January 31, 2011

V. Why Most Torture Cases Never Reach Court

What happened to me is pretty normal, it's happened to a lot of people I know but they are either too scared to make a complaint or they don't believe they will be able to get their rights (hakkuhum) and would rather just try to avoid this happened again. I saw on television, on El 'Ashira Masa'an, that some people manage to get their rights, I heard about that case in Alexandria. And that's why I want to pursue this until I get my rights.[132]
-Ahmad Mustafa, torture victim, Cairo, July 2010

There are a number of reasons why most torture cases do not reach court. These include Egypt's inadequate legal framework, which does not properly criminalize torture or provide sufficiently strong penalties; prosecutorial discretion to close investigations; intimidation of victims and witnesses; delays and poor quality of forensic medical examination; conflicts of interest in relying on the police for evidence; drawn out investigations; failure to conduct impartial investigations; and impunity for state security officers. These are explored below.

Inadequate Legal Framework

Article 42 of Egypt's Constitution provides that any person in detention "shall be treated in a manner concomitant with the preservation of his dignity" and that "no physical or moral (m`anawi) harm is to be inflicted upon him."[133] The penal code has three main provisions that prosecutors can use to charge members of the police force in cases of alleged torture and ill-treatment: article 126, which criminalizes torture; article 129 on the use of force; and article 282, which specifies a sentence of hard labor "in all cases, [for] anyone who unlawfully arrests a person and threatens to kill him or subject him to physical torture."[134]

Egypt's penal code recognizes torture as a criminal offence in article 126, although the definition of torture falls far short of the international standard. Article 126 states:

Any public servant or official who orders, or participates in, the torture of an accused person with a view to inducing him to make a confession shall be punished by imprisonment at hard labor or a term of 3 to 10 years in prison. If the victim dies, the penalty shall be that prescribed for premeditated murder.135

This definition excludes elements covered in article 1 of the Convention against Torture, such as situations when "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." Furthermore, article 126 limits torture to physical abuse, when the victim is "an accused," and when torture is used to coerce a confession. While confessions are frequently the object of torture, Egyptian security forces also use torture to punish and/or intimidate victims. In addition, this narrow definition improperly excludes cases of mental or psychological abuse, and cases where the torture is committed against someone other than "an accused"-for example, persons being questioned as potential witnesses. 

The penal code also fails to treat seriously certain categories of abuses by officials, classifying them as misdemeanors instead of crimes. The penal code divides crimes into three categories: contraventions (mukhalafat), punishable by a fine of less than EGP 100 (US$17); misdemeanors (junha, pl. junah) punishable by a fine of more than EGP100 or jail term; and felonies (jinaya, pl. jinayat) punishable by either prison, prison with hard labor, or the death penalty.[135] The law classifies torture and "assault leading to death" as felonies, and other offenses, such as arrest without legal grounds (article 280) and the use of cruelty by officials (article 129), as well as some categories of assault, as misdemeanors.[136] A criminal court (mahkama al-jinayat) composed of three judges hears all felony cases.[137]

The penal code also fails to provide for the effective punishment of law enforcement officials found responsible for torture and ill-treatment.[138] Article 129 of the penal code states that any official "who deliberately resorts, in the course of duty, to cruel treatment in order to humiliate or cause physical pain to another person shall be subject to a penalty of up to one year's imprisonment or a fine of up to EGP200 [US$34]." The Court of Cassation defined (in 1944 and 1952 rulings) cruelty as consisting of physiological and psychological ill-treatment in addition to physical ill-treatment and stated that it did not necessarily lead to visible injuries.[139]

A charge of assault leading to death under article 236 of the penal code carries a maximum penalty of three to seven years in prison, possibly with hard labor. Like other provisions regulating assault, article 236 does not differentiate between offenders: the punishment is identical whether the offender is a citizen or a public official. Only offenders "implementing terrorist aims" are, following the 1992 counter-terror amendments to the penal code, singled out for considerably harsher punishment for assault, and punished by "a term of hard labor or prison …, and if this was done with premeditation, the punishment will be hard labor, either for life or temporary."[140]Article 280 of the penal code also provides inadequate penalties regarding illegal detention, and article 282 punishes torture during illegal detention with temporary hard labor.

The penal code does state that superior orders are not a defense and Egyptian courts have recognized that torture is a manifestly illegal act. According to article 63 of the code: "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 he believed he was under an obligation to follow it or if he, in good faith, commit an act according to the law, to what he believed to be his sphere of authority." The Court of Cassation interpreted this article in a May 27, 1931 ruling: "the acts of which the defendants stand accused would be manifestly illegal; and that the average man could not assume that this would be a legitimate command from their superiors because it crosses all bounds and harms human dignity."[141]

Despite consistent criticism from Egyptian and international human rights organizations over the years, the government has defended this legal framework as adequate, saying that the "judicial application" of these penal provisions, "in accordance with the jurisprudence of the Supreme Court," "punishes torture carried out by a member of a public authority or by an individual whether during the arrest, confinement or imprisonment of a person in the legally prescribed circumstances or otherwise."[142] Yet even the National Council for Human Rights finds that the Egyptian legal framework "is full of loopholes also enables culprits [to] escape punishment."[143]

The faulty definition of torture was one of the concerns that several Human Rights Council member states raised in their interventions during Egypt's Universal Periodic Review (UPR) in February 2010. Significantly, Egypt had included a pledge in its November 2009 national report that it would "review the definition of torture in Egyptian law in order to ensure consistency with the Convention against Torture"and accepted a number of these recommendations in the February session.[144] Yet on February 15, 2010, a few days before the UPR session and three months after the government had submitted the national report, the Legislative Committee of the People's Assembly, which is dominated by the ruling National Democratic Party, rejected Muslim Brotherhood MP Hassan Ibrahim's proposal to amend articles 126 and 128 of the penal code. The proposal called for harsher sentence for torture and for revising the definition. Ibrahim told Al-Masry al-Youm,"I presented this proposal four years ago and the government kept saying that it was still studying the matter."[145] 

In June 2010 government officials told Human Rights Watch they are currently preparing a plan of action for implementing the UPR recommendations, but the government had yet to make public any details in this respect at time of writing.[146]

Under the Convention against Torture, a state is "obligated to eliminate any legal or other obstacles that impede the eradication of torture and ill-treatment."[147] The Committee against Torture, the body of international experts who review state compliance with the convention, has found that "inadequate legislation which in practice allows room for the use of torture may also add to the systematic nature of this practice."[148]

Absolute Prosecutorial Discretion to Close Investigations

Articles 63 and 232 (2) of Egypt's Code of Criminal Procedure give the Office of the Public Prosecutor exclusive authority to investigate allegations of torture and ill-treatment, even in the absence of a formal complaint, to bring charges against police and SSI officers, and to appeal court verdicts.

Prosecutors have full discretion to decide whether to transfer a case to court, or to close an investigation formally by putting a case on file (hifz)after determining there are no grounds to institute proceedings (la wajh li-iqamat ad-da'wa).

