Working paper

Constitutional entitlements in the field of criminal legislations

Orientations and commitments

Mahmoud Kandil – Attorney at law, Court of Cassation

Introduction

Criminal trials in Egypt represent a key issue after the adoption of 2014 Constitution as it achieved a paradigm shift and provided more safeguards of public freedoms and rights.  For the first time ever, the Egyptian constitution referred to its commitment to safeguard human rights “we are drafting a constitution that maintains our freedoms…drafting a constitution that leads to a better future and is consistent with the Universal Declaration of Human Rights in which we participate in drafting and ratification”… “We are drafting a constitution that maintains equality in freedoms and responsibilities without any discrimination”. [1]

The Constitution dedicates the third part for “public rights and freedoms” and the fourth part for “the ruling regime”. It allocates five sections to explain the constitutional rules including “the judicial authority”, the included jurisdiction and the rights of public prosecution; the role of State Council; TOR of the Supreme Constitutional Court; a list of the other judicial authorities that assist the judicial authority to undertake its duties; the mechanisms of the legal practice; role and terms of reference of judicial experts and forensic experts as well as technicians. The third part of Section 8 addressed the jurisdiction of the military judicial system.

These constitutional rules are meant to satisfy the public demands for a judicial system that guarantees fair and just trail criteria, and secure the supervisory role of the judiciary system over the executive authority, in confirmation of the principle of legitimacy and supremacy of the law. Those rules, however, have not met the needs, due to acts of terrorism that negatively impact the lives of citizens, and their right to live safely and freely. They also impacted the freedom of religion, and places of worship. Such acts aim to undermine development and curb economic activities.

The key challenge is how the State institutions and authorities can fulfil their mission of combating terrorism and protecting the community in a context that guarantees that ordinary citizens would enjoy their rights and public freedoms, a context that does not undermine human rights under the pretext of fighting the terrorism escalating in all parts of the country. Thus, the public opinion would be convinced that the current judicial system does not infringe on the public rights and freedoms and that the State is efficiently and effectively capable of combating terrorism within the framework of the supremacy of the law and using its tools.

The State should also realize that observance of the rule of law and non-invocation of the pretext that the exceptional nature of terrorism makes it avoid following the logic of terrorists. Responses based on observance of the domestic and international laws, on the one hand, and adherence to the economic and social development process, on the other, represent an effective response to terrorism. This is the consensus reached by the international community following the September 11, 2001 attacks, which consistently and unanimously condemn terrorist acts, on the one hand, and violation of human rights within the context of combating terrorism, on the other.[2]

To confront terrorism within the framework of the supremacy of law, in its broad sense, would encompass all stages of criminal prosecution, including the police authorities during evidence collection, apprehension of suspects, detention for a legal term until they appear before the prosecution, guarantee of the right to physical safety and non-exposure to maltreatment or torture.

In this context, the Special Rapporteur on torture[3] noted that “following 9/11 events in 2001 and other terrorist attacks, an array of governments adopted a legal position recognizing the absolute nature of the prohibition of torture, with some kind of reservation. Specifically, there is an agreement on using some harsh interrogation techniques that do not amount to torture, with the aim to extract information in order to prevent future acts of terrorism that might claim the lives of many innocent people”.

The constitutional entitlements in the field of punitive legislations are considered the key to explain the following: how the constitutional and legal rules contribute to establish a criminal justice system that guarantees justice and fairness; how to  enjoy the safeguards of fair trial, through the application of formal and substantive rules prescribed by the constitutional and procedural legislations, as well as the international agreements ratified by Egypt, in order to provide for the safeguards of a fair trial, based on the principle of equality; equal opportunities to the litigants; and the principle of equality between the prosecution and defence, with respect to  the procedural steps.

At a first glance, it seems that the effective criminal justice system only rests on criminal courts. However, the justice system in Egypt comprises multiple roles played by other judicial authorities that contribute to establish the principle of criminal justice. This refers to the role played by the State Council in protecting the principle of legitimacy, public rights and freedoms; and the role played by the Constitutional Court in establishing the constitutional rules, and guaranteeing that the punitive legislations are consistent with the constitutional rules, in addition to the key role played by the Court of Cassation in monitoring general rulings, in general, and criminal rulings in particular.

