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International Coalition for Freedoms & Rights
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Mohammed Morsi From Democratic Rule to Arbitrary Trials The International Coalition For Freedoms and Rights (ICFR) Introduction
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1. The crisis in Egyptian judiciary and its lack of independence following the military coup
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2. The Constitutional and legal basis for presidential accountability.
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3. A chronology of the legal status of Dr. Mohammed Morsi and the charges against him.
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4. The list of articles from Egypt’s Penal Code which have been invoked in the cases brought against Dr. Mohammed Morsi:
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5. The human rights violations committed against President Mohammed Morsi as defined by international and national laws.
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6. Legal defense in the case of the violations committed against Dr.
Morsi
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Mohammed Morsi From Democratic Rule to Arbitrary Trials The International Coalition For Freedoms and Rights (ICFR)
Introduction: Few would disagree that post-25 January Revolution Egypt was marked by an increased respect for the rule of the law and the judiciary. No one was above the law regardless of how high up in government they were. The president himself down to the most junior official in the country could be held accountable for any minor transgression. It was the kind of judicial utopia Egyptians had longed and struggled for over decades. The first president to be held accountable was Hosni Mubarak who had ruled Egypt for more than three decades. Mubarak stepped down following the 25 January 2011 Revolution and was subsequently detained on charges of corruption and abuse of power. It was the first time in modern Egyptian history that a president was prosecuted for crimes against the Egyptian people, inspiring a great sense of hope for the future of the country. But these great hopes were short-lived. On the 3rd of July 2013, the then minister of defense, Abdulfattah Al-Sisi overthrew Egypt’s first democratically-elected president in a bloody coup. President Morsi and most of his advisors and senior staff were illegally arrested and taken to undisclosed locations. The new military regime then proceeded to launch a criminal investigation into crimes and violations allegedly perpetrated by Mohammed Morsi. Soon the deposed president found himself on trial for bogus charges. The scenes of the trials of the two presidents might seem at first to be quite similar but a closer look reveals fundamental differences. President Mubarak was forced to step down in response to a popular revolution that demanded his resignation but President Mori was removed by a bloody military coup that violated the constitution, the law and all international conventions founded on respect for democratic rule. As such, the legal proceedings instituted by the military coup regime against president Morsi and his presidential team cannot be considered within the context of regular legal measures against someone who had committed a crime or a felony. Customary international law and treaty law stipulate that heads of state enjoy functional immunity from prosecution that effectively prohibits prosecuting a head of state while s/he is still in power and even after they cease to perform acts of state. This immunity is founded on the principle of respect for sovereign equality and state dignity.
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International laws have stressed the important role that heads of states play on both the national and international levels. On the national level, the head of state is the link between the three branches of government, the guardian of human rights and the one entrusted with ensuring that all citizens remain politically and economically safe. S/he is also tasked with safeguarding the notions of justice and equality. On the international level, he is responsible for the state’s foreign interests and its relationship with other countries and international organizations. Presidents hold the key to war and peace. Only they can declare a war and bring about scourge and destruction to their people or alternatively seek peace and security for his people. The president is a symbol of his/her country’s sovereignty and independence and has an important role to play in shaping foreign policy and maintaining regional peace and security which explains why Customary Law sought to maintain the dignity of this post. Presidential accountability in Egypt is governed by very strict legal dictates that preserve the uniqueness of holding a head of state responsible for his actions, otherwise it would not be much different from putting a criminal on trial for committing a felony. This report aims to shed light on the legality and constitutionality of the procedures instituted against Dr. Mohammed Morsi. The first part examines the judiciary and the office of the public prosecution (which acts as a public attorney) and the degree of their autonomy, especially in view of the fact that they were active participants in the military coup. This renders their rulings highly questionable and, most often, illegal. The second part examines whether a president could be held accountable in accordance with the Egyptian constitution and various laws which all stress the special nature of the procedures that must be adopted against a head of state when held accountable for crimes committed while he was in power. The part explains the conditions under which a head of state could be investigated and held accountable and the procedures that must be followed. The third part provides an overview of the events that accompanied the trial(s) of President Mohammed Morsi who was deposed by a military coup, the charges against him, and the various stages they went through. The fourth part offers an analysis of the charges against Dr. Morsi in accordance with Egyptian penal code. The fifth part lists the violations committed against Dr. Mohammed Morsi during the military coup and his subsequent arrest by the army. These violations render all legal proceedings instituted later illegitimate and arbitrary. The last part offers an overview of the legal and constitutional procedures that should have been observed during the investigations and subsequent trial of the deposed president. 6
1. The crisis in Egyptian judiciary and its lack of independence following the military coup (1) It did not occur to observers that the judiciary which was the last bastion of freedoms and human rights under president Hosni Mubarak’s rule could end up becoming a tool of repression in the hands of a post-military coup Egypt. The judiciary plays a very important role during periods of political transition since it is the only safeguard against human rights violations. An independent judiciary ensures that basic freedoms, human rights and dignity remain fully protected from the transgressions of the government and security forces. Conversely, the judiciary can be transformed into a tool of repression and persecution by the authorities. It became increasingly evident that the Egyptian judiciary had become a cornerstone of the new military regime following the military coup that ousted President Mohammed Morsi on the 3rd of July 2014. The President of the Supreme Constitutional Court, Adly Mansoor ,was appointed interim president by the then minister of defense who orchestrated the military coup. Thus, the man who was supposed to protect the rule of the law became complicit in the illegitimate military coup. This was a turning point in the history of Egyptian judiciary and marked the juncture at which the new military regime succeeded in subjugating the judiciary and the government in addition to taking full control of the legislative branch following the dissolution of Egypt’s democratically-elected Shura Council. From that point onwards, the judiciary became instrumental in protecting the police and army from prosecution and cracking down on all forms of political dissent by locking up thousands of Egyptians. Historically, the Egyptian judiciary may have had its problems but it somehow maintained a certain degree of independence from the executive branch. The military regime wrecked any form of autonomy and placed the three branches of government under its direct control.