There are a number of reasons to do this, and article 805 of the Instructions to the Niyaba lists the factors most frequently encountered in Human Rights Watch's review of cases relating to torture and death in custody cases:

  • Inability to identify the perpetrator;
  • Insufficient evidence;
  • Non-relevance of the complaint.[149]

In torture cases, prosecutors may not close the investigation unless they have completed an initial examination of the evidence and summoned the victim or his/her family or lawyer to hear their testimony.[150] Closing a case without conducting this initial determination occurs rarely, and when it does, lawyers can appeal the decision to ensure that the prosecutor at least conducts an initial investigation. For example, the prosecutor immediately put the investigation on file in the 2007 complaint of the torture and sexual assault of Kamal Kamel by police after he was arrested on charges of "habitual debauchery." Kamel's lawyers then appealed the decision to the prosecutor's superiors and the investigation re-opened, although Kamel eventually withdrew the complaint due to police pressure exerted on him and his family.[151]

Under articles 210(1) and 232(2) of the code of criminal procedure, persons filing complaints against police for torture or ill-treatment do not have the right to appeal any decision by the prosecutor's office to an independent judicial body. They can only appeal against the administrative decision to close an investigation by lower-level prosecutors to their superiors; the public prosecutor makes the final decision. For complaints against abusive officials, the only way to change the decision and re-open the investigation is to appeal to more senior niyaba members.[152] Victims have to follow the same procedure if the niyaba investigated a complaint and then decided to close the file: the appeal is to a more senior niyaba level.[153] The public prosecutor must make this decision within three months after the appeal is filed, and is final.[154] If the public prosecutor decides to keep the file open, he refers the case to a different local prosecutor for reinvestigation.[155] 

The niyaba must communicate any decision not to sustain a complaint to the complainant, albeit not in a specified time frame.[156] However, in practice the prosecutor rarely communicates this decision, and lawyers must physically visit the prosecutor's office on a weekly basis until a decision is made in the case.[157]

Prosecutors' absolute control in deciding which cases reach court, and their lack of independence from the executive, has led a number of Egyptian lawyers to call for the reinstatement of the post of the investigative judge, so that an impartial party conducts the initial investigation into torture allegations. The government's position is that the niyaba is an independent institution that fully and impartially investigates every complaint. 

Intimidation of Victims and Witnesses

One of the main factors contributing to impunity for torture and ill-treatment in Egypt is fear of reprisals and intimidation by police, which leads victims or their families to either withdraw a torture complaint, or decide against filing one altogether.

Human Rights Watch has documented systematic attempts by officials to pressure or convince families to withdraw complaints and settle with perpetrators. Maha Youssef, a lawyer who works at the Nadim Center for the Rehabilitation of Victims of Torture, told Human Rights Watch that most people whose torture cases the center encounters are too afraid to submit complaints because they fear for their safety. As a result, she said, many people who come to the center choose not to pursue a criminal case.[158] Sayed Fathy, another human rights lawyer from the Nabil Hilaly Centre, said:

We've now got to the stage where people believe that it's not worth trying to take on the government. It's common to hear people saying 'there is no shame in being beaten by the government' (darb al-hukuma mish 'eib) and they would rather avoid problems and not make a complaint. [159]

In conversations in Egyptian dialect, people refer to the police as "the government," which solidifies the impression the two are synonymous, and that police are not accountable to a higher authority.

A judge who was a prosecutor for 10 years told Human Rights Watch:

…it's very common for the police to threaten and intimidate families into giving up complaints. This is especially common in the countryside and in Upper Egypt and it can get to the stage where the police will detain members of their family to force them to withdraw the complaint.[160]

In its first annual report, the NCHR noted that 54 percent of all complaints received in 2004 (a total of 4850) had arrived by mail, which the report said was not only due to geographic distance and the cost of travel, but "fear of repercussions and endangering the safety of the complainants themselves if they were to come to the council in person, such as their arrest or harassment by the agencies and officials they are accusing."[161]

Police also commonly intimidate or retaliate against witnesses who step forward to give testimony. In most cases, witnesses are also detainees, whom police can easily pressure into remaining silent or force to retract their testimony while in custody or after release. The opportunity for police to intimidate witnesses and the victim's relatives is heightened by long delays between arrest and the start of investigation in an alleged torture case, as well as the relatively long time that an investigation takes, with torture cases potentially lasting up to one or two years.In addition, the centrality of witness testimonies in police abuse cases makes witnesses vulnerable to police pressure and reprisals. "Two of the main reasons that cases don't reach court is that the police pressure the family into settling or intimidate witnesses into changing their testimonies," Mahmoud Kandil, an independent human rights lawyer, told Human Rights Watch.[162]

In the case of the fatal beating of Khaled Said in 2010, one of the key witnesses, Haitham Misbah, told Human Rights Watch that initially only he, his father, the doorman of the building where Said was beaten and a friend of Khaled's who was standing outside were willing to testify out of dozens of people present.He said:

I spent days trying to convince people to go and testify, but everyone was too scared. Especially because after the incident, officers from Sidi Gaber police station came to our area and indirectly threatened people not to cause trouble. Everyone was scared that the same thing could happen to them if they reported what had happened. People were only reassured after the Alexandria appeals prosecutor came to the area and encouraged people to testify and assured them that he would guarantee their protection.[163]

In the end all four testified in court on October 23, in addition to a further seven witnesses who came forward.

An uncle of Fadl Abdullah, who died in custody in Dir Miwas police station in Minya on March 31, 2010 (see below), echoed the difficulties of getting witnesses to testify:

There were other people detained along with Fadl in the police station who saw what had happened, but when we tried to get them to go and testify in front of the prosecutor they told us the officer had threatened to create a drugs or illegal possession of weapons case to imprison them. We eventually managed to convince them and the prosecutor assured them of his protection and five of them agreed to testify. But even their testimony won't be enough without a medical report confirming their story. [164]

The police will often pressure families into "reconciliation" (sulh/tasaluh) out-of-court settlements, which prosecutors will accept as grounds to close an investigation, though only on an informal basis since Egyptian law does not allow for reconciliation with felonies such as torture. According to Taher Abul Nasr, a human rights lawyer who specializes in torture cases at the Nadim Center:

…Pressure on the families to reconcile is another of the problems in torture cases. The complainant will tell the prosecutor that they've decided to withdraw the complaint and the prosecution will close the investigation. I've seen prosecutors put down reasons like "out of consideration for the accused's career, the disciplinary measures [of the ministry of interior] will be considered sufficient punishment."[165]  

 "Reconciliation" is possible in most areas of the law, excluding felonies like murder and assault leading to death, but including misdemeanors (junah) where the maximum penalty would be jail term or a fine of not more than EGP100 (US$17).[166] In practice, "settling" a case involving a torture complaint entails the implicated officer paying monetary damages directly to the aggrieved party, who in turn withdraws the complaint against the officer. If the case is still under investigation, withdrawal of a complaint stops niyaba proceedings.[167]

One reason why intimidation effectively scares off complainants is because they know how easy it is for officers to detain them on trumped-up charges. They also know how painful detention will be, even if it is only for a few days, because of the likelihood of torture. This is particularly the case when detainees are expected to report a complaint of torture whilst still in the custody of law enforcement officers.

