VII. HUMAN RIGHTS WATCH'S CONCERNS

Having closely monitored developments in this case, starting with the arrests in the summer of 2000 through to the conclusion of the trial, Human Rights Watch has identified serious pre-trial and trial irregularities that are in conflict with internationally recognized standards for fair trial as well as Egypt's domestic legislation. Some of these irregularities were due to a failure to follow prescribed legal procedures, while others are inherent in the shortcomings of the specific legislation being applied in the case.

Pre-Trial Irregularities
During pre-trial detention, the defendants were held for up to six weeks without being formally charged. The authorities failed to clarify the legal basis of the accusations against them, and simply renewed their detention orders "pending investigation." Although all the defendants had been released by the end of August 2000, the authorities failed to clarify whether, on the basis of investigations carried out while the accused were in detention, the case would go to trial: it remained "pending" a further decision by the public prosecution. The practice of keeping official investigations pending, in some cases for years, is widely used in Egypt against targeted activists and others whom the authorities wish to intimidate or deter from peaceful opposition activity.⁴⁰ In the case of Saadeddin Ibrahim and his co-defendants, the announcement on September 24 that the case had been referred to the Supreme State Security Court came in the wake of Ibrahim's announcement that he intended to proceed with election monitoring despite his arrest.

Of equal concern was the manner in which some of the defendants had been arrested and the circumstances in which they were interrogated by prosecution officials. In the case of Nadia `Abd al-Nour and Usama Hammad Ali, for example, the arrests were carried out by unidentified officials and, as with Saadeddin Ibrahim, without the production of arrest warrants. The two Ibn Khaldun employees at first were neither informed of the reasons they had been apprehended nor where they were being taken.

In accordance with the Code of Criminal Procedure, suspects must be brought before the public prosecution within twenty-four hours of arrest, questioned by prosecution officials within the next twenty-four hours, and either ordered detained or released.⁴¹ All suspects have the right to have a lawyer of their own choosing present during interrogation by prosecution officials.⁴²

One of the defendants in the case, Khaled al-Fayyad, stated that he was initially taken to the SSI heaquarters in Lazoghli Square, Cairo, and questioned there before being referred to the public prosecution. In his subsequent statements, he alleged that SSI officials had pressured him into "cooperating" in their investigation. Some three weeks after the arrests, Nadia `Abd al-Nour was removed from her cell in the Women's Prison and taken to the office of the head of the Qanater Prisons Region where, without a lawyer being present, she was questioned at some length by two SSI officials. This was in violation of the provisions of the Code of Criminal Procedure, which stipulate that once suspects are ordered to be detained by the office of the prosecutor general pending investigation, they may only be questioned by prosecution officials or by an investigating judge drawn from the courts of first instance.⁴³

Some of the interrogation sessions before prosecution officials were similarly conducted in the absence of defense lawyers acting for the suspects. For the three accused arrested on the evening of June 30 (Saadeddin Ibrahim, Nadia `Abd al-Nour and Usama Hammad), prosecution officials began questioning them within hours of arrest, at around 2:00 a.m., before they had had the opportunity to contact a lawyer. Saadeddin Ibrahim refused to answer questions put to him until his lawyer was present, but Nadia `Abd al-Nour was interrogated for several hours that day without her lawyer. Indeed, she was repeatedly interrogated by Assistant Prosecutor Ashraf al-`Ashmawi over some two and a half weeks without a lawyer (involving at least ten separate sessions), even after she requested to have one present. The authorities apparently attempted to persuade her that dispensing with this right would secure her earlier release. It was only after her family's insistence that she was finally allowed to have her lawyer attend the sessions with her.

The authorities also failed to inform some of the defendants officially and in writing of the charges against them once the decision to refer the case to trial had been taken. The bill of indictment dated September 24 was not communicated directly to the defendants or their lawyers. Saadeddin Ibrahim, for example, learned of it through the newspapers; only some days later and after several attempts were his lawyers able to obtain a copy from the court. Other defendants encountered the same problem.

Trial Irregularities
The Egyptian government, in responding to international criticism of the arrests and prosecution of the Ibn Khaldun defendants, has repeatedly insisted that they were accorded a trial that was fair and impartial, implying that it was in accord with the Egyptian constitution and international fair trial standards.⁴⁴ The record shows otherwise.

The most serious flaw in the trial proceedings lay in the lack of adequate time and facilities for the defense team to prepare its case. The trial began on November 18, 2000, but defense lawyers did not obtain access to any of the prosecution documents pertaining to the case until at least March 19, 2001-in other words, four months into the trial. These documents included all the material seized from the Ibn Khaldun Center, the Hoda Association and Saadeddin Ibrahim's home following the arrests at the end of June and in July 2000, and which were used by the prosecution to prepare its case. They also included the prosecution's memorandum detailing its case against the defendants. Access to this document was all the more crucial since the prosecution had called no witnesses on its behalf to give evidence during the trial, opting instead for a written submission.

