Prepared by: Ahmed Osman, Lawyer at the Association for Freedom of Thought and Expression
Content
Methodology
Introduction
First: Circumstances of the arrest
Second: Public Prosecution’s investigations
Third: Violation of the right to a fair trial
Conclusion
Methodology
This comment is based on an analysis of the papers of Case No. 2094 of 2024 (Matareya Misdemeanor Court of Appeal), as well as a reading of the Criminal Procedures Law No. 150 of 1950 and the Law on the Exercise of Political Rights No. 45 of 2014. Amnesty International’s Fair Trial Manual was also reviewed.
Introduction
Former presidential hopeful Ahmed al-Tantawy is now jailed under a ruling issued by the Matareya Misdemeanor Court of Appeal in the case known in local media as “forgery of public endorsements”. In a significant development, the Court of Cassation on 17 December 2024 accepted the appeal in form, but in substance it rejected the appeal submitted by Tantawy and his campaign manager Mohamed Abu al-Diyar, and upheld the ruling issued by the Court of Appeal that sentenced each of them to one year in prison with labor.
Since Tantawy announced his intention to return from Lebanon to Egypt in preparation for running for the post of President of the Republic, a series of crackdowns on him has been launched, starting with the arrest of some of his relatives and friends. Also, his campaign was restricted and a number of its members were arrested, then a number of individuals who tried to make propaganda for Tantawy on social media were arrested, and a number of citizens who tried to fill out endorsement forms at notary offices in preparation for submitting them to the National Elections Authority (NEA) were arrested too.
The crackdown is still ongoing even after Tantawy was imprisoned, as a number of citizens who tried to establish the Hope Movement Party, which Tantawy is leading the attempt to establish, were arrested.
This comment aims to shed light on the multiple violations of the right to a fair trial and provide a legal reading into how the law is exploited in crackdown on dissent.
First: Circumstances of the arrest
The case was launched based on investigations prepared by the National Security Sector (NSS), which are detailed in its report dated 8 October 2023. The investigations stated that Tantawy and his campaign had intended to forge presidential endorsement forms and called on citizens to fill them out and share them on social media in coordination with the banned Muslim Brotherhood group, as part of a hostile plot against the Egyptian state that included calls for demonstrations, spreading false news and amplifying crises.
The officer who conducted the investigations noted that 11 members of Tantawy’s campaign participated in the hostile plot, and the Supreme State Security Prosecution authorized him to arrest the defendants mentioned in his investigations. The prosecution considered the aforementioned incidents as falling under the crimes stipulated in the Anti-Terrorism Law No. 14 of 2015.
The NSS also prepared supplementary investigations in a report dated 10 and 12 October 2023, which tackled the same incidents mentioned above, adding more members of Tantawy’s campaign as defendants in the case and requesting permission to arrest them, including eight in the report dated 10 October and four in the report dated 12 October 2023. The prosecution accordingly issued arrest warrants for them. Neither the NSS investigations nor the arrest warrants mentioned the accusation of printing or circulating electoral papers.
NSS police arrested the aforementioned defendants from several governorates at different times, from 8 to 12 October. The Supreme State Security Prosecution then interrogated 23 of them and held them in pretrial detention.
At a request from the Public Prosecution, the investigator prepared supplementary investigations on 15 October about four other people, including Abu al-Diyar. The investigations indicated that Abu al-Diyar had instructed the defendants detained in connection with the case to forge presidential endorsement forms and invited citizens to fill them out.
Second: Public Prosecution’s investigations
The Supreme State Security Prosecution began investigating the case on 9 October 2023, when eight defendants appeared before the prosecution on charges of helping a terrorist group achieve its goals with knowledge of its purposes. The investigation, however, did not address Tantawy’s forgery or incitement.
Rather, the prosecution’s questions to the defendants focused on the aforementioned accusation. The prosecution, however, did not clarify the nature of that group or the purposes it referred to, which is customary in most State Security Prosecution investigations. The prosecution faced the defendants with exhibits.
The prosecution interrogated three other defendants on 10 October 2023, and five more the next day, the same day when the Supreme State Security Prosecution asked the NEA whether Form No. 4 (the public endorsement form required to prove support for a presidential candidate) was considered an electoral paper and whether the NEA allowed anyone to print it.
On 12 October, the Supreme Sate Security Prosecution interrogated three other defendants. On the same day, the NEA sent a reply saying that according to its Decision No. 7, Form No. 4 is considered one of the electoral papers, and according to Decision No. 8, the NEA specified those who are authorized to print the form, namely employees at notary offices, and that the form shall be printed from the tablets delivered by the NEA.