The 2007 case of Shadi Maged Zaghloul, 26, a microbus driver and fourth-year law student at Cairo University, illustrates the vulnerability of detainees. Zaghloul said:

The prosecutor asked me about the bruises on my face. When I told him [the three officers] had hit me and I wanted to make a complaint that they had beaten me, he ordered a medical examination. After that the police took me back to the station. This is when they hit me for over an hour, until I almost fainted. There were three of them: two doing the beating and one officer supervising. They hit me with wooden batons on my back and on my legs, they hit me with a hose. They tied my hands together beneath my knees, put a stick and hung me. They hit me every day for 10 days. They wanted me to withdraw the complaint I'd made to the prosecutor. [168]

On October 24, 2007, Zaghloul's family filed a complaint before the Sixth of October prosecutor, saying police were beating him. That day, the prosecutor summoned him to his office. When Zaghloul told him what had happened, the prosecutor ordered an immediate medical examination, but the officers took Zaghloul back to the police station and kept him there for an additional three days, only taking him to the forensic doctor on October 28. Zaghloul's pre-trial detention came up for review on October 31 and the judge ordered his release on bail. After his release, Zaghloul said he started receiving threatening messages on his mobile phone telling him to withdraw the complaint or his family-whom he had already relocated for their safety-would suffer. On March 10, Zaghloul decided to file a complaint about the threats with the Sixth of October prosecutor, accompanied by his wife and three-month-old daughter. The prosecutor recorded the phone numbers from which Zaghloul had received the threatening messages. Zaghloul said:

On my way out of the prosecutor's office, three uniformed officers arrested me and my wife and my child and took us to the police station where I had been tortured. They detained us for four days to force me to withdraw the complaint, and I was very worried about my wife and child. So on the fourth day I agreed and one of the officers took me to the prosecutor's office where I said I wanted to withdraw the complaint. The prosecutor asked me at the time if I was being pressured but I said no and that I just wanted to end the process. After that I went back to the police station and they let me take my wife and child home.[169]

On April 5, 2009, Zaghloul went back to the public prosecutor and filed a complaint that he had been forced to withdraw his complaint under threat. He told Human Rights Watch that "at this stage, lawyers of the officer contacted me offering me EGP10,000 (US$1,728)to withdraw the complaint and settle the case but I refused." His torture complaint was reinstated and the case reached court on December 7, 2009, as a misdemeanor. After five sessions, the court convicted the officer of using force and sentenced him to a month in detention and a fine of EGP200 (US$34).

In an earlier case, 'Imad al-Kabir told Human Rights Watch that after the Al Fajr newspaper had reported the story of his torture and sexual assault in December 2006, he received several calls to his mobile phone threatening him and his family if he did not remain silent. On December 12 Egypt's semi-official newspaper Al-Ahram ran a brief story correctly reporting that al-Kabir had disavowed the account published in Al-Fajr and intended to sue the paper for publishing the story. The following day, however, with the encouragement of human rights lawyer Nasser Amin, al-Kabir explained to a prosecutor that he had retracted his story in response to the threats and that he wanted the prosecutor to protect him and to press charges. The prosecutor promptly opened an investigation and later transferred the case to court.[170]

More recently, Ahmad Mustafa, who was arrested, tortured, and brought before a prosecutor in January 2010, described similar intimidation after he complained to the prosecutor about being beaten.

The officers started to threaten me, saying "we will keep you detained and you'll never see the sun again. You're under our control, we won't let you go until you take back what you said to the prosecutor." Later, after they released me, I received a number of phone calls from officers from the Masr Gedida police station. One of the officers who called me said he wanted to mediate and told me, "There's no need to get the niyaba involved in this, it was a mistake, they didn't mean anything," and wanted me to withdraw the complaint from the niyaba. I refused to withdraw it because I want to get my rights back.[171]

Blogger Mohamed al-Sharqawi told Human Rights Watch that after his arrest on May 25, 2006, his captors beat him for hours and then raped him with a cardboard tube at the Qasr al-Nil police station before transferring him to the State Security Prosecutor's office in Heliopolis. Al-Sharqawi, who had before this incident campaigned against torture and other human rights abuses at street protests and in his personal blog and media interviews, told Human Rights Watch that an officer he recognized as having been present when he was abused in custody was stationed below his apartment after the incident and that unidentified men have come to his door to see if he was home and ask if he lives alone. Around 7 p.m. on March 10, 2007, he came home to find his laptop, which he said contained a new, unreleased video of police abuse, missing. Though cash and other valuables were lying around the apartment, nothing else was taken. After this, al-Sharqawi decided not to sleep at home. Al-Sharqawi's lawyers said they filed three written requests with the public prosecutor, Mohamed Faisal, to investigate his allegations of torture, and al-Sharqawi told Human Rights Watch that he himself repeatedly told the prosecutor he had been tortured in custody but that the prosecutor closed the investigation, claiming lack of evidence[172]

Egyptian law punishes using force against a witness to prevent him or her from testifying or falsifying testimony.[173] It likewise provides for a prison term of up to two years if a person threatens another party, either directly or indirectly (relying on a third party).[174] The government claims that witnesses can request police protection from coercion of this kind.[175] These provisions might be effective to protect witnesses and complainants in civil suits, or in criminal suits involving other citizens, but they do not adequately protect witnesses or complainants from police abuse. Egyptian human rights lawyers have repeatedly called for the establishment of a judicial police that would guarantee enforcement of judicial decisions, like niyaba release orders, and protect witnesses and complainants.

The Convention Against Torture states in article 13 that "steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given."[176] The Committee against Torture has asserted that states must "ensure the right of victims of torture to lodge a complaint without the fear of being subjected to any kind of reprisal, harassment, harsh treatment or prosecution, even if the outcome of the investigation into his [sic] claim does not prove his or her allegation."[177]

For this reason, international guidelines on investigating torture require that officials implicated in torture be removed from positions of control or power over witnesses. According to the Istanbul Protocol:

Those potentially implicated in torture should be removed from any position of control or power, whether direct or indirect over complainants, witnesses and their families as well as those conducting investigations. Investigators must give constant consideration to the effect of the investigation on the safety of the person alleging torture and other witnesses. [178]

Delays and Poor Quality of Forensic Medical Examination

Human rights lawyers who work on torture cases have repeatedly affirmed the centrality of obtaining a medical report detailing injuries, their cause, and confirming that they were sustained during the period of detention in order for the niyaba to bring the case to court. 

Only the niyaba can order a forensic medical examination by a medical doctor at the Justice Ministry's department of forensic medicine, and courts do not accept ordinary medical certificates from hospitals in cases where the accused is a public official. If the initial medical investigation determines that there are no signs of any abuse, defense lawyers can ask the prosecutor to order a second medical investigation by a committee of three forensic doctors. The prosecutor has full discretion to decide whether or not to grant this request. It can take forensic medical doctors between two and six months to issue each report, although this can be shortened to a few weeks in exceptional and highly publicized cases.

In cases where torture victims are still in detention, forensic reports often do not find evidence of torture or ill-treatment because police try to postpone-often by several days-a prosecutor's order to bring the complainant to a forensic medical doctor for examination. Aida Seif el Dawla of the Nadim Center for the Rehabilitation of Victims of Torture, who was recently short-listed for the position of UN special rapporteur on torture, told Human Rights Watch that this is enough time for bruises to fade-especially in cases involving beatings.[179] As the Committee against Torture has noted: "promptness is essential…because in general, unless the methods employed have permanent or serious effects, the physical traces of torture, and especially of cruel, inhuman or degrading treatment, soon disappear."[180] The Human Rights Committee has said that medical examinations should be "automatically provided following allegations of abuse."[181]

This is particularly evident with cases before state security courts, where defendants are typically detained incommunicado for up to several months before seeing a prosecutor, who then orders a forensic investigation that takes place several weeks after the end of the torture.[182] In the Zeitoun case, defendants who said they had been tortured only saw a forensic doctor three months after the alleged torture had taken place; the doctor's reports said that he had found no physical traces to prove that torture had taken place.

