“Open Jails”.. How are cases being adapted against those accused of free speech? (Case No. 65 of 2021 as a model)

The report was prepared and written by:

Monitoring and Documentation Unit

Methodology

This report has relied on AFTE’s databases related to freedom of the press and media, freedom of creativity and artistic expression, digital rights, student rights and academic freedoms, as well as the cases undertaken by AFTE.

The report documented testimonies of five lawyers defending eight defendants in connection with that case, in addition to testimonies from the families of two of the defendants.

The report also relied on the analysis of the general practices of the security and judicial authorities towards the citizens’ right to freedom of peaceful expression. It monitored and analyzed the violations committed against the arrested defendants and those referred to the State Security Prosecution, especially in connection with Case No. 65 of 2021.

Introduction

Over the past few years, the judicial authorities in Egypt have used pretrial detention as a punishment against dissent, notably including journalists, creative people, academics, political activists and ordinary citizens. They were all cracked down for expressing their opinions or carrying out their work tasks – regardless of the medium or means of expression they used – as long as the content of their work was suspiciously opposed to the existing policies.

It can be said that these practices in general reflected a pattern of violation that has become common during the last five years, in clear violation of the Criminal Procedures Law, which states the purpose, regulations and alternatives of pretrial detention. The law considers pretrial detention as a precautionary measure to protect the investigation or the course of the trial, especially in cases where it is feared that the defendant will use his influence or power in a way that might enable him to tamper with evidence or exhibits or do anything that would affect the course of justice during the investigation or the trial.

As for other cases, Article 201 of the Criminal Procedures Law allows the authorities concerned with pretrial detention to apply one of three alternative measures, namely “obligating the accused not to leave his residence or domicile, obligating him to go to the police headquarters at specific times, or prohibiting him from going to certain places”. The same law stipulates that the defendant may be imprisoned in the event of violating these measures.

In a statement[1] on the occasion of the Africa Pretrial Detention Day, which falls on 25 April each year, the National Council for Human Rights called in 2017 for “finding a solution to this problem, particularly as a person may be held in pretrial detention for a long time, and later proven innocent; thus he would have been punished for a crime he did not commit”. Also, 31 countries have recently issued a joint statement[2] on the sidelines of the 46th session of the United Nations Human Rights Council, calling on the Egyptian government to “stop the excessive use of pretrial detention”. The statement pointed out the expansion of pretrial detention procedures and the inclusion of detainees in new cases on similar charges after the end of the legal period of remand.

AFTE’s Monitoring and Documentation Unit has observed during the last three years a significant development regarding the use by the judicial authorities – in coordination with the security services – of their power to hold defendants in pretrial detention. This development is not new, but after it was used more broadly and systematically it can be described as a “common pattern of violation” of the right to fair trial.

This development has to do with what has been known recently as “recycling of defendants”, where the security services, which are most involved in committing this pattern of violation, refrain from implementing decisions to release those accused of free speech. After detaining the defendants without legal justification for varying periods of time, the security services prepare new investigation reports against them. The Supreme State Security Prosecution rely on these reports in involving the released defendants in new cases after the end of the legal period specified for their pretrial detention, and sometimes before the end of that period. In most cases, the recycling takes place without allowing the defendants to be released in the previous cases.

The defendants often face the same charges they faced in previous cases. This would enable the judicial authorities to detain them for another two years pending investigations. Thus, the defendants would have spent four years in pretrial detention without trial. Also, some defendants are recycled into new cases more than once.

In 2020, AFTE’s Legal Aid Unit provided support for 133 defendants who were victims of violation of freedom of expression. AFTE lawyers managed to obtain decisions to release 100 defendants or replace their pretrial detention with precautionary measures. Half of those defendants (50) were recycled into new cases after their release.

The list of defendants included journalists, human rights activists, creative people, and political activists, as well as ordinary citizens, including social media users and those who were arrested randomly or for other reasons.

In order to facilitate these usual patterns of violation, the judicial authorities detain defendants in connection with multiple cases known locally as “refrigerator cases”. These cases cannot be referred to trial due to their legal adaptation, in terms of the diversity of the professional, geographical, age, gender, ideological and political backgrounds of the defendants. These cases remain open to include other defendants, thus acting as “open jails” for punishing dissent by keeping them in pretrial detention for two years. If the security authorities want to continue abusing a person or a group of people, they recycle them into new cases as we mentioned before.

