VI. THE SUBSTANCE OF THE CHARGES AGAINST THE DEFENDANTS, 
THE VERDICT, AND JUDGMENT

The following are the details of the charges against the defendants and the main points contained in the judgment, which was issued on June 9, 2001:

Conspiring to bribe public officials to undermine the performance of their duties
This charge was brought under the provisions of articles 40 (2) and (3) and 48 of the Penal Code. Article 48 provides a penalty for criminal conspiracy by two or more persons even if no crime has actually been committed. In other words, criminal conspiracy is considered a crime in itself, and belongs to a category of crimes punishable by between three and fifteen years of imprisonment.²⁶ The prosecution charged Saadeddin Ibrahim with conspiring, and inciting four of his co-defendants, to bribe public officials of the Egyptian national Broadcasting and Television Center in return for media coverage of the Ibn Khaldun Center's activities, with the aim of securing further funding from the E.U. The four co-defendants charged under these articles were: Nadia `Abd al-Nour, Khaled al-Fayyad, Usama Hammad Ali and Marwa Ibrahim Zaki (the latter, never apprehended, was tried in absentia). 

All five were acquitted on this charge. The judgment stated that neither the material nor the non-material evidence presented by the prosecution were sufficient to secure a conviction. 

The judgment noted that during the trial, defense lawyers had challenged the constitutionality of Article 48 of the Penal Code, but did not explain why the judges had decided not to refer the matter to the Supreme Constitutional Court. On June 21, 2001, less than two weeks after the conclusion of the Ibn Khaldun trial, the Supreme Constitutional Court did rule in a separate case, that Article 48 of the Penal Code was unconstitutional and in breach of articles 41, 65, 66 and 67 of Egypt's Constitution.²⁷ This ruling precludes the possibility of an appeal by the Supreme State Security Prosecution in the Ibn Khaldun case against the acquittal of the defendants on this charge.

Receiving donations without prior permission from the competent authorities
This charge was brought under the provisions of articles 1(6) and 2(1) of Military Order No. 4 of 1992. The prosecution charged Saadeddin Ibrahim with accepting funds from the E.U. in his capacity as chairman of the board of trustees of the Ibn Khaldun Center and as treasurer of the Hoda Association, in order to fund projects carried out by these two institutions. Specifically, these funds involved the receipt of 145,000 euros for the Ibn Khaldun Center project, and a further 116,000 euros for the Hoda Association project, which Saadeddin Ibrahim was charged with having accepted without prior permission from the legally competent authorities and without subsequently notifying the authorities.²⁸

Article 1(6) of Military Decree No. 4 of 1992 prohibits the collection or receipt of donations through any means for use in coping with the consequences of disasters and other emergencies, or for any other purpose, without prior authorization from the Minister of Social Affairs. Article 2(1) of this decree provides a custodial sentence of no less than seven years upon conviction for the violation of Article 1(6). The thrust of the defense team's arguments countering this charge rested on the point that the funds received from the E.U. were not "donations" but "grants," allocated to the Ibn Khaldun Center and Hoda Association projects on the basis of contractual obligations between the parties concerned. The sums of money were therefore paid in return for services to be rendered, with the responsibilities of the recipients clearly set out in the contracts and involving regular and close monitoring by the funding party. Defense lawyers argued that since Military Decree No. 4 of 1992 specifies that the type of funding requiring authorization be "donations," its provisions were not applicable to the grants received from the E.U.

Egypt's Civil Code (Law No. 131 of 1948 as amended) provides for a category of contract involving donations ('aqd hiba). Article 486(1) of the code clearly states that such donations are given without obligation or return. However, Article 486(2) also states that "the donor may, without losing the intention of making a donation, impose a certain obligation on the donee." It was on the basis of this legal provision that the judges, in their written judgment, rejected the defense arguments. They stated that while the contracts entered into with the E.U. imposed on the recipients the obligation to provide records of expenditure, progress reports and other documentation, this obligation did not alter the nature of the contracts as being essentially one of 'aqd hiba. As such, they concluded that Military Decree No. 4 of 1992 did apply to the funds in question received by Saadeddin Ibrahim, and that in failing to obtain prior authorization for their receipt, he was guilty as charged. 

