Civilians referral to military tribunals in egypt by Walaa Ramadan

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CIVILIANS’ REFERRAL TO MILITARY TRIBUNALS IN EGYPT International Coalition for Freedoms and Rights

Contents Introduction..................................................................................................................................................

Background of the referral of civilians to military tribunals in Egypt ............................................................ 11 Pre 25 January 2011 Revolution................................................................................................................

Post 25 January 2011 Revolution..............................................................................................................

Steps of the referral of civilians to military tribunals after events of June 30, 2014....................................... 12 First:Declaration of the new constitution of 2014 ......................................................................................

Second: Issuance of the military justice law amendments.......................................................................

Third: Issuance of public facilities protection decree................................................................................

Fourth:Issuance of the Attorney Generalâ&#x20AC;&#x2122;s periodical..................................................................................

Legal status of judges and military justice..................................................................................................... 19 Legal status of military justice in Egypt ..................................................................................................... 19 Legal position of the military judge...........................................................................................................

Violation of the human rights standards by the military tribunals................................................................ 19 Military tribunals and the violation of fair trial and independence of the judiciary principles...................... 22 Conclusion and recommendations................................................................................................................. 31

Introduction It seems the bleeding of civilian military tribunals won’t dry out; it never stopped since the military coup of 1952 and the declaration of the Republic of Egypt. Since then, Egyptian civilians have a date with fate: a wave of military tribunals; a scene that best reflects the shameful fact: Egypt is still under the reign of the military regime in terms of administration, politics and justice. The Egyptian military regime relied, each time the military tribunals were imposed and each time civilians were referred to these tribunals, on a number of legal or social justifications as they’re well aware of the unlawful nature of these tribunals, in terms of law and jurisprudence, internally and internationally. The proof? Resorting to the military tribunals’ punishment against Egyptian civilians was tightly related to the military’s seizure of power and military rule. Coupled with suppression tools of all types and forms, the armoured vehicles invade the streets along with the political governor ruling the neighborhoods, the cities and the provinces paving the way for the military tribunals spreading the criminal legitimacy among whoever gets arrested. The military tribunals are one of the most concrete embodiments of the violation of the right to a fair trial, as they’re no longer limited to non-civilian trials or military crimes, as its jurisdiction scope extended to include civilians who committed some crimes stated in the first chapter of the second book of the Criminal Code. Many international human rights institutions have established the right to a fair trial. Article 10 of the Universal Declaration of Human Rights stipulates that: “Everyone is entitled in full equality to a fair and public hearing … in any criminal charge against him,”1 while Article 11 adds that “Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial…”. In addition, Article 14 of the International Covenant on Civil and Political Rights stipulates that “…In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”2 . In addition, regional treaties guarantee the right to a fair trial. Article 8 clause (5) of the American Convention on Human Rights stipulates that “Criminal proceedings shall be public” while Article 6 of the European Convention on Human Rights and Fundamental Freedoms stipulates that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing…”3 ; Article 7 of the African Commission on Human and Peoples’ Rights stipulates that “Every individual shall have the right to have his case heard”4. 1 Review http://www.un.org/ar/documents/udhr/ 2 Review the International Covenant on Civil and Political Rights http://www1.umn.edu/humanrts/arab/b003.html 3 Review http://www1.umn.edu/humanrts/arab/am2.html 4 Review http://www1.umn.edu/humanrts/arab/a005.html

Clause 3 of Article 14 of the International Covenant on Civil and Political Rights stipulates that “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees required for his defense, in full equality: 1.

To be informed promptly and in detail in a language which he understands of the nature and-cause of the charge against him;

To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

To be tried without undue delay;

To be tried in his presence, and to defend himself in person or through legal assistance of-his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

To examine, or have examined, the witnesses against him and to obtain the attendance and-examination of witnesses on his behalf under the same conditions as witnesses against him;

To have the free assistance of an interpreter if he cannot understand or speak the language used-in court;

Not to be compelled to testify against himself or to confess guilt5.

The Egyptian procedural system has witnessed many special courts, however, the most important and dangerous ones are the military courts governed by the Martial Law No. 25 of 1966, basing its jurisdiction on three criteria: subject-matter criteria, personal and territorial. The first is related to the military courts competency in the criminal proceedings related to crimes committed by or committed against individuals governed by the Martial Law. The territorial criterion refers to crimes that happen in camps, barracks, institutions or other military installations. The third, subject-matter, criterion extends the military courts competency to include crimes related to military equipment, weapons, ammunitions, document and secrets. In this context, the report titled “The Civilians’ Referral to Military Courts Crime in Egypt” of the International Coalition for Freedoms and Rights (ICFR) was generated including the following points: First: Background of the referral of civilians to military tribunals in Egypt Second: Legal nature of judges and military jurisdiction Third: Violation of the human rights standards by the military tribunals Fourth: Conclusion and recommendations 5 For more detailed information about the international standards of trials fairness, review the report submitted by the members of ----- the Sub-Commission Stanislav Chernichencko and William Treat E/CN.4/Sub.2/1994/24 (1994)

Background of the referral of civilians to military tribunals in Egypt Pre-25th January 2011 Revolution In the nineties of the last century and amidst the severe acts of armed violence committed by some of the armed Islamic troops, the series of civilians’ referral to military courts began. The first referral took place in October 1992 when the President of Egypt referred 48 individuals accused of involvement in the two cases of “Returnees of Afghanistan” and “Jihad Organisation” to the Supreme Military Tribunal. Back then, the court sentenced 8 defendants to death. Case after case, the number of cases referred to military courts reached 36; of which 7 cases related to the Muslim Brotherhood concluded with the military court accusing 40 persons. These courts sentenced a huge number of these accused individuals to death and these judgments were executed against at least 97 Egyptian citizens who were hanged.

