16/93).
[12] European Parliament Resolution 29 November 2001, Association Agreement with Egypt (B5-0740/2001): European Parliament resolution on the conclusion of an Association Agreement with Egypt.
[13] The Arabic word “liwat” has been translated as “penetrative sodomy”.
[14] Quoted from the verdict (page 9). This quotation refers to one of the accused; similar remarks are made with regard to several other accused.
[15] Human Rights Committee, Toonen v. Australia (Views on Communication, No. 488/1992, adopted 31 March 1994)