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Has justice jumped the gun?
 
 
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The State Council Administrative Court was due to consider an appeal to halt the execution of six defendants in a trial popularly known as the “Arab Sharkas” case on Tuesday. However, these defendants have already been executed as of Sunday morning. 

This administrative court session, originally scheduled for April 19, was meant to be an opportunity to appeal the death sentences — issued on November 11, 2014 by the East Cairo Military Court — in light of felony case 43 (2014). 

According to Ahmed Helmy, lawyer for a number of defendants in this case, including Abdel Rahman Sayed Rizk, who has now been executed, the appeals process and other legal proceedings were flawed in the Arab Sharkas case.

Helmy explains that there were several procedural errors, as a sentence issued by a military tribunal is usually required to be ratified by the president of the republic, not by the minister of defense, as transpired in this case. 

Filing an appeal before the administrative court does not legally necessitate that Egypt’s Prison Authority will halt the implementation of death sentences, he adds.

Helmy explains that a sentence issued by a military tribunal becomes enforceable as soon as the Supreme Military Court of Appeals rejects appeals against it. “The filing of an appeal before the administrative court does not translate into a stay of sentence, except in those cases where the administrative court actually accepts to hear the appeal,” he clarifies.

According to lawyer Fatma Serag, the approval of such an appeal was the only window of opportunity available to contest the military court’s death sentence, and the only possible means to appeal against such sentences.

Mohamed Adel, lawyer and head of the litigation department at the Egyptian Center for Economic and Social Rights (ECESR), states that this legal appeal, which the administrative court was due to consider on Tuesday, will expire “as a result of the ‘absence of interest clause’ in light of the fact that these defendants have already been executed.”

However, the likelihood of such an appeal being accepted was weak to begin with. Adel explains that amendments made to the Military Justice Code 25 (1966), stipulated in the modified Military Justice Law 16 (2007), have facilitated the delegation of presidential authority in regards to such sentences. 

Law 25 (1966) had stipulated that the ratification of a death sentence was only in the jurisdiction of the president of the republic. However, with the advent of Law 16 (2007) and its amendments, a presidential ratification is necessary only in the event that a death sentence is issued in light of crimes committed by military personnel.

As for civilians standing trial before military courts, the president has the authority by law to delegate the ratification of a death sentence to any officer involved in the case, which, in this case, is Minister of Defense Sedky Sobhy, who did in fact authorize the execution of these six defendants.

Although this appeal was likely to be turned down, this case shed light on a number of paradoxes and raised several questions.

According to Adel, there are contradictions in the nature of martial law. According to the 2012 and 2014 constitutions, military courts act as civilian courts to become a trying body. However, the laws regulating military trials treat military verdicts as administrative decisions that need ratification before they become binding.

Mahmoud Salmany, member of the No Military Trials for Civilians campaign, refers to another contradiction in that judges of military courts are appointed by the head of the military judiciary, which is the body under the defense minister, who is under the executive authority. This, he explains, negates the idea that military trials are independent.

Adel describes these contradictions as “legislative blunders,” that are generally related to the military judiciary. The execution of the Arab Sharkas defendants, however, raises questions around the state’s haste to implement the verdict, two days before an appeal was being considered.

Serag explains that the execution violates the typical standards of implementing verdicts, adding that it usually takes years between issuing a final verdict and carrying it out. This is followed by the Prisons Authority’s ability to give defendants a chance in case other evidence presents itself that may lead to a retrial or an annulment of the verdict.

Adel believes that executing the defendants two days before looking into the appeal is meant to prevent the administrative court from postponing the implementation of the verdict.

He explains that even after a final verdict is issued, the defendants are put on death row with other similar cases where final verdicts were issued.

“Based on previous cases, executing a verdict usually takes at least six months on death row, but executing it this fast — within two months — indicates haste, especially if there was a window to postpone it, which was the appeal at the administrative court,” he says.

Adel highlights additional legal stipulations that should have been adhered to, namely preparations for the defendant, whereby the law specifies that his or her family be notified with the execution date and allowed a last visit.

Defendant Hany Amer’s brother, Hesham, denies having been granted a final visit. “Since Hany’s arrest, we were only allowed to visit him twice, the last of which was in February and was only for 15 minutes,” he tells Mada Masr.

He adds that his family was not notified about the verdict’s implementation beforehand and only found out through the media. He then called lawyer Ahmed Helmy to make sure, who in turn told him that he was not aware either.

Helmy said that he would confirm the news when he went to the court session of the Mohamed al-Zawahiri trial, where Abdel Rahman Sayed Rizk, the youngest of the Arab Sharkas defendants, was also being tried. During the court session, the judge announced that Rizk had been executed.

Sarah, Rizk’s sister, tells Mada Masr that his family was unaware that he was executed until they heard it from the media, and that the judge presiding over Zawahiri’s case confirmed it.

She adds that the final time they were allowed to visit her brother was last Thursday, and only for seven minutes.

Adel explains that although the appeal will be dismissed because the defendants were already executed, the administrative court can still explain the legal reasoning behind its dismissal, which can be used for future reference.

However, he says the court is unlikely to do that. “The judiciary is too weak to be neutral,” he said, “especially after the judges’ assassination in North Sinai on Saturday.”

Three judges were killed in Arish, North Sinai, on Saturday morning, a day before the Arab Sharkas defendants were executed, when armed men targeted their vehicle in Khazan Street in the Masaeed area.

Adel says that dragging out the case in this kind of conflict “will rid the judiciary of justice, which will turn the state into a farce, with risks we can’t contain.”

Meanwhile, media reports have said that the judges’ assassination was in retaliation for Mohamed Morsi’s death sentence, related to the espionage and prison break cases in which the former president has been charged. By the same token, some reports state that the Arab Sharkas executions were the state’s attempt to avenge the judges.

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Mohamed Hamama