2.The Constitutional and legal basis for presidential accountability. Holding the president accountable in accordance with the 1971 constitution which was revoked after the 25 January 2011 revolution. According to the 1971 Constitution, the president enjoys real and effective powers some of which he exercises through his ministers. Although the president enjoys immunity from prosecution, article (85) stipulates that,
(1) For more details, refer to the International Coalition for Freedoms and Rights (ICFR) report about the politicization of Egyptian judiciary.
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“Any charge against the President of high treason or of committing a criminal act shall be brought upon a proposal by at least one-third of the members of the People’s Assembly. No impeachment procedure shall be initiated except upon the approval of a majority of two thirds of the Assembly members. The President shall be suspended from the exercise of his duties as from the initiation of the impeachment procedure. The Vice-President or, should there be no Vice-President, the Prime Minister shall temporarily assume the Presidency, while abiding by the provisions of the second paragraph of Article 82 until a ruling on the impeachment is issued. The President of the Republic shall be tried by a special tribunal set up by law. The law shall also organize the trial procedure and define the penalty. If he is found guilty, the President shall be relieved of his post, without prejudice to other penalties.” It is evident from article (85) that only the People’s Assembly has the authority to impeach the president in accordance with specific rules and procedures. The Egyptian constitution also extended immunity to the president to include all acts of state carried out by him, thus he can only be held accountable in the following cases: High Treason: This is one of the crimes set forth in Articles 77-80 in the Egyptian penal code. Committing a criminal act: This includes murder, manslaughter or other types of criminal acts. This is the Substantive part of article 85 of the 1971 Egyptian Constitution which was revoked by the 25 January 2011 revolution. The procedural aspect is two-pronged: Firstly, one-third of The People’s Assembly must approve a proposal to bring charges against the president if he commits any of the aforementioned crimes. Secondly, no impeachment procedure shall be initiated except upon the approval of a majority of two thirds of the Assembly members. The President shall be suspended from the exercise of his duties as from the initiation of the impeachment procedure. The President of the Republic shall be tried by a special tribunal set up by law. The law shall also organize the trial procedure and define the penalty.
The criminal responsibility of the Egyptian head of state used to be governed by law 247 for the year 1956 which regulated the rules and procedures of the trial of the president. It described how a tribunal should be formed, the prosecution and trial procedures and the penalties that can be imposed. The tribunal should be commiserate with the status of the person being brought to trial even if the crime was not committed while carrying out an act of state. It is worth noting that despite the existence of a constitutional provision that sets forth the procedural and substantive aspects of the president’s criminal responsibility, the law was never implemented since 1956. When president Mubarak was brought to trial after the 2011 revolution, he was tried in accordance with the provisions of the Egyptian penal and criminal codes like any other citizen.
