A report by BHRC produced on behalf of EuroMed Rights on the trial of Aya Hegazy was launched on 28 November at an event hosted by Garden Court Chambers. The launch received a lot of attention online via the FB live and featured on a programme of Al-Araby.
The event was chaired by Grainne Mellon a member of Garden Court Chambers and also of the Executive Committee of BHRC who had also attended one of the hearings in the case. The report was presented by Dr Theodora Christou who had attended four hearings and Rupert Wheeler who had also attended a hearing, both are also members of the Executive Committee of BHRC.
Rupert then described the prosecution and defense cases, as well as the whole set-up of the courtroom and the nature of the proceedings. He gave his observations as a criminal barrister looking in at the Egyptian criminal justice. In particular he highlighted the use of the metal holding cell in the courtroom used to hold defendants from all the hearings that day which numbered upwards of 50. He also referred to the appearance of bias caused by the positioning of the prosecutor either at the bench with the judges or sat on the table with the judges in their chambers whilst the defense lawyers had no designated seats or table for use when presenting their case. The final point noted was that questioning was largely done by the judge or via the judge wit defense lawyers having to tell the judge their question and who in turn would decide whether to allow the question and would himself pose the question to the witness.
Theodora then summarised the human rights issues in Aya’s case. On the right to liberty she stated that the Report concluded there had been a violation in two respects. First Aya was detained in pre-trial detention for 12 days shy of 3 years, 1081 days in pre-trial detention with no effective/substantive review of continued detention. Theodora reminded us that pre-trial detention should not be the general rule, but the exception, use only where necessary and as a last resort. Detention is arbitrary when it is inappropriate, unjust, and lacks due process of law (including a reasoned judgment). This is crucial for protecting the right to liberty and preventing arbitrary detention. Whilst defence lawyer requested conditional release, it was never granted. But it was never formally rejected. No reasoning was provided. It seems as if no consideration was given. The excessively long pre-trial detention of Ms Hegazy was unjustified and arguably punitive. Aya Hegazy was denied her liberty arbitrarily in violation of Egypt’s obligations under international and constitutional law. This substantially prejudiced Ms Hegazy’s presumption of innocence, and undermined the fairness of the trial. Second it is unacceptable for an individual to remain in custody after an acquittal. Aya remained in detention for a number of days. While this procedure may comply with Egyptian law and practice, it contravenes international standards and Egypt’s obligations under Article 9 of the ICCPR. The report recommends that the procedure needs urgent review and amendment.
The report also concluded that there was a violation of the right to a fair trial. In particular, Theodora noted that there was no opportunity for confidential meetings with lawyers to prepare defence. Almost all conversations between her and her lawyer took place through the bars of the caged holding cell in the court room. This undermined her ability to receive advice, provide instructions, and prepare a defence, in breach of her right to a fair trial under Article 14(3)(b) of the ICCPR. There were numerous unjustified and at times prolonged adjournments. The repeated failures of the prosecution to produce evidence before the court after such a lengthy detention, coupled by the tolerance of the first Judge of their failures to produce that evidence at a scheduled hearing impacted on the length of the trial. The report concluded that there was an unreasonable length of trial and inadequate reasons for the delay. Finally keeping the defendants in a caged holding cell in open court demeans the defendants and interfered with the presumption of innocence.
Aya and all the defendants in the case were acquitted of all charges. The presence of international observers as well as political pressure no doubt played a part in the verdict.
Theodora concluded with a summary of the systemic issues the Report identifies in the Egyptian legal system. Under the heading of the use of pre-trial detention she identified that the rules and practice relating to pre-trial detention and the application procedure for conditional release must be reformed to ensure compliance with human rights and international standards; and that procedures to release defendants following an acquittal should be modified to ensure the immediate release of acquitted persons, unless clear reasoning is provided for not doing so, and without reliance on procedural steps by prosecutors. In relation to fair trial she touched on: the lack of facilities for defendant-lawyer confidential meetings; the length of trials and need for public hearings; the lack of case management mechanisms to assist judges; and the use of the cages in court (or double glass in Torah) interferes with fair trial right to participate in own trial and presumption of innocence. She also commented that when it came to politicised arrests, charges and prosecutions it appeared (although not formally confirmed) that in political cases both the prosecutor and the judges have limited powers. Finally she commented that whilst some issues can be resolved by training and guidance, others require institutional changes.
A drinks reception following the discussion was sponsored by Garden Court International.