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VIII. Conclusions

A. Legal Standards

Egypt’s campaign against homosexual conduct strikes at the most intimate relations between human beings. It embodies an extreme form of legally enforced inequality. It sets a dangerous precedent for arbitrary and discriminatory treatment. Its official defenders degrade the promises of legality enshrined in international covenants as well as in Egypt’s constitution, by implying that basic rights are subject to a popularity contest. It expands and deepens existing serious violations of the right to privacy; the rights to freedom from torture, arbitrary arrest and detention; and the rights to a fair trial and to liberties of association, assembly, and expression. As such it threatens the freedoms of all Egyptians.

i. The Right to Privacy and the Right to Freedom from Discrimination

That Egypt’s Law 10/1961 (the “debauchery” law) is meant, and used, to criminalize consensual sexual activity between adult males can no longer be questioned. That laws so written and enforced stand in breach of the right to privacy is an established principle of international human rights law. In addition, such laws also violate Egypt’s constitutional protections of the sanctity of homes and “the inviolability of the private life of citizens.”432

In the 1994 case of Nicholas Toonen v Australia, the U.N. Human Rights Committee, which monitors compliance with and adjudicates violations under the International Covenant on Civil and Political Rights (ICCPR), held that “sodomy laws” punishing consensual, adult homosexual conduct violate article 17 of the ICCPR, which protects the right to privacy. 433 It also held that they violate ICCPR protections against discrimination.

Egypt’s Constitutional Court has affirmed the importance of privacy protections:

There are areas of private life that represent for each individual impenetrable depth. These areas should not be violated, in order to guarantee its secrecy and protect its inviolability. … While some constitutions do not ensure this right expressly, some consider it one of the most sweeping and comprehensive rights. It is also the right most deeply related to the values promoted by civilized nations.434

Yet in the disputes over Law 10/1961, Egypt’s government has claimed that cultural and community values override this right with a complex of obligations to conform.

An emerging body of domestic jurisprudence in several countries addresses this. It articulates a conception of privacy as more than a negative right limiting state interference or a space defined by the absence of intrusion. This jurisprudence affirms that privacy is a sphere where people choose and construct their lives for themselves, enjoying precisely that intimacy and autonomy which are conditions for their full, mature, and independent participation in public life, community, and culture. This broad conception of privacy has been eloquently expressed in post-apartheid South Africa.

South Africa's Constitutional Court has held that “rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one’s autonomous identity . . . In the context of privacy this means that it is . . . the inner sanctum of the person such as his/her family life, sexual preference and home environment which is shielded from erosion by conflicting rights of the community.”[435] In a major decision overturning “sodomy laws” in that country, the Constitutional Court found that

Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.436

Justice Albie Sachs of the Constitutional Court asserted that privacy is inextricably bound to full and equal citizenship. In invalidating sodomy laws, he observed, the Constitutional Court affirmed a right to difference in private life which confirmed equal dignity in the public sphere.

Equality means equal concern and respect across difference. It does not pre-suppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a leveling or homogenization of behavior but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalization, stigma and punishment. At best, it celebrates the vitality that difference brings to any society. …

The acknowledgement and acceptance of difference is particularly important in our country where group membership has been the basis of express advantage and disadvantage. The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognizing and accepting people as they are…. The invalidation of anti-sodomy laws will mark an important moment in the maturing of an open democracy based on dignity, freedom and equality.437

In its decision in Toonen v Australia the U.N. Human Rights Committee also found laws criminalizing consensual sexual acts between adults of the same sex to violate protections against discrimination. Specifically, the Committee held that “the reference to ‘sex’ in articles 2, para. 1, and 26 is to be taken as including sexual orientation.”[438] The Human Rights Committee has thus urged states to bar discrimination based on sexual orientation.[439]

Achieving equality means eliminating stigma. The U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions has observed the relationship between sodomy laws, stigma, and violence:

The Special Rapporteur … believes that criminalizing matters of sexual orientation increases the social stigmatization of members of sexual minorities, which in turn makes them more vulnerable to violence and human rights abuses, including violations of the right to life. Because of this stigmatization, violent acts directed against persons belonging to sexual minorities are also more likely to be committed in a climate of impunity.440

In its review of Egypt in 2002, the Human Rights Committee criticized the “criminalization of some behaviors such as those characterized as 'debauchery' (articles 17 and 26 of the Covenant),” and urged Egypt to “refrain from penalizing private sexual relations between consenting adults.”441

ii. The Right to Freedom from Torture

Article 7 of the ICCPR states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This basic, non-derogable protection is violated when state agents beat, maltreat, and abuse people on the basis of their sexual orientation, or their consensual conduct with others of the same sex.

