Interpreting Egypt’s Pretrial Detention Laws

The other day, military prosecutors in Egypt opened an investigation into Hossam Bahgat, founder and previous director of the Egyptian Initiative for Personal Rights and a (quite effective) investigative journalist. Bahgat, who has been arrested and detained (and now released) for two days, is accused of publishing false news that harms national interests and for disseminating information that disturbs public peace.

A few days earlier, on November 1, civilian prosecutors referred to trial the writer, Ahmed Naji, and the editor in chief of Akhbar al-Adab magazine, Tarek el-Taher, for publishing sexually explicit material and allegedly violating public morals. The materials he had published had been approved under the already strict censorship that published materials must pass through, but never mind that.

These are the some of the latest arrests in Egypt’s silent war against activists, journalists, and opposition. While many westerners have cheered Egyptian President Abdel Fattah al-Sisi’s stance against the Muslim Brotherhood, this war has been going strong for two years. Thousands of Egyptians are disappearing. Some vanish into Egypt’s prisons or into the ethereal category of the forced disappeared. Extrajudicial killing have also become more than just one-time occurrences. While the numbers are frightening—official numbers state that 20,000 suspects were arrested in the last two years, while independent researchers are estimating more than 40,000—the individual cases are both legally frustrating and confusing.

Earlier cases in Egypt’s war on dissent have begun to define the contours of the detention law under which Naji and el-Taher’s cases will proceed. They are ugly precedents that, on the one hand, cry out for judicial intervention. Even more, however, they have generated righteous calls for Egypt’s pretrial detention laws to be repealed outright.

Back in July 2013, when General Sisi removed the Muslim Brotherhood president, he set up a transition plan under which Adly Mansour was to serve as the interim president. Mansour will likely not be remembered for much, particularly because everyone viewed him as a temporary facade for Sisi himself—a view that turned out to be correct. For some prisoners and their lawyers, however, Mansour will be remembered for something else: a pretrial detention law that effectively allows detainees to be held on remand indefinitely.

The use of this law has been one of the most effective mechanisms through which Egyptian authorities have reined in the opposition and civil society more broadly. If civil society groups were not as active and committed as they have been, there would likely have been no public information or knowledge about what is actually going on in Egypt. And Sisi would probably not be targeting members of the civil society groups with quite the frequency that he is now.

It is, in fact, people like Bahgat who have enabled the world to watch Egypt battle its own civil society. The UN High Commissioner for Human Rights, Jordanian Prince Zeid Ra’ad al-Hussein, said at the 56th Session of the UN Committee Against Torture (CAT) on November 9 that civil society is taking a beating in so many places that time did not permit him to list the number of countries where it was happening.

The trouble is that all of this knowledge being revealed about Egypt has not been put to good use. The US government and the Gulf states alike continue to fund Egypt’s military, despite credible documentation of flagrant human rights violations, violations that run contrary to both Egypt’s domestic and international law. It is no wonder that Prince Zeid opened the CAT Session with so little optimism. In the case of Egypt it seems that transparency can, at least sometimes, be just the ends, not the means to anything larger.

Pretrial detention is a case in point. We have long known what is happening. The question is really whether anyone cares, besides of course those Egyptians (and foreigners) who are detained, their families, and lawyers.

Since the dispersal of the Rabaa al-Adawiya sit-in, that led to the killing of more than 800 protesters in August 2013, the government has held around 800 more people beyond the two year maximum allowed by law. Reports from many prisoners indicate that they have not had meaningful access to their lawyers, have often had their detention remanded without even appearing before a judge, and have not seen any evidence or official charges. For example, Mahmoud Abou Zeid, commonly known as Shawkan, was not referred to trial before his pretrial detention reached its maximum and is still detained. Under the law, the maximum amount of time he should have been held in pretrial detention expired on August 14, 2015. His lawyers as of September 2015 had not been able to obtain the official documents charging Shawkan. Instead, all that the lawyers knew was that he—along with about 700 other defendants (confusingly, Amnesty reports only 400 other defendants)—is being charged for committing terrorism, possession of weapons, murder, attempted murder, and a whole range of other charges.

Article 134 of the Egyptian Code of Criminal Procedure allows for pretrial detention when it is necessary. The Code states that the following five reasons are the only reasons for a prosecutor to request that a detainee be held on remand. The Code holds that pretrial detention is an exceptional legal measure that is permitted when there is a risk of flight or when the suspect was caught in the act of committing the offense. If there is a fear that the legal process may be impeded or harmed or the case implicates security and the public order, a suspect may also be held in pretrial detention. And finally, if the crime is a felony or misdemeanor that is punishable with a prison sentence and the accused does not have a known residence in Egypt, the accused may also be held in pretrial detention.

