A position paper on pre-trial detention and loose vague charges

Prepared by: Karim Abdelrady

What happens:

Q: You are accused of joining a banned group?

Q: You are accused of publishing false news?

Q: You are accused of promoting and inciting terrorist acts?

These charges are almost the common factor for most of the cases in which investigations are being conducted these days, and pre-trial detention has become a very normal procedure, but it is neither normal nor legal.

The accused always asks about the banned group to which he is accused of belonging to, the false published news, or the terrorist acts he is accused of promoting and inciting for… of course without any answers!

It is not clear what the group is, what the false news is, or what the acts are, and the detention is always waiting for national security investigations!!

That is, the citizen becomes imprisoned until the charge is determined!

Introduction:

The main rule states that the defendant is innocent until proven guilty, in a fair trial in which he is guaranteed all rights and access to defend himself.

It is not permissible to derogate from this origin except in case of the existence of sufficient evidence for his involvement in committing any acts punishable by law.

Such derogation shall be limited to and in accordance with the necessities of its fair and equitable trial

The presumption of innocence is enshrined in the Egyptian Constitution and international treaties, and it cannot be imagined to be disregarded or ignored in any judicial system that respects national and international legislation.

The Egyptian Constitution states in Article 96 that “the accused is innocent until proven guilty in a fair legal trial, in which he is guaranteed the guarantees of his defense …”

The International Covenant on Civil and Political Rights (ICCPR) states in its article 14 that “… … (2) Everyone accused of a crime shall have the right to be presumed innocent until proven guilty by law.

(3) Any person accused of a crime shall enjoy the following minimum guarantees during the consideration of his or her case, on a full equality basis:

(A) To be informed promptly and in detail, in a language which he understands, of the nature of the charge against him and its causes.

Article 54 of the Egyptian Constitution guarantees personal freedom as a natural right, and prohibits the violation of it without judicial authorization. The law enforcement authorities must inform all those who restrict their freedom to the charges against him and be able to contact his family and his lawyers within 24 hours of the restriction of his freedom.

The legislator also set out specific restrictions and conditions for the detention of each defendant in custody, for what constitutes a precautionary measure of the presumption of innocence.

Article 134 of the Code of Criminal Procedure provides that:

“The investigating judge, after questioning the accused or his fleeing, if the offense is a felony or misdemeanor punishable by imprisonment for a period not less than one year and the evidence is sufficient, is allowed to issue an order of pre-trial detention, in case one of the following conditions is fulfilled:

1. If the offense is in the case of flagrant delicto, and in that case it should be effective immediately.
2. Fear of escape of the accused.
3. Fear of harming anything that is of interest to the investigation, whether by influencing the victim or witnesses, by tampering with evidence or material evidence, or by making agreements with the other perpetrators to change the truth or to blur its features.
4. To prevent a serious breach of security and public order that may result from the gravity of the crime.

However, the accused may be held in custody if he does not have a permanent residence known in Egypt, and the offense was a felony or misdemeanor punishable by imprisonment.”

In addition, the legislator has established a maximum limit for preventive detention under article 143 of the Code of Procedure that stated:

“In all cases, the period of pre-trial detention at the stage of preliminary investigation and all other stages of criminal proceedings shall not exceed one-third of the maximum penalty for deprivation of liberty, so that it shall not exceed six months in misdemeanors and eighteen months in felonies and two years if the penalty prescribed for the offense is life imprisonment Or execution …”

However, recently in Egypt, a methodology has been developed by the Supreme State Security Prosecution and some regular prosecutors in specific cases which raises doubts about the extent to which the investigative bodies respect their primary role in the protection and application of legislation, and also raises questions about the extent of the participation of the investigative bodies in the targeting of opinion-makers and political opponents.

In addition to not allowing lawyers to attend the first interrogation in most of the cases being handled by the State Security Prosecution, and denying them access to the documents of the investigations;

The use of preventive detention against opponents and opinion-holders for many years exceeded the maximum limit of custody as in the case of journalist Hisham Jaafar and researcher Ismail al-Iskandrani and others; with incoherent and loose charges, and on the basis of often incomplete national security investigations, ignoring the fact that the Court of Cassation has repeatedly ruled that investigations alone cannot constitute a basic evidence of conviction.

