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Studies

Human Rights In Egypt Between Law And Reality (1)

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Since the 3 July 2013 coup d’etat, Egypt has been witnessing serious human rights violations and repression of basic freedoms, where Egyptians who reject the hegemony of military rule have been exposed to countless killings, torture, arbitrary arrests, enforced disappearances, extrajudicial executions, and unfair trials. The central reason for the widespread occurrence of these grave violations is the nature of the Sisi military regime, which used repression to intimidate Egyptians across their political spectra and tighten its security grip on them, to prevent them from demanding their rights advocated in the January Revolution, most prominently to free Egypt from the grip of military tyranny and transform it into a civil and democratic state.

Between law and reality

After the Second World War, it was necessary to pay more attention to the human rights issue to achieve global peace and security, and to establish relations between various countries across the world on the basis of respect for this principle. To achieve this, various international charters were created, seeking promotion of respect for human rights and fundamental freedoms globally. In this regard, the United Nations played an important role in laying the foundations of international law; and with its inception, it has enshrined human rights through numerous international conventions, where encouraging respect for human rights and fundamental freedoms of individuals has been included in the objectives and purposes of the United Nations.

It is worth noting that the provisions related to human rights came as a response from the international community to the widespread violations of human rights, as international protection for those values was a prerequisite for the establishment of international peace and progress[1].

Following are the most prominent rights and freedoms that have been widely violated by the Egyptian regime:

Right to life and to physical and mental integrity:

The right to life is considered one of the most significant rights that have been stipulated in international charters as well as domestic laws, as it is an inherent right within human rights. Therefore, this right generates the state’s duty to protect it by criminalizing compromising man’s physical integrity as a manifestation of the continuity of an individual’s life[2].

The right to life is legally guaranteed, whether within the framework of domestic or international laws. In this context, the Universal Declaration of Human Rights (UDHR) enshrined this principle through Article 3, which stipulated[3] that: “Everyone has the right to life, liberty and security of person.”

Article 5 of the UDHR stressed[4] prohibition of torture and all forms of inhumane treatment that degrade human dignity, stating that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

The International Covenant on Civil and Political Rights 1966 singled out in more detail the significance of protecting this right as the basic pillar on which the rest of the rights are based, where Article 6, Paragraph 1 and 2 state[5] that: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The International Covenant on Civil and Political Rights is considered a basic source for the criminalization of the crime of torture, considering it essentially lead to commission of crimes against humanity. Therefore, ICCPR explicitly prohibited the practice of torture within Article 7, which states[6] that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment…”

Several regional charters addressed the right to life and personal security, most notably the European Convention on Human Rights (ECHR) of 1950, where Article 2 states[7] that: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Also Article 3 of ECHR stipulated[8] that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The American Convention on Human Rights (ACHR) of 1969 went even further by expanding on this right in more detail, where it affirmed[9] in paragraphs 1 and 2 of Article 4 that: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.” It also stipulated[10] that: “In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply.” Rather, it further emphasized[11] that: “In no case shall capital punishment be inflicted for political offenses or related common crimes.” It also clarified that: “Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.” With regard to the crime of torture, the ACHR affirmed[12] in Article 5 that: “Every person has the right to have his physical, mental, and moral integrity respected. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person[13].” However, the Inter-American Convention to Prevent and Punish Torture (ACPPT) of 1985 has detailed specifics about combating torture as one of the significant conventions in this regard, where it defines[14] torture in Article 2 as: “… any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish….”

It also affirmed[15] in Article 5 that: “The existence of circumstances such as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters shall not be invoked or admitted as justification for the crime of torture”, as it considers the right to life and physical and mental integrity among man’s inalienable rights and cannot be subject to misinterpretation through any justifications, regardless of their intensity or levels, as they must not be subject to violation in any way.

