Commands are above the law

 

On the obstruction of release orders for detainees pending National Security instructions

 

First: A scene from an Egyptian movie:

Police officer: The new prosecutor doesn’t understand anything at all. He released the young protesters!

Low-ranking policeman: Don’t worry Sir. The release order is implemented by us, and when you says ‘No’ I will say ‘No’ until you say ‘Yes’ and then I will say ‘Yes’ as well.

This was a conversation between the low-ranking police officer “Hatem”- late actor Khaled Saleh- and the investigating officer- actor Amr Abdel-Jalil in “Heya Fawda” (This is Chaos) movie by late director Youssef Chahine.

This scene summarizes what we are experiencing right now; release orders issued by the Public Prosecution or courts for defendants involved in political cases are not implemented unless the National Security officers approve them- even after the decision is already handed down, and hence its implementation is delayed for days or weeks until ‘orders from above’ approve it, approve the Prosecution’s or the judiciary’s decision!

It is a clear scene that embodies a blatant disregard for the rule of law and the constitutional principles as well as an encroachment on the judicial authority represented in the Public Prosecution and the judiciary. The final word in a release order became in the hands of National Security officers affiliated with the Ministry of Interior, which in turn is part of the executive branch of government.

There is no consolation to the judicial branch that should prevail over the parliamentary and, of course, the executive branch.

 

Second: Fact scenes:

It is an old topic

 

* Dar al-Salam Metro detainees, 3 months awaiting the approval!

– On 25 January 2017, four students (Sayed Mansy, Ahmed Hamdy, Islam Mahmoud and Hossam al-Arabi) were arrested from “Dar al-Salam” metro station. A communiqué then was filed under No. 1334/2017 Dar al-Salam Misdemeanors, and on 26/1/2017, the aforementioned appeared before the Prosecution, which charged them with joining a group established contrary to the provisions of the law, spreading false news and information, and protesting without a permit. Afterwards, the Prosecution ruled to detain the four students for 4 days which was later renewed for further periods.

– On 14/12/2017, Dar al-Salam State Security Misdemeanors Court ordered the release of the four defendants ensuring their place of residence, and referred the case to the Public Prosecution to correct the flaws in the referral order. The court set the 21/12/2017 hearing to consider the trial of the defendants.

However, the four young men were not released.

– On 18/12/2017, a report was filed to Dar al-Salam Prosecution stating that the defendants had been unlawfully detained in Dar al-Salam police station. After meeting with the head of Dar al-Salam Prosecution explaining to him the defendants’ situation, he refused to receive the report after marking it; under the pretext that decision is only in the hands of the National Security officer at Dar al-Salam police station.

– On 21/12/2017, a documents folder containing the complaints lodged by the defendants’ families along with the report which the head of Dar al-Salam Prosecution refused to receive was submitted to Dar al-Salam State Security Misdemeanors Court, which set the case for adjudication at the 1/2/2018 hearing. The court also upheld the release order issued for the mainly illegally-detained defendants would continue to be in effect.

– On 21/1/2018, a complaint carrying No. 360/2018 was filed with the Attorney-General against the head of Dar al-Salam Prosecution, head of Dar al-Salam police station along with its investigating (Detective) officer.

– On 1/2/2018, the court ruled to extend the case’s sentencing hearing to the 15/2/2018 hearing with the continuation of the release order’s implementation.

– On 15/2/2018, the court sentenced the defendants to 6 months in prison.

– On 18/2/2018, Dar al-Salam police station transferred the four defendants to al-Basateen police station placing them in custody, which is illegal.

– On 21/2/2018, a complaint was directed to the head of South Cairo Prosecution reporting the above-mentioned incident (Dar al-Salam police station’s transferring the defendants to al-Basateen police station), in addition to the continuation of the defendants’ illegal detention after the expiry of the penalty issued against them. The report also demanded to carry out an inspection of the two aforementioned police departments (Dar al-Salam and al-Basateen).The chief prosecutor, however, refused to receive the complaint.

– On 4/3/2018, a meeting was held with the head of Dar al-Salam Prosecution in order to hand him a complaint reporting the continued illegal detention of the four defendants. After meeting him and making a phone call with the police station head (warden), we were informed that the defendants were not in custody in Dar al-Salam police station and that they were being held at al-Basateen police station pending the National Security Sector’s decision.

Therefore, we headed to the head of al-Basateen police station and met with him. For his part, he made a phone call to the head of the police department who told him that the defendants had been transferred to his department and that if they continue to be detained, he himself will immediately release them. Accordingly, and on the evening of the same day, al-Basateen police station transferred the defendants back to Dar al-Salam station.

– On 21/3/2018, Dar al-Salam police station issued a memorandum reporting the defendants’ arrest and their appearance before Dar al-Salam Prosecution to hand down the ruling issued against them before returning them back to the police station. Three days later, the four students were released.

Three months and a week; the defendants were kept detained for this period just because the National Security hadn’t approved or commanded their release despite the fact that the Prosecution had already ordered it.

 

Third: It wasn’t an isolated incident but a phenomenon

Examples of cases in 2018:

 

  • 5 days delay for pharmacist Gamal Abdel Fattah:

On 4 September 2018, a judicial order was issued to release the leftist pharmacist Gamal Abdel Fattah with precautionary measures pending Case No. 482/2018. Nevertheless, al-Haram police station ignored the Prosecution’s decision and kept detaining him for further 5 days, until the National Security approved the release order, made a reference to his approval and sent it to al-Haram police station.

