Together against the referral of civilians to military courts

EOHR report on case no. 29/2001

The sixth military trial of the Muslim Brotherhood.

September 15, 2002

         On September 15, 2002 EOHR issued its report, on the military trials, entitled” the Muslim Brotherhood Sixth Trial”. The report, which dealt with the field works done in case no. 29/2001 known as the Professors’ Organization. The case in which 22 are accused of affiliating with the banned Muslim Brotherhood. Some of the defendants were professors at the Egyptian universities. On its session held on June 30, 2002 the military court issued its verdicts in the case, the sentences were:

-                      five defendants received 5 years’ imprisonment

-                      11 defendants received 3 years’ imprisonment

-                      6 defendants were acquitted

           Worth mentioning is that the 22 defendants were arrested during August and September 2001 as the supreme state security prosecution began its investigations shortly after that. On November 26, 2001 they were referred to military court and the military prosecution ensued them. They were charged with:

      -Affiliation with the banned Muslim Brotherhood, the group which calls for suspending the rules, laws and constitution as well as preventing state institutions from performing their duties.

-                                         Promotions of activities which are consistent with the group’s fundamental philosophy by holding secret meetings to discuss future plans. Such meetings were also used to provide an environment in which the 22 defendants could persuade others of the merits of belonging to such an organization.

-                                         Establishment of a computer company of which portions of income received as a result of its inception were then used to finance the organization expenditures. Members also used computer as a means of contacting one another. Also contacts were various charities and students to illicit support in shaping public opinion such that if and when they attempted an eventual coup over the state and political authorities, such a change would be tolerated, if not welcomed.

-                                         Production of pamphlets and other publication as a means of propaganda, all of which were dispersed as a means of gaining for the group credibility within the community.

The first military court session began on December 27, 2001 at Alhaiketsib, Cairo. The trial was performed in 18 sessions. The division of the session happened as follows:

-                                         2 sessions were for procedural matters.

-                                         3 were to receive testimony from opposing witnesses

-                                         10 were for defense and prosecution attorneys to make their cases

-                                         3 were for issuing each defendant his respective verdict

Issuance of verdicts took place on June 30, 2002.

Noteworthy is that the referral of civilians to military courts began in 1992 as the blood violence events perpetrated by the political Islamic groups escalated. 1995 witnessed the referral of those affiliated with the Muslim Brotherhood to military court. Since then number of the members referred to military court has totaled 140, precipitating a total of 6 trials, more details of which are shown in the tables below.

Table 1: the total of the Muslim Brotherhood cases heard before military court and the verdicts issued in it.

 Table no. 2: the military trials of the Muslim Brotherhood

Due to its field work, EOHR documented in this report the details of case no. 29/‏2002

The report is divided into the following parts:

A-legal introduction:

1-                                      This section includes general notes about the military trials in light of national parliamentary legislation and international instruments pertaining to human rights.

B- the case of the professors organization:

-                                         This section includes the result of the fieldwork done by EOHR representatives who followed up most of the military sessions of case no. 29/2001. Of concern to the field representatives were the defendants’ sentences along with the process by which guarantees of pre trial detention were breached.

C- recommendations:

-                                         this section includes  recommendations pertaining to the implementation of the right to fair

and impartial trials.

D- enclosures:

1-                                      The sentences issued by the military court in case no. 29/2001 known as “tanzim Al Asatza”;

2-                                       Doctors’ organization.

3-                                      Cases summaries for the Muslim Brotherhood.

By issuing this report in conjunction with others regarding the referral of civilians to military trials, EOHR hopes to promote the cessation of the practice altogether. EOHR insists that such military trials breach the independence of the judicial system and violate the right of the defendant to be tried before a civilian judicial system.

 First section

A-       legal introduction

1-                   Military courts in the Egyptian legislation and international instruments concerned with human rights.

Law no. 25 of 1966 amended by law no. 1 of 1983 is concerned with military courts. Such law is in non conformity with the unity and harmony of the judiciary system as it usurp the powers of the normal judiciary system and it usurp the guarantees of the individual to be tried before competent judge. This law states that:

-                                         Military courts shall be concerned with civilians working in the armed forces and is concerned with the state security crimes stipulated in section 1& 2 of the penal code.

-                                         Article 6 of the law gives the president of the republic the right to refer any crime, stipulated in the penal code or not, to military trials. Civilians are deprived from their right to be tried before competent court. Such civilians are referred to military courts for crimes that have nothing to do with the military system either in ordinary or exceptional cases.

-                                         Military trials lack all guarantees of independence and impartiality granted by article 14 of the International Covenant on Political and Civil Rights. It is not conditioned in such trials that the officers of the armed forces who perform it should have a legal education.

-                                         The military court couldn’t be called independent, as it is part of the public administration of the military judiciary system; one of the administrations of the supreme leadership of the armed forces. Also the judges in these trials are appointed for two years at-will employment.

