“If I can't have my son's rights legally or see justice in the courts,” said Ali Hassan, father of Mohab, one of the revolution's martyrs, “I will take over retribution myself. There should be no more suppression and no more reconciliation. I lost my son, and I don't care about my own life any more. I will pursue my son's dream until the last breath in my body.” “Can you bring my son back to life through the courts,” asked Wafaa, the mother of 19-year-old Mohamed Mustafa who died in the sit-in by the cabinet office in December 2011. “I would have been compensated if the dream he died for had been realised or the revolution he supported had succeeded. But this has not been the case, and my son's case has not gone to court. Why the delay? Do they want to kill more people?” “The bloodshed in the Mohamed Mahmoud Street clashes and outside Al-Ittihadiya palace almost a year after my son's murder and the exoneration of almost all the accused police officers of killing the protesters in the courts make me believe that there is no justice and no hope left. Politicians misuse martyrs' rights and in the end they do nothing except make propaganda to maintain themselves in their positions.” No martyrs can come back to life two years after Egypt's 25 January Revolution, or even 100 years after it. But what could have compensated the families for their sacrifice was seeing the revolution's principles of freedom, justice and dignity prevail and the dream of a country without corruption be achieved.
SHEIKH EMAD EFFAT AND OTHERS: One case that I have followed in detail is that of Sheikh Emad Effat. He was my husband, and after his death on 16 December 2011, I didn't have the time to mourn at home like many other wives. Instead, I went to Tahrir Square, gathered footage of the incidents, passed by the satellite channels to find any live broadcast material on the day of his murder, searched for witnesses who, if they had not seen him shot could at least describe the shooters and the atmosphere, went to see the place and imagine the shooting, visited a forensic consultancy office to understand the anatomical report and the circumstances of his death, and met with the families of other martyrs to share their pain and their evidence. Though far from being a Sherlock Holmes-type investigator, I was able to reconstruct the moment that Effat had entered the scene, find his position in front of the cabinet office seconds before his death, and draw up scenarios for his murder. I believe I could easily have found who killed Sheikh Emad Effat if the police and the prosecution judges had been sincerely seeking the truth because they have the power to collect evidence and conduct investigations. However, when I went to the prosecution judges responsible to follow up the investigation, I was shocked to find two witnesses, one male and one female, saying strange things that did not match the evidence I had found. One of them said that a man had shot Effat using “a strange pen” with three different coloured buttons. The man had pushed the red button, and a bullet had penetrated his heart, the man said. The other witness claimed that Effat had been killed some distance away from the cabinet building. This evidence had clearly been fabricated to deny the existence of snipers and Armed Forces officers in the vicinity. Shocked by the witnesses and the mentality that allowed people to accept what they said and be satisfied with the least amount of effort, I felt unable to help the judge, and the case is still open. The same thing is true of the fire at the Egyptian Institute of Science, responsible for the burning of many important historical books, and the killing of 19 people on this occasion and the injury of some 928 others. The Ministry of Interior itself was penetrated by attackers, yet a year has passed and nothing has been done to bring those responsible to justice. Two years have passed since the revolution itself, and those charged with the murders of the protesters are still more likely to be acquitted than convicted. Cases relating to the 25 January Revolution have been based mainly on evidence provided, or some say withheld, by Interior Ministry officials as well as the testimonies of the defendants' colleagues, according to lawyers. The result has been a series of weak cases, in which most of those accused of killing the protesters have been acquitted. For example, the Cairo Criminal Court last November acquitted police officers Ahmed Al-Shazli and Khaled Abu Raid of killing five protesters and injuring seven others. The officers were found not guilty of shooting protesters outside the Darb Al-Ahmar police station on 28 January 2011. The defence lawyer argued that the charges were based on malicious reports and that criminals in the district had invented the allegations out of hostility towards Al-Shazli after his 11 years in the police force. He suggested that the protesters may have been killed by unknown gunmen who had infiltrated the demonstrations. According to the defence, Al-Shazli had been stationed at the Cairo Security Department on the day of the killings and Abu Raid had been securing the Al-Azhar Mosque during Friday prayers. Brigadier-General Ahmed Helmi, Captain Mohamed Fawzi and Captain Ahmed Kilani all provided testimony corroborating Al-Shazli's alibi. His lawyer also said that the killed and injured protesters had been violent and had tried to burn down the police station. Another example took place at the Giza Criminal Court in June 2012, when 13 policemen were cleared of charges of killing protesters in the neighbourhoods of Kerdasa and Imbaba during the 25 January Revolution. The policemen were charged with killing six demonstrators and attempting to kill 18 others on 28 and 29 January 2011, charges on which they were acquitted.
