In recent years, Egyptian authorities have increasingly turned pretrial detention from an exceptional legal measure to a punitive tool used regularly against human rights defenders, journalists, and individuals perceived to be critical of the government. They have done so both using the law and working outside of it—most recently in reliance on two practices: “rotation” (tadweer) and detention pending multiple cases.
What does Egyptian law say about pretrial detention?
Under Egypt’s Criminal Procedure Code, pretrial detention is meant to be a measure of last resort. Pretrial detention can be renewed for 15-day periods by either a prosecutor or investigating judge for up to a total of 150 days. Beyond that point, detention must be reviewed by a judge and renewed in 45-day increments. The Criminal Procedure Code states that in total, pretrial detention cannot exceed six months for defendants accused of misdemeanors, 18 months for felonies, and two years for felonies punishable by death or life imprisonment. In cases where detainees have already been sentenced to death or life imprisonment and are appealing the sentence, the court can extend pretrial detention without limit.
What is rotation?
To circumvent even the lengthy domestic pretrial detention maximums described above, Egyptian authorities are increasingly partaking in the practice of “rotation.” Under this practice, when a defendant is ordered released from a case, reaches their maximum detention limit for a case, or has served their sentence, an entirely new case is brought against them, creating a new basis upon which to hold them in pretrial detention. The new case brings the detention period back down to zero, creating a scenario in which someone who has never been charged with a crime could be kept in pretrial detention indefinitely, so long as they were ordered detained for a new case at the end of each detention period.
Rotation is not a formalized mechanism regulated by the law— it is something that has been developed and increasingly normalized by Egyptian national security authorities. These authorities have played significant roles in instances of rotation, from the creation of new cases to the fabrication of charges—at times, even accusing detainees of committing crimes from inside their prison cells.
There are two primary types of rotation: those that take place during or following pretrial detention; and those that take place following a person’s completed sentence.
During or Following Pretrial Detention
New Case Following Release Order
This is the most common form of rotation. After a defendant has been ordered released from pretrial detention and before they are physically released, they are questioned in another case and ordered back into pretrial detention. On December 2, 2020, for example, human rights lawyer Mohamed Ramadan was ordered released from pretrial detention; instead of being physically released, he was transferred to the Supreme State Security Prosecution (SSSP) on December 8, questioned in a new case, and ordered back into detention.
New Case Following Release and While on Probationary Measures
In this scenario, the individual has been released from pretrial detention on probationary measures, meaning that he or she must periodically visit their district police station or be seen by a judge. While fulfilling these probationary measures, the individual is arrested again, accused of allegedly violating these measures, and is ordered into pretrial detention in a second case on different charges. On May 13, 2019, for example, human rights lawyer Haitham Mohammadein was rotated into a new case after being arrested from El-Saff Police Station, where he was completing probationary measures.
Following Completion of a Prison Sentence
Detention Following Completion of Sentence
Here, an individual has just completed their prison term and served their sentence. However, before they are physically released, they are questioned in a separate case and ordered into pretrial detention.
Detention Following Completion of Sentence and During Probation
In this scenario, an individual who has completed a prison term and has been physically released is serving a probation sentence, stipulated by the judge who first sentenced them. The individual is then re-arrested, questioned in a new case, and ordered into pretrial detention. On September 29, 2019, for example, activist and blogger Alaa Abdel Fattah was arrested from El-Dokki Police Station and rotated into a new case. He had been serving a five year probation sentence following his completion of a five year prison sentence.
What is detention pending multiple cases?
Similar in effect, but slightly different in mechanics, authorities are also increasingly applying a second, separate mechanism to extend pretrial detention indefinitely: detention pending multiple cases.
Rather than waiting for a detention period to end or expire, authorities bring in detained defendants serving an existing pretrial detention period in one case for questioning and detention pending a second case—rendering them detained per two separate cases. The motives behind this strategy are not yet clear. Presumably however and down the line, should detainees be ordered released in one case, they would still remain in pretrial detention pending the second case.
It is often unclear if the charges in the second case are being brought in relation to an alleged crime that occurred prior to detention or during detention from inside the prison cell, which—at best—raises questions about the rigor of the investigative and prosecutorial process, or at worst, implies the fabricated nature of these charges and their levying as a form of reprisal.
Detention in Two Cases Toward the Beginning of Arrest
In this scenario, authorities order an individual into pretrial detention per two different cases toward the beginning of arrest. On June 19, 2018, activist Mohammed Adel was arrested from Aga Police Station while fulfilling probation. He was ordered into detention pending one case and two weeks later, added into a second case.
New Case Following Months of Detention
Here, months after an individual is put in pretrial detention pending one case, authorities investigate and order them into pretrial detention in a second case. For example, in November 2019, journalist Solafa Magdy was arrested and ordered into pretrial detention. The following August, after almost 11 months of pretrial detention, Magdy was questioned and detained pending a second case.
What does international law say about pretrial detention?
Both detention pending multiple cases and rotation occur in violation of international law, which—similar to Egyptian law—conceives of pretrial detention as a measure of last resort.
The International Covenant for Civil and Political Rights (ICCPR), which is binding on Egypt, enshrines protections against arbitrary arrest and detention under Article 9(1). The Human Rights Committee (HRC), the body that oversees the ICCPR, has stated that detention which may initially be legal, can become arbitrary if unduly prolonged or not subject to periodic review. Article 9(3) gives the right to a speedy trial or release and states that anyone arrested or detained on a criminal charge should be brought promptly before a judge. The HRC has stated that pretrial detention should be used only to the extent it is lawful, reasonable and necessary, with necessity being defined narrowly as, “to prevent flight, interference with evidence or the recurrence of crime” or “where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.”
The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides important guidelines for the treatment of detained persons. Principle 38 calls for detainees to be entitled to a trial “within a reasonable time or to release pending trial.” Principle 39 states that with the exception of special cases provided for by law, a detainee shall be entitled to release pending trial subject to the conditions that may be imposed in accordance with the law.
As a party to the African Charter on Human and People’s Rights, Egypt is bound by its provisions. Article 6 states that no one may be arbitrarily arrested or detained, and with respect to indefinite detention, Article 7(4) provides the right to be tried within a “reasonable time” and by an impartial court or tribunal. The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa urges states to use pretrial detention as an exception, not the rule.
Why does this matter?
In reflecting on Egyptian authorities’ use of rotation and detention pending multiple cases, it is clear that these tools are designed to be forms of punishment and reprisal, rather than mechanisms to achieve justice. Detainees are accused of similar charges in second and third cases as those presented in their initial cases, without any evidence put forth. At times, they are accused of crimes that would be impossible for them to have committed while in pretrial detention in maximum security prison facilities.
Furthermore, both rotation and detention pending multiple cases expose detainees to prolonged pretrial detention, and as a result, prolonged exposure to the violations that pretrial detainees in Egypt today face, including being held alongside convicted persons, poor treatment, denials of visits with family and lawyers, denials of access to case files, and near-automatic detention renewal sessions where lawyers are unable to adequately present a defense.
Together, rotation and detention pending multiple cases create a new reality in which a detainee who would normally be certain that he or she would be released after a maximum detention period, could instead be subject to indefinite detention as authorities continue to add him or her to new cases. These practices usher in severe due process violations in clear violation of the international and domestic legal standards described earlier and normalize the deterioration of the Egyptian justice system and its instrumentalization for political purposes.
Special thanks to TIMEP’s former Legal and Policy Intern Sarah Morsheimer for her research support on the international legal standards referenced in this article.