Examples of such provisions include:

“… although the origin is that the Court may rely on the formation of its doctrine on investigations as an enhancement of its evidence as long as it was on the table, still it is not valid alone to be a particular presumption or evidence to prove the basis of the crime … “

Court of Cassation – Criminal – Appeal No. 2421 – Judicial year 58 – Date of the meeting 3-11-1988 – Office technician 39 – Part number 1 – Page number 1012

These accusations have been varying between joining a banned group, spreading false news, or promoting and inciting acts of terrorism.

These charges are often directed without specifying the group, the news, or actions that formed the crime.

And this is usually explained by the fact that the case is still under investigation and that the investigation is still incomplete, which constitutes a violation of the provisions of the Constitution and the law which the prosecution must respect and even protect.

In many cases, the accused face more than one of the above-mentioned charges, without even clarifying what the charges are, and without investigating the availability of the elements of the crime.

In light of these practices, which we cite examples for in the following lines, the legal basis in this type of case has changed to become the accused convicted until proved to be innocent and not vice versa.

Which the Arab Network for Human Rights Information  (ANHRI) describes as a serious threat to freedom and justice, and sometimes turning it into a tool to silence the mouths and harass the opponents because some investigators do not respect the legal and constitutional texts which are the basic framework regulating their work.

1. The crime of establishing or leading or joining a banned group or a terrorist group:

Article 86’ of the Penal Code states:

“Any person who establishes, organizes, or administers, contrary to the provisions of the law, an association, body, organization, group or gang whose purpose is to advocate by any means to disrupt the provisions of the Constitution or laws or to prevent a State institution or a public authority from doing its work, or the violation of the personal freedom of the citizens or other freedoms and public rights guaranteed by the Constitution and the law, or damage to national unity or social peace.

Any person who has assumed leadership, leadership or material or financial support with the knowledge of the purpose and shall be punished by imprisonment shall be liable to imprisonment for a term not exceeding five years. Anyone who joins an association, organization or group, in the preceding paragraph or participated in it in any way, knowing its purposes …”

Article 12 of the Terrorism Act states:

“Death penalty or prison for life is the punishment for any person, who establishes, founds, organizes or manages a terrorist group, or assumes leadership or mentorship there. Strict prison is the punishment for any person who joins or participates in a terrorist group in any way knowing his purpose.”

And in view of the provisions of the preceding articles, we find that for such accusations to be made, certain conditions should be fulfilled. They are the components of the physical and moral elements of crime, and without which, there is no grounds or legal justification.

The first is to have a group, the second is to have a prohibited or a terrorist purpose from that group, and the third is to have the knowledge of the purposes of this group.

Therefore, it is not legally possible to accept that the accusation is directed without specifying the name of the group and its nature, and without confronting the accused and his defense with the acts that are indicative of the illegal purposes of the group.

This has happened in most cases before the State Security Prosecution, and the mere indictment was justified in imprisoning the accused for long periods of time without any clear evidence or proof.

* Examples of cases in which the charge of joining a banned or terrorist group was directed without mentioning the identity of the group:

 

1. Islam Zachariah al-Rifai and AKA “5orm”:

Islam is accused of joining a banned group in the case No. 977 of 2017 Supreme State Security.

5orm is a cynical blogger working in the field of information technology who was arrested from Downtown on November 16th, 2017. He disappeared for days before appearing as an accused in the State Security Prosecution appeared on case No. 977 of 2017 after interrogating him while denying his right to call either his lawyer or his family.

The prosecution charged him with joining a banned group based solely on national security investigations. It is not yet clear which group Islam Zachariah is accused of joining, especially since he is a cynical activist and does not belong to any political groups or parties. His lawyers, as is customary in the State Security Prosecution, have been denied access to any papers in the case, and all the information they have obtained is oral information from the investigator, and Islam is still in custody with successive renewal orders from the Supreme State Security Prosecution.

