The road to prison is paved with flawed investigations

Introduction

The legal rule is that doubt is always interpreted in favor of the defendant has been laid down, and it is better for justice that 1000 guilty men go free than one innocent man gets wrongly convicted.

However, in the recent period this universal legal rule, which is established by the Court of Cassation, has been standing idle and isn’t being implemented. Corridors of prosecutions and courts have become rife with manifold cases of a political nature which rely only on the investigations attached with the papers of these cases. These investigations have become the sole reason behind the imprisonment of people involved in such cases for periods that could last for months and years; because they press against defendants flimsy and unsubstantiated charges that are based on almost non-existent evidence. Many of court orders and prison sentences have also being issued without scrutinizing or inspecting the veracity and seriousness of those inquiries and investigations.

The restriction to investigations in such cases violates the key guarantees of due process stipulated in the international charters and covenants; which is the presumption of innocence in the first place and that doubt should always be interpreted in favor of the accused, in accordance with Article 11 of the Universal Declaration of Human Rights that provides: “Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.”

The presumption of innocence was also stated in the commentary of the UN Human Rights Committee (HRC) as follows: “The presumption of innocence imposes on the prosecution the burden of proving the charge, ensures that the accused has the benefit of doubt, and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.”

In many cases, the Public Prosecution refers cases to courts and trial chambers without validation of the evidence or continuing to investigate and search for further evidence or proof to reinforce it. Additionally, a lot of conviction rulings have been handed down against defendants sending them to prison based on those investigations and inquiries, which tend to be nothing but a mere opinion of a person that may be valid or invalid, true or false, until the source of those investigations is found out and verified by the judge himself, who in turn can impose his inspection over the source or evidence and estimate its legal value in accordance with the provisions of the Court of Cassation.

In the following lines, we are going to define what “investigations” are, who conduct them, and the drawbacks of the mechanism through which investigations and inquiries are carried out, in addition to documenting a sample of such investigations into one of the ongoing cases in the Legal Unit.

First: Definition of investigation:

It reinforces a certain proof or evidence that is generated before conducting an inquiry or investigation. So it is considered a presumption that cannot stand alone as independent evidence to prove the accusation. It merely expresses the opinion of the one who conducts it which can be true or false and that it is also open for interpretation.

In this regard, the Court of Cassation ruled that (Police investigation, as a presumption, cannot be used as sufficient or independent evidence to prove the accusation. it is nothing more than a mere opinion of the one who carries out it, which can be valid or invalid, true or false until its source is determined and verified by the judge himself who can impose his inspection and supervision over the source and estimate its legal value in proving the charge).

(Appeal No.24530 of the judicial year 59, at the hearing of 22 March 1990).

Second: Who conduct this investigation?

As for criminal cases, investigation officers and detectives are the ones who are responsible for collecting such inquiries and investigations. But in most cases of a political nature, the National Security sector is responsible for conducting such investigations. Also, the investigating officers of the police department- where the incident took place and the National Security can both share the responsibility of undertaking the inquires.

Drawbacks of investigation mechanism:

First: The source of investigation:-

In most cases, officers who are concerned with compiling these investigations rely on “notorious criminals and thugs” who are who are forced to deal with detective officers.

Second: Investigation is conducted within 24 hours upon Public Prosecution’s request:-

Inquires and investigations are, in most cases, carried out during the 24 hours of the Public Prosecution’s request, a matter which affects their credibility; as the results appear inconsistent with the rest of the evidence including the witnesses’ accounts, defendants’ confessions, technical reports, and other evidence that can be provided in a certain case, not to mention how unreasonable such investigation may be. Therefore, sufficient time should be provided while undertaking inquiries and investigations so that it can be harmonious with other evidence.

Third: The non-disclosure of the secret source:-

Most investigators don’t disclose the source of their investigations arguing that they should “maintain the secrecy of the source and not place it at risk”.

However, out of the validity of such investigations, the investigator has to disclose his secret source on which he depends while carrying out his investigations so that the Public Prosecution can question them regarding the information they provided as prescribed by law.

In this regard, the Court of Cassation ruled that (Police investigation, as a presumption, cannot be used as sufficient or independent evidence to prove the accusation. it is nothing more than a mere opinion of the one who carries out it, which can be valid or invalid, true or false until its source is determined and verified by the judge himself who can impose his inspection and supervision over the source and estimate its legal value in proving the charge.)

(Appeal No.24530 of the judicial year 59, at the hearing of 22 March 1990).