In their judgment, however, the judges did not comment on the point, also put forward by the defense team, that Military Decree No. 4 of 1992 requires that the authorization for the receipt of funds be obtained from the Ministry of Social Affairs. Both the Ibn Khaldun Center and the Hoda Association are registered as civil companies, whose workings are governed by the Civil Code. The Ministry of Social Affairs' jurisdiction is limited to institutions registered as nongovernmental organizations in accordance with the Law on Private Associations and Institutions (No. 32 of 1964). These associations do not include Egypt's human rights NGOs, which came into being during the 1980s and 1990s. Most are registered as civil companies and as such fall outside the jurisdiction of the Ministry of Social Affairs.²⁹

It is important to note that Military Decree No. 4 of 1992 is an exceptional law emanating from emergency legislation. It was promulgated in the wake of the 1992 earthquake in Egypt that caused extensive devastation and prompted large amounts of relief aid from abroad. Many in Egypt believe that the purpose behind the military decree was to regulate these foreign funds and to prevent them from passing directly into the hands of local relief organizations, some of which were being managed by Islamist opposition groups. Whether or not this was the case, the fact remains that the military decree was issued swiftly in response to an emergency situation without going through established legislative procedures, and it was not subsequently incorporated into existing legislation.³⁰ This was the case, for example, with other decrees issued on the basis of emergency legislation and later incorporated into the Penal Code.³¹ This lends credence to the view, shared by some members of Egypt's judiciary, that the military decree was intended for use at a specific time and for a specific purpose. Since its promulgation in 1992, the decree has not been used as an instrument to regulate the funding of civil companies in Egypt. These companies include the vast majority of human rights NGOs-many of which have been funded almost exclusively by foreign donors over a number of years. Indeed, Article 1(6) of the decree has only been invoked twice, and in both of these instances the accused were human rights activists. The first was Hafez Abu Sa'ada, secretary general of the EOHR, who in 1998 was accused of accepting funds from a foreign donor without prior authorization from the competent authorities (the case never went to trial-see footnote 40). The second was Saadeddin Ibrahim. The use of this legislation by the authorities, therefore, has been both highly selective and politically motivated.

Two months after the conclusion of the trial, Military Order No. 4 of 1992 was the subject of a ruling by the Court of Cassation in a separate case which should undoubtedly have a bearing on the appeal in the Ibn Khaldun case.³² In a ruling issued on July 21, 2001, the Court of Cassation made several important points: first, that the Military Governor, through Military Order No. 4 of 1992, had exceeded his powers by increasing the penalty for crimes already set in existing laws; second, that emergency legislation (upon which Military Order No. 4 of 1992 is based) did not empower the Military Governor to amend existing legislation without following normal legislative procedures-such a usurpation of the powers of the judicial or legislative authorities, the ruling stated, would render any orders emanating from it null and void; third, that Military Order No. 4 of 1992 was being invoked by lower courts to deal with cases which did not involve public order or security considerations. 

Deliberately disseminating false information abroad about the internal situation in Egypt and thereby undermining the stature of the state
This charge was brought under the provisions of Article 80(d) of the Penal Code, which provides a custodial sentence of not less than six months and not exceeding five years upon conviction. The prosecution charged Saadeddin Ibrahim with stating that any elections held in Egypt were rigged, and that there was religious discrimination in the country, namely against the Coptic Christian minority, and that he disseminated such information abroad with the intention of damaging Egypt's reputation. 

The judgment stated that Saadeddin Ibrahim had taken advantage of his position as head of the Ibn Khaldun Center to disseminate false and misleading information intended to damage the country's reputation. The material evidence for this, as presented by the prosecution, included a fax sent by Saadeddin Ibrahim in September 1997 to a Bonn-based German Protestant church organization seeking funding for a project. The judgment noted that this fax, together with an accompanying report, stated that discrimination against Egypt's Coptic Christian minority had increased significantly. Another piece of material evidence submitted by the prosecution was a video film and related transcript that had been in preparation by the Ibn Khaldun Center as part of its project for promoting voter awareness. The judgment noted that the message in this film was that the electoral process in Egypt was fraudulent, and that this was tantamount to a violation of voters' political rights. In addition, the judgment noted that in his first application to the E.U. for funding, Saadeddin Ibrahim justified the proposed project by saying that elections in Egypt were marked by violence; that political opponents and independent candidates had been arrested; that the Egyptian government's dealings with the human rights movement in the country were hostile; and that the level of religious discrimination had increased. As for the non-material evidence substantiating the charge, the judgment stated that this was based on Saadeddin Ibrahim's knowledge that he was disseminating this kind of information and that by its nature it would result in the weakening of the country's standing and prestige. The judges interpreted the act of sending the aforementioned fax as evidence that he had intended to disseminate to the outside world "lies" about the internal situation in Egypt. They made no reference to defense arguments that the video film in question, when seized, was still in preparation and had therefore neither been used, broadcast nor disseminated.

