DRP Report on Morsi Detention Conditions
The Detention Review Panel (DRP) has published its report on the detention conditions of Dr. Mohamed Morsi, Egypt’s first democratically elected president who was overthrown by the army in 2013.
Executive Summary
The Detention Review Panel (DRP) is a Panel of British Parliamentarians, who are mandated to Review the detention conditions of former President Mohamed Morsi. The Panel is chaired by former Foreign Affairs Select Committee Chair, Crispin Blunt MP and its members include former Minister of State for Justice, Lord Edward Faulks QC and Health and Social Care Committee member Dr Paul Williams MP. Dr Tim Moloney QC and Sam Jacobs of Doughty Street Chambers are Counsel to the DRP and Tayab Ali of ITN Solicitors is the Legal Secretariat.
Dr Mohamed Morsi was Egypt’s first democratically elected civilian President, serving as President of Egypt, from 30th June 2012 to 3rd July 2013. He was removed from power by General Abdel Fatah el‐ Sissi, during a military coup d’état1 in July 2013. He has been in detention since that time.
The DRP considered newly obtained and open source evidence as part of their Review into the detention conditions of Dr Morsi.
The Detention Review Panel (DRP) made the following findings:
– Dr Morsi is no ordinary prisoner. He was the elected President of Egypt. We considered his detention in the context the treatment of members of the Muslim Brotherhood and the Freedom & Justice Party in Egypt. Every independent report that was considered, including reports from the US State Department and UK Home Office made reference to the particularly harsh treatment currently faced by members of the Muslim Brotherhood and Freedom & Justice Party. The Egyptian government has not given us any cause to think that Dr Morsi is being treated any better.
– The Tora prison complex, also known as the Scorpion Prison, has been very harshly condemned for its inability to treat prisoners in accordance with both Egyptian and international law.
– The DRP finds that the allegations made by Dr Morsi, directly in his own words, in his statement to the Court in November 2017, and the allegations made by Abdullah Morsi, appear to be consistent with the allegations recorded by the United Nations, the United States’ State Department, Human Rights Watch, Amnesty International, news reports and other human rights organisations about the treatment of prisoners in Egypt.
– Our findings are that the allegations made by Dr Morsi, on a balance of probabilities, are likely to be true. They are consistent with the findings of the general treatment of prisoners, in particular political prisoners, in Egypt.
– We accept in full the finding of Dr Paul Williams. We find that Mohammed Morsi is receiving inadequate medical care, particularly inadequate management of his diabetes and inadequate management of his liver disease. We accept the opinion that the consequence of this inadequate care is likely to be rapid deterioration of his long‐term conditions, which is likely to lead to premature death.
– The DRP finds that on a balance of probabilities the detention of President Morsi is below the standard expected by international standards for prisoners, and would constitute cruel, inhuman and degrading treatment. We also find that the detention could meet the threshold for torture in accordance Egyptian and International law.
– The DRP finds that culpability for torture rests not only with the direct perpetrators but those who are responsible for or acquiesce in it. We find that the conditions of Dr Morsi’s detention would be of such continuing interest to the whole chain of command that the current President could, in principle, be responsible for the crime of torture, which is a crime of universal jurisdiction.
– We fear that if Dr Morsi is not provided with urgent medical assistance, the damage to his health may be permanent and possibly terminal. The failure to provide Dr Morsi with adequate medical treatment is a breach of Egyptian Law and the Mandela Rules.
– The panel are deeply concerned about the conditions and detention of Dr Morsi and invite the Egyptian government to allow the DRP, or any other reputable independent body, to conduct a visit.
Summary of DRP Review
The DRP has been commissioned by family members of Dr Morsi following concerns they had about his treatment in Egyptian prisons. They were concerned by their witnessing a deterioration of his health and by statements Dr Morsi had made about his detention conditions and health when he was brought to Court. Since his detention and removal as President in 2013, Dr Morsi has effectively been incommunicado by reason of his detention in solitary confinement. Dr Morsi’s family have concerns about Dr Morsi’s deteriorating health and lack of appropriate medical treatment.
The Morsi family instructed leading, London based, human rights law firm ITN Solicitors to convene a Review Panel. ITN Solicitors invited Crispin Blunt MP to chair the panel and select its members.
The DRP included as its members former Minister of State for Justice, Lord Edward Faulks QC and medical doctor, Dr Paul Williams MP. Legal counsel to the Panel are barristers, Tim Moloney QC and Sam Williams of Doughty Street Chambers in London.
The Panel were mandated to:
– Determine Dr Morsi’s detention conditions;
– Determine Dr Morsi’s current state of health;
– Establish if his detention conditions, including provision of medical care, are compliant with the requirements of Egyptian and International Law; and
– Prepare a report detailing the Panel’s findings
The DRP launched a website www.detentionreview.com and requested information about Dr Morsi’s detention in Egypt. Evidence could be sent by any interested party to the DRP through the website.
The Panel Chair, Mr. Crispin Blunt MP, wrote directly to His Excellency Nasser Kamel, the Egyptian Ambassador to the United Kingdom, requesting assistance with the facilitation of a visit to Egypt to see Dr Morsi. The letter explained the nature of the DRP, its constitution, mandate and that the DRP wished to meet with and take evidence directly from people responsible for the detention of Dr Morsi.
There has been no official response from the Egyptian Embassy or the Egyptian Government addressed to the DRP, or the Secretary of the Panel. However, following the announcement of the DRP, reports emerged that Dr Morsi’s son was threatened with arrest and the Egyptian Foreign Affairs Committee had expressed dissatisfaction the DRP’s request to visit Dr Morsi.
The DRP was able to review a significant amount of material which included:
– First hand witness testimony from Abdullah Morsi (Dr Mohamed Morsi’s son)
– First hand witness testimony from medical professionals (anonymised for security)
– US State Department Country Reports
– UK Home Office Guidance Papers
– Opinions from the United Nations Working Group on Arbitrary Detention
– Letters from United Nations Special Rapporteurs
– Reports from credible and well respected Human Rights NGOs.
– News articles
– International and National Legal Instruments.
– Documents submitted to the DRP
Scope of the Review
The DRP had been commissioned by family members of Dr Morsi following concerns they had about his treatment in Egyptian prisons. The family were concerned by their witnessing a deterioration of his health and by statements Dr Morsi had made about his own detention conditions and health when he was brought to Court.
Since his detention and removal as President in 2013, Dr Morsi has effectively been incommunicado by reason of his detention in solitary confinement. Dr Morsi’s family have concerns about his deteriorating health and lack of appropriate medical treatment.
As a result of lack of access to Dr Morsi and the significant lack of credible information being provided by the Egyptian authorities, the family asked leading London human rights law firm, ITN Solicitors, to commission an independent group of MPs and lawyers to investigate Dr Morsi’s detention and treatment and report their findings. The Detention Review Panel was constituted and mandated to:
1. Determine Dr Morsi’s detention conditions;
2. Determine Dr Morsi’s current state of health;
3. Establish if his detention conditions, including provision of medical care, are compliant with the requirements of Egyptian and International Law; and
4. Prepare a report detailing the Panel’s findings.
The mandate made clear that members of the public, or any other person or party, could submit evidence to the Detention Review Panel through the website itself.
DRP Website
The DRP launched a website on 5th March 2018 which provided the ability for individuals, groups and States to provide evidence if they wished to do so. The website address is www.detetentionreview.com
Letter to the Egyptian Embassy
In order to build confidence with the Egyptian government the Panel Chair, Mr Crispin Blunt MP, wrote directly to His Excellency Nasser Kamel, the Egyptian Ambassador to the United Kingdom, requesting assistance with the facilitation of a visit to Egypt to see Dr Morsi.4 The letter explained the nature of the DRP, its constitution, mandate and that the DRP wished to meet with and take evidence directly from people responsible for the detention of Dr Morsi.
In the letter, Mr Blunt informed the Ambassador that he had been “invited by ITN Solicitors on behalf of the family members of Dr Mohammed Morsi, elected and effective President of the Republic of Egypt between 2012 and 2013 to put together a panel of suitable parliamentarians to review the conditions of Dr Morsi’s detention”. Mr Blunt stated that he had accepted the role of Chair and invited panel members that would “command confidence from the Egyptian Government, as well as Dr Morsi’s family”, and constituted the panel with a mandate to review Dr Morsi’s detention conditions.
To reassure the Egyptian government, that the DRP acted in good faith, the letter made clear that the mandate of the DRP was to enquire into the conditions of Dr Morsi’s detention and treatment since the arrest in 2013 and that the Panel would act independently.
The DRP, through the letter, provided significant detail about the rationale of the Review and the matters that would be reviewed by the Panel, including concerns that the family had as to whether Dr Morsi’s treatment met accepted international and Egyptian legal standards concerning the detention of individuals, and the adequate provision of medical treatment.
The letter explained that the Panel had been informed that the circumstances of Dr Morsi’s detention and his accommodation may have had, and continued to have, a severe impact on his health. They informed the Embassy that it had been reported to them that the prison authorities had extended prohibitions to prevent Dr Morsi from receiving medicine, medical treatment and/or food from outside the prison. It provided the Embassy with details of the medical condition Dr Morsi is said to have been suffering from and how his detention conditions were said to be exacerbating his health complaint.
The letter described the understanding the Panel had of the medical treatment Dr Morsi probably required.
The DRP explained that they wanted to review Dr Morsi’s accommodation conditions as they had been informed that he had been held in solitary confinement and generally incommunicado for around three years in Tora Prison5. He had been denied family visits, other than on one occasion, and visits from his lawyer, other than on two occasions. The Panel had been told that Dr Morsi was not allowed to mix with the general population of the prison and it followed that Dr Morsi had very little contact with other prisoners.
The letter stated that Dr Morsi’s location had been kept secret and he was denied communication with all outside persons, including lawyers and family, until his first appearance in Court in November 2013. The DRP wished to review the assertion that all visits to Dr Morsi had been prohibited in the past three years, other than one in June 2017 when a member of a defence team and Dr Morsi’s wife and daughter were permitted to see him, and in November 2017 when two members of Dr Morsi’s defence team were allowed to visit him following a Court Order.
The primary purpose of the letter to the Egyptian Embassy was to request the facilitation of a visit for the panel members to travel to Egypt to visit Dr Morsi in detention so they could review the prison conditions. The letter explained that in addition to visiting Dr Morsi, the Panel would like to meet and interview officials who were responsible for and tasked with the detention and treatment of Dr Morsi.
In light of the urgent nature of the request, the Panel requested that the Embassy provide a written response to the requests within ten days of the letter. The deadline would therefore expire on 15th March 2018.
On 14th March 2018, a second email was sent to the Egyptian Embassy reminding the Embassy of the deadline and requesting, at least, an update with regards to the progress of the request to visit Dr Morsi.
Response from the Egyptian Government
There has been no official response from the Egyptian Embassy or the Egyptian Government addressed to the DRP, or the Secretary of the Panel.