Post-25th January 2011 Revolution Egypt has never witnessed such a huge number of civilians referred to military courts as occurred during the January 25, 2011, Revolution, where more than 11,000 civilians were referred to military courts between February 11, 2011 and June 30, 2012, during which the Supreme Council of the Armed Forces presided the country.

The situation didn’t get considerably better under the rule of Dr Mohamed Morsi as a number of arrested individuals were referred to the military justice. Morsi however released the majority of individuals tried in military cases under the Supreme Council of the Armed Forces’ Ruling. His regime, however, witnessed the referral of 68 civilians to military courts, of which the most famous was the case of Qursaya Island. After the events of June 30, 2013, the military courts strongly took the stage one again whereby hundreds were referred to these courts in relation to political or criminal events; and by October 27, 2014, when Al-Sisi issued the Public Facilities Protection Decree, 1241 civilians were referred to military courts, the majority of which were from Mersa Matruh, Suez, Ismailia and Port Said. After the Public Facilities Protection Decree was issued October 27, 2014, Al-Sisi delegated the army to protect public facilities as being subject to its protection and to turn these facilities into military installations “corrupting” the essence of military camps and military forces. So far, at least 1070 detainees affiliating with the Muslim Brotherhood and 2311 civilians were referred to military justice since the events of June 30.

Steps of the referral of civilians to military tribunals after events of June 30, 2014 The wide-spread referral to military justice punishment adopted by the ruling authority in Egypt since June 30, 2013, until now represents a collective punishment violating numerous rights and freedoms against those who were actually referred to these tyrannical courts, and those who weren’t. In both cases, these courts are the death sentence against the rights and freedoms of citizens.

Putting an end to these referral procedures requires investigating the legal dimensions and studying the legitimacy of rules governing these procedures, in terms of reality and law equally, such that these abnormal procedures shall not bypass the limits imposed and the law determined. Since June 30, 2013, a series of legislations emerged to pave the way for the coup authorities in Egypt to legitimise the referral of civilians to military courts. Below are such legislations: 1. Declaration the new constitution of 2014 2. Issuance of the Military Justice Law Amendments 3. Issuance of the Public Facilities Protection Decree 4. Issuance of the Attorney General’s periodical

1. Declaration of the new constitution of 2014 The constitutionality of the civilians’ referral to military justice was challenged since Mubarak’s era, which is why the military institution deployed all effort to constitutionalise these courts, and the first step was the constitution of 2012 which achieved this goal.

In December 2012, the results of the referendum led to approving a new constitution. Then in 2014, an amended version of the new constitution was also approved based on another referendum held in January 2014. While both 2012 and 2014 constitutions guarantee respecting human rights while in preventive detention and during trials, both acknowledged the legality of civilians’ referral to military courts, which is a violation of human rights in itself. Such a procedure is coupled with escalating consequences as the military procedures lack fair trial guarantees. Whereas Article 204 of the 2014 constitution stipulates that “The Military Court is an independent judicial body exclusively competent to adjudicate on all crimes pertaining to the Armed Forces, the officers and personnel thereof, and their equivalents, and on the crimes committed by the personnel of the General Intelligence while

and by reason of performing their duties. No civilian shall face trial before the Military Court, except for crimes that constitute a direct assault against military facilities or camps of the Armed Forces, or their equivalents, against military zones or border zones determined as military zones, against the Armed Forces’ equipment, vehicles, weapons, ammunition, documents, military secrets, or its public funds, or against military factories; crimes pertaining to military service; or crimes that constitute a direct assault against the officers or personnel of the Armed Forces by reason of performing their duties. The law shall define such crimes, and specify the other competences of the Military Court. Members of the Military Court shall be independent and shall be immune to dismissal. They shall have all the guarantees, rights and duties stipulated for the members of other judicial bodies” 6. On the other hand, Article 204 extended to include crimes the military is competent to decide on as it included “direct assault against military facilities or camps of the Armed Forces, or their equivalents, against military zones or border zones determined as military zones, against the Armed Forces’ equipment, vehicles, weapons, ammunition, documents, military secrets, or its public funds or against military factories; crimes pertaining to military service; or crimes that constitute a direct assault against the officers or personnel of the Armed Forces by reason of performing their duties. The law shall define such crimes” leading to extending the scope of these courts for reasons that have nothing to do with the security and safety of armed forces.

2. Issuance of the military justice law amendments The Issuance of the amendments to the Military Justice Law on February 4, 2014, upon which the military courts’ rules were amended to become similar to regular courts, led to the establishment of a Misdemeanour Court, Misdemeanour Court of Appeal, Court of Assize and a Military Court of Appeal.

The interim President, Adly Mansour, issued at that time a law to amend some of the Military Justice Law provisions by virtue of law No. 25 of 1966 in a way to guarantee establishing a second degree court under the name “Supreme Judicial Council.” This authorises appealing of decisions of the armed forces judicial councils before it; in addition to the necessity to consider the opinion of the Mufti in death sentence judgments as a guarantee of sentenced individuals; execution of the procedures concerning default judgments stipulated in the Code of Criminal Procedure; and amending the titles of the military courts to make these compliant with the civil justice courts, stipulated in the Judicial Authority Law. Military courts are divided into 4 categories: the Supreme Military Court of Appeals, Military Assizes Court, Military Misdemeanour Court and Military Misdemeanour Court of Appeals. Only these courts handle the cases and litigations referred to them according to the law.

