Memorandum Concerning the Trial of Al-Jazeera Journalists

The International Cooperation Department, the Ministry of Justice has received numerous complaints and inquiries from nongovernmental organizations and human rights activists all around the world regarding the three journalists of Al-Jazeera English being sentenced to between 7 and 10 years in jail on charges of aiding terrorists and endangering national security. These complaints and inquiries stated that the three Al-Jazeera journalists were, for purely political reasons, being arrested, interrogated, and tried before an exceptional court all, of which constitute a flagrant infringement of their freedom of expression.

The facts of this case is that the Public Prosecution Office has charged Peter Greste (Australian citizen) Mohamed Fahmy (Canadian citizen) Baher Mohamed (Egyptian citizen) and others with the crimes that they committed during the duration between the 3rd of October 2013 till the 29th of December 2013 as the following:

Joining an illegal group, the purpose of which is to call for interrupting the provisions of the Constitution and the laws, preventing the State’s institutions and public authorities from exercising its works, and infringing upon the personal freedom of citizens, in order to endanger public order and compromise the integrity and security of the society, using terrorism as a method to carry out the purposes called for by the aforementioned illegal group.

Holding written documents, printed matters, and records comprising propagation and aocacy for the purposes adopted by an illegal group and being prepared for access by third parties, while being aware of the purposes called for by the aforementioned illegal group.

Providing an illegal group with material and financial assistance (money, tools, equipment, machines, and information), while being aware of the purposes called for by the aforementioned illegal group and of their means in realizing such purposes.

Holding sophisticated devices of communication without obtaining a license from the competent authority.

Reporting and disseminating intentionally, false information and tendentious rumors that would undermine the country’s reputation.

As for the claims that Felony Courts are exceptional courts: Felony Courts were established by law of Criminal Procedures No. 150 for the year 1950. Also, article 184 of the 2014 Constitution stipulates that the Judiciary is an autonomous authority that carries out its tasks through courts of all types and degrees. Courts shall issue their rulings in accordance with the law, and the law shall define the jurisdiction of the courts. Interference in the affairs of the courts or in the lawsuits under their consideration shall constitute a crime that does not lapse by prescription. Consequently, these courts are permanent and not pertaining to any exceptional procedures. Its jurisdiction is predetermined to certain crimes as stipulated in both articles 216 and 366 bis. of the law of Criminal Procedures No. 150 for the year 1950 and other relevant legal provisions. These courts are an integral part of the general criminal judicial system and its verdicts can be appealed before the Court of Cassation. Also Felony Courts are presided upon by (composed from) three senior judges from the court of appeal and that their president would attain the rank of chief magistrate of the court of appeal (Article 366 bis. of the law of Criminal Procedures No. 150 for the year 1950).

The public prosecution conducted the investigations with the defendants (including the three Al-Jazeera journalists) in accordance with the powers of the Investigating Judge (Article No. 199 of the law of Criminal Procedures No. 150 for the year 1950). In order for the public prosecution to ascertain whether a case is to be referred to the competent court or not, it has to carry out its duties with the objective of discovering and revealing all the evidence in a crime regardless of whether they are in favor or against the accused. And once the case is referred, it assumes the role of the indictment authority objectively with obligation to assist the court in every way in order to reach a verdict that reflects the truth and in accordance with the law.

And since there were claims that the trial of the three Al-Jazeera journalists lacked the pre-requisites of a fair trial, it should be mentioned here that Article 94 of the 2014 Constitution stipulates that: “… The independence, immunity and impartiality of the judiciary are essential guarantees for the protection of rights and freedoms.” Further, the 2014 Constitution stressed out in Article 96(1) on the right to fair trial and that the accused is presumed innocent until proven guilty the same as the Universal Declaration in its Articles 10 and 11. Hence Article 96 of the 2014 Constitution stipulates a set of basic principles that guarantees the achievement of justice in a manner consistent with the international standards of justice. And on applying the above to the trial of Al-Jazeera journalists it is evident that they were tried before their natural judge (the competent judge who had jurisdiction at the time the crime was committed). Also, they fully enjoyed the following guarantees related to the right to fair trial that are stipulated in many international instruments:

They were informed promptly and in detail of the charges against them.

They were given adequate time and facilities for the preparation of their defense and to communicate with counsel (Lawyers) of their choice.