However, there have been two significant events since the DRP sent their letter to the Egyptian Government and announced the DRP.
It has been reported in the Egyptian media that an Egyptian lawyer has filed a complaint to the Egyptian Attorney General with regards to Abdullah Morsi’s request to the DRP to conduct a Review of his father’s detention6. The news report details a letter which alleges that by virtue of Abdullah Morsi’s request for the DRP to review his father’s detention, he had lied and insulted Egypt. The letter claimed the allegation was sufficient for formal criminal charges against Abdullah Morsi and that the Attorney General should initiate investigative proceedings. The letter also makes the claim that it would not be permissible under Egyptian law for Dr Morsi to receive a visit from British Parliamentarians. The letter also attacks the British Media as “lying and fabricating” in order to damage the human rights reputation of Egypt.
A further report in the El Balad Online news states that the Egyptian Foreign Relations Committee of the House of Representatives had “expressed dissatisfaction” with news published in the Guardian that the DRP had requested to visit Dr Morsi in detention7. The report states that the committee described the DRP request as “blatant and unacceptable interference in Egyptian affairs”, which is not justified by the claim of defending human rights that are being violated in different parts of the world, including the United Kingdom.
The report states that the Committee said, “it is well known that former President Mohammed Morsi is being held under the law in pursuance of Court rulings issued after a fair trial he received as an Egyptian citizen, with all rights and duties”. The Committee stressed that the Egyptian Parliament was keen to make sure that all Egyptian citizens, including detainees subject to criminal proceedings, receive proper healthcare. The Committee expressed its concern about the relationship of some prominent British public figures, including Parliamentarians, to the Muslim Brotherhood, which they state would lead to the spread of global terrorism. The Committee stressed that Egypt was fighting global terrorism on behalf of the world and that the civilised world should support the Egyptian efforts to combat and counter terrorism.
The DRP received no formal communication from either the Foreign Relations Committee, the Egyptian Embassy or the Government.
Dr Mohammed Morsi
Dr Mohamed Morsi, full name Mohamed Mohamed Mursi Isa Al‐Ayyat, was born on 20th August 1951. He is Egypt’s first democratically elected civilian President, serving as President of Egypt from 30th June 2012 to 3rd July 2013. He was removed from power by General Abdel Fattah el‐Sissi, during a military coup d’état in July 2013.
Personal Life
Dr Morsi is married to Naglaa Ali Mahmoud. He has five children. They are, Ahmed Morsi, who is a physician in Saudi Arabia; Shaimaa, who graduated from Zagazig University; Osama, who is a lawyer; Omar who is graduate and; Abdullah, who is a student at the Canadian University in Cairo. His two oldest children, Ahmed and Shaimaa, were born in California and are US citizens.
Professional Life
Dr Morsi is a professor of engineering. From 1982 to 1985 he was an assistant professor at the California State University in Northridge. He is considered to be an expert on precision metal surfaces and worked with NASA in the early 1980s on space shuttle engines. In 1985, Dr Morsi became a professor at Egypt’s Zagazig University and was appointed the Head of the Engineering Department.
Political Life
Dr Morsi has served as an Egyptian politician. He was first elected to Parliament in the year 2000. He served as a member of Parliament from 2000 to 2005 on an independent mandate. Dr Morsi was a member of the Muslim Brotherhood until 2011 when he became President of the Freedom and Justice Party, which was established in order to participate in presidential elections following the removal of President Mubarak. Many see the Freedom and Justice Party as the political adjunct of the Muslim Brotherhood.
On 28th January 2011, Dr Morsi was arrested along with 24 other Muslim Brotherhood leaders and detained in Wadi el‐Natrun Prison. During the Egyptian revolution and a breakdown in the civil structure, Dr Morsi left the prison.
In 2012, Dr Morsi participated in the presidential elections as the Freedom and Justice Party candidate. On 24th June 2012, Dr Morsi was announced as the winner of the presidential elections with 51.73% of the vote and in taking his seat as President of Egypt, he resigned from the presidency of the Freedom and Justice Party.
On 30th June 2012, Dr Morsi was sworn in as Egypt’s first democratically elected President. Almost precisely one year later, on 1st July 2013, the Egyptian Armed Forces issued a 48‐hour ultimatum threatening to enforce the will of the people and remove the President.
On 2nd July, having publicly rejected the Egyptian Army’s ultimatum, President Morsi announced his plans for national reconciliation and resolving the political crisis which had gripped Egypt. On 3rd July, General Abdel Fattah el‐Sissi announced a roadmap for the future of Egypt and forcibly removed President Morsi and much of his government from office in a military coup. He appointed Adly Mansour as the interim President of Egypt.
Immediately following the coup, Egypt saw thousands of unarmed civilians take to the streets to protest against the removal of the President. Sit‐ins were established in Cairo and across Egypt.
The Armed Forces and Police responded with “excessive lethal force” which was “unprecedented in Egypt” seeing thousands of protestors killed and many tens of thousands more being detained.8 The “gravest incident of mass protester killings occurred on August 14, when security forces crushed the major pro‐Morsi sit‐in in Rab’a al‐Adawiya Square in the Nasr City district of eastern Cairo. Using armoured personnel carriers (APCs), bulldozers, ground forces, and snipers, police and army personnel attacked the makeshift protest encampment, where demonstrators, including women and children, had been camped out for over 45 days, and opened fire on the protesters, killing at least 817 and probably more than 1,000”9.
Dr Morsi has been in incommunicado detention since June 2013 and subjected to a number of criminal prosecutions. The proceedings are detailed below.
Trials
Dr Morsi has been subject to a number of trials since his detention and removal as President. The DRP have not reviewed the trials or the fairness of the trials as they are outside its mandate. The trial processes are detailed in this report to provide a context to Dr Morsi’s detention.
The trials have resulted in Dr Morsi being sentenced to significant periods of imprisonment, fines and to death. At the time of writing this report all death penalties had been overturned, however, some trials are still pending, and those trials could result in the re‐imposition of the death penalty.
Dr Morsi’s family deny that he has been provided with fair trial processes and dispute the verdicts in all the criminal legal proceedings.
The Ittihadya Case
The initial basis of Dr Morsi’s detention followed his alleged involvement in what is known as the Ittihadya case. This case relates to protests, which occurred within the vicinity of the Ittihadya Palace in Cairo in December 2012.
Incidents at the protest claimed the lives of a number of demonstrators, including 10 members of the Muslim Brotherhood, and a journalist who was covering the demonstration. It followed a number of peaceful and unarmed demonstrations surrounding the Palace of the Ittihadya. Protestors gathered outside the Palace in an attempt to prevent supporters of a counter‐revolution from storming the palace and assassinating Dr Morsi and those present with him inside the Palace.
The Ittihadya case remained dormant until after the military coup d’état removed Dr Morsi from government. Following the coup Dr Morsi and his Presidential team were accused of murder and attempted murder of the demonstrators.
Following what is described by his legal team as a “woefully inadequate trial”, Dr Morsi was convicted on charges of:
1. Display of force and violence;
2. Unlawful arrest and detention; and
3. Torture.
In April 2015, Dr Morsi was sentenced to 20 years imprisonment and a further 5 years of probation.
Dr Morsi rejects the trial on the basis that it violated the constitution and the law regarding appropriate trial procedure. On 19 June 2015, the verdict was appealed before the Court of Cassation. On 22 October 2016, the Court of Cassation rejected the appeal and upheld the previously imposed sentence.10
Wadi Al‐Natroun Prison Case
On the same date (22 October 2016), Dr Morsi was also sentenced to “death by hanging” for his alleged involvement in the 29 January 2011 escape from Wadi Al‐Natroun prison. The death sentence has since been overturned by the Court of Cassation, and returned to the criminal court. The matter is now pending before Judge Mohammed Shirin Fahmi.11
Disclosing State Secrets & Membership of the Muslim Brotherhood Case
In September 2014, the Supreme State Security Prosecution, issued an indictment that alleged that Dr Morsi, and several others in his team, “embezzled” stolen reports issued by the General Intelligence and War Services, the Armed Forces, and the National Security Sector of the Ministry of Interior and the Administrative Control Authority. The documents were said to include highly classified information about the armed forces, and the general policies of the State of Egypt.
The allegations suggest that the intention was to hand those documents to the Qatari intelligence services through the Al‐Jazeera media, with the intention of damaging the political, diplomatic, and national interests of Egypt.
The case also included the Prosecution’s charges of: asking for money for the benefit of a foreign state with the alleged intention of committing a harmful act in the interests of the country; participating in a criminal agreement intended to commit such crimes; taking command and joining a terrorist group established contrary to the provisions of the law, namely the Muslim Brotherhood.
On 29 June 2015, Dr Morsi, and others, were sentenced to life imprisonment by the Criminal Court, on charges of “handing over the secrets of the defence of the country to the Iranian Revolutionary Guard, and Hamas”. This decision has also subsequently been overturned, and the matter returned to the Criminal Court, where again, it is being heard by Judge Mohammed Shirin Fahmi.
Further charges followed, namely that Dr Morsi and others, had attacked the freedoms of citizens and harming national unity and social peace, with a view to changing the regime by force, disrupting public order, and endangering the safety and security of society.
On 21 June 2016, the Criminal Court sentenced Dr Morsi to 25 years imprisonment on the basis of his leadership and membership of the Muslim Brotherhood. Dr Morsi was found not guilty on charges of espionage concerning the alleged communication with Qatar.12
The final ruling in this matter was confirmed before the Court of Cassation on 16 September 2017, and the sentence upheld.
Insulting the Judiciary
On 30 December 2017, the Criminal Court sentenced Dr Morsi to a further 3 years imprisonment and a two million Egyptian pounds (£81,930 GBP) fine for the allegation that Dr Morsi “insulted the judiciary”. Dr Morsi intends to appeal this sentence.
Of those matters finalised, Dr Morsi has thus far been sentenced to 48‐years imprisonment plus the fine of two million Egyptian pounds.
Dr Morsi’s detention
Dr Morsi is being detained incommunicado within the Tora Prison Complex. Very little is known about his actual detention and conditions. The little that has become known arises from the content of statements that he has made to the Court.
Sources of Evidence
The evidence used to compile the information in this report has come from a variety of sources. The DRP wished to review information about:
1. The conditions of prisons in Egypt including the provision of health care
2. Dr Morsi’s conditions of detention
3. Dr Morsi’s medical condition
4. Family and lawyer access to Dr Morsi
5. International law
6. Egyptian law
The DRP had requested that the Egyptian Embassy facilitate a visit to Egypt to see Dr Morsi in person in detention. They had hoped the visit would allow them to interview not only Dr Morsi, but also prison and government officials and directly obtain primary evidence. As the Egyptian Embassy did not formally acknowledge or respond to the request, this avenue of evidence gathering was closed. The DRP has had to rely on other credible sources of evidence to form their view.