6 Review dostour.eg/2013/topics/regime/army-2-5/comment/86125/

This system will replace the existing current system entirely including the Central Military Courts and Supreme Central Military Courts ending with the Supreme Central Military Court of Appeals. This latter having the same structure of the previous Supreme Central Military Court of Appeals will be of one division headquartered in Cairo; it comprises the Military Magistrate Chief, ranked as colonel at least, and it will be the only body competent to handle the appeals submitted by the Military Prosecution or those condemned in all Public Law crimes. The Military Assizes Court will be comprised of several divisions and each division is comprised of 3 military judges headed by the eldest, provided that his rank is not less than colonel and a representative of the Military Prosecution; its competency involves the assizes cases. While the Military Misdemeanour Court shall comprise several divisions, each comprises of one judge with a rank not less than major and a representative of the Military Prosecution. Its competency involves misdemeanours and offenses. The relevant appeals court called “Military Misdemeanour Court of Appeals” comprises several divisions, each comprised of 3 military judges headed by the eldest, provided that his rank is not less than lieutenant colonel and a representative of the Military Court or condemned in the final sentences issued by the Military Misdemeanour Court. Amended Article 80 of the Law stipulates that the Military Assizes Court may not issue a death sentence unless it is with the unanimity of its members; and before issuing such a sentence, it shall consider the Mufti’s opinion and send him the case papers. Should he fail to express his opinion within 10 days after sending the papers, the court may issue a sentence. The major amendments include the following: 1. Declaring the right to appeal the misdemeanour judgments issued to make it of two degrees instead of one degree; 2. The necessity to consider the Mufti’s opinion in the judgments issued as a guarantee for the condemned, and to comply with the procedures adopted in civil justice; 3. Executing the default judgment procedures stipulated in the Code of Criminal Procedure; 4. Amending the titles of the military courts to make them compliant with court titles in the civil justice as per the Judicial Authority Law. These amendments clearly violate the constitution and especially Article 156, which stipulates that the Egyptian President shall issue laws in cases where urgent measures shall be taken and the House of Representatives is not in session. Therefore, issuing laws in the absence of the people’s representatives is a violation of the rights of the Egyptian people.

These amendments are of no use for those condemned and serving sentences, but it might be useful for new detainees. All these procedures are nothing but a way to embellish military justice which will always be a justice dedicated to military personnel and not civilians. As for considering the Mufti’s opinion with regards to death sentences, this does not guarantee the military or civil ruling as his opinion is not binding and doesn’t change the issued judgment. As for declaring misdemeanour cases to two degrees, misdemeanours are less severe than assizes in terms of finance and punishment. The constitutional amendments authorised appealing the assizes judgments before civil tribunals, and as long as the president didn’t allow any amendments to the Military Justice Law, he should have generalised the judgment on both assizes and misdemeanours”. These amendments add no value as the military justice allows appealing and considering the appeal, which means the adjudication is of 2 degrees in all cases. Therefore, introducing new amendments to the Military Justice Law by the government pretending that these amendments comply with the human rights justice and dignity principles is not but a confirmation from the state that the military courts held before these amendments contradict these principles. In addition the content of these amendments doesn’t address the essential issues related to the military courts, but instead focuses on the formalities of holding the trial, since it did not address the issue of depriving the condemned in military cases the right to appoint defence lawyers, nor present authorisation for referring civilians to military courts. Moreover, these amendments didn’t include the text of Article 8 of the Military Justice Law which gives the military justice system sole competence to determine its jurisdiction. In the same context, military justice is still an authority subject to the Ministry of Defence and military judges are subjects the armed forces regulations as being officers in these forces. The sentence affirmance system in the military courts still exists: it’s the system that allows an officer who’s a non-member of the military court to cancel or amend the sentences.

3. Issuance of Public Facilities Protection Decree This decree was issued in 27 October 2014 and by virtue of which the public facilities were subjected to the military protection and considered as military installations and were subjected to the justice control of the armed forces for 2 years.

The Presidential decree No. 136 of 2014, which broadens the military justice competency, included crimes representing an assault against a wide array of the public institutions and facilities including: “electricity stations, networks and towers as well as gas pipelines, oil wells, railroads, road networks, bridges, and any similar stateowned property”; the duration of this law will be 2 years. The law provisions allow bringing any civilian accused

of assaulting the indicated public facilities or blocking public roads in front of a military court to trial. These are the most common accusations brought against the demonstrators accused of being the government opponents and of which the Egyptian Initiative for Personal Rights’ transitional justice officer Yara Sallam was accused, to name one. The broadening of the military courts competency in terms of civilians’ trials is a violation of article 204 of 2014 constitution which stipulated that no civilian shall face trial before the military courts except for crimes that constitute a direct assault on military installations or armed forces camps. While the new law is an undisclosed emergency as the authorities are trying to manipulate this constitutional restriction by delegating the armed forces to protect the public facilities and institutions in collaboration with the police leading to bringing the citizens to military trials and not civil ones. This new competency might lead to the referral of thousands of citizens to military courts lacking for the minimum standards of the right to a fair trial and establishing an equivalent military system. This law relates to another law that’s still applicable, issued by the dismissed President, Mohamed Morsi, in early 2013 (No. 1 of 2013), by virtue of which he authorised the country’s President to order the Minster of Defence, where needed, that the armed forces offer the police assistance aiming at preserving the country’s security while authorising the Minister of Defence to decide on the locations that the army will handle its protection and the duties of the different members for this task. That’s why it was the duty of the Minister of Defence Sidqi Sobhi to determine the locations that the armed forces shall protect in collaboration with the police as Al-Sisi’s law cannot be applied without Morsi’s law as the Minister of Defence abstained during the whole previous period from declaring these locations and the coordination nature between the army and the police despite the obligation to declare these publicly in order to put the law in force as this law didn’t disclose the details of all institutions that will be subjected to the army’s protection and simply stated “vital and public facilities” using a vague sentence holding different interpretations. It should be noted that the administrative court had decided in June 2012 to abolish the Minister of Justice’s decision granting the officers of the armed forces the power of judicial arrest emphasising the fact that “Egyptian constitutions have separated the provisions regulating the powers of police and armed forces intentionally due to the difference between both parties in terms of function and competency”.

