is to be interpreted as widely as possible to encompass the widest possible
array of physical and mental abuses."57 Therefore, given that the separation of
families was as a result of the process followed by the State in removing the
protesters; the trauma caused by the separation; as well as the fact that the State
had not responded to this submission; and the need for a wide interpretation,
the Commission finds that this amounts to inhuman treatment.58
202.
The Complainant further submits that the detainees were denied access to
lawyers. The State does not refute this claim. However, the right to defence
including the right to be defended by counsel of his choice is a separate right,
which is protected under Article 7 of the Charter. The Commission does not,
however, see how this amounts to cruel, inhuman or degrading treatment, and
the Complainants had not elaborated on the argument. The Commission can
thus not make a finding of a violation of Article 5 in this regard.
203.
In relation to the second argument that incommunicado detention can amount
to inhuman and degrading treatment the Commission wishes to dwell for a
moment on the definition of incommunicado detention. According to the
Merriam-Webster's Law Dictionary, incommunicado is defined as being “in a
situation or state not allowing communication”. The Association for the
Prevention of Torture and Human Rights Watch give a broader definition,
including cases where “the detainee has some contact with judicial authorities
but cannot communicate with family, friends, independent lawyers or
doctors”, under incommunicado detention. 59 In the current case, while not
being given access to their families, lawyers or in some cases medical services,
the detainees did have access to UNHCR staff. Given that the mandate of
UNHCR is the protection of refugees, that it is an independent organization,
and despite the tension between the UNHCR office in Cairo and these specific
refugees, access to the UNHCR would mean that the detention does not
constitute incommunicado detention. The second argument is thus rejected on
the facts of the case.
Para 37.
See also 48/90-50/91-52/91-89/93 Amnesty International, Comité Loosli Bachelard, Lawyers'
Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v.
Sudan.
59 See https://www.apt.ch/content/files_res/secret_detention_apt1-1.pdf; Human Rights Watch, Setting
an Example: Counter-terrorism Measures (January 2005), p. 23.
57
58
55