Article 3 stated[16] that “The following shall be held guilty of the crime of torture: (A) A public servant or employee who acting in that capacity orders, instigates or induces the use of torture, or who directly commits it or who, being able to prevent it, fails to do so. (B) A person who at the instigation of a public servant or employee mentioned in subparagraph (A) orders, instigates or induces the use of torture, directly commits it or is an accomplice thereto.” Also Article 4 stressed[17] that: “The fact of having acted under orders of a superior shall not provide exemption from the corresponding criminal liability.”

The African Charter on Human and People’s Rights (ACHPR) of 1981 also addressed the right to life and personal security in Article 4 that affirmed[18] that: “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.” Article 5 prohibits[19] torture of all kinds and cruel, inhuman or humiliating punishments and treatment, stating that “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or de grading punishment and treatment shall be prohibited.”

Despite the great shortcomings known to the Arab Charter on Human Rights of 2004, its articles contained many rights, albeit in a broad and general nature. For example, Article 5 states[20] that “Every human being has an inherent right to life; that this right shall be protected by law; and that no one shall be arbitrarily deprived of his life.” The Arab Charter on Human Rights came in line with the American Convention on Human Rights with regard to the death penalty, where Article 6 states that “The death penalty shall be inflicted only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. Such a penalty can only be carried out pursuant to a final judgment rendered by a competent court. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.” Meanwhile, the Article 4 of the American Convention on Human Rights added that “In no case shall capital punishment be inflicted for political offenses or related common crimes.” However, this contradicts the reality of the Arab region, whose countries are among the signatories to this charter (Arab Charter on Human Rights), including Egypt which is witnessing a huge rise in issuance and implementation of sentences related to the death penalty against opponents of the Sisi regime for political considerations.

The Egyptian Constitution of 2014, which came after the coup, highlights the right to life and personal security of the person in Articles 59-60, where Article 59 stipulates[21] that “Every person has the right to a secure life. The state shall provide security and reassurance for citizens, and all those residing within its territory.” And Article 60 states[22] that “The human body is inviolable. Any assault, defilement or mutilation thereof is a crime punishable by law. Organ trafficking is forbidden, and no medical or scientific experiment may be performed thereon without the documented free consent of the subject, according to the established principles of the medical field as regulated by law.”

Article 52 also criminalizes[23] torture in all its forms and manifestations as a crime with no statute of limitations, stating that “All forms of torture are a crime with no statute of limitations.” Also, the Egyptian Penal Code guarantees this right, criminalizing all acts affecting the integrity of the human body. But the protection of this right remains mere words without actions, as the assault on the right to life, physical and psychological harm, and all forms of torture were the main feature of authoritarian regimes in Egypt since 1952, which have been widely enshrined under the regime of Abdel Fattah al-Sisi.

Right to freedom of opinion and expression:

The right to expression is one of the mainstays of free democratic systems, and a cornerstone for building, developing and sustaining and developing a democratic society[24], as it boosts the ability of individuals to adopt views and ideas they want without pressure or coercion, in addition to the ability to express their opinions using various means to communicate the content of their ideas. In order to exercise this right, two basic conditions must be available, namely: the absence of external inhibitions and restrictions on the desired behavior or activity, and the absence of external threat that cannot be resisted[25].

There are many internationally recognized standards that guarantee protection of freedom expression[26], which are absent in the Egyptian case under the regime of Abdel Fattah al-Sisi:

– The first criterion is the right of regime opponents to express their opinions and publish them on all communication means, whether visual or audio, owned by the state or others, which is impossible under the current Egyptian regime that has obliterated one of the main actors in any existing regime, that is the opposition, which was abused, whether individuals or groups of different affiliations.

The second criterion is the right to obtain information and to secure its dissemination from official authorities; which is not available under Sisi’s rule, as it is difficult in any way to access information, in light of the growing policy of concealing facts in all fields, especially the political and security fields.

