Former Egyptian President Mohamed Mursy sits behind bars with other Muslim Brotherhood members at a court in the outskirts of Cairo on December 29, 2014.

(Beirut) – The first trial of former Egyptian President Mohamed Morsy was compromised by due process violations, the appearance of bias and an absence of conclusive evidence. He was convicted on April 21, 2015, and sentenced to 20 years in prison.

A review of the prosecution’s case file summary by Human Rights Watch found little evidence other than the testimony of military and police officers to support Morsy’s conviction for complicity in the unlawful detention, torture, and intimidation of protesters carried out by top aides and Muslim Brotherhood supporters when he was president in December 2012. The full judgment has not yet been made public.

“The prosecution’s case was founded on the conjecture that Morsy was responsible simply because of his relationship with the Muslim Brotherhood,” said Sarah Leah Whitson, Middle East and North Africa director. “Whatever political responsibility Morsy may have, the prosecution didn’t establish his criminal guilt in this case.”

The verdict against Morsy and 14 other co-defendants, six of them in absentia, was the first against him since he was arrested and removed from office by the military in July 2013. He faces five other ongoing prosecutions. Morsy’s defense team said they would appeal the conviction.

The charges against the 15 defendants arose from a deadly street fight between supporters and opponents of Morsy outside Egypt’s Ettihadeya presidential palace on the night of December 5-6, 2012. The violence followed days of demonstrations against a decree issued by Morsy that November which placed himself, as president, and the Constituent Assembly above judicial review.

A Human Rights Watch review of an 80-page summary of the prosecution’s case showed that the allegations against Morsy relied primarily on the testimony of Maj. Gen. Mohamed Zaki, the commander of the Republican Guard, a division of the army tasked with protecting the presidency. Zaki testified that there “must have been” an agreement between Morsy and the Muslim Brotherhood to disperse anti-government protesters by force but gave no evidence to support his hypothesis.

After the military arrested Morsy on July 3, 2013, and deposed his government, it held him in incommunicado detention without charge or judicial process for 23 days. Officially, his imprisonment began only on July 26, when the authorities announced an investigation against him, but they did not transfer Morsy to Borg al-Arab Prison in Alexandria until November 4, 2013, for his first court appearance. At least two of his aides and co-defendants were held without judicial process until August 4, 2013, and a third was charged two days later.

Under Egyptian law, prosecutors must see and question a detainee within 24 hours of arrest and decide whether to order the person detained, pending further investigation.

Lawyer Mohamed al-Damaty, spokesman for the defense team, said that they were able to visit Morsy only once, in November 2013. He said that meetings with Morsy’s co-defendants were irregular and affected their right to consult with lawyers.

He told Human Rights Watch that defense lawyers raised the concerns about limited access to their clients with the court, but that the court ignored them. He said that Morsy never appointed a lawyer to defend himself, as he refused to acknowledge the legitimacy of the court.

Another defense lawyer told Human Rights Watch that the defense team did not call any witnesses – who could have included other members of the presidency or Republican Guard – out of fear they would be arrested or otherwise harmed. The lawyer, who asked not to be named, also said that the soundproof glass barrier erected around the defendants’ cage throughout the trial violated their due process rights because it prevented lawyers from speaking to their clients and sometimes prevented the defendants from hearing the judge.

By contrast, Mohamed Abd al-Aziz, one of the plaintiffs’ lawyers and a member of Al Haqaniya law firm, told Human Rights Watch that members of five Egyptian nongovernmental organizations had attended the trial’s 38 sessions and that there were no major flaws, unlike in other high-profile cases concerning the Muslim Brotherhood.

Prosecutors failed to investigate anyone for killing or injuring any Morsy supporter during the December 2012 clashes. Of the ten people killed that day, only three were included in the prosecutors’ file, creating an appearance that the case was politically motivated against the Brotherhood, which the new government labeled a terrorist organization in December 2013.

The December 5, 2012, clashes left at least 10 people dead, seven believed to have been Morsy supporters, and 748 injured. During the fighting, Morsy supporters unlawfully detained, abused, and interrogated at least 49 anti-government protesters before turning them over to police the next day, Human Rights Watch found.

On December 6, 2012, while prosecutors were still conducting investigations, Morsy claimed in a nationally televised speech that opposition protesters had “confessed” to being “hired thugs” paid to “use weapons.”

Human Rights Watch called on prosecutors at the time to examine responsibility for the protesters’ deaths and the security forces’ failure to intervene and to investigate leaders of the Brotherhood’s political wing, the Freedom and Justice Party (FJP), who publicly called for their supporters to arrest anti-Morsy protesters that day.

“It’s positive that prosecutors followed through on their investigation into those who may have detained and abused protesters outside the presidential palace in December 2012,” Whitson said. “But prosecutors’ neglect of the deaths of Brotherhood supporters and disregard of the failure of the security forces to intervene undermine any claim that justice was done.”

