Hossam Badrawi Official Website
Wednesday weekly dialogue
“Is the accused guilty until proven innocent??”
Written by Dr. Hossam Badrawi
The intelligent young man said: Why do defendants stand in public trials in Egypt in a cage, which we called the indictment cage, and we do not see this phenomenon in developed countries?
I said: According to my understanding, the law does not require the judge to do this except to protect the accused from another party or from a crowd that condemned him before the trial, and I may be wrong in my understanding.
He said: But this has become usual and I understand it in a country where there are no means of protecting trials, but we are a country where security is in charge.
Another young man said: What is the meaning of two presidents of the republic standing in the dock that we have mastered in making glass, and now it is not possible to transmit sound except through devices and technologies, while they are accused and their guilt has not been proven? Isn’t this an insult to high office?
The enthusiastic young woman said: I believe that this is intended to give a message to the people that no one is above the law
Another said: They deserve it after everything they did in the country
I said: This means that you have judged them without scrutiny, and your logic says that there is no need for trials, and let us convict the accused through referendums or opinion polls, and put the entire justice system on the shelf. Listen to me and let’s think together: Is the accused innocent until proven guilty, or is the accused convicted until proven innocent? The scales of justice say that the accusing party is the prosecution, and the one who collected the primary evidence to accuse someone is the police. I consider both parties to be an executive authority. As for the institution of justice, it is an independent authority that does not obey the orders of a ruler or a minister. It is the authority that has all documents available to it and before it. Accusation and evidence of innocence, which decide in the name of the people whether the accused is innocent or guilty. At this stage, how should we deal with the accused? Let us assume that the trial period was long, and that the accused is innocent in the end. Should he live in prisons and have his freedom violated, or should we wait before imposing the punishment?
My educated lawyer friend, who was present at the conversation, said:
My professor, Counselor Kamal El-Metini, was a judge in the Court of Cassation in the days of Abdel Nasser, and he was arbitrarily dismissed in the famous massacre of honorable judges. He worked as a lawyer and established the Egyptian Center for Legal Consultations with an elite group of other dismissed consultants, such as Muhammad Fathi Naguib, Yahya Al-Rifai, and Salah Al-Rifai. And Mamdouh Al-Dahan and others
Counselor Kamal El-Metini had written a book entitled “Pretrial Detention: A Temporary Precautionary Measure or an Expedited Punishment,” in which he explained in sufficient detail the history and reasons for pretrial detention, which actually turned into a abusive punishment.
I asked her: What about the disappearance of the referral judge (referral advisor) from the picture now?
She said: The referral judge was a failed attempt, from my point of view, to shorten the time of litigation and limit the number of cases before the courts by having the cases disposed of by him or referring them to the court. It turned out that he had turned into a transfer judge who referred all the cases after investigating them to the court so that the latter could begin hearing the case again. His presence has become a burden, an addition to the time spent examining cases, and a useless delay.
It was assumed that the investigating judge would have enough courage to make a decision in the case and rule on it, but this rare minority of judges were excluded, and the rest preferred to be safe and take advice from (the head of a flying wolf).
One of the young men asked: Are there statistics on the number of cases that the prosecution authorities referred to trial and were acquitted?
I said: The quality of the prosecutor who demands the innocence of the accused after interrogating him has almost disappeared. What would encourage him to do so and expose him to suspicions that he was compatible?
Or was he bribed, God forbid??
And as the proverb said (he who is afraid is safe) and says to himself: If the accused were truly innocent…then the court will acquit him in its ruling. Then there is an appeal, a reversal, and a retrial before the appeal in a different circuit, then a reversal and a conclusion for the second time.
A sharp-witted young man said:
There is a famous joke, Dr. Hossam, that I heard from my father, who is an adult judge
About the escaped camel arrested at the border when the officer asked him:
Why did you flee the country?
The camel said: An order has been issued to slaughter all the rabbits
The officer said: But you are a camel!!!!
The camel said: “Help me when I prove to them.”
I returned to the serious conversation and asked my friend: Shouldn’t someone who has been detained in pretrial detention for years be rehabilitated and compensated if his innocence is proven??
She said: The trial is not a mistake that requires compensation, but rather a preventive necessity that society has accepted to ensure its security and safety from real or potential criminals. However, the person who has been acquitted can demand compensation from those who falsely accused him or testified against him, in addition to their punishment for the crime of perjury.
I said: I will take you back to the cage and ask with you
Why, if the accused is not imprisoned under investigation, is he put in a cage during the trial, unless the intention is to insult him and establish the impression in the conscience of society and the media that he is a criminal?!
I repeat that I believe, and I almost doubt, that mere accusation has become a punishment, especially in economic and political action, and that selective justice is more severe on the freedom of citizens than the lack of justice.
The intelligent young man said: Why don’t we use the idea of the electronic bracelet, instead of bearing the cost of putting the accused in prisons, as well as destroying them and their families psychologically, while they are still accused?
It is important to calculate the ratio between the accused who were detained in pretrial detention and those who may have been acquitted, provided that this entails a responsibility borne by the competent authority, which has excessively used pretrial detention and occupied the judicial system with this number of cases that end in acquittal.
If we agree on the importance and inevitability of pretrial detention in its traditional form, there is no mathematical logic in the fact that this type of detention is used in most, and perhaps all, cases. So where are the other alternatives? And what are the rates of their application? Especially since the law has already specified alternatives.
The problem of pretrial detention in Egypt, Doctor, is as clear as the August sun in the Cairo sky, so what is delaying us from dealing with it seriously?
The young woman, a doctoral student at the Faculty of Law, said:
Even in prison punishment, its aim is reform, refinement and education, as we used to hear, and restricting the freedom of the guilty does not mean treating him badly, or making him sleep in an inappropriate place, or disturbing him. The punishment is deprivation of freedom, not corporal punishment. Unfortunately, many extremists became radicalized inside prisons, not outside them.
I said: I have been an active member within the Supreme Council for Human Rights for 7 years, during which I learned, read, studied, and understood a lot that changed some of my political concepts in dealing with and distinguishing between rights and services, and the distinction between the philosophy of punishment and the means of applying it. I noticed a lot of the increase in insulting the citizen during his trial and during his sentence
Justice is the most important axis of implementing democracy, and without its complete implementation and independence from the executive and legislative authority, the violation of citizens’ rights becomes inevitable. The balance lies in the philosophy of doing everything and the intended goal. Our country will not achieve economic or political nationality without a reform revolution in the institution of justice
Here I enter the factor of time, because justice that comes late lacks much of its value, and because the judge who needs to cling to executive authority to increase his resources undermines the independence of the judiciary to death.
As I say in education and I call out, I say here: science, learning, knowledge, electronic and digital communication, training, self-examination, studying mistakes and preventing their recurrence… are the means of emerging nations that are keen on their future.
Judiciaries must have the climate and resources that make them completely free of need, as they are the focus of implementing democracy, and they are the basis of freedoms.
They must rise to the level of our high expectations of them, and not be led by habit, nor be affected by the pressures of authority, nor societal or media impressions. They are our hope and the hope of the nation.