The DRP was able to review a significant amount of material which included:
– First hand witness testimony from Abdullah Morsi (Dr Mohamed Morsi’s son)
– First hand witness testimony from medical professionals (anonymised for security)
– US State Department Country Reports
– UK Home Office Guidance Papers
– Opinions from the United Nations Working Group on Arbitrary Detention
– Letter from United Nations Special Rapporteurs
– Reports from credible and well respected Human Rights NGOs.
– News articles
– International and National Legal Instruments.
– Documents submitted to the DRP
Information about the condition of Dr Morsi’s imprisonment has come from sources spoken to specifically for the purpose of this Review as well as from sources which have already been published and are widely available.
Important evidence was provided by Abdullah Morsi, who is Dr Morsi’s son, and from interviews with Dr Morsi’s clinicians. In addition, other document reviews included reports and publications produced by the United Nations Working Group on Arbitrary Detention, the United Nations Human Rights Council, the Special Rapporteur on the Independence of Judges and Lawyers, the Special Rapporteur on extradition, summary or arbitrary executions and the Special Rapporteur on torture and other cruel, inhumane and degrading treatment or punishment. The DRP were also able to review newspaper reports which provided an excellent insight into relevant events that were occurring inside Egypt.
A number of Arabic transcripts of statements made by Dr Morsi himself in his legal proceedings were made available and reviewed by the DRP. Transcripts of statements Dr Morsi made to the Court on 8th August 2015 and 14th November 2017 were considered.
Statement of Abdullah Morsi – 14 March 2018
Evidence was taken directly from Abdullah Morsi, the youngest son of Dr Morsi.
Abdullah describes how other members of his family, including his brother Osama, who is a 32 year old lawyer, have also been detained and are in the Tora Prison complex known as the Scorpion Prison in Cairo. He states that he has only been allowed to visit his brother once and he visited him in prison approximately ten months after his arrest, though he was only allowed to visit him for thirty minutes even though Egyptian law permits longer visits.
With regard to Dr Morsi, the following extract from Abdullah Morsi’s statement is relevant to the DRP 13.
II. FATHER’S ARREST AND DETENTION
6. My father is currently detained in Tora prison complex in Cairo and has been imprisoned for the past four and a half years. For the last four and half years he has been detained, I have only been able to visit him once. I am concerned about his safety and his welfare and I make this statement to highlight and outline my concerns for him.
7. My father, Dr Mohamed Morsi, was the democratically elected president of Egypt. On 3 July 2013, the Egyptian army of Abdel Fattah el Sisi led a coup to overthrow my father from his presidency. As my father refused to accept the coup, he was arrested and imprisoned. The purpose of his imprisonment was political and to pressure him to accept the coup. For the first four months of his detention, my family and I had no idea as to his whereabouts and had no contact with him at all. We later came to understand that he was being held in a military holding centre in Alexandria. There was no trial and no charges were made against him.
8. On 4 November 2013, he was transferred to Burj Al Arab prison in Alexandria where he was held for the next 5 months. On 7 November 2013, my family and I were able to visit my father. The Security Services contacted my mother and told us where my father was detained. The visit was only half an hour and I attended with my mother, siblings and our father’s lawyer. There were five prison officers who were present in the room for the entire duration of our visit so it was difficult to communicate with him openly and for him to communicate with us about his conditions. On the whole, he seemed to be in good health and shape and the guards allowed us to give him clean clothes, but we were all worried about him. This was the only time I was allowed to visit my father. Every request for a visit thereafter has been refused, without any basis or justification. After approximately 5 months, he was transferred to the Tora Farm prison in the Tora prison complex.
9. In June 2017, my mother, sister and my father’s lawyer were able to visit my father for a second time. Although my entire family (except for Osama as he was in prison at the time and still is) and I attended the prison to visit my father, the prison guard told us that only the women were allowed to see him. My sister and mother were not able to take him any food or clothes. My father told them that the food he was being given was not adequate for his needs. He has also told the Court this on numerous occasions [exhibit page C014]. He has not been provided with any cooked food and, for the duration of his imprisonment, has only been provided with canned foods. He has also been forced to sleep on the concrete floor, rather than a bed. There was a stark difference in treatment from the first visit in comparison to this second visit and it appears that his condition has gradually gotten worse.
10. It was disappointing to be turned away by the prison guards and prevented from seeing my father without reason when I had not seen him for four years. My sister, mother and my father’s lawyer were only allowed to spend approximately 25 minutes with him. I cannot understand how one can possibly summarise four years of their life and all the injustices suffered in the space of 25 minutes.
11. I try to go to Tora prison to visit my father almost once a month and each time I do, I am turned away by the prison guards. I have no way of going about arranging a visit so I just turn up there and ask to see him in the hope that they may allow me to do so. Even though I know they will not allow me to see him, this does not stop me from trying.
III. FATHER’S CONDITIONS IN PRISON
12. As I have only seen and spoken directly to my father once in the four and a half years he has been in prison, my knowledge of his conditions comes from what I hear and read on the news from his Court cases and from his lawyers on the brief occasions he has been able to meet with them. I have also attended approximately 25 court hearings for my father and I have never been allowed to speak with him or see him on any of these occasions. During the hearing, he is held in a cage with tinted glass walls and nobody in the Court room is able to see him, nor can he see them. He has explained this in an oral statement he made to the Court in November 2017. I was present at this trial and the statement he made was over an hour long. There is a short excerpt of his statement which has been published in a video by the Al Jazeera news agency. I have exhibited a translated transcript of this excerpt to my statement [exhibit page C004]. In his statement, he tells the Court that most of the time he cannot even hear the witnesses speaking or his own defence team. He is not able to correct a witness, for example, if something inaccurate is stated about him.
13. My father’s lawyer also transcribed the remainder of the statement made by my father to the Court. In that statement, he describes his conditions. He speaks of his deteriorating health and requests to be visited by specialist medical professionals which have been refused. He mentions that he suffered from conjunctivitis and from diabetic coma and yet he has not received adequate medical treatment. He speaks of his severe back aches as a result of being forced to sleep on the floor. He speaks of his complete isolation from the outside world and the failure of the prison guards to address any of his needs. He has also been prevented from speaking with his lawyers and his family. I have exhibited the translated transcript of that statement in which my father describes in detail the way he has been treated [exhibit page C014].
14. In another video from a trial on 8 August 2015, also available on the internet, my father speaks of his conditions in prison, and in particular, the food he is being given. He suggests that the food given to him by the prison officers has been poisoned and he tells that Court that he is under threat. I have exhibited the translated transcript to this statement [exhibit page C001].
15. I know my father, he is a strong man and he is not the kind of person who complains. To see him in this tragic state was very upsetting and I know that he is not being treated well.
16. I understand that my father’s health condition is deteriorating and I am anxious that immediate action is taken to ensure he is provided with the necessary medical care. My father has a number of health conditions and I understand from his pleas to the Courts and what he has told his lawyers, that he is being denied adequate medical treatment. All my knowledge about my father’s health comes from information he has provided his lawyers, statements he has made in Court and what he has told my mother and sister when they visited him in June 2017. My father is 67 years of age and suffers from the following health conditions:
• Diabetes;
• Low blood sugar levels;
• High‐blood pressure;
• Gradual loss of vision in his left eye as a result of lack of regular treatment for his diabetes;
• Recurrent diabetic coma;
• Bone and muscular pain, including an injury to the neck and spine, as a consequence of being forced to sleep on a cement floor;
• Deterioration of liver and kidney function, due to malnutrition, and the lack of follow‐ up assessment of his medical conditions;
• Tooth decay and gum infections.
17. I understand that a physician examined my father 6 months ago but that doctor was wholly inadequate in assessing my father’s needs, having only a stethoscope and blood pressure monitor. The doctor in the prison is a general practitioner appointed by the state. He does not have the experience / speciality to address my father’s medical needs. My father requires an assessment by a radiologist, blood tests, a physiotherapist and an ophthalmologist.
18. The cell he is in is very small and does not contain a bed. Instead, he has been given two blankets and is forced to sleep on the floor. The doctor that visited him told him his back problems are to do with the fact that he is sleeping on the floor.
19. On one occasion, he cut his hand and needed stitches but he was not provided with any treatment for this. On another occasion, in 2016, my father’s blood sugar levels were so low that he fainted in the Islamic month of Ramadhan. He told the Court this at his hearing in November 2017 [exhibit page C014].
20. In addition, the food my father has been receiving has been inadequate. The provision of medical treatment or food from outside of the prison is something that is ordinarily allowed and deemed customary in Egyptian prisons, however, this is something that my father has been denied. In the statement he made to the Court in November 2017, exhibited earlier, he complained of being provided with food that had been spoiled / rotten and was not fit for consumption.
21. I understand that my father has complained to the courts about his conditions on several occasions, but nothing has been done. The prison guards are unresponsive and he often has to shout to be heard. On more than one occasion, prison guards have entered his cell at 3am in the morning and threatened him with their rifles. He told my mother this during her last visit to him in June 2017 and also mentioned this to the Court in Cairo in November 2017.
22. I understand that my father has essentially been in solitary confinement for the entire duration of his imprisonment. He does not see any other prisoners and has no contact with the outside world. He is even prevented from speaking with the guards. I know that there are many other members of the Muslim Brotherhood who are also imprisoned in the same complex but they share cells with others. Even those who do not share cells are able to leave their prison cells and communicate with other prisoners. My father, on the other hand, is completely isolated. This itself is a form of punishment. I know this because I have been told by family members of others imprisoned that none of the other inmates have seen him. He also mentions this in his statement to the Court [exhibit page C014].
23. As well as being prevented from seeing his family, my father has also been denied access to his lawyers. Over the four and a half years he has been in prison, he has only been allowed to see his lawyers on 5 separate occasions. Those visits were in November 2013, January 2014, September 2014, June 2017 and November 2017. On each occasion, he has only been allowed a maximum of half an hour with his lawyers.
24. Other than the two visits I mentioned earlier in November 2013 and June 2017, nobody in my family has been allowed to visit or have any kind of contact with my father.
Dr Morsi’s Court Statements
The most direct evidence considered by the DRP in Reviewing the detention conditions of Dr Morsi are the statements provided to them which are said to be Dr Morsi’s own words to the Court.
In particular, the DRP found the transcript of the statement made in November 2017 by Dr Morsi in Court relevant. The transcript records that Dr Morsi is concerned about his detention conditions and the deterioration in his health.
Dr Morsi states that:
• His health is deteriorating.
• He is a diabetic and takes insulin.
• He has been held in solitary confinement.
• His blood sugar level deteriorated whilst he was sleeping.
• His lack of blood sugar caused him complete unconsciousness.
• He has not had adequate food of adequate quality.
• He has been barred from communication with anyone for 23 hours a day, during which time no one can hear him, and he cannot hear anyone else.
• His diabetes has led to severe eye problems.
• He has requested medical assistance, which has been granted by the court, but has not been forthcoming in practice.
