مؤسسة حياه للتنمية والدمج المجتمعي Development and community integration
Statement of Strategic Issues and What has been Done
With reviewing the international conventions that ratified by the Egyptian government, we find out that they establishing many rights. Although these rights are stated in the constitution and the Egyptian laws, yet in the actual daily reality we find the contrary of what stated in the conventions, constitution and law. Start Initiative for Community Justice and Human Rights seeks to work in many strategic issues to facilitate or reduce arbitrary procedures practiced by the executive authority.
Firstly: Removing from Criminal Record
Criminal record is one of the most important files which Start Initiative for Community Justice and Human Rights addresses to help any former prisoner to stabilize, integrate and live safe and free-from-risks life.
Taken procedures
Firstly: sending registered acknowledged letter to major general the Minister of Interior, another one to major general the manager of Security Directorate of Al Sharkaya and another one to major general the manager of criminal evidences branch to remove the name of the former prisoner from the criminal record.
In the case of abstention by the administrative body, then it is to resort to jurisdiction of the Council of the State after submitting a request to disputes settlement committee in Police Academy in Al Abbasya through a request submitted to the committee as a primary procedure, then suing lawsuit in front of the court of the Council of the State in the constituency administrative jurisdiction of Al Sharkaya.
Sample Cases
The first case: (M.R): it is found out that he suffers from problems regarding inserting his name in criminal record represented in the case of total disability. A lawsuit was sued in front of the administrative jurisdiction court, which recorded under no. 14758 of 19 Q/ administrative jurisdiction/ Al Sharkaya. A session (preliminary) was defined in 3rd May 2015, by this session the lawsuit was held for reporting.
The second case (A.R): he suffered from problems regarding inserting his name in criminal record as a result of the existence of number of cases among which are drug abuse, robbery and beating, and as he want to omit his name from the records of the Ministry of Interior represented in the case stopping from the activity for more than sequent six years. A lawsuit was sued in front of the administrative jurisdiction court, which recorded under no. 14759 of 19 Q/ administrative jurisdiction/ Al Sharkaya. A session (preliminary) was defined in 3rd May 2015, by this session the lawsuit was held for reporting.
• Difficulties
1- Slow governmental procedures.
2- Policemen view to the recorded (former prisoner) as an unwelcoming category in society.
3- Inserting the names of the recorded and arresting them when any crime took place.
• What is required:
1- Any convicted should not be recorded unless being condemned by jurisdiction and after a final judgment.
2- Applying law regarding the removing conditions established by it; namely death, partial or total disability or the prisoner stopped his criminal activity.
3- Removing the first precedent from criminal status paper of those with first precedents to facilitate employment.
Secondly: Compensating the Period of Provisional Detention
The article no. 9 of the Universal Declaration of Human Rights states that “no one shall be subjected to arbitrary arrest, detention or exile”.
The article no. 9 of the International Covenant on Civil and Political Rights states:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. 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 any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
– Criminal procedures law, issued in 1950, did not include any text that control compensation of provisional detention. On the other hand, there were no judgments addressing this issue; the matter which made the jurisprudence severely criticizes this point. But by 2006 with the great amendments witnessed by criminal procedures law by law no.145 of 2006, a new article was added; namely article no.312 (repeated) which states the principle of compensation of provisional detention.
Sample cases
First case (M.M): lawsuit no.133 of 2014 governmental civil Al Zakazik, the session in 29/10/2014. The lawsuit was held to sentence with “lack of jurisdiction of the court and to be referred to the court of North Cairo”. The lawsuit got new number; namely 36 of 2015 compensations of North Cairo and on the session of 12/2/2015 the court decided to hold the lawsuit for sentencing in 30/4/2015 in which the judge decided to postpone the sentence to session of 28/5/2015 . The court decided the rejection of the lawsuit; however, the sentence was appealed in front of the court of appeal of North Cairo.
Second case (M.M): lawsuit no.134 of 2014 governmental civil Al Zakazik, the session in 29/10/2014. The lawsuit was held to sentence with “lack of jurisdiction of the court and to be referred to the court of North Cairo”. The lawsuit got new number; namely 35 of 2015 compensations of North Cairo and on the session of 16/2/2015 the court decided to postpone the sentence to session of 11/5/2015 for reviewing by the state lawyer. The court decided the rejection of the lawsuit; however, the sentence was appealed in front of the court of appeal of North Cairo.
• Recommendations:
1- Provisional detention should be in most dangerous crimes only.
2- Referring to jurisdiction immediately.
3- Rapid required investigations regarding the crimes committers.
4- Decreasing the provisional detention by the public prosecution.
