“The defendant is innocent until proven guilty” in a legal trial in which he/she is entitled to the right to defend him/herself.
This might be the case in countries that consolidate or seek rule of law and respecting the human dignity of the citizens.
Yet when justice discriminates between defendants according to how close or far away they are from power, or according to their social status or their political position or their wealth, then the rule becomes “the defendant is guilty until proven innocent”! This is closer to the Egyptian case.
As some of the Mubarak regime figures are being tried while they are at large an enjoying the luxury of their houses, despite being accused in corruption cases, some of which amount to “EGP 300 Million”, such as Safwat El-Sherif the Secretary General of the National Democratic Party, or Ahmed Nazif, Mubarak’s prime minister, who is accused of profiteering 64 million EGP, or Anas El-Feky, the former information minister, accused of profiteering about 33 million EGP, meanwhile some young people languish in prisons for more than a year, some of them for wearing a t-shirt with the phrase “A Nation Without Torture” written on it, like Mahmoud Mohammed who is 19 years old, or like photojournalist Shoukan who was only carrying a camera when he got arrested and now he has been in prison for more than 600 days.
Open-ended pre-trial detention, is worse than imprisonment
At the end of September 2013, Interim President Chancellor Adly Mansour approved the draft legislation prepared by the former Minister of Justice, “Adel Abdul-Hamid” to amend the text of the last paragraph of Article 143 of the Code of Criminal Procedure, which stated that “pre-trial detention should not exceed two years for defendants appealing a life sentence or execution” to become “criminal and cassation courts are allowed to order the detention of a defendant for 45 renewable days” without being restricted by the periods provided for in Article 143.
After this amendment pre-trial detention became open-ended and indefinite for crimes punishable by a life sentence or by the death penalty, yet it remained restricted by the condition that the court which makes the open-ended pre-trial detention decision should either be the criminal court or the court of cassation.
This is why we find that the huge number of defendants detained in an open-ended and prolonged pre-trial detention, can be explained by a certain pattern of accusations that gets repeated with those defendants, which brings them before the criminal courts in crimes punishable by the death penalty or by a life sentence, thus, the prolonged and open-ended pre-trial detention becomes “legal” under this amendment! Among these common and repetitive charges:
– Joining a group founded in violation of the law’s provisions with the purpose of hindering the work of state institutions.
– Compromising public freedoms, disturbing public security and destabilizing the country.
– Protesting and gathering with the purpose of disturbing public security and public order, and disrupting production, and influencing the course of justice.
-Incitement to resist public authorities and incitement to violence.
And this is how amending one single article in the Code of Criminal Procedure became a way around the Egyptian Constitution and around the International conventions and treaties on human rights, where the Egyptian Constitution in Article 54 under the section of Public Rights, Freedoms & Duties states that:
“Personal freedom is a natural right, shall be protected and may not be infringed upon. Except for the case of being caught in flagrante delicto, it is not permissible to arrest, search, detain, or restrict the freedom of anyone in any way except by virtue of a reasoned judicial order that was required in the context of an investigation.
Every person whose freedom is restricted shall be immediately notified of the reasons therefore; shall be informed of his/her rights in writing; shall be immediately enabled to contact his/her relatives and lawyer; and shall be brought before the investigation authority within twenty four (24) hours as of the time of restricting his/her freedom.
Investigation may not start with the person unless his/her lawyer is present. A lawyer shall be seconded for persons who do not have one. Necessary assistance shall be rendered to people with disability according to procedures prescribed by Law.
Every person whose freedom is restricted, as well as others, shall have the right to file grievance before the court against this action. A decision shall be made on such grievance within one (1) week as of the date of action; otherwise, the person must be immediately released.
The Law shall regulate the provisions, duration, and causes of pretrial detention, as well as the cases in which damages are due on the state to compensate a person for such pretrial detention or for serving punishment thereafter cancelled pursuant to a final judgment reversing the judgment by virtue of which such punishment was imposed.
In all events, it is not permissible to present an accused for trial in crimes that may be punishable by imprisonment unless a lawyer is present by virtue of a power of attorney from the accused or by secondment by the court.”
In addition to the International agreements on human rights which emphasize that “the defendant is innocent until proven guilty”.