Protection against torture is needed for those whom stigma renders especially at risk. A lengthy recent statement by the U.N. Special Rapporteur on Torture to the General Assembly examines, and condemns, many of the causes and consequences of abuses detailed in this report:

The Special Rapporteur notes that a considerable proportion of the incidents of torture carried out against members of sexual minorities suggests that they are often subjected to violence of a sexual nature, such as rape or sexual assault in order to “punish” them for transgressing gender barriers or for challenging predominant conceptions of gender roles.

The Special Rapporteur has received information according to which members of sexual minorities have been subjected, inter alia, to harassment, humiliation and verbal abuse relating to their real or perceived sexual orientation or gender identity and physical abuse, including rape and sexual assault. … While no relevant statistics are available to the Special Rapporteur, it appears that members of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment, because they fail to conform to socially constructed gender expectations. Indeed, discrimination on grounds of sexual orientation may often contribute to the process of the dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place. The Special Rapporteur further notes that members of sexual minorities are a particularly vulnerable group with respect to torture in various contexts and that their status may also affect the consequences of their ill-treatment in terms of their access to complaint procedures or medical treatment in state hospitals, where they may fear further victimization, as well as in terms of legal consequences regarding the legal sanctions flowing from certain abuses. …

Discriminatory attitudes to members of sexual minorities can mean that they are perceived as less credible by law enforcement agencies or not fully entitled to an equal standard of protection, including protection against violence carried out by non-state agents.442

In its review of Egypt in 2002, the U.N. Committee Against Torture voiced concern at “the reports received concerning ill-treatment inflicted on men because of their real or alleged homosexual inclinations, apparently encouraged by the lack of adequate clarity in penal legislation.” It called on Egypt to “remove all ambiguity in legislation which might underpin the persecution of individuals because of their sexual orientation.” 443

iii. Health Professionals and Torture

Forensic anal examinations of men suspected of homosexual conduct, conducted in carceral conditions, are abusive, degrading, and a form of torture. The Egyptian government is culpable for their continuation. Those doctors who participate in them violate international standards adopted by the medical profession.

The U.N. Committee Against Torture, in its 2002 review of Egypt, investigated the issue of forensic anal examinations and called on the government “to prevent all degrading treatment on the occasion of body searches.”444 In the case of men accused of “debauchery,” this can only be accomplished by ending the examinations.

The United Nations’ “Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” instruct physicians to refrain from any direct or indirect participation in torture. They also state:

Principle 4: It is a contravention of medical ethics for health personnel, particularly physicians …to apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments …445

Guidelines proposed by the International Dual Loyalty Working Group, an initiative of Physicians for Human Rights and South African medical professionals, also lay out principles for physicians working in “difficult” settings, including carceral conditions. Guideline 14 states, The health professional should not perform medical duties or engage in medical interventions for security purposes.” 446 The Working Group comments that“Health professionals should never engage in medical interventions that are not in the individual’s therapeutic interests, even when requested to do so by authorities for security purposes.”447

While the World Medical Association (WMA), has given qualified endorsement to some highly specialized non-therapeutic medical interventions in prison conditions, it has emphasized that body cavity searches should be restricted to security-related searches for materials that can be used to injure the prisoner herself, or other detainees or personnel.448 These terms exclude the forensic anal examinations conducted in Egypt, which have no security-related purpose.

The British Medical Association (BMA) holds “that no medical practitioner should take part in an intimate body search of a subject without that subject's consent”—defining “an intimate search [as] a search which consists of a physical examination of a person's body orifices other than the mouth.”449

This guidance specifically addresses the situation where an intimate examination is proposed which is not primarily for the medical benefit of the individual. Where valid consent is obtained doctors may undertake such examinations although, as the search will not be for the benefit of the patient, particular attention needs to be given to the potential pressures on the individual.