On 14 October, the prosecution interrogated four other defendants, charging them – for the first time – with illegally printing and circulating one of the electoral papers. This means that the charges against the defendants changed, and the turning point was the NEA’s response. The prosecution investigated 19 other defendants on the same charge of printing and circulating electoral papers without permission from the competent authority.
The testimony of the National Security officer who conducted the investigations contradicted the investigation report, as he replaced the accusation of forging official papers with printing and circulating electoral papers. The prosecution asked the officer about the nature of the document that the defendants printed and circulated, and his response was identical to that of the NEA. On 16 October 2023, the State Security Prosecution decided to refer the case to the trial court.
Third: Violation of the right to a fair trial
The trial began on 7 November 2023, when the attendees were surprised that the referral decision – which the defense team could not access – included Tantawy and Abu al-Diyar. The latter attended the hearing as a defense lawyer.
The defendants’ lawyers requested a copy of the case file, but the court rejected their request and only allowed them to review it. The court adjourned the trial to 28 November so that the lawyers could review the case file and prepare their arguments.
The prosecution kept the original copy of the case file at the State Security Prosecution headquarters and not at the court, in violation of Article 157 of the Criminal Procedures Law, which states: “Upon issuance of an order to refer the lawsuit to the District Court, the Public Prosecution shall send all pertinent documents to the registry of the Court within a two-day period with a view to notifying the litigants to appear before the Court in the nearest session and on the times prescribed.” This led the defense team to review the case papers at the Supreme State Security Prosecution.
Preventing lawyers from copying or taking notes from the case papers is also a further arbitrary act by the Public Prosecution, in violation of Article 236 of the Criminal Procedures Law, which states: “Litigants may review the lawsuit file once they receive the summons to appear before the court.”
During the 28 November 2023 session, the defense team repeated its request for a copy of the case file, but the court rejected the request again, only allowing them to review it. However, the Supreme State Security Prosecution later allowed the lawyers to take notes from the case file for one day only.
In the 9 January 2024 hearing, the court heard part of the pleadings for the first to the fourth defendants, and then adjourned the trial to 6 February. In the 6 February hearing, which lasted eight hours, it heard pleadings for the fifth to the twenty-third defendants, and then issued its verdict. It sentenced the first and second defendants (Tantawy and Abu al-Diyar) to one year in prison each and ordered them to pay a bail of 20,000 pounds to suspend the implementation of the verdict. It also banned Tantawy from running in the parliamentary elections for five years. The rest of the defendants, meanwhile, were sentenced to one year in prison with labor.
The defense team appealed the verdict in Case No. 2094 (Matareya Misdemeanor Court of Appeal). The first appeal hearing for the third to the twenty-third defendants was held on 4 March, where the court heard pleadings for the third, fourth and fifth defendants. The court then adjourned the trial to 27 May. In the 27 May session, the court heard pleadings for Tantawy and 16 other defendants, and upheld the previous prison sentences for all defendants. Tantawy was arrested in the hearing to carry out the sentence.
In view of the aforementioned stages of the trial, the defense team crystallized key observations, the first of which was the unconstitutionality of the third paragraph of the indictment article, which is Article 65 of Law No. 45 of 2014 regulating the exercise of political rights. This article stipulates: “Whoever commits any of the following acts shall be punished by incarceration for a period of no less than one year and a fine of no less than one thousand pounds and no more than five thousand pounds, or either penalty: I- Using force or threats to prevent someone from expressing their opinion in the election or referendum, or to force them to express their opinion in a certain way. II- Giving, offering or committing to give a benefit to a person or to others in order to get that person to vote in a certain way, or to refrain from voting; and whoever accepts or solicits such a benefit for himself/herself or for others. III- Printing or circulating in any manner the ballot or the papers used in the electoral process without authorization from the competent authority. 2- Whoever knowingly publishes or broadcasts false statements or reports about the subject of the election or referendum, about the behavior of one of the candidates, or about his/her morals, with the intention of influencing the result of the election or referendum, shall be punishable by a fine of no less than twenty thousand pounds and no more than two hundred thousand pounds. If such statements or reports were broadcasted at a time when voters would not be able to ascertain the truth, the minimum and maximum limits of the fine shall be doubled. The candidate benefitting from the crimes stated in the two previous paragraphs shall be punishable by the same penalty as the original offender if his/her knowledge and approval of the commitment of the crime are established. The court shall additionally rule to disqualify him/her from candidacy in legislative elections for five years commencing on the date the ruling becomes final.”
The lawyers based their arguments on the article’s violation of the constitutional principle of discipline of criminal legislation and the clarity of its words so that they do not carry more than one meaning, as ambiguity marred the term “papers of the electoral process”. This was proven by the conduct of the prosecution when it asked the NEA to determine whether the public endorsement forms are considered electoral papers or not.