The third criterion is the protection of academic, scientific and educational freedoms as well as artistic and literary expression. This criterion is dominated by the military/security apparatus that dictates and directs individuals and institutions, with great restrictions and stress on these sectors. As for those who did not accept these policies, especially in the academic-scientific sector, they were either forcibly or voluntarily expelled outside Egypt, or they were sent behind bars as a price for their clinging to the principles of freedom, democracy and the foundations of a sound civil state, and their failure to accept a regime that came in an illegal and brutal manner inconsistent with the principles of human rights.

– The fourth criterion is the right of distribution and publication, which is subject to close monitoring and control by the security services which have the right to approve or prohibit anything in this aspect, in addition to arresting all those who have allegedly publicized publications critical of the regime’s policies.

The fifth and final criterion is the right to establishment of private media institutions, whether audio or visual. Although there are private television and radio stations in Egypt, they all fall under the control of the regime and its general intelligence service which works to set the controls and tools with which these institutions may operate in addition to directing their policies on various aspects. In this regard, the regime’s control was not limited to media institutions at home, but it also extended to the media institutions of Egyptian opponents abroad, as the Egyptian authorities demanded a number of countries to suspend of some satellite channels and media outlets that were putting pressure on Abdel Fattah al-Sisi’s regime.

Since the 3 July 2013 coup, Egypt has witnessed repression of journalists, bloggers and human rights activists, due to their criticism of the repressive and brutal policies of the Abdel Fattah al-Sisi regime where the security services launched mass arrest campaigns against journalists, politicians and human rights defenders, in addition to imposing control over the right to freedom of opinion and expression by silencing mouths, suppressing opinions, restricting social networking s and disrespecting privacy by spying on opponents of various affiliations and restricting their movement.

The Universal Declaration of Human Rights 1948 stipulated in Article 19 the right to freedom of opinion and expression as one of the inherent rights of the human being, stressing that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[27]

The International Covenant on Civil and Political Rights supported the aforementioned article in Article 19 which affirmed in paragraphs[28] a-b: that “Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

At the regional level, a number of charters have shed light on this right, most prominently the European Convention on Human Rights, which referred in Article 10 to the need to protect freedom of opinion and expression, affirming[29] that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…”

The American Convention on Human Rights (ACHR) of 1969 also stated in the first paragraph of Article 13 that: “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.”

Also, the African Charter on Human and People’s Rights stressed the importance of this right, stipulating in Article 9 that[30] “Every individual shall have the right to express and disseminate his opinions within the law.”

Although the Arab Charter on Human Rights stipulates in the first paragraph of Article 32 that[31]: “The present Charter shall ensure the right to information, freedom of opinion and freedom of expression, freedom to seek, receive and impart information by all means, regardless of frontiers”, however, in return it allowed the restriction of this freedom In the second paragraph of the same article, by stating that “Such rights and freedoms are exercised in the framework of society’s fundamental principles and shall only be subjected to restrictions necessary for the respect of the rights or reputation of others and for the protection of national security or of public order, health or morals.”[32]

It is well known that a group of Arab regimes, led by the Egyptian, Emirati and Saudi regimes, control all decisions of the Arab League. Therefore, such institution cannot guarantee freedom of opinion and expression, and the worse is that it is considered a contribution to the repressive crimes practiced against this right by those regimes in control.

The Egyptian Constitution of 2014 stipulates in Article 65 that[33]: “Freedom of thought and opinion is guaranteed. All individuals have the right to express their opinion through speech, writing, imagery, or any other means of expression and publication.” Also, Article 66 stipulated[34] that: “Freedom of scientific research is guaranteed. The state shall sponsor researchers and inventors and protect and work to apply their innovations.” This contradicts reality, in Egypt as the Egyptian regime fights researchers and academics, puts pressure on them and restricts their freedom, and has even forced many of them to leave Egypt as a result of tightening the noose around them. With regard to freedom of the press and publishing, Article 70 states that[35]: “Freedom of press and printing, along with paper, visual, audio and digital distribution is guaranteed. Egyptians — whether natural or legal persons, public or private — have the right to own and issue newspapers and establish visual, audio and digital media outlets. Newspapers may be issued once notification is given as regulated by law. The law shall regulate ownership and establishment procedures for visual and radio broadcast stations in addition to online newspapers.”

