Egypt adopts a balanced approach in dealing with human rights issues
Judges’ Club Board of Directors: The allegations are incorrect and jeopardize guarantees of the independence of the judiciary
The Club calls on the signatory countries and all organizations to conduct a thorough review of the information
Egypt’s Judges’ Club, headed by Judge Mohamed Abdel-Mohsen issued an urgent statement responding to the joint statement issued by several member States of the UN Human Rights Council.
The Club’s spokesman chancellor Reda El-Sayed said that the Club’s board of directors followed up with regret the statement, which included numerous false allegations and claims that are considered “violation of the guarantees of the independence of the judiciary” and an unacceptable interference in the work of the well-established Egyptian judiciary that has not accepted throughout its ancient history any interference from any internal or external party.
He added: The statement infringed the standards of judiciary that prohibits the interference in the work of the judiciary and the Public Prosecution as its original branch and the trustee of the public case, and raised groundless issues that affect the judicial authority without any verified information or references.
In its urgent statement, the Board of Directors of the Judges’ Club refuted the allegations contained in the statement in this regard, including what was mentioned about placing restrictions on freedom of expression, blocking media websites and imposing restrictions on the press and journalists as well, and affirmed that the Egyptian constitution guarantees freedom of opinion and expression in accordance with Article 65, and Laws No. 178, 179 and 180 of 2018, which are regulating the press, the Supreme Council for Media, the National Media Authority, and the National Press Authority to provide some guarantees and rights. Also, the Egyptian State is obligated in Article 72 of the Constitution to guarantee the independence of the State-owned press institutions and the media outlets, and to guarantee freedom of the press, the media, and the printing and paper, audio, visual and electronic publications as well. It also prohibits the censorship, confiscation, suspension or closure of newspapers and media outlets. The constitution also ensures the independence of journalists and media professionals and guarantees that they are not subjected to anything other than the law in the performance of their work, and prohibits the imposition of freedom-depriving penalties for crimes committed by any way of publication or publicity, with the exception of crimes of incitement to violence, discrimination between citizens or attacks on the honour of an individual. It also prohibits inspecting the office or residence of a journalist or a media person for one of the crimes relevant to newspapers or the media except in the presence of a member of the Public Prosecution, so as to guarantee the practice of freedom of expression in accordance with international covenants.
On the ground, the Judges’ Club stressed that the Egyptian judiciary is well aware of the difference between what is considered a freedom of opinion and expression and what is considered an infringement of societal values and a violation of the traditions of the Egyptian society and thus constitutes a legally sinful crime. The Egyptian judiciary’s rulings are replete with many principles that establish the practice of rights and freedoms, but within the framework of preserving and upholding the ideals and supreme values and without harming the public safety in order to maintaining the established principles and values of the society.
It should be noted that the Law No. 175 of 2018 relevant to combating cyber crimes has been issued in this regard with the aim of achieving a balance between freedom of opinion and expression on the one hand and confronting crimes and acts related to information technology and overcoming their implications on the other, especially those are considered a threat to national security or public order. For this purpose, this law includes combating the illegal use of computers and information networks by determining the punishable acts. This law also clearly and completely regulates the rules and procedures for blocking websites when there is evidence that they have committed a crime stipulated in the law and constitutes a threat to national security or endanger the security of the country or its national economy, which is fully consistent with the third paragraph of Article (19) of the United Nations Covenant on Civil and Political Rights, all according to justified judicial orders, while ensuring the right to file a grievance, and obligating the investigation authority to present the order of block to the competent court within twenty-four hours, provided that the court issues its decision on the matter accompanied with grounds, within a period not exceeding seventy-two hours from the time it was presented.
Regarding the groundless accusations mentioned in the joint statement about the application of the anti-terrorism legislation against human rights activists, LGBTI persons, journalists, politicians and lawyers, and the extension of pre-trial detention periods and the presence of violations of due legal procedures to fair trials, the Judges’ Club affirms that human rights are guaranteed and ensured by the Constitution and the law to remain in effect without delay in light of the implementation of the anti-terrorism law that adopts a clear vision based on brining the balance between combating terrorism and ensuring human rights, through adopting well-determined rules and procedures that maintain the general framework of procedural legitimacy and ensures, at the same time, human rights and are subjected to the supervision of the judiciary in their exercise. The suspect is granted by the Judicial Enforcement Officer the right to contact whomever he deems appropriate of his family to inform him and to seek the assistance of a lawyer. The Law permits the accused and other concerned parties to appeal the order issued for his temporary detention without paying fees. In addition, monitoring and recording conversations and messages, inspecting houses, stopping and blocking websites, or accessing or obtaining any data or information related to accounts, required the issuance of a reasoned order from the Public Prosecution.