4. Issuance of the Attorney General’s periodical This periodical was issued on November 11, 2014 and based on which the Public Prosecutor authorised the prosecuting attorneys to refer the cases still under investigation related to events that took place before the issuance of the Public Facilities law to the military prosecution.

The periodical No. 14 of 2014 issued by the Attorney General in 11 November 2014 legitimised the referral of cases

that occurred before the issuance of the Public Facilities law to the military prosecution by the public prosecution7 . The referral of cases that took place prior to the law issuance to military courts is an explicit violation of the principle of immediate effect as the general rule in application of the criminal law in term of time is the immediate effect of the criminal text. The immediate effect in application of the criminal law is the application of the Occurrence Law. The Occurrence Law refers to the law that was in force the time the crime was committed. If a new law was issued and wasn’t better for the condemned, the previous criminal law shall be applied on the actions that occurred before its cancellation by the new law. It also clearly and explicitly violates the Egyptian constitution as Article 95 of this constitution stipulates that “Penalties are personal. There shall be no crime or punishment except pursuant to a law, and a penalty may only be inflicted by a court judgment. Penalty shall only be imposed for acts committed after the effective date of the law imposing it ”8. Whoever examines the facilities protection law and the new Attorney General’s periodical will conclude it’s a deviation from the legitimacy frame. The broadening of the military courts competency in terms of civilians’ referral to these courts is a violation of Article 204 of 2014 constitution which stipulated that no civilian shall face trial before the military courts except for crimes that constitute a direct assault on military installations or armed forces camps. While the new law is an undisclosed emergency as the authorities are trying to manipulate this constitutional restriction by delegating the armed forces to protect the public facilities and institutions in collaboration with the police leading to bringing the citizens to military trials and not civil ones. It’s also an explicit clear violation of the Egyptian constitution especially Article 95 which stipulated that “Penalties are personal. There shall be no crime or punishment except pursuant to a law, and a penalty may only be inflicted by a court judgment. Penalty shall only be imposed for acts committed after the effective date of the law imposing it”, and therefore the Public Prosecution Decision is an explicit violation of the law as it has legitimised the referral of cases that occurred prior to the law issuance and execution. The violation of the constitutional texts by referring civilians in relation to occurrences that took place prior to the Military Justice Law shall be deemed void and null on two levels: the first is the nullity of the civilians’ referral to military courts and the second is the nullity of the replacement of the police with the army or granting this latter the judicial arrest power granted by the facilities protection law; this power leading to highly important legal consequences as the civil justice, and not the military one, shall be the one competent to handle the crimes committed by soldiers in the period during which they will have the judicial arrest power. 7 https://www.facebook.com/Egypt.O.R.f 8 Review http://dostour.eg/2013/topics/rule-of-law/Legislative-19a-4/

As the replacement of the police with armed forces affects the rights and obligations of the latter while affecting the legal positions and provisions governing the former, civil justice shall be sufficiently competent to decide on any crime committed by the armed forces (replacing the police or sharing the judicial arrest power with it in the first place) and that what these exceptional case require. However, and in all cases, these referrals and adoption of the military justice instead of civil aren’t based on any legal or constitutional texts, they’re not even necessary as it’s unacceptable to grant the military police or armed forces members the judicial power of arrest which is the function of the civil police in the first place. This way, the court competent to decide on the armed forces members functions in terms of arrest become the military court; this argument is null as it doesn’t comply with the exceptional case requirements and it contradicts the current legal structure of the military justice competences. In addition, even if the replacement authorised in the administrative functions it isn’t in the judicial functions; according to the judgment of the Supreme Administrative Court of Appeals No. 1127 of 21/5/2000.

Legal status of judges and military justice After discussing the facts of civilians’ referral to military justice and how this referral violates the constitution, it is important to clarify with explicitness that the military regime in Egypt has tried to transform military justice into a “one-size-fits-all” justice, through its consecutive legislations, instead of being an exceptional tool in trying civilians. Moreover, military justice lacks for many of the basic guarantees of a fair trial as it’s subject to the Minister of Defence and all judges and Prosecution members are military personnel of different ranks subjected to all control and discipline regulations shown in the Military Service Law. Additionally, it is the Minister of Defence who appoints judges, based on the recommendations of the Military Magistrate Chief, and who cannot judge members of higher ranks and their sentences aren’t deemed applicable unless validated by an officer who’s a non-member of the court and who has the powers to cancel the sentence; suspend its execution; mitigate it; or even order a retrial, thus depriving them of any independence or neutrality. Military courts also do not comply with the due process whether in terms of not notifying the condemned of the accusations or detaining them for long periods of time without notifying their families of places of detention, which may well be unmonitored military prisons, thus making it hard to prove or investigate any violations or abuse to which the detainees may be subjected to. Being held in military barracks also makes it hard for lawyers and condemned individuals families to reach them and have access, imposing further psychological torture on the defendants.

Legal status of military justice in Egypt The first article of Martial Law No. 25 of 1966 stipulates that military justice is an independent judicial body comprising courts, military prosecutions and other judicial divisions according to the armed forces laws and regulations.

