Summary of the ACIJLP's first annual report on Justice in Egypt
Arab Center for the Independence of the Judiciary and the Legal Profession
In its first annual report on justice in Egypt, the ACIJLP notes the following:
* Continued assaults on the independence of the judicial authority through referring civilians to military courts and state security (emergency) courts. 317 accused civilians referred to military courts in 1997; 16 among then received death penalties; 126 accused civilians referred to state security courts (emergency); 6 among them received death penalties.
* Assaults on lawyers at police stations and military courts have become common.
* 66 lawyers detained in Egyptian prisons.
* Lawyers working on political cases are increasingly subject to threats and harassments involving not only them but also their families.
The ACIJLP issues today its first annual report on justice in Egypt. The report deals with the status of the independence of the judicial authority and the legal profession this year. In its monitoring and evaluation of violations of the independence of the judiciary and the legal profession, the report relies on the complaints and information received by the ACIJLP, as well as the efforts of the lawyers involved in the ACIJLP's "Monitoring and follow up project" in documenting this information through their visits to places were such violations take place like prisons, and their supervision of investigations and trials pertaining to these violations.
This report deals with the status of the independence of the judiciary and the legal profession in Egypt in 1997, through three main parts:
Part one : Dealing with the status of the independence of the judicial authority during 1997.
Part two : dealing with the status of the independence and freedom of the legal profession during 1997.
Part three: ACIJLP's recommendations.
The report observes a number of important phenomena and features: First : Regarding the legislative framework covering the independence of the judiciary and the legal profession:
1. The practice of resorting to some constitutional texts that should be amended, in justification of the establishment of exceptional courts in violation of the independence of the judicial authority, has continued this year. This particularly applies to texts allowing the establishment of a special judiciary denying the judicial authority its intrinsic jurisdiction of considering important cases. A good example is article 167 of the Constitution which grants the legislator the authority to organize judicial bodies and determine their jurisdiction. On the basis of this article of the Constitution, the Supreme Constitutional Court has ruled to grant the State Security Court (Emergency) the right to consider all appeals and complaints against detention orders, instead of the State Council which is the natural judge.
Article (171) of the Constitution - which asserts the constitutionality of state security courts - is also used in justifying the two kinds of state security courts, with their mixed composition negating the principle of the natural judge.
2. This year also witnessed the extension of the emergency situation for three years starting from February 1997 up to February 2000, which means 19 consecutive years of emergency. In accordance with this extension, emergency legislation continues the expansion of its jurisdiction in violation of not only the legislative authority, but also the juridical one. The year witnessed also passing law 1 of 1997 organizing appeals against final rulings of the Supreme Court of Values. Despite the fact that this amendment enables litigants to appeal before the Cassation Court against rulings of the Supreme Court of Values(1), this legislation still represents a consolidation of integrating the Court of Values within the framework of normal judicial bodies and the Egyptian judicial system, even though it is an exceptional court with mixed composition.
3. The report notes also what might be described as legislative violation of the independence of the judiciary, in the form of many legislations consolidating assaults on this independence by providing judicial status to non- judicial bodies. Our example is the texts of law 25 of 1996 concerning military courts, especially article 6 enabling the President to refer citizens to military courts either in normal (according to the first clause of article 6) or exceptional (according to the second clause) conditions.
Another example is law 25 of 1980 concerning protecting values from blemish which established the Court of Values and the Supreme Court of Values. This kind of judiciary has sole jurisdiction over all lawsuits of liability filed by the Socialist General Prosecutor on actions described in this or another law. It is well known that these courts have an exceptional composition violating the principle of the natural judge. They also grant the Socialist General Prosecutor, who is subordinate to the executive authority as well as the leadership of the judicial authority, the right to represent the authorities of investigation and accusation.
Law 40 of 1977 concerning political parties is also still operating. Article 8 of this law stipulates the formation of a mixed and exceptional court to examine appeals against the Political Parties Committee decisions. This constitutes an assault on the jurisdiction of the Egyptian State Council (an independent judicial body according to article 172 of the Constitution), as it stipulates the addition of an identical number of public figures to the composition of the first circuit of the Supreme Administrative Court in order to examine these appeals.
Law 105 of 1980 on the establishment of state security courts, and law 162 of 1958 concerning emergency legislation are also still operating. The first enables the President of the Republic to add army officers from the military judiciary to the composition of supreme state security courts. And the extension of emergency legislation this year consolidates an internationally forbidden exceptional judiciary.
4. The report also notes the continued operation of many texts that allow the executive authority the right to interfere in and even supervise the judicial authority. Several texts in Law 46 of 1972 concerning the judicial authority give the Minister of Justice the right to supervise all courts and judges (article93), and even to inspect the work of judges by making the Judicial Inspection Department subordinate to the Ministry of Justice (article 78). The ministry is also given the right to supervise the qualification of judges through its supervision over the National Center of Judicial Studies.
The report also remarks that the Judicial Authority Law reduces the jurisdiction of the Supreme Judicial Council by stipulating its consultation rather than approval when it comes to many important issues pertaining to judges, such as seconding judges and the President's appointment of both the General Prosecutor and the head of the Court of Cassation.