The wording of Article 80(d) of the Penal Code is so vague that it could be variously interpreted to bring charges against individuals whom the authorities wish to silence.³³ It is one of a number of such "offenses" whose criminalization represents a breach of the right to freedom of expression.³⁴ Further, the basis of the charge in Saadeddin Ibrahim's case rested on his criticisms of electoral fraud and institutionalized discrimination against of the Coptic minority in Egypt. Both are issues which he himself had addressed in his writings over a number of years, as have many other writers and academics. There was no reference in the judgment to questions raised by the defense as to why the authorities had brought this charge at this time when they had been aware of Saadeddin Ibrahim's views and publications for a number of years, and why, if the expression of such views constituted a crime, had others in Egypt who had addressed both these issues publicly not been similarly prosecuted. 

In its reliance on the material presented by the prosecution as "evidence" of the "lies" which Saadeddin Ibrahim was charged with disseminating, the judgment made no reference to defense arguments that charges of electoral fraud in Egypt were supported by numerous rulings of the Court of Cassation regarding the 1995 National Assembly elections. Those elections were marked by widespread electoral fraud as well as incidents of violence that led to the deaths of scores of people. The Court of Cassation ruled in at least 140 of the cases referred to it following the elections that electoral fraud had taken place, and on that basis declared those results null and void. Furthermore, the Supreme Constitutional Court called into question the entire electoral system used to hold Egypt's parliamentary elections when it ruled in July 2000 that legislation governing the electoral process was unconstitutional because it failed to provide for full judicial supervision of the elections, contrary to the provisions of Article 88 of Egypt's Constitution.³⁵ The ruling brought about amendments to the Law on the Exercise of Political Rights (Law. No. 73 of 1956), providing for full judicial supervision for the next elections which were held in October and November 2000. ³⁶

The Ibn Khaldun Center had played a major role in the monitoring of the 1995 elections, and their findings had been made public. Saadeddin Ibrahim had announced his intention to monitor the 2000 parliamentary elections, and preparations for this were underway in the summer of 2000 when he was arrested. 

Using deceptive means to defraud E.U. funds made available to the Ibn Khaldun Center and the Hoda Association
This charge was brought under the provisions of Article 336(1) of the Penal Code. Prosecution officials charged Saadeddin Ibrahim with presenting false documentation for expenditures that they stated were never made (including checks said to represent his employees' salaries, various invoices and the fabrication of 60,000 voter registration cards), with the aim of defrauding the E.U. Twenty-five co-defendants (numbers two to five and eight to twenty-eight-see Appendix) were also charged under this article.

The material presented by the prosecution to substantiate this charge relied heavily on the testimony of one of the defendants, Nibal Abdul Nabi, who had been employed first at the Ibn Khaldun Center and later at the Hoda Association. She was the only one among the defendants who had not been arrested in the summer of 2000 while investigations were being carried out, while all the other defendants who were subsequently convicted were detained for up to six weeks pending investigation. She was also the only defendant (apart from those who were at large and not apprehended) who did not attend the trial with the exception of the last two sessions. Her testimony was used by the prosecution as evidence against Saadeddin Ibrahim and other defendants (she subsequently received a one year suspended sentence).

The prosecution also used as evidence of fraud the existence of some 60,000 photocopied voter registration cards which were seized from the home of Saadeddin Ibrahim on the night of his arrest. Some three days before his arrest, these registration cards had been deposited "for safe keeping" at his house by Nibal Abdul Nabi at her request (which she confirmed in her testimony). According to Saadeddin Ibrahim, security officials who searched his home appeared to know where the bags containing the registration cards had been placed and promptly seized them. During the trial, prosecution officials stated that these voter registration cards were fakes since the names that appeared on them did not correspond with those on official electoral lists. However, the prosecution did not submit any evidence to support this assertion, yet it was accepted by the court as fact.

