(Beirut) – Two cases that resulted in former President Mohamed Morsy and 114 others receiving death sentences on June 16, 2015, were compromised by due process violations and appear to have been politically motivated. The convictions are based almost entirely on security officials’ testimony.
A Human Rights Watch review of both prosecution case file summaries found little evidence other than the testimony of military and police officers to support the convictions of Morsy and 130 others for a 2011 prison break, and of Morsy and 35 others for conspiring with foreign powers against the state. The convictions and recommended death sentences were initially handed down on May 16, 2015, and the full written judgments have not yet been made public.
“These prosecutions show that Egyptian courts are ready to sentence the government’s opponents to death with barely any regard for due process,” said Sarah Leah Whitson, Middle East and North Africa director. “They follow in a line of flawed mass prosecutions brought against the members of the Muslim Brotherhood.”
Although Egyptian criminal law requires establishing individual criminal guilt to convict a defendant, the case files give no indication that prosecutors investigated individual responsibility for the acts included in the charges.
The authorities have conducted a series of mass trials since 2013 in which hundreds of members of the Muslim Brotherhood have been sentenced to death following proceedings that violated due process rights and failed to establish individual guilt, Human Rights Watch said. Morsy was a leading Brotherhood official until he resigned in 2012, after being elected president.
If there is credible evidence that the defendants in these cases are individually responsible for committing the offenses with which they were charged, prosecutors should present it publicly and ask the court to retry the defendants in proceedings that meet international fair trial standards, Human Rights Watch said.
The two cases against Morsy were tried simultaneously before the same court. In one, Morsy and 130 others faced charges of murder, looting weapons, and collaborating with foreign militants to break out of prison during the 2011 uprising that ousted President Hosni Mubarak. In the other, Morsy and 35 other defendants were charged with conspiring and sharing state secrets with foreign powers, including Hamas and Iran.
Judge Shaaban al-Shami, head of the Cairo Criminal Court, oversaw both trials as a special circuit judge appointed to hear cases of terrorism and national security. The hearings were held in a special courthouse at Cairo’s Police Academy.
On May 16, 2015, al-Shami announced that he would refer more than 100 defendants, including Morsy, to the Grand Mufti, the country’s highest authority on Islamic law, indicating that he had recommended the death sentence for them. The law requires the Grand Mufti to offer his confidential and non-binding opinion on death sentences before they are finalized. On June 16, al-Shami confirmed almost all of those death sentences – 16 in the conspiracy case and 99 in the prison break case. Only nine of those sentenced to death are in custody; they are all are associated with the Brotherhood.
Among those in custody are: Mohamed Badie, the Brotherhood’s supreme guide; Khairat al-Shater, a deputy supreme guide; Rashad al-Bayoumi, another deputy supreme guide; Essam al-Arian, the former deputy chairman of the Brotherhood’s Freedom and Justice Party (FJP); Saad al-Katatni, a former FJP member and parliamentary speaker; and senior Brotherhood member Mohamed al-Beltagy.
Morsy, al-Bayoumi, al-Erian, Badie, al-Katatny, and Mohie Hamad, a member of the Brotherhood’s Guidance Office, received death sentences in the prison breaks case, while al-Shater, al-Beltagy, and Morsy aide Ahmed Abdellaty received death sentences in the espionage case. All but Abdellaty, al-Bayoumi, and al-Shater also received life sentences.
All can appeal to the Court of Cassation, Egypt’s highest appeals court, which may only examine cases for legal flaws, but not review the evidence on which the court relied.
Human Rights Watch reviewed the prosecution’s case summary for both cases. In the prison break case, the prosecution relied on the testimony of 43 people, most of them Interior Ministry security officers, to support the accusation that jihadists based in Egypt’s Sinai Peninsula had collaborated with militants of the Gaza-based Hamas and Lebanon-based Hezbollah movements to break through Egypt’s eastern border in the Sinai and free political prisoners and thousands of imprisoned criminals during the 2011 uprising.