These provisions are contrary to reality, because the freedom to publish and establish media outlets of all kinds cannot pass without approval of the Egyptian General Intelligence Service, as it is the de facto control body over the press and media sector.

Article 71 states[36] that “It is prohibited to censor, confiscate, suspend or shut down Egyptian newspapers and media outlets in any way. Exception may be made for limited censorship in time of war or general mobilization. No custodial sanction shall be imposed for crimes committed by way of publication or the public nature thereof. Punishments for crimes connected with incitement to violence or discrimination amongst citizens, or impugning the honor of individuals are specified by law.” This last part of the article is invoked by the Egyptian regime in confronting its opponents by fabricating charges of incitement and undermining public order by spreading false news with the aim of spreading chaos.

In 2018, Sisi ratified Law No. 180 of 2018, known as the Law Regulating the Press, Media, and the Supreme Council for Media Regulation (SCMR), which sparked a lot of controversy, as it is considered an attempt to legalize policies contrary to the rule of reason and logic, by criminalizing the rights enjoyed by humans across the world. According to this law, anyone who enters a barred website with the aim of re-publishing data or information on it[37] is subject to a prison sentence and a fine. Also according to this law, the Supreme Council for Media Regulation, formed by decree from Sisi, was granted many powers, most notably the right to block websites if they were established without obtaining a pre-license from it. In the event that any website, personal blog or personal online account is followed by 5,000 people or more, it shall be put under the censorship microscope. The SCMR also has the right to suspend or block any personal account that disseminates false news or calls and incites violation of the law or spreading violence and hatred[38]. However, the authorities and security services invoke these provisions to justify launching arrest campaigns against political opponents, journalists, opinion activists on social media platforms, and others.

Due to the repression practiced by the Sisi regime through tools and mechanisms for suppressing everything related to freedom of opinion and expression and tightening the screws on freedom of the press, Egypt comes at the bottom of the global ranking in the Press Freedom Index, as it ranked 166 out of 180 countries in 2020 and 2021, according to Reporters Without Borders[39].

Right to peaceful assembly and demonstration:

The right to peaceful assembly and demonstration is one of the basic components of human rights and basic freedoms, being closely related to other freedoms, especially the right to freedom of opinion and expression, because the diversity of opinions and exchange and expression of views can only be through peaceful assembly and demonstration. According to the Guidelines on Freedom of Peaceful Assembly, published by ODIHR and the Venice Commission of the Council of Europe in 2010, an assembly is “an intentional and temporary presence of a number of individuals in a public place, for a common expressive purpose”[40].

The Universal Declaration of Human Rights boosted protection of the right to peaceful assembly and demonstration and ensured its respect, where it stated in Article 20 that[41]: “Everyone has the right to freedom of peaceful assembly and association.” Also, the International Covenant on Civil and Political Rights provided more details in addressing this right, where Article 21 stated that[42]: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”

At the regional level, the European Convention on Human Rights boosted this right via a set of guarantees, where it affirmed in Article 21 the right of individuals to peaceful assembly to express their opinions, obligating states not to restrict this right except within the limits of public order within a democratic society. In the same context, the Charter of Fundamental Rights of the European Union stipulated in Article 12 freedom of assembly and peaceful demonstration, stressing that “Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.”[43]

Meanwhile, the American Convention on Human Rights emphasized in Article 15 the need to protect the right of peaceful assembly and demonstration[44], stipulating that: “The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others.” Also, Article 21 of the American Declaration of the Rights and Duties of Man stated that: “Every person has the right to assemble peaceably with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature.”[45]