-                                         There is no article,  in this law , stipulates the supervision of a Supreme Court to monitor the implementation of law rulings. The president, as the leader of the armed group, or his deputy only approves the rules of such courts.

-                                          The law of military trials breaches the general standards stipulated in criminal procedure law, as it has unlimited duration for the pre trial detention.

-                                         The law of criminal procedures concerned with the trials in absentia, is not implemented. As this law is supposed to abolish any verdicts issued against individual in the case he gave up himself or was arrested before the procedures of the trials were over.

Due to the aforementioned,  the provisions  of this law don’t conform to article 14 of the International Covenant on Political and Civil Rights. First paragraph of it stipulates that” people are equal before the law. Every one has the right to be tried before fair, impartial and independent courts.” Fifth paragraph of the article stipulates that “ any one who is convicted in a crime, shall have the right to appeal to a higher court.

For the same reasons, this law don’t conform to the “principals of the independence of the judiciary system”, which stipulate in its fifth article that every one has the right to be tried before competent court. No judicial body, which does not abide by law, shall be established.

Noteworthy is that the committee on human rights,  along with the American committee,  called for the prohibition of trying civilians before military courts, this was stated in articles:

-Article 16 of the declaration on disappearance.

-Article 11 of the American convention on disappearance.

The committee on human rights indicated that such courts, in some countries, lack the guarantees of fair trials in conformity with the fundamental rules in article 14 of the International Covenant On Civil and Political Rights which is necessary for efficiently protecting human rights. The American committee decided that referring civilians to military courts is in conflict with the law. It also declared that military courts are exceptional ones with limited jobs planned for keeping order in the armed forces and police departments only.

2-                                      The military courts and the absence of the guarantees of fair trials.

Trying civilians before military courts raises many doubts about how the governing system is fair. Though trying civilians before military courts is not prohibited neither in Egyptian legislation nor international instruments, presenting civilians before military courts breaches the independence of the judiciary system and usurps the citizens’ rights to be tried before competent courts. Civilians should be tried before competent, independent, and impartial courts.

The series of referring civilians first took place in October 1992. Forty-eight (48) defendants in the cases of “ Afghanistan Returnee” and “ Al Gihad” were referred to the supreme state security court in Alexandria by a presidential decree. On December 3, 1992, Eight (8) of the defendants were sentenced to death, among which 7 were fugitives. However the administrative court at the state council issued a verdict on December 8,1992, which abolished the decree of referring defendants to military courts as article 6 of the military law does not entitle the president to refer persons or cases to such courts.

The representatives of EOHR who followed up these trials noticed that it was held in far distance military camps. A lot of theses trials took place in Al Haiketsib (about 30 kilos from Cairo )and Al Gabal Al Ahmar(about 10 kilos from Cairo). Many cases were heard in Alexandria though most of the defendants were Cairo residents. The lawyers and the families of the defendants had to bear much burden and suffering which was increased by the heavy security measures; the lawyers were self searched in a humiliating way.

It was hard to follow up all the sessions as the attorneys were prevented from taking their own cars and had to take buses, especially prepared for this purpose, to the premises where the trial was held. Anis Kassim the representative lawyer of the international attorneys association and Dr Abdel Halim Mandour the lawyer were prevented from accessing the hall where their cases were heard.

The summary trials violated the defendants’ rights to prepare their defense system. In the case of Afghanistan Returnees 8 defendants were sentenced to death at the time the trial took only 35 days. In the case of striking tourism, 7 defendants were sentenced to death in a trial took only 28 days. In case no. 19/1992 known by “Zeinhom Case” the trial took only 22 days to sentence 2 defendants to death. The case of” Tanzeem 19” took only 25 days to sentence 2 defendants to death. The case of “Al Shawkeion” took 59 days to sentence 4 defendants to death. The case of “Talaa’ Al Fateh” took only 67 days to sentence ? defendants to death. The most prominent of summary trials were;

-                                         The case of the attempting assassination of media minister, which took only 19 days to sentence 6 defendants to death.

-                                          The case of the assassination of the officer Ali Khater , which took only 10 days to sentence the seldom defendant in it to death.

During the hearing of these trials the defense recurently complained from the summary procedures of the trials and of the extreme fatigue they suffered as the trials lasted for more than 10 hours daily.

The representatives of EOHR noticed other features of the summary trial; in the case of “Afghanistan Returnee’ 16 attorneys made their case in a single day, in “Zeinhom Case” 25 witnesses were heard in a single day and the case itself took only 4 sessions.

