An uncomfortable court: Explaining the adjournment of Alaa Abd El Fattah’s appeal

Judge Abdel Rahman Heikal, president of the Court of Cassation’s Circuit A, took activist Alaa Abd El Fattah’s request for appeal of the sentence he received in the Shura Council case off the list of appeals to be heard by the court on Thursday.

Abd El Fattah’s defense team was surprised to learn that the session was adjourned to November 8, where the appeal hearing will be presided over by Circuit E, which is headed by Judge Ahmed Omar Mohamedein.

Taher Abul Nasr, one of Abd El Fattah’s defense lawyers, tells Mada Masr that the circuit secretary informed him that the judge had recused himself from the case because he “felt uncomfortable,” which they understood to mean that there was an issue of impartiality. His lawyers have not yet released a written statement about the matter.

The court was meant to hear the appeal — which was submitted by 23 defendants in the Shura Council case, all of whom have been released pursuant to a presidential pardon, except Abd El Fattah — on Thursday.

In February 2015, Cairo Criminal Court sentenced Abd El Fattah and Ahmed Abdel Rahman to five years in prison, with an additional five years probation and a LE100,000 fine each. It also sentenced the rest of the defendants in the case to three years in prison, three years probation and a LE100,000 fine each.

To make sense of what happened on Thursday, Mada Masr has spoken with several people with knowledge of the workings of the Egyptian judiciary and past moves for recusal, as well as some of the key judges in Abd El Fattah’s appeal.

Thursday’s recusal: ‘Feeling uncomfortable’

According to lawyer Negad al-Borai, the law does not specify criteria for which judges may recuse themselves from cases because of impartiality concerns. “It is up to the judge, who may decide that presiding over a trial without bias — based on the case files alone and with no other influencing factors — is not possible,” he tells Mada Masr.

“A judge is not obligated to provide reasons for recusing himself. He may be asked to disclose the reasons only to the president of the court, but he is not obligated to disclose them to any other party,” Borai adds.

Article 150 of the procedural law stipulates that “With the exception of recusal grounds specified by law, the judge may, if he has reasons causing him to be uncomfortable with hearing the case, present the matter of his recusal to the court in the council chamber or to the presiding judge to decide.”

Such a presentation is distinct from a request to recuse the bench if “enmity or intimacy lies between the judge and one of the litigants, which he finds likely to prevent him from judging impartially and without bias,” or if the judge, his wife, ex-wife, relatives or in-laws are in a legal dispute with one of the litigating parties.

According to Borai, the grounds for recusal are also different from filing a request to take action against a judge, which is only warranted by a major violation in regard to implementing the law. Examples of these violations are, Borai clarifies, “when a judge sentences a defendant to prison, although the charge is not punishable by imprisonment, or fines a defendant for a charge that is not punishable by fines, and so on.”

Judge Ahmed Abdel Rahman, the former deputy president of the Court of Cassation, tells Mada Masr that, when a bench recuses itself from a case, it must submit a request that the court’s technical bureau refer the case to another circuit — which is what happened in the appeal submitted by Abd El Fattah on Thursday.

The Court of Cassation consists of 30 circuits that convene once a month, Saturday through Thursday. Each circuit is named after the day it convenes — circuits that convene on Saturday are referred to as Saturday circuits. They are distinguished by letters.

Heikal — the judge who recused himself from examining Abd El Fattah’s appeal — had previously issued a sentence in an unrelated case on May 25, in which he accepted an appeal submitted by an officer at the Ismailia Police Department and ordered a retrial. The court then revoked the defendant’s eight-year prison sentence and LE5,000 fine, which was handed down to him by the criminal court last year, after the officer was convicted of assaulting an Ismailia doctor — which resulted in the doctor’s death — the destruction of the doctor’s wife’s pharmacy, and the falsification of official reports.

Judge Mohamedein, who presides over the Court of Cassation’s Wednesday Circuit E, which Abd El Fattah’s appeal was referred to, had also previously issued a sentence on November 7, 2015, accepting an appeal submitted by former Interior Minister Habib al-Adly of a one-month prison sentence after he was convicted of failing to uphold an administrative court decision while in office.

This is not the first time a judge has moved to recuse himself from the Shura Council case.

Judge Mohamed Ali al-Feqy recused himself from the Shura Council case while the Criminal Court was hearing it during the September 2014 session. At the time, he attributed the chamber’s discomfort to “the disrespect and failure to recognize the sanctity of the court involved.” The judge’s decision was taken only a few months after an application for recusation was submitted by Abd El Fattah and refused by the Court of Cassation. It also came after the judge had passed, without hearing the defense’s arguments, a default judgement of imprisonment for 15 years, despite the fact that Abd El Fattah and two other defendants were present just outside the Police Academy, where the court proceedings were taking place, waiting to be granted entry. As a result, they were arrested upon sentencing. The defendants, in turn, accused Feqy of not being impartial.

A brief history of recusal

Over the past few years, a number of judges have recused themselves from other cases due to their “discomfort.” One incident was when Judge Hassan Abdallah of the Criminal Court and all the individuals serving in his circuit recused themselves from examining the retrial of former President Hosni Mubarak, Interior Minister Habib al-Adly and six aides in April 2013. Legal experts attributed the recusal at the time to the fact that the same judge had acquitted the defendants in the Battle of the Camel case, in which charges were brought against a large number of the overthrown regime’s figures.

Another incident took place in August 2014, when Judge Mahmoud Kamel al-Rashidy recused himself from a case that involved 492 defendants who were being tried for what is popularly known as the Second Fath Mosque case. Rashidy was also the judge who presided over Mubarak’s retrial after Judge Hassan Abdallah recused himself; he acquitted the defendants in November 2014.

Judge Moataz Khafagy, president of the Giza Criminal Court also recused himself in December 2016 from the Nahda sit-in case, which involved 379 defendants. The judge’s argument for his decision was that one of the defendants was also a defendant in the Rabea Operations Room case. Judge Sayed Abdel Lateef, head of the Alexandria Criminal Court, also recused himself from a case where 162 people were accused of being members of the Muslim Brotherhood, also for “being uncomfortable.”

In the State Council, the judge who oversaw the appeal of the government’sdecision to use coal for energy generation recused himself in June 2014 after three sessions. The appeal was brought to court by the Egyptian Center for Economic and Social Rights and lawyer Khaled Ali, whose comment was, “What kind of pressure could have possibly compelled this honorable judge and his circuit to recuse themselves from the coal case just before the last session, and what could have possibly made them too uncomfortable to examine it, all of a sudden?”