Examples of these office investigations: –

First: Case No. 34760 of 2018 Nasr City I Misdemeanor;

In which Izz al-Din Saad Abdel-Hamid, head of Ghad El-Thawra Party, is involved. It is a flagrant example of such kind of invalid investigations that are usually conducted at the office. This case entails inquiries from Nasr City I police department along with the National Security’s investigations, but there is a glaring contradiction between both of them as follows:

The proceedings of this case began when an arrest warrant was issued against the aforementioned based on investigations carried out on 26 June 2018 by an officer at Nasr City I police station, which reads:” We have received some information from one of our secret sources that a person named Izz al-Din Saad Abdel-Hamid belongs to the Muslim Brotherhood (MB) group and is inciting acts of violence against state institutions”. Accordingly, a warrant was issued by Nasr City Prosecution to arrest Izz al-Din and search his house based on such investigations.

And in the same case, further inquiries were received on 28 June 2018 from the National Security Sector that is contrary to the inquiries made by Nasr City I police department; as the later inquiry says: “Our investigations has proved the validity of the incident that the so-called Izz al-Din Saad used his personal account on the social networking site “Facebook” to promote allegations of poor economic conditions in addition to having links to a number of stirring parties and movements (Kifaya Movement, April 6, and Ghad El-Thawra Party) that aim at promoting rumors and false news. ”

On 27 June 2018, Izz al-Din appeared before the Public Prosecution which pressed against him the following charges:

1-      Membership of a terrorist group that aims at disrupting the provisions of the Constitution and the law, preventing state institutions from carrying out their work, and attacking the citizens’ personal and public freedoms guaranteed by the Constitution.

2-      Possession of publications containing news and false rumors that would disturb public security and harm the public interest.

Then he was referred to Nasr City I Misdemeanor Court regarding the incident of publications possession at the 2 July 2018 hearing, in which the court adjourned the case for the 30 July 2018 hearing for review.

The same case was copied as for the other incident (joining a terrorist group intended to disrupt the provisions of the Constitution and the law, prevent state institutions from carrying out their work, and attack the citizens’ personal and public freedoms guaranteed by the Constitution)

** First we would like to point out that Izz al-Najjar was the deputy of Ghad El-Thawra Party’s founders before he was elected as the head of the party which he belongs to since 10 October 2011. So is it reasonable that the investigator is well aware that Izz, who is the head of Ghad El-Thawra Party that is known for having no links to any of the Islamic factions, and that the party’s stances alongside Izz’s remarks and statements are against the policies of the Muslim Brotherhood? Such a matter confirms that those investigations are totally a mere office investigation that is full of lies, far away from telling the truth and doesn’t have any connection whatsoever to validity or integrity- based inquiries.

Izz al-Najjar was brought to trial by the Public Prosecution before Nasr City I Misdemeanor Court based on the aforementioned investigations into case No. 34760 of 2018 Nasr City I Misdemeanor on a charge of “Possession of publications containing news and false rumors that would disturb public security and harm the public interest”. And during the hearing of 15 October, the court sentenced him, in presence, to two years in prison with forced labor in addition to a fine of 200EGP.

Second: The verdict handed down in the case known as “Tiran and Sanafir” Dokki;

Carries No. 6768 of 2016 Dokki Misdemeanor & No. 10901 of 2016 Dokki Appellant Misdemeanor

The two verdicts issued by both the court of first instance and the court of second instance (in the verdicts’ merits) were based on the investigations attached to the case’s papers which lack evidence that could support those investigations, as shown in the following lines:

The case dates back to 25 April 2016 when a total of 79 people were arrested from the vicinity of Dokki Police Station. The next day, on 26 April 2016, they appeared before Dokki Prosecution after they were interrogated at Dokki police department. The Prosecution then issued a decision requesting an inquiry into the incident. And in less than 24 hours, investigations from the National Security sector regarding the 79 persons had been received, reporting the following: (After investigation it has revealed that leaders of the terrorist group Muslim Brotherhood, members of what they call the Supreme Administrative Committee of the organization, are implicated- along with other leaders of some of the other pro-political forces that support the MB political beliefs- in the exploitation of the recent maritime border agreement with Saudi Arabia. This is in addition to stirring the public opinion against state institutions towards the established order and the measures taken to conclude that Convention in order to discredit it, in continuation of their riotous activity and criminalization. They incited to protest and gather to denounce the maritime agreement as of Monday 25/4/2006 in a number of public squares in Giza and some other governorates in the Republic. They also spread malicious rumors against state institutions and incited the public to participate in those demonstrations and gatherings using the Internet … ….).

Nevertheless, this inquiry lacks evidence and deems irrational. How can the investigator make an inquiry about 79 persons in less than 24 hours? Also, the papers don’t include any evidence that can go in line with what they say, which affirms that such inquiry is nothing more than a desk investigation.

In its judgment, however, the court of first instance announced it is satisfied with such investigation and on 14 May 2015, it sentenced the defendants to five years in prison with labor and a fine of 100,000 EGP each obliging them to pay the expenses.