As Article 9 (1) of The International Covenant on Civil and Political Rights (ICCPR), as well as Article 6 of The African Charter on Human and People’s Rights, and Article 7 (1) of the American Convention on Human Rights, and Article 5 (1) of the European Convention on Human Rights all guarantee the right of a person to liberty and security, and that depriving people unjustly of their freedom and imposing physical restrictions against them in difficult circumstances is in itself in contradiction with the principles of the Charter of the United Nations and with the fundamental principles enshrined in the Universal Declaration of Human Rights, which in article (3) guarantees the right to life, liberty and security of person, which means that countries that respect human beings are legally obliged to safeguard the person’s right to freedom and security.
Yet punishing thousands by open-ended detention becomes legalized, and no interference in the affairs of the judiciary as the President and the pillars of his regime emphasize.
And although the law gives the competent authority the right to issue one of the following measures instead of pre-trial detention:
1- Obligating the defendant to remain at his house or inside the country.
2- Obligating the defendant to appear before the police on certain dates.
3- Banning the defendant from going to certain areas.
Yet most of the time these measures are not used whether by the general prosecution or bye the judges.
Pre-trial detention and the state of emergency
Pre-trial detention is different from detention in that pre-trial detention is a preventive measure taken by the public prosecutor during the investigation of a case against the defendants, while detention is an administrative action taken by the President or his authorized representative, “such as the Minister of Interior,” according to the law to impose a state of emergency, as a preventive measure in exceptional circumstances under the emergency law under article 3, which allows the President or his authorized representative to issue decrees that puts restrictions on the freedom of individuals or their detention for a period of time without being bound by the provisions of the Criminal Procedure Code, and without the need for judicial decisions.
According to article 3 bis 1, the detainee is entitled to appeal his detention order if six months pass without being released, and in the case of a release decision by the Supreme State Security Court before which he/she appeals, the decision shall not be effective until it is ratified by the President.
Pre-trial Detention and the Double Standard policy
– Cases which require pre-trial detention in which it was not implemented
The Arabic Network for Human Rights Information (ANHRI) has documented several instances of double standard in dealing with pre-trial detention, after January 25 Revolution, especially when it comes to officers accused of killing the protesters, or Mubarak’s regime figures, despite being accused of committing serious crimes, most of the time they are neither remanded in custody in pre-trial detention, nor get dismissed from their public jobs, although the conditions for pre-trial detention are applicable on them for the following reasons:
– They assume public positions which enable them to abscond evidence and influence the course of investigations.
– They enjoy enough power to influence the witnesses or the victims.
– They enjoy enough power which enables them to escape out of the country.
Nothing shows this more than the case of the officers of Embaba Police Station who were accused of killing protesters in Case No. 3410 for the year 2011 Kerdasa Criminal, during which many of the families of the martyrs were pressured by some of the officers who are accused and are still at large which amounted to threatening them with imprisonment, which led one of the witnesses called Ahmed Ibrahim Ahmed, the prosecution witness, to change his testimony, he later filed a communiqué to the prosecutor which bears number 22 210 for the year 2011/Public Prosecutor Communiques. Also the father of martyr Mohamed Sayed Abdul Latif in the same case filed a complaint to Public Prosecutor of North Giza Prosecutions reporting threats and bargains to give up the case which carried No. 183 for the year 2011 / North Giza Public Prosecution.
After the ousting of former president Mohamed Morsi in July 3, 2013, and introducing the amendment to Article143 of the Code of Criminal Procedures in September of the same year, the double standards phenomenon began to appear clearly once more, where dozens of Mubarak’s regime figures who are accused of corruption and graft are being tried while they are free or after a brief pre-trial detention, as well as some of the officers accused in killings or torture, while on the other hand, thousands of Muslim Brotherhood members or their supporters, as well as some young supporters of democracy who languish in prisons for months or in some cases almost up to two years, because they are being accused of the previously mentioned common charges.
Examples of Corruption, Illicit Gain & Torture Cases Ruled out of Open Pre-trial Detention:
1- The defendant: Ismail Serag Al-Din
He faced a squandering public money charge estimated about EGP 20 million, under his position as a director of Bibliotheca Alexandrina, over the case no. 8411 of 2012 (Bab Sharq Misdemeanors). The facts of this case dates back to the 26th of March 2012, but it has not received a verdict yet. Additionally, the defendant has not been held on remand pending the case even for one day! On the contrary, his name was removed from the travel ban lists upon a judgment by Bab Sharq Misdemeanors Court on June 11, 2012. Strangely, Premier Ibrahim Mehleb has installed “Ismail Serag Al-Din” as his cultural advisor.