Military justice decides on the crimes within its competency according to the provisions of this law and other crimes within its scope according to any other law. A body of the Ministry of Defence handles the military justice affairs9. The second article stipulates that: military justice comprises a chief and a sufficient number of members meeting the conditions stipulated in the law of service and promotion of the armed forces officers issued through law No. 232 of 1959, conditions stipulated in article 38 of the Military Justice Law issued through Law No. 46 of 197210. Those handling military justice functions are equal to those handling functions in the justice and public prosecution. Having examined both texts, we conclude that the characteristics of military justice are: 1) Military justice handles a body, which is a functional administrative term; 2) It’s one of the Supreme Command administrations such as the vehicles administration and the-tasks administration…etc. 3) It’s headed by a Chief (an administrative employee); 4) It’s subjected to the Minister of Defence (a member of the executive authority).

Therefore, the Supreme Military Court Chief is an employee in the courts administration, following a body and headed by a chief and who is subjected to the Minister of Defence, which is subject to the Prime Minister, who is subject to the president of Egypt as being the Executive Authority Chief. Independence of these courts is thus nonexistent. The aforementioned individuals belong to the military (appointed and dismissed by the president of the country by virtue of the provisions of Article 153 of the constitution which stipulates that: “The President of the Republic shall appoint and dismiss civil and military employees and political representatives and accredit political representatives of foreign States and bodies in accordance with the Law ”11. In addition to what the constitution stipulated in Article 168 “Within the framework of the State’s general policy, the 9 Article (1) (replaced by the Law No. 16 of 2007) 10 Article (2) (replaced by the Law No. 7 of 1968 then the sentence “Minister of War” was replaced with “Minister of Defense” by virtue of Law No. 46 of 1979 then replaced by Law No. 16 of 2007) 11 Review http://dostour.eg/2013/topics/regime/Chief-of-state-141-5/

Minister shall develop the Ministry’s general policy in collaboration with the competent authorities, supervise the implementation thereof and provide guidance and oversight. Top management posts in all ministries shall include a permanent undersecretary to ensure institutional stability and raising the level of efficient implementation of its policy ”12. Therefore, the military judge implements the ministry policy within the framework of the State’s general policy and settling justice among people is not within his competency scope; the independence of the military judge is clearly void then.

Legal position of the military judge If the military judge isn’t independent, as has been proved, then he doesn’t enjoy any immunity whatsoever whether in terms of appointing, delegating, re-appointing, dismissing or accountability, through the provisions of law 25 of 1966: 1) The Commander-in-Chief of the Armed forces (the Minister of Defence) issue a decision to appoint military judges upon the Military Justice Director’s suggestion (without conditioning any-special requirements) as article of the law stipulates that “The Minister of Defence issues a-decisioto appoint military judges upon the suggestion of the Military Justice Director ”13. 2) Military judges are subjected to all regulations stipulated in the Military Service Laws as Article 57 of the law stipulates that “Military Judges are subject to all disciplinary regulations set forth in-the military service laws ”.

Therefore it’s clear that military judges aren’t independent in terms of appointment and their own independence; they are subject to law and constitution and not to military services laws14. Based on the above and based on the content of Article 94 of the constitution stipulating that: “The rule of law shall be the basis of governing in the State. The State shall be governed by Law. The independence, immunity and impartiality of the judiciary are essential guarantees for the protection of rights and freedoms”15. The Justice Independence and immunity aren’t an advantage, rather it’s a guarantee of citizens’ rights and freedoms; as the military justice is nothing but an administrative body enjoying judicial competency and its members don’t enjoy any degree of immunity or independence. The rights and freedoms are therefore being compromised without the slightest protection and care in an explicit and exposed violation of the constitutional provisions.

12 Review http://dostour.eg/2013/topics/regime/Justice-system-175-4/ 13 Review http://old.qadaya.net/node/1969 14 Review previous source 15 http://dostour.eg/2013/topics/rule-of-law/Legislative-19-4/

Violation of human rights standards by the military tribunals The referral of civilians’ to military courts is one of the most dangerous violations of the right to a fair trial, contradicting the International Charters on Human Rights, where article 14 of International Covenant on Civil and Political Rights stipulates that: 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or in special circumstances where publicity would prejudice the interests of justice. Any judgment rendered in a criminal case or in a lawsuit shall, however, be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to the law. 3. In the determination of any criminal charge against them, everyone shall be entitled to the following minimum guarantees, in full equality: •

To be informed promptly and in detail in a language which they understand of the nature and cause of the charge against them;

•

To have adequate time and facilities for the preparation of defence and to communicate with counsel of their own choosing;

•

To be tried without undue delay;

•

To be tried in their presence, and to defend themself in person or through legal assistance of-their own choosing; to be informed, if they do not have legal assistance, of this right; and to have-legal assistance assigned to them, in any case where the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it;

•

To examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them;

•

To have the free assistance of an interpreter if they cannot understand or speak the language-used in court;

•

Not to be compelled to testify against themself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such that the age will be taken into account and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to their conviction and sentence being reviewed by a higher tribunal according to the law. 6. When a person has, by a final decision, been convicted of a criminal offence and when subsequently their conviction has been reversed or pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. This article confirms that everyone is entitled to a fair, independent and impartial trial, as does Article 21 of the constitutional declaration declared by the Supreme Council of the Armed forces confirming that every citizen has the right to resort to his natural judge16. Article 10 of the Universal Declaration of Human Rights confirms that everyone in entitled to an independent and impartial trial stipulating that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him ”17. The fifth principle of the United Nations Basic Principles on the Independence of the Judiciary also confirms that everyone has the right to be tried by ordinary courts and that judicial tribunals shall not be created to displace the ordinary courts’ jurisdiction as it stipulated that: “Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals ”18. It’s a well-known fact that the consecutive Egyptian military regimes have resorted to the military courts weapon against its opponents and foes. After the fall of Mubarak’s regime, the fall of all his tools too was expected; however, the civilians’ referral to military courts rose after the January 25th 2011 Revolution – the peaceful revolution that emerged out of the desire to unleash the citizens’ public freedoms and to implement all international standards and guaranties in relation to human rights, including the right to a fair trial, and eventually attaining a democratic society.