The defense team argued that the article contradicts the Supreme Constitutional Court’s ruling that stated: “The legislator shall always strike a careful balance between the interest of society and concern for its security and stability on the one hand, and the freedoms and rights of individuals on the other. It was also decided that the punitive texts must be drafted in a clear and specific manner without concealment or ambiguity, so that these texts do not become like nets or traps that the legislator throws to troll – with their breadth or concealment – those who fall under them or misposition them. These punitive texts are guarantees whose purpose is that those who are addressed by them be aware of their truth, so that their behavior is not contrary to them, but rather consistent with them.” (Appeal No. 20 of 15 constitutional, the 1 October 1994 session).
The trial showed several basic problems that affected the defendants’ right to a fair trial. The investigation reports lacked seriousness, as they did not provide any evidence of the defendants’ communication with the Muslim Brotherhood group. Moreover, the time between the launch of the call by Tantawy for filling out endorsement forms and the preparation of the investigation report was limited (less than 24 hours), which is not enough to monitor meetings, identify members of the campaign, and – most importantly – monitor contact with the Muslim Brotherhood and know its plans, as the investigations claimed. On the other hand, the time interval between arrests made by the same officer in the same governorate reached 15 minutes in some cases, despite the long distances between the places of arrest. This indicates the illogic of the timings mentioned in the arrest reports.
The defense team argued that Form 4 is not an electoral paper, citing the Court of Cassation’s ruling in Appeal No. 14 of 85 judicial years dated 5 March 2016 (Technical Office 67, Page No. 293, Rule No. 36), which stated: “It is decided that the challenge to the validity of membership which is considered by the Court of Cassation – which takes on the consideration of electoral appeals – shall be determined in substance by the scope of irregularities spotted in the electoral process itself – in its precise technical meaning represented in the procedures of voting, counting and announcement of the result, and not the preceding procedures.”
This ruling makes it clear that the electoral process includes the procedures of voting, counting and announcement of the result. Therefore, the pre-candidacy procedures and the documents related to them are not considered electoral papers that the law criminalizes their printing or circulation.
The Law on the Exercise of Political Rights issued in 2014 did not provide a judicial definition explaining whether the presidential endorsement forms are considered electoral papers. This negates the defendants’ knowledge of the criminalization of the act referred to in the case.
The violations extended to litigation before the Court of Cassation, as the lawyers of Tantawy and Abu al-Diyar submitted an appeal on 13 July 2024, requesting revocation of the verdict issued by the Matareya Court of Appeal on 27 May 2024 that sentenced the defendants to one year in prison with labor. The lawyers also requested a retrial before another court panel.
The lawyers based their appeal on the Court of Appeal’s judgment that ruled that the rights of defense were violated, as the Court of Appeal did not respond to the substantive argument that the criminalizing text of Article 65 of Law No. 45 of 2014 does not apply to the incident in question. The lawyers further argued that the printed paper in question was not one of the electoral papers. They also cited deficiencies in causation, arguing that the Matareya Court of Appeal based its judgment on non-serious investigations.
The lawyers also argued in their appeal that the law was applied and interpreted incorrectly, as there were no elements of the crime of printing and circulating one of the electoral papers without permission from the competent authority, since the defendants did not circulate the printed papers. They further argued that Tantawy may not be banned from running in the parliamentary elections for five years because he did not acquire the status of a candidate. In its 17 December 2024 session, the Court of Cassation considered the appeal and decided to accept it in form, but rejected it in substance. It also upheld the ruling issued by the Matareya Court of Appeal that sentenced the defendants to one year in prison with labor. It is worth noting that the defendants’ lawyers learned by chance that the case was scheduled in that hearing.
Conclusion
There was a clear attempt from the beginning of the case to prosecute Tantawy and prevent him from running in the elections. It is obvious from the beginning that the accusation the NSS sought to prove was that of forgery, but when it became clear that for the crime of forgery of an official document to be proven, this document had to actually be used, something which did not happen. Thus, the Public Prosecution sought to find another accusation, and even to interpret the law broadly. It even asked a body that does not have the authority to interpret the law (the NEA) to interpret it in line with the desire of criminalization.
Moreover, the evidence was prepared, as the account of the officer who conducted the investigation changed from the claim in the investigation report that the defendants intended to forge electoral papers to the claim in his testimony that they intended to print and circulate electoral papers. The court also denied the defendants and their lawyers access to a copy of the case papers, thus hindering the lawyers’ work.
The State Security Prosecution violated the Criminal Procedures Law by allowing the copying of part of the case file but not the entire file. The Public Prosecution has not so far decided on the accusation of helping a terrorist group, but rather decided on the accusation of printing and circulation only. Yet, the fate of Case No. 2255 of 2023 (Supreme State Security) remains unknown until now.