In this regard, the Egyptian constitution affirmed in Articles 55, 95, 96, 97, 186, 187, 188, and 189 the most important guarantees for just and fair trial in accordance with international standards, especially Article (14) of the International Covenant on Civil and Political Rights, and all these guarantees were previously stipulated by the judicial authority law, the penal code and the criminal procedures laws as follows:
The judiciary is an independent authority that carries out its tasks through courts of all types and degrees. Courts issue their rulings in accordance with the law in public sessions, and the law defines the jurisdiction of courts. Interference in the affairs of the courts or in the lawsuits under their consideration constitutes a crime that does not lapse by prescription. Litigation is a right that is safeguarded for all and the State guarantees the accessibility of judicature for litigants and rapid adjudication on cases and that no person may be tried except before the ordinary judge. Besides, the State prohibits exceptional courts.
The constitution stipulates that judges are independent and immune to dismissal, are subject to no other authority but the law and ensures that the Public Prosecution is an integral part of the judiciary. It carries out the investigation and prosecution of criminal cases and its members enjoy integrity, independence and neutrality while performing their duties. Moreover, the constitution set forth that the accused person is presumed innocent until proven guilty in a fair legal trial in which the right to defend either in person or by proxy is guaranteed. It guarantees the independence of the legal profession and the protection of its rights. There is no crime or punishment except pursuant to a law, and a penalty may only be inflicted by a court judgment and penalties are only imposed for acts committed after the effective date of the law imposing it.
The constitution and the law provide guarantees that ensure access to the truth, preserve all human rights for litigants, and deter the risk of unfair trials as follows:
They are notified immediately and in detail of the charges against them. They are given sufficient time and facilities to prepare their defense and communicate with the lawyers they chose. They can defend themselves either personally or through legal aid, in accordance with their choice. Lawyers are allowed to review all investigation records and to take photocopies. Evidences and seizures are referred for criminal prosecution without undue delay. The accused persons are tried in their presence and are able to defend themselves, either personally or through legal aid, according to their choice. The defense witnesses and prosecution witnesses are asked publicly (public hearings). All evidence is reviewed orally during hearings and every trial procedures are documented.
Besides, Article (54) of the Egyptian constitution of 2014 stipulates the need of the determination of the provisions regulating the temporary detention, its duration, and causes, as well as the cases in which the State shall compensate a person for such temporary detention pursuant to the law.
The Egyptian legislator has put in place number of restrictions and guarantees that regulate this procedure, so as to meet its goal, especially after amending the Criminal Procedure Law under the Laws: 145 for the year 2006, 153 for the year 2007, and 83 for the year 2014, as follows:
First: Conditions of temporary detention
The accused person may be temporarily detained after being interrogated or in the event of his escape if sufficient evidence exists that he has committed one of the following crimes:
Misdemeanors punishable by imprisonment for a period of no less than one year.
The accused may be temporarily detained for misdemeanors punishable by imprisonment for a period of less than one year if he does not have a certain known place of residence in Egypt, and then the accused may not be held in precautionary custody unless one of the following cases or reasons are present:
In case of crime in flagrante delicto, and the judgment must be executed immediately upon its issuance, as in the case of felonies, theft, drugs and other cases stipulated by law for fear of the flight of the accused.
For fear of compromising the investigations; whether by influencing the victims or witnesses, or by tampering with the evidence or the physical evidence, or by making agreements with the rest of the perpetrators to change the facts or obliterate its features.
Preventing the grave breach of security and public order that may result from the seriousness of the offence.
Second: The most important guarantees of temporary detention
It is not permissible to issue a precautionary detention order or any of the alternative measures except by a member of the public prosecution; at least at the level of a prosecutor.
The detention order must include a statement of the crime attributed to the accused, the penalty, and the reasons on which the order is grounded (Reasons for the precautionary detention order).
In all cases, the period of temporary detention during investigations and other stages of criminal prosecution may not exceed one third of the maximum penalty, so that it does not exceed six months in misdemeanors, eighteen months in felonies and two years if the prescribed punishment for the crime is life imprisonment or death [fourth paragraph of Article 143 of the Code of Criminal Procedure]
It is worth noting that the last paragraph of Article 143 of the Code of Criminal Procedure permitted the Court of Cassation and the Referral Court – and not the Public Prosecution – if the accused had previously been sentenced to death or life imprisonment, to order his temporary detention for a period of forty-five days, renewable without being bound by the periods stipulated in the first four paragraphs of Article 143 (which is known as a preventive detention).
