Abdallah Tantawi
Introduction
This is no longer a concern confined to lawyers of the families of defendants or prisoners, but it is rather enough to be familiar or concerned with public affairs in Egypt to be hit right between the eyes when you read a new expression that has become common and frequently used during the past period; which is “inability to transfer the defendants” or “due to security reasons“.
It means that the Ministry of Interior, represented in the various security directorates and the Prison Service Sector’s patrols departments, refrains from transferring defendants from their different places of detention to the place where their hearings are convened, whether prosecution offices or courts with their different degrees or to hospitals for treatment, under the pretext of having a security issue that would prevent it from transferring these defendants to the headquarters of the prosecution, courts or hospitals.
This applies to defendants languishing in Egyptian prisons similarly over criminal cases or cases of a political nature.
This situation occurs even though the general rule is that the Ministry of Interior is the only body entrusted with the implementation of the decisions issued by courts and prosecutions of varying degrees and designations.
It is also the only body mandated to implement final court rulings, pretrial detention renewal orders, and all other various related procedures.
Why this legal paper?
In spite of the illegality of security excuses and pretexts, which undermine the rights of both defendants and defense lawyers besides diminishing the application of the rule of law and the role of the judiciary itself, the Interior Ministry- due to lack of accountability- has started to deal with the security excuses-related decisions as if it became a matter of fact that has legal justification, which is actually not true.
During the past two years, however, the ministry had been dealing with such decisions in a timid manner, especially on various occasions such as the public and official events and celebration, under the guise of the need to intensify security enhancements and so forth.
- Recently, specifically in mid-June of this year (2019), lawyers who regularly visit the Supreme State Security Prosecution’s headquarters to follow up their cases had found out that there were some security excuses that preclude transferring defendants from their places of detention to the State Security Prosecution during the period from June 21 to July 19; owing to the alleged security preparations launched by Cairo Security Directorate to secure the 2019 Africa Cup of Nations tournament held in Egypt during that period in addition to the required intensification of security enhancements at Egypt’s vital installations.
- Then, the Arabic Network for Human Rights Information (ANHRI) and social media users had access to a memorandum (couldn’t verify its authenticity) submitted by the Assistant Interior Minister for Cairo Security Sector to the head of the Court of Cassation and the Supreme Judicial Council. The memorandum contains some news about the inability to bring defendants to have their cases considered (in all ongoing cases during that period) for the same aforementioned reason and was ended by urging the recipients to take all the necessary measures. Such a matter constitutes a serious move for legitimizing such security excuses despite their violation of the law and the Constitution.
- Therefore, we believe that there is an important need to talk about these security grounds and excuses; what they are and how they violate the law and the Constitution as well as the rights of defendants and justice standards, not to mention the rights of defense lawyers, especially that it has become a phenomenon and one face of a coin whose other face is violation of the law.
First: The issue of security excuses and the law
- Researching and perusing laws regarding this concern, we didn’t find a single definition or regulation of the mechanisms for applying legal excuses by express provision in Egyptian law. However, there are legal provisions for regulating detention orders and their durations, the right of suspects and their lawyers, and their implementation mechanisms in the Egyptian Criminal Procedure Law, Article 136 thereof stipulates that:
“The investigating magistrate (judge) shall, prior to issuing an arrest warrant, hear the statement of the Public Prosecution and the defense lawyer of the suspect. The arrest warrant shall include a statement of the crime attributed to the suspect, the penalty prescribed thereto, and the reasons on which the detention order is based. This article shall apply to orders pertaining to the extension of pretrial detention under the provisions of this law.”
- Article 142 stipulates that: “Temporary detention shall end upon the elapse of a fifteen-day period as of the date of incarceration of the person accused. Nevertheless, the investigating magistrate may, upon hearing the statement of the Public Prosecution and the person accused, issue an order extending the period of detention for an extra period or periods that shall not, in total, exceed a 45- day period.”
- Hence, according to the law, every suspect held in pretrial detention pending a certain case shall be brought before the public prosecution that issued his arrest warrant or the investigating judge, before the expiry of his detention period to consider his case and after hearing the defendant’s statement in the presence of his lawyer, who, in turn, shall be enabled to give all his legal defense and pleadings as provided by law.
- Therefore, the problem of security excuses is not only represented in the serious infringement of the rights of defendants or lawyers. Rather, the problem lies in the silence of the judiciary “the Public Prosecution and judges”; when they condoned such tampering with the law turning a blind eye to the acts and practices that violate the law itself. Such practices include depriving the accused person of his legal appearance before his natural judge on the assigned dates, which could be an opportunity to his release before security excuses remain an obstacle that stands in the way of guaranteeing this right.