2- The defendant: Zakaria Azmi
Following his release from North Cairo Court on the 13th of February 2013, whereas the Cassation Court accepted the challenge submitted by Azmi on the 7-year in jail sentence that he carried in the “Illicit Gains” case in which he received gifts estimated about millions of Egyptian pounds from Al-Ahram Institution, a new investigation with the Chief of Presidntial Staff Zakaria Azmi had been conducted over the charges of embezzling, profiteering and deliberately harming public funds. The charges are due to receiving expensive gifts worth millions of Egyptian pounds from national press institutions and the Ministry of Information. However, Azmi was released in the case after ensuring his proof of residence.
3- Those who are Accused of Torturing a Lawyer to Death
Omar Hamad and Mohamed Al-Ahmadi are officers at the National Security sector. They are accused of torturing the lawyer Karim Hamdy to death inside Al-Matariya Police Station on the 24th of February 2015 over the case no. 1550/2015.
On 25 February 2015, both of them were arrested; however, they were released on bail on March 28.
Examples of Using Open-ended Pre-trial Detention as Punishment for Dissidents
1- Journalist Ahmed Gamal Zeyada
Ahmed Gamal Zeyada is a photojournalist, who was photographing the protests of Al-Azhar University in December 2013. He was arrested and faced the accusations of protesting without clearance, gathering, and torching Al-Azhar University’s Faculty of Commerce.
He spent 500 days on preventive detention until he was acquitted of the press charges on April 29, 2015.
2- Peter Greste
Peter Greste is an Australian correspondent and works for Al Jazeera English. On 29 December 2013, Greste was arrested from Marriott Hotel and faced the accusations of joining a terrorist group, spreading false news, promoting the group’s ideas and possessing cameras and means of communication illegally.
He was imprisoned pending the case that is known in media as “Marriott Cell” for more than one year until he was sentenced to 7 years rigorous imprisonment. Nonetheless, the Court of Cassation accepted the challenge and decided his retrial. Following his release, Greste was deported to his country.
3- Mahmoud Abdel Shakour Abu Zeid (Shoukan)
Shoukan is an independent photojournalist who has been held for more than one year and a half on remand without trial. The photojournalist was doing his work during the dispersal of Raba’a sit-in for the French agency Demotix. On 14 August 2013, the day of Raba’a sit-in dispersal, Shoukan was arrested, along with two other foreign journalists who were released on the same day for being French and American citizens. Accompanied in this case was Al Jazeera correspondent “Abdullah Al-Shami”.
The prosecution had accused Shoukan of joining a terrorist group, protesting, inciting violence, disturbing public peace and resisting authorities. He is still on remand since he has been arrested on 14 August 2013 without referring his case to the specialized court.
4- Ahmed Aymen
Ahmed Aymen is a student at Thebes Academy. He is 20 years old and at the first grade of Information System. On 30 June 2013, he was arrested.
Although he is injured in his leg, hand, neck and stomach by cartouche shots during the anti-MB Itihadia protests under the rule of deposed president Mohamed Morsi, he is accused of belonging to Muslim Brotherhood, possessing and manufacturing explosives. His case had been referred to the court since 23 months, but no session has been set yet, and he is still imprisoned pending it. Additionally, he has not received the treatment necessary to his condition.
5- Ibrahim Al-Yamani & Ahmed Bedewi
Ibrahim Al-Yamani was one of the field hospital’s doctors during the Jan 25 Revolution and Raba’a Al-Adawiya sit-in. Also, he was among those who were caught up in Al-Fatah Mosque in Ramsis, where he was helping the injured.
As for Ahmed Badawi, he is a member of the Students’ Union at Al-Azhar University’s Engineering Collage, where he was studying prior to arresting him.
Both of them along with 492 others were arrested on the 16th of August 2013 over the case known in media “Al-Fath Mosque Incidents: or “2nd Ramsis Incidents”.
They were accused of desecrating Al-Fath Mosque, sabotaging and disrupting the prayers there, and deliberate killing in implementation of terrorist purposes.
Al-Yamani has staged a hunger strike twice. The first was on the 25th of December 2013, and lasted for 89 days. However, he had to stop the hunger strike due to sustaining torture, according to him.