They were tried without undue delay.

They were tried in their presence, and defended themselves both in person and through legal assistance of their own choice.

They examined the witnesses against them, and they obtained witnesses on their behalf.

The trial and its procedures were conducted publicly.

All evidences were verbally examined during the hearings.

The court was bounded to render its verdict based only on the evidence produced during the trial and examined in the above mentioned manner.

All trial procedures were documented including the verdicts basis and reasoning.

It is also worth noting here, that the relatives of Al-Jazeera journalists and their lawyers were allowed to visit them numerous times notwithstanding that law No. 39656 regarding prisons do not allow except two visits per month, one regular and the other special.

As for the claims that Al-Jazeera journalists were arrested purely for political reasons, they were arrested and tried for crimes designated by the law long before they committed these crimes in accordance with the principle of Nullum Crimen Nulla Poena Sine Lege that constitute the basis of the legality of any crime and punishment for that crime.

In regard to many complaints that were based on the allegation that transgression to their rights to freedom of expression, Article 65 of the 2014 Constitution stipulates that: “Freedom of thought and opinion is guaranteed. Every person shall have the right to express hisher opinion verbally, in writing, through imagery, or by any other means of expression and publication.”

Also the Egyptian Court of Cassation stated that: (Although the constitution guaranteed freedom of expression, assembly… yet it conditionalized these freedoms on being conducted within the law, because these rights and freedoms cannot exist to all individuals unless they are within the boundaries of the rights and freedom of everybody. So the legislator is obliged by the Constitution to intervene to designate these boundaries that do not infringe upon the rights and freedoms of others.)

{Appeal No. 914 for the Judicial Year 23, 5-12-1954}

The Egyptian Constitutional Court adopted almost the same approach regarding the right to freedom of expression as follows: (The ramifications of the right to freedom of expression are not limited to a single individual but exceed that to other members of the community, therefore the Constitution delegated the legislator to regulate this right by imposing rules and limitations, which spell out the manner in which this right should be exercised without infringing upon the rights of others.)

{Case No. 44 for the Judicial Constitutional Year 7, Rule No. 16, 7-5-1988}

It is well established in International Human Rights Law that the exercise of the right to freedom of expression, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as prescribed by law, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

According to the jurisprudence of the European Commission and Court of Human Rights, Article 10(2) of European Convention on Human Rights permits the State to interfere with freedom of expression for the prevention of disorder (See Chorherr v Austria A 266-B (1993)). The need to protect public order in the face of terrorist threats is also regarded by the Commission as a significant basis for restricting freedom of expression (See Purcell v Ireland No 1540489, 70 DR 262 (1989)). In Groppera Radio AG v Switzerland (A 173 para. 70 (1990)) and Autronic v Switzerland (A 178 (1990), the European Court said the State could move against expression in the interest of preventing disorder in the international telecommunication order. In Engel v Netherlands (A 22 (1976), the Court accepted that the prevention of disorder within Armed Forces was a legitimate aim within Article 10(2) of European Convention on Human Rights. The same position was taken by the European Commission in Arrowsmith v UK (No 705075, 8 DR 123 (1977), where the Commission found that the applicant’s activities also threatened national security.

Hence, the right to freedom of expression shall not be used as an excuse to support terrorists or destabilize national security of a sovereign country (3).

In conclusion, it is apparent that the convicted three journalists of Al-Jazeera English enjoyed all the guarantees embodied within the ambit of the right to fair trial. And their rights and freedoms were never violated or infringed upon at any time. Therefore, it is clear that all the aforementioned complaints were ill-founded.

Cairo, the 5th of July 2014

Appellate Judge

CounsellorHany Georgy

(1) Article 96 of the Constitution stipulates that: “The accused person is presumed innocent until proven guilty in a fair trial in which the right to defend himself is guaranteed. The law shall regulate the appeal of judgments passed on felonies. The State shall provide protection to victims, witnesses, accused and informants as necessary and in accordance with the law.”

(2)This concept is not restricted to public order though it certainly includes that.

(3)Security is also a human right. Terrorism is an attack against those very rights that are fundamentals to the Egyptian society, such as freedom of thought, expression and association, and the right to life, liberty and security of the person.

Appellate JudgeHany Georgy – The International Cooperation Department – The Egyptian Ministry of Justice

Source : Egypt State Information Service