The judges rejected defense arguments that the material presented by the prosecution was insufficient to prove that fraud had been committed. They stated that the material evidence demonstrated that Saadeddin Ibrahim had used ruse and trickery in order to delude the injured party (the E.U.) into believing that its funds had been used in accordance with the terms of the contracts. Among other things, they stated that this delusion was achieved through the submission of fake checks and false invoices as proof of expenditures that never took place. Further, that Saadeddin Ibrahim informed the E.U. that as a result of the project to promote voter awareness, some 60,000 Egyptians were persuaded to have electoral cards issued for them, whereas these cards were pronounced to be fakes on the basis that the names they contained did not appear on the electoral register.³⁷ The judges also stated that the evidence showed that Saadeddin Ibrahim had transferred some of the funds obtained from the E.U. into his personal accounts. On the question of the non-material evidence, the judges stated that this rested on the notion of criminal intent, and that this was proved on the basis of Saadeddin Ibrahim's knowledge that the funds in question were the property of another party and that he consciously proceeded to commit fraud. 

Egyptian legislation requires that for the crime of fraud to be proved, it must be shown that it was perpetrated prior to the receipt of the funds in question. The prosecution argued that Saadeddin Ibrahim and his co-defendants had committed fraud in order to secure the second and third installments of funds from the E.U., the first installment having been secured following the signing of the contracts. The defense team argued that these contracts had already committed the E.U. to providing the full amount agreed upon, rendering the use of fraud redundant. Any fraudulent acts that may have been perpetrated by the defendants would therefore necessarily have followed rather than preceded the receipt of the funds. This point was not addressed in the judgment. The judges also made no reference to the substance of documentation presented by defense lawyers, either during the trial or in their judgment, demonstrating that the funding party had expressed satisfaction as various stages with the manner in which the projects were being carried out. This documentation included affidavits and progress reports approved by the donor, and a statement issued on December 13, 2000, in which the European Commission said that "both the Ibn Khaldun and HODA projects were the subject of external mid-term audits whose reports gave no cause for concern, financial or otherwise."³⁸

The judges did address a related point raised by defense lawyers, namely that the contracts between the two parties were private civil contracts, and since the funding party had not submitted any complaints or made allegations of fraud, it was not incumbent upon the authorities to bring criminal charges. The judges rejected this line of defense, stating that the crime of fraud was not among those crimes for which the General Prosecution requires prior authorization, application or complaint from the injured party in order to institute criminal proceedings. Those crimes requiring such authorization are clearly specified in Article 3 of the Code of Criminal Procedure, and the crime of fraud is not among them.³⁹ As such, the judges argued, the General Prosecution had the authority to bring criminal charges, despite the fact that in a case involving fraud, the rights of the injured party are property rights. This was justified, they stated, because the crime of fraud can be detrimental to society as a whole if the principle of good intentions in financial transactions is not established. The fact that no complaint had been made by the E.U. did not, in their opinion, restrict the power of the prosecution from charging the defendants with fraud.

Accepting and offering bribes, and the forgery and use of official documents
These charges were brought under the provisions of articles 103, 104, 107bis, 207, 211 and 214 of the Penal Code, in respect of two defendants: Muhammad Hassanein `Amara, a police constable at al-Manuf police station, and Magda Ibrahim al-Bey, an employee at al-Manuf City Council (the sixth and seventh defendants respectively). As a public servant, `Amara was charged with requesting and receiving bribes in return for breaching his official duties. Prosecution officials stated that he had falsified six official documents, which were stamped with the seal of the Republic of Egypt, indicating that he had assisted in the issuance of thousands of voter registration cards. Magda al-Bey was charged with offering bribes to the sixth defendant in order to falsify official documents, and also with using those documents in order to obtain remuneration from the Hoda Association. Both defendants were found guilty and sentenced to five years of imprisonment with labor. 

During the trial, the prosecution provided forensic evidence that it stated demonstrated that the signatures and handwriting on the relevant documents were those of the two defendants. However, neither defendant was accorded the full rights to a fair trial in accordance with internationally accepted norms for fair trial, and as such they should be retried before an ordinary criminal court following such procedures, or released.