The African Charter on Human and People’s Rights also enhanced guarantees of this right, where Article 11 stipulated that: “Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.”[46] Whereas, the Arab Charter on Human Rights, which is considered one of the weakest and least effective regional agreements, briefly recognized this right in Paragraph 6 of Article 24, stating: “Freedom of peaceful assembly and association”.[47]

Also at the Egyptian level, the right to demonstrate and peacefully assemble has aroused widespread controversy as it is the most restrictive right on the part of the Egyptian authorities. However, with reference to the Egyptian Constitution 2014, Article 73 is completely contradictory to the current Egyptian reality, amid the tightened security grip on all peaceful gatherings and demonstrations through which the Egyptian citizen may express his discontent and indignation at the current situation in Egypt in terms of suppression of freedoms, deterioration of economy and the low standard of living of citizens – as happened during the September 2019 and 2020 demonstrations. However, Article 73 of the Egyptian Constitution 2014 states that: “Citizens have the right to organize public meetings, marches, demonstrations and all forms of peaceful protest, while not carrying weapons of any type, upon providing notification as regulated by law. The right to peaceful, private meetings is guaranteed, without the need for prior notification. Security forces may not to attend, monitor or eavesdrop on such gatherings.”[48] This last part is impossible to find in the Egyptian case, because all citizens, without exception, are under the microscope of the intelligence tracking, whether through the General Intelligence Service or the military intelligence.

In a clear indication of the persistence of the repressive machine since the 3 July coup d’etat in barring demonstrations and tightening the screws on gatherings, being the mechanisms that may put great pressure on any dictatorial regime, Adly Mansour, who was appointed as interim president after the coup against the legitimate President Mohamed Morsi, approved Law No. 107 of 2013, for organizing the right to peaceful public meetings, processions and protest, on 24 November 2013 as an alternative to the Emergency Law. The law obliges organizers of any demonstration to notify the police three days in advance of the scheduled date. It also allows the security forces to use tear gas, rubber bullets and water cannons to confront any march that shall not adhere to the peaceful nature[49]. However, human rights organizations have condemned the law, considering it criminalizing all forms of peaceful assembly, including demonstrations and public meetings, with the authorities’ use of force to disperse demonstrations or peaceful gatherings[50].

This law is considered a legal pretext for Sisi’s crimes during the period following his military coup, where after issuance of this law, a wide arrest campaign was carried out on the pretext of violating the protest law that is used to justify prosecution of anyone who calls or participates in demonstrations against the regime.

Right to a fair trial:

The right to a fair trial is one of the basic rights of the individual, where the international community has laid down a variety of foundations and principles to guarantee this right that aims to protect human rights from the moment of arrest, through the stage of detention and trial, up to the final stages of appeal and cassation[51].

A fair trial require presence of two conditions: First, that the trial procedures be subject to the fair trial standards set by the international community; second, that the trial be conducted by an independent and impartial judicial authority[52].

International and regional conventions have given great attention to the principle of the right to a fair trial, and the Universal Declaration of Human Rights (UDHR) of 1948 and the International Covenant on Civil and Political Rights 1966 have enshrined this right as a fundamental human right, pointing out that a set of conditions must be met in order to achieve the desired goal of achieving justice, namely: fairness, openness, independence and impartiality, which is stated in Article 10 of the Universal Declaration of Human Rights, which[53] affirms that: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Article 11 also expanded on this aspect by stipulating[54] that: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.” It also went on stating that “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”[55] Even more than that, Article 9 of the UDHR affirmed that before being brought to trial, “No one shall be subjected to arbitrary arrest, detention or exile.”[56]

For its part, the International Covenant on Civil and Political Rights expanded on addressing the principle of a fair trial, which was confirmed by Article 14 that stated that: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”[57]

The article also stressed the defendant’s right: “…to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”