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Presidential accountability in accordance with the 2012 Egyptian constitutions suspended after the military coup. Article (152) of the suspended 2012 Egyptian constitution, which was replicated in article 159 of the 2013 Constiution stipulates that: “The President of the Republic is impeached for felony or high treason if at least a third of the members of the House of Representatives sponsor a motion of impeachment, and the House passes the motion with a two-thirds majority. As soon as the impeachment is in effect, the President of the Republic stops all work. This stoppage is treated as the result of a temporary hindrance that prevents the President of the Republic from assuming his responsibilities. It ends once the verdict is announced. The President of the Republic is to be tried before a special tribunal headed by the President of the High Council of Judges and staffed by the senior deputies of the President of the High Constitutional Court and the State Council, and the two most senior presidents of the appeals courts. The Public Prosecutor assumes the role of prosecutor. If the most senior person is unable to play his part, the person next in seniority takes his place. The law specifies the procedures of the trial as well as the sentence. If found guilty, the President of the Republic is relieved of his duties. This does not preclude additional penalties.�
Presidential accountability in the 2013 post-coup Egyptian constitution According to article 159 of the 2013 constitution: “A charge of violating the provisions of the Constitution, high treason or any other felony against the President of the Republic is to be based on a motion signed by at least a majority of the members of the House of Representatives. An impeachment is to be issued only by a two-thirds majority of the members of the House of Representatives and after an investigation to be carried out by the Prosecutor General. If there is an impediment, he is to be replaced by one of his assistants. As soon as an impeachment decision has been issued, the President of the Republic ceases all work; this is treated as a temporary impediment preventing the President from carrying out presidential duties until a verdict is reached in the case. The President of the Republic is tried before a special court headed by the president of the Supreme Judicial Council, and with the membership of the most senior deputy of the president of the Supreme Constitutional Court, the most senior deputy of o the president of the State Council, and the two most senior presidents of the Court of Appeals; the prosecution to be carried out before such court by the Prosecutor General. If an impediment exists for any of the foregoing individuals, they are replaced by order of seniority. The court verdicts are irrevocable and not subject to challenge. 9
The law organizes the investigation and the trial procedures. In the case of conviction, the President of the Republic is relieved of his post, without prejudice to other penalties.�
3. A chronology of the legal status of Dr. Mohammed Morsi and the charges against him. Friday, 28 January 2011 On that day, designated the Friday of Anger, hundreds of thousands of demonstrators took to the streets to demand the resignation of President Hosni Mubarak. Among many other activities, demonstrators stormed several prisons around the country including the notorious Wadi Al-Natrun prison which was used to incarcerate political prisoners. On that day, 34 Muslim Brotherhood leaders, including the future president Mohammed Morsi, were freed in addition to members from Hamas and Hezbollah.
Sunday, 10 February 2013 An inquiry is launched into the escape of prisoners from Wadi Al-Natrun prisoners. A report is presented by the director of prisons at the ministry of interior about the storming of Wadi Al-Natrun and the escape of political prisoners, including Dr Mohammed Morsi and several Muslim Brotherhood members.
Sunday, 3 March 2013 Major-general Essam Al-Qossi, a former warden at Liman 430 at Wadi Al-Natrun prison testifies before the Ismailia Misdemeanor Appeals Court that armed Bedouins stormed the prison and freed all Muslim Brotherhood and Jihad members.
Sunday, 31 March 2013 The public prosecutor refuses to hear from more witnesses. Sources close to the judge reveal that he came under a lot of pressure from “senior officials� to end the trial as quickly as possible. The judge orders major-general Mohammed Naji, assistant to the minister of prison for prison affairs, to attend the court session and bring along a list of all the prisoners who escaped on the 28th of January 2011.
Sunday, 28 April 2013 Major-general Abdulkaliq Nasser, a former warden at Wadi Al-Natrun, testifies before the Ismailia Misdemeanor Appeals Court that the prison was attacked by 80 armed men on the morning of the 30th of January 2011. The attackers cut off electricity and helped the prisoners escape. On the 30 of January, hundreds of cars carrying prisoners who had shot indiscriminately at security forces arrived at Wadi Al-Natrun. 10
Sunday, 12 May 2013 Lieutenant colonel Ahmed Abdulfattah, former chief investigator at Wadi Al-Natrun, testifies before Ismailia Misdemeanor Appeals Court that Muslim Brotherhood leaders were brought to the prison on the 27th of January following the country-wide protests that took place on the 25th of January 2011. He denies that the armed men who had stormed the prison on the night of the 30th of January had specific prisoers in mind because the cells had prisoners from various Islamist groups (Salafis, Takfir wa Hijra, the Muslim Brotherhood).
Thursday, 2 May 2013 Security and judicial sources reveal that security and government officials submitted a report about Wadi Al-Natrun events including 7 pages of testimonies from officers and officials at the ministry of interior recounting what happened during the attack on the prison.
Saturday, 22 June 2013 Violent clashes break out between revolutionary elements and a number of Muslim Brotherhood members following the court’s decision to announce its ruling the following day. Security forces break up the clashes in which scores were injured, including a police officer, some police officers and several civilians.
Sunday, 23 June 2013 Ismailia Misdemeanor Appeals Court acquits one of the accused in the case, AlSayyed Attieh, and referred his papers back to the public prosecutor. The court also issued a warrant for the arrest of Sami Shihab, a Hezbollah leader, and Hamas leaders Mohammed Al-Hadi, Ayman Nofel, and Ramzi Muwafi.