The evidence amassed in this report shows that authorities and physicians conducting forensic anal examinations in Egypt make no effort to obtain consent. The BMA observes, “A fundamental ethical principle guiding medical practice is that no examination, diagnosis or treatment of a competent adult should be undertaken without the person's consent. The ethical obligation to seek consent applies even where this is not a legal requirement.”450 The World Medical Association also requires that physicians should “obtain the subject’s freely informed consent” to medical research, “preferably in writing,” and should exercise particular caution in situations where subjects “may consent under duress.”451

The forensic anal examinations, in addition to their questionable medical value, endanger the bodily and psychological integrity of those who undergo them. The Egyptian government and the Egyptian medical profession must bring them to a halt.

iv. The Right to Freedom From Arbitrary Arrest and Detention

Article 9(1) of the ICCPR states:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.452

The U.N. Working Group on Arbitrary Detention has affirmed that the detention of people solely on the basis of their sexual orientation violates fundamental human rights—even when the laws under which they are detained do not expressly refer to homosexual conduct. It did so specifically in regard to the Queen Boat arrests in Egypt.453 The Working Group held that

their detention was arbitrary because it violated articles 2, paragraph 1, and 26 of the International Covenant on Civil and Political Rights, which guarantee equality before the law and the right to equal legal protection against all forms of discrimination, including “sex.”454

The ICCPR’s protections are violated when state agents arrest or detain people on the basis of their sexual orientation, or their consensual sexual conduct with others of the same sex.

v. The Right to a Fair Trial

Article 14 of the ICCPR affirms that “All persons shall be equal before the courts and tribunals,” and that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” It protects the presumption of innocence in criminal trials; guarantees the accused “adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing”; bars compelling anyone “to testify against himself or to confess guilt”; and confirms the right to have convictions “reviewed by a higher tribunal according to law.”

These provisions are violated when stigma and prejudice are permitted to interfere with the evaluation of law and evidence, and provide the overriding basis for judgment. They are violated when state-controlled media, and other media operating with information leaked by state officials, create an atmosphere of outrage and vilification around a trial, and preclude the possibility of objective decision. They are violated when, in such an atmosphere, the opprobrium attached to an alleged crime is so great that defendants cannot find competent legal representation, much less an unbiased hearing.

They are violated when (as in the Giza case, above) lawyers are not allowed to communicate with their clients or to see crucial evidence in a timely fashion before the trial. They are violated when children are tried without the protections guaranteed them by their status as children.455 They are violated when courts accept confessions allegedly obtained through torture without question or investigation. They are violated when defendants are led before courts (such as the Emergency State Security Courts) which do not allow review by a higher tribunal. They are violated when (as in the second Queen Boat trial) judgment is handed down without key defense witnesses or evidence appearing, or defense arguments being heard.

Finally, unrestricted use of informers and undercover police (as in Internet cases) gravely affects the possibility of a fair trial, and the resulting risk of entrapment damages due process more generally. The European Court of Human Rights drew this conclusion in its decision in Texeira de Castro v Portugal (1998), involving the use of undercover police. The court found that “The use of undercover agents must be restricted and safeguards put in place. . . The public interest cannot justify the use of evidence obtained as a result of police incitement [emphasis added].” The court held police had not investigated a suspect's “activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence. … That intervention and its use in the impugned criminal proceedings meant that, right from the outset, the applicant was definitively deprived of a fair trial.”456

vi. The Right to Freedom of Expression

Article 19(2) of the ICCPR affirms that:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any media of his choice.

This article provides—similarly to articles 17, 21, and 22 of the ICCPR—that the exercise of the rights in paragraph 2 may be “subject to certain restrictions,” which must be clearly provided for in law and necessary for “respect of the rights or reputations of others,” or to protect “national security,” “public order,” or “public health and morals.” With regard to all these articles, these restrictions must not be applied in a discriminatory fashion—that is, they fall under the ICCPR’s protections against discrimination, which the Toonen decision, as noted above, found to include sexual orientation as a protected status. It is clear that restrictions on the expression of sexual orientation or gender identity per se will not withstand such scrutiny—nor are they necessary to such ends; indeed, such expression in many situations contributes to public health in the context of HIV/AIDS. 457

States violate this right when they use laws on public conduct or behavior to harass and penalize people for the expression of their sexual orientation or gender identity—including expression over the Internet. And states violate this right when they encourage public officials (or incite or excuse other agents) in violence or harassment against men or women who dress, walk, or act in ways at odds with social norms, among them norms for expressing gender.

vii. The Rights to Freedom of Association and Assembly

Article 21 of the ICCPR states that “The right of peaceful assembly shall be recognized.” Article 22(1) of the ICCPR affirms that “Everyone shall have the right to freedom of association with others.”

