Summary of the Hisham Mubarak Law Center’s Defense of Kareem’s case in the Misdemeanor No.788/2007, Moharram Bek Misdemeanor Court
The defense, present with the defendant, adheres to all presented requests, as documented in hearing minutes: consulting an expert from the University of Alexandria to define the location of Civic Dialog , the website from which the documents attributed to the defendant were taken, and define the creator and administrator of the website, who is responsible for hosting the content, for the reason of defining if Egyptian Penal Code is applicable. The defense also requests adding to the file the complaint attributed to some students on which the defendant was referred to an accusation council. The defense also requests adding the investigations of State Security, which was required by the Prosecution General during the interrogations.
The documents accuse Abdel Kareem Nabil Seliman of a misdemeanor according to articles 98(f), 102 repeated and 179 of the Penal Code for doing the following in the jurisdiction of Moharram Bek district within 2005:
A) Inciting strife and defaming Islam, for what he attributed to God Almighty, and Mohammad the Prophet, which disturbs national unity and Islam as detailed in the investigations;
B. Deliberately diffusing information/data that disturbs public security, damages public interest as detailed in the investigations C) Insulting the President of the Republic as detailed in the investigations.
Article 98(f) as amended by Law 147/2006:
Confinement for a period of not less than six months and not exceeding five years, or a fine of not less than five hundred pounds and not exceeding one thousands pounds shall be the penalty inflicted on whoever make use of religion in propagating, either by words, in writing, or in any other means, extreme ideas for the purpose of inciting strife, ridiculing or insulting a heavenly religion or a sect following it, or damaging national unity.
Article 102 bis/1 after amendment:
Confinement and a fine of not less than fifty pounds and not exceeding two hundred pounds shall be the penalty inflicted on whoever deliberately diffuses news, information/data, or false or tendentious rumors, or propagates exciting publicity if this is liable to disturb public security, cause panic among the people, cause harm or damage to public interest.
Whoever affronts the president of the Republic by means of any of the foregoing methods shall be penalized by Confinement. Legal Defenses:
1) We plead the court not to accept the civic right accusation as it is not compliant with the requirements of Article 3 of the Code of Procedure regulating guardianship (Hisba) allegation, which requires the plaintiff, who relies on Hisba, submitting his request to the Prosecutor-General, which is not done by the plaintiff.
2) We plead the defendant innocent of all the accusations attributed to him according to the Egyptian Constitution and the International Covenant for Civil and Political Rights, as both establish protection of freedom of thought and expression (the Covenant became a local legislation after its ratification and publication in the Official Gazette on 15 April 1982; issue 15 by a Presidential Decree number 536/1981), and according to article 60 of the Penal Code.
3) We plead that the Material actions attributed to the defendant were committed outside the country and therefore not subject to the Egyptian Penal Code, based on the Principle of territoriality, according to articles 1, 2 and 3 of the Code.
4) We plead the first accusation article 98(f) not relevant for the lack of the religion abuse element the article requires. The article incriminates using religion in propagating extreme ideas, which does not apply to what has been attributed to the defendant, as he was attributed to denying Islam. Therefore, an accusation of abusing religion in propagating extreme ideas is irrelevant.
5) We plead the remainder of the requirements of the material elements detailed in article 98(f) not existent. The Prosecution failed to explain the extreme ideas attributed to the defendant nor did it explain where the extremism lies. In addition, the Prosecution has failed to relate the purpose of propagation to the purposes as specified in the article: inciting strife, ridiculing or insulting a heavenly religion or a sect following it, or damaging national unity.
6) We plead the criminal intention not existent, as the defendant has persistently stated that he has no intention of ridiculing or inciting a heavenly religion, and that his intention was expressing his opinion. When the interrogator asked him “what is your purpose of publishing these articles on that website?”, his answer was “Expressing my opinion to fulfill myself in the society I live in.” (Page 2 of the Disciplinary Council minutes). He repeated the same meaning: “Of course I do not write things I do not believe in. It does mean, however, that my convictions will remain forever. Everything is subject to change, especially ideas,” (Page 7 Disciplinary). “I practiced my right to expressing my opinion. This is all of my accusation,” (Page 9 Disciplinary). “The law was passed to regulate the relationships among individuals, and with authorities. It was not legislated to limit individuals’ freedoms. On the contrary, I have not done a dishonoring act. All I did was expressing my opinion and practicing my right” (Page 9 Disciplinary).