This report attempts to shed light on a number of different types of violations committed by the Egyptian authorities, specifically the State Security Prosecution and the court’s consultation chamber, against the citizens’ right to freedom of expression, as well as their right to fair trial, starting from the moment they were arrested, through the questioning process, and ending with the trial, which never comes in the context of the aforementioned “refrigerator cases”.

In its approach to prove that the Egyptian authorities have committed these violations, the report relied on the presentation and analysis of the arrests and the progress of the investigation into Case No. 65 of 2021, which is a “model case” in this regard. There are dozens of other cases in which the number of detainees are much larger than those detained in connection with that case, but the limited number of detainees in the case was a helpful factor in explaining the sequence of violations in a simple and easy-to-track manner.

Sorting papers … How are cases being adapted against those accused of free speech?

AFTE’s Monitoring and Documentation Unit documented the referral of 16 defendants in connection with Case No. 65 of 2021. Six of those defendants were arrested during January and February, and 10 others were recycled into this case after their release from other cases. The State Security Prosecution questioned the defendants and levelled the same charges against them. The charges mainly included joining a terrorist group, spreading false news and misusing social media.

As for the six newly arrested defendants, three of them were arrested in three different neighbourhoods in Cairo, while the other three were arrested in three different governorates, namely Menoufiya, Fayyoum and Giza. All of them were arrested in January and March, yet none of them was arrested in the company of the other or even on the same day. They included a journalist, a master’s researcher, a contracting company employee, a student, and other citizens whose professions we could not know.

They were arrested for different reasons, although they faced the same charges. While the journalist working for the Egypt 360 news website was arrested for practicing his journalistic work, the master’s researcher at the Central European University (CEU) in Vienna was arrested while spending his short vacation in Egypt. The other four were arrested for expressing their opinions on social media about various issues. The security services deemed these opinions as opposed to the existing policies or the ruling regime. The six defendants do not have any personal, organizational or ideological ties.

As for the ten defendants who were recycled into the case, they included four women and six men. Nine of them were recycled for the first time in Case No. 65 of 2021, and one was recycled for the second time after his release in two other cases.

The ten were released in four different cases before they were recycled into Case No. 65 of 2021. Five were released in Case No. 751 of 2020; three were released in Case No. 535 of 2020; one was released in Case No. 880 of 2020; and another was recycled for the second time after he was released in Case No. 730 of 2020 and Case No. 480 of 2018.

The report documented the reasons for their arrest for the first time before they were recycled into the case in question. Four were arrested for expressing their views on social media; five for joining the hardcore football fans (known as ultras); and one for co-producing a creative work (song).

The ten defendants spent different periods (from 5 to 33 months) in pretrial detention before they were recycled into Case No. 65 of 2021. With the exception of the five ultras youth, the report noted the lack of any personal, organizational or ideological link between the six other defendants, including those who were released in same previous cases.

The ten defendants were all recycled into Case No. 65 of 2021 while in detention. None of them was actually released, as all of them were brought before the Supreme State Security Prosecution during the period of implementing the procedures for their release. Defendant Naglaa Fathy was recycled while wearing the prison clothes. This reflects a great desire to continue abusing the defendants, as it is practically impossible for them to commit any violation of law stated in the charges levelled against them while they are in pretrial detention and in the hands of the police.

With regard to all the 16 defendants in general, the prosecution did not face the defendants with any specific incidents and refused to allow them and their lawyers to see the investigation reports, which the Public Prosecution adopted as the only justification for establishing evidence against the defendants before sending them to pretrial detention. According to testimonies of the defendants, their relatives and lawyers, none of the defendants met each other or was asked during interrogation about his/her relationship with any of the other defendants in the same case.

“Within the framework of the terrorist Muslim Brotherhood group’s plan to resume its activities through its electronic sleeper cells by spreading false information and news on social media to threaten the security and safety of the country, and based on investigations carried out by security officers and information obtained from our secret sources, each of the following members of the terrorist group participated in planning or implementation…. etc.”

The previous paragraph is part of the National Security investigation report, which is the only source and evidence for the arrest of some citizens and their referral to the Supreme State Security Prosecution for interrogation. Security investigations are the main source in any of the cases undertaken by the State Security Prosecution. Security services in Egypt, represented by the Ministry of Interior and its various agencies, target citizens, activists, journalists, and human rights defenders by arresting them and involving them in different cases.

“Investigations alone cannot serve as proof or primary evidence to prove the charge.”