16 Review http://www1.umn.edu/humanrts/arab/b003.html 17 Review http://www.un.org/ar/documents/udhr/ 18 Review http://www1.umn.edu/humanrts/arab/b050.html

Military tribunals and the violation of fair trial and independence of the judicial principles Law No. 25 of 1966 determines the competencies, powers and creation of military courts. This law is a violation of the principle of courts uniformity and consistency. It also deprives the ordinary courts of their competencies while depriving individuals their rights of having a neutral judge; as the law broadens the military courts’ competency to include civil citizens working for the armed forces and the state’s security crimes stipulated in the first and second chapter of the criminal code. April 2007 witnessed the approval of the People’s Assembly on amending some of the provisions of the Martial Law, this amendment was formal as its legislative structure is still deeply deficient, a deficiency best illustrated by the continued resort to civilians’ referral to military courts which lack the basic standards of the fair trial guaranteed by the Egyptian Constitution and the international charters on human rights. Another proof is the continued implementation of Article 48 stipulating that military justice authorities are the sole authorities competent to decide whether a crime belongs to its competency or not, without having any other judicial entity capable of debating thereof. If these authorities decided that a certain crime belongs to its competency, the civil justice shall immediately abandon its view. In general, this law has violated the Universal Declaration on the Independence of the Judiciary which restricts the competency of military courts to military personnel only. This law also breaches the Independence of the Judiciary principle and deprives citizens the right to have a neutral judge; as this law broadens the military courts competency to include civil citizens working for the armed forces and the state’s security crimes stipulated in the first and second chapter of the criminal code. Article 6 of the Law authorises the President of the country, in cases of emergency, to refer any of the crimes punishable by the criminal code or any other law, to military courts. The provisions of this law deprives civilians their right to resort to an ordinary judge in relation to crimes that have nothing to do with the military system whether in normal or exceptional circumstances before a judicial body of an exceptional nature. The military justice also brushes off a lot of competency, independence and impartiality that military justice enjoy and which are guaranteed by virtue of Article 14 of the International Covenant on Civil and Political Rights; as it’s not conditioned in the military courts and created only for the armed forces officers despite the fact that they’re not legally qualified. Military courts independence is deeply flawed as it holds many violations since it’s a part of the General Administration of the Military Justice and one of the Supreme Command of the Armed Forces. In addition, its judges are appointed for a period of 2 years, a renewable period upon a decision by the Minister of Defence; which contradicts the dismissability of the judges.

Martial Law has also breached the general principles stipulated in the Code of Criminal Procedure as it hasn’t determined a maximum time limit of preventative detention. It hasn’t considered the text stipulated in the Code of Criminal Procedure in relation to default judgments in terms of the trial procedures nullity, the sentence if a condemned turned himself in or if an individual was arrested before the end of the trial, which requires a re-trial in his presence. Therefore, civilians’ referral to military courts is a violation of the fair trial guarantees confirmed by the international charters on human rights. In this context, below are some notes related to the Martial Law:

First note: Military tribunals are a constant violation of the judicial independence and the right to a fair trial Civilians’ referral to military courts have become semi-legal, especially after deciding on the lawfulness of the Presidential Decree No. 375 of 1992, stipulating the referral of accused individuals in the two cases No. 396 and No. 391 of 1002 Supreme State Security (“Returnees of Afghanistan” and “Jihad Organisation”) to military justice by the administrative justice. Lawyers of the condemned instituted a lawsuit before the administrative court against the President, demanding the suspension of the referral decree. In the hearing of 8/2/1992, the Administrative Justice Court agreed on the suspension of the decree, and all related consequences. The State Lawsuits Authority, representing the government, responded by instituting lawsuit No. 515 demanding the cancellation of the Administrative Justice Court’s decree on the suspension. Moreover, the government requested from the Supreme Constitutional Court the interpretation of Article 6 of the Martial Law stipulating that the provisions of this law are applicable on the crimes stipulated in the first and second chapters of the second book of the penal code and the subsidiary crimes to the military courts by virtue of a presidential decree, and in light of state emergency, the president has to right to refer to the military courts any of the crimes punishable by the Criminal Code of any other law. The main controversial point between both sentences (the Administrative Justice Court and the Supreme Administrative Court) is the interpretation of “any crime”. The Administrative Justice Court interpreted this as referring to crimes determined by the legislator based on the type of crime committed, whether determined abstractly or specified after being committed. The Supreme Administrative Court interpreted the sentence as referring to all crimes punishable by the law whether determined abstractly or specified after being committed. The Supreme Constitutional Courts’ response clarified that the sentence “any crime” mentioned in Article 6 of the Martial Law as including crimes determined based on their essence and type.

Second note: Appointing the military tribunals’ judges contradicts the independence of the judiciary Military courts are restricted to armed forces officers subject to the Military Justice Administration. It is one of the armed forces administrations subject to the Minister of Defence. Judges of the military tribunals are appointed for a period of 2 years, a renewable period upon a decision by the Minister of Defence solely in accordance with law 59 of the Martial Law. This contradicts the principle of dismissability of the judges, as well as the principle of their independence and non-influence over their military sentences. The sentences issued by the military courts are subject to the President’s authority or whomever he delegates among the armed forces to validate the sentences. The officer who validates the sentence may validate it, mitigate the punishment, dismiss the case or refuse the issued sentence and ask for a retrial; which contradicts the binding force of the sentence.