Thirdly: Health Release
The article no.25 of the Universal Declaration of Human Rights states:
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
The article no. 12 of the International Covenant on Economic, Social and Cultural Rights states:
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
The health file is one of the most important files which the initiative seeks to support. In many cases, the initiative sought to provide health support represented in some cases to provide treatment or legal demanding of health release according to law texts and how much the prisoner’s health status is dangerous.
Sample cases
The first case: the prisoner M.A imprisoned in the case no. 5187 of 2013 criminals of Zafr Sakr, recorded under no. 341 of 2013 criminals of North Sarkaya regarding “drug trafficking”, suffers from colon cancer and he eradicated 15 cm from his intestines and needs chemotherapy because of his health status deterioration gradually. The case was followed up in Al Zakazik public prison and his health status found out to be deteriorated, in addition he suffers from the prison’s food and the prison’s living conditions which contradict with his disease since he is imprisoned in jail sized 2m × 3m with more than ten prisoners. The ventilation and exercise period outside the jail does not exceed one hour a day and the same for going outside jail for bathrooms. Since 17/7/2013, the date of implementing the penalty, till 27/4/2014 he did not get the chemotherapy dose which led to the deterioration of his health status. When the initiative staff visited him in his jail he demanded the necessity of depositing him in hospital to get the chemotherapy.
It was found out that the reason behind delaying in transmitting the prisoner to the hospital is the lack of competent delegate to deliver his treatment papers to the hospital to set the appointment of getting the chemotherapy and conducting X-rays. The initiative staff met the public relations manager in Al Sharkaya security directorate to address the police commissioner to review the referring of the prisoner to the hospital. Yet, we were informed that there was no legal authority that enables him to follow up with the police commissioner. A request was submitted to police commissioner Al Zakazik public prison to complete the prisoner’s treatment and get his chemotherapy.
The initiative vouched for conducting the X-ray and necessary analysis and sending them to the prison in paving the way for the chemotherapy, yet the prisoner reached late stages with which he could not get the chemotherapy unless with very expensive tablets.
The initiative sued the lawsuit no. 14760 of 19 K administrative jurisdiction Al Sharkaya to call for health release for the prisoner based on the article no. 36 of prisons law no. 396 of 1956 stating that “Each sentenced has proven to be infected by a disease that threatens his life or disables him totally after being examined by the doctor; the matter has to be presented to the head of medical department of prisons to examine him in participation with the medical examiner to consider his release”. The lawsuit was held for the report of the representatives of the Council of the State.
In 20/7/2015 the prisoner got tincture in paving the way for conducting X-rays and analysis, yet the prisoner’s health status was more deteriorated and was examined by the prisoner’s doctor who wrote a report against the prisoner revealing that he pretends and fabricates the infection. Then the prisoner was imprisoned in solitary confinement. The prisoner sent a letter to the lawyers of the initiative to take the necessary legal procedures towards the prison’s police commissioner and doctor. As a result, the unit wrote a complaint and submitted it to the Sir/Consultant the Attorney General recorded under no. 14054 of 2015, the Attorney General complaints. A complaint also was submitted to the international cooperation office and the department of Egyptian prison.
• Difficulties
1- Non-activation of the article 36 of prisons law no. 396 of 1956.
2- Slow procedures taken by the office of international cooperation and prisoners’ care regarding medical examination of prisoners.
3- Hospitals affiliated to prisons’ department lack necessary devices for rays, especially for dangerous diseases.
• Recommendations
1- Conducting medical examinations necessary for patients and referring them to the prison’s hospital and in the case of lack of possibilities to treat patients with dangerous status they are to be referred to other civil hospitals.
2- The necessity of health release for some prisoners due to their health status according to article no. 36 of law no. 396 of 1956 regarding prisons’ organizations.
3- Activating the articles from 45 to 49 of the internal regulation of health procedures inside prisons.
Fourthly: Punitive Cases and Supplementary Punishment
Article no. 31 in the Egyptian Constitution “everyone has the right to dignity and society and state guarantee its respect and protection”.
Article no. 50 in the Civil Law “everyone exposed to illegal attack against one of his personal rights, is to demand the stop of this attack and compensation for the harm he witnessed”.
The state civil workers law no. 47 of 1978 amended by the new state civil workers law in 2015 issued by President Decision no. 18 of 2015, and which is assured by the Egyptian Constitution in the second paragraph of the article no. 63 that states “the state guarantees each worker’s right to fair wage, vacations, retirement, social insurance, health care, protection against work risks and providing conditions of vocational safety in work places according to law, and it is not allowed to terminate the worker unless in cases stated by the law”. Also the constitution manifested in guaranteeing the Egyptians’ dignity and freedom and protecting their personal rights the article no. 34 that states “personal freedom is natural right which is preserved and protected”, in addition to its article no. 81 that states “inherent rights and freedoms do not accept disruption or derogation”. According to the Egyptian Constitution’s articles that protect the Egyptians’ dignity and personal freedom and the released categories in particular and back to work issues after releasing from prison and some unconstitutional articles of the law and the committee’s decisions to terminate the worker, the released in particular, and pay all his/her financial and rights dues since the day of working cut off especially if the reasons according to which the committee took its decision are that the cut off were because of dishonorable and dishonest crimes from their legal point of view among which is forgery according to law no. 47 of 1978 and that amended by the new law of 2015.
