Obsah:
I. výňatky ze zprávy U.S.A o situaci v Egyptě
II. vzorový případ z rozhodovací praxe v Kanadě
III.odkaz na protiteroristické rezoluce

I.
U.S. Department of State - 25 February 2004
U.S. Department of State Country Report on Human Rights
Practices 2003 - Egypt
Released by the Bureau of Democracy, Human Rights, and
Labor>February 25, 2004
The Ministry of Interior controls the State Security
Investigations Sector (SSIS), which conducts investigations and
interrogates detainees, and the Central Security Force (CSF),
which enforces curfews and bans on public demonstrations.
Security forces continued to arrest and detain suspected
members of terrorist groups. The President is the commander-in-
chief of the military and the Government maintains effective
control of the security forces. The security forces committed
numerous, serious human rights abuses.
The Government's human rights record remained poor and many
serious problems remain; however, there were improvements in a
few areas. Citizens did not have the meaningful ability to
change their government. The use of military courts and State
Security Courts to try civilians continued to infringe on a
defendant's Constitutional right to a fair trial before an
independent judiciary. The 1981 Emergency law, extended in
February for an additional 3 years, continued to restrict many
basic rights. The security forces continued to mistreat and
torture prisoners, arbitrarily arrest and detain persons, hold
detainees in prolonged pretrial detention, and occasionally
engaged in mass arrests. Local police killed, tortured, and
otherwise abused both criminal suspects and other persons.
During the year, the Government prosecuted 13 police officers
for abuse and torture of prisoners. The Government abolished
State Security Courts but continued to use of State Security
Emergency Courts. The Government enacted a law to abolish the
hard labor penalty, and passed legislation establishing a
National Council for Human Rights. The Government generally
permitted human rights groups to operate openly.
RESPECT FOR HUMAN RIGHTS
1. Respect for the Integrity of the Person, Including Freedom
From:
a. Arbitrary and Unlawful Deprivation of Life
There were no reports of political killings; however, during
the year, human rights organizations and the press reported
that at least 8 persons died in custody at police stations or
prisons.
In April, the Egyptian Organization for Human Rights (EOHR)
released a report called "Torture Should be Stopped." It
documented five cases of alleged death due to torture which
occurred in police stations and detention centers in 2002. The
report also included 31 cases of torture, 9 of which the report
states "are expected to end in death."
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment
The Constitution prohibits the infliction of "physical or moral
harm" upon persons who have been arrested or detained; however,
torture and abuse of detainees by police, security personnel,
and prison guards remained common and persistent. The November,
2002 session of the U.N. Committee Against Torture noted a
systematic pattern of torture by the security forces.
Police torture resulted in deaths during the year (see Section
1.a.).
Under the Penal Code, torture or giving orders to torture are
felonies punishable by 3 to 10 years' imprisonment. In June,
the Government abolished hard labor as a punishment; however,
prior to June, some hard labor sentences were imposed.
If the victim dies under torture, the crime is one of
intentional murder punishable by a life sentence. Arrest
without due cause, threatening death, or using physical torture
is punishable by imprisonment. Abuse of power to inflict
cruelty against persons is punishable by imprisonment and
fines. Victims may also bring a criminal or civil action for
compensation against the responsible government agency. There
is no statute of limitations in such cases. For example, on
January 13, an Administrative Court in Alexandria ruled that
the Ministry or Interior should pay $25,975 (120,000 LE) in
compensation to citizen Ramadan Mohammed, who was detained
illegally for 9 days and tortured in 1996.
Despite these legal safeguards, there were numerous, credible
reports that security forces tortured and mistreated detainees.
Human rights groups believed that the SSIS, police, and other
Government entities continued to employ torture. Torture was
used to extract information, coerce the victims to end their
oppositionist activities, and to deter others from similar
activities. Reports of torture and mistreatment at police
stations remained frequent. While the Government investigated
torture complaints in criminal cases and punished some
offending officers, the punishments generally have not
conformed to the seriousness of the offense.
Principal methods of torture reportedly employed by the police
and the SSIS included victims being: stripped and blindfolded;
suspended from a ceiling or doorframe with feet just touching
the floor; beaten with fists, whips, metal rods, or other
objects; subjected to electrical shocks; and doused with cold
water. Victims frequently reported being subjected to threats
and forced to sign blank papers for use against the victim or
the victim's family in the future should the victim complain of
abuse. Some victims, including male and female detainees and
children reported that they were sexually assaulted or
threatened with rape themselves or family members. The
Emergency Law authorizes incommunicado detention for prolonged
periods. Detentions under this law were frequently accompanied
by allegations of torture (see Section 1.d.). While the law
requires security authorities to keep written records of
detentions, human rights groups reported that the lack of such
records often effectively blocked investigation of complaints.
The Human Rights Center for the Assistance of Prisoners
(HRCAP), in an October 2002, report entitled "The Truth,"
commended judicial efforts to try security officers for
torture, but outlined current obstacles, including a vague
legal definition of torture, and the inability of victims to
sue perpetrators directly.
In November 2002, three domestic human rights associations, as
well as two international organizations, presented their
allegations and findings to the Committee Against Torture
(CAT), a subcommittee of the U.N. Commission on Human Rights.
The CAT report expressed concerns about: the continued
implementation of the state of emergency; consistent reports of
torture and ill treatment; abuse of juveniles and homosexuals;
the continued use of administrative detention; the lack of
access by victims of torture to the courts and lengthy
proceedings; and disparities in the awarding of compensation.
The report included several recommendations: ending the state
of emergency; the adoption of a clear legal definition of
torture; the abolition of incommunicado detention; the review
of military court decisions by a higher tribunal; the removal
of ambiguities in the law that allow the prosecution of
individuals for their sexual orientation; the acceptance of a
visit by a U.N. Special Rapporteur on Torture; the
establishment of rules and standards for victims; and to allow
human rights organizations to pursue their activities
unhindered. The Government maintained that the CAT's
recommendations were under review at year's end.
