Who owns information?
A research paper on the status of access to information about the conditions of places of detention
Index
Methodology
First: Background
Second: The status of access to information inside places of detention
a) Unpublished manual… undisclosed rights and duties
b) Who owns information? 4
Third: Legal developments related to access to information
Fourth: Examples of the scarce access to information inside places of detention
a) Deaths 6
b) Hunger strikes 7
Conclusion and recommendations… How can we ease the restriction and blackout of information about prisoners?
Methodology
The paper is based on the reading and analysis of the Prisons Organization Law No. 396 of 1956, the bylaws issued by the Minister of Interior’s Decree No. 79 of 1961, the general instructions for prosecutions, the Judicial Authority Law No. 46 of 1972, and the reports issued by the National Council for Rights Human Rights regarding the conditions of prions. The paper also relies on the “Malta declaration on hunger strikers”[1] issued by the World Medical Association.
On the other hand, the researcher who prepared this paper conducted interviews with the families of prisoners who died in places of detention, former prisoners, and a former member of the National Council for Human Rights. The Association for Freedom of Thought and Expression’s Monitoring and Documentation Unit documented the number of deaths and strikes in prisons during the current year.
First: Background
When Covid-19 broke out in late 2019, the right to access information about the pandemic, such as information about the real numbers of infections and the availability of means of prevention and treatment in hospitals, became a priority. The need to access such information increased, given the overcrowding in places of detention, which made the inmates more vulnerable to infection.
The national human rights strategy launched by President Abdel-Fattah al-Sisi in September 2021 consisted of four axes. One of these axes – the axis of civil and political rights[2] – showed an interest in issuing a law on access to information, which has been awaited for more than a decade. The strategy highlighted the need to issue a law on access to information and improve prison conditions.
In this paper, we seek to highlight the importance of access to information and show how it correlates with many rights, such as the right to life and protection from torture and other forms of maltreatment.
Places of detention are a very private environment due to the fact that they are closed, and prisoners/detainees lose contact with the outside world[3], especially with their families. This makes them vulnerable to violations, especially in the absence of any official information from the Ministry of Interior or its Community Protection Sector (CPS – formerly known as the Prisons Authority), something which is common in Egypt. There are no official figures regarding the number of detainees – whether convicted or in pretrial detention – in Egypt. Moreover, there are no statistics regarding the number of existing prisons, with their various classifications, or the number of hunger strikes, deaths, and their causes.
In the first part of the paper, we deal with the status of access to information inside places of detention, whether as stipulated by law or the practices on the ground. We raise the question: who owns information? And how is information handled? The matter is not limited to restricting access to information, but it also has to do with the fighting by the Ministry of Interior and the CPS of parallel information and the effects of this on the situation of prisoners and their ability to file lawsuits over what they are exposed to inside prisons. In the second part of the paper, we highlight examples of restricting access to information as a result of the current restriction and blackout of information about detainees. The paper ends with recommendations at the legislative and policy levels.
Second: The status of access to information inside places of detention
The problem with access to information about places of detention has more than one level. The first has to do with the publication of laws and regulations related to prisons, and the second is represented in the CPS’s failure to issue periodicals regarding the conditions of places of detention. The third level has to do with the way the judicial supervisory bodies – such as the prosecution and the National Council for Human Rights – use their powers regarding prison visits and the dissemination of relevant information later.
a) Unpublished manual… undisclosed rights and duties
The Ministry of Interior, represented by the CPS, deliberately conceals the “Manual of Prison Work Procedures” issued by virtue of the two administrative resolutions No. 1 of 1966 and No. 1 of 1969, and amended by the administrative resolution No. 297 of 2006. The CPS uses this manual in managing and maintaining order inside prisons and in the treatment of prisoners. The State Information Service (SIS) has repeatedly used certain articles of the manual in its responses to reports by international human rights organizations in order to justify the violations the authorities commit against prisoners.