“I believe that the people damaging Egypt’s reputation are those who interrogate me because of my personal opinions which I should express freely and away from any pressure. As for the Internet, I am not the only one who publish their opinions on the web. It is just that I wanted to be honest and transparent. I published my opinion in honesty and gave my personal identity, which has led to relating the published opinions on this virtual space to a person that physically exists: myself. There are many who write, speak and criticize in total freedom, and they are safe from any punishment because they writ under pseudonyms. This is the biggest proof of my good intention.” (Page 13 Prosecution). “I do not accept the validity of interrogating me because of my personal opinions that have no effect on the actual life, but rather to express myself.” (Page 14 Prosecution).
“I express my personal opinions. And I stress for this. (Page Prosecution) “I created a website on the Internet to express my personal opinions” (Page 7 Prosecution) “Because Internet gave us the opportunity to express our opinions, I am expressing my opinions on the Internet” (Page 9 Prosecution).
Q: “What do you say about your writings that Islam calls for the hatred of the other, killing them and assaulting their honor?” A: “Yes, I did say this and this is my personal opinion” (Page 9 Prosecution) “My words have no incitement. I have not incited anyone to do anything” (Page 11 Prosecution).
7) We plead the Article 102 bis/1 irrelevant, for the act of transmission required by the article is not existent. Transmission may refer only to heard material and not written material.
8) We plead the material elements of the crime detailed in article 102 bis/1 not existent for the failure of specifying the news or rumors attributed to the defendant and their being false. The wording of the Prosecution are not specific to certain news attributed to the defendant. The Prosecution did not prove these news untrue.
9) We plead the defendant had no intention of propagating false news that is liable to disturb public security, as the defendants has insisted that all his intention was practicing his freedom. The defendant said, “It has never happened that I presented improper insights, and it has never happened that I spoke of something in contradiction to the truth as I see it at least.” (Page 13 Prosecution)
10. We plead the material elements of the crime of affronting the President of the Republic, as what was attributed to the defendant is not related to the person of the President of the Republic and is considered legal criticism of his policy. All that was attributed to the defendant by the Prosecutor-General with regards to this accusation is that he also accused the regime by mentioning that president Mubarak is the symbol of tyranny, sarcastically saying “support president Mubarak as a Caliph”.
11) We plead the intention of the defendant to insult the President of the Republic non-existent.
Q: “What do you mean by saying that Hosni Mubarak is the Caliph and God’s delegate on the land of Egypt, the oppressor of people and the symbol of tyranny?” A: “This is my opinion. I am being sarcastic. I see him as a tyrant” (Page 11). “This is my opinion in commenting on the incident” (the Grand Sheikh of Azhar supporting Hosni Mubarak as a presidential candidate in the recent presidential elections) (Page 8 Prosecution). “This comment of mine is considered mocking what is happening in Egypt. I stress there is no democracy and this is my personal opinion” (Page 9 Prosecution). In addition, the interrogator did not specify the words insulting the president. The defendant denied all accusations and stressed he did not mean insulting, rather criticizing the policy of the president of the republic.
12) Out of precaution we plead putting the case back to proceedings to prove the truth of what can be surmised of news or rumors attributed to the defendant.
13) Out of extreme precaution we plead a relation between the crimes attributed to the defendant, which requires him to be punished only by the punishment of the most severe crime.
With regards to the existence of the defendants intention in the three crimes, the defense plead that reviewing the words of the defendant, either before the Disciplinary Council or the Prosecution, expressed more than one time his good intention and firm belief that what he did is nothing but practicing his freedom of expression. His conviction being wrong is what the Egyptian law defines as the defendant committing an essential error that affected the existence of solid knowledge and hence permitted, which by itself negates the intention, as he committed what he has committed with good intention believing it is his right.(Causes of non responsibility) The defense has stressed that there is no crime in the Penal Code for changing faith or atheism.