• Workers of the Public Transport Authority Ayman Abdel-Tawab and Mohamed Abdel-Khaliq:

The defendants in case No. 745 of 2016 State Security.

On September 23rd, 2016, a security force arrested Ayman Abdel-Tawab and Muhammad Abdel-Khaliq of the Public Transport Authority from their homes on the grounds of announcing a strike on the first day of school. They were brought to the Supreme State Security Prosecution on September 24th. The prosecution charged them based on national security investigations by joining a group established contrary to the provisions of the law and inciting a strike in case No. 745 of 2016, the security of a superior state.

They were not confronted with the name of the group they were accused of joining. Then a decision was made to hold them in custody by successive decisions of the State Security Prosecution.

On March 23rd, 2017, they were released from the Cairo Criminal Court with precautionary measures.

They remained under such measures until a decision was made to release them on April 11th 2018, after being held in pre-trial detention for about 6 months. They remained under such measures for about 11 months, without knowing what group they were accused of joining.

• Photo-Journalist Mohamed Husseini Hassan

Who is accused in case No. 915 of 2017 State Security.

Mohammed Al-Husseini is a news photographer at Al-Shurra newspaper. He and his colleague were arrested on September 6th 2017 by the Azbakia Police station force, while filming a report on the increase in the prices of school supplies in the ​​Faggalah district before entering the new school year.

He remained in enforced disappearance in the Azbakia police station for days before appearing on September 28th 2017 in the State Security Prosecution.

They were charged with joining a group founded against the provisions of the Constitution and the law and publishing false news.

Mohammed was held for 15 days and the journalist Angham Ghoneim was released without lawyers.

Mohammed remained in custody under successive decisions to renew his detention, without knowing what group he was accused of joining so far.

1. Moataz Bellah Shams al-Din and AKA Moataz Wadnan:

Who is accused in case No. 441 of 2018 limit the security of a superior state.

Moataz Wadnan is a journalist at Huffington Post, and he had a press interview with Hisham Genena, the leader of Sami Anan’s presidential campaign, and it was published on February 11th, 2017.

On February 16th, Moataz was arrested in Moneeb area while traveling outside Cairo. He appeared in the Supreme State Security Prosecution on February 18th, 2018, on charges of joining a banned group that was not named, and spreading false news, in case No. 441 of 2018 State Security.

The group to which was accused of joining, was not disclosed and the prosecution was based on its accusation of national security investigations.

He is still held in pre-trial detention by successive decisions of the Supreme State Security Prosecution.

• Crime spreading false news that would disturb public security:

Article 102 bis of the Penal Code states:

“A penalty of imprisonment and a fine of not less than fifty pounds and not more than two hundred pounds shall be imposed on anyone who intentionally broadcasts false news, statements or rumors, if this disturbs public security, terrorizes people or harms the public interest …”

It is clear from the previous text that in order to be accused of spreading false news that would disturb the public security, there must be news and information published to begin with, that this news was broadcasted deliberately, and that it would disturb the security or terrorize the citizens or damage the public interest. It is clear that such accusation cannot be found without such conditions.

However, in many cases the charge was brought without any disclosure of what news and information are, and they often charged with joining a banned group or promoting a banned or terrorist group.

* Examples of cases where charges of belonging to a banned or terrorist group have been directed and the dissemination of false news:

1. Mohammed Ahmed Ashri AKA Islam Ashri accused in case No. 977 for the year 2017 State Security:

Islam Ashri is a member of the Party of Life and Freedom (under foundation), was arrested on December 7th, 2017 in front of the Syndicate of Journalists during the organization of a stand to protest the decision of the US President Trump to transfer the US Embassy in Israel to Jerusalem.

He was interrogated before the Supreme State Security Prosecution on December 9th 2017, and then he became accused of joining a group established contrary to the provisions of the law, and publishing false news and statements that will disturb the public security.

Neither he nor his lawyers have been informed with the news that formed the crime, or the group to which he accused of joining.

• Journalist Mohamed Hassan Mustafa accused in case No. 15060 for the year 2016 Kasr El-Nil Misdemeanors:

Mohamed Hassan is a journalist at Al-Nabaa website, and he was arrested at the Press Syndicate on September 26th 2016, after a dispute had begun between two of his colleagues and a third person, and he intervened to try to resolve it.