It is not permissible to imprison a child accused who has not attained fifteen years of age [Article 119/1 of the amended Child Law] and if the circumstances of the case call for reservation against a child accused who has not reached fifteen years old, then it is permissible to place him in one of the juvenile homes for a period not exceeding one week and order to present him when required, provided that the period of custody does not exceed one week unless the Child Court orders its extension in accordance with the temporary detention rules stipulated in the Criminal Procedure Law.
The law regulates controls and procedures for appealing against temporary detention orders, as the accused has the right to appeal the preventive detention order from the date of its issuance every thirty days.
The Law No. 145 of 2006 has placed some alternatives that may be taken against the accused instead of precautionary detention as follows: –
The Public Prosecution may, in place of precautionary detention of the accused, order one of the following measures:
Obliging the accused not to leave his house or home.
Obliging the accused to present at the police station at specific times, or prohibiting the accused from attending specific places, and if the accused violates the obligations imposed by one of these measures, he may be held in preventive detention by a reasoned order.
It is not permissible to order one of the aforementioned measures after the temporary release of the detained accused unless there are conditions and justifications for issuing a new order for temporary detention and therefore, the measures of temporary detention, concerning its duration or extension and maximum limit, and the appeal against the order issued for the measure or its extension, shall be applied with the same established rules.
Regarding what was mentioned in the statement related to imposing restrictions on the exercise of the right to peaceful assembly, and ensuring space for non-governmental organizations, including human rights defenders, it is worth mentioning that the Law No. 107 of 2013 regarding the right to public meetings, assembly and peaceful demonstrations was amended in 2017 by Law No. 14 for the same year, where the amendment deprived the Ministry of Interior the right to prevent, postpone, or change the course of a demonstration, and grant it to the judiciary only in order to achieve equality among citizens.
It should also be noted that after the issuance of Law 17 of 2017 organizing the work of associations and other institutions working in civil action and its exposure to criticism, a series of community dialogue was held to discuss the defects that were directed at the law and in response to the outcomes of this dialogue, the Law No. 149 of 2019 on organizing civil action was issued to help in reforming the system of civil society associations, through granting the right to establish associations by notification without objection from the administrative authority taking into account the constitutional right regarding freedom of association, while granting these civil society associations financial benefits, tax exemptions and the right to receive funds and grants after notifying the administrative body, and considering the absence of objection within 60 working days an approval.
The Law abolished any penalties involving deprivation of liberty compared to preceding laws, prohibited the dissolution of an association or its board of directors except by a court ruling, reduced fees for permission of foreign organizations to operate, and allowed for an increase in the percentage of foreign participation in membership or boards of directors of NGOs to 25%. The law also stipulated the establishment of a fund to provide technical, financial and administrative assistance to civil society associations and institutions to improve their performance, and established a comprehensive organizational system for volunteering work.
The statement of Egypt Judges’ Club affirmed that Egypt follows a balanced approach in dealing with issues of economic, social and cultural human rights, as well as political and civil rights in a manner that is based on affirming the rights of the individual over his society and with the same degree of affirmation of the duties and responsibilities of the citizen towards the society, especially in light of the confrontation of a despicable and systematic terrorism that Egypt seeks to defeat its malicious powers so as to preserve the homeland and the safety of the great Egyptian people. Besides, the Egyptian constitution and legislator are keen in all relevant laws to highlight and consolidate the great diversity and richness of the historical, civilization and cultural peculiarity of the Egyptian society, and their remarkable contribution to the march of human civilization. They are the main determinants on which the legal system is built as it guarantees the promotion and protection of human rights in line with this peculiarity and the Egyptian identity. The Egyptian judiciary, with its pioneering rulings, always confirms that human rights are protected in every society with the availability of justice that provides the legal and judicial umbrella for the people of the nation.
The Judges Club called on the signatory countries and all organizations that issue such statement to carefully review the information and to verify the data and allegations contained therein before being included in documents that are supposed to be verified and responsible, and not to deal with such allegations as the abstract truth without taking into consideration their sources, misleading details and the malicious intentions behind some of them, and affirmed that each country should bear its responsibilities to review official sources before issuing such statement.
Source: State Information Service Egypt