• He required an ophthalmologist for conjunctivitis, but nothing has happened.
• He suffered from back ache and pain in the bones. He was told this was because of his age and because he slept on the floor.
• He has pain when he moves his neck. He has asked for an orthopaedic consultant, but no one has responded to that.
• He is suffering from abscesses in his jaws.
• He is concerned that his diabetes coma could lead to death.
• He is concerned that he is completely cut off from the world. He has not had papers, pens, journals or a radio.
• He is not able to speak to his lawyers and he knows nothing about his legal proceedings.
• He has not been given religious books or books relating to his professional study.
• If he falls or slips in his cell he is unable to call for help and this has in fact happened.
• He states that the Dr who did examine him did not provide an honest diagnosis of his medical condition.
• He is being denied information about his family and affairs of the country.
• His solitary confinement has not been explained to him and justified.
Medical Evidence
The Detention Review Panel were able to conduct interviews with medical professionals who had first‐ hand knowledge of Dr Morsi’s medical condition prior to his detention in 2013. They were also able to consider several other sources which provided information about Dr Morsi’s health.
The evidence was considered by panel member, Dr Paul Williams MP, who prepared a report14 of his findings for the consideration of the Panel. Dr Paul Williams summarised his findings as:
“I find that Mohammed Morsi is receiving inadequate medical care, particularly inadequate management of his diabetes (there is evidence of hypoglycaemia, and no evidence that his diabetes is adequately controlled) and inadequate management of his liver disease (there is evidence he is denied a low salt diet, and no evidence that he is receiving adequate monitoring of his liver function). The consequence of this inadequate care is likely to be rapid deterioration of his long‐term conditions, which is likely to lead to premature death”.
Communication to the United Nations Working Group
On 6th December 2017 Mr. Toby Cadman of Counsel (Guernica, 37 International Justice Chambers) submitted a communication addresses to the United Nations High Commissioner for Human Rights, Working Group on Arbitrary Detention, the Special Rapporteur on Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment and the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression regarding the arbitrary arrest and detention of Dr Morsi.
The communication was submitted on behalf of Dr Morsi and outlines his position. It states that the petitioner is held in detention on the basis of four purported criminal charges, namely:
a) membership and leadership of the Muslim Brotherhood;
b) disclosing state secrets and illegally communicating with Qatar, Hamas, Lebanese, Hezbollah and the Iranian Revolutionary Guard;
c) escape from Wadi el‐Natrun Prison during the revolution of 25th January 2011;
d) demonstration and use of force and the arrest of individuals outside the rule of law in the Ittihadya Palace case and insulting the judiciary.
It states that he has been held since 29th June 2013 and provides details about the trials which the submission describes as “woefully inadequate”15. The communication details Dr Morsi’s sentencing, including the imposition of sentences of “death by hanging” and the various appeals and judgments overturning sentences.
The DRP was able to consider the sections of the Communication which provides insight to the conditions of detention and the impact that this has had on Dr Morsi’s health.16 Paragraphs 35 to 44 are reproduced below.
35- The petitioner [Dr Morsi] has been held in solitary confinement and generally incommunicado for almost three years in Tora Prison and has at no time been allowed to mix with the general population of the prison.
36- No one has seen the cell in which the petitioner is detained, but is believed to be wholly inadequate in terms of size and ventilation, nor does the cell contain a bed. The petitioner mainly has two blankets on the floor.
37- Whilst being held in Burj Al-Arab Prison, the petitioner had a bed in his cell, however since his move to Tora he has been forced to sleep on the floor.
38- The petitioner has little contact with any individual, including the guards. If an issue arises whilst in his cell, the petitioner has to shout at the top of his voice in the hope that someone hears him. It is noted that the petitioner has complained on more than one occasion that the guards are non-responsive, however he has not at any time received any response similar to the lack of response to complaints made regarding the prohibition from receiving legal or familiar visits.
39- Of further concern is that the prohibitions have been extended to prevent the petitioner from receiving medicine or food from outside of the prison, something which is ordinarily allowed and deemed customary in Egyptian prisons. Further the receipt of medicine and medical treatment outside of the prison was arranged and implemented for former President Mubarak and therefore it is unclear as to why the petitioner is not afforded the same courtesy.
40- The result of such prohibitions however has been significant to the deterioration in the petitioner’s health and wellbeing, noting that the petitioner suffers from:
a) diabetes;
b) high blood pressure;
c) gradual loss of vision in the left eye as a result of lack of regular treatment for diabetes, including the lack of insulin and diabetic appropriate diet;
d) recurrent diabetic coma;
e) bone and muscular pain, including injury to the neck and spine as a consequence of being forced to sleep on a cement floor;
f) suspected deterioration of liver and kidney function, future malnutrition and the lack of follow up assessment of his medical conditions;
g) injuries sustained as a result of the petitioner losing consciousness, including a wound to his hand which required urgent stitching, but he was prevented from receiving treatment; and
h) tooth decay and gum infections.
41- The petitioner was examined by a physician approximately six months ago, however the physician only had a stethoscope and blood pressure monitor, wholly inadequate assessing the petitioner’s needs, requires assessment by:
a) a radiologist;
b) blood analysist;
c) physiotherapy; and
d) ophthalmology at the very least.
42- The same doctor, as noted above, certified the petitioner as being well and suffering from low health complaints.
43- The health complaints noted are further exasperated by the supply of spoiled food which is unfit for consumption by the prison authorities.
44- It is clear from the above therefore the position of treatment falls foul of all international and domestic standards concerning the attention of individuals, the treatment and their fair trial rights.
The Communication to the United Nations then discusses the arbitrary nature of Dr Morsi’s detention. It states that the detention of Dr Morsi has not been carried out in accordance with international standards and as a consequence requests the United Nations to conduct an immediate investigation. 17
The Communication to the United Nations Working Group requests
a) an immediate investigation by the United Nations Working Group in order to declare the petitioner’s detention arbitrary and breach of international law and recommends his immediate release from custody;
b) promptly to examine the lawfulness of the treatment of the petitioner under its mandate;
c) promptly to take all necessary measures to ensure the personal safety of the petitioner;
d) promptly to take all necessary measures to ensure that the proceedings against the petitioner are stayed, pending a full enquiry; and
e) promptly to ensure that all individuals who are responsible for any human right violations against the petitioners that have arisen are brought to justice18.
The DRP were provided with a further follow up Communication to the United Nations, also prepared by Guernica 37, dated 15th February 2018. The further Communication provided a short update with regards to the conditions of Dr Morsi’s detention. It states that Dr Morsi has managed to advise the authors of the Communication that “he continues to be denied appropriate medical treatment for those conditions already outlined in the substantive petition of complaint, and this has led to a further deterioration of his physical and mental health”. It also states that Dr Morsi is still “being prevented from accessing his legal Counsel, be it by way of correspondence or personal attendance”.
Submission from Forward Thinking
The DRP received a letter, dated 19 March 2018, from Forward Thinking providing evidence for the panel about three detainees.
On its website Forward Thinking describes itself as: “a proactive, demand‐driven, facilitative organisation that works:
– To promote a more inclusive peace process in the Middle East.
– To facilitate political dialogues in, and between, the Arab/Muslim and Western worlds.
– To promote in the UK greater understanding and confidence between the diverse grassroots Muslim communities and the wider society including the Media and the British establishment” 19.
The letter addressed to the Chair of the DRP was authored by Forward Thinking Director, Mr Oliver McTernan, and the Political Dialogues Director, Julian Weinberg. The relevant extracts of the letter are reproduced below.
“We write to you out of deep concern for the situation facing political prisoners in Egypt. While Amnesty International and Human Rights Watch now estimate there are tens of thousands of political prisoners in Egypt, we would like to draw attention to three cases in particular.
On the 16th of March Gehad El Haddad, a spokesperson for the Muslim Brotherhood, was severely beaten in his prison cell, according to allegations from his family. Gehad’s family assert that a prison guard entered his cell and beat him around the head. Last month, his family reported that Gehad is suffering from recurrent losses of consciousness for undiagnosed reasons. They fear these additional injuries may exacerbate this existing condition and may have caused internal bleeding. Gehad has been kept in solitary confinement in the H2‐Wing 2 of Al Aqrab prison since his arrest in September 2013. All requests for Gehad’s transfer to a hospital have been denied, the family claim.
A former Chevening Scholar and Clinton Climate Initiative employee, Gehad is known by many in the international diplomatic community and media. In 2013, while serving as a Muslim Brotherhood spokesperson, Gehad was a guest of Prime Minister David Cameron’s at Chequers. In February 2017, he published an op‐ed from prison in The New York Times entitled “I Am a Member of the Muslim Brotherhood, Not a Terrorist”
https://mobile.nytimes.com/2017/02/22/opinion/i‐am‐a‐member‐of‐ themuslim‐brotherhood‐not‐a‐terrorist.html.
On the 14th of February 2018, Dr Abdelmoneim Aboulfotouh, a former presidential candidate who came fourth in the 2012 election with just under 20% of the vote, and leader of the Strong Egypt Party, was arrested. He is currently being held in solitary confinement in Tora prison. The charges he faces, including alleged support for terrorist groups, could lead to life imprisonment or the death penalty. He is in pre‐trial detention, which has been renewed twice.
Through media appearances, participation in conferences around the world, including the World Economic Forum, and meeting international delegates in Cairo, Aboulfotouh is a familiar face in the international community. During the 2012 presidential campaign, a video was released about his life: https://www.youtube.com/watch?v=Hdx3AFvo1_M
Dr. Essam El Haddad, Mohammad Morsi’s International Affairs Advisor, was arrested on the 3rd of July 2013 and has been held in solitary confinement since. Dr Essam El Haddad authored a letter from the Presidential palace hours before his arrest that can be read here: https://www.facebook.com/Foreign.Relations.President.Asst.Egy/photos/a.522553531102409.1216 28.522537587770670/618096081548153/
Dr. Essam’s family have informed us that he has suffered four heart attacks since being in prison. He is suffering from a number of additional illnesses including high blood pressure, ischemic heart disease, inguinal hernia, prostatic enlargement, rheumatoid arthritis and hypertension. His family doctor, who examined him on 25th September 2017, has recommend that he undergo a cardiac catheterization operation and have a stent installed in his coronary artery. In November 2017, Dr. El Haddad started a hunger strike in protest of prison conditions and being prevented from undergoing his operation. He halted his hunger strike when a judge ordered the operation take place. However, as of the time of writing this letter, the operation has not occurred.
In the many years we have known Dr Aboulfotouh, Dr Essam El Haddad and Gehad El Haddad, they have repeatedly espoused their commitment to democratic principles and have been vocal critics of Islamic movements that fail to adhere to these. The Egyptian government must be challenged to improve the conditions in Egyptian prisons and ensure that prisoners are provided with essential care”.
US State Department: Egypt 2016 Human Rights Report
The DRP considered the United States State Department Report: Egypt 2016 Human Rights 20.
