The Egyptian Initiative for Personal Rights today condemned the sentencing of seven men to death on March 2 by the Alexandria Military Court in connection with case 22/2015/Tanta military criminal court, known as the Kafr al-Sheikh stadium case. EIPR reiterates its rejection of military trials for civilians and urges the military not to ratify the sentences and instead to refer the case to retrial before a competent civil court with due process guarantees. The organization calls for a swift and independent investigation into the torture and enforced disappearance of five of the defendants. 

The sentence in the Kafr al-Sheikh stadium case comes amid a growing recourse to military trials of civilians by the authorities and a steady increase in the frequency of death sentences. Courts have issued at least 32 death sentences against 1,200 people in the past two years, among them three by military tribunals. 

There is a second case before a military court where defendants are at risk of being sentenced to death - in case 174/2015/military criminal court, known as the “Advanced operations case, the court has recommended that eight defendants be sentenced to death and has referred this sentence to the mufti for approval, as required by procedure. The final verdict is scheduled for April 3 2016, where the sentence will either be approved or reduced as per the mufti’s opinion. 

The EIPR fears that fate of those sentenced to death on March 2 will be the same as defendants in the “Arab Sharkas" case. In that case, the Cairo military court recommended a death penalty sentence for seven of the nine defendants on August 25, 2014, the mufti approved all of the death sentences two months later and this was confirmed in court as a final judgment on October 21, 2014. The minister of defence ratified the sentence and a military court denied their appeal on March 24, 2015. Six of the defendants were executed by hanging on May 17, 2015. 

Military trials in Egypt are hasty affairs, conducted with a speed that may preclude a determination of the facts and deny defendants the right to adequate time to prepare and submit their defence. Judgments in military courts are not final until they have been ratified by the defense minister, and with death sentences, the case files automatically go to appeal before another military court, the High Court for Military Appeals. 

On April 19, 2015, the Public Prosecution referred the Kafr al-Sheikh stadium case to the Military Prosecution, after an expansion in the jurisdiction of military courts. According to the charge sheet, the Military Prosecution accused 16 people in the case of the murder of three students at the War College and the attempted murder of two other students as a result of a bombing at the entrance to the Kafr al-Sheikh stadium used by the students on April 15, 2015. The case had been referred to the criminal circuits of the military judiciary before the end of July 2015. 

Yet military investigations into the incident conducted in the northern military zone had concluded in their report which formed part of the case documents reviewed by EIPR that “the perpetrator of the incident was not found given the absence of cameras on the site of the incident. It is difficult to use camera no. 1…to identify the perpetrators given the distance and impediments to vision.” The sentenced defendants include Fakih Abd al-Latif, a teacher at the Martyr Ahmed Saad al-Dihi Preparatory Scholl in Shanou in the Kafr al-Sheikh governorate. EIPR has reviewed an official affidavit, stamped with the official eagle seal of the governorate and the provincial education directorate that Abd al-Latif was present at the school on the day of the incident, April 15, 2015. According to the statement, he fulfilled all his school duties and did not leave the school during the day. This contradicts the charge sheet against Abd al-Latif prepared by the Tanta Military Prosecution, which alleged he was present on the scene and took part in the bombing. 

Enforced disappearance and violation of the right of defense 

The EIPR observed several violations of the defendants’ rights under the Egyptian constitution and international human rights law in the Kafr al-Sheikh case. 

Five of the defendants were forcibly disappeared by the police, four of them on April 19, 2015 and the fifth, Ahmed Abd al-Moneim Salam, from his workplace on April 20, 2015. Police stations in Kafr al-Sheikh denied that the defendants were in their custody despite witnesses to their arrest by police. The authorities refused to disclose their location or their fate. The EIPR obtained copies of the National Security reports on the apprehension of four of the defendants, which post-dated their arrests by two months. 

One citizen’s testimony, certified by the Kafr al-Sheikh notary office, said that police forces had arrested Lutfi Ibrahim Ismail Khalil in front of a shop in Shanou in Kafr al-Sheikh on April 19, 2015 after which he was disappeared. His family was unable to contact him and could obtain no knowledge of his place of detention. An arrest report for Khalil was written by National Security on June 30, 2015. 

The families of the defendants filed complaints with the Public Prosecutor’s Office following their disappearance, such as the complaint no. 3563/Kafr al-Sheikh administrative filed on May 6, 2015, and the letter to the Kafr al-Sheikh district prosecutor on February 25, 2015 (no. 1345/grievances). Yet prosecutors failed to investigate the complaints which accused police officers of kidnapping and torture. One of the investigations was formally closed on December 12, 2015 without charge or any serious attempt to investigate the claims. 

