The Rule of Law v. Staying in Power The State of Egypt v. Saad Eddin Mohammed Ibrahim

CRIMINAL CASE NO. 13422/2000 BEFORE THE EGYPTIAN COURT OF CASSATION, CRIMINAL DIVISION, CAIRO, EGYPT

in Yearbook of Islamic and Middle Eastern Law Online
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The Rule of Law v. Staying in Power The State of Egypt v. Saad Eddin Mohammed Ibrahim

CRIMINAL CASE NO. 13422/2000 BEFORE THE EGYPTIAN COURT OF CASSATION, CRIMINAL DIVISION, CAIRO, EGYPT

in Yearbook of Islamic and Middle Eastern Law Online

References

I See, e.g., United States Department of State, Country Reports on Human Rights Practices 2001, released in March 2002 (stating "under the Emergency Law, cases involving terrorism and national security may be tried in military or State Security Emergency , courts, in which the accused do not receive all the normal constitutional protections of the civilian judicial system"); Amnesty International, Egypt, Verdict Due in Unfair Trial of

cont.52MenProsecuted forAllegedSexualOrientation, AI Index: MDF, 12/030/2001, publication date 12 November 2001 accessed at http://www.amncstyusa.org/ncws/2001/ egypt11122001.html (3 March 2002) and International Commission of Jurists, Attacks on Justice 2000 - Egypt, posted on Monday, 13 August 2002 at 15:21:17 EDT accessed at http://www.icj.org (2 July 2002). 2 United Nations, Press Release of 21 May 2001 by the Special Representative of the Secretary-General on Human Rights Defenders, Ms Hina Jilani, and the Special Rapporteur on the Independence of Judges and Lawyers of the Commission on Human Rights, Mr. Dato' Param Cumaraswamy accessed at http://www.unhchr.ch/ (25 May 2001). ). 3 This was evidenced by the long list of noted personalities who testified on his behalf at the trial, including, for example, the well-known Egyptian playwright Ali Salcm, who had actually written the script to the video that was crucial to the charges that Saad Eddin Ibrahim had spread information tarnishing the reputation of Egypt. Also see Al Ahram (English language weekly newspaper) (25-31 January 2001) accessed on 1 July 2002 at http://www.ahram.org.cg (listing among those who testified on Saad Eddin Ibrahim's behalf: Dr. Ahmed Kamal Abu Al-Magd, prominent Cairo University professor of law and member of lbn Khaldun Center Board of trustees; Dr. Saeed Al-Nagar, former professor of economics and law, Legal advisor to the World Trade Organization, and president of The New Civic Forum of Egypt; Dr. Ibrahim Shehata, prominent economist and deputy director of the World Bank; and Dr. Abd I?I-Moneim Said Ali, Ibn Khaldum Centre trustee and Director of Al-Ahram Centre for Political and Strategic Studies, and ALAhram (Arabic newspaper) (2 May 2002), cited in http://www.democracy-cgypt.org accessed on 28 July 2002 (listing among those who testified on Saad Eddin Ibrahim's behalf, Amina Shafiq, a prominent Al-Ahram journalist). 4 See, e.g., Chief Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression: Tbe Slave Labor Program, Vol. I, Chap. X at 892 and 893 (1946). Also see Human Rights Watch, Egypt - The State of Egypt vs. Free Expression: The Ibn Khaldun Trial, Vol. 14, No.1 (E) (January 2002) (criticizing the Egyptian government for using such repressive measures in other circumstances) (hereinafter The State of Egypt vs. Free Expression). 5 Garida Rasmiya, vol. 29, 22 July 2000, pp. 3-15. Judgment of the Egyptian Constitutional Court delivered on Saturday, 8 July 2000. 6 The Supreme State Security Court cited a communication by Saad Eddin Ibrahim to a German non-governmental organization in which this statement was made.

7 The State of Egypt vs. Free Expression. 8 See Judgment of the Court of Cassation at pp. 6-8. 9 Saad Eddin Ibrahim, al-Majalla (Arabic newspaper) (2-8 July 2000) accessed at http://www.sunnah.org (3 July 2002). ° D.J. Warr, The State ofFreedom ofExpression in Egypt, Canadian Committee to Protect Journalists (7 November 1997) accessed at http://www.cjfe.org (2 July 2002). 11 See Amnesty International, Egypt: Imprisonment of Human Rights Defenders, AI Index, MDE 12/016/2001 (20 June 2001). 'z SeeAl-Mussawaar (newspaper), pp. 18-21 (1 June 2001).