THE NEVER-ENDING CASE OF MUBARAK: Two weeks ago, an Egyptian appeals court threw out the guilty verdict and life sentence against former president Hosni Mubarak on charges that he had allowed the killing of protesters. The court ordered a new trial, which will once again send the ailing autocrat rolling on a stretcher into the defendant's cage in an Egyptian criminal court. Both the prosecution and the defence had appealed the original verdict, one side seeking a stronger verdict and the other an acquittal. Lawyers for the Islamist Freedom and Justice Party allied with President Mohamed Morsi have argued that a new trial with new evidence could result in the death penalty. However, other Egyptians have reacted to the decision with exasperation, seeing in it a parable of the country's fitful progress in its struggle to break free of its autocratic past. Mubarak's unending case reflects Egypt's unfinished revolution, in which lawyers fight it out with Mubarak and his men. More than 800 civilian demonstrators were killed in the revolution, many of them by the police and security forces during the three weeks of mostly non-violent protests that ended Mubarak's rule. When the transitional government pursued charges against Mubarak and his circle, human rights lawyers faulted the prosecutors for relying on the same police force that had been accused of killing the protesters to collect the evidence. During Mubarak's trial, many accused the prosecutors of failing to make good use of the evidence they had gathered. As a result, the guilty verdict was considered ripe for appeal from the moment it was issued, the judge who handed it down saying at the time that he had seen no evidence to back up a conviction. Instead, the judge reasoned that Mubarak and his interior minister bore responsibility for the deaths of the protesters by virtue of their positions. He nevertheless ordered the acquittal of a half dozen subordinate Interior Ministry officials charged in the same case. Under Egyptian law, the ruling two weeks ago effectively rewinds the court proceedings back to the original indictment of Mubarak in 2011. When the case is assigned to a new court, the judge will have broad latitude to proceed as he wishes, and he can send the case back to the prosecutors for further investigation and new evidence or even amend the charges. Evidently anticipating this ruling, Egyptian prosecutors recently began a new case against Mubarak, accusing him of taking pay-offs from Al-Ahram Establishment in the form of $1 million in gifts over the last six years of his rule. The state media reported that Mubarak and his family had unexpectedly agreed to repay $3 million in gifts that he had received from Al-Ahram in order to resolve the charges. If the repayment is accepted, the judge hearing the retrial could decide whether or not Mubarak remains in prison or goes free in the interim.
WHERE IS THE FACT-FINDING REPORT? What has gone wrong in the courts from the beginning of the revolution until the end of June 2012, despite the sincere efforts of lawyers, activists' movements, peaceful street rallies and sit-ins, and two fact-finding committees? “The nature of the justice system in Egypt and the absence of political will are two reasons for what has gone wrong in the prosecution process,” said Ahmed Ragheb, a rights lawyer and a member of the second fact-finding committee formed by President Morsi to investigate the killing of the protesters, after the submission of the committee's report to the presidency and the prosecutor-general, Talaat Abdallah, earlier this month. “The justice system is designed for individuals breaking the law and not for revolts or group acts against the regime. There are no revolutionary courts, and at the same time the justice system is itself part of the old regime and thus acts as judge and prosecutor at the same time. It has three roles to play: the police departments are responsible for gathering information, which they then give to the prosecution department that investigates the evidence gathered by the police, and finally the judges issue their rulings in the different courts.” “Some of those accused as a result of the revolution are themselves police officers, and here we can see a possible conflict of interest in which the police don't gather information to accuse themselves, but may hide evidence or even tamper with it. Neither the police nor the judges want their personal privileges to be affected by the revolutionary changes, and thus no evidence incriminating the police forces will ever emerge until and unless the Interior Ministry is reformed and purged of corruption.” Ragheb said that all the governments following the Revolution, including the Supreme Council of the Armed Forces (SCAF) and the governments that had followed it, did not have the political will to achieve justice. They were concerned to regenerate the old regime, he said, without touching its core, something which could be done by accusing the protesters of having thwarted the security system and damaged the economy. This could take place without steps being taken to cleanse the Interior Ministry and the Justice Ministry or remove military figures from their jobs. “The change to a democratic system without corruption is a long battle, and we should use all political, legal and economic tools to reach it in the end. This is a historic moment that we are living through,” Ragheb added. “The committee's report offers information and evidence that might be right or wrong, but it should be investigated and used by the government and other political parties if the political will really exists to do so. That way, we can summon various figures for trial and see some changes come about.” The report's findings reportedly implicate the interior ministry as well as the armed forces in firing live ammunition and birdshot at protesters. Some sovereign bodies and state TV had declined to submit evidence in the cases of the killings of the protesters since the Revolution and the ensuing trials. There is evidence linking the use of tear gas by the security forces during the Mohamed Mahmoud Street clashes in November 2011 to the deaths of some of the protesters by asphyxiation. The committee has recommended the summoning of hundreds of those involved in the killing of the protesters, including former Interior Ministry, Armed Forces and civilian officials, based on evidence against them. However, the report itself and the names or posts of those implicated have been kept secret for fear that they may try to leave the country were their names to be made public before prosecution could take place.