Sunday, 30 June 2013 Thousands of Egyptians take to the streets to demand the ousting of Dr. Mohammed Morsi and his government and hold early presidential elections.
Wednesday, 3 July 2013 Minister of defence Abdullfattah Al-Sisi leads a military coup that ousted President Morsi and his government. Morsi and his team are arrested and taken to undisclosed locations. The constitution is suspended and the Shura Council is dissolved.
Thursday, 11 July 2013 President of the Ismailia Misdemeanor Appeals Court, Khalid Mahjoob, hands the public prosecutor all the documents pertaining to the escaped prisoners. 11
On the same day, Egypt’s prosecutor general Hisham Barakat referred the case to the Supreme State Security Prosecution for further investigation.
Monday, 22 July 2013 The investigation judge of the Cairo Appeals Court Samir Hassan, who has been tasked with launching an inquiry into prisoners’ escape from Wadi Al-Natrun, decides to remand Dr. Mohammed Morsi in custody for 15 days. He also orders the arrest of 19 Muslim Brotherhood leaders who had taken part in the prison break, including Al-Sayyed Ayyad, Ibrahim Hajja, Mohammed Sa’ad Kitatni, Essam ElEryan, Muhi Hamed, Subhi Saleh, Hilmi Al-Jazzar and others. He ordered the Ministry of interior to prepare a list of the 14 other defendants whose names were mentioned in the escape inquiry.
Monday, 19 August 2013 The public prosecutor ordered that Dr. Mohammed Morsi be remanded in custody for 15 pending the investigation after he was quizzed at an undisclosed location about the violence the erupted outside Al-Itahidyya Palace on the 5th of December 2013 during anti-government protests following the constitutional declaration announced in November 2012 by president Morsi.
Sunday, 8 September 2013 Chief investigator heading the inquiry into the interfering in the work of the judiciary Tharwat Hammad, ordered that Dr. Morsi be remanded in custody during which Dr. Morsi was taken to another undisclosed location by judges Ayman Farhat and Baher Baha’ who interrogated him on charges of ‘offending the judiciary’. The charges come in response to Dr. Morsi’s accusation that 22 judges were complicit in rigging the elections that were held in 2005, and his alleged attempts to influence the criminal department looking into the case against former prime minister lieutenant general Ahmed Shafiq and others in the case known as the “Pilots’ Lands”.
Thursday, 31 October 2013 The Supreme State Security Prosecution ordered that Dr. Morsi be remanded in custody for 15 days after he was quizzed by prosecuter Thamer Al-Farjani. Dr. Morsi was still being held at an undisclosed location. The interrogation team was taken in a helicopter to where Dr. Morsi was held and asked him questions about allegedly “communicating with a foreign power” in a reference to Hamas.
Monday, 4 November 2013 Dr. Morsi appears for the first time since the coup and his arrest by the army. His appearance came as part of the trial into the killing of demonstrators outside Al-Itahadia Palace.
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Monday, 18 November 2013 Armed men from Ansar Beit Al-Maqdis militant group kill the chief detective investigating the Wadi Al-Natrun case, Mohammed Mabrook.
Wednesday, 18 December 2013 Prosecutor general Hisham Barakat refers Dr. Mohammed Morsi and a number of Muslim Brotherhood leaders to trial on charges of “providing intelligence to foreign powers” in reference to Hamas. The other leaders are Supreme Guide Mohammed Badie, his two deputies Khairat Al-Shatir and Mahmoud Izzat, in additoni to Sa’ad Katatni, Mohammed Al-Beltaji, Essam ElErian and others.
Saturday, 21 December 2013 A statement released by the chief investigator announces that Dr. Mohammed Morsi and 129 others, including the Muslim Brotherhood Supreme Guide Mohammed Badie, have been referred to the Criminal Court.
Thursday, 2 January 2014 Cairo Court of Appeals presided over by Sha’ban Al-Shami set Thursday the 28th of January as the date for reviewing the Wadi Al-Natrun case.
Sunday, 19 January 2014 Cairo Court of appeals refers Dr. Mohammed Morsi and 24 other activists, including Islamists and Liberals, to the Criminal Court on charges of ‘offending the judiciary with the aim of inciting hatred’ over statements the defendants made on social media and in the press. No date for the trial is set.
Tuesday, 28 January 2014 Trial of Dr. Mohammed Morsi and 130 others from the Muslim Brotherhood, Hamas and Hezbollah movements begin in Wadi Al-Natrun case.
Sunday, 16 February 2014 Cairo Criminal Court convened at the Police Academy and presided over by Sha’ban Al-Shami beings its sessions in the case known as “Exchanging intelligence with Hamas.”