States violate these rights when they use raids or police dragnets to impede or prevent men who have sex with men, or women who have sex with women, from gathering peacefully. States also violate these rights when they promulgate laws or help create cultural or social situations which bar such people from organizing to assert and defend their rights or hinder others from doing so on their behalf. 458

The U.N. General Assembly’s Declaration on Human Rights Defenders calls attention to the role of the freedoms of association and assembly in the defense of all human rights.459 Indeed, the Special Representative of the U.N. Secretary General on Human Rights Defenders has called attention to the “greater risks… faced by defenders of the rights of certain groups as their work challenges social structures, traditional practices and interpretations of religious precepts that may have been used over long periods of time to condone and justify violation of the human rights of members of such groups. Of special importance will be… human rights groups and those who are active on issues of sexuality, especially sexual orientation.”460

B. Recommendations

i. General

Human Rights Watch calls on the government of Egypt to:

  • End arrests and prosecutions for adult, consensual homosexual conduct.

  • Amend Law 10/1961 “On the Combating of Prostitution” to eliminate all references to “debauchery” (fujur).

  • Eliminate from all laws vague, ambiguous or sweeping language that can be used to target people on the basis of adult, consensual homosexual conduct, or the expression of their sexual orientation or gender identity. This should include:

    • Repealing article 269 bis of the Criminal Code;

    • Repealing article 178 of the Criminal Code.

  • End police surveillance of persons based on their suspected homosexual conduct or their sexual orientation, including the keeping of lists of such persons. The practice of recruiting and using informers to help arrest such suspects must end.

  • Ensure the immediate and unconditional release of all persons imprisoned for consensual homosexual conduct with adults.

  • Eliminate the police supervision system created by article 15 of Law 10/1961 (see appendix E, below), which effectively doubles sentences of imprisonment, and replace it by a conditional-release system that is designed to ease qualifying prisoners’ reintegration into ordinary life, and that shortens rather than extends the period of detention.

ii. On Freedom of Expression and Communications

Human Rights Watch calls on the government of Egypt to:

  • End entrapment of individuals over the Internet based on their sexual orientation or homosexual conduct, or their exercise of freedom of expression.
  • Protect freedom of expression on the Internet, as well as the privacy of Internet communications.

iii. On Fair Trials

Human Rights Watch calls on the government of Egypt to:

  • Train judges and prosecutors in human rights standards and non-discrimination. Such training should include issues of sexuality and sexual orientation, with the aim of eliminating the stigma that contributes to injustice.

  • Repeal Law 162/1958 (the “Emergency Law”), which permits arbitrary detention and establishes Emergency State Security Courts that allow no judicial appeal.

  • Take immediate steps to ensure that police and prosecutors do not leak information to media in order to influence the outcome of investigations or trials, including the enforcement of article 23 of Law No. 96 of 1996 Concerning the Regulation of Journalism, which prohibits the publication of any details of an ongoing investigation or trial that would affect such proceedings.

iv. On Arbitrary Detention and Torture

Human Rights Watch calls on the government of Egypt to:

  • End the practice of forensic anal examinations of men accused of “debauchery” (fujur) or any other crime.

Human Rights Watch calls on the Doctors' Syndicate of Egypt to:

  • Adopt and publicize ethical codes and standards setting forth the responsibilities of medical professionals when treating persons deprived of their liberty. Such codes and standards should be consistent with international standards barring the participation of medical professionals in torture or cruel, inhuman, or degrading treatment, and in non-consensual body searches of prisoners.

Human Rights Watch also calls on the government of Egypt to:

  • Train police and prison officials in international human rights standards and non-discrimination, particularly covering issues of sexuality and sexual orientation, to eliminate the stigma that contributes to torture and abuse.

  • Enforce existing safeguards against torture and ill-treatment by punishing officials who engage in or condone abuse—including prosecutors who fail to fulfill their duties regularly to monitor places of detention and to open investigations into arbitrary detention, torture, and ill-treatment, or who themselves abuse detainees.

  • Amend articles of the Criminal Code that provide inadequate definitions of, or protections against, torture. This should include:

    • Amending article 126 of the Criminal Code to define torture in terms consistent with article 1 of the Convention against Torture, encompassing torture that is physical or psychological, whether or not the abusive official intended to extort a confession, and whether or not the victim of torture was a suspect or detainee;

    • Amending provisions punishing ill-treatment and other abuses by officials, in particular Criminal Code article 129 on the use of cruelty by officials, and article 280, on illegal detention, to raise the current inadequate penalties and recategorize these offenses as felonies rather than misdemeanors;

    • Amending articles 210 and 232 of the Criminal Code to allow persons filing complaints of police abuse to appeal to the Prosecutor General or to a court any niyaba decision not to investigate or prosecute an abusive officer.