Third: Examples of cases where defendants and lawyers have been harmed by security excuses decisions
- Holding the 2019 Africa Cup of Nations in Egypt during the period from 21/6/2019 to 19/7/2019, the tournament has become a blatant example of the serious defect and breaches in Egypt’s judicial system during this period, as pointed out in the following examples:
- On 20 June 2019, at Tora’s Police Cadets Institute, where the case known in the media as “insulting the judiciary”- in which lawyers Montaser Al-Zayat, Mohamed Mounib, journalist Abdel Halim Kandil and others are accused- was scheduled to be considered. Lawyers of the defendants headed there to attend the case’s hearing on time, but they were staggered at the absence of the defendants ‘due to inability to transfer them from their jail to the courthouse on security grounds’. None of the circuit’s judges that were supposed to preside over the hearing were present as well!
- On 22 June 2019, lawyers of the Arabic Network for Human Rights Information (ANHRI) went to the Supreme State Security Prosecution headquartered in the Fifth Settlement to attend the session where the detention of Mohamed Mesbah Gebril, Abdul Rahman Awwad and other defendants involved in case No. 1365 of 2018 State Security would be considered, and to also attend with activist Khaled Mahmoud and leftist pharmacist Gamal Abdel Fattah in their detention renewal session pending case No. 1739 of 2018 State Security. However, upon their arrival, the lawyers were informed that the session would not be held because of the absence of the defendants who had not been transferred to the courthouse due to some security reasons, and that the session had been accordingly adjourned for the first of July 2019, without taking into account the legal expiry date of the defendants’ pretrial detention period as prescribed by law.
- The matter was repeated when ANHRI lawyers headed to the place where the 1st of July session was convened; as they found out that their clients were unable to attend the session for the second time in a row, and the case was consequently adjourned for 20 July 2019.
- In continuation of the series of security excuses, the situation occurred on 22 June was echoed during the session of 25 June 2019, when the State Security Prosecution renewed the detention of Islam Fathy for 15 days pending case No. 470 of 2019 State Security. It also ordered the detention renewal of poet Hamada Seddik, Thaer Ezzat and Ibrahim Mohamed Ibrahim accused in case No. 1739 of 2018 State Security, without bringing them before the Prosecution, and without getting to know whether the Prosecution had moved to the defendants’ place of detention to renew their remand in the absence of their lawyers, or that it did so just on paper under the pretext of the current security situation.
- On 6 July 2019, the Police Cadets Institute witnessed an incident that constitutes in itself an insult to lawyers who represent the right of a defense and one of the three main pillars of justice in Egypt (judiciary, Prosecution, and lawyers). Lawyers, including ANHRI’s, had attended the hearing to consider the precautionary measures issued against the defendants involved in case No. 441 of 2018 and 718 of 2018 State Security before Circuit 14 (Giza Terrorism Criminal). On the other hand, the defendants kept standing outside the Police Cadets Institute waiting for the hearing to get started so that they would be allowed to enter the court, which would issue its decision regarding the probationary measures; either to extend the measure or to cancel it to let them live an ordinary life without any restraints, including appearing before police stations every day or every week or some days a week, as an alternative to pretrial detention according to Article 201 of the Criminal Procedure Code. While the lawyers were present inside the courtroom since the early morning and the defendants were standing outside, lawyers were surprised at the court circuit’s judges leaving the courtroom without holding the hearing and even without informing them of the decision they had taken, a matter that constitutes a flagrant affront and offense to the lawyers attending the hearing. Later on, the lawyers headed to the State Security Prosecution to know the court’s decision; as the hearing was adjourned for 24 July 2019.
Conclusion
The examples mentioned in this paper were to name just a few, and they are all experienced by ANHRI lawyers on a daily basis in prosecutions and courts (with their different types) which witnesses numerous examples of security excuses for bringing and transferring defendants to have their cases considered. Some of these defendants are criminal suspects and others are accused in cases of a political nature. Lawyers, regardless of their different affiliations, are eyewitnesses to the shortcomings of Egypt’s justice system under the current political regime, a matter that ANHRI characterizes as a contravention of all laws and international conventions signed by Egypt, and accordingly, it should at least show respect for such regulations and agreements, and ensure not to breach or circumvent them using security-related measures.
Recommendations
- The Arabic Network for Human Rights Information (ANHRI) recommends that the Constitution and laws governing judicial and trial proceedings be necessarily respected, and that the Interior Ministry’s power to control such proceedings in an illegal way that is detrimental to justice now and in the future be limited and minimized.
- ANHRI calls on the Egyptian authorities to unconditionally release all those whose detention orders have been dropped for exceeding the legal period stipulated in the Criminal Procedure Code because of security excuses and pretexts.
- ANHRI also calls on the Public Prosecutor to ensure that those responsible for extending detention periods under the guise of security reasons be held to account for wasting and undermining the law and the Constitution; as their circumstances, inaction and idleness shouldn’t be a reason behind the non-implementation and violation of the law
