Without legal grounds, Abdel Qawi Fathallah is still in detention despite a decision to release him 6 weeks ago
The case of Abdel Qawi Fathallah, who remains behind bars despite a court ordering his release nearly eight weeks ago, illustrates the gap between theory and reality in Egypt’s justice system.
Fathallah has been imprisoned in Case 674/2019 on charges of joining a banned group. Last April, authorities issued an order to release him with precautionary measures, and he was transferred from Qanater Prison to the Giza Police Department in preparation for his release.
Despite the Cairo Criminal Court’s decision to release Abdel Qawi Fathallah with precautionary measures on January 10, 2022, the release decision has not been implemented to date.
In spite of what his wife reported that his release decision was sent from the State Security Prosecution to the Giza Security Directorate and the Prisons Authority carrying numbers 298 and 299 on the same date, he is still imprisoned in Giza Central Prison without a legal basis.
Fathallah is imprisoned in case No. 674 of 2019 on charges of joining a banned group. A decision was issued to release him with precautionary measures on April 5, 2021, and he was transferred from Qanater Prison to the Giza Police Department, five days after the issuance of the release decision.
In preparation for his release, he remained in the police department until 1 a.m. on May 11, 2021. At that time, no one told him that he had a hearing to renew precautionary measures on the same day, so he did not attend the hearing. Because of this, a decision of seize and arrest was issued against him. He was re-arrested and his detention was renewed again on the 9th of October 2021.
One month later, with Fathallah still in the police station, authorities did not inform him of a hearing to renew his precautionary measures. They then re-arrested him for his failure to attend and continually renewed his detention until January 10, when a court again ordered his release.
After that, the hearings to consider renewal of detentions continued until the Cairo Criminal Court issued a decision to release him with precautionary measures on 10 January 2022, a decision that did not enter into force until the present. While his wife tried to ensure that the decision reached the prison, the prison administration told her that they were waiting for the “national security signal” to implement the decision and release him
It is to be noted that while Fathallah was in prison, a hearing was scheduled for February 13, 2022 before the Cairo Criminal Court to consider renewing the precautionary measures, which he was expected to attend in person. However, he did not attend because he was in illegal detention, so his lawyer attended and told the court that the release order had not been implemented, and that he was still imprisoned in Giza Central Prison.
The lawyer submitted to the court proof thereof including the telegrams and communications submitted by his wife, to no avail. At that session, the court decided to maintain the measures as they were, and did not decide to cancel the measures and order his imprisonment as is the case in the event that the accused fails to attend the session to renew the precautionary measures.
Yet authorities continued to hold Fathallah and, absurdly, scheduled another hearing at the same court on February 13 to renew his precautionary measures, which he again could not attend because he remained in prison.
“The continued imprisonment of Fathallah in this manner, despite the issuance of a decision to release him from the competent court, constitutes a crime of unlawful detention, a crime punishable under Article 280 of the Penal Code,” said the Egyptian Initiative for Personal Rights (EIPR).
Article 280 states that “Whoever arrests, imprisons or detains any person without an order from one of the competent authorities, and in cases other than those in which laws and regulations authorize the arrest of suspects, shall be punished by imprisonment for a period of no less than one year, or a fine not exceeding two thousand Egyptian pounds. Without prejudice to any more severe penalty stipulated in other laws, the penalty shall be rigorous imprisonment if the arrest is accompanied by torture”.
The continued detention in the case of Abdel Qawi Fathallah also constitutes a crime of refusing to implement a judicial order, which is punishable under Article 123 of the Penal Code, which states:
“Any public official who uses the authority of his position to stop the implementation of orders issued by the government or the provisions of laws or regulations, or delaying the collection of funds and fees, or suspending the execution of a judgment or order issued by the court or any competent authority, and any public official who willfully refrains from executing a judgment or order from the above after eight days have elapsed from his warning by a bailiff if the matter is within the competence of the employee, shall be punished by imprisonment and removal from office.”
Fathallah’s situation is another reminder that judicial rulings in Egypt often fail to be implemented in practice. Other examples include the many human rights defenders who have struggled to have travel bans and asset freezes lifted long after being cleared by judges.