Tuesday, 13 May 2014
The investigating judge in the ‘Rigged 2012 Presidential Elections’ case orders that Dr. Mohammed be remanded in custody for 15 days in the case which had been under investigation for almost 7 months, according to official sources. 13
Wednesday, 28 August 2014 Prosecutor general Hisham Barakat orders that Dr. Mohammed Morsi be remanded in custody for 15 days pending a new investigation conducted by the Supreme State Security Prosecution presided over by Thamer Al-Frajani. The latter is the first lawyer in case no. 315/2014/Supreme State Security Prosecution in which Dr. Mohammed Morsi, his chief of staff, private secretary and others are accused of leaking national secrets to Qatar.
Monday, 1 September 2014 The Prosecutor general orders that Dr. Mohammed Morsi be referred to the Criminal Court on charges of leaking national secrets to Qatar. The decision also included a number of his form staff members.
4. The list of articles from Egypt’s Penal Code which have been invoked in the cases brought against Dr. Mohammed Morsi: Article (39) The following shall be considered a perpetrator of a crime: First: A person who commits an offense, alone or in complicity with others. Second: A person who aids, abets, counsels, commands or procures the commission of a crime. This shall apply to performing all or part of the offense in question. However, if certain conditions concerning one of the perpetrators necessitate changing the description of the offense or penalty in relation to him, this shall not extend to the other perpetrators. The same shall apply if the description changes in terms of the offese perpetrator’s intention or the manner in which he learned of the offense.
Article (40) The following shall he considered an accomplice in the offense: First: Any person who directs another to commit an offense if the offense takens place on the basis of that directive. Second: A person who agrees with another to commit and offense and the offense takes place on the basis of such agreement. Third: A person who provides the perpetrator with a weapon, an instrument or the such to aid in the commission of the offense or knowingly helped in any other way that facilitated and aided in the commission of the offense.
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Article (43) A person who participates in the commission of a crime shall be punished, even if it is not the one he planned to commit if crime that is actually committed is the outcome of an instigation, agreement, aiding and abetting which had taken place prior to the commission of the offense.
Article (45) An attempt is defined as the actual attempt to perpetrate an offense, a felony or a misdemeanour .Intending or preparing to commit an offense shall not be considered an attempted felony or misdemeanour.
Article (46) An attempted felony shall punishable by the following unless otherwise provided for by the law: - Life of hard labour, if capital punishment is the penalty for the offense. - Temporary hard labor, if life of hard labour is the penalty for the offense. - Temporary hard labor for a period not exceeding half the maximum penalty provided for in the law or imprisonment, if temporary hard labor is the penalty for the felony. - Imprisonment for a period not exceeding half the maximum penalty, or detention, if the temporary hard labor is the penalty for the felony. - Imprisonment for a period not exceeding half the maximum penalty, or detention, if imprisonment is the penalty for the felony.
Article 86 Terrorism shall mean all use of force, violence, threats or terror to carry out an individual or collective criminal act with the aim of disturbing public order, or exposing the safety and security of society to danger, if this results in in hurting other persons, terrorizing them, exposing their lives, freedoms and security to danger, harming or occupying the environment, property, communication, funds, private and public property, preventing authorities, educational facilities and places of worship from carrying out their duties, or disrupting the implementation of the constitution, laws or statues.
Article (88) bis Any person who holds another hostage or arrests him/her in cases other than those authorized by the law, for the purpose of putting pressure on the authorities or to obtain a benefit therefrom, shall be punished with temporary hard labour. The same penalty applies to whoever helps perpetrators mentioned in this article to escape.
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Permanent hard labor shall be imposed if the perpetrator resorts to the use of force, violence, threats, terrorism, a false identity, an army or police inform, a false government warrant or order, or if the person’s actions resulted in the types of injuries listed in articles 240 and 241 of the present law, or if the person resists authorities while performing their duties in securing the release of a hostage or the arrest of a person. Capital punishment shall be the penalty if the action results in the death of a person.
Article (88) bis A Without prejudice to any stricter penalty, temporary hard labor shall be the penalty inflicted on whoever assaults those assigned the task of implementing of the provisions of this Section because of such implementation, or whoever resists such implementation by force, violence, or threat thereof during the performance of the duty of freeing a hostage or arresting a person. Permanent hard labor shall be the penalty if the assault or resistance results in a permanent disability, and the felon was carrying a weapon, or has abducted or detained any of those assigned the implemenation of the provisions of this Section, or his/her spouse, or any of ancestors or descendants
Article (88) Bis C The provisions of Article (17) of this law shall not apply when issuing a conviction in connection with one of the crimes provided for in this Section, except the cases in which the law provides for imposing capital punishment or life of hard labor. The capital punishment penalty may be reduced to life of hard labor, and life of hard labor may be reduced to temporary hard labor of not less than ten years.
