In the framework of Combating Terrorism Observatory through promoting democracyA debate between representatives of government and opposition on Spanish and French model,Demands to abide by standards of fair trial when passing the bill

May 14th, 2009 by Editor

 

At a seminar entitled” Guarantees of fair trial in the light of anti-terrorism law,” which was held by EOHR supported by European Union on Wednesday 13/5/2009 concerning the optimal model of the international legislations for the case of Egypt, participants entered into an argument as representatives of the government called for working with the Spanish law to counter terrorism , while representatives of the opposition see that the French law is the best. Participants called the legislator for abiding by standards of fair trial according to Egypt‘s commitments and to give effect to the Constitution ( articles 67,68and 69).natural weight loss remedies? Fastin Diet Pills weight loss berkshire
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Mr. Hafez Abu Seada, Secretary General of EOHR, confirmed that the Egyptian legislation is not in a need for a new law to combat terrorism, there is already an existing law No. 97 of 1992, however, in the case of the Government’s willingness to pass a new law to combat terrorism, we have to make a balance between Combating Terrorism and protecting human rights. Also it is important for the new law to be based on international covenants concerned with human rights- which were ratified by the Egyptian government and became an integral part of its domestic law and in accordance with Article 151 of the Constitution – which full with so many articles that guarantee the right to fair trial , so it is necessary for the legislator not to violate these rights in accordance with Egypt’s international commitments.    

 

  

Abu Seada called for applying standards of fair trial in terrorism cases as stated in article 14 of the International Covenant on Civil and Political Rights, and those standards are as follows: 

1) Equality before the courts.
2) Trial publicity.
3) The independence and impartiality of the court’s jurisdiction.
4) The presumption of innocence.
5) Defendant may be  given adequate time and facilities to prepare his defense.
6) Publicity of issued decisions.

7) Allowing  the defendant the right to call witnesses for defense, the same as  witnesses for prosecution.
 
8) The right to appeal against the issued decisions  before  higher court.


Abu Seada clarified that when the government leaned to the Spanish model to counter terrorism in the light of the bill of terrorism decided to be issued, it tried to forget such criticism which targeted the mentioned law and its violations to human rights. He confirmed that the law included several violations for human rights. It failed mainly to guarantee the fairness of judicial procedures for terrorism suspects, the law granted the right to confine suspects in separating  cells without giving them the permission to call a lawyer or their relatives  to a maximum period of 11 days. He added that the Spanish law imposed a form of secrecy on the legal procedures and allows to confine suspects in terrorism cases in prisons for a period reaches up to 4 years before transferring  them to trial.     

  

Abu Seada stressed that the Spanish law may deal with the threat of terrorism in the first place without any regard for fundamental human rights, the law used solitary confinement, imposing a secret legal measures, impose restrictions on the right to be represented by a lawyer  in the first detention stages. So the Spanish law lacks to standards of fair trial. He suggested to work with the proposed British model taking into account the specific situation of Egypt, and the application of international standards and United Nations resolutions in this regard.

  

Mr. Mohamed Amer, member of the parliament, confirmed that there are two opinions concerning the enactment of new law to combat terrorism , the first opinion see that there is no need to enact a new law while the other one  seek to find an alternative law replacing emergency law, after  the constitutional amendments there should be a new  law for terrorism, he revealed that he is one of supporters of this view indicating that if the terrorism law comes to guarantee rights and public freedoms , it will be better than the state of emergency. So we have to seek to  enact a law aims at developing  a specific definition of the crime of terrorism, through specific controls for litigation and respect for rights and public freedoms. He called for working with Spanish law in this regard as it includes a good definition of the crime of terrorism.

  

Mr. Essam Shiha, member of Al Wafd party  disagreed with Amer as he called for depending on the French model as it’s the nearest to the Egyptian case, taking into account that each country has its own circumstances.

 

Shiha criticized the new terrorism law confirming that it will allow security agencies to monitor all kinds of messages for those suspects with prosecution permission. He added that the provision of this law gets even with intention  as there is an article in the bill allows the judicial seizure officer a long period to confine suspects of terrorist acts before standing before the prosecution. Also the bill allowed for further restrictions imposed on the freedom of opinion and expression.

  

Essam Al Islambouly, lawyer at the cassation court, condemned the last constitutional amendments which cancelled judicial monitoring on elections and added a new chapter “The sixth chapter) which includes one provision entitled” Combating Terrorism ” namely : article 179 which impede most important and most dangerous thing in the Constitution concerning rights and freedoms. This article gave the executive authority the right to arrest any body or bands accused of practicing terrorism acts.

  

Al Islambouly refused to pass a new law for terrorism as he wondered strongly “what about law No. 97 of 1992 issued in 18 of July 1992 which added 12 articles to the penal code and amended 7 articles of the existing law.

He considered law 92 as a clear violation for human rights.