As a result of this lack of access, defense lawyers were obliged to proceed without full knowledge of the evidence the state had against their clients. They called the chief prosecution witness, a major in the SSI, for questioning during the January 16, 2001 session, and called character witnesses on behalf of Saadeddin Ibrahim during the sessions of January 20 and 21, without that knowledge.

When the defense team was finally granted access to the documents by the presiding judge, they were obliged to examine several thousand pages during a single session limited to several hours only. A request for permission to photocopy some of these documents was denied.

Access by the defense to minutes of the proceedings, once the trial began, also proved equally difficult. Early on in the trial, copies of some of these minutes were only secured by some defense lawyers on the basis of a "friendly arrangement" with a court clerk. Other minutes were not made available at all. Moreover, the minutes were written in summary form, with the clerk noting down certain points in response to a nod from the presiding judge. This was noted when the official records of the January 2001 sessions were compared with transcripts made from tape recordings of the proceedings, which the presiding judge had allowed some of the defense team to make. When defense lawyers raised this discrepancy with the judge, his response was to bar tape recorders altogether from subsequent sessions.

During the trial, the presiding judge failed to respond to a number of key issues raised by defense lawyers. They had challenged the constitutionality of Article 48 of the Penal Code, the statutory basis of the conspiracy to commit bribery charge. This article provides a penalty for criminal intent by two or more persons even if no crime has actually been committed. The presiding judge neither commented on this challenge nor gave the defense lawyers leave to refer the matter to Egypt's Supreme Constitutional Court. This was despite the fact that the constitutionality of this article had already been challenged in other cases and the matter was before the Supreme Constitutional Court at the time Saadeddin Ibrahim and his colleagues were on trial (see Section VI above). Defense lawyers also challenged the constitutionality of Military Decree No. 4 of 1992, on which the charge of accepting donations without obtaining prior authorization from the competent authorities was based. The presiding judge did not comment on either of these challenges before issuing the verdict.⁴⁵

The presiding judge pronounced the verdict at the end of the last session, held on May 21, 2001. The three-member bench had deliberated for less than two hours, although defense lawyers had submitted additional documentation to the court during that morning's session that could not have been adequately taken into account by the judges.

⁴⁰ Hafez Abu Sa'ada was detained for fifteen days in December 1998 after the government charged him and other EOHR members with accepting funds from a foreign donor-the British Embassy in Cairo-with the intent of harming Egypt's national interests. His case remained "pending" following his release, without clarification as to whether the case would go to trial. On February 13, 2000, several days before the EOHR was due to issue a report on renewed sectarian violence in the village of al-Kusheh in Upper Egypt, the Prosecutor General's Office announced that it had referred the case to the Emergency Supreme State Security Court. In March 2000, however, Prosecutor General Maher Abdel Wahed told Human Rights Watch that the British Ambassador had confirmed that the funds in question were intended to support a women's legal aid project, and that in light of this information Hafez Abu Sa'ada's "file was closed." To date, the authorities have not informed Abu Sa'ada officially that his case was closed.

⁴¹ Code of Criminal Procedure, Article 36.

⁴² However, Article 77 of the Code of Criminal Procedure does allow for suspects to be questioned in the absence of defense lawyers if this is deemed "necessary to reveal the truth."

⁴³ Ibid., Article 64. While other officials (which could include police and state security officials) may be appointed to assist in the gathering of evidence surrounding a crime, Article 70 of the Code of Criminal Procedure clearly states that they may not be involved in the questioning of suspects.

⁴⁴ For example, in a letter dated June 19, 2001, to a member of the British House of Lords, Egypt's ambassador to the United Kingdom said: "Our legal system knows only litigations in which the individuals and institutions have equal rights and opportunities to those of the State.... The judicial system observes the due process of law in a very strict manner. I trust that you would not find these norms `objectionable' or `below ... international standards'." He added that in the Ibn Khaldun case, "none of the charges brought against the accused had anything to do with their freedom of opinion or expression of belief."

⁴⁵ Additionally, one of the defense lawyers challenged the constitutionality of the ministerial decision that set up the Supreme State Security Prosecution, the body which investigated and brought the charges against the defendants in this case. The Supreme State Security Prosecution was set up by decision of the Minister of Justice, dated 8 March 1953, outside the framework of the normal legislative process. The challenge was based on the argument that this violates Article 167 of the Constitution, which states that the law shall determine and define all judicial bodies, and their competence and structure. The defense requested leave to refer the matter to the Supreme Constitutional Court, but the judges did not respond to this challenge either during the trial or subsequently in their judgment.