 

  • 15 days delay for journalist Mervat al-Husseini:

Despite the decision to release journalist Mervat al-Husseini under precautionary measures, which was issued on 16 October 2018, she had been detained for 15 further days inside Kerdasa police station; for purportedly awaiting a reference to her release from the National Security. This period is, of course, to be added to the months she spent in pretrial detention pending Case 441/2018 State Security.

 

  • 11 additional days for journalist Hagar Abdallah:

Like her colleague (Mervat al-Husseini), Hagar was ordered, on 10 October 2018, by the court to be released, but his illegal detention- while allegedly waiting for the National Security officers’ approval or reference- had lasted a period less than her predecessor; as she had been detained for only 11 days inside Dar al-Salam police department until the approval had been received, and thereafter she was released.

 

  • 20 days pending the approval to release rights lawyer Haytham Mohamadein

Al-Saf police station had detained human rights lawyer Haytham Mohamadein for 20 days after a release order was issued for him into Case No. 718/2018 State Security, in which he was charged with cooperating with a terrorist group in achieving its objectives and inciting to protest, against the backdrop of the demonstrations took place in protest against the decision to raise the price of subway tickets. Mohamadein had been kept for this additional period since the date of his release on 10 October 2018, until the National Security officer granted him (as a matter of charity) the approval of the court’s decision.

 

  • Nurse Sayida Fayed released after being detained for 6 days

The Helwan police station had detained unionist Sayida Fayed for 6 days, after Helwan Misdemeanor Court ordered her release into Case No. 29377/2018 Helwan Misdemeanors, in which she faced charges of publishing false news and data on social media. The release order was issued on 10 November 2018, but Fayed was kept in detention for another 6 days until the National Security officer approved the court’s ruling.

 

Fourth: The legality of awaiting National Security’s approval of release orders:

Such real scenes detailed above have become a phenomenon. Detainees expect that their release order will put an end to the suffering they endure in pretrial detention or imprisonment, and families eagerly wait for their relatives to be back home. However, a detainee is not to be released following a release order but rather when he is actually out of prison following a command or approval of the National Security.

 

The 2014 Egyptian Constitution, Article (1) thereof, stresses the first constitutional principles affecting our present situation, as it states that the Arab Republic of Egypt is a sovereign state… that its system is based on citizenship and the rule of law.

 

Based on Article (1), Article (5) came to emphasize that the political system is based on the separation and balance of powers, authority going with responsibility, and respect for human rights and freedoms.

 

Not only does the Constitution stipulate the aforementioned principles, but he goes further- in Article (94) – to affirm the rule of law principle as the basis of governance in the state, as it links the concept of the rule of law with the state’s compulsory subordination to it. In other words, the state must be subject to the law and support such a principle, on condition of the independence, immunity and impartiality of the judiciary as essential guarantees for the protection of rights and freedoms.

 

Nevertheless, reality is totally different from the Constitution.

 

To both judge and convict, the National Security Apparatus, not the judiciary or the Prosecution, has become known to be the one that controls the fates and freedoms of prisoners.

 

Although Article (95) of the Constitution provides for the principle of the legality/legitimacy of crimes and penalties, stating that they may only be based on the law, and penalties may only be inflicted by a judicial ruling, the real situation indicates that neither crimes nor penalties may be inflicted except on the basis of the National Security’s approval.

 

In addition to the Constitution, the Criminal Procedure Code, while addressing the release proceedings, provides for the immediate release of a temporarily detained defendant if the judgment issued is a judgment of acquittal or a judgment sentencing another form of punishment that does not necessitate incarceration, which is stipulated in Article 465 thereof.

 

As for criminal offenses, Article 123 of Egypt’s Criminal Code states that: “Detention and removal from office shall be the penalty inflicted on any public official/civil servant who uses the authority of his position in suspending the execution of orders issued from the government, or by the court or by any competent authority, or deliberately refrains from executing a ruling or order of the foregoing after the elapse of eight days from serving a warning thereof via a bailiff, if the execution of the ruling or order falls within the jurisdiction of oldie official”.

 

But what is the value of the Constitution and the law while National Security officers seem to have vowed not to let any prisoner or detainee see the day light again, unless at their command!! And does anyone dare to dispute their words?!

 

Conclusion:

These are actions and practices that have nothing to do with the law, and make us feel that we are living in a National Security’s state. Despite the fact that freedom of opinion and expression is totally being curbed nowadays, the matter is getting worse as it reaches the level where National Security officers are granted “de facto” exceptional powers. Hence, the Prosecution and the judiciary, as part of the judicial authority, will become under the thumb of the command’s authority.

In light of the judicial authorities’ deliberate disregard and reluctance to play their role in overseeing and inspecting prisons and police departments, as well as in referring those implicated in crimes of refrain from executing court judgments to criminal prosecution in accordance with the law, citizens have become prey to the National Security officers’ infringement of the law along with their whims of settling political scores.

 

Recommendations:

  1. Enacting new legislations or amending existing legislations that penalize crimes of interference in judicial affairs and obstructing the implementation of court orders, especially release orders.

  2. The National Security Apparatus has to adhere to its mandate; which is to investigate crimes that threaten the state’s security, and not to encroach on other authorities’ roles, this is in addition to showing respect for the principle of separation and balance of powers.

  3. The Public Prosecution has to play its role in overseeing and supervising prisons and police stations to ensure they carry out and implement its decisions, as well as referring those responsible for obstructing courts and prosecutors’ decisions to criminal trial in accordance with the Penal Code.