The Egyptian Court of Cassation, Appeal No. 7533 of 79

Patterns of violations committed against defendants in the case

Infringement of privacy

The report documented the random arrest of four citizens after searching their mobile phones. They are Al-Mukhtar Ibrahim, Ahmed Saeed, Islam Deif, and a fourth one who refused to mention his name. The arrests were carried out in clear violation of Article 57 of the Egyptian constitution (2014)[3] which stipulates that private life is inviolable, safeguarded and may not be infringed upon, and that telegraph, postal, and electronic correspondence, telephone calls, and other forms of communication are inviolable and their confidentiality is guaranteed.

Random arrest is one of the patterns of violation that the security services have used to commit since 2014. However, the flagrant infringement of the privacy of citizens by searching their mobile phones emerged widely and systematically during the September 2019 demonstrations, when the police arrested citizens randomly on the streets[4] and searched their phones illegally. Plain-clothes police officers set up ambushes in the main streets and squares, especially in downtown Cairo, and stopped passers-by, searched their mobile phones, and arrested suspects or anyone who they believed to be opposed to the current ruling regime.

For example, Islam Deif was arrested on 22 January 2021 while on his way to Abdel Moneim Riad bus station after work. Officers from Qasr al-Nile police station stopped him randomly, searched his mobile phone, and then arrested him along with others and held them in the Qasr al-Nile police station, which later denied knowledge of Deif’s whereabouts.

On 13 February 2021, Deif appeared before the Supreme State Security Prosecution in the Fifth Settlement in connection with Case No. 65 of 2021, where the prosecution charged him with joining a terrorist group, spreading false news and misusing social media. The prosecution remanded him in custody for 15 days pending investigation.

Trap of summonses

The report documented the arrest of two people after they were summoned by the National Security Agency, although they went voluntarily to the agency’s headquarters for what the National Security officers call “chatter”. One of them is a master’s researcher who returned to the country for a short vacation, and the other is a journalist who works for the Egypt 360 news website and lives in Fayyoum, south of Cairo.

According to the two victims, the summons came in the form of a friendly request for a “chatter” to inquire about and verify some information. After the victim responds voluntarily to the request, he/she is detained inside the headquarters of the agency that made the request, without any legal basis, and for varying periods, before the victim appears before the Supreme State Security Prosecution as a defendant in connection with a case. In our case, the two victims appeared before the prosecution in connection with Case No. 65 of 2021.

On 6 February 2021, the Supreme State Security Prosecution remanded master’s researcher Ahmed Samir Abdel-Hay for 15 days pending investigations in Case No. 65 of 2021. He faced charges of joining a terrorist group, spreading false news meant to undermine security and public order, and using a Facebook account for that purpose.

The State Security Prosecution faced Abdel-Hay with some screengrabs of posts on a Facebook account, but he denied his connection to that account. Abdel-Hay complained that he had been subjected to ill-treatment and torture during interrogation by National Security officers. His defence team requested that he be referred to the forensic medicine office to prove the assaults he had been subjected to.

Ahmed Samir, 29, is an Egyptian master’s researcher who has been studying social sciences at the Central European University (CEU) since mid-September 2019. He returned to Egypt from the Austrian capital Vienna, on a short vacation to visit his family and friends, in mid-December 2020, via Sharm el-Sheikh International Airport. The airport security authorities arrested him at the time, and illegally questioned him about the reasons for his travel and the field of his study, before they allowed him to leave.

On 23 January 2021, a force from the Cairo’s Fifth Settlement police station raided Abdel-Hay’s house, searched it, took copies of the ID cards of those in the house, and seized the recordings of the house’s surveillance cameras. Abdel-Hay was on a trip to Dahab in South Sinai at the time, so the police force asked his family to tell him to go to the police station upon his return home. Indeed, he went to the police station on Saturday 30 January, and he was told to come again on Monday 1 February. He went again to the police station that Monday, but he was detained. There was no official information about him until he was brought before the Supreme State Security Prosecution in the Fifth Settlement on 6 February 2021.

Abdel-Hay was moved from one police headquarters to another. He was held at the National Security office at the Fifth Settlement police station until the morning of 3 February, then was transferred to the First Settlement police station, and then he was taken to an unknown location on the evening of Thursday 4 February.

On 19 January 2021, Egypt 360 website journalist Ahmed Khalifa appeared at the State Security Prosecution office in the Fifth Settlement, 12 days after his unlawful detention. This came after he was summoned to the National Security headquarters in Fayyoum.