The Prosecution Case Against Morsy
The case began after some of the abused protesters filed suit against the government, supported by prominent Egyptian nongovernmental groups and human rights lawyers, but prosecutors kept it under investigation until September 1, 2013, two months after the coup, when they referred Morsy and the others to trial.

Prosecutors charged 11 Brotherhood members and aides, including Morsy’s deputy chief of staff, office director, and personal secretary, with killing, unlawfully detaining and torturing opposition protesters, as well as intimidation, threatening to use violence, and carrying unlicensed firearms and ammunition. They charged Morsy and three others with being accomplices to those crimes “by way of incitement, agreement and aid,” and Morsy specifically faced the charge of “agreement.”

Under Article 40 of the Penal Code, prosecutors needed to prove that Morsy had “agreed with another on perpetrating the crime and [that] the crime [took] place on the basis of such agreement.”

Cairo criminal court Judge Ahmed Sabry, who presided over the trial as a special circuit judge assigned to hear cases of terrorism and national security, convicted Morsy of agreeing to the intimidation, illegal detention, and torture of protesters. He acquitted all the defendants of the murder and firearms charges.

According to Maj. Gen. Zaki’s testimony, he twice refused orders from the presidency to disperse the opposition protesters at the palace. He first refused when Morsy called him at 2 a.m. on December 5, saying that dispersing the protesters would be “completely impossible…without losses,” and refused again later that morning when Deputy Chief of Staff Asaad al-Sheikha, also a longtime Brotherhood member, asked him to remove the remaining tents and protesters. Zaki said it would be a “disaster” to do so.

Zaki’s testimony said that al-Sheikha decided that “his men and supporters of his group,” meaning the Brotherhood, would disperse the sit-in themselves, and that at a meeting later that day attended by Morsy, Zaki, al-Sheikha and Chief of Staff Rifaa al-Tahtawy, al-Sheikha said that “anyone who approaches the presidential palace will meet his doom.”

Zaki’s testimony said that Morsy left the palace earlier than usual that afternoon but that when opposition protesters began to “prevail” over his supporters during the clashes that escalated later that night, he called Zaki “more than six times,” asking him to separate the two sides with tanks and armored vehicles. Zaki did not say how he responded.           

Testimony from other witnesses, including an officer and a major in the Republican Guard, indicated that they saw al-Sheikha and Ahmed Abdellaty, Morsy’s office director, ordering supporters to attack opposition protesters and helping to detain protesters, but none presented evidence that Morsy had planned the confrontation or the abuses and interrogations that followed.

Aside from Zaki, only two of the 78 witnesses whose testimony is recorded in the prosecution summary asserted that Morsy was complicit in the abuse and detentions. Osama al-Gindy, chief of Central Administration for Presidential Security, testified that he had attended the group meeting with Morsy on December 5 and that Morsy was later aware that opposition protesters were being unlawfully detained at the walls of the palace but took no action to stop it.

Testimony from Ahmed Fayed, chief of General Administration for Presidential Security, indicated he had been at the same meeting and also asserted that there had been an “agreement” between Morsy and his aides to disperse the sit-in by force and detain protesters. Neither Fayed nor al-Gindy provided other evidence to support their claims.

Many of the witness testimonies agreed that al-Sheikha had overseen the detention of opposition protesters and tried to hold them inside the palace.

The testimony from Ahmed Gamal al-Din, the interior minister at the time of the incident, said that Morsy should have called on his supporters to withdraw from the palace area, but he did not accuse Morsy of complicity in the violence. Gamal al-Din’s testimony accused Ayman Hohod, Morsy’s personal secretary, of recruiting Morsy’s supporters in agreement with the Brotherhood and the FJP. Gamal al-Din testimony said that he eventually reached an agreement with Saad al-Katatny, the party chairman, to withdraw Morsy’s supporters, and that when Gamal al-Din told Morsy about the agreement, Morsy ordered al-Sheikha and Abdellaty to carry it out.

Morsy, a long-time member of the Brotherhood, resigned from the group after winning Egypt’s first democratic presidential election in June 2012 and gave up his chairmanship of the FJP, though he remained a party member. Relations between the Brotherhood and the party remained close: al-Katatny, the party chairman, and Essam al-Erian, the deputy chairman, had both been high-ranking Brotherhood officials. On the night of the clashes, al-Erian, who was tried together with Morsy and sentenced to 20 years in prison, called on supporters in television interviews and social media posts seen by Human Rights Watch to “surround the thugs” and “arrest them all,” declaring that “the president will not change his mind” about the November 2012 decree removing judicial review.

But Morsy’s ties to those who called for confrontations do not amount to evidence of his criminal guilt, and prosecutors did not present evidence that he was complicit in decisions by his aides or party colleagues to send supporters to confront opposition protesters, Human Rights Watch said.