Fighting the losing battle
 
 
Courtesy: Shady Zalat
 

“Let’s agree that if you interrupt me, I’ll lose my train of thought and start over, which will take more time. So you might as well just let me finish, agreed?” Yasmine Hossam al-Din, a 26-year-old lawyer, reasoned assertively in court last February during the Shura Council case.

The judge had been stopping the defense lawyers who went before her, cutting them short and complaining when they rebuked the police in their statements. The lawyers were representing 21 defendants who were sentenced to three to five years in prison for violating the Protest Law and assaulting a police officer.

Hossam al-Din was loud and passionate. She spoke uninterrupted for a full 20 minutes in a court that had become more a site of dissident politics than one of professional practice.

“Don’t we all know that the police are thugs? This has become common knowledge, and is no longer an insult,” she said in her defense statement as she challenged the charge of verbal abuse levied against her clients for chanting, “The police are thugs,” during a protest.

Like other lawyers, Hossam al-Din has been representing prisoners of conscience facing trials that hinge more on politics and less on the law, according to human rights organizations. Lambasted as “flawed judicial processes” by human rights watchdogs, such trials arose in the midst of a tightened political space in Egypt over the last two years — in dismantling the rule of the Muslim Brotherhood, the current administration commonly looks upon any opposition as a security threat.

Despite widespread belief that sentences in these cases come down to a political decision, these human rights lawyers continue to take the legal path. Their evidence collection, defense statements and far-fetched calls for acquittal at least help to uncover the violations committed by the police, the prosecutor and judiciary in these cases.

Speaking laws at politics

Lawyer Mahmoud Belal had a hectic few months representing defendants in three concurrent, high-profile protest-related cases:  The Ettehadiya protest case, the Cabinet clashes case and the Shura Council case. Defendants in all three cases were sentenced from two to 25 years in prison.

For Belal, despite the politicization of these cases, bringing the focus back to the legal is an important strategy. Due to severe flaws in all protest-related cases, he believes acquittal would be inevitable if law was the only consideration.

“I can say that my colleagues and I have completely lost faith in the judiciary, but what we do is at least contribute to unveiling the violations in these cases, and make it harder for judges to issue political verdicts. But we always have this 1 percent hope that we will come across a judge who works by the law,” Belal says.

Belal’s political alignment with the defendants makes him feel responsible to defend them in court, but he thinks the court is not the place for this process to play out.

“In court, I smile at officers who could be shooting at me if we were in a protest,” he explains.

Given the lack of cooperation from law-serving institutions, lawyers make sure they have everything covered. Other than the customary preparation, Belal says a lot of effort is put into studying the continuously changing legislative landscape and matching new laws with new defenses. Instead of the folder that he used to carry into the courtroom, Belal now walks around with a box of documents to each session to make sure he’s ready for any unexpected requests.  

Politics come in the way as lawyers revert back to the essence of some of the charges defendants face under the guise of breaking the law.

In the Shura Council case, human rights lawyer Khaled Ali collected details from the defendants’ biographies to illustrate that they were young professionals, not thugs, as the prosecutor implied.

Ali has not only been involved in defending people accused of violating the Protest Law, but also in challenging the constitutionality of that piece of legislation through a case submitted to the Supreme Constitutional Court. The case is currently pending as judges await a report from the court’s technical committee.

Speaking of the tricky balance of functioning within a system while fighting it at the same time, Hossam al-Din explains, “We embarrass them using the law. We confront them with legal reasoning they can’t argue with. The amount of escalation depends on who the other side is, and what benefits can be gained. The most important strategy remains to never give in, no matter how skewed the balance of power is.”

“The main thing is that we don’t give in to any decisions, and to follow every act with a reaction — never with silence,” she concludes.

A challenging course

Established in 2011, the Front to Defend Protesters has been taking up all protest-related cases, Belal says, and now has around 90 active lawyers. In 2011, 20 active members were able to handle all the front’s cases, but today the growing group is overwhelmed, unable to even keep a tally of the number of detainees now in custody. In early 2014, the last published statistics put the number of detainees at over 40,000, according to Wikithawra, an independent portal documenting revolutionary events.

The volume of cases is not the only challenge for Belal and his colleagues. Navigating the justice system in Egypt is a trial in itself.

“Every little step that should happen by default requires fighting and arguing. It’s a whole other effort,” he says, referring to dealings with the judiciary, the prosecutor and the Ministry of Interior, among other authorities.

Belal points to how the front’s role transformed from challenging the laws through which protesters were being prosecuted, to handling the faulty procedures through which they were arrested and interrogated.

“Instead of focusing on my defense statement, I find myself forced to use my time in front of the judge asking for [defendants’] parents to be allowed into the session, or food to be allowed to the detainees,” Belal asserts.

Lack of information about a case’s development is one area that lawyers have to grapple with. Belal says that, for example, it’s common for lawyers to split up and head to different courts on the day of a given hearing, as they’re unsure of its whereabouts.

At times, hearings are scheduled with only days’ notice, while in other cases months can lag in between sessions — a tactic meant to exhaust both the defendants and the small group of lawyers managing the cases, Belal argues.

Admitting witnesses is another hurdle lawyers have had to face in protest-related cases. Human Rights Watch issued a statement in March warning that the Cabinet’s recent amendments to the Penal Code would give the judge the sole authority to reject or admit witnesses, a move that HRW claims threatens justice.

Since the start of 2014, court hearings for several “terrorism cases” were set up at the Police Academy in Tora and New Cairo. Holding the court sessions in a police territory brings on a whole new layer of challenges.

Ali recounts that entry to the Police Academy has become difficult, especially for the families of the detainees, journalists and others, despite the general rule that court sessions are public. When activist Alaa Abd El Fattah, the lead defendant in the Shura Council case, was denied access to his hearing on June 2014, he and another 24 people were sentenced to 15 years in absentia.

Belal says that the defense team made several demands regarding the detention conditions of the defendants, especially after a glass cage was introduced wherein the audibility of the court and of the defendants is under the sole control of the judge. But judges responded by claiming that such demands fell outside their jurisdiction, he asserts.

Not only court cases are held on police territory. Ali says that it has become customary for the prosecution to conduct its interrogation in police stations. The encroaching power of the police over court procedures is especially problematic, according to Ali, as the Interior Ministry is usually an adversary in recent protest-related cases.

In the Cabinet case, which dates back to clashes between protesters and security forces in 2011, and in which high-profile activist Ahmed Douma and 229 other defendants were sentenced to life in prison in February, lawyers only had access to one third of the case documents, which they repeatedly requested access to throughout the trial.  

Throughout the course of the trial, the judge referred five of the seven defense team members, including Belal, to the prosecution, accusing them of disrupting the session or disrespecting the court when they insisted on defense demands. In protest, the Lawyers Syndicate boycotted the case and the sentencing took place in the absence of a lawyer, in violation of the law.

In that case, the judge at one point answered Ali’s demand to include evidence of police violence during the events in the case by asking him whether the forces should have endured an attack silently. The response unveiled the judge’s preconceived belief in the defendants’ guilt before defense lawyers even began arguing their case.

“Anything that comes from the judge, I deal with according to the law,” Ali says, “until I reach a conclusion that he has a preconceived conviction and shows it; then, I’m forced to withdraw.”

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