On November 1, Human Rights Watch emailed the following letter to the Egyptian government.
Chairman of State Information Service
Mr. Diaa Rashwan,
On October 11, Human Rights Watch released a report on the disappearance and alleged torture of the American-Egyptian driver Khaled Hassan, who is in pretrial detention in Istiqbal Tora Prison. Military prosecutors have accused him of involvement in an Islamic State-affiliated group's violent activities. On October 14, your office released a statement in response, criticizing the report and saying there was no evidence of any wrongdoing by security officials.
The following questions and answers address the key issues your office raised in that statement:
Did Human Rights Watch identify its sources?
Sometimes Human Rights Watch is unable to identify sources to protect them from reprisals. But in this report, Human Rights Watch said clearly that it interviewed Hassan remotely several times in September and October 2018. Human Rights Watch also said that it interviewed his wife and one of his brothers, the latter of whom wished not to be named.
Human Rights Watch also identified the forensic experts who reviewed the pictures and the video of Hassan's wounds as experts from the Independent Forensic Expert Group, which is facilitated by the International Rehabilitation Council for Torture Victims, one of the leading organizations in combating torture and providing services for torture victims around the world.
Did Human Rights Watch contact the Egyptian authorities about Hassan's case before releasing its report?
Human Rights Watch sent initial findings and questions to Egypt's State Information Service (SIS) by email on September 23 and 25 and allowed a reasonable time for response as the SIS requested. The SIS responded several days later, which was also the first response from the Egyptian authorities in years to a Human Rights Watch letter seeking information concerning an investigation. In many cases, Human Rights Watch publishes a government's response on its website after the report is released. In this case, a link to the Egyptian authorities' full response was hyperlinked in the initial report, along with several references in the report to the government's response.
What did Human Rights Watch conclude and call for?
Human Rights Watch concluded that Hassan was forcibly disappeared by security forces in January 2018, and authorities did not bring him before a military prosecutor until May 3. It also concluded that he made detailed and serious torture allegations, which authorities should take seriously and investigate. Human Rights Watch also called on authorities to bring Hassan before a civilian judge to review his detention.
Did Human Rights Watch say that Hassan was innocent?
Human Rights Watch did not determine whether Hassan is innocent or guilty of the accusations against him. The organization is often not in a position to establish the innocence of defendants, unless there is strong evidence of their innocence. But as part of the basic guarantees of a fair trial, all defendants should be presumed innocent until proven guilty.
Neither military prosecutors nor the SIS identified specific charges against Hassan and only said that he is accused in a case related to "Sinai Province," an Islamic State-affiliated group in Egypt. Prosecutors should not keep a defendant in custody without credible evidence of a recognizable crime, and unless there are specific reasons to justify detention before trial, and a judge must review the legality and necessity for pretrial detention in these exceptional cases within 48 hours of arrest, according to international norms. Lawyers should be allowed to obtain all relevant prosecution documents and review the available evidence to be able to effectively assist the defendant in preparation for trial.
Did Hassan tell prosecutors about his disappearance and alleged torture?
Hassan said that when military prosecutors first interrogated him on May 3, he told them that he had been forcibly disappeared and tortured and asked to be examined by forensic doctors. But prosecutors took no action to investigate his claims and registered May 3 as his arrest date.
Prosecutors have a duty to investigate consistent claims of torture and disappearance and to exclude any confessions that were coerced, or any evidence obtained by the use of torture. By telling prosecutors that he was disappeared and tortured, Hassan took clear action to alert the prosecutors. They should have taken detailed official notes of his account and investigated it.
After Human Rights Watch released its report on October 11, Hassan asked the prison warden at Istiqbal Tora Prison to allow him to file an official request to be examined by forensic doctors, but the warden refused. When American officials from the US Embassy in Cairo visited Hassan after the report's release, a National Security Agency officer attended and closely observed the meeting and refused to allow Hassan to show his alleged torture marks to US officials, according to Hassan. The officer also refused to allow them to communicate in English.
Hassan also said that the National Security Agency officer did not allow him to call his family, even though he had the military prosecution's permission to do so, and that the officials seized books the US Embassy in Cairo had delivered to Hassan in prison.
Human Rights Watch has previously documented a pattern of disappearance and torture of detainees and lack of action by prosecutors to investigate their claims.
Did Hassan's family inquire about his whereabouts when they discovered that he was missing?
Yes. The family repeatedly inquired personally at police stations in Alexandria. In addition, they faxed handwritten inquiries about whether authorities had detained Hassan, a common way to communicate with prosecutors in Egypt. Police reports and prosecutors' documents are still frequently handwritten in Egypt.
When families fax complaints, they are stamped by the Egyptian Telecom Company's official stamp and notarized by the fax office. The complaints by Hassan's family were, therefore, official, as Human Rights Watch documented. One complaint by the family received the official case number "444 of 2018 Montazah Thany."