²⁵ Al-Musawwar, June 1, 2001, pp. 20-21.

²⁶ As provided for in Article 16 of the Penal Code.

²⁷ Supreme Constitutional Court Ruling No. 114 of Judicial (Constitutional) Year 21: Al-Sa'id `Eid Taha Nour vs. the President of the Republic, the Minister of Justice, the President of the People's Assembly and the Prosecutor General.

²⁸ These amounts represent the second and third installments received from the E.U. and not the total amounts agreed upon for the projects as a whole.

²⁹ Indeed, it was in recognition of this situation that the controversial Law on Civil Associations and Institutions (No. 153 of 1999) was enacted, mandating excessive restrictions on the activities of human rights groups in the country and representing a means of extending governmental control over them. Law 153 of 1999 was subsequently ruled unconstitutional on procedural grounds by the Supreme Constitutional Court, but a new draft law is expected to be approved in the near future. The Supreme Constitutional Court, in a ruling on June 3, 2000, declared Law 153 of 1999 unconstitutional since it had not been presented to the Majlis al-Shura (Consultative Council, the upper house of the parliament). The substance of the new draft law remains highly restrictive, allowing the government a high degree of interference in the activities of NGOs and criminalizing any activity deemed "political." At the time of writing, the draft law had not been referred for debate to the National Assembly.

³⁰ During the trial, the lawyer acting for the third defendant Khaled al-Fayyad challenged the constitutionality of Military Order No. 4 of 1992 on the basis that it had not been promulgated following normal legislative procedures, and requested leave to refer the matter to the Supreme Constitutional Court. The presiding judges did not respond to or comment on this request during the trial. However, in their written judgment, they dismissed this challenge on the grounds that since the defendant in question (Khaled al-Fayyad) had not been charged with any offence under the military decree, there was no legal basis for referring the matter to the Supreme Constitutional Court, as specified in Article 3 of the Civil and Commercial Procedures Code (Law No. 13 of 1968). The judges stated that the Civil and Commercial Procedures Code can be considered as a general law whose provisions may be applied where those of the Code of Criminal Procedure prove inadequate. 

³¹ These include the Law to Combat Terrorism (No. 97 of 1992).

³² The General Prosecution vs. Hassan al-Sayyid Hashem: Case No. 3381 of 1995. The Court of Cassation in this case rejected the General Prosecution's appeal against the acquittal by a lower court of Hassan al-Sayyid Hashem, who in 1994 had been charged with violating construction regulations under Military Order No. 4 of 1992. 

³³ Article 80(d) of the Penal Code provides for custodial sentences ranging between six months and five years, or a fine or both, for "any Egyptian who deliberately disseminates abroad false and tendentious information, statements or rumors on the internal situation in the country, with the aim of weakening confidence in its economy or undermining its stature or prestige, or who carries out any activity aimed at damaging the national interest of the country." This charge was leveled at another human rights activist, EOHR secretary-general Hafez Abu Sa'ada, in 1998.

³⁴ Other such provisions include Article 98(f) of the Penal Code, which punishes with terms of imprisonment of between six months and five years the expression of "contempt for religion."

³⁵ In both the 1990 and the 1995 parliamentary elections, only the principal polling stations were supervised by members of the judiciary, while civil servants supervised auxiliary stations. 

³⁶ The imposition of full judicial supervision over the voting process in the 2000 parliamentary elections did not prevent numerous cases from being brought before both the administrative courts (contesting the eligibility of candidates in the run-up to the elections), and the Court of Cassation (contesting the results in certain constituencies after the elections).

³⁷ Electoral registers in Egypt are notoriously inaccurate. Local human rights organizations which carried out election monitoring during the 1990s recorded numerous complaints by Egyptians attempting to cast their vote in parliamentary elections who could not find their names on voter registration lists, or were unable to vote because of errors in the spelling of their names. Other errors have included the inclusion of the names of deceased persons on such lists. 

³⁸ Statement of the European Commission on the trial of the Egyptian democracy activist Professor Saad Ibrahim, Brussels, December 13, 2000.

³⁹ These crimes fall broadly into three main categories: adultery, child abduction, and defamation or slander.