State Security officials detained Morsy and 34 other top Brotherhood officials on January 28, 2011, after mass protests against Mubarak broke out. Within days, they and thousands of inmates escaped from prisons across Egypt. The authorities did not charge Morsy and the 34 other Brotherhood officials with a crime in 2011, either before they were detained or after they left prison.
In the current cases, Morsy and 45 other defendants were accused of escaping from prison by force and being complicit in murder and the infiltration of the border by providing money, information, and material support, such as forged identification cards and vehicles, to the militants who stormed the prisons and killed policemen and prison guards in the process.
Prosecutors alleged that the prison breaks were the result of a conspiracy between the Brotherhood and foreign powers. In the case file, they claimed that 76 defendants who were not in detention at the time, together with more than 800 militants, entered Egypt by force from the Gaza Strip, seized control of part of the Sinai, destroyed government buildings, and kidnapped three police officers, then attacked three prisons: Wadi al-Natroun, Abu Zaabal, and al-Marg. The militants broke down prison walls, the case file says, killed guards and inmates, and freed imprisoned members of Hezbollah, Hamas, and the Brotherhood, and more than 20,000 other prisoners.
In the second case, prosecutors accused Morsy and 35 other defendants, 16 of whom were tried in absentia, of conspiring with and giving state secrets to Hamas, Hezbollah, Iran, the United States, and others between 2005 and 2013. Their aim, prosecutors alleged, was to commit “terrorist attacks … aimed at spreading chaos and overturning the state in order to seize power, in addition to opening communication channels with official and non-official foreign bodies to gain their support for this.”
Prosecutors accused Morsy and his presidential aides of sharing classified national security reports with foreign powers via emails and giving classified reports about the activity of Iranians in Egypt to members of Iran’s Revolutionary Guards. The defendants also faced charges of establishing, joining, and supporting an “illegal group” – the Muslim Brotherhood – that sought violent regime change and received military training in the Gaza Strip.
As with each of the five ongoing cases against Morsy, prosecutors did not bring these charges until after Morsy was removed in July 2013 by then-Defense Minister Abdel Fattah al-Sisi, who was elected president in June 2014. Al-Sisi was director of military intelligence at the time of the prison breaks.
Egyptian nongovernmental groups and politicians have long asked for an independent investigation into the prison breaks and the security vacuum that began on January 28, 2011, when mass protests defeated the security forces and the armed forces deployed to the streets. In the months after the uprising, amateur videos uploaded to YouTube, testimony collected by the Egyptian Initiative for Personal Rights – an independent group, and media statements by former prison officials and families of slain officers raised questions about the security forces’ possible reluctance to prevent the prison breaks or their possible involvement in freeing or killing prisoners.
The two government-sponsored fact-finding reports about the events of the uprising – one completed under an interim military government in 2011 and another under Morsy in 2013 – have never been made public and appear not to have been used by the prosecutor general to file charges.
On April 21, 2015, a judge sentenced Morsy to 20 years in prison for complicity in the illegal detention and torture of opposition protesters by supporters of the Muslim Brotherhood. He faces three other prosecutions for corruption, insulting the judiciary, and leaking state secrets to Qatar.
Human Rights Watch opposes the death penalty in all cases and has called on the Egyptian government to halt executions. Since Morsy’s removal, the authorities have executed seven people for allegedly committing violence against the new government or its supporters and sentenced about 600 people to death.
“This prison break case was a missed opportunity to shine a spotlight on what happened in Egypt during that chaotic period,” Whitson said. “The families of those who were killed during those prison breaks in Egypt are still waiting for justice.”
Prosecution File Analysis
Human Rights Watch obtained the prosecution’s 64-page summary of the prison break case and the 81-page summary of the conspiracy case.
In both cases, the prosecution failed to present any substantiating evidence to support security officials’ allegations of a Brotherhood conspiracy to attack Egyptian territory, break out of prison and seize power, or to explain how routine or publicly announced political meetings by members of Morsy’s administration constituted espionage. Some of the evidence presented to convict members of the administration and others of espionage amounted to nothing more than email discussions of foreign and domestic policy or efforts to arrange policy conferences.