The report provides a useful insight into the situation in Egypt which is pertinent to the consideration of the detention of Dr Morsi.
The State Department identifies due process problems, including the excessive use of preventive custody and pre‐trial detention, the use of military courts to try civilians, trials involving hundreds of defendants in which authorities do not present evidence on an individual basis and arrests conducted without warrants or judicial orders.
It specifically identifies other human rights problems, which includes disappearances and harsh prison conditions.
The State Department states that there are numerous reports that the government, or its agents, committed arbitrary or unlawful killings whilst making arrests or holding persons in custody. The State Department describes prison and detention centre conditions as follows.
“Conditions in the prison and detention centres were harsh and potentially life threatening due to overcrowding, physical abuse, inadequate medical care, poor infrastructure and poor ventilation”.
It states physical conditions of prison cells, according to domestic and international non‐governmental organisation observers, “were overcrowded and prisoners lacked adequate access to medical care, proper sanitation and ventilation, food and portable water. Tuberculosis was widespread. Provisions for temperature control and lighting generally were inadequate. Reports that guards have used prisoners, including juveniles in adult facilities, were common. Prison conditions for women were marginally better than those for men. Media reported that some prisoners protested conditions by going on hunger strike, including at Aqrab Prison in February and March”.
The State Department states that there were reports that authorities sometimes held prisoners accused of crimes relating to political or security issues separately, from common criminals and subjected them to verbal or physical abuse and punitive solitary confinement. It describes the Egyptian Penal Code as providing for reasonable access to prisoners. The report states that contrary to the Penal Code, according to NGOs, observers and relatives, the government sometimes prevented visitors from having access to detainees. Prisoners could request investigation of alleged inhumane conditions. NGO observers claimed however that prisoners sometimes were reluctant to do so due to fear of retribution from prison officials. The government investigated some, but not all, of these allegations. It was required by law that the public prosecutor continue to inspect prisons and detention centres.
Independent monitoring, the government did not permit visits by non‐governmental observers but did permit some visits by quasi‐governmental NCHR to prisons and detentions centres.
The report describes that defendants often face administrative and, in some case, political obstacles, and could not secure regular access to lawyers or family visits.
UK Home Office: Country Profile & Information Note: Egypt: Muslim Brotherhood
The British government’s Home Office has prepared a country policy information note on Egypt, and in particular the Muslim Brotherhood, dated July 201721. The purpose of the paper is to act as their policy guidance in respect of claims made to the British government of potential of fear of persecution or serious harm by the state because of a person’s actual perceived involvement with the Muslim Brotherhood.
The document is useful in understanding the risks attached in general in Egypt to members of the Muslim Brotherhood or the Freedom and Justice Party, and therefore is relevant to the detention of Dr Morsi.
At paragraph 2.2, the Home Office states the Muslim Brotherhood “remains the main political opposition to the government, despite being banned in 2013, with an estimated one million members. The group has faced prolonged crackdown by President Abdel Fattah el‐Sisi’s government, following the ousting of President Mohamed Morsi in July 2013 and its designation on 25th December 2013 as a terrorist organisation”.
The paper states that journalists affiliated with or perceived to be sympathetic to the Muslim Brotherhood have also been targeted by the state. The Egyptian Government has also closed hundreds of civil society groups with links to the MB.
The guidance states “Many hundreds of MB members have been killed or injured during protests, whilst thousands have also reportedly been detained, some in unofficial places of detention. There are also reports of MB supporters dying in police detention, instances of persons tortured to death and other allegations of killings in prisons and detention centres. Death sentences have been handed down to senior leaders in the MB for charges that include violence, espionage and jailbreak”.
The document at paragraph 3.1.3 states “persons with high profile who have been politically active have come to the attention of the authorities, particularly in demonstrations, may be subject to arrest and detention where they may be at risk of ill treatment and/or face trial without due process and disproportionate punishment, which amounts to persecution or serious harm. Additionally, persons who are not members but are high profile supporters of those perceived to support the MB, such as journalists, may be at risk of persecution or serious harm”.
Human Rights Watch ‐ Country Report: Egypt January 2018
Dr Morsi had been sentenced to death, following the conclusion of criminal prosecutions. The death sentences have all been overturned, however, he is subject to further legal proceedings in which the death penalty could again be imposed.
As a result, the DRP considered the January 2018 Human Rights Watch Country Report which provided the DRP up to date data on death penalty use in Egypt.
The report states: ‘Since July 2013 Egyptian criminal courts have sentenced over 800 people to death. Their Cassation Court, Egypt’s highest appellate court, has overturned many of those sentences and ordered re‐trials. In 2017 the Cassation Court upheld death sentences of 22 persons at least, who remain on death row, and whilst 103 more death sentences were awaiting final court decisions at time of writing. Military courts have issued over 60 death sentences of civilians since July 2013 and 90 of those sentences were confirmed by the Supreme Military Court of Appeals in 2017, raising the number of civilians executed in military courts to 25”.
UN Human Rights Council – Working group on Arbitrary Detention Opinion 39/2013
The DRP considered the UN Human Rights Council’s Working Group on Arbitrary Detention Opinion number 39/201322. The key paragraphs are:
13. The source reports that, to date, no legal basis has been invoked for the arrest of Dr. Morsi and his advisors. They have not been charged with a concrete offence or brought before a court of justice.
14. The source indicates that it has received reports, including from Dr. Morsi’s family, that he and his advisors have been placed under house arrest at the premises of the Republican Guard, where they are detained in solitary confinement under heavy security. The source reports that Dr. Morsi and his advisors have been kept incommunicado, unable to contact their families or legal counsel.
15. The source further reports that Mr. Metwally, Dr. Morsi’s lawyer, had reportedly visited Tora Prison on the date of his arrest with the goal of providing legal assistance to other senior officials of the deposed Egyptian Government who were arrested at the same time as Dr. Morsi.
16. The source fears that Dr. Morsi and his advisors may be at risk of torture and ill- treatment.
17. The source submits that Dr. Morsi and his advisors are being detained arbitrarily. In support of its allegation, the source draws the attention of the Working Group on Arbitrary Detention to its previous finding that house arrest can be considered a form of deprivation of liberty and cites the Working Group’s Opinions Nos.8/1992, 2/2002, 9/2004 and 2/2007.
18. In the source’s view, the detention of Dr. Morsi and his advisors constitutes not only a violation of their right to liberty and security of the person guaranteed by article 9 of the International Covenant on Civil and Political Rights, but also of their right to fair trial as defined in article 14 of the same treaty.
The Working Group wrote to Egypt requesting a response to the allegations. No response was forthcoming. The Working Group made the following determination:
26. Thus the deprivation of liberty of Dr. Morsi and his advisors falls within category III of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it.
27. The Working Group finds it regrettable that the Government of Egypt, which is facing a serious crisis that stems in part from similar violations of human rights, has not thought it necessary to respond to these allegations, especially regarding the President of the Republic and his advisors.
The DRP also considered letters sent to the Egyptian government by the Special Rapporteur on the independence of judges and lawyers; the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on torture and other inhuman cruel and degrading treatment dated 29 May 2015.
Summary of NGO Reports & Other Evidence Considered by the DRP
The DRP review established the situation in Egypt’s prisons in order to put a context to the concerns that have arisen from Dr Morsi’s family. As visiting Dr Morsi to establish the state of his conditions was not an option for the DRP, it became important to understand the general treatment of detainees in Egypt following the 2013 coup.
Dr Morsi was detained by Egyptian military security forces following the 2013 coup in a context where significant numbers of members and leaders of the Muslim Brotherhood/Freedom and Justice Party had been detained. Following the detentions, the Egyptian authorities initiated criminal proceedings which sometimes have involved mass trials resulting in the imposition of collective death penalties of hundreds of people at a time.
A November 2015 report by Reprieve23 summarised the position up to that point. By November 2015 and since January 2014, Reprieve state that 588 people had been sentenced to death in Egypt and 72% of those sentences were handed down as a result of involvement in political protests.
The report states that executions were on the rise, as between 2011 and 2013 only one execution had been carried out whereas, since 2014 to the time of the report, 27 people had already been executed. By that time, it had recorded that 15 mass trials had taken place.
Of the 588 people that had been sentenced to death in Egypt, 72% of those were sentenced to death for attending pro‐democracy protests. It is alleged that the majority of the condemned had been sentenced in what it called “patently unjust mass trials where tens, if not hundreds of co‐defendants are tried on near identical charges”.
The report, relying on data from Amnesty International, highlighted that fact that the Egyptian government was employing a policy of mass incarceration, mass trials and mass death sentences as the tool of political repression. Amnesty, it said, has estimated that 41,000 people are, at the time of that report in 2015, imprisoned in Egypt for supporting pro‐democracy movement.24
The report states that despite the first trials in Minya garnering widespread condemnation, Egypt’s policy of unlawful detention, mass trials and mass death penalty sentences continued. It states people are being collectively condemned. The report stated that in that in 2015, 106 people, including the ousted President Mohamed Morsi, were sentenced to death after being convicted on charges of “colluding with foreign militants” to organise a mass prison break between the 2011 uprising against Mubarak. The report states that when Dr Morsi tried to use the trial as an opportunity to protest his treatment and the treatment of his supporters, he was placed in a sound proof cubicle – now routinely used for defendants in Egypt mass trials.
The report stated that death sentences were being handed down at that time on a weekly basis by the Egyptian Courts in trials where multiple people were tried together.25 It gives an example of one trial in particular where 494 people were being tried simultaneously. The charging documents of that particular trial stated that 9 of the accused were children at the time they attended the protest. It wrongly recorded the age of one of the defendants, an Irish teenager named Ibrahim Halawa, as being 18 years old, when in fact he was only 17.
The report goes through deficiencies it claims were present in the trial processes. The report explained that executions were on the rise since 2014 and notes that eight people had been executed that year, whilst Amnesty International put the number of executions at fifteen as a minimum26.
The report states that six men who were executed by hanging in May 2015 were all found to have been tortured in order to extract confessions. It points out that it had been reported that three of the men could not have even participated in the attacks for which they were sentenced as they had been arrested a month earlier and they were still being held in detention at the time. Neither their families nor their lawyers were informed of the executions until after the event.27
The report states that rather than increasing oversight of the death penalty process in June 2015, President Sisi made it clear that the number of executions in Egypt will only increase. Speaking at the funeral of Egypt’s lead prosecutor, Sisi spoke of his aim to change the law to enable faster executions: “The arm of justice is chained by the law. We are not going to wait for this, we are going to amend the law to allow us to implement justice as soon as possible… If there is a death sentence, a death sentence shall be enforced”.28
Reprieve’s report highlights torture and death in detention.29 It states that whilst awaiting trial many of those arrested are detained incommunicado for prolonged periods. In some cases, this has amounted to enforced disappearances. The organisation ‘Freedom for the Brave’, which is an advocacy group campaigning to advance the rights of Egyptian prisoners and the 6th April youth movement who have both reported members being arrested by security forces and imprisoned, were permitted no contact with their family or lawyers.
