16 March, 2020
Egypt: Judiciary punishes free speech with imprisonment while sanctioning speech inciting to murder
This post was first published by the Cairo Institute for Human Rights Studies
Rights defender Bahey eldin Hassan sentenced to prison while his lawsuit against media personality who incited to his murder is dismissed
A tweet commenting on the conduct of Egypt’s public prosecution resulted in a three-year sentence for Bahey eldin Hassan, the director of the Cairo Institute for Human Rights Studies.
The sentence, issued in absentia on September 19, 2019 and only known by Hassan recently, came with a fine of 20,000 Egyptian pounds. It stemmed from commentary posted by Hassan on Twitter, which criticized the Public Prosecution’s abandonment of its role in defending the citizenry or the public, instead siding with the state and its security apparatus against the citizenry:
“The job of the public prosecutor in Egypt is no longer to stop violations by the Interior Ministry; his role is now to provide legal and judicial cover for such crimes. He has abandoned his role as a public prosecutor to protect society to become a defender of the systematic, daily assault on it.”
The tweet referenced the prosecution’s illegal conduct toward writer Alaa al-Aswany whose fundamental rights were violated as he was detained and subjected to illegal search and confiscation at Cairo’s international airport in March 2018.
The charges against Hassan including “publishing statements likely to undermine the judicial authority” and “falsely claiming the public prosecutor had abandoned his role” in addition to the charges of disturbing or harming “public security” or the “public interest” ; that are routinely levied against anyone who peacefully exercises their right to free speech to criticize or comment on governance and public affairs in Egypt.
The judiciary’s sentencing of Hassan to prison for exercising his right to free speech stands in stark contrast to its October 2018 dismissal of a lawsuit Hassan filed against a media personality who incited to his murder on his television program. The same month, the public prosecution initiated a lawsuit against Hassan based on an anonymous complaint. The judiciary’s conduct towards Hassan demonstrates that it views free speech as a crime deserving of imprisonment, while viewing death threats or incitement to murder as speech that is sanctioned or approved.
The case resulting in Hassan’s three-year prison sentence (no. 5530 of 2019) is yet another manifestation of the Egyptian government’s deep-seated vindictiveness against rights defenders, and while demonstrating the extent to which the role of judiciary has been degraded under President Abdel Fattah al-Sisi. The adoption of so-called legislative and constitutional reforms has tighten his stranglehold on the entire justice system – rendering it a tool to be manipulated for narrow political ends. This has not escaped the notice of the international community, with UN experts describing sentences issued by Egyptian courts a “travesty of justice.”
The ruling against Bahey eldin Hassan is only the latest in a series of reprisals against him—and many other Egyptian rights defenders – including death threats and personal and institutional asset seizures. Hassan has additionally been placed on entry watch lists, and subjected to relentless media smear campaigns – aired several times on television – that go beyond slander to incitement to violence and murder.
In its over 13-month investigation of the tweet, the Public Prosecution failed to comply with the most fundamental legal rules and tenets, contravening Egypt’s constitution and law in its reckless drive to convict Hassan as harshly as possible and at all costs, even if these costs included the integrity and legality of the trial and investigation procedures. This intentional negligence by the judiciary renders it evident that it acted not in the interests of justice or in the interests of the public, but in the interests of the Sisi administration – interests that center on retaliating against human rights defenders and political opposition.
Hassan hopes that the new public prosecutor, appointed in September 2019, will change course from functioning as an instrument of vengeance against political opponents and human rights defenders, to instead fulfilling its rightful role as a defender and protector of the public:
“I hope the new public prosecutor demonstrates that my criticism of the former prosecutor does not apply to him, by actually serving as a defender of society and the public rather than as counsel for the security establishment by legitimizing violations of the constitution, law, and human rights.”
CIHRS issued a legal commentary detailing the flawed and irregular trial procedures as well as the legally invalid ruling against Hassan. The ruling, among other illegalities, is based upon a clear violation of Article 71 of Egypt’s constitution, which prohibits custodial penalties for publication crimes.
Bahey eldin Hassan sentenced to three years in prison for a tweet
Case Summary
On 19 September 2019, Bahey eldin Hassan, the director of the Cairo Institute for Human Rights Studies, was sentenced in absentia to three years in prison and a LE20,000 fine in case no. 5530 of 2019. The sentence was issued by the Cairo Felony Court, circuit 30, presided over by Judge Mohammed Ali al-Fiqqi.
The case stems from a tweet Hassan posted on his personal Twitter account in March 2018, which was deemed by the Egyptian authorities as an insult to the judiciary. The prosecution of Bahey eldin Hassan is the latest in a series of reprisals and harassment against human rights defenders and manipulations of the law to serve political ends, of which Hassan has already been a prominent victim. After being on the receiving death threats and media smear campaigns, seeing his assets frozen, and being placed on entry watch lists, Hassan has now been sentenced to three years in prison for freely expressing himself in a tweet.
In the tweet, Hassan criticized the public prosecutor for covering up abuses by the Interior Ministry, writing:
“The job of the public prosecutor in Egypt is no longer to stop violations by the Interior Ministry; his role is now to provide legal and judicial cover for such crimes. He has abandoned his role as a public prosecutor to protect society to become a defender the systematic, daily assault on it.”
Hassan posted the tweet after novelist Alaa al-Aswany was held at the Cairo airport for over two hours, during which he was subjected to search and seizure without legal basis.