Actions cited by the Government at the hearing include: the
2001 abolition of flogging in prisons; unannounced inspections
of places of detention; court decisions that disregarded
confessions obtained under duress; increased human rights
training for police officials; and the establishment of several
human rights committees and departments within government
ministries.
The Government did not permit a visit to the country by the
U.N. Special Rapporteur on Torture during the year; however,
while the Government declined requests for such a visit in the
past, it asserted during the year that it "welcomes, in
principle," such a visit.
Prison conditions remained poor and tuberculosis was
widespread. Prisoners suffered from overcrowding of cells, the
lack of proper hygiene, food, clean water, proper ventilation,
and recreational activities, and medical care. Some prisons
continued to be closed to the public.
The International Committee of the Red Cross (ICRC) and other
domestic and international human rights monitors did not have
access to prisons or to other places of detention.
d. Arbitrary Arrest, Detention, or Exile
The Constitution prohibits arbitrary arrest and detention;
however, during the year, security forces conducted large-scale
arrests and detained hundreds of individuals without charge.
Police also at times arbitrarily arrested and detained persons.
The Emergency Law provides that police may obtain an arrest
warrant from the Ministry of Interior upon showing that an
individual poses a danger to security and public order. This
procedure nullified the constitutional requirement of showing
that an individual likely has committed a specific crime to
obtain a warrant from a judge or prosecutor.
The Emergency Law allows authorities to detain an individual
without charge. After 30 days, a detainee has the right to
demand a court hearing to challenge the legality of the
detention order and may resubmit his motion for a hearing at 1-
month intervals thereafter. There is no maximum limit to the
length of detention if the judge continues to uphold the
legality of the detention order or if the detainee fails to
exercise his right to a hearing. Incommunicado detention is
authorized for prolonged periods by internal prison
regulations. Human rights groups and the CAT both expressed
concern over the application of measures of solitary
confinement.
In addition to the Emergency Law, the Penal Code also gives the
State broad detention powers. Under the Penal Code, prosecutors
must bring charges within 48 hours following detention or
release the suspect. However, they may detain a suspect for a
maximum of 6 months pending investigation. Arrests under the
Penal Code occurred openly and with warrants issued by a
district prosecutor or judge. There is a system of bail. The
Penal Code contains several provisions to combat extremist
violence, which broadly define terrorism to include the acts of
"spreading panic" and "obstructing the work of authorities."
Hundreds, perhaps thousands, of persons have been detained
administratively in recent years under the Emergency Law on
suspicion of terrorist or political activity. Several thousand
others have been convicted and serving sentences on similar
charges (see Section 1.e.). The Human Rights Association for
the Assistance of Prisoners estimated that the total figure of
persons held in administrative detention was approximately
15,000.
On September 3, the Minister of Interior issued a decree
ordering the release of 1,000 political detainees affiliated
with the terrorist Islamic Group (IG) after they reportedly
renounced violence. Most prominent among those released was
former Islamic Group leader Karim Zohdy. HRAAP called the move
"an effective and positive step," but called for the Ministry
of Interior to release all political prisoners, especially
those suffering from health problems, and urged that prisoners
be moved to prisons in their home governorates to facilitate
family visitation.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary, and the
Government generally respected this provision in practice;
however, under the Emergency Law, cases involving terrorism and
national security may be tried in military, or State Security
Emergency Courts, in which the accused does not receive all the
normal constitutional protections of the civilian judicial
system. The authorities ignored judicial orders in some cases.
The Government has used the Emergency Law, which was
established to combat terrorism and grave threats to national
security, to try cases with no obvious security angle.
In May, the Government formally abolished State Security
Courts. The courts had been criticized for restricting the
rights of defendants, particularly the right to appeal. A
number of cases referred to the State Security Courts were
transferred to regular criminal courts. However, skeptical
observers of the legal system argued that as long as the
Government retained and used Emergency Courts, the abolition of
State Security Courts did not constitute a fundamental
improvement.
In 1992, following a rise in extremist violence, the Government
began trying cases of defendants accused of terrorism and
membership in terrorist groups before military tribunals. In
1993, the Supreme Constitutional Court ruled that the President
may invoke the Emergency Law to refer any crime to a military
court. The 1993 ruling in effect removed hundreds of civilian
defendants from the normal process of trial by a civilian
judge. The Government defended the use of military courts as
necessary to try terrorism cases, maintaining that trials in
the civilian courts were protracted and that civilian judges
and their families were vulnerable to terrorist threats. One
case involving civilian defendants was referred to a military
court during the year. On January 23, the Government referred
43 suspected members of the outlawed terrorist organization the
Islamic Group to a military court on charges of planning to
conduct terrorist operations against foreign interests.
Military verdicts were subject to a review by other military
judges and confirmation by the President, who in practice
usually delegated the review function to a senior military
officer. Defense attorneys claimed that they were not given
sufficient time to prepare defenses and that judges tended to
rush cases involving a large number of defendants. Judges had
guidelines for sentencing, defendants had the right to counsel,
and statements of the charges against defendants were made
public. Observers needed government permission to attend.
Diplomats attended some military trials during the year. Human
rights activists have attended, but only when acting as lawyers
for one of the defendants.
According to local human rights organizations, there were
approximately 13,000 to 16,000 persons detained without charge
on suspicion of illegal terrorist or political activity (see
Section 1.d.). In addition to several thousand others were
convicted and were serving sentences on similar charges.
The Government did not permit access by international
humanitarian organizations to political prisoners (see Section
1.c.). In 2002, an AI delegation was permitted to visit the
country, but authorities denied the group's request to visit
detainees. There were no prison visits during the year.
II.
reálný případ z Kanady, který částečně osvětluje některé
aspekty problému:

