Lawyer calls Hesham Gaafar’s 3-year detention illegal, judge recuses himself

A North Cairo Criminal Court judge recused himself from presiding over the detention renewal of journalist and researcher Hesham Gaafar, who has been held in remand for over three years, due to suspected issues of impartiality, according to lawyer Mohamed al-Baqer.

Judge Hussein Kandil said he “sensed discomfort” during a Monday court session. Cited in previous cases, this phrasing is often presumed to imply there was an issue of impartiality affecting a judge’s capacity to preside over a case.

Arrested in October 2015, Gaafar has spent over three years in remand detention, in violation of Article 143 of the Criminal Procedure Code, which caps remand detention at two years, Baqer told Mada Masr.

When Baqer inquired about the judge’s legal reasoning behind extending Gaafar’s remand detention beyond its legal limit, the lawyer was told that this issue would be addressed during Gaafar’s next court session, to which Baqer responded, “Are judges blatantly violating the law?” In turn, the judge recused himself from presiding over the case.

For Baqer, Kandil’s recusal is not a positive development in Gaafar’s case. “The law should have been enforced and Gaafar should have been released,” he said.  

To circumvent Article 143 of the Criminal Procedure Code, however, judges have often resorted to Article 380 of the Penal Code, which stipulates that “a criminal court judge may, in all circumstances, order the arrest of a suspect, order a suspect’s provisional detention, and order the release of a suspect held in custody on or without bail” to argue that they have complete liberty to extend remand detention indefinitely.

Baqer told Mada Masr that Gaafar has not been questioned since 2015. “We requested that the Supreme State Security Prosecution clarify the legal reasoning behind its successive requests to extend his detention and to provide new evidence to support the charges he faces,” the lawyer said, adding “We have not received a response from the prosecution.”

The journalist faces charges of joining an outlawed organization and receiving an international bribe, but there is no evidence to support either of these charges, according to his lawyer. The prosecution can not even provide the source of the bribe that Gaafar allegedly received, Baqer added.

Gaafar’s health has continued to deteriorate during his detention, as he suffers from optic atrophy and an enlargement of his prostate gland, conditions that call for medical attention that the journalist has not been receiving, his lawyer stated. Both his family and international rights organizations accused Egyptian authorities of medical neglect in October 2017.

Gaafar was arrested on October 21, 2015, after security forces raided the Mada Foundation for Media Development (not to be confused with this outlet), which he headed.

Established in 2010 and licensed under the Social Solidarity Ministry, the Mada Foundation’s work focused on training and awareness campaigns in the fields of women issues and national unity in the face of sectarianism. Several of the Mada Foundation’s projects were implemented in cooperation with state institutions.

Gaafar’s case marks the first time that amendments to Article 78 of the Penal Code, ratified by President Abdel Fattah al-Sisi in September 2014, were implemented. According to this amendment, receiving money or other forms of assistance from foreign states, entities associated with foreign states, or any other party, in exchange for harming Egypt’s national interests, is punishable by life imprisonment. The amendment, widely referred to as the foreign funding law, created a stir, as its vague wording allows a wide range of activities to fall under its stipulations.

A number of human rights groups and public figures have signed statements demanding Gaafar’s release and several solidarity campaigns have also called on Egyptian authorities to release him.

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