The report also states that torture, ill‐treatment and death in custody are rife in police stations and prisons. According to Human Rights Monitor more than 300 detainees had died in prison since the coup in 2013. The cause of death is principally due to “medical neglect and torture inside prisons”. In August 2015 alone, 79 extrajudicial deaths were reported in Egypt, most occurring in prison and detention facilities. 30
In 2016, Amnesty International produced a report entitled ‘Egypt: Officially you do not exist. Disappeared and tortured in the name of counter‐terrorism’.31
This report provides a sourced and referenced account of the situation in relation to those that were arrested post the 2013 coup in Egypt.
It describes the situation in Egypt as “Five years after an explosion of popular resentment against decades of misrule and repression swept aside the authoritarian regime of President Mubarak, Egypt is a caught in a steely grip of repression. A sweeping crackdown on dissent has put at least 34,000 persons – by the government’s own admission – and possibly thousands more behind bars. They include hundreds of leaders and senior officials of the Muslim Brotherhood, supporters of ousted President Mohamed Morsi and numerous other critics and opponents of the government. Since the armed forces ousted President Morsi in July 2013, tens of thousands of people have been detained without trial, or sentenced to prison terms or death, after often grossly unfair trials”.
It states that Dr Morsi’s Freedom and Justice party, which was described as the political wing of the Muslim Brotherhood in Egypt, has been outlawed and declared a terrorist organisation by the authorities. Dr Morsi, Egypt’s first democratically elected president, has been permanently detained and prevented from receiving family visits since his overthrow. He is now held under sentence of death, together with other leaders and political activists. Alongside the government crackdown, Egypt has suffered a rise in violent attacks by armed groups targeting the police, army, judicial officials, foreign nationals and ordinary citizens. In response, the authorities have adopted draconian new counter‐terrorism laws and has taken further measures which have threatened and eroded human rights.
The report describes the emergence of a “pattern of human right violations against political activists and protestors, including students and children, hundreds of whom have been arbitrarily arrested and detained and subjected to enforced disappearance by state agents”. It states that those detained in this way “did not have access to their lawyers or families, and were held incommunicado outside judicial oversight”. It reports the allegations made by the local NGOs that an average of three to four people are abducted and subjected to enforced disappearance each day.
Amnesty’s report, which was based on more than seventy interviews with lawyers, NGO workers, released detainees and family members of victims of torture and enforced disappearance, provides an insight into the situation in Egypt. The DRP has considered the parts of the report which were relevant to their mandate.
The report goes on to state that “most of the victims of the enforced disappearance processes have been supporters of former President Morsi, whom the authorities continue to target”. It states that it does also include supporters of other political movements, including advocates perceived to promote a secular state. The report summary provides detailed information with regards to the incidents of enforced disappearance and arbitrary arrest.
Of the cases known to Amnesty International, those subjected to enforced disappearance by the Egyptian National Security Agency (NSA) were “mostly perceived supporters of Dr Morsi and/or the Muslim Brotherhood”32.
Egypt’s Scorpion Prison
The DRP considered Human Rights Watch’s report dated September 2016, which specifically addresses the conditions in the Tora Maximum Security Prison, also known as Egypt’s Scorpion prison. The report is entitled ‘We are in Tombs’33.
The report opens with a quote from Ibrahim Abd Al‐Ghaffar, a former warden, during his television interview in 2012 where he states “It was designed so that those who go in don’t come out again, unless dead. It was designed for political prisoners”.
The summary of the report states that since July 2013 “when Egypt’s military led by Defence Minister, Abdul Fattah El‐Sisi, overthrew Mohamed Morsi, the country’s first freely elected leader and high ranking Muslim Brotherhood member, Egyptian authorities have engaged in a widespread campaign of arrest targeting a broad spectrum of political opponents”.
The report states that between Morsi’s overthrow and May 2014, Egyptian authorities arrested or charged at least 41,000 people according to one documented count, and 26,000 more may have been arrested since the beginning of 2015 according to lawyers and human rights researchers.
According to the report, the influx of detainees has strained Egypt’s detention system and in the assessment of the semi‐official National Council for Human Rights, prisons operated at 150% of their capacity in 2015. The report by Human Rights Watch is based on 23 interviews with relatives of inmates, lawyers and former prisoners, and documents abusive conditions in the Scorpion prison. The report states that authorities have banned inmates from contacting their families or lawyers for months at a time, held them in degrading conditions without beds and mattresses, or basic hygiene items, humiliated, beaten and confined for weeks in cramped disciplined cells, treatment that probably amounted to torture in some cases – and interfered with their medical care in ways that may have contributed to some of their deaths. The near total lack of independent oversight in Scorpion, that was documented in the Human Rights Watch report, has exacerbated the abuses and contributed to impunity.
The report provides a history of the Scorpion prison complex and provides that the prison has for most of its history, been used to hold those viewed as Egypt’s most dangerous prisoners.
It states that the high security unit is set within the Tora Prison area, “a government compound on the Nile river at the southern edge of Cairo, Scorpion sits at the end of the States repressive pipeline, overseen at maybe all points by the interior ministry and its internal security service, national security agency. In scores of cases documented by Human Rights Watch, those deemed important to the government are investigated and arrested by the national security agents. They are tortured into confessions by those agents during periods of forced disappearance. That treatment can last for weeks or months and then they are put on trial whilst being held in isolation without meaningful access to a lawyer in prisons where national security officers hold sway”34.
Visit Bans
The Human Rights Watch’s report gives some insight into the banning of visits. It describes the Scorpion prison as lying behind a ‐ ‘veil of secrecy’ – that both permits and exacerbates abuse.
Interior ministry authorities maintain the secrecy, primarily by regularly and arbitrarily banning visits to the prison, by both family members and lawyers. From roughly March to August 2015, the Egyptian Interior Ministry banned all visits to the Scorpion prison. The ban started almost immediately after Sisi appointed Egypt’s interior minister, Magdy Abd Al‐Ghaffar, in March 2015. All of the relatives interviewed by Human Rights Watch agreed that conditions in Scorpion prison deteriorated dramatically after that time.
The report states the visit ban prevented families from delivering food, medicine and clothes, which were either unavailable or in need of supply inside the prison, which some relatives called a “starvation policy”.
The report details family members explaining that their relatives had lost 29 to 34kg of weight and stated that at least six Scorpion inmates died in custody during or soon after the lockdown period. The ban even prevented some family members from visiting relatives on death row who were executed without notice, which it states is a violation of Egyptian law.
Accommodation Conditions
The report provides significant detail about accommodation conditions of the prison and describes them as ‘poor’.
The report states that Scorpion authorities do not allow inmates to possess basic necessities for comfort and hygiene including soap, shampoo, comb, toothbrushes, toothpaste, shaving kits, plates, eating utensils or other items, such as watches, books, prayer rugs and paper or writing instruments, newspapers and books, except school books in some cases, are forbidden. The denial of basic necessities for hygiene has caused or exacerbated inflictions like skin rashes and infections, and left inmates unable to maintain their usual physical appearance.
According to relatives, cells in Scorpion do not contain beds. Instead, inmates sleep on low concrete platforms. Most relatives said that their family members have never had mattresses and are reliant on two or three blankets provided by the prison or flattened cardboard boxes for cushioning. One family told Human Rights Watch that their relative had a mattress in his cell and three said that their family members had mattresses in the past, but that the prison authorities confiscated them.
Denial of hygiene and medical care
The report states that the authorities’ denial of basic items of comfort and hygiene amounts under international norms for treating prisoners, to degrading treatment apparently intended to humiliate them. This is also a breach of the constitution of Egypt and the African Charter.
The report provides significant information on interference with medical treatment and states that interior ministry officials regularly interfere with Scorpion inmate’s medical treatment. It states during periods when visits are banned, they forbid relatives from delivering medicine which is unavailable in the prison pharmacy. Even when visits are allowed, guards sometimes arbitrarily seize medication, stripping pills out of their packaging and throwing them away, or mixing pills in a bag, meaning that often times not all the medicines will be delivered to the pharmacy, relatives said.
Several families said that national security and prison authority officers have denied requests by prisoners to be taken outside Scorpion for medical care – even when such requests were endorsed by prosecutors – and have flouted Doctors’ instructions by returning prisoners to Scorpion before their treatment finished. The Scorpion authorities almost never tell relatives when inmates fall ill, or are transferred to outside clinics or hospitals.
The report states there is no hospital inside Scorpion and that one interviewee stated that inmates do not receive regular visits from a prison Doctor, as mandated by Egyptian law. The denial of care has left Scorpion inmates suffering from serious medical problems – including diabetes, hepatitis C, epilepsy and heart disease – without regular access to their prescribed medicine or specialist treatment. Prisoners with chronic or advanced illnesses are particularly vulnerable in such an environment35.
Deaths in Custody
At least six Scorpion inmates died in custody during or soon after the period in 2015 when all visits were banned. Relatives and lawyers of three of the six inmates told Human Rights Watch that the authorities had refused to consider conditionally releasing them on medical grounds, prevented them from receiving timely treatment, and failed to seriously investigate their deaths. In one case, prosecutors withheld a burial permission form until a relative of the diseased inmate promised not to file a complaint about the lack of medical care.
The report describes the fate of inmate Farid Ismail – a former member of parliament for the Muslim Brotherhood’s Freedom and Justice Party, who died in May 2015, around a week after falling into hepatic coma in his cell in Scorpion and being transferred to an outside hospital. It details a statement provided by Khairat Al‐Shater, (a deputy supreme guide of the Muslim Brotherhood, who was held in Scorpion), to his daughter that prison officers had ignored inmates pleads to help Ismail.
As a result of the poor treatment, Human Rights Watch describes how the conditions led some detainees to begin a hunger strike in February 2016 and by the following month at least 57 inmates had joined, according to an inmates’ relative. This potentially signifies the seriousness of the conditions within the prison.
The report by Human Rights Watch details allegations of their interviewees with regards to the lack of proper medical care in the prison. The report states that prisoners held in Scorpion do not receive visits from Doctors nor does Scorpion have its own medical clinic, but it does have a pharmacy. When prisoners need medical attention, the authorities transfer them to Tora Liman Prison Hospital, which is located elsewhere in the Tora Prison complex and lacks the kind of treatment available in outside hospitals. The interviewees reported that prisoners receive cursory care before being returned to Scorpion. Prisoners were not transferred and sometimes looked to fellow inmates with medical experience for advice.
The report does confirm that in some instances the authorities have transferred inmates to outside hospitals for treatment, but the interviewees described several serious failings with this procedure. The report states that the authorities have delayed transfers, sometimes for so long that the treatment is no longer available or seriously delayed, that they require inmates to receive onerous permissions before routine activities such as changing floors in a hospital and they have sent inmates back to prison despite Doctors recommendations to continue outside treatment.
