Egyptian authorities have been holding hundreds, and most likely thousands, of people in pretrial detention without a pretense of judicial review in a new low for the country’s justice system, Human Rights Watch said today.
Security and judicial authorities have used the Covid-19 pandemic to effectively preclude detention renewal hearings, renewing pretrial detentions more or less automatically since mid-March, 2020. Judges should immediately review the detention of all those in prolonged pretrial detention and order their release pending trial unless there is clear evidence that there is a legal necessity for their detention before trial, such as a clear threat to witnesses or risk of flight. Everyone held in pretrial detention is entitled to a trial within a reasonable time, or release.
“Covid-19 has peeled away the last fig leaf covering Egypt’s grossly unjust pretrial detention system by eliminating even a pretense of independent review,” said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch. “Egypt’s authorities should end the excessive use of pretrial detention instead of making it the norm.”
Human Rights Watch spoke with five human rights lawyers and one activist in Cairo as well as a lawyer in Alexandria and another outside Egypt. They said that Supreme State Security prosecutors and criminal court judges have renewed detentions, including for scores of their clients, without transporting detainees to hearings or giving lawyers the opportunity to enter pleas.
Lawyers said that authorities held no detention renewal hearings between mid-March and the beginning of May, when courts partially closed under Covid-19 measures. Between May 2 and May 9, Supreme State Security prosecutors and criminal courts – responsible for reviewing pretrial detention beyond five months – extended pretrial detention almost automatically for all detainees who were up for renewal.
A lead lawyer at a local human rights organization said that on May 4, 5, and 6, the Cairo and Giza terrorism circuits of the criminal court system renewed the detention of roughly 485, 745, and 414 defendants in over 100 cases. No defendants were present. He and other lawyers described a “chaotic” environment in which judges arrived in the afternoon, did not convene hearings or meet with lawyers, and left without informing lawyers about their decisions. Lawyers learned the decisions informally from court employees or the next day through prosecution employees.
International and African laws require the authorities to use pretrial detention as an exception, not the rule, and only when demonstrably necessary for specific reasons, including risk of flight and threats to witnesses, and for the shortest time possible. Under President Abdel Fattah al-Sisi’s government, judges and prosecutors routinely keep thousands of people in pretrial detention, often without evidence of wrongdoing and for merely exercising their rights to peaceful assembly and free expression. Egyptian law allows Supreme State Security prosecutors, who are assigned to handle most political offenses, to hold detainees for 15 days, renewable for up to 5 months without judicial review, after which judges can order them held for 45 days, renewable for up to 2 years without trial.
The process by which the recent renewal decisions were made, without hearings, also goes against Egypt’s Criminal Procedural Code, which requires judges and prosecutors to hear defense pleas before ordering or renewing detention. The law also requires such orders to cite the penal code provisions at issue and detail the justification for pretrial detention, which the law limits to certain situations, such as concern that a suspect would be able to affect evidence collection.
A senior lawyer at the Cairo-based Arab Network for Human Rights Information told Human Rights Watch that Supreme State Security prosecutors have, since May 2, similar to the criminal courts, renewed the detention of almost all defendants in cases they oversee without hearings. He said he has not been allowed to enter the prosecution building in the Cairo suburb of the Fifth Settlement and that he only learned the prosecutors’ decisions from police guards at the building gate or through other lawyers with better “connections.”
A lawyer with the Egyptian Center for Social and Economic Rights said that police building guards also prevented him from entering. “They told me my client was not going to be brought and therefore there was no need for me to meet the prosecutor,” he said.
Several detention renewals were applied retroactively, lawyers said, to cover the period from mid-March until May 2, when no cases were reviewed. Mona Saif, sister of the jailed activist Alaa Abdel Fattah, said that his last court hearing was on February 18. His detention review, due in early April, was not held, but on May 5, a criminal court ordered him detained for 45 days, retrospectively. On May 12, the court, without a hearing, extended his detention for 45 more days.
Mohamed al-Helw, legal adviser at the Egyptian Commission for Rights and Freedoms, said that other detained activists had experienced similar “retrospective” detention renewals, including the activists Haytham Mohammadin, Mahinour al-Masry, and Mohamed al-Baqer.
Human Rights Watch found no record that the Justice Ministry made decisions to postpone or cancel detention renewal sessions. Justice Minister Omar Marwan announced on March 15 the partial closure of most courts for two weeks, which he later extended until early May. Three of the lawyers said that they had understood that this partial closure was not meant to affect detention renewal hearings. They said that detention renewals took place as usual before several other prosecution branches except the Supreme State Security Prosecution.
Egypt’s pretrial detention system has long been used abusively, particularly under the Supreme State Security Prosecution. A criminal court reviews these detentions, after 150 days. Even before the Covid-19 closures, such reviews were routinely insufficient, Human Rights Watch said. One lawyer representing several detained political activists said he had stopped attending his clients’ detention renewal hearings. “It became meaningless and disrespectful to lawyers,” he said.
He and other lawyers said that sometimes judges, with scores of cases involving hundreds of detainees to review in a few hours, would routinely choose one lawyer to speak on behalf of all the detainees in each case reviewed that day.
The Supreme State Security Prosecution and criminal courts rarely release detainees from pretrial detention or present evidence justifying continued detention. They have detained without trial many people for well over the two years permitted by Egyptian law. Shadi Habash, the 24-year-old artist who died in Cairo’s Tora prison on May 1, had spent more than 26 months in pretrial detention for his part in making a political music video mocking President al-Sisi. After Habash’s death, Prosecutor General Hamada al-Sawy belatedly ordered members of the prosecution to “review the situation of those in pretrial detention” and “to finish the investigations into their cases in a timely fashion.”
In some cases when authorities order a person’s release, prosecutors quickly add the detainee to a new case, which Egyptian rights groups call “recycling,” such as for the journalists Mostafa al-Asar and Moataz Wednen. Lawyers said that the prosecutors use this tactic increasingly to avoid releasing people who exceeded the two-year limit in detention without trial, or who had served their sentences. Lawyers say that hundreds of detainees have been held beyond the two-year limit.
The Interior Ministry has generally kept detainees isolated from the outside world since March 10 by banning all visits to prisons and not allowing them to make or receive phone calls or written communications.
On May 6, President al-Sisi approved amendments to the Emergency Law that include the authority to shut courts, but the amendments say that closures should not prevent pretrial detention reviews. Starting around May 9, lawyers said, criminal court judges began convening hearings, allowing lawyers to present their arguments without defendants present. This followed a decision by the head of the Cairo Appeals Court on April 28 that appeared to sanction holding hearings in absence of suspects and defendants. On May 13, al-Sawy said he ordered his prosecution staff to study establishing a video conference system to “virtually” meet suspects without bringing them from detention.
“Instead of investigating the isolation imposed by the Interior Ministry on detainees, many Egyptian judges and prosecutors have accepted that they will not appear for hearings,” Stork said.