Sample Case
The woman N.B after her release from prison (because of forgery crime), it has been found that the Directorate of Education did not allow her to back to work and surprised by investigating with her because of cut off work, although there was not an issued decision regarding terminating her since the day she cut off till the date of issuing the workers’ affairs committee decision in 1/6/2015 of committing forgery in official papers. The sentence came to prison only and not to terminate her from job. In addition, the case was described as not qualified for public jobs. The sentence was appealed and the court of appeal accepted it and referred it to other constituency, and according to the criminal procedures law it is not allowed to punish a convicted for a crime twice.
In addition, the article no. 98 in the law no. 47 of 1978, upon which the termination decision was issued, in its second clause states that “…in cases which worker submits his resignation, the administrative body is to send written warning notification registered acknowledged letter after his cut off for 5 days in case that he cut off more than 15 days and for 10 days in case that he cut off more than 30 days”. Moreover, the article no. 99 in the same law states “the worker is to have all his/her wage till the day when his/her terminates for reasons stated in the articles 80 and 94”. The article no. 100 in the same law states “if a worker is sentenced to be referred to pension or terminated, his service finishes from the day of the sentence unless he is suspended, then his service is finished from the date he suspended and he is to compensated as equivalent to his wage till the date of informing with the sentence if he is not suspended”.
Besides, according to article no. 84 in the same law upon which the decision was issued and which amended by the new law in the article no. 61 we call for stating them as unconstitutional since they contradict personal rights and dignity of Egyptian citizen mentioned in the new constitution and other last constitutions, and their contradiction to civil law and the constitution in regard to evisceration of authorities competences since it eviscerates the judicial competence in the second clause and gives it to the executive authority when stating “if the criminal sentence is not competent to terminate the worker ‘s service, then the matter is to be presented to the competent authority when back to work to report what is to be followed in his/her punitive responsibility”, the matter is also stated in the article no. 98 of the law no. 139 of 1981 that states “all who is imprisoned for criminal sentence terminated from his work all his prison period and deprived from half his wage to implement the criminal sentence, and if the criminal sentence is not competent to terminate the service, the matter is to be presented to the governor to report what is to be followed in his/her punitive responsibility”. It is a fault to give this competence to the executive authority, while it should be of the judicial one with consideration that who has the total has the partial according to law.
In the case (N.B) in consideration to right to work, employment and coexistence that stated by constitution and law as inherent and personal rights, and after being attacked by the administrative body by issuing decision of termination, it was necessary to stop this illegal attack with compensation as stated by the civil law in the article no. 50, and as the judicial body is competent to issue the sentence of prison (it was to issue a sentence with termination) but the sentence did not include termination decision and did not address punitive responsibility since the case did not commit the crime during or inside work when mentioning she is not qualified for public jobs.
Taken procedures
1- Submitting grievance to the administrative and executive bodies regarding the administrative decision with registered acknowledged letter and they did not reply to this grievance during 60 days from announcement of terminating the service.
2- Submitting request to dispute settlement committee.
3- Suing lawsuit in administrative judiciary in the Council of State in Al Zakazik after 60 days from announcement of terminating the service in which we call for rapid cancellation and withdrawal of the decision of the administrative body regarding terminating the service and paying all financial due of the case from the date of her cut off and material and moral compensation according to law.
4- Moving to stop the lawsuit and referring it to the Supreme Constitutional Court to look in the unconstitutionality of some texts of civil workers law no. 47 of 1978 which amended by issuing the new law of civil service in 2015.
Recommendations
1- Rapid issuance of decisions from committee of workers affairs in the Directorate of Education regarding continuing or terminating service since the decision may take about year to be issued.
2- Activating the committee of dispute settlement legally and realistically, the matter which resulted in following the recommendations by courts.
3- Activating the law regarding rapid litigation and rapid movement of lawsuits and setting sessions by the court of Council of the State.
4- The unconstitutionality of some texts of law no. 47 of 1978 that contradict with the constitutional rights of the Egyptians especially the released, upon which the committee issue its decision, among which is the article no. 84 and 94 that were amended according to new law of civil service in 2015 issued by President Decision no. 18 if 2015 the articles 61;62;63 that contradict the personal rights that stated by the new Egyptian constitution in preserving personal rights, dignity, his right to work and coexistence in society.