3 See, for example, Joint motion for a resolution on human rights in Egypt, EU Docs. No. B5-0440/2001, B5-0450/2001, B5-0466/2001, B5-0471/2001 adopted 14 June 2001. 14 Article 7 of the Framework Convention on the Implementation of Financial and Technical Cooperation Under the MEDIA Programme as well as Other EIB's Financial Agreements in Mediterranean Countries, signed 19 July 1997, entered into force 1998. 5 See, e.g., Al-Gamburyiab (The Republic newspaper) (6 July 2000). 16 Charges of espionage were also brought on 6 'August 2000, but no action has been taken to prosecute these charges after the prosecutor stated in his opening statement that

cont. these charges were being referred to a competent court. The charges arose from statements made by Saad Eddin Ibrahim in Washington, DC in 1994 at an academic conference in which he described his research about the Islamic movement. See The National Academies (of the United States), Committee on Human Rights, accessed at http://www4.nas.cdu/ (5 July 2002). 17 These two defendants, one a police officer and the other a civil servant were charged and convicted of violations of Articles 103, 104, 107bis, 207, 211, and 214. On appeal the Court of Cassation found that the trial court had erred by sentencing the convicted to prison sentences instead of fines and that sentences for bribery should have been a life sentence of hard labour instead of shorter sentences. These convictions were also sent back to the Supreme High Security Court for re-trial. See Judgement of the Court of Cassation, Criminal Division, Case No. 203000 (2 February 2002) (original in Arabic) (hereinafter "Judgment of the Court of Cassation"). 18 Case No. 270 (2000) Permanent High Security Court. Law No. 105 of 1980 on the Establishment of State Security Courts, which came into force on 21 May 1980. 20 Law No. 162 of 1958 State of Emergency Law (as amended and renewed). 21 Quoted at http://jurist.law.pitt.edu/world/egypt.htm accessed on 2 July 2002, which in turn cites the United States Department of State as its source. Also sec UN Doc. CCPR/C/79/Add.23 (9 August 1993) (expressing the view of the United Nations Human Rights Committee that the 19-year-long state of emergency is "one of the main difficulties impeding the full implementation of the Covenant" in Egypt). zz Article 2 of Law No. 105 (1980). z3 See supra, at note 3.

z4 Just days after the trial court's judgment article 48 was found to be unconstitutional and in violation of Articles 41 (freedom from arbitrary arrest and detention), 65 (supremacy of the rule of law), 66 (requirement that crimes be specified by law and personal), and 67 (the right to be presumed innocent until proven guilty and the right to legal defense) of the Egyptian Constitution. Al-Sa'id 'Bid Taha Nour v. the President of tbe Republic, the Minister ofJustice, the President of the 1'eople's Assembly and the Prosecutor General, Supreme Constitutional Court Ruling No. I 14 of Judicial (Constitutional) Year 21. z5 Judgment of the Court of Cassation, supra note 17. zb Ibid. at 14. z� Articles 47 (freedom of opinion), 48 (liberty of press), 49 (freedom to conduct research) and 57 (freedom of person) of the Egyptian Constitution. 2R By virtue of Article 151 of the Egyptian Constitution duly ratified treaties have the force of law in Egypt.

29 Court of Cassation Judgment, supra note 17 at 7. 3o Article 310 of the Criminal Procedure l,aw. 3t Court of Cassation Judgment at 8. The Court of Cassation pointed out that the trial court relied on statements by prosecution witnesses Abdel Hadi Fl Sayed Abdcl Fattah and Khalid Mohamed Fayyad that were not found anywhere in the prosecution's investigation and that the trial court failed to reconcile contradicting statements from these same two witnesses as concerns the use of funds that were allegedly misappropriated. 3z Court of Cassation Judgment at 7 and 8. 33 Ibid. at 8-10. ;4 Ibid. at 7. 35 Ibid. 36 See supra at note 14. 37 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, UNGA Res 144, UN Doc. 53/144 (9 December 1998) (adopted by consensus). See Article 6(a) ("Everyone has the right, individually and in association with others: To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems"; Article 6(b) ("Everyone has the right, individually and in association with others: As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all individually and in association with others: To study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters").