Article 9 also stresses the need to inform each arrested person of his rights and the reasons and circumstances of his arrest and the charges against him, stating: “To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” It also emphasizes the inadmissibility of pre-trial detention, stating: “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial…”

At the regional level, the European Convention on Human Rights pays particular attention to this right, as it stipulates[58] in Article 6 that: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” It also included three criteria for a fair trial[59], namely the presumption of innocence (the second and third paragraphs of Article 6), given the established principle that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” In addition , the article stipulates guarantees[60] for the right to appoint a lawyer to defend him and to appeal to witnesses (Paragraph 3), which are rights guaranteed by law. Also, according to Article 8 of the American Convention on Human Rights, a defendant should not be subjected to torture or other cruel and inhuman treatment.[61]

In the same context, Article 8 of the American Convention on Human Rights provides that[62]: “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.” It also clarified[63] the guarantees to protect this principle through the second paragraph, which states that: “Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law.” It adds that “During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: …” including, prior notification in detail to the accused of the charges against him; the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; and the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts…” It is noteworthy that these guarantees are almost the same guarantees contained in the European Convention on Human Rights referred to above.

It is also noteworthy that the Arab Charter on Human Rights has briefly stipulated the right to a fair trial as it is the case in other rights, unlike other regional conventions, where it was limited to stipulating in Article 13 that[64]: “Everybody has the right to a fair trial in which sufficient guarantees are ensured, conducted by a competent, independent and impartial tribunal established by law, in judging the grounds of criminal charges brought against him or in determining his rights and obligations. State Parties shall ensure financial aid to those without the necessary means to pay for legal assistance to enable them to defend their rights.”[65] (Article 13, Paragraph 1). It also stipulated that “The hearing shall be public other than (except) in exceptional cases where the interests of justice so require in a democratic society which respects freedom and human rights.” (Article 13, Paragraph 2).

Even the Egyptian Constitution 2014 stipulates in Article 96 that: “The accused is innocent until proven guilty in a fair court of law, which provides guarantees for him to defend himself; right to counsel; right to fair trial; and presumption of innocence in trials. The law shall regulate the appeal of felony sentences; and right to appeal judicial decisions The state shall provide protection to the victims, witnesses, accused and informants as necessary and in accordance with the law.”[66] However, the content of this article is completely absent or impossible to enforce in the Egyptian case, because since the 3 July coup d’etat, all trials lack the most basic conditions and guarantees agreed upon globally in order to achieve justice, amid the Egyptian regime’s policy of fabricating charges as a basis for getting rid of its opponents. Those who have been arrested are subjected to abuses that violate fair trial guarantees during the pre-trial stage by exposing the majority of them to arbitrary arrest and enforced disappearance and to various methods of torture and intimidation to force them to confess to fabricated charges before they are brought to trial, in addition to the violations during the trial that lack the conditions of a fair trial such as the right of the accused to defend himself or to appoint a lawyer, in addition to the inhuman conditions of detention throughout the trial period, which ends with a life sentence of or a death sentence, in complete absence of the principle of the independence and impartiality of the judiciary.

(Note: The second part of this study will address the human rights situation in Egypt in light of the positions and reports of the international and regional institutions, including human rights organizations)


Footnotes

[1] United Nations Action in the Field of Human Rights, United Nations Publications, New York 1983, p.: 5, link

[2] Israa Mohamed Ali Salem/Zainab Abd Ali Jareed: Protection of the Right to Life in Criminal Law, Journal of Human Sciences, Faculty of Education, University of Babylon, Issue 10, 2012, link

[3] Article 3 of the Universal Declaration of Human Rights (UDHR) 1948

[4] Article 3 of the Universal Declaration of Human Rights (UDHR) 1948

[5] Paragraph 1,2 of Article 6 of the International Covenant on Civil and Political Rights 1966