The manual was also used by the top court of appeal in Appeal No. 13940 of Judicial Year 82[4] to push for the invalidity of the appeal submitted by a citizen through Article 1591 bis of the manual, which is related to the search of prisoners and their families. The article states that a search does not necessarily require a permit from the investigation authority or judicial powers for the officers undertaking searches[5]. The Public Prosecution also used certain articles of the manual in its responses to the questions raised by the 2019 universal periodic review regarding the conditions of places of detention, something which prevents prisoners/detainees from filing lawsuits regarding their uncertain living conditions.
The Prisons Authority issued the Prisons Organization Law No. 396 of 1956 and its regulations No. 79 of 1961 to be the legal framework that regulate the work of prisons and the treatment of prisoners in theory. But in practice, prisons are managed by a secret, undeclared guide that is not published by the concerned authority. Consequently, there is no space for prisoners to know their rights under the law regulating the prisons, and there are no opportunities for litigation to improve the prisoners’ conditions or amend the law.
The Ministry of Interior, represented by the CPS, deliberately maintaining a permanent state of ambiguity regarding the law with a view to creating areas of flexibility that would enable it to use the law in committing violations against prisoners and their families. We have reservations about the Prisons Organization Law and its regulations, although they are at least publicized, and therefore there is a space either for prisoners to demand their rights – which is rare due to the absence of mechanisms that enable them to do so – or for their families and lawyers to submit complaints or file lawsuits before the State Council.
b) Who owns information?
There is no law on access to information to act as a general framework that regulates the relationship between the state institutions and citizens in terms of publishing and circulating information periodically/automatically. Moreover, the Prisons Organization Law No. 396 of 1956 and its regulations No. 79 of 1961 do not obligate the CPS to reveal the conditions of places of detention periodically. Also, the aforementioned Manual of Prison Work Procedures has not been published.
All this makes it necessary to look for alternatives to obtain information about places of detention. It is possible to balance the CPS’s performance through the oversight of places of detention, which can be classified into judicial and administrative oversight. Regarding judicial supervision, Article 27 of the Judicial Authority Law No. 46 of 1972 stipulates:
“The Public Prosecution shall undertake the oversight of prisons and other places in which criminal judgments are carried out. The Public Prosecutor shall inform the Minister of Justice of the Public Prosecution’s observations in this regard, in addition to monitoring and observing what is required by laws and regulations, taking what they deem necessary regarding violations, accepting the prisoners’ complaints, and examining the judicial records and papers to verify their conformity with the prescribed forms.”
The law requires the prison director or warden to provide the visiting prosecution members with all the data they request regarding the task entrusted to them[6], which – according to our interviews with former prisoners and the families of current prisoners – happens rarely and does not improve the situation. In addition, these visits do not result in the publication of any information about the conditions of detention, except in rare cases. The amendments introduced to the law and its regulations in recent years are meant to lead to more blackouts about the conditions of places of detention.
Third: Legal developments related to access to information
Since the CPS monopolizes information related to the conditions of places of detention and the law does not allow independent visits by civil society organizations, the National Council for Human Rights – as a semi-independent official institution that has administrative oversight powers – still can pay visits to places of detention. However, some amendments were introduced to the Prisons Organization Law No. 396 of 1956 in 2015, including Article 73, which requires the National Council for Human Rights to obtain prior permission from the Public Prosecutor to visit prisons. Thus, there are no longer surprise visits to prisons, as visits now require prior permission from the Public Prosecutor; what turned these visits from being supervision over the conditions of prisons and the living conditions of prisoners into a routine procedure that is nothing more.
This weakens the National Council for Human Rights’ ability to present a true picture of the reality inside prisons. In most cases, conditions inside prisons are organized and improved before the arrival of the Council’s delegation. More than one ex-prisoner who served jail terms in “Tora High Security 1” and “Borg el-Arab” prisons confirmed this and said: “When a delegation from the [National Council for] Human Rights, they [the prison administration] might allow inmates to go out in a flooded football field.” On the other hand, a member of the National Council for Human Rights told us that no prison visits had been made since the law was amended in protest over the amendments.
