The security crackdown that the Egyptian authorities are currently waging against all forms of assembly and protest and that targets all indiscriminately is the fiercest and most violent since the current president came to power in 2014. Since the calls for protest on September 20 this year, approximately 2,000 people have been arrested from various places in almost all governorates, according to statistics from the rights organizations tracking the investigations into the arrestees. Consequently, the UN OHCHR issued a statement expressing concern about the widespread arrests of protestors and calling upon the Egyptian government to exercise restraint and respect citizens’ right to protest peacefully in accordance with international standards.[1]

According to the prosecutor-general’s statement on September 26 2019, the Public Prosecution had questioned no more than 1,000 defendants in relation to these events. This figure has certainly risen given the appearance of new groups of detainees each day before the various prosecution offices. The Public Prosecution gave them a range of charges, namely collaborating with a terrorist group to achieve its goals, publishing false news and rumors, misusing social media for a criminal purpose, and holding protests without authorization. These are the same charges that the Public Prosecution has consistently resorted to in the past years for all cases of a political nature.

During the investigations, a different approach by the Public Prosecution emerged via the lawyers’ testimonies as the numbers were very large, as previously mentioned.[2] The State Security Prosecution, the body competent to investigate, was not able to handle this number alone and was forced to second investigators from the various other prosecution offices, such as the Public Finance Prosecution and the Financial and Commercial Affairs Prosecution. Additionally, many of the arrestees have no political background or affiliation, and many never protested in the first place and were arrested at random.

All these factors would cast their shadows over the investigation, as we shall discuss in this article.

 

The Hierarchical Organization of the Public Prosecution Amidst the New Appointments

To begin with, we must mention that Article 26 of the Judicial Authority Law renders prosecutors “subordinate to their bosses per ranking and then to the prosecutor-general”. Hence, a prosecutor cannot contravene instructions from the president of their prosecution office, who cannot contravene instructions from the advocate-general, and none of them may contravene instructions from the prosecutor-general. This destroys the independence of investigators and conflicts with international fair trial standards.[3] Note also that previously, the prosecutor-general was appointed by the president of the republic based on the Supreme Judicial Council’s binding nomination.[4] This constituted a minimum guarantee that the executive authority would not control the Public Prosecution. However, after the latest constitutional amendments, the Supreme Judicial Council now nominates three judges for the president of the republic to choose from. This expands the president’s powers to choose the prosecutor-general and facilitates the executive authority’s control over the Public Prosecution. Based on these amendments, Counsellor Hamada al-Sawi was appointed prosecutor-general.[5] In turn, he selected the son of former prosecutor-general Hisham Barakat, the son of Vice President of the Court of Cassation Counsellor Ahmed el-Sisi (President Abdel Fattah el-Sisi’s brother), and the children of other officials for positions within the Supreme State Security Prosecution’s office, all after appointing his own son in the Technical Office of the Prosecutor-General.[6] This clearly indicates that serious steps are being taken to establish the executive authority’s complete control over this apparatus so that it can be used to achieve the executive authority’s goals, in this case legalizing and legitimizing the repression of popular demonstrations or protests.

 

How Did the Hierarchical Organization of the Public Prosecution Affect the Case’s Investigations?

The September 20 case is the first case of a political nature that the Public Prosecution has investigated since the new prosecutor-general assumed office.[7] The prosecution’s approach differed this time as the issuance of a statement on a case by the prosecutor-general is unusual. It does not usually occur in such cases, though it can occur in cases that are thought to concern public opinion [like corruptiotn or terrorism]. Moreover, the hierarchical organization of the Public Prosecution became very evident in this case, as we shall explain.

As mentioned in the introduction, this case is distinguished by the fact that most of the detainees are regular citizens with no political orientations, ideological backgrounds, or even dissenting views. Rather, the vast majority did not participate in any protests to begin with, according to the testimonies of their lawyers. Hence, this enormous, unprecedented number of arrestees is merely further evidence that the arrests and detentions were random and had nothing to do with participation in a protest.

This randomness in arrest and detention casts its shadow over the investigation procedures before the Public Prosecution. Testimonies from lawyers tracking the investigations documented that the investigators sympathized with many of the detainees due to their age, their social status, their health condition, or the illogicality of their participation in protests that never existed in the first place. The members of the Public Prosecution were unable to convert this sympathy into the tangible release of any arrestees as it was decided that all those presented in this case would be imprisoned for 15 days, which suggests that orders to imprison anyone investigated in this case were received from the prosecutor-general. This blatantly reflects how this “hierarchical organization” can undermine investigators’ independence to make their own decisions and thereby impact the fairness of the investigation and, by extension, the fairness of the trial.

 

The Obsession with Social Media

In the prosecutor-general’s statement, he mentioned ordering the examination of the defendants’ social media pages and accounts to investigate the aforementioned charge of “misusing social media”. However, the provision and legal definition that the prosecution adopted when issuing the charge of “misusing social media for a criminal purpose” is unclear, according to the lawyers’ testimonies.