It was only 76 days after they had first disappeared that the families of the defendants learned informally, through families of other prisoners, that their loved ones were in the Tanta Prison. They were only able to see them 93 days later, after the Military Prosecution had concluded its questioning. 

This meant that the defendants were denied to choose defence lawyers while they were being interrogated by military prosecutors since this took place during their disappearance where their families and lawyers had no access to them and were searching desperately for them. Military prosecutors had appointed an attorney for the defendants but as one of the defendants, Khalil, later told his father - the appointed lawyer failed to represent the defendants effectively and Khalil rejected his lawyer during one of the interrogation sessions. During the first session of the military trial in October the defendants’ lawyer was present. 

According to the families’ complaints filed before the Public Prosecution, their disappeared loved ones had been subjected to various types of severe torture and ill treatment. This was confirmed by the personal testimony of some of the defendants after their appearance. Khalil spoke of brutal beatings, torture by electroshocks to his genitals, and threats to rape his mother and sister, after which he said he was prepared to sign anything. He wrote his testimony while in custody and gave it to his relatives on their first visit (the EIPR has a copy of this handwritten statement). In the first days of his disappearance, Khalil was taken to the Nasr City 1 police station, where he was initially tortured. He was then taken at night to State Security and intelligence, according to his statement. An intelligence officer took him to the scene of the incident in front of the Kafr al-Sheikh stadium and filmed a video in which Khalil confessed to committing the crime, under threat of torture. 

The Public Prosecution wrote reports about the forced disappearance and torture, questioned some of the families who had filed the complaints (such as report 3563/2015/Kafr al-Sheikh 1 prosecution), and recorded the complaints of torture given to the families by citizens who came out of the National Security headquarters. Nevertheless, the prosecution ultimately closed the investigation without action. 

Military trials of civilians in international human rights law 

The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), which act as directives to state parties on the implementation of the rights in the African Charter on Human and Peoples’ Rights, prohibits absolutely the prosecution of civilians before military tribunals and states that the jurisdiction of military courts shall be limited to military personnel. 

Article 14 of the International Covenant on Civil and Political Rights, which Egypt ratified in 1982, guarantees the right to fair trial before “an independent, impartial” court. The Egyptian military judiciary does not meet the standard of independence because it is officially and in practice subordinate to the executive (the Defense Ministry) and its budget is part of the Defense Ministry budget. Sentences in military trials are not final until they ratified by the executive, in this case the minister of defence, and judges are subject to the rules of military service as all other serving military personnel. 

The UN special rapporteur on the independence of judges and lawyers, Gabriela Knaul, said in her report submitted to the UN General Assembly in 2013, “State practice shows a tendency towards limiting the personal jurisdiction of military tribunals to criminal offences and breaches of discipline allegedly committed by active members of the armed forces.” She added in paragraph 38:

The principle of the separation of powers requires that military tribunals be institutionally separate from the executive and the legislative branches of power so as to avoid any interference, including by the military, in the administration of justice. In this regard, principle 13 of the draft principles governing the administration of justice through military tribunals states that military judges should have a status guaranteeing their independence and impartiality, in particular in respect of the military hierarchy. In the commentary to this principle, it is noted that the statutory independence of military judges vis-à-vis the military hierarchy must be strictly protected, avoiding any direct or indirect subordination, whether in the organization and operation of the system of justice itself or in terms of career development for military judges. 

In paragraph 49, the special rapporteur notes that principle 5 of the draft principles governing the administration of justice through military tribunals states that “military courts should, in principle, have no jurisdiction to try civilians and that, in all circumstances, the State shall ensure that civilians accused of a criminal offense of any nature are tried by civilian courts. In the commentary to that principle, it is noted that the practice of trying civilians in military tribunals presents serious problems as far as the equitable, impartial and independent administration of justice is concerned, and is often justified by the need to enable exceptional procedures that do not comply with normal standards of justice.”

The UN Human Rights Committee, which is competent to interpret the International Covenant on Civil and Political Rights, is currently calls on states that appear before it to discuss their periodic report to end the prosecution of civilians before military tribunals. In paragraph 22 of its General Comment on Article 14, it states:

Trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials. 

In reviewing the Committee’s Concluding Observations and findings, the Special Rapporteur therefore writes in paragraph 51 that:

It is therefore incumbent on the State party resorting to military tribunals to try civilians to demonstrate, with regard to a specific class of individuals, the following: (a) that the regular civilian courts are unable to undertake the trials; (b) that other, alternative, forms of special or high-security civilian courts are inadequate for the task; and (c) that recourse to military tribunals ensures that the rights of the accused are fully protected pursuant to article 14 of the Covenant. In its concluding observations on reports submitted by States parties under article 40 of the Covenant, the Committee has gone further still by calling on Governments in several countries to prohibit the trial of civilians before military tribunals.