38 Law of 3 June 2002. 39 Statement from the European Union Presidency, "Declaration by the Presidency on behalf of the European Union on the sentences against Dr. Saad Eddin Ibrahim/Ibn Khaldoun Centre" (27 May 2001 ) accessed at http://www.geocities.com/lrrc.geo/Saad/eustatementmay2001.htm (2 July 2002) and Statement from the European Union Presidency, "Declaration by the Presidency, on behalf of the European Union, on the trial in Egypt Against Dr. Saad Eddin Ibrahim and the employees of the Ibn Khaldoun Centre and Hoda Association," EU Doc. No. 11415/02 (Presse 225), P 100/02 (Brussels, 30 July 2002). 4o Article 310 of the Criminal Procedure I,aw. 41 Court of Cassation Judgment at 8. 'z Ibid. at 11. " Ibid. at 9 and 10. 44 Ibid. at 10. 45 Article 35(2) of the Law Concerning Appeals to the Court of Cassation, prohibits interference with a flawed judgment of a trial court except when it is in the interest of the appellant. After his release, Saad Eddin Ibrahim underwent extensive medical tests that indicated that his degenerative neurovascular disease had become worse as a consequence of a series of small strokes that he had suffered in detention. Several medical experts also provided uncontroversial written statements claiming that no adequate medical treatment for his condition could be obtained in Egypt.

47 For example, on 26 September 2002 a hundred of Egypt's leading intellectuals called for Saad Eddin Ibrahim's release. Anonymous, "Intellectuals call for Ibrahim release", Cairo Times (3 October 2002). 4s Statement attributed to Hanny Megally, Executive Director Middle East and North Africa division, Human Rights Watch, in Egypt,: Ibn Khaldoun Verdict Meant to Silence Criticism, Ibrabim Should Receive UrgentMedical TreatmentAbroad, dateline New York, 31 July 2002 accessed at http://www.hrw.org (1 August 2002). 4y N. Abou El-Magd, "Imprisoned rights activist does not want US to cut off aid, his wife says", Associated Press (27 August 2002). 5° Saad Eddin Ibrahim, "Message from Saad Eddin Ibrahim delivered in absentia at Freedom House during the Bette Bao Lord Award Reception", Washington, DC, USA (21 October 2002). si Ibid. 52 The Lawyers' Committee for Human Rights and Freedom House. 53 This award was eventually awarded to Cuban dissident Oswaldo Paya Oswaldo Paya.

s4 999 UNTS 171 (1966). 55 993 UNTS 3 (1966). 56 African Charter on Human and Peoples' Rights, adopted at Nairobi on 27 June 1981, entered into force 21 October 1986, OAU Doc. CA13/LEC/67/3/Rcv.S (1981), reprinted in 21 International Legal Materials 59 (1982), 7 Human Rights Law journal 403 (1986). s� Articles 55 and 56 of the African Charter. The first article provides for inter-state complaints, thus another state could bring a case against the government of Egypt. While this is unlikely, Article 56 provides for the more realistic and more frequently used possibility that an individual - either Saad Eddin Ibrahim, his legal representatives or anyone having detailed knowledge of a violation of his human rights - could bring a case. 5M While another appeal to the Court of Cassation is possible as well as an appeal to the Constitutional Court concerning the legality of Decree 4/1992, these remedies arc extraordinary and limited in scope and do not constitute domestic remedies that need to

cont. be exhausted. There is also the possibility of an appeal to the President of Egypt for a pardon, but again this is an extraordinary remedy. �9 Egypt is legally bound by its obligations under the African Charter on Human and Peoples' Rights. Egypt deposited its ratification to this human rights treaty on 3 April 1984. Furthermore, according to Article 151 of the Egyptian Constitution this treaty is part of Egyptian law. so Ibid. 61 Declaration by the Presidency, on behalf of the European Union, on the trial in Egypt against Dr. Saad Eddin Ibrahim and the employees of the Ibn Khaldoun Centre and Hoda Association issued on 5 August 2002. 62 Letter of Appeal from the AAAS Committee on Scientific Freedom and Responsibility dated 6 August 2002, reproduced at http://shr.aaas.org (10 August 2002). 63 See supra at note 9.

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