Egypt: Military Trials Usurp Justice System

CAIRO - The Egyptian military should immediately end trials of civilians before military courts and release all those arbitrarily detained or convicted after unfair proceedings, Human Rights Watch said today. In the latest case, 28 civilians arrested in Cairo's Tahrir Square on April 12, 2011, went on trial as a group before a military court on April 28.

The Supreme Council of the Armed Forces (SCAF) has tried more than 5,000 civilians before military tribunals since February, including many arrested following peaceful protests in Tahrir Square. Trials of civilians before the military courts constitute wholesale violations of basic fair trial rights, Human Rights Watch said. At the same time, senior officials in the government of former president Hosni Mubarak are being tried before civilian courts on charges of corruption and using lethal force against protesters.

"Egypt's military leadership has not explained why young protesters are being tried before unfair military courts while former Mubarak officials are being tried for corruption and killing protesters before regular criminal courts," said Joe Stork, deputy Middle East director at Human Rights Watch. "The generals' reliance on military trials threatens the rule of law by creating a parallel system that undermines Egypt's judiciary."

Since Egypt's military took over policing the streets from the Ministry of Interior at the end of January, it has arbitrarily arrested peaceful protesters. On February 26, March 6, March 9, April 9, and April 12, military police accompanied by other military personnel violently dispersed protesters and arrested at least 321 persons from Tahrir and Lazoughli squares. At least 76 of them remain in detention after unfair trials before military courts.

Human rights lawyer Adel Ramadan from the Egyptian Initiative for Personal Rights, who has been representing defendants before military courts, told Human Rights Watch that, based on court rolls and case numbers, military courts handed down over 5,000 sentences across the country between February 11 and the middle of April. The military courts typically handle groups of between five and thirty defendants at a single trial, with a trial lasting 20 to 40 minutes.

Egypt's Emergency Law, in place since 1981, and the Code of Military Justice authorize the president to refer civilians for military trials. Under the Mubarak government, such trials were reserved for high-profile political cases, such as the 2008 conviction of the former deputy guide of the Muslim Brotherhood, Khairat al-Shatir, and 24 others; cases in which the defendants had been arrested in a military zone such as the Sinai; or bloggers who criticized the military.

Since February, however, the military has tried thousands of civilians before military courts under the Code of Military Justice. The code, in articles 5- 6, allows for such trials only under specified conditions, such as when the crime takes place in an area controlled by the military or if one of the parties involved is a military officer. In a live television interview on a local station, ON TV, on April 11, Gen. Ismail Etman, the military's head of Morale Affairs, said that "in cases where it affects the security of the armed forces or the security of the country such as thuggery, looting or destruction of property, theft, and especially if one of the parties is a military officer, we transfer it to military trials to be looked into immediately."

The Code of Military Justice should be amended to restrict the jurisdiction of the military courts to trials only of military personnel charged with offenses of an exclusively military nature, Human Rights Watch said.

The Egyptian military amended the country's penal code on March 1, under the legislative powers accorded to it by the Constitutional Declaration of February 13, to add the crime of "thuggery" in articles 375bis and 375bis (a) entitled "causing fear, intimidation and affecting sense of security." It defines "thuggery" as "displaying force or threatening to use force against a victim" with the "intention to intimidate or cause harm to him or his property."

The wholesale use of military courts to try civilians comes at a time when the military is trying to reassure Egyptians that it is taking a strong stance to suppress criminal activity. Since February 26, the military has sent faxes to Egyptian media listing the names and sentences of 647 civilians tried before military courts, lists that newspapers reproduced without providing any further information.

Based on these lists, over the past two months, military courts in Cairo, Alexandria, Ismailiyya, and other cities have sentenced civilians to prison terms ranging from six months to seven years - in at least three cases even 25 years' or life imprisonment. The charges typically were breaking curfew, possession of illegal weapons, destruction of public property, theft, assault, or threat of violence.

"Those who commit genuine crimes should be tried in regular criminal courts, as they have been in the past." Stork said. "Egyptian prisons are now filled with thousands of civilians who were convicted by fundamentally unfair military courts, often on dubious charges."

Defendants in military trials have no access to counsel of their own choosing, except in high-profile cases such as the blogger Maikel Nabil. Dozens of protesters arrested on March 9 were not allowed to speak to their court-appointed lawyers before or during the trial or to communicate with their families to request a lawyer. Military prosecution officials denied human rights lawyers access on at least three occasions when groups of protesters were being interrogated and tried.