He was later brought before the Central Cairo Prosecution on the same day, then he was charged with joining a group founded against the provisions of the law and publishing false news.

Neither he nor his lawyers were informed with the name of the group he was accused of joining, or what news constitutes the crime of false news.

He has been in pre-trial detention until now.

1. Ahmed Ali Abdul Aziz, accused in case No. 1102 for the year 2017 State Security:

Ahmed Ali Abdul Aziz is a freelance journalist and member of the Ghad-Al-Thawra Party.

He launched a sarcastic campaign on Facebook called “Oh no Abdou” after the announcement of President Abdel-Fattah Al-Sisi to run in the presidential elections for a second term.

He was arrested from his home in November 2017.

He disappeared for days before appearing at the State Security Prosecution on November 29th, 2017, and was charged based on security investigations with publishing false news and joining a banned group, after the investigations revealed that the accused had been in contact with the founder of a Facebook page called “Egyptian Council for Change” in order to promote the ideas of that page.

It is not clear what news constitutes for a false news crime, nor what the name of the group he has been accused of joining is, and he is still held in pre-trial detention by successive sequential detention orders.

1. Hossam Abdul-Mungi Galal Mohammed AKA Hossam Suweifi, accused in case No. 977 for the year 2017 State Security.

On December 7th 2018, Hossam Suweifi was arrested during his participation in a stand at the Journalists Syndicate to protest President Trump’s decision to move the US embassy in Israel to Jerusalem. He was then presented to the Supreme State Security Prosecution on December 9th when he was charged based on security investigations by joining a terrorist group and spreading false news.

He was held in custody without being confronted with the name of the group he was accused of joining, or the news that constituted the crime of false news.

He is still held in pre-trial detention on successive decisions to extend his detention.

1. Islam Abdul Megied Mohammed AKA Islam Ghiet, accused in case No. 977 of 2017 State Security:

Islam Gheit is a member of the Al-Dostour Party. He was arrested on November 13th 2018 from a cafe in Downtown. He was then presented to the State Security Prosecution in case No. 977 of 2017 then was charged with belonging to a terrorist group and spreading false news, and neither the group nor the news were revealed.

He is still held in pre-trial detention by the decisions of extension of consecutive imprisonment.

• Promotion for the purposes of a banned or terrorist group:

Article 86 bis of the Penal Code:

“The penalty provided for in the preceding paragraph shall be punishable for anyone who promotes, in words or in writing, or in any other manner, the purposes mentioned in paragraph 1, as well as any person who has acquired, directly or indirectly, editorials, publications or recordings of any kind, including promotion or advocating for what has been previously mentioned. Same goes for any person who has acquired or made any means of printing, recording or advertising that has been used or prepared for use even if temporarily to print, record or broadcast any of the foregoing. ”

Article 28 of the Terrorism Act:

“Anyone who promotes or is prepared to promote, directly or indirectly, any terrorist offense, whether by words, by writing or by any other means, shall be punished by imprisonment for at least five years.

Indirect promotion includes promotion of ideas and beliefs for the use of violence, by any of the means provided in the preceding paragraph of this Article.

The penalty shall be imprisonment for a period of not less than seven years, if the promotion occurred within the houses of worship, or among members of the armed forces or the police forces or in the premises of such forces.

Any person who has obtained or made any means of publication, registration or publicity used or prepared for use, even if temporarily, with the intention of printing, recording or broadcasting any of the foregoing shall be punished by the same punishment as the first paragraph of this article. ”

As in previous crimes, the offense of promoting a prohibited group or acts of terrorism requires that there be written, printed or registered material, that there be a group or ideas or acts of terrorism or prohibited, and that a charge cannot be applied without specifying the material containing the promotion , or what acts are being  promoted, but there are many cases have been directed to those charges without clarifying what acts or materials published, and usually the crime of promotion is associated by the crimes of being in a banned group and broadcasting false news.

