Detention Without Judicial Review; Trials Lacking Appeal Rights
(New York) – President Mohamed Morsy of Egypt should reverse the emergency powers he issued on January 27, 2013, Human Rights Watch said today. The emergency powers give the police the authority to detain people in three cities for up to 30 days without any judicial review, and permit trials of those detained before emergency security courts. Judicial review of detention is a fundamental right that may not be removed, even during emergencies.
On January 28 the Shura Council, Egypt’s partially elected upper house, passed a law that would give military officers the right to arrest civilians, which would therefore give them the right to bring civilians before military courts. The law will come into force after ratification by the President and publication in the official gazette which is yet to occur. President Morsy should order an end to military trials of civilians and instruct Egyptian military commanders to bring all civilians they arrest before civilian courts, Human Rights Watch said.
“The government has the duty to take reasonable steps to protect security, but this knee-jerk response granting the police excessive powers is certainly not the answer,” said Joe Stork, deputy Middle East director at Human Rights Watch. “What is glaringly missing are orders to the police and military to exercise restraint in their use of force and to warn that all official abuses will be punished.”
President Morsy’s January 27 state of emergency was for 30 days in three cities – Port Said, Suez, and Ismailia – after two days of clashes between the police and protesters left over 50 dead. While the geographic and time limits of the state of emergency are an improvement over the previous indefinite nationwide emergency law, the powers granted under the new emergency law are excessive and violate non-derogable rights – rights that may not be taken away, Human Rights Watch said. Under Law 162 of 1958, which has been brought back into force by Morsy’s decree, authorities may arrest people without warrants and detain them for up to 30 days without judicial review.
The clashes over the past three days in Port Said, in response to a court verdict sentencing 21 people to death, have left at least 2 policemen and 37 protesters dead. In Suez eight people were killed after police used excessive force in response to the shooting of a police officer.
Over the past two years, Human Rights Watch has documented numerous occasions in which riot police and military police alike have repeatedly used excessive force and used non-lethal weapons unlawfully when policing protests, injuring and killing over 1,000 protesters. There has been no reform of the security sector and no accountability for these abuses, giving security forces the impression that they are not accountable, Human Rights Watch said.
Law 162 of 1958 also allows for trials before Emergency State Security Courts, which former President Hosni Mubarak’s government used for swift politicized trials since emergency court decisions may not be appealed. Article 75 of the recently passed constitution states that “trial before exceptional courts are prohibited,” in theory making articles 7 to 20 of the emergency law unconstitutional.
Under international law nations may declare a state of emergency when there is a “public emergency that threatens the life of the nation.” This declaration must be temporally and geographically limited to the greatest extent possible. Every derogation from international human rights law must be justified in terms of necessity and be proportionate. The United Nations Human Rights Committee’s General Comment on article 4 (on states of emergency) of the International Covenant on Civil and Political Rights, to which Egypt is a party, states that:
States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of … peremptory norms of international law, for instance through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence…In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.
Other key rights are also non-derogable during a state of emergency, including the right to life, the prohibition of torture, and the principle of legality in criminal law. The imposition of the emergency law in Egypt has historically invited police abuse because it allowed the police to detain people for up to 45 days without ever seeing a prosecutor. In a case before the European Court of Human Rights, the court found excessive Turkey’s detention of a person for 14 days without judicial review during a declared state of emergency. A country may not suspend the right to judicial review of detention even in emergency, Human Rights Watch said.
On January 28, the cabinet approved and the Shura Council passed amendments to Law 107 of 2012, which President Morsy had issued on December 9, 2012. Following a court order voiding earlier elections to Egypt’s lower house, the Shura Council alone exercises legislative functions. The December 9 law authorized a military role in law enforcement during the constitutional referendum.
The amendments extend the law, allowing the military to deploy and carry out arrests whenever the National Defense Council brings the law into force. The council’s membership, set out in article 197 of the constitution, consists of seven senior military leaders sitting with the president and key cabinet ministers.
Over the past two years, since the departure of President Mubarak, the military has exercised law enforcement activities over civilians on a number of occasions. When military officers have arrested civilians, they normally have considered the fact that the military carried out the arrests sufficient grounds to bring those detained before military tribunals. A cabinet source told Reuters on January 28 that the army would “behave like a police force” and would therefore hand civilians over to civilian courts. Human Rights Watch’s analysis of Law 107, however, concluded that it did not protect civilians from trial before military courts, because article 3 specifies that the law was “without prejudice to the jurisdiction of the military justice system.”
“Unless the law is amended to specifically limit the jurisdiction of the military justice system to purely military offenses, civilians may still be taken to military courts whenever the military feels like it,” Stork said.