The Human Rights Watch report provides great detail about the six deaths that occurred in Scorpion prison between May and October 2015. The report names the six men who died as Farid Ismail, a former member of parliament for Muslim Brotherhood’s Freedom and Justice Party, Essam Derbala, the president of Islamic groups, Shura Council, Nabil Al‐Maghraby, former intelligence Officer accused in President Anwar Saddat’s assassination, Emad Hassan, Muslim Brotherhood member, Mohan Saleem and Mohamed Al‐Saeed.
The report notes a seventh inmate, Ramadan Gomaa, who had cancer and died in custody in July 2016.
The report states that relatives and lawyers of the three inmates who died in 2015 told Human Rights Watch that the authorities had refused to consider conditionally releasing the inmates on medical grounds, prevented them from receiving timely treatment and failed to investigate their deaths. Human Rights Watch describes the failure to investigate these deaths as a violation of international human rights law, which requires authorities to perform enquiries in cases of deaths and detention and make findings available upon request, so long as doing so would not jeopardise an ongoing criminal investigation.
The Human Rights Watch report makes it clear that those with pre‐existing or acute medical conditions are likely to have a significant deterioration of health as a result of the policies of the prison. It describes in significant detail the death of Emad Hassan, who was a leading Muslim Brotherhood figure 36.
Hassan was arrested in August 2014 as part of a police sweep which followed the posting of a video on YouTube in which a group of masked armed men, who announced themselves as the “Helwan
Brigades”, threatened to attack the police and army. Hassan died in the Qasr al‐Aini Hospital on September 26th 2015 at the age of 41 after being held in the Scorpion prison.
The report describes the manner in which immediate and proper/adequate medical treatment was denied to Hassan and how, when family members had raised issues with the lack of medical treatment, they had been threatened with arrest. Hassan’s wife, who was interviewed by Human Rights Watch, claimed that the Interior Ministry’s restrictions interfered with Hassan’s medical treatment in the hospital and on one occasion when Doctors needed to transfer Hassan to the intensive care unit to insert a central venous catheter, a normal transfer in Egyptian hospitals where sometimes only the intensive care unit has the necessary equipment, security officers said that he needed to obtain an order from the Interior Ministry to move between hospital floors.
Hassan’s wife states that a Police Officer came and swore he would not allow Emad to get transferred as long as the family were in the hospital and that it was not “our right to be in the hospital”. Ammar said “and then he swore that even when we left he would not allow him to be transferred that day”.
Hassan’s wife, Ammar, described how there was significant delay in the provision of treatment to Hassan and that even though the family had filed multiple requests to the public prosecutor, and even sent a letter to President el‐Sisi asking for Hassan to be moved to a private hospital to receive better care, they had received no response.
Hassan’s final diagnosis was stomach cancer, fibrosis in the duodenum and metastasis in the lungs and elsewhere in the body. His autopsy, the results of which were obtained by the family, confirmed that he had been suffering from stage 4 cancer. Hassan’s brother told Human Rights Watch they had filed a police report complaining about the lack of timely medical care and were questioned by prosecutors, but the authorities took no further action.
The report describes the death of Farid Ismail, who is a 57 year old former member of parliament for the Muslim Brotherhood’s Freedom and Justice Party37. Farid died on May 13th 2015, around a week after falling into a hepatic coma in his cell in Scorpion prison. The report states that Interior Ministry authorities did not keep Ismail’s family informed about his condition and delayed their response to complaints about his health by inmates.
Four days before Ismail’s death his son wrote in a post on Facebook that he had learnt from somewhere else, not the prison, that his father, who suffered from diabetes and hepatitis C, had entered a coma four days earlier. His son wrote that, after finding an unconscious Ismail in his cell, Scorpion authorities transferred him to a prison hospital in Zagazig, a city 50 miles north east of Cairo, without telling his family, whom they had banned from visits for more than a month.
Another interviewee described the situation as (extract from report):
During the period when Farid Ismail died each one of them was not allowed to leave his cell, so in order for them to check on each other they agreed that each day each one would knock on their cell or shout in a loud voice so that they would know everyday that they were ok. On the day of Dr Farid Ismail’s death he did not reply. There is a slit in the cell door, it is quite high and they sometimes assumed the person did not hear, the person is sleeping or the person is praying. They noticed that night that he did not reply at all. They kept knocking on the door to say that one of us isn’t answering. The guards told them it was none of their business. The next day they agreed that they were all going to knock very loudly because they agreed that he was in danger. At that time they realised that he had been unconscious or in a coma since the day before. Afterwards, even calling to each other is prohibited… so right now they say ‘We are in tombs. We are living, but we are in tombs’.
The report states that prisoners with chronic or advanced illnesses who require regular treatment are particularly vulnerable in such an environment. The report claims its research led it to conclude that the regular interference in Scorpion inmate’s medical care amounts to cruel and inhumane treatment.
LAW
The DRP were advised with regards to the law by Counsel to the Panel, Mr Tim Moloney QC and Mr Sam Jacobs, both of Doughty Street Chambers, London. Mr Tayab Ali, of ITN Solicitors, was the Legal Secretariat to the Panel.
The DRP was provided with a detailed overview of what is expected for detainees in international law. In addition, the DRP was able to review local sources of law such as the Egyptian Constitution and Egypt’s Code of Criminal Procedure (CCP).
The DRP reviewed a number of NGO reports which presented excellent summaries of the position for detainees in Egypt.
International Standards for Prisons
Human Rights Watch provide the following appraisal of Egypt’s international law obligations:
The international convention on civil and political rights (ICCPR), the African Charter and Human and Peoples Rights, and the Convention against Torture and Cruel, Inhumane or Degrading Treatment or Punishment (CAT) all prohibit torture and cruel, inhumane or degrading treatment or punishment, without exception or derogation. Article 10 of the ICCPR mandates that ‘all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’.
Human Rights Watch Provides the following Summary on International Standards for Prisons 38:
The Mandela Rules, though not technically a legally binding document, fall under a category of jurisprudence known as customary international law, which is defined as a general practice that most states accept as law.
The first Mandela Rule states that all prisoners ‘shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to and all prisoners shall be protected from, torture and other cruel, inhumane or degrading treatment or punishment for which no circumstances whatsoever may be involved as a justification.
Under international law and the Mandela Rules, the authority’s physical abuse and prolonged use of ‘discipline’ cells qualify as inhumane and cruel treatment and probably amounts to torture in some cases. Their interference in medical treatment and force feeding of at least one hunger striking inmate also constituted cruel and inhumane treatment, and in the case of inmates who died in custody, might have violated their right to life.
Human Rights Watch state in their report that conditions in Scorpion Prison run counter to more than two dozen Mandela Rules, including the following:
• Prisoners should enjoy the same standards of health care that are available in the community, without discrimination on the grounds of their legal status.
• Clinical decisions may not be overruled or ignored by non-medical prison staff.
• A physician shall have daily access to all sick prisoners and all prisoners who complain about physical or mental health.
• Health care services should be organized in a way that ensures continuity of treatment and care.
• Prisons shall ensure prompt access to medical attention in urgent cases and specialized treatment or surgery in specialized institutions or civil hospitals.
• Restrictive measures shall not include the prohibition of family contact.
• Prisoners shall be allowed to communicate with their family and friends at regular intervals, including through visits and writing.
• Prisoners shall be provided with adequate opportunity, time, and facilities to be visited by a legal adviser in full confidentiality.
• Every prisoner shall be provided with food of nutritional value adequate for health and strength, of wholesome quality, and well prepared and served.
• Every prisoner shall be provided with a separate bed and with separate and sufficient bedding.
• Windows shall be large enough to allow prisoners to work by natural light and let in fresh air.
• Searches shall not be used to harass, intimidate, or unnecessarily intrude upon a prisoner’s privacy.
• Every prisoner shall be allowed to make a confidential request or complaint to judicial or other competent authorities, which shall be dealt with promptly.
• Regular inspections of prisons shall include external inspections conducted by a body independent of the prison administration that includes health-care professionals.
• Prisoners shall be kept informed of the more important items of news by the reading of newspapers, periodicals or special institutional publications.
• Every prisoner shall have at least one hour of suitable exercise in the open air daily if the weather permits.
Torture
Whilst no conventional allegation of torture has been made by President Morsi or his family, the DRP considered whether or not the purposeful treatment of prisoner could constitute torture according to international and Egyptian Law.
The Amnesty International report stated:
Although Egypt has ratified the convention against torture, it has not incorporated the definition of torture contained in the convention in the Egyptian national law. Hence, it was left to Egyptian Courts to define torture. They did this in 1986 in a case known as a felony number 3856 of 1986 stating ‘in the opinion of the Court, torture is a form of violence, assault or coercion. Physical torture includes beating, injuring, tying the limbs, detention, humiliation, deprivation of food or sleep, or any other form of physical harm and prevention. For an act to be termed as physical torture, it does not require any degree of intensity or gravity. Moral torture however aims to humiliate a person to force a confession.’
Constitutional safeguards against torture include Article 51 which declares that ‘dignity is a right of every human being and may not be violated. The state shall respect and protect human dignity’. Article 52 states ‘torture in all forms and types of the crime that is not subject to prescription’.
Article 55 of the Egyptian Constitution also relates to treatment of those detained, declaring ‘every person who is either arrested, detained, or his freedom restricted, shall be treated in a manner that maintains his dignity, he/she may not be tortured, intimidated, coerced or physically or morally harmed’.
The Egyptian Code of Criminal Procedure (CCP) in Article 40 also prohibits both physical and psychological torture and declares that statements made under duress or threat must be considered null and void. Every detainee according to the CCP Article 40 should be treated humanely with respect for his inherent dignity and should not be physically or psychologically abused.
Article 126 of the Penal Code makes torture punishable by up to ten years of imprisonment, or longer if the torture results in death, but fails to address complicity. Where a public official fails to intervene to prevent the use of torture by officials or others under his authority, the Court of Cassation however has addressed this, confirming in its precedents that the superior will be held accountable if he fails to restrain his subordinates from using torture that he knows to be occurring, even if he did not order the torture – ‘when the torture becomes a usual act, such as when a superior refrains from prohibiting his subordinates the torture of defendants to forcibly extract a confession, it shall be considered in itself an order to torture the defendant’. 39
Medical Care
The United Nations Human Rights Committee has affirmed that the International Convention of Civil and Political Rights requires governments to provide adequate medical care during detention and prohibition against torture. The monitoring body of CAT has filed that failure to provide adequate medical care can violate that treaty’s prohibition of cruel, inhumane or degrading treatment.
With regards to medical Care Human Rights Watch States:
Egyptian law regarding prison administration requires each prison to employ a doctor who on a daily basis must inspect the prison, meet with sick prisoners and those held in isolation, and submit cases of life threatening or incapacitating illnesses to the director of the prisons medical department in order to consider their conditional release. However, physicians in Egyptian prisons are not institutionally independent: they are employed by the interior ministry, either on a fixed term secondment from their health ministry, or after training in the Police academy and graduating as interior ministry medical officers.