On May 25, 2006, SSI officers arrested Mohamed al-Sharqawi and took him to Kasr El Nil police station where they beat and raped him. When his lawyers saw him at the prosecutor's office late that night, they immediately asked that he receive a forensic medical examination and treatment for his injuries, which one lawyer described as the worst case of police abuse that he had seen in 12 years. The prosecutor refused this initial request, but noted al-Sharqawi's injuries. Al-Sharqawi only saw a forensic medical doctor four days later.[183]

In the case of Shadi Zaghloul, discussed above, it took police three days to comply with a prosecutor's order for him to have a medical exam after a mabahith officer beat and kicked him on October 14:

My face was full of bruises left eye was shut. The prosecutor asked me about the bruises on my face and when I told him they had hit me and I wanted to make a complaint that they had beaten me, he ordered a medical examination. But the officers didn't take me to the forensic doctor until October 17, by which time a lot of the bruises had faded.[184]

Delays in issuing the medical report significantly slow down the investigation, and are largely due to the bottleneck created by the very small number of forensic doctors authorized to produce the reports. In an interview with Al-Masry al-Youm, Dr. Ayman Foda, former head of the Ministry of Justice's department of forensic medicine, explained:

In 1980 there were around 32 forensic pathologists… and now there are around 71 in the whole of the country [out of a population of some 79 million people]. The department itself can house 96 doctors but it's never been at full capacity because many of them are seconded to Arab countries where they earn between 35-40,000 Egyptian pounds (US$5,800-6,9000) per month… Every year, the department receives between 30-32,000 cases. This is a huge quantity, and means each doctor has to handle an average of 65 cases per month, which is why I believe the Department of Forensic Medicine needs fundamental restructuring.[185]

For this reason, Egyptian human rights lawyers who work on torture cases argue that torture victims should be allowed to obtain medical certificates from hospitals, as they would in a case involving violence between two private citizens. At present, when a public official is accused of abuse, prosecutors only accept a report by the Forensic Medical Authority, adding to the centralization of procedure and decision-making in the hands of the niyaba.

Another problem is the limited extent to which forensic medical doctors are able to operate independently, without pressure from the police or other parties. As part of the ministry of justice, they are not independent of the government, nor are they afforded protections from potential reprisals by the police. As a result, some medical doctors feel very vulnerable.[186] The UN Human Rights Committee has said that states must "have suspects examined by an independent doctor as soon as they are arrested, after each period of questioning and before they are brought before the examining magistrate or released."[187] The special rapporteur reiterated this in his report on a visit to Turkey in 1999, in which he wrote that medical personnel conducting medical examinations:

…should be independent of ministries responsible for law enforcement or the administration of justice and be properly qualified in forensic medical techniques capable of identifying sequelae of physical torture or ill-treatment, as well as psychological trauma potentially attributable to mental torture or ill–treatment.[188]

There are also concerns about the quality of forensic medical reporting and the extent to which it complies with international guidelines to ensure impartiality and thoroughness. In the case of Khaled Said, whom officers beat to death on an Alexandria street in June 2010, the first medical report, published on June 10, claimed that he died of asphyxiation and did not mention other injuries. On June 15, Public Prosecutor Abd al-Meguid Mahmoud ordered the investigation reopened and transferred the case to the Alexandria appeals prosecution unit. He ordered officials to exhume Said's body and appointed three doctors to conduct a new forensic investigation. The prosecutor made public this second forensic medical report, confirming the cause of death as asphyxiation, on June 23. However, the second medical report also reported a number of injuries on Said's body and concluded that there was "nothing to prevent the injuries from having occurred as a result of beating during the arrest of the victim."[189] An independent assessment of the June 10 and June 27 forensic reports by the heads of two international institutes of forensic medicine found that:

The report of the first autopsy, performed on 7th June 2010 reveals that it did not comply with the minimum international standards for forensic autopsies and that there were numerous significant deficiencies…. The supposedly compelling diagnosis of death by asphyxia is not sufficiently supported by the data provided, and most of the aspects described, such as cyanosis or congestion, are non-specific and inconclusive on their own…

It added that the second report was "a little more careful," but had "the same weaknesses and deficiencies as the first, and is much beneath the minimum international standards acceptable for forensic autopsies."[190] This, it said, was "even more perplexing and significant" given that it was a second opinion that "seeks to prove the facts described in the first and compensate for its manifest inadequacies."[191]

Conflict of Interest: Relying on Police for Evidence

Another factor underlying Egypt's persistent failure to investigate and punish acts of torture by law enforcement officers is the conflict of interest that arises from placing the responsibility to monitor detention facilities, order forensic exams, and investigate and prosecute abuses by law enforcement officials within the same office that is responsible for ordering arrests, obtaining confessions, and prosecuting criminal suspects.

A former prosecutor, who wished to remain anonymous, told Human Rights Watch:

The other problem is that the niyaba does not do the investigations (tahareyaat) itself, it relies on the police. It's not the prosecutor's job to look for the evidence, unless they take a personal interest in it. The prosecutor is usually much too overloaded to question the evidence presented by the police. It's the police that bring the witnesses and the evidence. So if I order the police to go and summon a witness and they come back saying they couldn't find him or he no longer lives there, there's not much I can do about it. Plus they can always tamper with the evidence or pressure witnesses to change their testimony.[192]

A judge who was a prosecutor for 10 years agreed:

One of the main problems in cases of police abuse that don't reach court is that the gathering of evidence (tahareyat) is not done by a neutral party. This is why we need a judicial police. In places like Imbaba where there is a lot of crime, all the investigations by the police conclude that "there is no truth to the allegations of abuse." Minor incidents are often especially difficult to prove and also for us to make a fuss about because we can't question the police every time they produce evidence and we have to refer the matter to our superiors. But if a limb was broken or there's permanent damage or a very heavy beating, the police can't cover it up.[193]

Article 189 of the Instructionsto the Niyaba requires the public prosecutor to request the technical assistance of police and security, such as the provision of police cars if needed. Additionally, the Instructions call upon niyaba members to exercise restraint in summoning officers, doctors and prison officials for interrogation, and to maintain a collegial, yet critical, relationship towards police officers:[194]

If an investigator, after due scrutiny, wants to exclude information that he obtained from a law enforcement official and does not want to depend upon it as evidence in any specific case, he should do that tactfully in order not to devalue the effort exerted by the law enforcement official and not to lose the trust of those who cooperate with him in fulfilling his duties.[195]

One case that illustrates the important of the police report in providing evidence in an investigation is that of Ashraf and Awad Nasr Awad, two brothers in Al Homoud, a town in the governorate of Kafr El Sheikh. Police arrested the siblings at home on January 15, 2010, saying they had been accused of theft. Awad told Human Rights Watch that while they were in the station, police forced them to lie face down, handcuffed their hands behind their backs, and kicked and punched them for around 30 minutes. "They punched me in the face and I broke my tooth." Ashraf said, "They hit me with fists and with a stick on my legs; they stood on my head and kept threatening to do terrible things to us." On January 18 Ashraf Awad filed a complaint with the prosecutor's office saying the police had beaten them:

The prosecutor ordered a forensic medical investigation and the report confirmed our injuries and said that they were consistent with our testimony. The prosecutor sent the investigations officer in charge, Hisham Rashad, more than eight summonses before he appeared. Despite the fact that the forensic report confirmed our complaint, the prosecutor decided to close the investigation based on the findings of the police's investigations, so the official reason was lack of evidence.[196]

Human Rights Watch believes this is a fundamental structural problem that protects torturers and permits impunity, and that the government should create a judicial police so that those accused of abuse do not interact with witnesses or gather evidence-a clear conflict of interest.