A police force raided the journalist’s house in the village of Talat in Fayyoum, but he was not there. Then, he received a phone call asking him to go to the National Security headquarters in Fayyoum. Indeed, he went there on 6 January. Since then, there has been no news about Khalifa, and the National Security Agency in Fayyoum has denied knowledge of his whereabouts, until he appeared as a defendant in Case No. 65 of 2021. The State Security Prosecution charged Khalifa with joining a terrorist group, spreading false news, and using a social media account with the aim of committing a crime. The prosecution remanded him in custody for 15 days pending investigations.

Unlawful detention

All defendants in the case in question were unlawfully detained. The six newly arrested were detained for 6 to 22 days, while the ten who were recycled into the case were detained for 2 to 72 days before being referred to the prosecution. All the defendants were denied communication with the outside world during that time. Also, their families and lawyers were prevented from providing legal support to them.

This is one of the patterns of violation that the security services in Egypt have used to commit in recent years. People are arrested and detained in violation of the constitution and law, for different periods of time, according to the vision of the National Security Agency. During the period of detention, all security agencies deny their knowledge of the detainees’ whereabouts or fate, and the detainees are prevented from communicating with their families and lawyers.

Most of the lawyers and families of those arrested sent telegrams to the Public Prosecutor and the Ministry of Interior stating that their relatives had been arrested, and that they were deprived of contacting them or providing them with legal support, in addition to not knowing their places of detention. The investigation agencies or the Ministry of the Interior always refuse to disclose the places of detention of detainees, justifying this by not acknowledging the existence of illegal detention cases.

By doing so, the security services violate Article 54 of the constitution, which stipulates that all those whose freedoms have been restricted shall be immediately informed of the causes therefor, notified of their rights in writing, be allowed to immediately contact their family and lawyer, and be brought before the investigating authority within twenty-four hours from the restriction of their freedoms.

The security services usually circumvent the constitution by issuing reports with dates that precede the referral of the arrested to the State Security Prosecution with one day. Therefore, the arrested persons cannot prove to the prosecution that they have been subjected to unlawful detention, and in some cases to physical assault and psychological intimidation, according to testimonies of victims, their families, as well as their lawyers who spoke to AFTE’s Monitoring and Documentation Unit.

Unlawful detention is one of the gravest types of violation, where the arrested person is deprived of a set of constitutional rights related to his security and safety. During the period of detention, the arrested person is deprived of all the legal guarantees that are supposed to protect him from being subjected to forced confession, assault or mistreatment.

Interrogation without the presence of the victim’s lawyer

“… Questioning of the accused person may only begin once his lawyer is present. If he has no lawyer, a lawyer will be appointed for him… In all cases, the accused person may be brought to criminal trial for crimes that he may be detained for only in the presence of an authorized or appointed lawyer.”

“Article 54 of the 2014 constitution”

The report documented two cases where two defendants were denied the presence of a lawyer during the interrogation with them at the Supreme State Security Prosecution in connection with Case No. 65 of 2021. They are Al-Mukhtar Ibrahim Mukhtar and Ahmed Saeed Syed Ali, who appeared before the prosecution after being detained unlawfully for three weeks. They were also denied communication with any lawyers after the end of the interrogation.

Denying the defendants the presence of a lawyer during the interrogation is a violation by the Public Prosecution of the defendants’ right to defence. It also violates their right to fair trial that is guaranteed by the constitution. It is the right that the UN Human Rights Committee has recommended that everyone who is arrested or detained should have.

“Anyone arrested or detained on a criminal or non-criminal charge, and anyone facing a criminal charge (whether detained or not) has the right to a lawyer.”

General comment by the UN Human Rights Committee

The presence of a lawyer with the defendant during interrogation is quite important, as it aims to protect all the legal guarantees of the defendant, ensure that he obtains all his rights, and to prove any assaults that he may have been subjected to during the pretrial detention. It also aims to follow up the progress of the investigation and to intervene when necessary to preserve the defendant’s rights and prevent any defect that may harm his legal position. It also allows the lawyer to communicate directly with the defendant and be the link between him and the outside world.

Pretrial detention and recycling of defendants

The report observed that all the 16 defendants involved in Case No. 65 of 2021 spent varying periods of time in pretrial detention, ranging from 32 days to 33 months, until the time of writing this report, despite the lack of the legal conditions for pretrial detention in most cases. Pretrial detention has been clearly used as a punishment against dissent as we mentioned before. Ten defendants were recycled into the case without being released from the previous cases, so that the judicial authorities could find a legal justification to keep the defendants in pretrial detention, in order to further abuse them.