Further, the decision to charge Morsy and other Brotherhood members only after they were removed from power and the failure to investigate any other party for the prison breaks or alleged conspiracy – such as al-Sisi and other current and former military officers who worked with the Brotherhood during the relevant events – creates the appearance that these cases are politically motivated.
Prison Break Case
In the first testimony recorded in the prison breaks case file summary, a retired South Sinai Security Directorate officer alleged that in January 2011, more than 150 armed people in four-wheel-drive vehicles had attacked security force installations in the Sinai Peninsula and taken control of territory as far west as the town of al-Arish. He asserted that they were the same people who later attacked the prisons because what he saw in media coverage of the events indicated that they had “used the same attacking techniques.” He did not provide any other evidence.
A lawyer on the defense team who asked not to be named told Human Rights Watch that the defense asked al-Shami to request satellite imagery from Egyptian security agencies to show whether alleged attackers had actually crossed the Egyptian border at the time alleged, but he said that al-Shami refused their request and another request to summon military witnesses to give evidence, including al-Sisi, former Defense Minister Hussein Tantawy, and former Armed Forces Chief of Staff Sami Anan.
The defense lawyer said that one of the National Security officers who testified during the trial said that the Supreme Council of the Armed Forces (SCAF), which ruled Egypt immediately after the 2011 uprising, had made a deal with the Brotherhood to allow it to take power. The defense team asked al-Shami to file charges against that officer and SCAF members, the lawyer said, on the grounds that they had abetted the same alleged conspiracy for which Morsy and others were being tried, but he said that the judge refused.
Morsy, who has refused to acknowledge the legitimacy of any of his trials, called and gave a live interview to the Al Jazeera Arabic television network on January 30, 2011, shortly after his departure from Wadi al-Natroun Prison. Speaking apparently from just outside the facility, he said that he and the other detained Brotherhood leaders had heard sounds of a commotion and possibly of teargas being fired the previous night, after which people in civilian clothes whom he thought may have been inmates’ relatives had opened his cell door and freed him and the other Brotherhood leaders. He told his interviewer repeatedly during the 2011 interview that neither he nor his colleagues had sought to escape, and gave their location and said they wished to contact the authorities.
Several security officers testified that security forces arrested Palestinians from among the attackers, but all of the more than 70 Palestinians charged in the case were tried in absentia. Hamas, which has denied any role in the 2011 prison breaks, issued a statement on May 17, 2015, saying that three of those sentenced to death in absentia by al-Shami had died – one in 2008, one in 2009, and the third in 2014, and that another had been imprisoned in Israel since 1996. In response, al-Shami said that he would only acknowledge official documents and that Hamas had not submitted death certificates.
In May, the Turkey-based Mekameleen television channel, which is generally sympathetic to the Brotherhood and opposes al-Sisi, broadcast what the network said was Anan, the former chief of staff, testifying at one of Mubarak’s trials soon after the uprising. In the leaked recordings, Anan answered questions from Judge Ahmed Refaat, who oversaw the trials against Mubarak, and denied that the SCAF was informed by intelligence agencies that Hamas, Hezbollah, or any other foreign groups had breached Egypt’s borders or tunnels.
Most officers testified that the clashes at the prisons were between militants and prison guards, and that the guards fled after they ran out of bullets. One National Security officer said that members of the Central Security Forces (CSF) were asked to help but were overwhelmed by the attacks. Another National Security officer stated that no reinforcements came when requested because of the “security vacuum” but did not elaborate. The authorities have not investigated why security forces did not protect prisons, a lapse about which officers had complained in the media following the uprising.
Another witness, a National Security officer, said that only armed groups were present during the attacks on the prisons, not relatives of the inmates, as Morsy and others suggested. But several YouTube videos taken at the time showed inmates’ families at the prison walls.
Prosecutors also charged some defendants with killing 30 prisoners in Abu Zaabal Prison but stated that police could not name those killed.
A section of the file, labeled the prosecution’s notes, describes a secret investigation by Lt. Col. Mohamed Mabrouk, a National Security officer, that concluded that the prison breaks were part of a wider plot in which the United States, Turkey, and the Brotherhood had conspired, with help from Hamas, Hezbollah, and Iran, to seize power in Egypt and then sell part of the Sinai to Palestinians. There is no evidence in the rest of the case summary to substantiate Mabrouk’s claims.