Most Egyptian news media have been unwilling to report on arbitrary arrests and allegations of torture of protesters by the military police. The media also largely ignored two March news conferences by human rights lawyers in which a number of torture victims testified. Only a few opinion writers and TV hosts have been willing to raise the issue of torture and arbitrary arrests by the military.

On March 22, General Etman sent a letter to editors of Egyptian newspapers telling them "not to publish any articles/news/press releases/complaints/advertising/pictures concerning the armed forces or the leadership of the armed forces, except after consulting the Morale Affairs directorate and the Military Intelligence since these are the competent parties to examine such issues to protect the safety of the nation."

On April 14, the military said, in its Statement Number 36, that it would review the detentions of "all the youth ... tried in the recent period," an apparent reference to the protesters, but Human Rights Watch is unaware of any movement in their cases. The military had earlier announced that it was reviewing the sentencing of two protesters, Amr Eissa and Mohamed Adel, and also ordered the retrial of Walid Sami Saad.

Two lawyers, Khaled Ali and Taher Abul Nasr, brought a case before Egypt's Court of Administrative Justice on behalf of a former military detainee, Rasha Azab, challenging the military's administrative decision to try civilians before military courts. The court held the first session in the case on April 19 and adjourned the case until May 10.

If the court decides it is competent to rule on this issue, this would be the first step toward the judiciary reasserting control over the administration of criminal justice, Human Rights Watch said. Thus far, civilian judicial bodies have had little say over military abuses, and the Public Prosecutor has referred torture complaints against the military to military prosecutors.

International Law
Human Rights Watch strongly opposes any trials of civilians before military courts, where the proceedings do not protect due process rights and do not satisfy the requirements of independence and impartiality of courts of law. International human rights bodies over the last 15 years have determined that trials of civilians before military tribunals violate the due process guarantees found in article 14 of the International Covenant on Civil and Political Rights (ICCPR), which affirms that everyone has the right to be tried by a competent, independent, and impartial tribunal.

These bodies have consistently rejected the use of military prosecutors and courts in cases involving abuses against civilians, by stating that the jurisdiction of military courts should be limited to offenses that are strictly military in nature. The Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, presented before the former United Nations Human Rights Commission in 2005, state that "the jurisdiction of military tribunals must be restricted solely to specifically military offenses committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court."

The Human Rights Committee, the international expert body authorized to monitor compliance with the ICCPR, has stated that civilians should be tried by military courts only under exceptional circumstances and only under conditions that genuinely afford full due process. The African Commission on Human and Peoples' Rights, in interpreting the African Charter on Human and Peoples' Rights, has said that military courts "should not, in any circumstances whatsoever, have jurisdiction over civilians."

Arbitrary Arrest and Military Convictions of Peaceful Protesters

February 26 Protest
One of those detained for participating in peaceful protest is Amr al-Beheiry, whose case alerted human rights lawyers to the fact that protesters were being brought before military courts.

Military officers arrested al-Beheiry, along with at least eight others, in the early hours of February 26 after forcibly evicting protesters from Tahrir Square. Mona Saif, an activist, told Human Rights Watch that she and her mother, Laila Soueif, intervened when they saw military officers first arrest al-Beheiry, and they were able to secure his release. Al-Beheiry had bruises on his face and told Saif that officers had beaten him. After they parted ways, military officers re-arrested him.

Al-Beheiry's family learned of his arrest from the newspaper and contacted Ramadan, the defense lawyer, who unsuccessfully tried to gain access to him at the military base on March 1 and only then learned that al-Beheiry had been tried and sentenced on February 28. Al-Beheiry is serving a five-year sentence in Wadi Gedid prison, 400 miles from his home, rather than in Tora prison outside Cairo.

March 9 Protest
Of the 173 detainees arrested on March 9 from Tahrir Square, at least 76 are believed to remain in prison after military courts sentenced them to prison terms ranging from one to three years on charges of breaking curfew, possession of explosives and knives, and destruction of property.

Human Rights Watch has interviewed 16 men and women who testified to being tortured by beating, electroshocks, and whipping by military officers on March 9 in the grounds of the Egyptian Museum, adjacent to Tahrir Square. Ahmed al-Sharkawy, one of 22 men released on March 12, told Human Rights Watch:

I was one of the protesters in Tahrir. Military officers beat me at the museum on March 9, used electroshocks on my legs and my neck and whipped me on my back with an electric cable. Later they moved us to the military camp S28 where a camera crew filmed us at a table with sticks, knives and Molotov cocktails placed before us, saying we were thugs. My father saw this on state television that evening and that's how he knew I'd been arrested.