Delays in Investigations

For a remedy to be effective, it must also be prompt. Niyaba investigations are generally protracted, often taking between three and twelve months. Torture-related cases usually take even longer, typically between one and two years, although high-profile cases can be expedited to take two to three months.

Such delays are particularly difficult for victims of torture who are dealing with trauma and fear, as well as medical difficulties and costs, and sometimes loss of livelihood due to their injuries. During that time the complainant has no protection against police hostility and pressure, nor does the niyaba provide protection for key witnesses. Egyptian law provides no protection guarantees.

The length of niyaba investigations into torture-related cases also diminishes the likelihood of successful prosecution. Witnesses become harder to find, and if they are found, are more likely to have forgotten details or to have been pressured by police or third parties into changing testimony. In most cases, several years elapse from the day that an individual is tortured or dies in custody to the day that the niyaba issues its legal opinion on the case.   

In its first annual report in 2005, the National Council for Human Rights (NCHR) listed 10 death-in-custody cases, noting that:

[T]hough the public prosecution is responsible for investigating these cases and referring them to criminal courts, this process takes a very long time. Between the time of the incidents of death in custody under torture that we documents in 2004, only one case has been transferred to court in which the Cairo criminal court sentenced the policeman to five years imprisonment.[197]

The Committee against Torture has noted that "promptness is essential … to ensure that the victim cannot continue to be subjected to such acts..."[198] The committee found with regard to a case in Spain that the failure to investigate allegations of torture from the time when they were first raised until the initiation of criminal proceedings by the court more than two weeks later was "incompatible with the obligation to proceed to a prompt investigation, as provided for in article 12 of the Convention," as was the delay of more than three weeks "from the time that the court received the medical report from the penitentiary centre on 17 February 1992 until the author was brought to court and made her statement on 13 March."[199]

Failure to Conduct an Impartial Investigation

Prosecutors decision whether or not to pursue an investigation ultimately depends on a number of factors. Some may be personal, such as their perception of what is acceptable force, or the diligence with which they do their job.

According to one former prosecutor, for example, the first step the prosecutor is legally obligated to take when allegations of ill-treatment arise is to personally examine the victim's injuries (munazra), something that he or she does not always do as conscientiously as necessary.[200] The prosecutor went on to explain that prosecutors usually only pursue cases where are serious injuries, a handicap, or death, and are less likely to pursue less serious injuries because "in terms of initiating an investigation [against an officer], we've learned with experience that a certain acceptable amount of force is necessary to enable the police to do their jobs."[201]

Another former prosecutor explained to Human Rights Watch that "the mabahith officer has to have prestige (heiba) in the neighborhood, and people have to fear him to obey him." As a result, he "has to be able to use some force to do his job."[202] Victims and their families frequently share the perception that "light" use of force by the police is "normal" and many decide not to pursue a complaint for fear of further abuse, especially when it involves their neighborhood police force.

The Convention Against Torture stipulates in article 12 that investigations must be impartial as well as prompt. In the case of Ben M'Barek v. Tunisia, the Committee against Torture found that the state had breached its obligations in articles 12 and 13, concluding that:

the magistrate, by failing to investigate more thoroughly, committed a breach of the duty of impartiality imposed on him by his obligation to give equal weight to both accusation and defense during his investigation, as did the Public Prosecutor when he failed to appeal against the decision to dismiss the case.[203]

In a 1990 trial of persons accused of involvement with a violent Nasserist organization, the Supreme State Security Court (Emergency) found niyaba investigations to be prejudiced to the extent that the niyaba "had failed to record all testimonies and facts, threatened and humiliated [the accused], and tried to please [mujamala] the law enforcement officers." The court called for:

the amendment of legislation: investigative judges alone should be entrusted with investigation of freedom of expression cases (qadaya al-ra'i) … an amendment like this would be the only safeguard for the rights of the accused in freedom of expression and political cases since some security officers entertain a private feud [khusuma khassa] with this type of [accused], and commit infractions and resort to torture.[204]

In the 1991-1993 trial against those accused of murdering Rif'at al-Mahjub, former speaker of the People's Assembly, the Supreme State Security Court (Emergency) appointed an investigative judge to investigate torture allegations raised by the accused against SSI officers, not trusting the niyaba to undertake these investigations.[205]

By law, the niyaba must be notified of all suspicious or sudden deaths of persons, in police custody, in hospitals, or in prisons. Immediately after such a death, the niyaba is responsible for examining the corpse for any external signs of unnatural death.[206] The prosecutor orders an autopsy only if he suspects criminal wrongdoing. The Instructions to the Niyaba state: "In general, if the investigation and the external medical exam do not reveal any criminal wrongdoing causing the death, there is no reason to conduct an autopsy, even if the examining doctor declares that he cannot determine the cause of death until after an autopsy."[207] Since only the niyaba can order an autopsy, it alone can obtain conclusive medical evidence needed for an investigation into deaths in custody, on the assumption the investigation will be performed speedily and without outside interference.[208] However, cases that Human Rights Watch reviewed for this report show that the niyaba does not always meet this responsibility. In cases of deaths in police custody, it is often the insistence of the victims' family that forces the niyaba to act. 

In the case of the fatal police beating of Khaled Said, the Sidi Gaber prosecutor who first investigated the case failed to do so in a through and impartial manner: he did not visit the scene of the crime and interrogated only two witnesses, both provided by police. These witnesses claimed that Said had swallowed a packet of drugs when he saw the policemen approach, and denied that the police had hit Said. The prosecutor ordered a medical examination, which concluded that Said had died of asphyxiation after he allegedly swallowed a packet of drugs, and ordered the body to be buried. His family protested this decision. After intense media scrutiny and public demonstrations against the ministry of interior, the public prosecutor ordered the Sidi Gaber prosecutor in Alexandria to reopen the investigation.

Other less publicized cases do not receive the same attention from the niyaba. For example, police officers from the Dir Muwas police station in Minya arrested Fadl Abdullah on March 31, 2010, in his home and took him to the police station. His brother and nephews told Human Rights Watch that they received a call from the hospital the next day saying that Abdullah was dead and they should pick up his body.[209] The hospital report said that he had died because his blood circulation had stopped, without identifying what induced this or identifying any injuries that may have been sustained due to use of force.