Article (88) Bis E Exemption from the penalties prescribed for the crimes referred to in this Section, shall be granted to whoever notifies the administrative or judicial authorities of the offense before its takes place or before the investigation begins. The court may also grant the exemption from the penalty if the notification is made after the commission of the crime and before the investigation begins. It may also grant this exemption if the perpetrator’s statements enable the authorities during the investigation to arrest the other perpetrators of the crime, or the perpetrators of a crime similar to it in type and gravity.
Article (138) Any person who is legally arrested and then escapes shall be punished by detention for a period not exceeding six mouths or afine not exceeding two hundred pounds.
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If the person had already been convicted and ordered to go to jail, he shall be punished by detention for a period not exceeding two years or a fine not exceeding five hundred pounds. Additional penalties apply if the escape in any of the two previous cases, is accompanied by the use of force or the commission of another crime.
Article (142) Whoever enables or assists a person under arrest to escape, or facilitates the escape in other than the aforementioned cases, shall be punished according to the following provisions: If the person under arrest is sentenced to death, the penalty shall be hard labor or imprisonment for a period of three to seven years. If the person under arrest is sentenced to life of hard labour or temporary hard labor, or is accused of a crime punishable by death, the penalty shall be imprisonment for a period of three to seven years. In all the other cases, the penalty shall be imprisonment.
Article (144) Whoever, personally or with the aid someone else, hides a person who has escaped following his/her arrest, or is charged with a felony or misdemeanor, or for whom a warrant of arrest has been issued, and also whoever knowingly assists that person in any way whatsoever, to escape or flee the judiciary be punished according to the following provisions: If the person who has been hidden or assisted to hide, or to escape from the judiciary, is sentenced to death, the penalty shall be imprisonment for a period of three to seven years. If he is sentenced to life of hard labour or temporary hard labor, or is charged with a crime punishable by death, the penalty shall be detention. In the other cases, the penalty shall be detention for a period not exceeding two years. These provisions shall not apply to the husband or wife of the person hidden or assisted to hide or to escape from the judiciary, nor to his parents, grandparents, children, and grandchildren.
Article (230) Premeditated murder is punishable by death.
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Article (231) Premeditation is defined as planning the act beforehand in a manner that shows willful intent to commit a misdemeanor or felony, of which the purpose is to harm a certain person or any undefined person he finds or comes across whether that purpose is conditional upon the incidence of some event or dependent upon a certain condition.
Article (234) The crime of manslaughter shall be punishable by life of hard labour or temporary hard labour. However, the perpetrator of this felony shall be sentenced to death if manslaughter is preceded, accompanied , or followed by another offense. If the intent thereof is to prepare for committing or facilitating a misdemeanor, or assisting its perpetrators or their accomplices to escape or avoid the penalty, the penalty shall be the death sentence or life of hard labour. The penalty for committing a crime as part of a terrorist act shall be the death sentence.
Article (235) Accomplices in a murder crime that carries the death sentence shall be punished with by death or life of hard labour.
Article (252) Whoever burned or set fire to buildings in towns, cities, suburbs and villagest, to ships, vessels, factories, warehouse or in any residential structure or one that is being constructed to be a residential structure regardless of whether it is the property of the arsonist or someone else shall be punished with life of hard labour or temporary hard labor. This same penalty shall be imposed on whoever sets fire to railway carriages, whether they were carrying other persons or part of a train that was carrying other persons.
Article (314) Whoever commits a burglary by coercion shall be punished with temporary hard labor. If the use of coercion and force leads to injury, the penalty shall be life of hard labour or temporary hard labour. Article 2/2 of the Presidential Decree no. 289/1995 on securing the eastern borders of the Arab Republic of Egypt:
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On the right to own firearms and ammunitions: Article (1) (replaced by paragraph 1 of article 165 for the year 1981) It is unlawful to acquire or possess firearms from among those listed in table 2 and the first part of table 3 or any of the cold weapons listed in table 1 without a license from the minister of interior. Automatic assault rifles, rocket-propelled grenades (RPGs), gun silencers, and telescopic equipment used with weapons are strictly prohibited under all circumstances. The minister of interior may issue a decree amending the lists and tables attached to this law to add or remove certain firearms from the list. None of the items in table 3 may be removed.
Article (6) It is prohibited to acquire or possess firearm ammunitions except for those with a license to own a firearm
Article (26) (This article was amended in law 26 for the year 1978. The temporary hard labour penalty was revoked in law number 95 for the year 2003 and replaced with “imprisonment�. Law 95 for the year 2003 also revoked the life of labour with life imprisonment). Anyone who acquires or possesses any of the firearms listed in table 2 without permit shall be fined a maximum of 500 Pounds. Anyone who acquires or possesses any of the firearms listed in table 3 without permit shall be sentenced to temporary hard labour. Anyone who acquires or possesses any of the firearms listed in part 2 of table 3 without permit shall be sentenced to life of labour.