The next day they took us to the military prison and brought each of us before the prosecutor. He asked me what I was doing in Tahrir and I said I was just walking past. He told me was charging me with being a thug and I denied all the charges. I was with him for around 15 minutes.

A while later they took me along with 29 others before a military judge. There were three court-appointed lawyers - I tried to ask their names but they told us they couldn't speak to us. He asked us one question "Why were you in Tahrir?" The whole process took around 20 minutes and then they took us to our cells. On Saturday [March 12], an officer came and called me out of the cell. He released me along with 21 other men and the 17 women.

Some of the protesters were able to alert lawyers shortly after they were arrested. Ramadan and Omran went to the military prosecutor's office on March 9 and requested access to the detainees, but officials there denied the detainees were being interrogated and said they would not be brought to trial until March 12. When Ramadan returned on March 12, military officials at the military prosecutor's office told him the group had been tried and sentenced on March 9.

Human Rights Watch interviewed 11 members of the group tried by military courts on March 9. They all said military police and other military officers had arrested them where they were protesting in Tahrir Square, and that military officers beat them in the grounds of the Egyptian Museum. They also said they had no access to lawyers prior to their trials or the chance to speak to court-appointed lawyers at the proceedings. They did not learn about their sentences until, at the earliest, six days later, when their families visited them in prison and saw their sentences on the visiting list.

Human Rights Watch has interviewed six people, received letters from prisoners, reviewed video footage of the events of March 9, and spoken with four prisoners' families to confirm the following cases of protesters who remain inside Tora's high security prison:

Rai'f Kashef, 22, a second-year business student, was arrested at the same time as his brother Ragui in Tahrir Square. Ragui told Human Rights Watch that military officers arrested them and took them to the museum, where the officers beat and subjected the brothers to shocks with electric stun devices. The officers then brought them to a military base, where military prosecutors questioned them separately and brought them before military judges for trial in groups of 25 to 30. Military officers released Ragui Kashef on March 12 along with 21 other men but sentenced his brother to a year in prison.

Amr Eissa, 26, an artist, was arrested along with Ragui Kashef and Khaled Sadek in front of the KFC restaurant in Tahrir Square and sentenced to three years in prison, his brother, Mostafa, told Human Rights Watch.

Eissa's was one of the two cases the military said it would review. In its Statement 30 on March 28, in which it ordered a review of the legal proceedings against him, the military stated that,

"The Egyptian armed forces announced its position at the beginning of the January 25 revolution toward the youth of the revolution that it will not stand against the free youth and that all of the legal measures that have been taken in the past period have been solely directed against acts of thuggery which have terrorized the people."

As of April 18, however, Eissa remained in Tora's high security prison. Mostafa Eissa has been campaigning on his brother's behalf, but said there had been no developments since the military announced it was reviewing the conviction.

Mustafa Abdelmoneim, 25, works in an advertising production company and took part in the Tahrir Square demonstrations from the beginning. On March 9, he was standing next to the tents protesters had set up when army officers, together with men in civilian clothes, started breaking down the tents and arresting demonstrators. In a letter written from his Tora prison cell, he wrote that he had been arrested by two military police officers, who took him to the museum and beat him on his back and his legs and used electric stun guns on him, then took him to the military camp and then before the military prosecutor and court. He told them he was tried in a group of about 30 before a military judge in a hearing that lasted 20 minutes. He said he first learned of his three-year prison sentence from his family when they came to visit him.

Hani Maher Mikhail, 26, from Imbaba, was also one of the demonstrators in Tahrir Square from the beginning. On March 9 men in civilian clothes came into the tent area to take down the tents. Mikhail went to nearby Talaat Harb Street and on his way back to the square, two officers in uniform and two men in civilian clothes arrested him and took him to the museum, where military officers beat him and used electric stun guns on him. A military judge sentenced him to three years in prison, along with a group of about 30 others.

Tamer al-Shishtawy, from Tanta, took part in the Tahrir demonstrations beginning on January 28. Military officers took him to the museum on March 9 and beat him. He said that he was tried together with 30 others by the military judge and was not permitted to speak to a lawyer.

"It is outrageous that those who peacefully protested against Mubarak should now be imprisoned after unfair military trials for peacefully protesting against the new authorities," Stork said. "The military should release all those held arbitrarily and retry any persons suspected of a criminal offence in fair proceedings before civilian courts."