By tracing the annual reports issued by the National Council for Human Rights, we noticed a clear change in the main sections of the reports. Until 2015, the annual report used to have a fixed section under the title “Prison Visits”[7] that provided information about the conditions of the prisons visited, including information about the number of prisoners and their conditions and makes recommendations about them. However, starting in 2016, the annual report does not include a section about prison visits. Rather, it includes a section about the complaints submitted to the Council regarding human rights violations. The Council refers these complaints to the Public Prosecution, but the latter never responds.[8]
In general, we can conclude that there is no reliable/real information about the conditions of places of detention in Egypt since the CPS monopolizes that information.
Fourth: Examples of the scarce access to information inside places of detention
Failure to access information about the conditions of places of detention takes various forms, including the refusal to disclose information from inside and the denial of what the authorities call “rumors”, without providing alternative information in most cases.
In this part of the report, we seek to highlight two important examples of lack of access to information about places of detention; they are cases of medical negligence leading to death and hunger strikes.
a) Deaths
The number of deaths in places of detention is steadily increasing, as it reached 33 cases this year. This can be attributed to the lack of effective medical care, the deteriorating living conditions, and the lack of independent oversight of the conditions of detention, at a time when the CPS does not reveal the death cases inside prisons/places of detention or their causes. In case it reveals a death case, the CPS usually says the cause of death is an “acute circulatory collapse”, which is considered a symptom of death and not a cause of death. The Ministry of Interior’s Facebook page usually denies the causes of death announced by human rights organizations, without providing information about the real causes of death from the ministry’s point of view.[9]
On the other hand, relatives of prisoners who died in places of detention told us that most of the death certificates given to prisoners’ families state that the cause of death is “under investigation”, and the matter ends there. This makes it difficult to know the real death causes, given the difference between the accounts given by the prisoners’ families and the official narrative.[10]
b) Hunger strikes
At a time when the hunger strike is used as a way for prisoners to protest against the violation of their rights inside their places of detention, during the current year, eight prisoners have gone on hunger strike, either fully or partially; although the text of the Article 46 of the Prisons Organization Law No. 396 of 1956 – according to the last amendment under Law No. 106 of 2015 – states that “the prison warden should immediately inform the Assistant Minister for the Prisons Authority Sector, the Security Director, and the Public Prosecution about the unrest, collective disobedience, and hunger strikes carried out by prisoners, as well as the measures taken by the prison administration in this regard”. The law, however, does not mention any details on how to deal with prisoners on hunger strikes, although there are some conventions that preserve the right of hunger strikers and regulate their treatment, especially by doctors. The Declaration of Malta on hunger strikers states that doctors should regularly follow up and communicate with the prisoners on hunger strike.[11]
However, the key problem with the way the executive and judicial authorities handle the issue is not only the difficult access to information about prisoners on hunger strike and the lack of regular follow-up of their health condition, but it also includes the denial of the prisoners’ hunger strike, which results in a lack of interest or follow-up and may – therefore – lead to the death of the hunger striker.
- Activist, blogger and programmer Alaa Abdel-Fattah:
Alaa Abdel-Fattah, who has been detained in Tora High Security Prison 2, announced his hunger strike on 2 April 2022 to demand his basic rights, such as access books and going out for exercise. On 18 May 2022, he was transferred to the Wadi al-Natrun Correctional and Rehabilitation Center. He is continuing his hunger strike until the time of writing this report, according to his family. On the other hand, the Ministry of Interior denied in a statement that Abdel-Fattah was on a hunger strike, amid lack of visits to the prison by independent bodies, civil society organizations, or by the prosecution.[12]
The only visit to Abdel-Fattah was paid by the National Council for Human Rights last June. The Council’s delegation said at the time that it “viewed the medical reports of a number of inmates including the prisoner Alaa Abdel-Fattah which showed that his medical condition is stable, his vital signs are at normal levels and that the medical team regularly checks him. Moreover, the facility’s officials noted that Abdel-Fattah receives his daily meals and that there are no reports noting that the prisoner is on hunger strike, or any other prisoners being on hunger strike”.[13]
Conclusion and recommendations… How can we ease the restriction and blackout of information about prisoners?