International norms laid out in the Mandela Rules say that prisoners should enjoy the same standards of healthcare that are available in the community; that prisons shall ensure prompt access to medical attention in urgent cases; that clinical decisions may only be taken by the responsible healthcare professionals and may not be overruled or ignored by non-medical prison staff; and that a physician should have daily access to any prisoner who is sick or complains about their health.
Egyptian law on administration of Prisons
Human Rights Watch states 40:
The administration of Egyptian prisons is controlled by Law 396 of 1956 for the Organization of Prisons, Interior Ministry Decree 79 of 1961 for the Internal Regulations for Prisons, and Interior Ministry Decree 691 of 1998 for the Quality of Prisoners’ Treatment and Lives.
The 1956 Prisons Law is the broadest of the three, covering all aspects of life in prisons. As amended by President Abdel Fattah al-Sisi in 2015, it leaves room for serious abuse and runs counter to Rule 43
of the Mandela Rules, which forbids any kind of discipline that amounts to torture or other cruel, inhuman, or degrading treatment. Rule 43 also prohibits indefinite solitary confinement that lasts beyond 15 days.
Al-Sisi’s 2015 decree amended Article 43 of the Prisons Law by extending the allowable period of solitary confinement from 15 to 30 days. Though the amendment took the positive step of eliminating corporal punishment as a form of discipline, it added a level of discipline beyond 30-day solitary confinement, allowing prison authorities to place an inmate in a “private maximum security room” for up to six months. Such a practice would amount to cruel and inhuman treatment and possibly torture.
Article 42 of the Prisons Law, which has remained unchanged since 1956, states that “it is permissible for visits to be restricted or completely banned due to conditions at certain times for reasons of health or related to security.” As documented in this report, Scorpion authorities have abused this vague provision to arbitrarily ban visits from families and lawyers, sometimes for months at a time, in contravention of the Mandela Rules.
Other provisions of the laws and decrees governing Egyptian prisons guarantee inmates many rights, but Scorpion authorities have flagrantly violated these provisions, including the following:
• Detainees in temporary pretrial custody may receive visits once every week, while convicted detainees may receive visits once every 15 days, for durations of 60 minutes.
• Inmates may write up to four letters a month and conduct phone conversations of up to three minutes two times a month.
• Prison doctors must inspect the prison and visit sick inmates and inmates held alone once a day and must transfer sick inmates to the prison hospital.
• Prison doctors must submit cases of life-threatening or incapacitating illnesses to the director of the prison medical department for consideration of release.
• Prison wardens must implement doctors’ recommendations to change a prisoners’ diet or treatment if necessary for the prisoner’s health. In the case of a disagreement, the warden must refer the issue to the director of the prison medical department for the formation of a committee to consider it.
• Prison authorities must provide all prisoners with a minimum set of bedding, clothes and hygienic items, including: a bed, a mattress, a pillow, a wool blanket (and two in winter), plastic plates and spoons, a comb, two pieces of soap, two changes of clothes, and underwear if the prisoner cannot purchase his own.
• The prison warden must accept any serious complaint from a prisoner and send the complaint to the public prosecution.
• The Interior Ministry’s Prisons Authority Sector must employ inspectors to ensure that cleanliness, health and security requirements are fulfilled inside prisons and that all regulations established for prisons are implemented. Inspectors should submit reports to the assistant interior minister for prisons.
• Prisoners are permitted to exercise for one hour in the morning and one hour in the evening, except for Fridays and official holidays.
• Prisoners may possess books, newspapers, and magazines at their own expense.[259]
Conclusion
The Detention Review Panel was not permitted to visit with President Morsi in Egypt as requested. Further, the correspondence sent to Egyptian Ambassador, His Excellency Nasser Kamel, was ignored. We note that the requests made in 2015 from the UN working group to respond to the allegations of arbitrary detention at that time were also ignored.
In these circumstances, we draw an inference that the Egyptian government do not wish for independent oversight of Dr Morsi’s detention. The DRP notes that despite the request to the Egyptian government, the opportunity to visit Dr Morsi has not been forthcoming. Unfortunately, rather than engage with the Detention Review Panel’s processes, Dr Morsi’s son, Abdullah Morsi, has been threatened with arrest and the initiative of this independent review panel has been reported to have been condemned by the Egyptian House of Representative’s Foreign Affairs Committee.
The DRP has carefully considered the evidence available to it and measured the concerns of the Morsi family against the wealth of information available about the conditions and treatment of prisoners in Egypt.
Dr Morsi is no ordinary prisoner. He was the elected President of Egypt. We considered his detention in the context the treatment of members of the Muslim Brotherhood and the Freedom & Justice Party in Egypt. Every independent report that was considered, including reports from the US State Department and UK Home Office made reference to the particularly harsh treatment currently faced by members of the Muslim Brotherhood and Freedom & Justice Party. The Egyptian government has not given us any cause to think that Dr Morsi is being treated any better.
The Tora prison complex, also known as the Scorpion Prison, has been very harshly condemned for its inability to treat prisoners in accordance with both Egyptian and international law.
The DRP finds that the allegations made by Dr Morsi, directly in his own words, in his statement to the Court in November 2017, and the allegations made by Abdullah Morsi, appear to be consistent with the allegations recorded by the United Nations, the United States’ State Department, Human Rights Watch, Amnesty International, news reports and other human rights organisations about the treatment of prisoners in Egypt.
Our findings are that the allegations made by Dr Morsi, on a balance of probabilities, are likely to be true. They are consistent with the findings of the general treatment of prisoners, in particular political prisoners in Egypt.
We accept in full the finding of Dr Paul Williams. We find that Mohammed Morsi is receiving inadequate medical care, particularly inadequate management of his diabetes and inadequate management of his liver disease. We accept the opinion that the consequence of this inadequate care is likely to be rapid deterioration of his long‐term conditions, which is likely to lead to premature death.
The DRP finds that on a balance of probabilities the detention of President Morsi is below the standard expected by international standards for prisoners, and would constitute cruel, inhuman and degrading treatment. We also find that the detention could meet the threshold for torture in accordance Egyptian and International law.
The DRP finds that culpability for torture rests not only with the direct perpetrators but those who are responsible for or acquiesce in it. We find that the conditions of Dr Morsi’s detention would be of such continuing interest to the whole chain of command that the current President could, in principle, be responsible for the crime of torture, which is a crime of universal jurisdiction.
We fear that if Dr Morsi is not provided with urgent medical assistance, the damage to his health may be permanent and possibly terminal. The failure to provide Dr Morsi with adequate medical treatment is a breach of Egyptian Law and the Mandela Rules both.
The panel are deeply concerned about the conditions and detention of Dr Morsi and invite the Egyptian government to allow the DRP, or any other reputable independent body, to conduct a visit.
Crispin Blunt MP (Chair) Lord Edward Faulks QC Dr Paul Williams MP
The Detention Review Panel for President Morsi
Dr Tim Moloney QC Sam Jacobs Counsel to the DRP
Tayab Ali
Legal Secretariat to the DRP 28 March 2018
Detention Review Panel
Further information and a full list of evidence considered by the DRP is available at www.detentionreview.com
—————-
[1] In 2013 the African Union voted to suspend Egypt under what was described as “the AU doctrine on unconstitutional changes of government” https://www.timesofisrael.com/african-union-suspends-egypt-over-presidents-ouster/The DRP use the descriptor “coup” and “coup d’état” throughout this report to describe the military intervention which led to the removal of President Morsi, however, consideration of the change of power in Egypt was not within the mandate of the DRP and the DRP make no comment as to the lawfulness of such a change of government or otherwise.
[2] https://publications.parliament.uk/pa/cm201617/cmselect/cmfaff/118/118.pdf
[3] www.detentionreview.com
[4] Letter to His Excellency Nasser Kamel dated 5th March 2018 available on www.detentionreview.com
[5] The Tora Maximum Security Prison was built in 1993 and is known by its reputation as the “Scorpion Prison” and in Arabic “Al Aqrab”. We are in tombs https://www.hrw.org/report/2016/09/28/we-are-tombs/abuses-egypts-Scorpion-prison
[6] http://:www.dostor.org/2082753
[7] http://www.elbalad.news/3201966
[8] All According to Plan https://www.hrw.org/report/2014/08/12/all-according-plan/raba-massacre-and-mass-killings-protesters-egypt
[11] ibid
[12] para 12 to 22, ibid
[13] Statement of Abdullah Morsi, 14 March 2018 available on www.detentionreview.com [14] Report of Dr Paul Williams MP, 21 March 2018, available on www.detentionreview.com [15] Para 7, ibid
[16] Para 35 to 44 – Conditions of detention, ibid
[17] Para 45 ibid
[18] Para 109 ibid
[19] www.forward-thinking.org/?page_id=35
[20] https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper
[21] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/630049/Egypt_-_Muslim_Brotherhood_-_CPIN_-_v3_0__July_2017_1.pdf
[22] http://hrlibrary.umn.edu/wgad/39-2013.html
[23] Justice Denied: Mass trials and the death penalty in Egypt, Reprieve November 2015
[24] Part 1: Political Mass Trials and Death Sentences, ibid
[25] Collectively Condemned, ibid
[26] https://www.amnesty.org.uk/sites/default/files/death_sentences_and_executions_2014_en.pdf
[27] https://www.hrw.org/news/2015/06/08/egypt-year-abuses-under-al-sisi
[28] http://www.theguardian.com/world/2015/jun/30/egyptian-president-al-sisi-change-law-faster-executions-deathpenalty
[29] https://www.reprieve.org.uk/wp-content/uploads/2015/11/2015_11_18_PUB-Egypt-Death-Penalty-Report.pdf
[30] Ibid
[31] https://www.amnesty.org/en/documents/mde12/4368/2016/en/
[32] Page 20, Officially you do not exist, Amnesty International https://www.amnesty.org/en/documents/mde12/4368/2016/en/
[33] https://www.hrw.org/report/2016/09/28/we-are-tombs/abuses-egypts-Scorpion-prison
[34] Page 2, We are in tombs, HRW, https://www.hrw.org/report/2016/09/28/we-are-tombs/abuses-egypts-Scorpion-prison
[35] We are in tombs, HRW https://www.hrw.org/report/2016/09/28/we-are-tombs/abuses-egypts-Scorpion-prison
[36] P 48, We are in tombs, Human Rights Watch
[37] P53 We are in Tombs, Human Rights Watch 2016
[38] https://www.hrw.org/report/2016/09/28/we-are-tombs/abuses-egypts-Scorpion-prison
[39] https://www.unodc.org/res/cld/document/criminal_code_of_egypt_english_html/Egypt_Criminal_Code_English.pdf
[40] P77 We are in Tombs, HRW, 2016