  • Mandate local niyaba offices to investigate allegations of human rights violations committed by law enforcement officials based on information received through third parties such as nongovernmental organizations, even when the victim has not filed a formal complaint.

  • Ensure that victims of torture have direct and speedy access to consensual forensic medical examinations without a referral by higher authorities.

  • Ensure that Ministry of Justice forensic pathologists receive specialized training on recognizing and documenting physiological and psychological injuries inflicted by torture and ill-treatment. Such training should include components on international human rights standards related to torture, ill-treatment, non-discrimination, sexuality, and sexual orientation.

  • Ensure safety from retaliation or harassment for both plaintiffs and witnesses in torture investigations, or investigations of other forms of official abuse.

  • Issue clear regulations specifying prison officials’ duties to protect prisoners from abuse on the basis of their consensual sexual conduct or sexual orientation and specifying appropriate disciplinary actions to punish prison officials and inmates who engage in, encourage, or condone maltreatment of, or discrimination against, such prisoners. Such disciplinary actions should include, where appropriate, referral to the niyaba for investigation.

  • Invite international scrutiny of its protections against torture and ill-treatment by:

    • Ratifying the Optional Protocols to the International Covenant on Civil and Political Rights and to the U.N. Convention Against Torture;

    • Making the necessary declaration under article 22 of the U. N. Convention against Torture to enable the Committee to consider complaints submitted to it;

    • Inviting the United Nations Special Rapporteur on Torture and the United Nations Working Group on Arbitrary Detention, to visit and report on conditions in Egypt.

v. Recommendations to Other Agencies and Countries

Human Rights Watch calls on agencies and countries offering aid to Egypt to:

  • Condemn the criminalization of consensual homosexual conduct in Egypt, along with the practices of entrapment and torture that accompany it.
  • Call on the Egyptian government to take concrete steps to end abusive practices and improve its human rights record, including the decriminalization of consensual homosexual conduct and the implementation of measures to prevent and punish torture.
  • Ensure that all training programs for Egyptian criminal-justice officials (such as the U.S. Department of State’s Anti-Terrorism Assistance Program) contain a human rights component that includes issues of sexuality and sexual orientation in a way designed to eliminate prejudice and stigma.
  • Ensure that technological support or aid such as aid designated for telecommunications or Internet development does not contribute to surveillance or persecution of vulnerable groups, such as men who have sex with men.

Human Rights Watch also calls on the international medical profession, and bodies including the World Medical Association and the World Health Organization, to:

  • Condemn the participation of Egyptian medical professionals in torture or cruel, inhuman, or degrading treatment, and in abusive and non-consensual body searches of prisoners.

432 Article 44 of the Constitution states: “Homes shall have their sanctity and they may not be entered or inspected except by a causal judicial warrant prescribed by the law.” More sweepingly, article 45 states: “The law shall protect the inviolability of the private life of citizens. Correspondence, wires, telephone calls and other means of communication shall have their own sanctity and secrecy and may not be confiscated or monitored except by a causal judicial warrant and for a definite period according to the provisions of the law.” Constitution of the Arab Republic of Egypt, articles 44, 45.

433 Egypt ratified the ICCPR in 1982. Article 17 of the ICCPR reads:

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.

It should be stressed that the term “unlawful” in this as in other provisions does not imply that any interference embodied in national law is ipso facto legitimate in light of the Covenant. In its general comment on the right to privacy, the Human Rights Committee noted that restrictions on privacy “authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant” [emphasis added]—a Covenant which the Committee has found to bar such restrictions when based on sexual orientation. The Committee added, “The expression ‘arbitrary interference’ is also relevant to the protection of the right provided for in article 17. In the Committee’s view the expression ‘arbitrary interference’ can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.” U.N. Human Rights Committee, “General Comment No. 16, Article 17,” 32nd Session (1988), at 3, 4.

The U.N. Human Rights Committee also declared in Toonen that it “cannot accept either that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy.” Nicholas Toonen v Australia, Human Rights Committee, 50th Sess., Case no. 488/1992, U.N. Doc. CCPR/c/50/D/488/1992, para. 8.6.