Article (17) of the penal code shall not apply to the penalties in the last three paragraphs if the perpetrator is one of the persons listed in paragraphs B to E of article 7(1). Anyone who acquires or possesses any of the ammunitions used in the firearms listed in tables 2 and 3 without permit shall be fined a maximum of 50 pounds.
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5. The human rights violations committed against President Mohammed Morsi as defined by international and national laws. A- Enforced Disappearance According to the International Convention for the Protection of All Persons from Enforced Disappearance, enforced disappearance is ““enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” Enforced disappearance is considered a violation of a number of basic human rights such as the right to life, the right to freedom, right to personal safety, the right to protection from torture, and the right to a fair trial. All of these rights are protected by international human rights conventions and the Egyptian constitution. Although Egyptian laws lack a stipulation defining and penalising ‘enforced disappearance’, the constitution and some legislations include provisions which if applied can prevent the crime of enforced disappearance and these are articles 41, 42, 57 of the constitution. Article 280 of the Penal Code prohibits the arrest, confinement or detention of anyone without a judicial order. Article (4) of Procedural Law stipulates that no person may be arrested or detained without an order from the concerned authorities and should be treated in a manner that respects their human dignity.
B- Dr. Morsi’s enforced disappearance and failure to notify him of the reasons of his arrest. It has become the norm for Egyptian security services to arrest individuals without inform them of the reasons behind their arrest, whether any official order has been issued for their arrest by the ministry of interior or in the context of an ongoing investigation. These practices constitute a violation of Egyptian law, including article 71 of the 2012 constitution, article 68 of the amended 2013 constitution, and article 139 of Procedural Law, all of which provide for the protection against enforced disappearance and the right to legal counsel. All these articles make it mandatory to inform the person of the reason of his/her arrest, his/her right to contact a lawyer or family member, his/her right to legal counsel, and the right to be charged as quickly as possible if at all.
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Article 9(2) of the International Covenant on Civil and Political Rights stipulates that “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”. The UN Human Rights Committee has stressed whenever authorities resort to ‘detention’ for reasons of public safety, these detentions must be subject to article 9(2) and the other requirements of article 9. Principle 16(1) of the body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment stipulates that “ promptly after arrest and after each transfer from one place of detention or imprisonment to another, a detained or imprisoned person shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody.” The UN International Convention for the Protection of All Persons from Enforced Disappearance includes a similar provision and so does the UN Basic Principles of the Treatment of Prisoners. The African Commission on Human and Peoples’ Rights has stressed that holding or detaining any individual without allowing him to contact his family and refusing to notify the family if the individual has been arrested or where he is being held, is a human rights violation. Principle 13 requires that arresting authorities provide the individual with his status and rights as soon as possible. The right of detainees to be told their rights and contact their relatives is linked with the commitments listed in article 2 of the UN Convention Against Torture.
C- Violating the right to contact family members and lawyers. According to Dr. Morsi’s defense team and his family, no one was allowed to contact him from the 3rd of July 2013 (the day of his arrest) until he appeared before the court on the 21 of December 2013. Article 14 (3) 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, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay. The UN Human Rights Committee stressed these rights included “the right 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 21
and without payment by him in any such case if he does not have sufficient means to pay for it.” Article 9(4) of The International Covenant on Civil and Political Rights stipulates that “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” The UN Committee Against Torture stressed that “ Promptly after arrest and after each transfer from one place of detention or imprisonment to another, a detained or imprisoned person shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody.” It also stressed that “ the right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.”
E. The legality of Dr. Morsi’s Arrest The army’s detention of Dr. Morsi was justified using vague language. According to authorities he and others ‘posed a threat to the regime and public safety’ although no specific charges were initialy made. Dr. Morsi was described as belonging “to a group which advocates Jihad and Takfiri thought, and seeks to carry out terrorist activities.” The law does not specify what would constitute a ‘a threat to the regime and public safely. The definition of ‘terrorism’ in Egyptian law is also too general. Article 86 of the Egyptian Penal Code defines ‘terrorism’ as “all use of force, violence, threats or terror to carry out an individual or collective criminal act with the aim of disturbing public order, or exposing the safety and security of society to danger, if this results in in hurting other persons, terrorizing them, exposing their lives, freedoms and security to danger, harming or occupying the environment, property, communication, funds, private and public property, preventing authorities, educational facilities and places of worship from carrying out their duties, or disrupting the implementation of the constitution, laws or statues.” Egyptian Anti-Terrorism law recently came into effect in May 2014and was described the UN Human Rights Committee as ‘deeply flawed’ because it violates several provisions of the International Covenant, especially articles 6, 7, 9, and 15. The Committee pointed out that the definition of ‘terrorism’ was too general and could refer to literally any action. It urged Egypt to revise the law. The absence of any clear laws regulating arrests of individuals deemed a threat to ‘the security and safety of the public’ meant that many political detainees remained held in a manner that violated their human rights as stipulated by The International Covenant on Civil and Political Rights. There were few exceptions in the case of minors who are governed by a different set of laws. 22
Article 9(1) of The International Covenant on Civil and Political Rights “everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” IN the context of anti-terrorism law, the ‘legality’ derived from a requirement means that all procedures must follow the provision of the law.
