On Tuesday, December 3, the al-Waily Criminal Court sentenced officer Nader Nabil Bolous Shenouda and eight lower ranking policemen (sub-officers) to three years in prison in criminal case no. 4126/2016. The police personnel were convicted for the  physical assault leading to death on Hussein Farghali Hassan Farghali and abusing their office by using force with the victim, his wife, and son. The fifth defendant, a sub-officer, was additionally fined LE500 for possession of an unlicensed firearm and ammunition. 

Lawyer Hoda Nasrallah, who represented the victim’s family, said that the conviction coming three years after the incident demonstrates that justice is not only served to the powerless, but can also be served to the police. Nasrallah also saw the judgment as an indictment of the police force, which is tasked with protecting individuals and property and holding its own personnel to account; but that allowed its personnel - the defendants in this case - to remain on active duty throughout the trial. The sentence further spotlighted how the Public Prosecution continues to release from custody police personnel who have been formally charged, despite genuine grounds to hold them in custody pending proceedings. Releasing them permits. The unconditional release of defendants in such cases bring with it the possibility of defendants abusing their authority to influence witnesses and litigants. This happens at the same time that pretrial detention is used arbitrarily to hold civilian defendants, who do not wield the same powers, defendants in cases with considerably less serious charges. 

Nasrallah added that the judgment shows that courts in Egypt continue to hand down minimum sentences to police, even in cases where they have caused the death of innocent citizens. Article 236 of the Penal Code provides for a sentence of three to seven years for an assault leading to death, but the judge in this case used his discretionary authority to give the defendants the minimum, despite also invoking Article 32 of the Penal Code, which states that defendants convicted of multiple related crimes should receive the sentence for the most serious one. In this case, the two related crimes were physical assault leading to death and  abuse of authority, but the judge ultimately handed down the minimum sentence for the most serious crime. Criminal courts thus perpetuate a policy of minimum accountability for crimes committed by law enforcement personnel.

In referring the defendants to trial, the Public Prosecution refrained from adding to the chargesheet the crime of torture under Article 126 of the Penal Code, as requested by the legal counsel for the victim’s family. The legal team from the EIPR had previously sought charges of torture leading the death. The facts of the case and the prosecution’s interrogations show that the offenders tortured the victim to compel him to confess to a fabricated crime he did not commit, thus causing his death. This charge would carry the sentence for murder under Article 126 of the Penal Code, which states, “Any public servant or employee who orders or commits the torture of a suspect to compel him to confess shall be sentenced to harsh imprisonment or imprisonment of three to ten years. If the victim dies, the penalty shall be that prescribed for murder.”

The facts of the case began on May 20, 2016 when the defendants willfully assaulted victim Hussein Farghali Hassan Farghali using blunt instruments (clubs and a pistol butt) and beating and kicking him, thereby causing pain and injuries that resulted in his death. In the charge sheet, the Public Prosecution ruled that the defendants did not intend to kill him, but that the assault had caused his death. The sentence, however, affirmed the causal relations between the assault and the death. An investigation undertaken by the EIPR at the time of the incident and video footage filmed by witnesses showed that Hussein Farghali was brutally beaten with clubs, punched, and kicked in a vengeful manner that is wholly disproportionate to any imaginable purpose of police intervention. The footage also showed that police continued to beat the victim with clubs and sticks after he was placed in the police vehicle, using such violence that the back end to the police vehicle itself was damaged by the blows.

Investigations and court proceedings in the case lasted for more than three years, during which time the defendants were free and on active duty with the Interior Ministry. Only some of the defendants were transferred from the Waily police station to other precincts, but they were not provisionally suspended from duty pending the conclusion of proceedings, as prescribed by Articles 53 and 81 of the Police Act, which give the Interior Ministry the authority to suspend officers and other personnel if it is in the interest of the investigation.

The court convicted all the defendants, ruling that the charges were proved and, in what EIPR considers to be a positive aspect of the decision, demonstrating in its ruling that each of them bore individual criminal responsibility for the act. The court relied on the forensic report showing a causal link between the defendants’ acts and the victim’s death and ruled that they were not acting in legitimate self-defense.

In order to end the state of impunity and ensure genuine justice, the EIPR reiterates the following demands: 

• The Public Prosecution must bring charges of murder under Article 126 of the Penal Code when the elements of that crime exist, as elaborated above. 
• The Public Prosecution must use its authority to provisionally detain public servants accused of abusing their authority in order to protect the integrity of the investigation, particularly since pretrial detention has been increasingly used in recent years with defendants accused in non-violent crimes, such as protesting or crimes that essentially are about expression of opinions. 
• The Interior Ministry must suspend police personnel accused of a felony or misdemeanor that involves breach of trust pending the conclusion of investigations and prosecution, pursuant to the Police Act. 
• The judicial authorities must use their discretionary authority to hand down deterrent sentences against public servants, particularly police personnel, for crimes of assault, torture, and abuse of authority that lead to death of innocent people.