[6] Article 7 of the International Covenant on Civil and Political Rights 1966

[7] Article 2 of the European Convention on Human Rights (ECHR) of 1950

[8] Article 3 of the European Convention on Human Rights (ECHR) of 1950

[9] Article 4 of the American Convention on Human Rights (ACHR) 1969

[10] Ibid

[11] Ibid

[12] Ibid

[13] Ibid

[14] Article 2 of the Inter-American Convention to Prevent and Punish Torture (ACPPT) of 1985

[15] Ibid

[16] Ibid

[17] Ibid

[18] The African Charter on Human and Peoples’ Rights (ACHPR) 1981

[19] Ibid

[20] The Arab Charter on Human Rights of 2004

[21] The Egyptian Constitution of 2014

[22] Ibid

[23] Ibid

[24] Ahmed Nihad Mohamed al-Ghoul: Freedom of Opinion and Expression in International Conventions and Domestic Legislation, a series of legal reports, the Palestinian Independent Commission for Citizen Rights, May 2006, p.: 10.

[25] Anas Al-Barqouqi, The legal opinion in the case of detention of citizens at the backdrop of opinion and expression and dispersal of peaceful gatherings during demonstrations, Al-Wasat Al-Youm, April 6, 2016, link

[26] Talib Awad, Freedom of opinion and expression in accordance with international human rights standards, Mada Center for Development and Media Freedoms, link

[27] Universal Declaration of Human Rights (UDHR) of 1948

[28] The European Convention on Human Rights

[29] The American Convention on Human Rights (ACHR) of 1969

[30] The African Charter on Human and Peoples’ Rights (ACHPR) 1981

[31] Arab Charter on Human Rights of 2004

[32] Ibid

[33] The Egyptian Constitution of 2014

[34] Ibid

[35] Ibid

[36] Ibid

[37] Egypt.. The director of a human rights center criticizes the law regulating the press and media, DW, September 2, 2018, link

[38] Egypt.. If you are followed by more than 5000 on Facebook, you are under censorship!, Al-Hurra, June 29, 2018, link

[39] Reporters Without Borders website, link

[40] The Guidelines on Freedom of Peaceful Assembly, published by ODIHR and the Venice Commission of the Council of Europe in 2010, link

[41] Universal Declaration of Human Rights (UDHR) of 1948

[42] Ibid

[43] Hassan Thamer Taha Al-Bayati: The Legal Basis of the Right to Assembly and Peaceful Demonstration in International Law (A Study of the Reality of Iraq), Dijla Magazine, Issue 1, 2020, p.: 117, link

[44] The American Convention on Human Rights

[45] The American Declaration of the Rights and Duties of Man

[46] The African Charter on Human and Peoples’ Rights (ACHPR) 1981

[47] The Arab Charter on Human Rights of 2004

[48] The Egyptian Constitution of 2014

[49] Article 12 of the Law Regulating the Right to Public Meetings, Processions and Peaceful Demonstrations No. 107 of 2013, link

[50] Egypt returns to emergency law under the guise of the protest law, Arabi 21, November 25, 2013, link

[51] Feriha Mohamed Hisham: Guarantees of the Right to a Fair Trial in International Human Rights Conventions, Al-Fikr Journal, Faculty of Law and Political Science, Mohamed Khider University, Algeria, Issue 10, 2014, p.: 428.

[52] Ibid p. 429

[53] The Universal Declaration of Human Rights (UDHR) of 1948

[54] Ibid

[55] Ibid

[56] Ibid

[57] The International Covenant on Civil and Political Rights, Article 14

[58] The European Convention on Human Rights

[59] Ibid

[60] Ibid

[61] The American Convention on Human Rights – You can also refer to all paragraphs of Article 6 of the European Convention on Human Rights, which addressed precisely and in detail all the guarantees of the right to a fair trial.

[62] Ibid.

[63] Ibid.

[64] The Arab Charter on Human Rights.

[65] Ibid.

[66] The Egyptian Constitution 2014

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