His conviction and sentence violate international standards because it was based on a confession that may have been extracted through torture and made before the boy was granted access to his family or an attorney. His arrest, part of a roundup of men presumed to be gay, violated the principle of nondiscrimination, and his privacy was not respected during his detention and trial. His conviction and sentence should be overturned when his appeal is heard on November 21.
We are particularly concerned by reports that the boy was tortured and subjected to ill-treatment during his interrogation by police. The youth has stated that police had extracted a confession from him after subjecting him to painful beating on the soles of the feet with a falaqa, a long stick with a leather belt. In addition, the boy was subjected to painful and humiliating physical examinations. Torture is flatly prohibited by international law, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Cruel, inhuman, or degrading treatment or punishment are also prohibited under these treaties, to which Egypt is a party.
The boy's prosecution has also been tainted by the length and circumstances of his detention and the limited access he has been afforded to counsel and to members of his family. Before his trial, he spent four months in Tora Prison, on the outskirts of Cairo, where he was held with adult detainees. He did not have access to a lawyer during his interrogation, and he was not allowed to contact his family during the first two weeks that he was detained.
The duration and manner of his detention violate numerous provisions of international law. Article 37(c) of the Convention on the Rights of the Child provides that "every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so . . . ." The same provision guarantees the child's right to maintain contact with family members, absent exceptional circumstances. Such circumstances were not met in this case. Article 37(d) of the convention guarantees the right to "prompt access to legal and other appropriate assistance," and article 37(b) provides that "[t]he arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time."
We are also concerned about the trial court's failure to ensure the boy's privacy and its decision to admit the boy's coerced confession into evidence.
Press and spectators were allowed to attend and report on the September and October hearings. The boy's name and photo and accounts of his charges and sentence have appeared in Egypt's semi-official press. Article 40(2)(b)(vii) of the Convention on the Rights of the Child guarantees the right of the child "to have his or her privacy fully respected at all stages of the proceedings." Section 126 of Egypt's Juvenile Offenders Law provides, "A juvenile's hearing may only be attended by the minor's relatives, lawyers, witnesses, and social observers; all others must be issued a special permit by the Court."
The boy attempted to withdraw his coerced confession at his trial on September 18. The judge did not order an investigation into his account that he was tortured during interrogation and denied access to counsel or to his family during the two weeks following his arrest and detention. Under article 15 of the Convention against Torture, "Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made."
Equally of concern to us are the circumstances surrounding the boy's arrest. He was one of fifty-six people detained and charged after a crackdown in May against men presumed to be gay. Many of these individuals were arrested after a raid on a gay nightclub in Cairo, although the boy himself was not arrested at the nightclub.
Neither homosexuality nor homosexual acts is explicitly prohibited in Egypt. Instead, the boy was originally accused of "abuse of religion" (istighlal al din) and ultimately charged and convicted of debauchery (mumarasat al fujur), an offense under Law No. 10 of 1961 on the Combat of Prostitution. All of those arrested in the May crackdown were charged with similar offenses.
These circumstances compel the conclusion that these arrests were carried out against these individuals solely on the basis of their presumed sexual orientation. The principle of nondiscrimination is a fundamental principle of human rights law recognized in the ICCPR, the Convention on the Rights of the Child, and other treaties to which Egypt is a party.
Moreover, criminalization and deprivation of liberty are not appropriate responses to sexual activity on the part of a child. Adolescence is a time of personal growth and development that includes the emergence of sexual attraction and in many cases sexual activity, whether with the same or the opposite sex. Guidance about the significant responsibilities and consequences, emotional and otherwise, entailed in sexual activity is best conveyed by parents, civic leaders, and the state in the form of information and supportive counseling.
Further, international law does not permit the criminalization of sexual relations between consenting adults of the same sex. A child should not be held criminally responsible for an act that would not, under international standards, be subject to criminal responsibility if committed by an adult.
Our conclusion that criminalization and deprivation of liberty is inappropriate in a case such as this is reinforced by the requirements of articles 37(b) and 3(1) of the Convention on the Rights of the Child, which mandate that arrest and detention be for the shortest appropriate period of time and a measure of last resort and that "in all actions concerning children . . . the best interests of the child shall be a primary consideration." In light of these international standards, the judge's decision to impose the maximum sentence is particularly troubling.
For these reasons, we urge you to ask the appeals court to overturn the boy's conviction and order his immediate release.
Sincerely,
/s/
Clarisa Bencomo
Researcher
Children's Rights Division
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/s/
Michael Bochenek
Counsel
Children's Rights Division
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