The names of 76 of the protesters now imprisoned in Tora and Wadi Gedid prisons after sentences by military courts are:

• 1. Amr Beheiry, 32 years
• 2. Amr El Sayed Eissa Ismail, 26 years
• 3. Hany Maher Hanna, 26 years
• 4. Rai'f Mohamed Abd El Razek, 22 years
• 5. Mustafa Mohsen Abd El Meniem, 26 years
• 6. Abd El Raheem Saeed, 21 years
• 7. Abd El Aziz Emyawy Abu Bakr, 23 years
• 8. Abu Zeid Abd El Naby, 32 years
• 9. Adel Gomaa Mohamed Mansour, 28 years
• 10. Ahmed Adel Hassan, 20 years
• 11. Ahmed Ibrahim Mohamed, 40 years
• 12. Ahmed Mohamed Abd El Hamid, 29 years
• 13. Ahmed Mohamed El Sagheer, 20 years
• 14. Ahmed Mohamed Zayed, 27 years
• 15. Ahmed Yassin Khalil, 48 years
• 16. Aly El Sayed Aly, 32 years
• 17. Aly Ibrahim Aly, 26 years
• 18. Amr Shaaban Aly, 28 years
• 19. Ashraf Zaky Abd El Aziz, 35 years
• 20. Ayman Abd El Hamid Waer, 38 years
• 21. Bahaa Gamal El Sayed Mohamed, 40 years
• 22. Beshoy Selim Fawzy, 23 years
• 23. Bola Ayad Saad, 22 years
• 24. Eissa Mahmoud Ahmed Mohamed, 22 years
• 25. Fady Maher Mounir, 31 years
• 26. Farid Samir Aly, 23 years
• 27. George Magdy Atta, 24 years
• 28. Ghareeb Omar Hassanein, 26 years
• 29. Hesham Outhman Karim, 35 years
• 30. Ibrahim Baltan Ibrahim, 26 years
• 31. Ibrahim Teqy Isaq, 34 years
• 32. Islam Abd El Hafiz Mohamed, 20 years
• 33. Ismail Sabry Ismail, 36 years
• 34. Khaled Abd El Hamid, 34 years
• 35. Khaled Gamal Khalifa, 23 years
• 36. Khaled Mohamed Morsy Oada, 46 years
• 37. Mahmoud Ibrahim Ahmed, 21 years
• 38. Mahmoud Mamdouh Fadel, 18 years
• 39. Mahmoud Shakl Mahmoud, 26 years
• 40. Malak Hanin Zaky, 23 years
• 41. Mansour Mohamed Adly, 29 years
• 42. Mina Raafat Mounir, 26 years
• 43. Moataz Ahmed Abdallah, 22 years
• 44. Mohamed Abd Allah Khalil, 27 years
• 45. Mohamed Eid Abd El Kader, 22 years
• 46. Mohamed Essam Mohamed Gameel, 21 years
• 47. Mohamed Fathy Abd El Rahman, 35 years
• 48. Mohamed Hassan Abd El Fattah , 26 years
• 49. Mohamed Ibrahim Ahmed, 46 years
• 50. Mohamed Ibrahim Mohamed, 30 years
• 51. Mohamed Mustafa El Sawy, 27 years
• 52. Mohamed Omar Mohamed Adam, 29 years
• 53. Mohamed Shebl Rizk, 22 years
• 54. Mostafa Ahmed Soliman, 32 years
• 55. Mostafa Gouda Mohamed, 28 years
• 56. Mostafa Mohamed Sayed, 25 years
• 57. Mourad Fayez Lotfy, 32 years
• 58. Mustafa Samir Khamees, 30 years
• 59. Ossama El Sayed Farid, 21 years
• 60. Ossama Rabea Shehata, 28 years
• 61. Reda Mohamed Ibrahim, 18 years
• 62. Romany Faheem Salama, 29 years
• 63. Romany Kamel Soliman, 23 years
• 64. Saber Rizk Gendy, 44 years
• 65. Sameh Milad Rizk, 29 years
• 66. Sameh Samir Amin, 29 years
• 67. Samir Hassan Ibrahim, 20 years
• 68. Someaul Milad Rizk, 24 years
• 69. Tamer El Sheshtawy, 29 years
• 70. Walid Magdy Mamdouh, 29 years
• 71. Walid Samy Saad, 27 years
• 72. Wessam Hassan Mohamed, 34 years
• 73. Yasser Mamdouh Ramadan, 31 years
• 74. Younan Hanin Zaky, 25 years
• 75. Zaher Haroun Daniel, 25 years
• 76. Zaky Abd El Aziz Shaker, 34 years