Mustafa Gamal, a key defendant in the case, was subjected to abuse through prolonged pretrial detention. He spent more than three years in pretrial detention, during which he was recycled into more than a case with the same charges.

Gamal was arrested for the first time in early March 2018 against the backdrop of a satirical political song entitled “Balaha” (a date), performed by singer Ramy Essam. He remained in pretrial detention for nearly 27 months before being released in late May 2020. The decision to release Gamal was not implemented and he remained in unlawful detention until he appeared at the Supreme State Security Prosecution on 14 July as a defendant in Case No. 730 of 2020, facing the same charges, where he was recycled for the first time.

On 4 January 2021, the Cairo Criminal Court decided to release Gamal again, but this time under precautionary measures. However, the security services circumvented the decision on his release and recycled him again into Case No. 65 of 2021, where he faced the same charges for the third time, namely joining a terrorist group with knowledge of its objectives, spreading false news meant to undermine security and public order, and using a Facebook account for that purpose.

Defendant Naglaa Fathy was recycled into the case while wearing the prison clothes. The criminal court decided on 17 January 2021 to release her under precautionary measures, after she spent eight months in pretrial detention in connection with Case No. 535 of 2020. However, the security services refused to implement the release decision, and detained her for 13 days without a legal justification. Then, she appeared before the Supreme State Security Prosecution on 31 January 2021, wearing her prison clothes, as a defendant in Case No. 65 of 2021. She faced the same charges in the two cases, most notably joining a terrorist group with knowledge of its objectives.

Conclusion and recommendations

AFTE affirms that all the violations committed against the defendants in Case No. 65 of 2021 cannot be viewed as practices specific to the case in question, but rather can be described as regular patterns of violation. Such violations can be inferred by monitoring and analyzing the progress of investigations in most of the cases in which the victims of freedom of expression are detained. These violations are not the only that were committed against the defendants in Case No. 65 of 2021, but rather are some of the most prominent violations, with a focus on those that represented regular patterns of violation of the right to fair trial.

Despite the limited number of the defendants involved in the case (16 people) compared with similar “refrigerator cases”, the diverse backgrounds of the defendants – whether professional, geographical, gender-related, political, or intellectual – as well as the different reasons for their arrest lead to an understanding of the nature of the cases involving free speech defendants. Such cases cannot be referred to court due to their legal adaptation, but rather remain like “open jails” for the purpose of abusing dissent.

AFTE believes that the circumstances of the arrests in the case in question, the stories of the defendants, and the reasons for abusing them reflect the general policies of the Egyptian authorities, specifically the security and judicial agencies, towards the right to various forms of freedom of expression, including freedom of the press, freedom of creativity and artistic expression, academic freedom and freedom of digital expression.

The report observed that eight people were involved in Case No. 65 of 2021for exercising their right to digital expression on social media. Also, five people were recycled into the case for joining the ultras, in addition a journalist, a master’s researcher, and a web developer who co-produced a song.

Recommendations

The report provides some recommendations to the Egyptian authorities. These recommendations aim at boosting criminal justice and ensuring the citizens’ right to freely express their views through any appropriate means.

• The State Security Prosecution should release the defendants in Case No. 65 of 2021 and drop the case.
• The Public Prosecutor should investigate the violations committed by the police and the State Security Prosecution against the defendants. These violations included depriving the defendants of their legal rights.
• The Egyptian government should stop prosecuting citizens for expressing their opinions, allow the circulation of information, and stop targeting journalists.

A table showing the names of the defendants involved in Case No. 65 of 2021

[1] Wael Ali, "The National Council for Human Rights" calls for review of the extension of "pretrial detention", Al-Masry Al-Youm newspaper website, published on 26 April 2017, last visited on 27 March 2021, https://bit.ly/3fe595U
[2] 31 countries condemn violation of freedoms in Egypt before the Human Rights Council, DW website in Arabic, published on 12 March 2021, last visited on 27 March 2021, https://bit.ly/3ssxedz
[3] Article 57 of the Egyptian constitution: “Private life is inviolable, safeguarded and may not be infringed upon. Telegraph, postal, and electronic correspondence, telephone calls, and other forms of communication are inviolable, their confidentiality is guaranteed and they may only be confiscated, examined or monitored by causal judicial order, for a limited period of time, and in cases specified by the law.”
[4] Prepared by AFTE’s Monitoring and Documentation Unit, Protests of margins … report on arrests during the 20 September 2020 demonstrations, AFTE’s website, published on 3 January 2021, last visited on 27 March 2021, https://bit.ly/3wnvlRQ