This year witnessed the continued application of law 32 of 1964 regarding associations and civil institutions to the Judges' Club. This is an outrageous violation of judges' rights of free expression, association and organization; this law imposes very strict constraints consisting of the supervision of the Ministry of Social Affairs of civil associations.
5. This year also witnessed the survival of stipulations of Law 100 of 1993 on the Democracy of Professional Union Organizations, and its amendment by Law 5 of 1995, according to which the Egyptian Judiciary was to interfere in the affairs of professional unions in a total denial of the concept of union freedom stipulated in international human rights documents considering union elections to be an internal affair of any union association, not subject to any external supervision. Second : Concerning the most salient violations monitored by the ACIJLP pertaining to the independence of the judiciary and the legal profession this year :
1. This year witnessed the continuation of referring civilians to military courts. Seven lawsuits including 317 accused civilians were referred to military courts; rulings were passed in five of these lawsuits including 11 death penalties. The year also witnessed referring seven lawsuits to the Supreme State Security Court (Emergency) including 126 accused; rulings were passed in four of these suits including six death penalties.
An important ruling was also passed on 8 November 1997 by the Supreme Administrative Court circuit formed in according with article 8 of Political Parties Law. The ruling rejects the appeal of the founders of the Constitutional Party, and supports the decision of the Political Parties Committee refusing the establishment of this party. This court has an exceptional mixed composition, and represents an assault on the jurisdiction of the State Council in examining these appeals.
2. The year also witnessed a continuation of attacks on lawyers' right to have a free and independent union organization, by the survival of the complicated situation of the Bar Association, which lacks an elected council and head. The ACIJLP charges the Egyptian government with the main responsibility for this situation, as it issued law 100 of 1993 with its amendments, and appointed the judicial sequestration committee which enjoyed the continuation of this complicated situation, and extended sequestration to all branches of the Association in Egypt. The ACIJLP also sees that the judicial committee supervising elections has been unjustifiably slow in carrying the elections despite many judicial rulings binding it to carrying them.
3. The report notes an important and dangerous phenomenon consisting of lack of respect for stipulations of the law, especially regarding respecting the rights of the defense.
The ACIJLP asserts that the lack of respect for these rights is the result of a widespread general atmosphere of disrespect to the sovereignty of law and human rights and freedoms. The ACIJLP sorrily declares that this phenomenon has become widespread among policemen, who are responsible for executing the law. Consequently, many lawyers were subjected to arbitrary arrest at police stations while performing their duties. The year also witnessed the detention of four lawyers while performing their duties, and the continued detention of 62 lawyers either for practicing their job or due to their political activities. The number of detained lawyers whose whereabouts are not known reach 57 lawyers. This year also witnessed referring 16 lawyers to exceptional courts such as military and state security courts (emergency).
4. Violations of the right of defense included assaults on the integrity of lawyers while performing their work. Cases monitored by the report varied between beating in police stations, harassment by State Security Investigation men, and threats to lawyers and their families because of their defense of political activists. The year also witnessed the expansion of cases of insults to lawyers while performing their work, as well some cases where lawyers were beaten by court secretaries.
New evidence appeared on the death of lawyer Abdel Hareth Madani due to torture in February 1994. The new evidence appeared in connection to the "bank explosions case" and largely confirm that his death was caused by torture.
5. The ACIJLP regrettably declares also that this year witnessed preventing many lawyers from acting as defense before military and state security prosecutions. One of the most salient of these cases was the prevention of 19 lawyers from acting as defense before the state security prosecution in the case of renewing the arrest of a person accused in a political case, on 29/7/1997. The defendant was accused of instigating peasants against the implementation of law 96 of 1992 on the owner/tenant relationship in agricultural land.
The ACIJLP assents that the most serious assault on the right of defense consists in preventing lawyers from presence before courts and prosecutions, as it annuls all other rights of defense.
The report also observed the increase in cases of making lawyers responsible for their escaped clients' offenses in political cases, as well as the expansion of the practice of denying lawyers sight on their cases' files, which are the main source helping lawyers to prepare their defense! This year also witnessed continuing the practice of closing many prisons to lawyers' visits to their arrested clients, and preventing lawyers who have legal permissions to visit prisons from carrying out their visits. In some cases, lawyers were abused in various ways such as asking to stamp their hands with the prison stamp. Among the most prominent of these closed prisons for many years are a particularly severely guarded prison in Tora, the Fayyum prison, Abu Zaabal, and all prisons in Minya Governorate. Things escalated to the closure of Tora hospital before lawyers' visits if patients were referred to that hospital from closed prisons.
The report concludes with some recommendations, including :
1. Purging the Egyptian Constitution of many texts allowing violations of the independence of the judicial authority.
2. Canceling all exceptional and special courts in Egypt.
3. Complete judicial supervision of prisons, and the establishment of a judicial police.
4. Issuing firm Interior Ministry directives to all police officers at police centers and stations on the necessity of respecting the stipulations of the law and the Constitution, and inflicting deterring administrative punishments on all violators of the law and abusers of citizens and lawyers' dignity.
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(1) This legislation was issued in accordance with the ruling by the Supreme Constitutional Court issued on 5 August 1995 denying the constitutionality of article 50 of Court of Values Law number 95 of 1980.
This document is published online by Derechos Human Rights