In a video testimony Human Rights Watch reviewed, Ali Ismail, a detainee in the police station when Abdullah was brought in, said that he saw police beat and then kick him in the chest, and continue to do so even after he had fallen face forward to the ground. Four other witnesses have since come forward to testify before the Dir Muwas prosecutor. The first forensic medical report, however, merely repeated the hospital's assessment and did not confirm any injuries as a result of force. The family's lawyer appealed these findings and requested that the public prosecutor order a second medical investigation by a committee of three doctors. Fadl's brother, Qutb, told Human Rights Watch:

The accused officer is well known in Dir Muwas, there have already been two other deaths in that police station, but the families settled and the police paid blood money. The officer is still there in the same position and the prosecutor hasn't even summoned him for interrogation. They could at least have transferred him to another police station; it's very painful for us as a family to see him there.[210]

His other brother Hussein told Human Rights Watch:

It's been six months now and all we're trying to do is to get a proper investigation. This is why some of us in the Sa'eed turn to force to get our rights. We are an educated and a peaceful family and we want to get our rights through the justice system but when the justice system fails us what do you expect? [211]

The niyaba's failure to fulfill its responsibility to proactively investigate deaths in custody points to the conflict of interest inherent in the structure of Egypt's judiciary. As the European Court of Human Rights has noted, those responsible for investigating unlawful killings by state agents must be independent from those implicated in events, meaning "not only a lack of hierarchical or institutional connection, but also a practical independence."[212]

An additional problem is that the ministry of interior often seeks to protect its officers. Tarek Zaghloul, lawyer and executive director of the Egyptian Organization for Human Rights, told Human Rights Watch that in his assessment:

The essential element to getting a torture case into court is to have a strong medical report, witnesses and good defense lawyers. We've worked on torture cases where there is very strong documented evidence of torture, but then the accused officer produces a letter from the Ministry of Interior saying he was in another governorate that day.[213]

Impunity for State Security Investigations Officers

Despite consistent and credible reports of torture by SSI officers over the years, criminal investigations of alleged SSI perpetrators have been extremely rare and there has never been a conviction of a SSI officer for torture and ill-treatment.[214]

In meetings with Human Rights Watch in February 2004 and again in February 2005, a top Egyptian interior ministry official confirmed there have been no criminal investigations or internal disciplinary measures taken in response to allegations of torture and ill-treatment by SSI officials since 1986.[215] On that one occasion, the authorities investigated and prosecuted 40 SSI officers on 442 counts of torture. The trial, which lasted two years, from 1986 to 1988, ended in their acquittal: the court concluded that officers had in fact tortured suspects belonging to the Al-Gihad armed group, but said "there was insufficient evidence to link the particular [SSI] officers on trial with torture."[216]

In 1996 the UN Committee against Torture "noted with concern that no investigation has ever been made and no legal action been brought against members of state security intelligence since the entry into force of the Convention for Egypt in June 1987."[217] Special Rapporteur Martin Scheinin wrote in his October 2009 report that, while there had been "a small number of cases where police officers have been subject to investigations and trial following torture complaints," he was "troubled that complaints against SSI officers in this regard have produced no results," and "gravely concerned" by information that terrorist suspects subjected to detention by SSI officers were at particular risk of torture.[218]

Failure to prosecute SSI officers is due to several factors. These include the fact that complainants are unable to describe an individual perpetrator or give their name in their complaint because they are blindfolded during interrogation and officers use fake names.[219] The special rapporteur on torture has written that "the practice of blindfolding and hooding often makes the prosecution of torture virtually impossible, as victims are rendered incapable of identifying their torturers. Thus, blindfolding or hooding should be forbidden."[220] In addition, prosecutors do not have access to SSI places of detention, which the government continues to deny exist, and the SSI enjoys political protection as one of the most powerful security agencies within the Ministry of Interior. 

One notorious case of failure to investigate SSI officers suspected of torture is the 1994 death in custody of Abd al-Harith Madani, a 33-year-old lawyer whose clients included Islamist defendants. The SSI arrested Madani at his law offices on the night of April 26, 1994, held him incommunicado, and later claimed that he had died of an asthma attack, although they only notified his family of his death 11 days later, on May 7. Officials denied the Cairo Bar Association's request for a second autopsy by independent pathologists.[221] SSI officers delivered Madani's body to his family in a sealed coffin, placed a contingent of guards around the grave, and warned family members not to speak with human rights investigators or journalists.[222] Then-Prosecutor General Raga'a al-Arabi conceded that Madani's death appeared to be "criminal," but the government has never publicized the results of the investigation promised at the time. A high-level SSI official told Human Rights Watch in November 2007 that the prosecutor was still-after 13 years-unable to establish evidence pointing to individual perpetrators, but that the investigation was "still open."[223]

A second known case in which authorities prosecuted an SSI officer for torture also ended in the officer's acquittal. On September 4, 2006, a Cairo court acquitted SSI officer Ashraf Mustafa Hussain Safwat on charges that he tortured to death Mohamed Abd al-Kader, who died in SSI custody in 2003. Safwat was the first SSI officer to be investigated for alleged torture since 1986.[224] An autopsy performed soon after Abd al-Kader's death showed bruises, and burns on his mouth, nipples, and penis. A forensic doctor said these injuries had been sustained within eight hours of Abd al-Kader death, and could be consistent with electric shocks. Abd al-Kader's family filed a complaint at the local police station regarding his death in custody on September 21, 2003. Prosecutors ordered forensic doctors to inspect the body the following day, an order Dr. Hatim Mahmud Nabil `Abbas Ibrahim promptly carried out. His forensic report (No. 555/2003), dated September 22, noted injuries sustained within eight hours of the time of death, including serious bruises on the head and abdomen, and burns on the nipples, lower lip, and penis such as might be inflicted by an electrical wire. A committee of three senior forensic physicians then examined the original autopsy and in an April 2005 report concluded that Abd al-Kader's injuries had been sustained shortly before his death, and noted that Safwat had accompanied Abd al-Kader to the hospital twice on the night of his death. Strangely, they also felt it was necessary to state explicitly "that defendant Ashraf Safwat wasn't responsible for these injuries in the period from September 16-20, 2003, which is the period the person in question spent in his custody." The committee of three physicians did not address the question of how Abd al-Kader's mouth and penis were burned, but did conclude that the burns on his nipples were from a defibrillator used in an attempt to revive his heart, and that Abd al-Kadir "died due to a heart disorder which resulted in a sudden failure in the heart in spite of the medical treatment that couldn't revive the heart, and [that he] wasn't subjected to torture or physical aggression."[225]

On May 22, 2005, the head of the Prosecution Office referred the case to Public Prosecutor Mo`ataz Sidiq, who in turn referred the case to the Cairo Appeals Court, charging that Safwat "tortured a suspect, victim Muhammad Abd al-Kadir al-Sayyid, causing injuries described in the autopsy report, for the purpose of making him confess, as shown in investigations."[226]The trial opened on June 19, 2006. On November 4, 2006, Safwat's lawyers produced papers from `Abd al-Qadir's family revoking the power of attorney they had given lawyers from the AHRLA and dropping their request for compensation. On January 10, 2007, the family's lawyers told Human Rights Watch that State Security had pressured them to drop the case by using its continued custody of Samih `Abd al-Qadir, Muhammad's brother, as leverage. On February 3 the family failed to respond to an invitation to testify in court as to why they had dropped the case, and the court reopened the case. Mohsin Bahnassi, a lawyer who has worked on torture cases for the past decade, told Human Rights Watch:

This was a special case because it involved a SSI officer whom the family could identify because Mohamed's brother was detained along with him. The court acquitted the officer in the end because the medical report was inconsistent on one point, so the judge considered this a contradiction and acquitted the officer.[227]

[132] El 'Ashira Masa'an is a popular daily talk-show on a private satellite station in Egypt which discussed the case of Khaled Said who police beat to death on the street in Alexandria.

