Legal issues in the Shura Council case

Mostafa Mohie, Mada Masr

Five legal issues in the case of the Shura Council protest have emerged throughout the development of the case since November 2013 and which have been flagged by the defendants’ families and lawyers. Alaa Abd El Fattah is among the 25 defendants, who were sentenced on Wednesday to 15 years in absentia, in addition to five years under surveillance and a LE100,000 fine:

1. Police arrested Alaa Abd El Fattah on November 28, 2013 from his home, the day after an arrest warrant was issued for him from the prosecutor and Abd El Fattah himself issued a statement that he would hand himself in a day later.

He was charged through the Protest Law for organizing a protest in front of the Upper House of Parliament (the Shura Council) on November 26, to reject the constitutional stipulations on military trials for civilians. However, the protest was in fact organized by the “No to Military Trials” group, which was confirmed by the group’s members who filed this information at the prosecutor’s office to hold themselves responsible. However, the prosecutor insisted on accusing Abd El Fattah for organizing the protest, as well as beating up a policeman and stealing his walkie talkie.

The theft of a walkie talkie is the main charge that led to the case being heard in the Criminal Court and not the Misdemeanor Court, as with other Protest Law cases. Criminal Court sentences tend to be harsher.

2. Twenty-three defendants in the case were released on December 4, while Abd El Fattah remained in prison for four months, alongside Ahmad Abdel Rahman. Witnesses and other defendants have repeatedly said that Abdel Rahman didn’t participate in the protest, but was just passing by Qasr al-Aini Street on his way back from work. He stopped to look at what was happening and when he saw a girl being arrested by a policeman, he tried to defend her.

However, he is facing the same charges as the other defendants.

3. The case was referred to the Criminal Court on December 9, 2013, and yet it took four months to specify a judge for the case, during which time Abd El Fattah and Abd El Rahman remained in prison without trial. Prominent TV host Youssry Fouda said in his show, “The Last Words,” that the case represented “a black hole in the judiciary that mocks justice in Egypt.”

There is a maximum period for how long a prisoner can be temporarily detained pending investigations. But when the case is referred to court, this remains a gray area. 

4. The defendants’ lawyers in the Shura Council case demanded a withdrawal of the court’s judges, a legal measure to avoid a conflict of interest, since there is a direct dispute between the main judge – Mohamed al-Feqy – and Abd El Fattah and his lawyer, Mohamed Ali Taha. Taha had filed a complaint with the minister of justice in 2005 against Feqy for initiating fraudulent practices in the parliamentary elections of the same year. Back then Abd El Fattah protested in solidarity with Taha to demand that investigations were conducted into Feqy and other judges accused of fraud. But the Court of Appeal rejected the demand for the judge’s withdrawal.

5. Wednesday’s case was supposed to be dedicated to hearing witnesses and watching evidence presented by the prosecutor against the defendants. But the judge issued his ruling in absentia in an early session, without hearing witnesses, a statement from the prosecutor or the lawyers’ defense statements. Moreover, the case was held at the Tora Police Institute for Police Officers, which is under the helm of the Ministry of Interior. This gives the ministry control over who attends the hearing, since special permits are required, which limits the number of attending lawyers and the media, as well as witnesses and the defendants themselves – as happened on Wednesday. 

The defendants Abd El Fattah, Wael Metwally and Mohamed al-Nouby were present outside the courtroom while the case was taking place. According to their families, the defendants were not allowed inside the court until the session was over.

Meanwhile, according to the court’s police, they were arrested from the coffeehouse in front of the court, as if they were fugitives. This treatment as fugitives gives space for the defendants’ imprisonment until a retrial takes place, which would not have been necessarily the case had they handed themselves in. The implications of a rule in absentia include handing a maximum sentence and facilitating the immediate arrest of defendants. Moreover, according to Abd El Fattah’s family, the prosecution obstructed them from appealing the prosecutor’s temporary detention decision.