Egyptian State Practices Violate Constitutional and Legal Guarantees for the Right to a Fair Trial; Military Courts Not Independent

The Cairo Institute for Human Rights Studies, in conjunction with the Egyptian Commission for Rights and Freedoms and the No Military Trials for Civilians campaign, have prepared a report on the right to a fair trial in Egypt over the last four years. The report is part of a series of reports submitted by independent rights groups to the UN Human Rights Council in the context of Egypt’s second Universal Periodic Review of its rights record, scheduled for November 5.

The report notes that since Egypt’s first UPR in 2010 until March 2014, the deadline for the submission of reports to the UN, all types of dissidents — anti-government demonstrators, activists, human rights defenders, and political opposition figures — have been subjected to unfair trials in both ordinary and military courts. They have been charged under laws that do not meet human rights standards, and they have not been granted their due process rights in trials, which have resulted in particularly harsh sentences. At the same time, no security personnel has been held accountable for grave abuses.

The report is divided into two parts. The first looks at pretrial violations, after first reviewing statutory and constitutional provisions that regulate pretrial procedure. For example, no person may be arrested, searched, imprisoned, or have his/her freedom restricted in any way except by judicial order. He/she must be immediately informed of the cause and is entitled to contact family and lawyers immediately. He/she must be brought before the investigating authority within 24 hours and cannot be questioned except in the presence of a lawyer. Every person whose freedom is restricted has the right to contest the order with the courts; the appeal must be adjudicated within one week, or the person must be released.

This section of the report also examines the terms, duration, and causes of pretrial detention, as well as cases in which the state is obliged to pay compensation for pretrial detention. Every person arrested must be treated in a manner that preserves his/her dignity and may not be subjected to torture, intimidation, coercion, or physical or psychological harm. Detained persons may only be held in dedicated facilities with adequate humanitarian and health conditions; a violation of these provisions is a crime subject to criminal penalties.

In this regard, the report documents how the authorities consistently refuse to immediately inform suspects of the cause of their arrest. Some are denied an attorney or prevented from speaking privately with their attorney prior to questioning. Citizens are also denied their right to a timely trial or release from pretrial detention, which, according to the report, has become a tool to impose prison sentences without trial instead of a legitimate means to promote public security.

The second part of the report focuses on violations during trial, citing the numerous cases documented over the last three years, which give observers and the public the impression that the judiciary is not independent and indicate that the Egyptian state, even under the new constitution, routinely violates constitutional and statutory guarantees for the right to a fair trial.

The report illustrates these flawed practices by citing a number of cases. For example, 529 people were convicted in connection with violence in the Minya governorate in August 2013 and their case files were referred to the chief mufti for consideration of the death penalty. This sentence was handed down after only two trial sessions, one of which lasted only 30 minutes, in the absence of both defendants and their lawyers. In addition, no defense witnesses were called, and the defendants were not permitted to testify in their own defense. In another case, 21 demonstrators, among them seven children, were sentenced to 11 years in prison for organizing a demonstration in support of deposed President Mohamed Morsi. In keeping with human rights principles, peaceful demonstrators should not be subject to any penalty, especially criminal penalties.

The report declares that these mass trials constitute a flagrant violation of the right to a fair trial as well as other legal precepts enshrined in the Egyptian constitution, such as the precept of personal punishment.

In December 2012, a new constitution was approved in a public referendum, and an amended constitution was again approved in January 2014. Although both constitutions guarantee respect for human rights during pretrial detention and trial, both documents also permit civilians to be tried in military courts. This is a human rights violation in and of itself, but is even graver considering that military tribunals lack full due process guarantees.

The report looks at how many civilians referred to military trials are denied their rights before and during trial, noting that the law prescribes no guarantees to protect the rights of civilians appearing before the military prosecutor, including the right to know the charges against them and guaranteed access to an attorney. Lawyers often face difficulties obtaining the case files for military courts and thus are unable to prepare an adequate defense. Moreover, motions to call defense witnesses are denied, and pretrial detention orders cannot be appealed in the military justice system. In addition, the military prosecutor and judges in tribunals are subject to the orders of their superior and are appointed by the minister of defense, based on recommendations from the head of the Military Judicial Authority. The military prosecutors and judges cannot oversee trials involving those of a higher rank than them, and their judgments can only be approved by a superior officer, who is not a member of court. As such, military judges cannot be considered independent, while the military courts does not permit the public to follow proceedings.

In estimating how many civilians have been prosecuted in military trials, the report notes that according to an official source, from January to August 2011, 11,879 civilians appeared before these tribunals. Another 99 were tried in September in connection with a demonstration in front of the Israeli embassy and another in front of the Defense Ministry; 327 civilians were referred to military courts in 2012.

On October 27, 2014, just days before Egypt’s UPR, the president passed Law 136/2014, which expands the jurisdiction of military courts to include crimes of trespass against public facilities and property. In a statement, 15 rights groups objected to this new circumvention of a constitutional provision limiting the scope of military trials. This will necessarily increase the number of civilians prosecuted in military tribunals. Thousands could be referred to these courts, which lack fair due process guarantees, thus entrenching a parallel system of justice.

View the full report here

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