In many cases the attorneys had no enough time to read the case papers in order to prepare their defense as they had only 7 days to read the papers, in other cases they had only 4 days. In “ Zenhom case” the court authority refused to deliver the defense system the papers of the case under the pretext that the claim papers included the names of some public figures and the defense should read it only in the court hall. In case no. 20 of 1993 ”Tanzeem 19” the attorneys were allowed to read the case papers only in the court hall where the lawyers were shocked to find out that the copies they had were incomplete and non- readable. Some of the lawyers complained to the court authority because their request , to extend the 5 days dedicated for reading the 4 thousand pages of the case,  was not answered. Some of the case papers were not complete or arranged as in the cases of Striking Tourism, Talaa Alfath and Tanzeem 19. Also the lawyers found it so hard to contact the defendants as sometimes the court refused to allow lawyers some privacy with defendants. The defense complained from the aforementioned in the case of “Striking Tourism”. The court comment was” you already have the case papers. There is no need to talk with the defendants”.

EOHR believes that such hasty breaches the required guarantees for preparing legal defense in a proper way. It does not conform with article 14 0f the International Covenant on Civil and Political Rights by which virtue the defendant has the right to have enough time to prepare his defense and to contact his attorney.

The most important of the proofs is the confession as it contradicts human instinct, which seeks to prove one’s innocence not to condemn it. That is why confession is always suspected by the criminal courts as it investigates it during the hearing of the case in order to be sure that the defendant was not subjected to physical nor psychological torture. The appealing court states that:

The confession should not be considered valid if it was subtracted by enforcement (appeal of October 25, 1965, appealing verdicts of the year 14 no. 736140)

Military courts do not implement these rules. On February 8, 1994 session, the defendant Sayed Salah, accused in case no. 1994 military crimes (Atef Sedkki) admitted that he was subjected to torture and that his confession was a result of this torture. He denied his confession before the court, his injuries were documented before the court which were; facial inflammation and paralysis in the right hand. The defendant stated that he was paralyzed because of torture.

On September 2, 1994 session the defendant Ahmed Gomaa, the case of “ Tanzeem Al Mahmodeya”, denied his confession and stated that he was forced to confess by being tortured. EOHR representative documented the injuries of the defendant Ahmed Mohammed Mahmoud , which were red spots spread from the shoulder down to the wrists and the hands. The defendant told EOHR representative that these spots resulted from being electrified.

On December 17, 1994 session, The attorneys of Hassan Ali Bakr, case no. 24/1994- criminal crimes (Naguib Mahfouz) stated the invalidity of the defendants’ confessions. The defense proved that the injuries of the defendants, which were documented, were results of the torture they were subjected to by the SSI in Lazoughli; they were beaten up and electrified in sensitive parts of their body.

The third defendant Mohammed Awad narrated how he was subjected to torture in the SSI premises. He stated that he was left in his underwear, blindfolded, from a while to while one of the soldiers poured frozen water upon his body, he was hanged from his legs, electrified while being wrapped in a wetted blanket.

The examination of the defendant proved the existence of injuries, as a result of ironing, and the existence of two spots on the abdomen where the iron was placed. The defendant referred to one of the police officers at the court and said that he was the one who tortured him.

The defendant Yasser Abou Al Foutooh stated that he was subjected to torture by the SSI ; he was injured in his nose,  which needed  surgery, his jaw was broken and he was electrified as well. He referred to an officer and stated that he was the one who electrified him (the case no. 23/1994” Hurgada case” criminal crimes). The defendants denied their confessions before the court and stated that they were tortured. During the time the prosecution investigated him, the defendant Mohammed Atta Allah mentioned that he was beaten up, blind folded, electrified in different parts of his body including the sensitive parts. The prints of injuries were clear on his face, nose, arms and legs.

The defendants Mohammed Ahmed, Mokhtar Zekri, Abdel Latif Abdallah and Shaheen Shehata decided the same. They asked to be examined by forensic doctor , case no .10/1994 criminal crimes.

 On December 17, 1993, case no. 24/1994 criminal crimes, the defendants stated before the court that they were subjected to torture to confess.

The defendant Mohammed Nagi stated that he was tortured and blind folded to force him to sign some papers. Later he knew that these papers were detailed confessions, he swore that he was not investigated.

 In case no. 5/1995 known with “Talaa Al Fath”, the defendant Amr Mohammed Abdel Men’em decided before the court, during receiving of the testimony of an officer, that this officer tortured him. The defendant said that while he was laying on the ground, blind folded, he could glimpse this witness and that he was the one who whipped, beaten up and electrified him in different parts of his body. He added that he was left wearing nothing but shorts and he could recognize the voice well. The forensic doctor proved the injuries at the time the defense demanded that the statements of the defendant would be considered a complaint against the witness, the attorney asked the military prosecution to investigate the defendant as a victim of torture crime.

The defendant Said Abdallah Said, during receiving the testimony of an officer, that this officer tortured him in the SSI premises. The aforementioned left him before the window all the night, in December, wearing nothing but shorts, the victim was given a paper to sign and ordered him to repeat the same words of the paper less he would be subjected to extreme torture.

The defendant Mohammed Nabil Alserafi decided, during receiving the testimony of an officer, that this officer tortured him. He left him with no clothes, beaten him up and electrified him allover his body.

The court disregarded all the aforementioned facts as it issued verdicts against the defendants.