We can address the lack of information about the conditions of places of detention through several axes, the first of which is to urgently pass an effective law on access to information that provides for the periodic/automatic disclosure of information about each individual facility. The second axis is to introduce extensive amendments to the Prisons Organization Law No. 396 of 1956 and its regulations. The third and final axis is to activate existing legislation that may alleviate the lack of information about places of detention.
Accordingly, the Association for Freedom of Thought and Expression makes the following recommendations:
- A law on access to information should be issued, provided that the governing philosophy of the law should be “availability” and all other exceptions must be limited. The law should be given priority over any other law.
- Egypt should sign the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which entails the Subcommittee on Prevention of Torture conducting field visits to prisons in Egypt. This would help open a wider scope for access to information about places of detention, away from the executive authority.
- There should be an independent body that plays a supervisory and oversight role in prisons, and has the right to pay unannounced visits, with the ability to see all prisoners and access all places inside the prison.[14]
- The Manual of Prison Work Procedures issued by virtue of the two administrative resolutions No. 1 of 1966 and No. 1 of 1969, and amended by the administrative resolution No. 297 of 2006 should be disclosed.
- Article 73 of the Prisons Organization Law No. 396 of 1956, which stipulates that the National Council for Human Rights must obtain prior permission from the Public Prosecutor to visit places of detention, should be amended.
- The conditions of places of detention should be revealed in the periodicals issued by the Ministry of Interior, or in a special periodical to be issued by the CPS.
[1] Malta declaration on hunger strikers. Link: https://www.wma.net/policies-post/wma-declaration-of-malta-on-hunger-strikers/ [2] The National Human Rights Strategy, September 2021, last visited in September 2022, link: https://manshurat.org/file/86396/download?token=ceKrg_WY [3] Association for the prevention of torture. Right to information. Accessed in march2022. Link: https://www.apt.ch/en/knowledge-hub/detention-focus-database/safeguards/right-information [4] Egyptian Court of Appeal, Appeal No. 13940 of Judicial Year 82, 2013, last visited in September 2022, link: https://www.cc.gov.eg/judgment_single?id=111258421&ja=259471 [5] Ibid. [6] The Egyptian Initiative for Personal Rights, "Episodes on Egyptian Prison Legislation", September 2017, last visited in September 2022, link: https://bit.ly/3gv40cR [7] The National Council for Human Rights, "The 10th Annual Report 2013/2014", 2015, last visited in September 2022, link: https://nchr.eg/Uploads/publication/ar/report101570449516.pdf [8] The National Council for Human Rights, "The 12th Annual Report 2016/2017", last visited in September 2022, link: https://nchr.eg/Uploads/publication/ar/report121606540392.pdf [9] The Interior Ministry’s Facebook page, “Denial statement”, last visited in September 2022, link: https://bit.ly/3z5ibfb [10] Interview with the wife of a deceased prisoner in Borg el-Arab prison, 2018, Alexandria, Egypt [11] The international committee of the Red Cross."Medical and Ethical Aspects of Hunger Strikes in Custodyand the Issue of Torture". January 1998. Link: https://www.icrc.org/en/doc/resources/documents/article/other/health-article-010198.htm [12] The Public Prosecution’s Facebook page, July 2022, last visited in September 2022, link: https://www.facebook.com/100044365962152/posts/591953275626866/?d=n [13] The National Council for Human Rights, “The National Council for Human Rights visits the Wadi al-Natrun Correctional and Rehabilitation Center,” June 2022, last visited in September 2022, link: https://nchr.eg/ar/news-details/983 [14] ICRC. https://www.icrc.org/en/document/what-we-do-detainees