The Public Prosecution charged Hassan with willfully spreading news likely to disturb public security, spread fear among the populace, or damage the public interest; using a public means to publish statements likely to undermine the judicial authority and its standing; and falsely claiming that the public prosecutor had abandoned his role to protect society and confront law-breaking. The charges were based on an anonymous complaint filed in March 2018 demanding legal action and penalties against Hassan for criticizing the public prosecutor’s conduct in the al-Aswany incident. In the wake of the complaint, the Public Prosecution opened an inquiry that lasted 15 months, from the first interrogation session on March 31 2018 until the case’s referral to trial in June 2019.
During this period, the Public Prosecution failed to comply with the most fundamental legal tenets and rules, making it clear that political orders had been given to convict Hassan as quickly and harshly as possible, even if doing so resulted in trial irregularities. In September 2019, the court issued its legally flawed sentence, without even bothering to examine the integrity of the investigation and interrogation procedures. Its ruling contravenes Egypt’s constitution and its law, reflecting the prosecution’s intent to convict regardless of the legal soundness of the case.
CIHRS has issued a legal commentary responding in detail to the irregularities in the investigation procedures, as well as the nature of the charges and sentencing in the case, most importantly:
- Investigation initiated before obtaining request of the Supreme Judicial Council (SJC)
The Public Prosecution brought several charges against the director of the CIHRS, among them insulting the judiciary. Under Article 9 of the Code of Criminal Procedure,[1] the prosecution was obligated to wait until it received a written request from the SJC, since it is the highest judicial authority and the defendant in this case.
Instead of abiding by the law, the prosecution initiated the investigation on March 31st 2018 without this written request, which calls all subsequent investigation procedures into question. It is irrelevant that the prosecution received the request on 13 November, as stated in an explanatory memo it drafted reviewing the findings of its (legally invalid) eight-month investigation, to be presented to the public prosecutor and the SJC to request action, which had already begun in March, and file a criminal case if warranted.
Under the law, the court was required to dismiss the prosecution’s investigations and conclusions. However, the court flouted the law, heard the case, and issued a sentence. The court’s actions defy the Egyptian Court of Cassation’s ruling in a similar case:
“No criminal case may be initiated or any action taken to initiate it before investigative or judicial bodies prior to the submission of a complaint or the receipt of permission or a request from the body duly authorized by law. If a criminal suit is initiated—whether investigations conducted by the Public Prosecution as the investigating body or a criminal suit filed before judicial bodies—before completion of this legal procedure, the action is wholly invalid ….The court must therefore automatically comply with this and invalidate all investigation procedures in connection with the defendant, such as his arrest or imprisonment…”[2]
- Bahey eldin Hassan’s sentence contravenes Egypt’s constitution
Paragraph 2 of Article 71 of the constitution prohibits custodial penalties for publication crimes, exempting only incitement to violence, discrimination between citizens, or impugning individuals’ honor. The constitution therefore upholds the legislator’s right to punish publication crimes provided such punishment does not include custodial penalties, with the stated exceptions.[3] As such, a custodial sentence of three years in prison against Bahey eldin Hassan for a publication crime that neither constitutes incitement to violence or discrimination nor impugns individual honor is an infringement of the constitutional article.
- Flawed application of Article 32 of the Penal Code
Paragraph 1 of Article 32 of the Penal Code states:
“If the single action constitutes multiple crimes, the crime with the severest penalty must be considered and the penalty for it levied to the exclusion of the others.” In other words, if multiple crimes are committed by one act, only the crime carrying the harshest legal sanction is considered in sentencing, and only the penalty for that crime should be used in sentencing, for that crime renders the lesser ones irrelevant.[4]
Under Article 184 of the Penal Code, the penalty for the crime of insulting the judiciary—the severest crime in this case—is imprisonment and/or a fine of LE5,000–10,000. As such, the court should have assessed this penalty alone. Instead, the court invented a new penalty, assessing a term of imprisonment for the crime of insulting the judiciary and a fine of LE20,000 for the crime of defaming a public servant, which is a less serious crime than the first and carries a less severe penalty.
The judicial authority, both its prosecutorial and judicial wings, intentionally pursued unlawful avenues to convict and sentence Hassan in total disregard of the law, despite the clarity of the relevant legal provisions. The judiciary’s total disregard of the law demonstrates the deterioration of the justice system in Egypt since President al-Sisi assumed the reins of power. For the judiciary under Sisi, convicting human rights defenders and political opponents has become a goal in and of itself regardless of the constitution and requirements of law.
[1] Paragraph 1 of Article 9 states explicitly that “no criminal suit may be filed and no action taken on it.” Paragraph 2 states, “In all cases in which the law conditions the filing of a criminal suit on the submission of a complaint or the receipt of permission or a request from the victim or other party, no investigation procedures may be taken until after such complaint is submitted or such permission or request received.”
[2] Egyptian Cassation Court, appeal no. 5615/60JY, issued on 7 January 1992, Technical Office 43, part 1, p. 93; appeal no. 17104/59JY, issued on 15 June 1993, Technical Office 44, part 1, p. 602; appeal no. 29798/70JY, issued on 7 November 2001, Technical Office 52, p. 837.
[3] Supreme Constitutional Court, appeal no. 139/29JY, issued on 13 January 2018, p. 35.
[4] Egyptian Cassation Court, appeal no. 4123/57JY, issued on 10 March 1988, Technical Office 39, part 1, p. 397; appeal no. 29161/72JY, issued on 1 January 2008, Technical Office 59, p. 26.