THE REPORT'S FINDINGS: The committee report found that while dispersing the sit-ins, the security forces had used live ammunition and birdshot, and civilians had been hired to assault the protesters with weapons and Molotov cocktails. Some had been found to have infiltrated the demonstrations with the aim of committing violent attacks against the security forces and provoke them to lash out against the protesters. Former president Mubarak had access to an encoded television channel with a live stream of Tahrir Square, which was given him by former information minister Anas Al-Fiki. The Armed Forces and police personnel ended sit-ins by attacking protesters using excessive force and illegal detentions. The report also put the responsibility for the protesters' deaths squarely on Mubarak. The report only covers the 17 clashes during the revolution and the 18 months following it in Cairo and certain other governorates, though it also includes other controversial issues, such as the fate of the missing and the reported use of virginity tests on women during military detention. It reports on attacks on women and those in charge of protecting the protests, and it discusses the killing of protesters in front of police stations. It also investigates the cooperation of the state apparatus with the justice system. Riham Al-Sharkawi, the elder sister of a martyr, was one of the family members who helped the committee in finding evidence and undertaking its work. “The police should have done this work, but since they didn't, and the case of my brother is still unfinished, we searched for evidence and witnesses and brought them to the prosecution judges ourselves,” she said. “However, still nothing happened, so I joined the committee to follow my brother's case. The committee did a good job of the investigation, but it seems to me that since Omar Marwan was the general-secretary of both the first and the second fact-finding committees, changes could be introduced into the report, or its findings might not be taken seriously, as was the case with the first one.” Ragheb denied such fears, saying that “this time, more than 60 volunteer members representing rights lawyers, prosecution judges, members of martyrs' families and activists helped on the committee, among them Al-Sharkawi herself, and they knew that they were all working against the tide. They were often successful in gathering information and clear evidence of guilt, such as official recordings and papers from bodies like the Centre for Decision-Making and Reinforcement. I hope these materials are genuine and not faked.” The first report, issued last April, was seen as lacking due to the speed with which it had been compiled and the lack of official assistance. No ministry helped the committee with damaging evidence, and State Television, National Security, General Intelligence, Military Intelligence and the ministries of the interior and defence did not take part. “The problem was not the first report itself, but the judicial system,” Ragheb said. “The committee gave the report to the prosecutor's office, which gave it to the courts without doing its job of investigating and summoning witnesses. This meant that things were not properly followed through.” Ragheb explained that the official scenario of the courts was that the police and the army had not killed the protesters, and so almost all cases had ended in acquittal. The opposite is true in the second report, he said, which also rejects the idea that foreign hands could have been behind the killings of the protesters. “Both scenarios are false: we are talking now not only of the rights of the martyrs, but also of the rights of the nation. Political will can bring well-known figures to trial. We are writing history, so we need to pursue the truth. If we do not, false history will be written and one day this will be taught to our kids in school,” Ragheb added.
