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Protecting human rights in the fight against terrorism in Egypt
Agiza's trial as a model
In 2004 Ahmed Hussein Agiza was retried in the Supreme Military Court for his part in the "retournees from Albania" case. The retrial followed a request submitted on the 4th February 2004 by EOHR and Hafez Abu Seada, Agiza's lawyer. Agiza was sentenced to life imprisonment for the first charge and cleared of the second. In its request for a retrial EOHR relied on the fact that Agiza has been tried in absentia, had been unable to defend himself and that the evidence of one of the two defendants who testified in the same case was unreliable as a result of personal disagreements between him and Agiza.
In 1999 the Military Prosecution charged 107 defendants - including Ahmed Agiza - with belonging to an illegally founded organisation whose leadership intended to use terrorist acts in order to overthrow the Constitution and prevent public authorities from functioning. They were charged under Articles 86 and 86(a) of the Penal Code. They were also accused of colluding in a criminal pact whose aims involved murder, possession of weapons and ammunition and forgery of official documents in contravention of Article 48 of the Penal Code. On the 18th April 1998 the Court sentenced 9 of the defendants to death, gave 78 prison sentences and found 20 innocent. Agiza was sentenced to life imprisonment with hard labour in absentia. He was arrested on the 8th December 2001 in Sweden and deported to Egypt on the 22nd March 2004. His request for a retrial was accepted and he was tried by the Supreme Third District Military Court.
A number of violations occurred before the trial:
1. Unjustified delay in starting trial procedures, in contravention of Article 14 of the ICCPR.
2. Agiza was tortured during his detention in state security investigations headquarters and Tora Prison and kept blindfolded for a month.
3. He was kept in solitary detention for 46 days in punishment for complaining about being having been tortured.
The trial itself lacked the basic guarantees of a just trial:
1. Violation of the right to stand before a neutral and independent judge.
When choosing which court in which to try Agiza there was a choice between a military court, an emergency state security criminal court or an ordinary criminal court. The decision to send Agiza for a retrial before a military court violated the principles of the natural judge and equality before the law.
The African Commission considers a court composed of one judge and four members of the armed forces with the jurisdiction to judge and issue verdicts against defendants accused of inciting civil unrest a violation of Article 7(1) of the African Charter.
Composition of military courts
Article 55 of Military Law [1966] as amended Law 1 [1983] restricts the composition of military courts to members of the armed forces. A law qualification is not mandatory except for the manager of the general administration of the military judiciary.
Military judges form part of the general administration of the military judiciary which the law considers a division of the armed forces supreme command. Military judges are appointed by a decree issued by the Defence Minister (Article 54) and are therefore not independent. They are in addition subject to the regulations laid down in the military service laws (Article 57) which demand obedience and submission, two qualities at odds with the exigencies of the law profession.
Military judges are appointed for renewable two year terms (Article 59) which conflicts with the principle of security of tenure.
In the light of the above it is possible to conclude that Agiza's trial in a military court was a flagrant violation of the ICCPR because of these courts lack of neutrality and independence.
2. Violation of the right to a public trial
The Swedish Consulate was prevented from attending the first two hearings of Agiza's trial held on the 15th and 13th April 2004. The Swedish Secondary Secretary at the Swedish Consulate Asa Pousard was unexpectedly allowed to attend the third hearing without being informed why she was banned from attending the previous hearings.
3. Violation of the right to adequate time and facilities for the preparation of a defence
In the first hearing held on the 10th April 2004 Agiza's defence requested that prosecution witnesses be summoned and sufficient time be given in order to study the case files. However the court did not make the files available until the 13th April and then only granted the defence two days to study them.
In the hearing held on the 13th April the defence heard the testimony of a prosecution witness. The defence team again asked for more time to study the case file which was more than 200 pages long and requested that they be able to take a copy of the file. The Court refused this request and also denied them permission to make copies of the first instance verdict or the decision to accept the request (for a retrial.) After the defence made repeated requests the Court finally consented to the defence's copying prosecution witness statements. The Government prevented the defence from obtaining the document pertaining to the Swedish Government's agreeing to Agiza's deportation from Sweden to Egypt. The Court finally decided to postpone the following hearing to the 20th April in order to allow time for the preparation of defence pleadings.
4. Violation of the right to summon witnesses
On the 20th April the defence requested that three witnesses be admitted (Mohamed Salah, (A journalist with al-Hayat) Rifaat al-Sayed Ahmed and Diaa Rashwan.) All three had prepared studies and files on the Gihad movement and its leadership. The defence intended to question them in order to discover whether Agiza was one of Gihad's leaders or not, whether he participated in Gihad's terrorist activities and to what extent his principles mirrored those of the Gihad movement. The defence explained to the court the importance of the contribution of these witnesses but the Court did not respond to the request and ordered that pleadings start on the 27th April.
5. Violation of the right to appeal verdicts to a higher court
Military courts forbid appeals to a higher court. Those found guilty have only one option, that of lodging a petition for a retrial with the office of military appeals. Agiza's appeal was the first such civilian appeal accepted by the military appeals office.
Challenges to a fair trial
1. The continuing state of emergency
Emergency Law no. 162 [1958] issued by Gamal Abdel Nasser was applied for the first time on the 5th June 1967 at the outbreak of the Six Day War. The state of emergency continued until the decision to end it thirteen years later at midnight on the 15th May 1980. This was the longest period Egypt had lived under emergency rule and its continuous application provoked opposition from numerous groups, in particularly lawyers and the judiciary. It continued in force despite the Camp David agreement signed on the 17th September 1978 and the peace accord signed between Egypt and Israel in 1979 until eventually there was no reason for its continuing in force.
The then President Anwar Sadat was forced to address this discontent despite his previous statements that the state of emergency would continue in force until Israel troops pulled out of from the Sinai Peninsula (which they did in 1982.) The state of emergency has been renewed twice since Sadat's assassination.
On the 26th February 2000, 95 days before the state of emergency was due to end the Government unexpectedly presented a Presidential decree to the Peoples' Assembly extending the state of emergency from the 31st May 2000 until the 30th May 2003. A working majority of the Peoples' Assembly assented to the decree for the same reasons which had been put forward to justify its extension in previous years. It was clear however, that there was an ulterior motive for its extension, the Peoples' Assembly elections which took place in 2000.
The Government resorted to the state or emergency in order to allow it to falsify the election results, prevent public meetings and marches, arrest election candidates and their supporters and prevent voters from going to the ballot boxes in constituencies where it had been decided that opposition candidates would be crushed.
On the 23rd February 2003 the scene was repeated. The President of the Peoples' Assembly surprised its members with an announcement that the President had received a Republican decree for the extension of the state of emergency for a further three years until the 31st May 2006, justifying this as an anti-terrorism and anti-drug dealing measure. Later the same evening the majority of National Party deputies assented to the decree.
It was opposed by 30 Tagamua and Wafd deputies, a number of independents and the bulk of Islamic Brotherhood deputies.
In dragging out the state of emergency for 25 years - the longest period in Egypt's history - the authorities' objective was clear. It is used as a means of circumventing the law. The Emergency Law allows the authorities to keep some 16,000 detainees in custody under a system of repeated detention whereby detainees are kept in custody despite having received judicial release verdicts. The Emergency Law grants the authorities wide powers to restrict fundamental freedoms. Suspects are arrested when, and by whatever means the authorities wish and then detained for long periods without trial. Civilians are transferred to military courts or exceptional state security courts, strikes and public meetings banned and censorship placed on journalism in the name of national security.
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