434 Constitutional Court ruling in case no. 23/Judicial Year 16, March 18, 1995. The case involved an article in the Administrative Court Law barring a judge in the State Council from marrying a foreigner; the court ruled the article unconstitutional.

435 Bernstein and Others v von Weilligh Bester and Others NNO, 1996 [2] SA 751 (S. Afr. Const. Ct.).

436 National Coalition for Gay and Lesbian Equality et. al. v Minister of Justice et. al., 1999 [1] SA 6 (S. Afr. Const. Ct.).

437 National Coalition for Gay and Lesbian Equality et. al. v Minister of Justice et. al., 1999 [1] SA 6 (S. Afr. Const. Ct.) (Sachs, J., Concurring).

[438] Nicholas Toonen v Australia, U.N. Human Rights Committee, 50th Sess., Case no. 488/1992, U.N. Doc. CCPR/c/50/D/488/1992, at 8.7.

[439]For example, see U.N. Human Rights Committee, “Concluding Observations of the Human Rights Committee: Poland,” 66th Session, U.N. Doc. CCPR/C/79/Add.110, at 23: the Committee urged the inclusion of constitutional protections against sexual-orientation-based discrimination. In the case of Trinidad and Tobago, the Committee urged that it “extend the provisions” of anti-discrimination legislation “to those suffering discrimination on grounds of age, sexual orientation, pregnancy or infection with HIV/AIDS.” “Concluding Observations of the Human Rights Committee: Trinidad and Tobago,” U.N. Doc. CCPR/CO/70/TTO,November 3, 2000, at 11.

[440] “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,” U.N. Doc. E/CN.4/1999/39, 6 January 1999, at 77.

441 U.N. Human Rights Committee, “Concluding observations of the Human Rights Committee: Egypt,” U.N. Doc., CCPR/CO/76/EGY, November 28, 2002.

442 “Report of the Special Rapporteur on the question of torture and other cruel, inhuman and degrading treatment or punishment,” U.N. General Assembly, U.N. Doc. A/56/156, July 3, 2001.

443 U.N. Committee Against Torture, “Concluding Observations: Egypt,” U.N. Doc. CAT/C/XXIX/Misc.4, November 20, 2002, at D(e) and E(k). Egypt acceded to the U.N. Convention Against Torture in 1986.

444 U.N. Committee Against Torture, “Concluding Observations: Egypt,” U.N. Doc. CAT/C/XXIX/Misc.4, November 20, 2002, at E(k).

445 “Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” G.A. Res. 37/194, annex, 37 U.N. GAOR Supp. (No. 51) at 211, U.N. Doc. A/37/51 (1982).

The “Declaration of Tokyo,” adopted by the 29th Assembly of the World Medical Association in 1975, sets forth comparable ethical principles governing physicians’ conduct in relation to torture. It mandates that:

—The doctor shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offence of which the victim of such procedure is suspected, accused or guilty, and whatever the victim's belief or motives, and in all situations, including armed conflict and civil strife.

—The doctor shall not provide any premises, instruments, substances or knowledge to facilitate the practice of torture or other forms of cruel, inhuman or degrading treatment or to diminish the ability of the victim to resist such treatment.

—The doctor shall not be present during any procedure during which torture or other forms of cruel, inhuman or degrading treatment are used or threatened.

“Guidelines for Medical Doctors concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in relation to Detention and Imprisonment,” adopted by the 29th World Medical Assembly, Tokyo, Japan, October 1975.

446 “Proposed Guidelines for Practice in Difficult Settings,” in Dual Loyalty and Human Rights in Health Professional Practice: Proposed Guidelines and Institutional Mechanisms, A Project of the International Dual Loyalty Working Group, A Collaborative Initiative of Physicians for Human Rights and the School of Public Health and Primary Care, University of Cape Town, Health Sciences Faculty (Cape Town: University of Cape Town, 2002), pp. 73-76.

447 Ibid.

448 “Statement on Body Searches of Prisoners,”adopted by the 45th World Medical Assembly, Budapest, Hungary, October 1993.

449 “Policy on Body Searches,” adopted at the Annual Representative Meeting of the British Medical Association, 1989.