Also, the court of second instance ruled on July 24, 2016, to accept the appeal in form, and in substance, by fining each accused one hundred thousand pounds)

It is set in the provisions of the Court of Cassation that since verdicts must be based on evidence, of which the judge is convinced regarding whether the defendant is guilty or not, this persuasion is resulted from a belief obtained from the independent investigation into the case that cannot be shared by others.  But although the court shall rely on the formation of its belief regarding the investigation as a reinforcement of the evidence, it is not valid to consider it alone a particular presumption or evidence to prove the charge.  And as long as it was established that the investigating officer did not reveal to the court the source of his inquiries to find out if it would lead to the validity of what he ended with or not, his inquiry can be perceived as a mere opinion or point of view that can be true or false, valid or invalid, until the judge manages to identify the source of those investigations and verify it so that he can impose his inspection over the evidence and estimate its validity in the case. And in case the court has made the basis of its conviction based on the opinion of the investigating communiqué writer, its verdict is then based on a mere belief build through an investigation, not on a belief that the court acquires by itself. Such a matter discredits the ruling that it must be challenged, revoked and referred.

(Appeal 17 March 1983 – 34 – 79 – 392)

Third: The verdict issued in the case known as Marriott Cell”

The Court of Cassation has ruled to accept (the appeal in form and in substance, and ordered the reversal of the contested judgment).

(Criminal Court had ordered the punishment of 18 defendants with sentences ranging from 3 to 10 years imprisonment and two acquittals).

Among the reasons behind this ruling was “the invalidity of the arrest and search warrant issued by the Public Prosecution; as it was based on non-serious inquiries, pointing out that the search warrant is one of the investigation procedures that should only be issued in case of criminal offense or a felony that has already been committed and attributed to a particular accused, meaning that evidence shall be sufficiently adequate in order to invade and breach the sanctity of his residence or personal freedom. It also means that the aforementioned ruling only tackles the invalidity of the inspection warrant and did not express the court’s opinion regarding the previous investigations ordering the warrant or letting an investigating authority issue such order.”

*** In addition to the above, we will review Article 40 of Law No. 94 of 2015 regarding the Anti-Terrorism Law, which states: ” The judicial arrest official, in case of any danger due to a terrorist crime and out of necessity to stand up to this danger, has the right to collect all evidence about this crime and search for its perpetrators and hold them, without obtaining a judicial order from the competent authority”, granting the judicial arrest official such authority.

Considering the above-mentioned article, we can find that it gives the judicial arrest official the authority to collect evidence and investigations and arrest the suspected persons under no arrest warrant from the competent authority, a matter which clearly contravenes the Constitution, first paragraph of Article (54) thereof states that “Personal freedom is a natural right which is safeguarded and cannot be infringed upon. Except in cases of in flagrante delicto, citizens may only be apprehended, searched, arrested, or have their freedoms restricted by a causal judicial warrant necessitated by an investigation.”

This is in addition to Article (92) of the Constitution which stipulates that “Rights and freedoms of individual citizens, topped with personal freedom, may not be suspended or reduced. Also, no law that regulates the exercise of rights and freedoms may restrict them in such a way as infringes upon their essence and foundation.”

As evidenced by the above, and according to the Court of Cassation’s judgments, investigations and inquiries don’t express except the views of those who conduct them, which can be proved right or wrong. So is it reasonable or logical that the judicial arrest official apprehends people and restricts their freedom based on such investigations without having any judicial warrant?

Conclusion

Given the seriousness of relying on inquiries made by some investigators and detectives into cases of a political nature that may be undermined by their political whims and affiliations, leading many defendants to be languished in jail based on what they wrote down in their offices after drawing up the validity of the official arrest report, without incurring worry at the validity of the accusations mentioned in their reports, the Public Prosecution, hence, shouldn’t solely rely on inquiries before bringing citizens to trial. The judicial system, as well, shouldn’t only depend on the communiqué of investigations before sentencing defendants to prison.

Nevertheless, contrary to abovementioned, in some cases, investigations of detectives can be the reason behind the impunity enjoyed by some defendants; as the Public Prosecution bases its decisions on such investigations as a proof of the invalidity of the charges pressed against some defendants.

Recommendations:-

1- Working on training cadres of the Ministry of Interior to carry out their investigations and inquiries in accordance with the societal development, such as social networking means, hearing the witnesses of the incident, not relying on the secret source, and checking the reports attached to the case’s papers.

2- Allowing sufficient time to carry out investigations.

3- Seeking adequate compensation for damage

4- The Public Prosecution and the judiciary have to thoroughly check and examine the investigations that are attached to the case’s papers, and not rely on the inquiries as the sole evidence of the validity of the indictment or to use them in handing down rulings of conviction, this is in addition to verifying the source of such investigations.