SURESH v. CANADA

Facts: The appellant, a Convention refugee from Sri Lanka,
applied for landed immigrant status. He was detained by the
Canadian government in 1995 and deportation proceedings were
begun based on security grounds. The Canadian Security
Intelligence Service ("CSIS"), believed that he was a member
and fundraiser of the Liberation Tigers of Tamil Eelam
("LTTE"), a terrorist
organization in Sri Lanka. Its members are also subject to
torture in Sri Lanka. The Federal Court, Trial Division upheld
as reasonable the s. 40.1 deportation certificate and, after a
deportation hearing, an adjudicator held that the appellant
should be deported. The Minister of Citizenship and
Immigration issued an opinion on the basis of an immigration
officer's memorandum that the appellant was a danger to the
security of Canada under s. 53(1)(b) of the Immigration Act,
R.S.C. 1985, c. I-2, and concluded he should be deported.

Reasons: The trial judge found that  the appellant had not
shown that he personally would risk torture according to the
"substantial grounds" test. This conflicts with the immigration
officer's finding that "there is a risk to Mr. Suresh on his
return to Sri Lanka". The officer concluded, however, that the
risk was "counterbalanced by the serious terrorist activities
to which he has been a party" and, on this basis, the Minister
ordered the appellant deported. The question is whether
deportation "to a country where the person's life or freedom
would be threatened" under s. 53 of the Act violates s. 7 of
the Canadian Charter of Rights and Freedoms.
........The provisions of the Act, however, must also be considered
in [*4] their international context: ....There are three
compelling indicia that the prohibition of torture by the
international community is a peremptory norm: the great number
of multilateral instruments that explicitly prohibit torture;
no state has ever legalized torture or admitted to its
deliberate practice; and a number of international authorities
state that the prohibition on torture is an established
peremptory norm. International law rejects deportation to
torture, even where national security interests are at stake.
 Barring extraordinary circumstances, then, deportation
to torture will generally violate the principles of fundamental
justice protected by s. 7 of the
Charter. Whether the risk to national security is sufficient to
justify the appellant's deportation is a question of evaluation
and judgment. It is necessary to take into account the degree
of probability of prejudice to national security, the
importance of the security interest at stake and the serious
consequences of deportation for the deportee. The Minister
should generally decline to deport [*5] refugees where, on the
evidence, there is a substantial risk of torture. ......The terms
"Danger to the Security of Canada" and "Terrorism", while
difficult to define, are not unconstitutionally vague. Section
19, which permits Canada to refuse entry to persons who are or
have been engaged in terrorism or who are or have been members
of terrorist organizations is used in s. 53(1) to define the
class of Convention refugees who may be deported because they
constitute a danger to the security of Canada. The provisions
fail to attract constitutional protection because it would be
conduct associated with violent activity which is not protected
by the Charter.


III.
  Při řešení případu by jste měli zvážit i existenci rezolucí
Rady bezpečnosti OSN k boji proti mezinárodnímu terorismu. A
to:

   2.1.  Security Council resolution 1368 (2001)

http://ods-dds-
ny.un.org/doc/UNDOC/GEN/N01/533/82/PDF/N0153382.pdf?OpenElement

   2.2.  Security Council resolution 1373 (2001)

http://ods-dds-
ny.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement
Tato rezoluce je přeložena i do češtiny. Naleznete jí:
Šturma, Nováková, Bílková: Mezinárodní a evropské instrumenty
proti terorismu a organizovanému zločinu, C.H. Beck, Praha,
2003, str. 205-207
(tato kniha je ve studovně)