If you are unluckily arrested these days for any reason, either randomly by being stopped in the street having your mobile searched or for sharing any news on social media websites especially “Facebook”, or because of your human rights activity, either you are a lawyer, journalist or even an ordinary citizen who is dragged into one of the cases considered by the Supreme State Security Prosecution as a defendant just because you expressed your opinion criticizing a particular issue, know that you will enter a vicious cycle of detention renewal sessions that may last for a year or even more, over unsubstantiated reports that are (mostly) devoid of any evidence or proof; which are represented in the investigations conducted by the National Security Agency’s officer.
What is supposed to get you off this vicious cycle of detention orders and increase your chances to receive a release order is: your legal right to appeal the detention orders, which are renewed every 15 days by the State Security Prosecution, and then every 45 days when the detention is considered before the counseling room at one of the Criminal Court’s Terrorism circuits.
Since the Supreme State Security Prosecution is an exceptional prosecution in the first place, various questions have been raised regarding many of the decisions it issues, such as halting the receipt of appeals filed by defendants against their remand detention without any legal justification, which is what this paper talks about.
In this paper, we will trace the legal and legislative establishment of defendants’ right to appeal their detention orders. We will also shed light on the cases in which lawyers of some defendants submitted a request to the State Security Prosecution to appeal their clients’ remand detention renewal, but they failed, because of the Prosecution’s decision to stop receiving requests for appeals, without giving any reasons except following some instructions or directives that have become disruptive to the enforcement of the law.
The legal establishment of the right to appeal the detention orders as outlined by the law:
Article (164 –paragraph two) of the Criminal Procedure Code:
[The Public Prosecution] alone may also appeal an order issued in a crime granting temporary release to a temporarily detained person accused. A defendant may appeal orders issued for remand in custody or extend the period of temporary detention.
Article (166) of the Criminal Procedure Code:
“In cases stipulated under paragraph two of Article 164, the period of time for an appeal to be filed shall be twenty-four hours, and for all other cases, the period of time shall be ten days. The period of time shall commence as of the date of issuance of the order with respect to the Public Prosecution and as of the date of notification with respect to the remaining litigants. The appeal shall be decided within forty-eight hours as of the date of filing, and the defendant may appeal the decision at any time. If a decision is issued rejecting his appeal, he may submit a new appeal every thirty days from the date it is rejected.
In all cases, the appeal against the pre-trial detention orders or periods, or the temporary release, must be decided within forty-eight hours from the date the appeal is filed, otherwise the defendant must be released.”
Therefore, the Criminal Procedures Code gives defendants the right to appeal, at any time, their detention renewal orders, and if the appeal is considered and rejected, they are not entitled to submit another one except after thirty days. However, what happens in the State Security Prosecution is just incomprehensible. The accused is interrogated for the first time, mostly in the absence of his lawyer, and then the Prosecution decides to hold him in detention for 15 days pending investigations. As a result and normally, his lawyer files an appeal against his client’s detention order as stipulated in the law.
But conditions on the ground are moving in the opposite direction. When a lawyer submits a request before the Supreme State Security Prosecution to appeal his client’s detention order, one of two things happens:
The first thing: The lawyer’s request will be lost or missing among thousands of other requests submitted to the Prosecution, hence it would be difficult to find it again, especially that requests are submitted through the external gate of the Prosecution’s building where they are delivered to the police personnel in charge of guarding the building and securing the entry of lawyers and inspecting them. Requests for appeals also don’t carry numbers so that it would be possible to inquire about them later.
The second thing: The Prosecution will respond that it might halt the receipt of requests for appeals without giving any reasons, and this would be against the law.
Examples of some cases in which requests for appeals have been halted:
Case No. 1739 of 2018
This case involves numerous young men and women with different backgrounds, most of them are added to the case in the aftermath of the fiery crash in Cairo’s Ramses Railway Station that took place in late February of last year 2019. They are detained on charges of joining a terrorist group, publishing false news and statements and misusing social media.
The case includes poets, writers, novelists and political activists, including: poets Karim Zeidan, Hamada Seddiq and Thaer Ezzat, writer Ibrahim Mohamed, and novelist Ibrahim Wali, a group of young people who were arrested from a coffee shop in downtown Cairo following the railway accident. They are still being held in pretrial detention pending the case, as their lawyers have repeatedly attempted to appeal their clients’ detention for almost an entire year, but to no avail; either because the Prosecution announced it would stop receiving requests for appeals, or because the requests were rejected under no reason.
Case No. 488 of 2019
This case involves a huge number of political activists, lawyers, human rights defenders, journalists and students who are being held in custody on charges of joining a terrorist group and spreading false news. The case dates back to Ramses station fire in late February 2019, when a lot of defendants were added to the case against the backdrop of the calls for protests at that time, before it become as the “gutter” of all opinion holders, human rights lawyers, journalists and political activists, including: the Arabic Network for Human rights Information (ANHRI)’s lawyer Amr Imam, journalists Khaled Dawoud and Solafa Magdy, photojournalist Hossam Al-Sayyad, labor activist Kamal Khalil, journalist and activist Esraa Abdel-Fattah, activist Radwa Farid and photojournalist Islam Mosaddaq.
Since their arrest up till now, the lawyers defending all of these people have not been able to appeal the detention renewal orders of their clients, except labor activist Kamal Khalil whose lawyer was able to appeal his detention order for only once, before the appeal was rejected ordering the continuation of his detention.
Case No. 1356 of 2019
According to the available information, this case involves activist and blogger Alaa Abdel-Fattah, human rights lawyer Mohamed Al-Baqer, who was arrested from inside the State Security Prosecution while he was attending Abdel-Fattah’s interrogation session, in addition to blogger Mohamed Oxygen. Despite the various incidents surrounding their arrest, all of them are included in one case carrying the same number but with different accusations. Activist Alaa Abdel-Fattah and human rights lawyer Mohamed Al-Baqer are charged with joining a terrorist group and committing one of the funding-related crimes, while blogger Mohamed Oxygen is charged with abetting a terrorist group to achieve its goals, spreading false news and statements, and misusing social media. Lawyers of the three defendants weren’t also allowed to appeal their clients’ detention orders under the pretext of halting receipt of appeals inside the prosecution!
Examples abound of other cases witnessing the same issue; as it has become normal for the vast majority of the cases considered by the State Security Prosecution that their defendants are not allowed to appeal their detention renewal orders, except in very rare cases, not to mention the undermining of many rights stipulated in the Constitution and the law, but there isn’t enough space to mention them all.
These are just examples of the cases whose defendants are represented by ANHRI’s lawyers, who are present almost daily in the corridors of the State Security Prosecution, defending prisoners of conscience and trying as much as possible to provide legal-and also psychological- support to them. These are real examples and facts that we introduce in this paper to name but a few of the cases in which the rights of defendants- merely defendants- are totally curbed and undermined, and they are just the tip of the iceberg.
In practice, it has become normal- it is intended to make it normal in fact- to violate the defendants’ legal rights, without any accountability and without showing any objection or even giving any reasons. We attempt in this paper to shed light on such violations, maybe we can find anyone who can respond to our repeated calls for the need to respect the Constitution and the rule of law.
– The State Security Prosecution is obliged, by the law, to respect the Constitution and the rule of law and to enable defendants and their lawyers to appeal the detention orders issued against those detained pending the cases it considers.
– The Public Prosecutor must issue his orders that the law cannot be suspended except by another law that reverses or cancels it, and not by some directives or orders that cannot go beyond the enforcement of law, and hence enable defendants and their lawyers to appeal the detention orders as prescribed in the provisions of the law.