THE REVOLUTION PROTECTION LAW: The constitutional declaration introduced by President Morsi last November introduced a revolution protection law that he claimed would guarantee the rights of the martyrs and injured revolutionaries. The law establishes a new prosecution system dedicated to investigating violations committed against protesters during the 25 January Revolution, which refers to the 18-day uprising that toppled Mubarak and brought the SCAF to power. It does not, however, necessarily include investigations into the ensuing aggressions committed by the security and army forces against protesters in the months that followed. The law also calls for the retrial of those holding executive posts during the time the violations occurred, including those responsible for ordering or failing to stop the killing of protesters, those complicit in hiding evidence against the perpetrators, and ordering the investigation into cases of political and financial corruption by former regime officials. However, the technicalities of the law may mean that the retrials of former regime officials are more difficult than many people think, leaving the one positive part of the declaration in shambles. A main criticism of the new law is that it ties the retrials of former regime officials to finding new evidence against them and that it threatens freedoms. Prosecutors at the Mubarak trial constantly complained of the police and intelligence bodies being uncooperative, indirectly hinting that they had hid or destroyed evidence. Raafat Fouda, a professor of constitutional law at Cairo University, said that “those already sentenced cannot be retried because the same person cannot be tried twice for the same offence” unless new evidence is found. Ragheb also said that although the protection law had been one of the main demands of the rights groups, it did not establish a solid foundation for a transitional justice system. For one thing, it fails to outline mechanisms by which the newly-established prosecution can collect evidence. Of equal importance is the law's vagueness in specifying the time period in which violations were committed against the protesters and whether this encompasses violence that occurred during the rule of the SCAF. The law repeatedly refers to the “former regime” and the “25 January revolutionaries”, but with clashes continuing around Tahrir Square it's unclear whether the protesters now coming out against the new regime will also be considered to be revolutionary. “The decisions issued by Morsi specify exceptional pensions to be provided for martyrs, including those killed under the military regime. The fact-finding committee appointed by Morsi to investigate the crimes against the protesters includes the time of military rule. Why this point is not clear in the new law is questionable,” Ragheb said. Article 4 of the law has particularly outraged rights lawyers, who say it is a “catastrophe.” The article lists six chapters from the penal code that include charges that could be referred to the newly-established prosecution and specialised courts, including insulting the president, a public employee, a judge or obstructing the traffic, said Heba Morayef, Egypt director of Human Rights Watch, an international NGO. While promising to guarantee justice for the martyrs, it thus also harbours an article that flagrantly violates the freedom of expression. The law allows the prosecutor-general to detain anyone accused of the above crimes for six months without a court order, which could pave the way for muzzling activists and opposition figures who may be brought to account for criticising the president. The specialised prosecution and courts established under the law are still closely tied to the prosecutor-general, and they follow the same methods in gathering evidence. Twenty-one prosecuting judges took up their jobs last week under the presidency of Amr Fawzi. Morayef points out that specialised prosecutions and courts designated for cases relating to the revolution would guarantee swift, thorough trials and prevent them from being lost amid other court cases, however.
NO MILITARY COURTS: If military figures are prosecuted in court, where will the cases be heard? The SCAF and security forces repeatedly came under fire for attacking protesters and forcibly dispersing demonstrations and sit-ins on a regular basis from the time they came to power until after Morsi was elected president last year, when he reclaimed authority in August 2012 with his first constitutional declaration. The most violent clashes between the military forces and protesters took place on 9 October 2011, at Maspero, during the Mohamed Mahmoud Street clashes that began on 19 November last year, and during the cabinet clashes of December 2011. Only the military prosecution authority has the jurisdiction to prosecute military officers or refer them to military or civilian courts, and the constitutional declaration does not change this. Ragheb said that he had wanted Morsi to issue a decree allowing the prosecution of military officers and officials in specialised courts, rather than in military courts. “Our struggle is double now,” he commented. “We are struggling to modify the constitutional articles relating to the military tribunals, as well as to free those who have been detained.” There are two problems with the constitutional role given to the military judiciary. The first, Ragheb said, is equating military judges with their civilian counterparts, which legitimises the role of an institution that is not necessarily committed to the basic standards of a fair trial. “The military judiciary is highly politicised and not independent,” he added. The second problem is the legitimisation of military trials themselves by including crimes relating to the armed forces in general. “All the cases facing military trials since the revolution fall under this broad exception,” Ragheb said. “We have to fight for having all cases held in civil courts. This is supposed to be revolutionary justice. People who were tortured, unlawfully detained and killed under the former regime also deserve retribution.” “The revolution is still in progress in other forms and now in the courts as well. What went wrong can be corrected by seeking the truth and writing truthful history.”