F- The Right to a Speedy trial According to article 9(3) of the International Covenant on Civil and Political Rights, “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.” Bothe African Commission for Human and Peoples’ Rights and the UN Human Rights Commission guaranteed the right to a speedy and fair trial, and legal assistance.
5. Legal defense in the case of the violations committed against Dr. Morsi 1. The lack of jurisdiction and the lack of competency of the courts putting Dr. Morsi on trial. According to the law, Dr. Morsi must be tried in an ordinary court. All conflicts and crimes are the jurisdiction of ordinary courts with a few exceptions. Since Dr. Mohammed Morsi is Egypt’s democratically-elected leader in accordance with the 2012 constitution, his trial must conform with the provisions of the law and the constitution. Otherwise, it would be considered arbitrary. According to articles 152 and 153 of the 2012 Constitution:
Article 152 The President of the Republic is impeached for felony or high treason if at least a third of the members of the House of Representatives sponsor a motion of impeachment, and the House passes the motion with a two-thirds majority. As soon as the impeachment is in effect, the President of the Republic stops all work. This stoppage is treated as the result of a temporary hindrance that prevents the President of the Republic from assuming his responsibilities. It ends once the verdict is announced.
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The President of the Republic is to be tried before a special tribunal headed by the President of the High Council of Judges and staffed by the senior deputies of the President of the High Constitutional Court and the State Council, and the two most senior presidents of the appeals courts. The Public Prosecutor assumes the role of prosecutor. If the most senior person is unable to play his part, the person next in seniority takes his place. The law specifies the procedures of the trial as well as the sentence. If found guilty, the President of the Republic is relieved of his duties. This does not preclude additional penalties.
Article 153 If a temporary hindrance prevents the President of the Republic from exercising his powers, the Prime Minister takes over his responsibilities. If the position of the President of the Republic is vacant, be it due to resignation, death, long-term disability, or any other cause, the House of Representatives declares the position vacant and notifies the National Elections Commission. The President of the House of Representatives temporarily assumes the powers belonging to the President of the Republic. If the House of Representatives is dissolved, the Consultative Assembly assumes its responsibilities, and the President of the Consultative Assembly assumes the responsibilities of the President of the House of Representatives. The new President of the Republic must be elected within a time frame not exceeding 90 days from the date the position was declared vacant. The person temporarily shouldering the duties of the presidency cannot be a candidate for that office. He cannot demand amendments to the Constitution, dissolve the House of Representatives or dismiss the Government. According to Egypt’s Court of Cassation Appeal no. 1/54K, Session 12/11/1984, “Since this court was held in accordance with article 15 of the Judicial Authority Law no. 46 for the year 1972 which recognizes that ordinary courts are the norm and military courts are the exception to the rule and may try certain individuals in special cases determined by the Martial Law no. 2 for the year 1966 and Police Law no. 109 for the year 1971. Nothing in these two laws restricts the trial of certain individuals to military courts but rather allows for both ordinary and military courts to try them.
2- Lack of evidence The set of charges are based on the victim’s own claims that the defendant had attacked him and this is not enough evidence to incriminate or convict the defendant. This was confirmed by the Court of Cassation’s ruling no. 514/46 K, Session 6/2/1977 (convictions are founded on proof and evidence, not suspicion and probability). It is enough for criminal courts to cast doubt on the probability of the charges to acquit the defendant, not the judge’s own conviction. 24
3-The lack of commitment to pursue the truth and the nature of the bogus charges. It was very evident from the outset of all the cases against Dr. Morsi that all the charges against him have been made up and are solely based on claims from Homeland Security without their being a single piece of material evidence to back such claims. According to the Court of Cassation ruling number 1440/41/p.23, “The sufficiency and seriousness of investigations should be such that they justify a search warrant. If the defendant moves to contest the legality of these procedures, the court must examine the claim and decide whether to accept or reject it.�
4. The inadequacy of the public prosecutor’s investigations. One of the main principles of Egyptian judicial system is the necessity of proving the guilt of the person charged with an offense. The burden of proof falls on the prosecution and the defendant is not obliged to present proof of his innocence. The defendant may choose to remain silent throughout his trial without this being used against him.
Conclusions: This report demonstrated that all legal proceedings instituted against Dr. Mohammed Morsi had no legal or legitimate basis and are in essence arbitrary. As such, any future convictions should be vacated because they rest on flawed due process and legal procedures.
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