  

Al Islambouly condemned the bill of Combating Terrorism as he descried it as a legalization for police country which laid its foundations by the constitutional violations . The bill violates not only the constitutional articles such as 41, 44 but also violates article 8 related to the principle of equal opportunities  , article 40 related to equality principle, article 47 related to the freedom of opinion and expression , articles 48,206,207,208 related to the freedom of press, and Article 57 which criminalized any infringement for human  freedom and article 66 for the character of punishment, article 67 which assumes innocence as a presumption for suspects and article 68 which guaranteed the right to litigation and the right to stand before the natural judge, besides the bill includes several obscure expressions ,it is not only criminalize acts but it  criminalize intentions, ideas and thoughts as well . Also it sentences with the most and maximum punishments.

  

Ahmed Abu Baraka, member of the parliament, called for the necessary of making balance between rights and freedoms when enacting the bill of Combating Terrorism and the guarantee of the right to stand before the natural judge , also to respect such guarantees related to fair trial guaranteed by articles 66,68and 70 of the constitution.

     

Mr. Farouk Al Ashry, ex- Member of political office of Al Nasry party, agreed with Abu Baraka and confirmed that article 179 of the constitution violated undoubtedly human rights in Egypt. The article allowed the president to transfer any individual to trial the matter which is considered a clear violation to judicial power.

 

Dr. Adel Amer, legal researcher, condemned the bill pointing out that this law will legalize exceptions and makes the detention and liquidations for rioters and opponents an easy act without an appeal or challenges. The bill banned the building of worship places only after the permission from the ministry of Endowments and allows  to intercept messages and establishing special courts. Besides, the criminalization of the inability to justify the wealth which is characterized by a specific person to contact with others involved in terrorist crimes, and the allocation of judicial seizure for terrorism and specific prosecution for terrorist crimes.

 

Dr. Amer called for the necessary to guarantee the fair trial in the bill of anti terrorism law through judicial opinion and fair criminal trial, banning the special courts and support every one has the right to litigation before the natural courts.

 

Mr. Mohamed Nagy, ex-chairman of Al Ghad party, confirmed that terrorism is a political crime affecting the security of the state, however at the same time, we need to stand on the human dimension and the main engine of the crime to eradicate the cause of the emergence of terrorism on the local arena.

 

At the end of the workshop , participants recommends the following:  

1 – Ensure the right of the citizen to be trialed before the natural judge, and the need to stand gradually before courts, and appeal against issued decisions according to law and giving effects to fair trial even with whom charged with terrorist acts.

 

In this regards, it should be for legislator to depend on the general principles stated in Berlin Declaration issued in August 2004, which contains 11 obligations for countries for the protection of human rights in the process of combating terrorism, including the principles (7,6,5,4,3, 2) on the guarantees of fair trial, which can be described as follows:

  

2 – The independence of judiciary: 

state should abide by the guarantees of judiciary independence when applying measures of countering terrorism .

 

3 – The principles of criminal law: 

The State has to ensure that acts of terrorism are  defined in the law according to the principle of legality. The State has to ensure the non application of criminal law with retroactive effect.

  

4 – Inviolable rights: 

The State shouldn’t  restrict  or limit inviolable rights under any treaty or martial law . The state has to guarantee that any prejudice against rights during the state of emergency should be necessary and suitable for the specific threat. 

 

 

5 – Obligatory customs: 

The State should, under all circumstances, prevent torture ,ill treatment or non-judicial provisions and forced disappearances. These taboos represent the obligatory customs in the international law and all acts that conflict with these customs are illegal.

 

6 – Deprivation of freedom:  

The State shall not detain any individual and has to allow for detainees to meet lawyers and their families or doctors. The State should inform detainees with the reason for their detention and accusations they charged with . For each detainee , he has the right to stand before the natural judge.  

 

7 – The fair trial:  

The State should, at all times and circumstances, ensure that defendants are being trialed before an independent judiciary and established according to law with allowing for all guarantees of fair trial including the assumption of innocence, the right to defense and appeal. The state should guarantee that civil defendants have to be investigated by civil body and trialed in civil court. The lawyers who defend defendants of terrorist acts should  exercise their duties without threat or hindrance, harassment or unacceptable interference.

 

 

 –Lifting the state of emergency which has been imposed since 1981 under the Emergency Law No. 162 of 1958 in view of the serious and harmful effects on human rights system in Egypt, and obstructing the peaceful ways of democratic development in society.

  
– Executing such amendments in the Constitution and relevant laws in respect of the declaration of the state of emergency, so that state of emergency is linked to the existence of “exceptional risk”. Also Emergency law may determine the degrees of emergency , it may be declared partly if the risk is partial or may be declared in a limited geographic scope commensurate with the risk.   

  

– Abolishing all laws and special courts and providing guarantees of judiciary independence, the right to fair trial, stop transferring  civilians to military courts.

 

 –The Anti-Terrorism law may not be a copy of Emergency law so that the state of emergency  will last forever and the new law may impose further restrictions on rights and public freedoms especially the right to fair trial.

 

 

It is noteworthy that the workshop was held in the framework of the “Observatory for Combating Terrorism through supporting democracy “which started its activity in February 2008 with the support of European union. The basic goal of the Observatory is the support of democratic development in Egypt, through monitoring and controlling of the impact of the inclusion of Combating Terrorism articles  in the constitutional amendments of this development on one hand, and the impact of  terrorism law  on this development as well, and how to achieve the balance between Combating Terrorism and protecting human rights.

 

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