[133] Egyptian Constitution, art. 42.

[134]Penal Code, arts. 126, 129, 236, 241, 242, 280.

 135CCP, art. 9.

[136] Penal Code, arts. 126, 129, 236, 241, 242, 280.

[137] CCP, art. 366.

[138] For more on lenient sentences see Section VII: Lenient Sentencing and Failure to Discipline  below.

[139] As quoted in CAT/C/34/Add.11, p. 32. 

[140] While initially a separate law on terrorism, law 100/1992 has been integrated into the Penal Code.

142 1999 report to the CAT, para. 47.

[142] Penal Code, art. 63.

[143] National Council for Human Rights, Annual Report 2007/2008, p. 21 http://nchregypt.org/ar/images/files/1stannualreportar.pdf (accessed June 17, 2010).

[144] National report of the Egyptian government submitted in accordance with paragraph 15 (a) of the annex to Human Rights Council resolution 5/1, 16 November 2009, A/HRC/WG.6/7/EGY/1, http://www.ohchr.org/EN/HRBodies/UPR%5CPAGES%5CEGSession7.aspx (accessed July 15) [hereinafter Egypt National Report to UPR].

[145] Mohamed Abd al-Kader, "Shaab Legislative Committee refuses to increase the penalty for torture … Altercation between MPs," Al-Masry al-Youm, February 16, 2010, http://www.almasry-alyoum.com/article2.aspx?ArticleID=244193&IssueID=1683(accessed October 18, 2010).

[146] Human Rights Watch meeting with Ambassador Wael Abul Magd, Egyptian Ministry of Foreign Affairs, June 21, 2010.

[147] Committee against Torture, General Comment 2, Implementation of article 2 by States Parties, U.N. Doc. CAT/C/GC/2/CRP. 1/Rev.4 (2007), para. 4.

[148]  Committee against Torture Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey, Official Records of the General Assembly, Forty-eight Session, Supplement No. 44 (A/48/44/Add.1), para. 39, http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/A.48.44.Add.1.En?Opendocument (accessed August 1, 2010).

[149] A finding that there is no crime to prosecute, [at times because the parties reconciled], or that no damage was caused.

[150] The Arabic la wajh li-iqamat ad-da'wa, literally means "no reason to institute proceedings."Center for Legal Research and Studies, General Instructions to the Niyaba in Penal Matters, (Cairo, 2001), arts. 805 (2), 868. "The niyaba is not allowed to issue a decision to put the case on file if it already undertook any investigative measure … in that case, a decision to close the file is to be issued." Art. 812. However, in practice the distinction appears to be less fine. 

[151] Human Rights Watch interview with lawyer Taher Abul Nasr, Cairo, September 22, 2010; Human Rights Watch interview with Adel Ramadan, lawyer, Cairo, September 20, 2010.

[152]  If the case involves a misdemeanor or contravention, and the defendant is another citizen, complainants can raise a civil case directly in court even if the niyaba decided not to sustain their complaint: Instructions to the Niyaba, art. 810; CCP, art. 63.

[153] CCP,  art. 210 (1).

[154]Instructions to the Niyaba, art. 872.

[155] Ibid., arts. 783, 871.

[156] CCP, art. 62 and Instructions to the Niyaba, arts. 531, 809. The niyaba must notify the complainant only if he also intends to sue for civil damages.

[157] Human Rights Watch interview with Adel Ramadan, lawyer, Cairo, September 20, 2010.

[158] Human Rights Watch interview with Maha Youssef, lawyer, Cairo, July 6, 2010.

[159] Human Rights Watch interview with Sayed Fathy, lawyer, Cairo, June 30, 2010. Lawyers Maha Youssef and Mohamed Shabana made the same comment.

[160] Human Rights Watch interview with judge and former prosecutor, name withheld, Cairo, July 14, 2010.

[161]  National Council for Human Rights, Annual Report 2004/2005, p.111,http://nchregypt.org/ar/images/files/1stannualreportar.pdf (accessed June 17, 2010).

[162] Human Rights Watch interview with Mahmoud Kandil, human rights lawyer, June 23, 2010.

[163] Human Rights Watch interview with Haitham Misbah, Alexandria, June 16, 2010.

[164] Human Rights Watch interview with Mohamed Hussein Abdullah, Ahmad Saber Abdullah and Qutb Abdullah, relatives of Fadl Abdullah, Cairo, July 14, 2010. For more on the case of Fadl Abdullah, see Section V: Failure to Conduct an Impartial Investigation.

[165] Human Rights Watch interview with Taher Abul Nasr, Cairo, July 4, 2010.

[166] CCP, arts. 18 (bis), 18 (bis) (1).

[167]Instructions to the Niyaba, art. 805 (4).

[168] Human Rights Watch interview with Shadi Maged Zaghloul, Cairo, July 10, 2010.

[169] Human Rights Watch interview with Shadi Maged Zaghloul, Cairo, July 10, 2010.

[170]"Egypt: Hold Police Accountable for Torture," Human Rights Watch news release, December 22, 2006, http://www.hrw.org/en/news/2006/12/22/egypt-hold-police-accountable-torture. For more on the trial of 'Imad al Kabir see below under VII. Lenient Sentencing and Failure to Discipline.

[171] Human Rights Watch interview with Ahmad Mustafa Abdullah, July 10, 2010.

[172]  "Egypt: Investigate Torture, Rape of Activist Blogger," Human Rights Watch news release, March 18, 2007, http://www.hrw.org/en/news/2007/03/18/egypt-investigate-torture-rape-activist-blogger.

[173] According to penal code article 300, the punishment for pressuring a witness into perjury or not giving testimony depends on the gravity of the offense in question, and is either a prison term or labor (Penal Code, arts. 294-298).

[174] Penal Code, art. 327.

[175] CAT/C/34/Add. 11 para. 114.

[176] CAT, art.13.

[177] Concluding Observations of the Committee against Torture: Tunisia, 11//19/1998, A/54/44, paras. 99-105, http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/A.54.44,paras.88-105.En?Opendocument (accessed July 7, 2010).

[178] Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Istanbul Protocol"), August 9, 1999, p.19.

[179] Human Rights Watch interview with Aida Seif El Dawla, Cairo, May 17, 2010.

[180]Encarnación Blanco Abad v. Spain, Communication No. 59/1996, U.N. Doc. CAT/C/20/D/59/1996 (1998), para. 8.2, http://www1.umn.edu/humanrts/cat/decisions/59-1996.html (accessed July 17, 2010)

[181] Report of the Human Rights Committee, October 3 1995, A/50/40, para. 94, referring to Tunisia, http://www.un.org/documents/ga/docs/50/plenary/a50-40.htm (accessed July 17, 2010).

[182]See I Torture and Enforced Disappearance by State Security Investigations and VI State Security Court Reliance on Confessions Obtained Under Torture

[183]  "Egypt: Investigate Torture, Rape of Activist Blogger," Human Rights Watch news release, March 18, 2007, http://www.hrw.org/en/news/2007/03/18/egypt-investigate-torture-rape-activist-blogger

[184] Human Rights Watch interview with Shadi Maged Zaghloul, Cairo, July 10, 2010.