What makes this article of the code so difficult to interpret is the fact that it is despairingly broad and in some ways also self-fulfilling. Things like the catch-all phrases harming national security or the public order—a crime that thousands of Egyptians, like Shawkan, are being charged and sentenced with—most definitely have created a fear in society. Often, when an Egyptian hears that a prosecutor is opening an investigation into something he or she did, the first question that the person asks is if the best option is flight. This is, of course, because the rate at which people are being charged has left little doubt as to whether an investigation will be dropped; it won’t be. So, on the one hand, people are being charged with harming national security, and as a result, they are naturally then kept in pretrial detention for fear they will harm national security. As it stands, most people believe that if they are brought in at all, they will be kept in detention.

Similarly, think for a moment about why people flee. They are not, generally speaking, fleeing prosecution or justice. They are often fleeing prolonged detention, unfair trials, and trumped up charges, not to mention the horrible detention conditions they will have to face. The law allows this to happen, at least the prolonged detention. Article 142 of the Code of Criminal Procedure permits 15 days detention without charge and an extension of two additional 15 day periods. If the judge assigned to the case determines that the investigations are not complete by the end of the permitted 45 days of pretrial detention, the judge can renew the detention.

Article 143 of the Egyptian Code of Criminal Procedure states that suspects may be held in pretrial detention for one-third of the maximum penalty for the crime allegedly committed. Pretrial detention is standardly set at “six months for misdemeanour crimes, 18 months for criminal offences and two years in case of crimes receiving the life sentence or the death penalty.” For defendants officially convicted and appealing a sentence of the death penalty or life imprisonment, the new amendment removes the limit to pre-trial detention, allowing political dissidents to possibly remain in detention indefinitely.

On September 23, the Robert F. Kennedy Human Rights organization wrote a good explanation of the law in a letter to Secretary John Kerry, urging the US to pressure Egyptian authorities “to amend its Criminal Procedure Code provisions to place more stringent restrictions on pretrial detention.” The letter also encouraged taking “measures to make pretrial investigations more effective, reform the judicial process to cut the criminal court backlog, and release detainees like Abou Zeid [Shawkan] and [Mahmoud] Mohamed whose time in remand has exceeded all appropriate legal standards.” Mohamed is a teenager who was arrested for wearing a t-shirt that had the words “A Nation without Torture” printed on it. He has been held in detention for more than 600 days.

These supposed limits on pretrial detention are the same under articles 35 to 37 of the Military Justice Law. The Mansour-era amendments to the Code of Criminal Procedure, that extended the amount of time someone can be held on remand, also apply to military jurisdiction cases. For now, Bahgat has been released from detention, although the investigation has not been dropped.

In Bahgat’s case, if the military prosecutor finds him guilty of publishing false information in violation of Articles 102 and 188 of the Penal Code, he can be held in pretrial detention for one third the time of the unspecified prison sentence that Article 102 permits for “deliberately spreading false information with the purpose of harming public order or public interest.” This of course would require Bahgat to be detained again, which is always a possibility. Article 188 prohibits the “publishing, with malicious intent, false news that is likely to disturb public order” and is punishable with a maximum sentence of one year in addition to (or instead of) a fine of 5,000 EGP to 20,000 EGP. In total, the provisions carry a prison sentence of up to three years. The complication in Bahgat's case is that he is being investigated for penal code violations under Egypt's military jurisdiction, a legal relationship that gets more ambiguous than when only applying the criminal procedure code.

Depending on how the “crime” is framed, harming national security can be punished by a life sentence or even the death penalty. So for cases like Shawkan and the many other detainees who are being held behind bars, if found guilty of a crime that can be charged with life in prison or the death penalty, the time that they can be held in pretrial detention is simply undefined. In many of these cases, little evidence has been presented to show guilt of anything.

Because the pretrial detention amendments are relatively new, efforts to interpret the law have been difficult. It has become even more difficult to interpret it since authorities are holding hundreds of detainees beyond the two-year maximum for pretrial detention. This is a new phenomenon; the law was only promulgated two years ago, after all.

It’s a dramatic change. As I noted above, the standard time permitted in Article 142 provides for up to 45 days without charge. Under the amendments, suspects can face up to 730 days—and that’s before the authorities begin exceeding it.

These provisions have faced resistance. For example, Shawkan’s lawyers have repeatedly requested his release upon the expiration of the 730 days of his detention without charge. Instead of receiving a response, Shawkan was charged and referred to trial, and he thus remains in detention.

The legal precedent currently being set is confusing at best for any person practicing law in Egypt and even more confusing for those subjected to the law of remand. At best, one hopes that during the mass trial scheduled for December, where Shawkan and 700 others are set to appear before the court, a judge will provide a rational explanation for the seeming violation of the Code.

Without a clear understanding of what the law means and unless the authorities abide by the law, whatever it might mean, detainees like Shawkan, Bahgat, and the ones whom authorities will pick up tomorrow are left at the mercy of the state. Without some form of a limiting legal principle, the law will become—indeed, has become—nothing more than an instrument of arbitrary repression.