Authorities have a duty to search for missing persons and to update the family routinely about measures taken and any findings. But Hassan's family members said they received no response. When Hassan appeared before military prosecutors on May 3, they should have taken the family's complaints into consideration and investigated them, but they took no action.
Did the SIS acknowledge that Hassan was disappeared and tortured?
No. The State Information Service's statement, speaking on behalf of the Egyptian authorities, denied the presence of "tangible evidence" that validates his disappearance and torture claims. It also stated clearly that Hassan has been in "preventive custody under legal orders from the competent authorities namely the military prosecution." These statements constitute denial of all allegations. Prosecutors have a duty to investigate these allegations in a transparent and independent way.
Where was Hassan disappeared and allegedly tortured? Where is he now?
Hassan says he spent most of the time between January and May in two National Security Agency headquarters, in Alexandria's Smouha and Cairo's al-Abbassiya. Human Rights Watch's research has found that the Interior Ministry's National Security Agency is responsible for the most flagrant abuses. Their premises are not official detention sites and Egyptian prosecutors failed to inspect these places, though the law requires them to routinely examine all detention sites.
These detention sites are notorious for the use of torture, a reputation that predates the January 2011 uprising. Protesters, angered by the lack of reform after the uprising, stormed several of these sites in March 2011, following the uprising. Following those events, the government promised to reform the agency, but no legislation has been introduced to emphasize judicial supervision over its work and none of its officers have been found guilty of abuses in a final court verdict.
Since May 3, Hassan has been detained in Istiqbal Tora Prison in Cairo, an official detention site.
Who is Mohamed Soltan, the activist who alerted Human Rights Watch to Hassan's case?
Mohamed Soltan is a human rights advocate from the Freedom Initiative, an independent group in Washington and a former political prisoner in Egypt. He spent nearly two years in prison in the case known as "Raba' Operations Room," in which authorities pressed charges in 2014-2015 against scores of critical journalists and participants in the 2013 Raba' sit-in for allegedly inciting violence, publishing false news, and planning to overthrow the ruling regime, among other charges. Some of these actions do not constitute recognizable crimes under international law. Human Rights Watch's analysis of the prosecution's file in April 2015 found that prosecutors failed to present any credible evidence to establish individual criminal responsibility against Soltan. A court sentenced him to life in prison but released him after he agreed to relinquish his Egyptian nationality.
Human Rights Watch independently investigates all cases before any potential public report, regardless of how a case is brought to its attention.
How was Hassan's wife deported from Egypt? Do governments have an absolute power to deport foreign residents?
Hassan's wife, Liuba Skateeff, a foreign national who had lived in Egypt for years, said she left the country fearing for her family's safety. Armed men, apparently from the National Security Agency, raided her house on January 19, aggressively searched it and, with threats, ordered her to leave the country. She said that an officer wanted to put her in a taxi to the airport immediately, but she said she did not have money to buy airline tickets for herself and her three children. She left a few days later after managing to buy tickets. She received no judicial order or official prosecution request. When she returned to Egypt in June to see her husband, officers in the airport detained her and her child for two days, barred them from calling a lawyer or her embassy, and deported her. She said that an officer in the airport apologized to her and said "it is not about you. But there's nothing I can do for you."
Human Rights Watch reviewed her residence permit, which is valid until 2020. Her deportation does not seem to have been the result of any legal proceedings. No foreign resident should be arbitrarily deported without being offered a legal remedy. Arbitrary deportations, as apparently experienced by Hassan's family, can violate many rights under international law, including the right to a family life.
Does international human rights law allow trying civilians before military courts?
The 2003 African Principles and Guidelines on the Right to a Fair Trial and Legal Assistance, which apply to Egypt, strictly prohibit military trials of civilians under all circumstances. The United Nations Basic Principles on the Independence of the Judiciary states that everyone has the right to be tried "by ordinary courts or tribunals using established legal procedures."
But Egypt's 2014 constitution and presidential decrees issued in 2014 in the absence of a parliament allowed for unprecedented expansion of military courts' jurisdiction. As a result, President Abdel Fattah al-Sisi's government has sent to military prosecution over 15,000 civilians in less than four years, more than any previous Egyptian government.
Human Rights Watch, and other organizations such as the International Commission of Jurists, have found that military courts in Egypt are inherently unfair for reasons that undermine the very essence of due process. All judges and prosecutors are serving military officers, subject to the military chain of command. Access to the courtroom for lawyers, families, and journalists is severely restricted. Lawyers are usually not permitted to see their clients, except for a few minutes in the courtroom, and cannot get copies of the prosecution and court documents sufficiently in advance to prepare a defense.
As Human Rights Watch has documented in many military trials in Egypt, Hassan and his lawyers were never allowed to read or obtain a copy of the official charges or the prosecution documents. No civilian judge has reviewed his detention. Military prosecutors have kept him detained since May 3, a violation of international law, which requires swiftly bringing all detainees before a judge to review their detention.