It should be noted that this contradicts principles 1, 2, 3 and 4 of the basic principles of the independence of the judiciary19, confirming that the judges, as a body or individuals, shouldn’t be exposed to any intervention whether by the state or civilians. The state shall guarantee this independence in its laws and it shall be respected by all governmental organisations. The state shall as well guarantee having functional and structural guaranties against any political and non-political intervention in bringing justice.

Third note: Military justice breaches the general principles stipulated by the Code of Criminal Procedure Martial Law also breaches the general principles stipulated in the Code of Criminal Procedure in relation to default judgments in terms of the trial procedures nullity; the sentence if a condemned turned himself in; or if an individual was arrested before the end of the trial (which requires a re-trial in his presence or repeating the procedures after the sentence issuance). These procedures are different than the ones adopted by Martial Law which doesn’t stipulate the nullity of procedures in cases of default judgments, obliging the condemned by default to submit a reconsideration petition which the military court may accept or refuse.

Additionally, Martial Law breaches the Code of Criminal Procedure as it does not stipulate a maximum time limit of preventative detention while the Code of Criminal Procedure does. The referral of the accused civilians to military courts represents an obstacle in the way of the ordinary court practicing its competency over the occurrences committed by civil citizens. It also represents an aggression on the right of the accused person to appear before a non-military judge, and an assault against the society’s right to preserve judicial independence and enhance its due functions. 19 For details, review http://www1.umn.edu/humanrts/arab/b050.html

Fourth note: Incompetency of military judges as judges in civilians’ trials The Egyptian Constitution acknowledged the right of every citizen to resort to civilian judges. It also confirmed the independence and non-dismissability of judges who shouldn’t be subject to any influence in their judiciary. No authority shall have the right to intervene in any case or justice affairs. Article 67 of the Military Justice Law confirmed that the judges shall not be dismissed nor transferred20 . Article 38 of the Military Justice Law stipulated that whoever handles justice affairs must have a law degree21.

Based on the above, we conclude that the judge must meet a set of criteria in order to be qualified as a judge: impartiality, independence, immunity and qualification. However, we find that military judges do not meet any of these requirements – they are not required to have a law degree as the Martial Law has required the necessary legal qualification for the Director of the General Administration of the Military Justice only (article 2 of the law), without requiring the same for the rest of the judges of members of the military justice. In addition, the military judge is subject to all disciplinary regulations set forth in the military service law by virtue of article 57 of the Martial Law. The military judge is dismissible every two years in cases of non-renewal, or upon a decision by the Ministry of Defence by virtue of Article 59 of the Martial Law.

Fifth note: Military justice violates the defence’s right in many cases The rights of the accused individual to be provided with enough time to prepare his defence has been widely violated in many cases due to the extremely fast method adopted in the examination of different cases by the military courts. During the cases examination before military courts, lawyers repeat their defence complaints over and over, unable to keep up with the speed of the court in its adjudication. The sessions are extremely short, and there have been cases where a prison sentence was issued within 72 hours from the time of arrest.

This hastiness violates the guaranties required for preparing the legal defence and submitting it completely allowing the execution of all allegations and submitting different defences. It also violates the provisions of Article 14 of the International Covenant on Civil and Political Rights which stipulates in one of its clauses the right to have adequate 20 Article 67-justice and Public Prosecution personnel-except for the prosecution assistants-are immune to dismissal. The -------consultants at the Court of Cassation may not transferred to the Courts of Appeal or Public Prosecution unless voluntarily 21 The conditions of those working as judges are as follows: 1. He must have the nationality of the Arab Republic of Egypt [ARE] and all civil qualifications. 2. He must be no less than 30 years old in case of appointment at Courts of Appeal and no less than 43 years old in case appointment at the Court of Cassation. 3. He must have a law license from an ARE law faculty or an equivalent foreign degree and he must – finally – pass an adjustment exam according to laws and regulations related to this. 4. He mustn’t have a conviction from a court or a disciplinary board for something indecent even if he is ultimately acquitted. 5. He must be good-mannered and well-reputed.

time for the preparation of the defence and to communicate with counsel of one’s own choosing. Many lawyers are not able to obtain full copies of case files and do not have enough time to prepare their defence. Moreover, Martial Law Article 31 stipulates that the investigation procedures and relevant results are deemed secret, and therefore prosecution members, the judicial arrest members, their expert assistants and others related to the investigation or preparing it based on their functions or jobs shouldn’t disclose these secrets. This violates the defendants right to be informed.

Sixth note: Inefficiency of military justice in putting an end to roguery, criminal violence and public facilities destruction Many believe that military justice is highly efficient in facing and putting an end to crimes due to its fast and deterrent measures. However, military courts have issued hundreds, if not thousands, of sentences in relation with many cases, adopting rigorous punishments in many instances, but they have proven inefficient. For example, the sentence of case No. 970, 971 of 2011 military misdemeanours in Alexandria against a number of citizens accused of construction without a license, was imprisonment for 5 years; but the unlicensed construction phenomenon didn’t stop.

