The Working Group’s decision is striking for two reasons. First, the Group states that, because of a legal vacuum, Article 98 of the Penal Code on “prejudicing social harmony.” has been used as grounds for prosecuting the selected persons for homosexuality. Second, basing its decision on a recent, systematic jurisprudence produced by several UN bodies, including UNHCR, the Working Group recalls that the interdiction of all discrimination based on sex, set forth in international human rights law, is to be understood as an interdiction to de discriminate someone on the grounds of homosexuality.
The five independent experts of the Working Group declared that “The detention of the above-mentioned persons prosecuted on the grounds that, by their sexual orientation, they incited “social dissension” constitutes or has constituted arbitrary deprivation of liberty, being in contravention of the provisions of article 2, paragraph 1, of the Universal Declaration of Human Rights, and article 2, paragraph 1, and 26, of the International Covenant on Civil and Political Rights to which the Government is a Party,” and called on Egypt to redress the situation and to amend its legislation.
The FIDH, which sent an observer to the trial August 20, 2001, and then asked for the Working Group on Arbitrary Detention of the United Nations to intervene on this issue, is pleased of the Group’s decision, for it comes just at the right moment, since 50 of the 52 accused will appear before the Egyptian court again, on September 7, 2002.
BACKGROUND
On May 11, 2001, 55 Egyptian men, including a 17-year-old boy, were arrested. At the time of the arrest, the vast majority of them were arrested on the Queen Boat, a discotheque popular among the gay community. They were all taken to police stations and to the State Security Intelligence Department. The following day, they appeared before the State Security Prosecutor, who ordered the detention of 54 of them for 15 days. The detainees reported to being beaten and verbally abused by police officers during the first few days of detention. Fifty-two of them were charged and imprisoned until the verdict passed by the Emergency State Security Court for Misdemeanors on November 14, 2001. The State Security Court, established under the emergency law in force since 1981, rules on cases deemed to be of a threat to national security or to national sovereignty and its verdicts cannot be appealed.
The accusation was based on two elements of Egyptian legislation: first, Article 98(f) of the Egyptian Penal Code, targeting “any person who exploits religion in order to promote or advocate extremist ideologies by word of mouth, in writing or in any other manner with a view to stirring up sedition, disparaging or belittling any divinely-revealed religion or its adherents, or prejudicing national unity or social harmony”; and, second, the Anti-Prostitution Act of 1961, which punishes “anyone who habitually engages in debauchery or prostitution.”
November 14, 2001, the President of the Emergency State Security Court of Misdemeanors convicted 23 of the accused to sentences ranging from one to three years of imprisonment, and acquitted the other 29 accused. Of the 23 sentenced to prison, 21 were charged with “practice of habitual debauchery”, one for “contempt for religion”, and one for both charges. The latter two were sentenced to 3 and 5 years of imprisonment, respectively, followed by 3 years of parole. One of the 21 accused, a seventeen-year-old minor, was tried by a juvenile criminal court - whose verdicts of can be appealed - in a trial observed by the FIDH. He was first sentenced to 3 years in prison; upon appeal, on December 19, 2001, his sentence was reduced to 6 months. After spending 6 months in custody, he was sent free.
The case took a decisive turn when, on May 23, 2002, President Mubarak, in accordance with the emergency laws in force since 1981, rescinded part of the November 14, 2001 verdict passed by the Emergency State Security Court: he overturned the convictions of 21 of the accused, yet ratified the two harshest sentences, those of two people sentenced to 3 and 5 years of prison, respectively. The President’s reason for overturning the verdict: the charge “habitual debauchery” does not fall within the jurisdiction of the State Security Court. Thus, President Mubarak referred the files of the 50 men to public prosecutors for review. The prosecutors reviewed the case and referred it to a criminal court in Cairo, where, on July 27, 2002, the judge decided to postpone the trial until September 7, 2002.
As Egyptian law does not explicitly prohibit homosexuality, the Egyptian government, responding to the Working Group on Arbitrary Detention, which had been called upon by the FIDH, denied that homosexuality was the reason for the detention. This assertion was rejected by the five independent experts of the Working Group, who brought up the fact that the Emergency State Security Court for Misdemeanors had ordered a forensic expert to conduct an anal examination of some of the accused to establish that they were homosexuals.