[185] Dareen Farghaly, "Dr. Ayman Foda, Former Chief Forensic Medical Doctor: the Department requires Fundamental Restructuring and the Khaled Said report was Unsound," Al-Masry al-Youm, June 30, 2010, http://www.almasry-alyoum.com/article2.aspx?ArticleID=260729&IssueID=1817 (accessed June 30, 2010).

[186] Human Rights Watch phone interview with international NGO staff, name withheld, September 23, 2010.

[187] Special Rapporteur on Torture, Report to 52nd session of the General Assembly (1997), A/52/40, para. 109, referring to Switzerland.

[188] Report of the Special Rapporteur on torture: Visit to Turkey, E/CN.4/1999/61/Add.1, para. 113(d), http://ap.ohchr.org/documents/alldocs.aspx?doc_id=1500.

[189] Ministry of Justice Forensic Medicine Department, Office of the Chief Forensic Doctor, Forensic report No. 123/2010, concerning case no 4783/2010 administrative Sidi Gaber, June 27, 2010.

[190] It cited the standards of the Minnesota Protocol or Recommendation No. R(99) 3 on the harmonization of medico-legal autopsy rules from the Council of Europe, available in the International Journal of Legal Medicine, No. 113, 1999, pp. 1-4.

[191] Duarte Nuno Vieira and Jørgen L.Thomsen, "Expert evaluation of the forensic reports issued in the Khaled Mohamed Said Sobhi case," http://www.alnadeem.org/en/node/306 (accessed December 3, 2010).

[192] Human Rights Watch interview with former prosecutor, name withheld, Cairo, July 7, 2010.

[193]Human Rights Watch interview with judge and former prosecutor, name withheld, Cairo, July 14, 2010.

[194]  Instructions to the Niyaba, art. 189.

[195] Ibid., art. 167.

[196] Human Rights Watch interview with Awad and Ashraf Nasr Awad, Cairo, July 14, 2010.

[197] National Council for Human Rights, Annual Report 2004/2005, http://nchregypt.org/ar/images/files/1stannualreportar.pdf (accessed June 17, 2010).

[198]Encarnación Blanco Abad v. Spain, Communication No. 59/1996, U.N. Doc. CAT/C/20/D/59/1996 (1998), para. 8.2, http://www1.umn.edu/humanrts/cat/decisions/59-1996.html. (accessed October 28, 2010).

[199] Ibid., paras. 8.5 and 8.7 , http://www1.umn.edu/humanrts/cat/decisions/59-1996.html (accessed October 28, 2010).

[200] Human Rights Watch interview with former prosecutor, name withheld, Cairo, July 7, 2010.

[201] Human Rights Watch interview with judge and former prosecutor, name withheld, Cairo, July 14, 2010.

[202] Human Rights Watch interview with former prosecutor, name withheld, Cairo, July 7, 2010.

[203]Ben M'Barek v. Tunisia, Communication No 60/1996 : Tunisia. 01/24/2000, CAT/C/23/D/60/1996, http://www.unhchr.ch/tbs/doc.nsf/0/00c2952fe36f0b46802568b8004e05de?Opendocument (accessed October 5, 2010).

[204] Judgment, Supreme State Security Court (Emergency), case 382/1986, al-Abdin, 198/1986 District Prosecution Central Cairo, February 13, 1990, as quoted in Khalil/Mohamed, Legislation restricting rights, pp. 354-355.

[205] Judgment, Supreme State Security Court (Emergency), case 2903/1991 Felonies Imbaba, 164/1991 District Prosecution North Gizah; EOHR Press Release, "Torture of accused in murder of al-Mahjub and the responsibility of the niyaba," August 1, 1991.

[206]Military Order 14/1956 on Administration of Prisons, art. 27 "If a death was not natural or sudden, the commander [of the prison] has to notify the niyaba."; Memorandum by Director of Judicial Inspection Abd al-Majid Mahmud to public prosecutor, March 7, 2000; Instructions to the Niyaba, art. 442.

[207]Instructions to the Niyaba, art. 445 (1).

[208] Ibid., art. 442. 

[209] Human Rights Watch interview with Mohamed Hussein Abdullah, Ahmad Saber Abdullah, and Qutb  Abdullah, Cairo, July 14, 2010.

[210] Ibid.

[211] Human Rights Watch phone interview with Hussein Abdullah, August 15, 2010. The Sa'eed, the Arabic name for Upper Egypt, is known for tribal vendettas where families resort to force, and blood feuds can rage until a settlement between the families is reached over blood money. 

[212] European Court of Human Rights, Hugh Jordan v. The United Kingdom, para. 107.

[213] Human Rights Watch interview with Tarek Zaghloul, Cairo, June 29, 2010.

[214] See above, Torture and Enforced Disappearance by State Security Investigations (SSI), in Section 1.  See also Human Rights Watch, Egypt: Anatomy of a State Security Case; Human Rights Watch, Black Hole: the Fate of Islamists Rendered to Egypt; Human Rights Watch, Egypt: Mass Arrests and Torture in Sinai ; "Egypt: Torture in State Security Headquarters," Human Rights Watch news release, April 23, 2003, http://www.hrw.org/en/news/2003/04/23/egypt-torture-state-security-headquarters.

[215] The meetings were with Gen. Ahmad `Umar Abu al-Sa`ud, a member of the cabinet of Minister of Interior Habib al-`Adli, on February 28, 2004, and February 22, 2005, in Cairo.

[216]  See Middle East Watch [Human Rights Watch], Behind Closed Doors: Torture and Detention in Egypt (New York, 1992), p. 117-118. http://www.hrw.org/en/reports/1992/07/01/behind-closed-doors.

[217] Committee against Torture, art. 20 Examinations Re: Systematic Torture, CAT A/51/44 (1996).

[218] Report of the special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, Mission to Egypt, A/HRC/13/37/Add.2, October 14, 2009, http://www2.ohchr.org/english/issues/terrorism/rapporteur/docs/A_HRC_13_37_Add2.doc (accessed July 17).

[219] For consistent reports of blindfolding during SSI interrogations see Human Rights Watch, Egypt: Anatomy of a State Security Case; Human Rights Watch, Black Hole; and Human Rights Watch, Egypt: Mass Arrests and Torture in Sinai

[220] A/56/156, para. 39(f). The recommendation, as proposed in an earlier report of the special rapporteur on torture, was endorsed by the UN Commission on Human Rights in resolution 1994/37 of 4 March 1994.

[221]  See Human Rights Watch, Egypt: Hostage-Taking and Intimidation by Security Forces, January 1995, pp. 26-27.

[222]  Human Rights Watch, World Report 1995 (New York: Human Rights Watch, 1995), Egypt chapter, p. 263,www.hrw.org/legacy/reports/1995/WR95/MIDEAST-02.htm#P170_51357.  

[223]  Human Rights Watch meeting with SSI officials, Cairo, November 17, 2007.

[224] "Egypt: Police Officers Get Three Years for Beating, Raping Detainee," Human Rights Watch news release, November 6, 2007, http://www.hrw.org/en/news/2007/11/06/egypt-police-officers-get-three-years-beating-raping-detainee.

[225] Report of the Forensic Medical Authority, Ministry of Justice, April 2005, on file with Human Rights Watch.

[226] Report of the Public Prosecutor, Ministry of Justice, May 22, 2005, on file with Human Rights Watch.

[227] Human Rights Watch interview with Mohsin Bahnassi, Cairo, June 29, 2010.