*Examples of cases in which the charge of promoting for the purposes of a banned or terrorist group or the promotion of acts of terrorism has been made without indicating what such acts are:

• Ahmed Gamal Ali Manna, accused in case No. 482 of 2018, State Security:

Ahmed Manna is a member of the Karama Party, who was arrested from his home on February 27th 2018 for allegedly participating in the call to boycott the presidential elections.

He disappeared for about 9 days before appearing in the State Security Prosecution while being accused of publishing false news, joining a terrorist group and using a website to promote ideas and beliefs calling for terrorist acts.

Neither he nor his defense have not been confronted with the terrorist acts promoted by him or by the banned group in which he participates.

He is still held in pre-trial detention by successive renewal decisions.

• Hassan Hussein, accused in case No. 482 of 2018 Supreme State Security:

Hassan Hussein is a Nasserist activist. A security force stormed his house in Haram area on March 2nd 2018 and was arrested on the grounds that he had called for a boycott of presidential elections.

He remained in hiding for three days before appearing on the State Security Prosecution on March 6th.

The prosecution charged him with joining a terrorist group and promoting the group’s ideas through Facebook.

The prosecution decided to imprison him for 15 days pending investigation without a lawyer attending the initial investigation, and without confronting him with the name of the group he is accused of joining, or ideas he promoted, or false news attributed to him.

He is still being held in pre-trial detention by successive renewal decisions.

• Pharmacist Gamal Abdel Fattah accused in case No. 482 of 2018 Emergency State Security:

Gamal Abdel Fattah is a 72-year-old pharmacist and leftist activist, who was arrested after breaking into his home in Hadaeq Al-Ahram on the morning of February 28th, 2018 and was taken to the National Security Service in the city of 6 October and remained in illegal detention until he was presented to the State Security Prosecution on March 6th 2018.

He was interrogated without the presence of a lawyer and charged with establishing a terrorist group, promoting the ideas of a terrorist group via Facebook, spreading false news, and it was decided to hold him in custody without confronting him with the name of the terrorist group that he was accused of founding or the ideas he propagated, which to him and his lawyers remains unknown, and he is still held in pre-trial detention by successive detention extensions.

Summary:

The above cases represent very clear examples of how the law and the constitution are disregarded in investigations, based solely on the memos and inquiries of security officers, even if those investigations are incomplete.

In some investigations, the accused is informed that the investigations are still ongoing, which may prove his innocence after the completion of these charges, which is a manipulation of the legislative provisions that guarantee every citizen’s right to be presumed innocent until proven otherwise, turning one of the safeguards of investigation into a punishment in itself.

While the rulings of the Court of Cassation have repeatedly stated that investigations are not considered independent evidence and cannot be the sole basis for conviction, they are the sole basis of most charges and imprisonment of opponents and opinion-makers.

This allows any security body that is aiming to get rid of  politicians and opponents to use charges and then the investigations that condemn them without committing any other evidence against them without sufficient evidence, which is a very serious threat to the justice facility in total, and threatens the confidence of citizens to the justice system completely, and is an indication that there are some of those responsible for the implementation of the law who participate in belittling it, in order to silence the mouths of opponents and abuse them.

Recommendations:

1. The Public Prosecutor must accept the complaints of the defendants and their lawyers in the abuse of pre-trial detention and the obligation to comply with the provisions of the law in this regard and investigate them
2. Activating the mechanisms of judicial inspection and monitoring the members of the prosecution and accountability for ignoring the law and abusing of power granted to them.
3. The judiciary must apply the law and not respond to the requests for renewal of the non-serious detention, which are not based on sufficient evidence and do not take into account the rules and justifications of pre-trial detention.
4. The authorities must release all those who have exceeded the maximum limit set by law for pre-trial detention.
5. The Public Prosecutor’s Office must release all those charged with arbitrary charges of joining a banned group without sufficient evidence for such serious charges.
6. The Supreme State Security Prosecution must enable lawyers to attend hearings with their clients.
7. The State Security Prosecution must enable lawyers to review the documents pending before them.
8. The State Security Prosecution and the terrorism chambers must provide guarantees of fair and just trials for those who are before them and abide by the provisions of the law, which is the basis for their work.