450 Ibid. In carceral conditions, however, the medical practitioner's should not merely seek the consent of subjects, but ascertain whether it is informed and freely given. The British Medical Association, again specifically addressing body searches, states:

In order for consent to be “valid” the individual must have been given sufficient, accurate and relevant information; the individual must have the competence to consider the issues and to reach a decision; and that decision must be voluntary in terms of not being coerced. There are a number of ways in which the ability of detainees to give consent may be compromised:

— the individual's competence to make a decision may be affected by illness, fear, fatigue, distress or by the effects of alcohol or drugs;

— the lack of privacy during the consultation may affect the individual's willingness to ask questions in order to receive sufficient information to make an informed decision;

— the individual may give general consent to anything proposed in the hope of being released more quickly without considering the actual procedure to be undertaken;

— the fact that a refusal to permit an intimate search may be seen to imply guilt may pressurise the patient to give consent. …

The acuity of all these pressures upon a prisoner facing trial for “debauchery” in Egypt makes it unlikely that even express effort to obtain consent would elicit an unequivocal expression of the detainee's will.

451 “Ethical Principles for Medical Research Involving Human Subjects” (Declaration of Helsinki), adopted by the 18th World Medical Association General Assembly, Helsinki, Finland, June 1964.

452 The travaux preparatoires to article 9 of the Convention make clear, in the words of one commentator, that “arbitrary” does not simply mean “unlawful” arrest or detention, but includes police or judicial actions that display “elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality,” though the reason for the arrest may lie within the letter of the law. In particular, “the specific manner in which an arrest is made must not be discriminatory and must be able to be deemed appropriate and proportional in view of the circumstances of the case.” Manfred Nowak, CCPR Commentary (Kehl: N.P. Engel, 1993), pp. 172-73.

453 U.N. Working Group on Arbitrary Detention, “Opinion no. 7/2002 (Egypt)”, at 7 and 14-15.

454 The Working Group stated that it “based its opinion on that of the Commission on Human Rights [sic], according to which the reference to 'sex' in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation. “ “Report of the Working Group on Arbitrary Detention,” U.N. Doc. E/CN.4/2003/8, December 16, 2002, at 68 and 69. The Working Group sent an urgent appeal (with the U.N. Special Rapporteur on the Independence of Judges and Lawyers, and the U.N. Special Rapporteur on Torture) to the Egyptian government on May 17, 2001, concerning the arrests at and around the Queen Boat; it sent another appeal on November 19, 2001, with the U.N. Special Rapporteur on the Independence of Judges and Lawyers, concerning the arrests in Boulaq al-Dakrour. See “Report of the Special Rapporteur on the Independence of Judges and Lawyers,” U.N. Doc. E/CN.4/2002/72, February 11, 2002, at 57, 59, 64.

455 Articles 37 and 40 of the U.N. Convention on the Rights of the Child protect children against torture and arbitrary arrest, and defend the child’s rights both to due process and to respect for “the needs of persons of his or her age” (article 37c), including separation from adult prisoners and regular contact with his or her family.

456 Teixeira de Castro v. Portugal, European Court of Human Rights judgment, 44/1997/828/1034, 9 June 1998, at 36, 38, 39.

457 Manfred Nowak, an authoritative commentator on the ICCPR, notes that a “liberal interpretation of public morals is correct… as a general principle [if] freedom of expression and information is to fulfill its function as one of the most important civil and political rights.” He also observes that “there can be no doubt that every communicable type of subjective idea and opinion, of value-neutral news and information, of commercial advertising, art works, political commentary regardless of how critical, pornography, etc., is protected by Art. 19(2), subject to the permissible limitations in para. 3. It is thus impossible to close out undesirable contents, such as pornography or blasphemy, by restrictively defining the scope of protection.” Manfred Nowak, CCPR Commentary, pp. 358 and 341.

458 Egypt’s Law on Non-governmental Organizations (NGOs) (Law 84/2002) prohibits associations which violate “public order or morals” (article 11)—one of many provisions in the legislation which could be used to restrict the activities and threaten the existence of civil society. The law has already been used to ban human rights organizations, including an attempt by activists to found an Egyptian Association Against Torture: See Human Rights Watch press release, “Egypt’s New Chill on Rights Groups: NGOs Banned, Activist Harassed,” June 21, 2003, at

459 U.N. Declaration on the Rights and Responsibilities of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (U.N. General Assembly Resolution 53/144, March 8, 1999), article 5.

460 “Report of the Special Representative to the Secretary General on human rights defenders,” U.N. Doc. E/CN.4/2001/94, at 89(g).

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