His second hunger strike was started on the 17th of April 2014, and he is still on his hunger strike, which reached more than one year. However, the prison administration gives no attention to his health condition.
On February 24, 2014, both of them and 503 others were referred to the court and still imprisoned on remand so far.
6- Mahmoud Mohamed Ahmed Hussein
He, 19 years old, is a student at the secondary school. He was arrested from Al-Merg checkpoint during the third anniversary of Jan25 Revolution (25 January 2014) for wearing a T-shirt with “Nation without Torture” slogan printed on it and also a scarf with “Jan25 Revolution” slogan. He has been held on remand since a year and four months pending the case no. 715/2014 (Al-Merg Administration). The public prosecution has accused him of belonging to a terrorist group and possessing explosives. Thus, these accusations are the reason for putting him on preventive detention.
Additionally, the report detected some reasons that hindered the case course and expended the pre-trial detention. For example, the defendant was transferred to the court on the day of the scheduled hearing, or even approving the appeal against the imprisonment renewal decision, which is his right that the law guarantees. Such a procedure that the police used is under the name “impossibility to transfer the defendant due to security reasons”. Hence, the police have become one of the bodies that order the pre-trial detention.
7- Mohamed Al-Imam
Mohamed Al-Imam, 20, is a student at Alexandria University’s Faculty of Arts, secretary of the Media Committee of the Club of Creativity, and a member of April 6 Youth Movement. On April 28, 2014, he was arbitrarily arrested while he was getting out the theoretical complex after he had finished his exam, coincidently with clashes between the security forces and protesting students. Since that day, he is held on remand pending the case no. 11159/2014 (Bab Sharq Administrative).
Protesting against the lengthy of his pre-trial detention, Al-Imam staged a completely hunger strike for 40 days. Then, he was referred to the court on the 4th of May, 2015, for considering his first hearing. However, he is still held on remand pending the case so far.
8- Mohamed Ali Hassan
Mohamed Ali Hassan is a journalist at “Misr Alaan” website and member of the Egyptian Journalists’ Syndicate. On December 11, 2014, he was arrested from his house and accused of deliberately spreading false news and rumors that could disturb public security, misusing one of the international communications means, receiving funds from foreign bodies to achieve crimes of inciting to resist the public authorities as well as the hatred of police and army men. Since he had been arrested, he is still held on remand without being referred to the competent court.
9- Mohamed Abdel Wahed
Mohamed Abdel Wahed along with 19 others were arrested on the 12th of January 2014 during a protest in front of Cairo University, as he was shooting what was transpiring by his own camera. Nevertheless, he faced the charges of joining a restricted group, possessing weapons, blocking roads, torching a tank and checkpoint, and terrorizing citizens. He was held on remand until 16 February 2015 pending the case no. 195/2014 (Giza Misdemeanors). Following 400 days in jail, he was released without referring his case to the court.
10- Beni Suef University’s Female Students
Israa Khaled Saeed, Maha Ahmed Fahmy and Shaimaa Shawky are female students at Beni Suef University. They were arrested at the beginning of January 2015 and accused of protesting without clearance, belonging to a restricted group and torching an electrical transformer. They are jailed in Al-Meniya prison and their imprisonment has been renewed for more than 9 times, and the last was on the 26th of May 2015. Their imprisonment was renewed for 15 days pending the investigations.
First: Recommendations to President Abdel Fattah Al-Sisi who serves as the Legislative Authority during the Parliament’s Absence:
1- A legislative amendment that makes the pre-trial detention is based on reasons, in addition to determining its period and allowing its challenge.
2- Facilitating the procedures by which the defendant who was acquitted could receive an appropriate compensation for the period of his pre-trial detention.
3- Making use of the freedoms judge applicable in the French legal system, to consider the remand decisions or their challenge.
Second: Recommendations to the Judicial Authority:
1- Narrowing the use of the pre-trial detention and not expanding it, and substituting it with the precautionary measures stipulated in Article 201 of Criminal Procedure Code.
2- Enforcing the legal principle “the accused is innocent until proven guilty”, as the pre-trial detention is repugnant that could be used in the cases of necessity, considering the evidence presented against the defendant, and not depending on the investigations provided by the security bodies as solely evidence.
3- Enforcing the articles of Criminal Procedure Code in connection with hearing the public prosecution’s statement and the reasons for demanding the pre-trial detention, as well as the grounds on which the pre-trial detention or the imprisonment renewal is based.