Other sentences of 10 years and death sentences against a number of individuals accused of roguery and riots have been implemented, yet these roguery acts, bribes and spreading fear in the citizens’ never ceased. This is proof that all cases should be referred to civil justice instead of military justice for their much more competent measures in the judiciary system. Some say that military justice is one of the most important plenary justice images, however, the speed of case adjudication isn’t the only standard confirming the fairness and validity of the court. Indeed, hastiness may represent in most cases a violation of the defence’s right and the chance to prove the innocence of the condemned. A number of individuals accused by the military justice system and their families allege that the accusations against them by police forces are false due to previous litigations, or a means to prove that police men are performing their duties. Some defendants alleged that their cases were false and were used as an excuse to have torture inflicted upon them, with many claiming that they were not able to prove their innocence considering the speed of cases adjudication, and inability to bring witnesses. They also claim that the courts do not consider the evidences they presented. An example of this is Case No. 1103, where the military court refused to consider the testimonial of the denial witness of the case as he doesn’t live in the same property despite living in the neighboring property and witnessing the incident in question.

Based on the above, it is clear that the military courts do not abolish the crimes condemning its perpetrators and it doesn’t represent a scene of the plenary justice. Thus, all civilians must be referred to a civil judiciary system. In light of the national legal frame regulating military justice, we can say that there are many preventative obstacles deeming military justice as an independent natural justice. Civilian’s referral to military courts is thus truly one of the most dangerous violations of the guarantees of the right to a fair trial. In general, we can say that civilians’ referral to military courts deny the right to a fair trial stipulated by the international charters on human rights. Based on the above, we conclude the following:

1 - The right not to be arbitrarily arrested or detained The International Covenant on Civil and Political Rights stipulates the right not to be arbitrarily arrested or detained or for the defendant to be deprived one of his freedoms unless for reasons stipulated by the law and according to the procedure stipulated in it. The Human Rights Committee has mentioned that the term “arbitrary” doesn’t refer to the procedure “violating the law” only, rather it shall be explained in details to include other elements such as inadequacy, tyranny and the element of surprise.

2 - The right to notify the arrested individual’s family of the incident Every defendant must have the right to notify their family of their arrest as rule 92 of ‘The Standard Minimum Rules for the Treatment of Prisoners’ stipulates that the condemned shall be allowed to notify his family of his detention immediately and shall be provided with all reasonable facilities to contact and receive his family and friends.

3 - The right to reconsider the arrest Everyone shall have the right to be tried before the courts after arrest in order to reconsider the detention legally, known in some countries as “the right to be present” which is a right explicitly stipulated in the different international charters. The goal is to adjudicate the presence of legal reasons justifying the accused’s arrest and whether his detention before the court is necessary. It also aims at guaranteeing the safety of the accused and not subjecting him to human rights violations.

4 - The right to presumption of innocence Article 11 of the Universal Declaration of Human Rights stipulates that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”. This right is stipulated in Article 14 of the International Covenant on Civil and Political Rights highlighting the importance of the innocence presumption since the moment a person is arrested; until the incrimination is confirmed in the final phase of the appeal.

5 - The right to be promptly brought to justice Article 9 of the International Covenant on Civil and Political Rights stipulates that: â&#x20AC;&#x153;Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be releasedâ&#x20AC;?.

6 - The right to a public trial Regarding attendance of representatives of human rights organisations in court sessions in order to ensure their integrity, Article 14 of the International Covenant on Civil and Political Rights guarantee the right to a public trial as this right is an essential element of a fair trial. The audience and media shouldnâ&#x20AC;&#x2122;t be forbidden from attending the court partially or totally unless in exceptional circumstances, such as disclosure of some information may represent a real danger to State security.

7 - Providing the defence with enough time and facilitations Everyone accused of a criminal charge shall be provided with enough time and facilities to prepare the defence himself; contact a lawyer of his choice, and guarantee his right to have a legal representative. The defendant must have a defence and a chance to prove his innocence using all available means according to the text of Article 14 of the International Covenant on Civil and Political Rights.

8 - The independence of the judiciary The court ruling will not be deemed fair if the judge issuing the sentences and punishments lacks impartiality and independence. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights acknowledge that impartiality is an absolutely essential condition to hold a fair trial.

Conclusion and recommendations 1.

Cancelling all exceptional laws and courts while guaranteeing military justice independence and the right to a fair trial.

Putting an immediate end to the civilians’ referral to military courts and the referral to civilian courts. The Martial Law No. 25 of 1966 and its amendments shall be amended to restrict the-military courts to the trial of military personnel accused of military crimes only, and crimes occurring inside military camps and barracks. Article 48 of the law which stipulates that military-justice has sole competence to determine its jurisdiction must be cancelled.

The referral of all cases sentenced militarily, and the cases still under examination of the-military justice, to the public prosecution or civilian courts. All court procedures must then be repeated in accordance with the Egyptian Criminal Code so that the accused may enjoy their-right to guarantee their adequate legal defence.

The immediate release of civilians against whom military court sentences have been issued. A Presidential Decree must be issued to cancel the sentences issued by the military courts against civilians according the law of affirmance of judgments stipulated in the Military Justice Law Articles 98-116 and especially clause 4 of the Article 99 of the aforementioned law, provided that it includes the decree of cancellation of all judgments issued by the military courts against civilians from February 2011 until now.

In this context, the United Nations Working Group on Arbitrary Detention has determined clear rules about the military courts as it deemed that the following principles shall be taken into consideration in case of the continued resort to military courts: •

The Military courts shall be unqualified to try civilians.

•

The Military courts shall be unqualified to try military personnel in cases where the-victims are civilians.

•

This stance of the African Commission on Human and Peoples’ Rights is reflected in the guidelines on the right to a fair trial and legal aid in Africa issued by the commission in its second report stating:

•

The purpose of Military Courts is to determine offences of a pure military nature-committed by pure military personnel.

•

The Military Courts should not, in any circumstances whatsoever, have jurisdiction over civilians. Similarly, Special Tribunals should not try offences that fall within the jurisdiction of regular courts.