Mabrouk was shot and killed in front of his house in Cairo in November 2013. Authorities arrested his alleged killers and accused them of belonging to the jihadist group Ansar Beit al-Maqdis, also known as Sinai Province. They are among 200 defendants on trial for acts connected with the group.
Conspiracy With Foreign Powers Case
Prosecutors built the second case, involving alleged conspiracy with foreign powers and espionage, entirely on investigations by the National Security agency. The trial included eight witnesses, most of them security officers, and including one bystander. Much of the material cited in the case summary as evidence of espionage consists of mere exchanges of political views and public meetings.
Many accusations that the Brotherhood organized a conspiracy and seized power through violence are contradicted by the events that followed the uprising, including the victories of the Brotherhood’s Freedom and Justice Party in parliamentary elections in 2011 and Morsy’s election as president in 2012. The SCAF itself appointed a Brotherhood leader to a constitution drafting committee in March 2011, and Brotherhood leaders held regular meetings with the SCAF after the uprising, some including al-Sisi.
The case summary states that State Security investigations showed that the Brotherhood had sought to exploit “popular anger against the former regime [of Hosni Mubarak]” since 2005 to seize power by violence. The prosecution linked those efforts to what they called “the American statements on creative chaos and the quest to build a new Middle East.”
To support this allegation, the prosecution describes several meetings that Brotherhood leaders attended in Turkey, Lebanon, Saudi Arabia, and elsewhere between 2006 and 2009 but without providing any evidence that these concerned the alleged conspiracy or indicating what was discussed. Many of the meetings were public workshops or with government officials.
According to the prosecution, some of the meetings involved the International Union of Student Organizations in Turkey, while others involved various Hamas leaders and another, in January 2011, involved a US Central Intelligence Agency agent. The prosecution also referred to several trials of Brotherhood leaders before State Security courts during the Mubarak government, prior to 2011, as evidence of their conspiracy, despite the fact that these courts failed to guarantee basic due process rights. They also referred to evidence from tapped phone calls between Brotherhood leaders that the prosecution said had been lost when protesters ransacked State Security buildings after the uprising.
Under Mubarak, Brotherhood leaders met regularly with Hamas leaders, sometimes as part of mediation efforts sponsored by the Mubarak government.
Most of the emails listed by the prosecution as evidence of conspiracy contain only exchanges of political views on American, French, and British foreign policies in the Middle East. The prosecution file states that defendants encouraged Brotherhood leaders to meet with European officials and explain their thoughts. The evidence includes an account of a meeting between Gehad al-Haddad, a Brotherhood spokesman whose father was Morsy’s foreign policy adviser, and Norwegian parliament members and officials, after which one Brotherhood member sent an email urging al-Haddad to push Brotherhood leaders to respond to the parliament members’ concerns about women’s and Coptic Christians’ rights in Egypt.
Al-Haddad and his father, Essam al-Haddad, Morsy’s foreign policy adviser, both received life sentences.
Another email exchange cited as evidence involved Sondos Asem, a media coordinator for Morsy’s presidency, and Forward Thinking, a British research organization and charitable organization that sponsors interfaith and conflict resolution dialogues in the Middle East. In the email, Asem sought to arrange meetings between Brotherhood leaders and European parliament members and officials. The prosecution described Forward Thinking as an organization that is dedicated to “serving intelligence goals of European countries in cooperation with the United States.”
The prosecution’s evidence included recommendations emailed to Brotherhood leaders by Emad Shahin, a professor at the American University in Cairo who fled Egypt in 2014 and is currently a visiting professor at Georgetown University. Shahin had written the leaders with the advice “not to waste the historical opportunity and MB political credit” after the revolution and to insist on democratic change and the military’s noninterference in politics. Prosecutors charged Shahin with complicity in the espionage by “providing [other defendants] with email addresses to use for communication in transmitting and receiving orders through the Internet.”
Al-Shami sentenced Shahin and Asem, who is currently studying at the University of Oxford, to death in absentia on the basis of their emails.