This reflects the Egyptian state’s recent obsession with social media and the content citizens share on it. The state believes that these websites are the greatest danger to the security and continued existence of the current regime and fears a repetition of the January 2011 scenario, in which they played a prominent role.

Note that the Egyptian judiciary previously deemed that “misusing social media” is a crime in and of itself, not just a means of committing another crime.[8] It has also deemed this act one of the “crimes of connection”, i.e. crimes that are so integrally connected that each one is consequent to the other and the subsequent crime would not have been committed were it not for the other crime.[9] Hence, we may face a similar scenario when this case is referred to the court. The court could increase the prescribed penalty for a crime such as collaborating with a terrorist group to achieve its goals or spreading false news and rumors because of its occurrence in conjunction with the crime of “misusing social media”.

From another angle, the prosecutor-general’s statement mentioned that some defendants had admitted to participating in protests after being tricked by pages created on social media that were ascribed to governmental and official actors and invited citizens to protest. This should have necessitated the arrest of the creators of these pages, not an order to imprison the arrestees for 15 more days. Under the Law on Combating Information Technology Crimes, “whoever fabricates an email, site, or private account and falsely ascribes it to a natural or juridical person shall be punished with at least three months of imprisonment and a fine from EGP10,000 to EGP30,000 [US $617 to $1,842] or one of these two punishments”. If the crime is committed against a public juridical person, as in this case, then “the punishment shall be imprisonment and a fine from EGP100,000 to EGP300,000 [US $6,173 to $18,420]”.[10]

 

Conclusion

The hierarchical organization of the Public Prosecution clearly cast its shadow over the investigations in this case, from the uniformity of the decision to imprison all arrestees irrespective of whether the prosecutors were satisfied that they committed the acts imputed to them, to the uniformity of the charges given to them and the mechanism of examining online accounts without the prosecutors having any independence to conduct the investigation themselves. Perhaps this case shows that the Public Prosecution has, because of the new appointments and the extreme hierarchy inside it, transformed into an apparatus that is in harmony with the executive authority and is ready to exploit the laws for that authority’s interests.

 

This article is an edited translation from Arabic.

 

Keywords: Protest, Arrestee, Egypt, Public Prosecution, Investigation, Social Media

 

[1] “Egyptian protests: Concerned by widespread arrests, Bachelet urges restraint”, the Office of the United Nations High Commissioner for Human Rights, Geneva, 27 September 2019.

[2] The numbers were very large in comparison with the largest wave of protests that the current regime faced previously, namely those that broke out in 2016 after the government signed the Egypt-Saudi Arabia Maritime Demarcation Agreement and thereby relinquished the islands of Tiran and Sanafir to Saudi Arabia. The number of detainees was no more than 450, despite the intensity and effect of those protests on the Egyptian political landscape as they were the largest that the country had witnessed since President Sisi assumed office in 2014. See “Qadaya al-Ard: Qi’ra’a Tahliliyya fi Waqa’i’ al-Qabd wa-l-Ihtijaz wa-l-Tahqiq wa-l-Muhakama li-Mutazahiri Abril 2016”, Egyptian Center for Economic and Social Rights, 2016.

[3] See “Guidelines on the Role of Prosecutors”, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27 to September 7, 1990. See also “Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa”, African Commission on Human & Peoples’ Rights, “Role of Prosecutors” section, p. 6.

[4] See Article 44 and Article 119 of Judicial Authority Law no. 46 of 1972 before its amendment.

[5] “33 ‘Am min al-‘Amal al-Qada’iyy... Man Huwa al-Mustashar Hamada al-Sawi al-Na’ib al-‘Amm al-Jadid?”, Shorouk News, 12 September 2019.

[6] “al-Na’ib al-‘Amm al-Jadid Yu’ayyinu Ibnahu fi Amanatihi al-Fanniyya.. wa-Aman al-Dawla al-‘Ulya Mustamirra fi Habs <<Mu’ataqali Sabtambir>>”, Mada Masr, 29 September 2019.

[7] For more about the Public Prosecution’s performance in other political cases, see Hassan Mosad, “Inhiyaz al-Niyaba al-‘Amma al-Misriyya fi al-Qadaya al-Siyasiyya”, The Legal Agenda, 29 November 2017.

[8] “Nanshuru Haythiyyat Awwal Hukm Qada’iyy li-Isa’at Istikhdam Wasa’il al-Tawasul al-Ijtima’iyy”, Akhbarak. See also Economic Misdemeanor Case no. 428 of 2017, Beni Suef.

[9] See a collection of Court of Cassation rulings on the connection of crimes, lawyeregypt.net.

[10] Article 24 of Law no. 175 of 2018 on Combating Information Technology Crimes.