Constitutional entitlements in the field of punitive legislations

The current Egyptian constitution regulates a set of constitutional rules that would guarantee a fair and just trial for citizens. The constitution mandated the legislators to issue laws that would implement the constitutional articles, which represents a huge challenge for the House of Representatives, because of the need to pass laws that exceeded 80 laws in a short while.[4] The Constitution referred to 13 laws relevant to criminal courts and punitive legislations: Criminal Procedures Law, appeal of rulings issued in criminal cases, Counter-terrorism Law, the law  regulating the secondment of judges, Transitional Justice Law, Law on the legal assistance for persons with disabilities, Law on the protection of detainees and the right of the disabled to have access to justice, Law on judicial supervision of prisons and places of detention, Demonstration Law, Law on protection of witnesses, victims, informants and suspects, Law on the protection of the right to     a lawyer for the needy persons, Criminal Procedures Law- interference of the National Council for Human Rights in the civil case, joining the party victimized  by the assault; Investigation Procedures Law, Law of Prosecution of the President; and the Judicial Authority Law.

In this framework, it is incumbent on the House of Representatives to pay a special attention to issuance of key legislations in the context of criminal and punitive justice as they stress the commitment to provide constitutional entitlements and protect public freedoms and rights. The House of Representatives made partial amendments to the punitive system, for example, Demonstration Law, and Counter-terrorism Law. However, this represents the minimum requirement for the provision of constitutional safeguards during this critical stage given the escalation of terrorism is escalating and infringement of the right to life.

The response of the House of Representatives to the urgent challenges through making partial amendments does not mitigate the burden to maintain the constitutional gains that secured TOR of the House. This emphasizes the role of the State in protection of public rights and freedoms as well as promotion and respect of human rights.

Constitutional entitlements and Egypt’s commitments by virtue of the international human rights instruments  

In its new constitution, Egypt followed a new track different from the constitutional path followed since the 1932 Constitution. For the first time, the Constitution refers to “human rights”. It is a phrase all Egyptian sought to find in    a constitutional provision or a real practice that guarantees the exercise of human rights. The preamble of the current constitution includes a clear phrase indicating the intention of the constitutional legislators. The pen-ultimate sentence reads as follows:”…we are drafting a constitution that opens before us future horizons and is consistent with the Universal Declaration of Human Rights that we help draft and eventually ratified”. The constitutional rules then followed; different from those set forth in previous constitutions. Article 93 indicates that “…the State is committed to the international agreements; covenants, and human rights instruments ratified by Egypt, and shall have the force of law after being published as per the prescribed conditions”. As per this text, it has become incumbent on all State institutions to comply with all the international agreements ratified by Egypt.

Thus, the status of the international agreements in the legislative structure in Egypt is no longer an issue for debate or controversy. As per the constitutional rule, they “have the force of law”. This is also set forth in Article 151 of the Constitution in a manner that urges the need to enforce by all State institutions: “the President of the Republic shall represent the state in its foreign relations, conclude and ratify agreements, after the approval of the House of Representatives. These agreements shall have the force of law after publication as per the provisions of the Constitution”.

In spite of the evolution of the constitutional rules and the implementation of rule of “the unity of law”, that is, domestic law and the international agreements hold equal legal status, it became more appropriate for the constitutional legislators to adopt the rule of “the supremacy of the international agreement over domestic laws, which was applied by Tunisian legislators[5] (2014) and the Moroccan Constitutional Legislator[6] (2011).

The constitutional entitlement under Article 93 makes it incumbent on the legislators to harmonize between the provisions of the International Covenant on Civil and Political Rights, ratified by Egypt in 1982, and the punitive legislation system, especially in light of Article 14 of the Covenant, which guarantees fair and just trials. This includes different stages: apprehension and investigation; prosecution; appeal and execution of the sentence.

International commitments in view of the state of emergency

Following the grave terrorist crimes committed in two churches in Tanta and Alexandria, that claimed 5 lives and injured a hundred others, the state of emergency was declared in the country for three months and could be renewed for three other months by a presidential decree and the approval of the House of Representatives.

Accordingly, the provisions of the Law no. 162 of 1958 apply, and the Prime Minister shall apply the decision as authorized by the President.

The partial amendments recently conducted by the House of Representatives in response to terrorism challenges included the amendment of some of the provisions of Law no. 12 of 2017 amending some of the provisions of Law no. 162 of 1958 concerning the state of emergency. Article 3 (b) bis was added which granted wide-scale mandate to the judicial officers regarding seizure of substances; inspection of places; and notification of the public prosecution within 24 hours.

The Law includes a provision superseding the Criminal Procedures Law that allows the detention of persons for up to seven days while the Criminal Procedures Law originally stipulates that the period of detention shall not exceed 24 hours.

The Law provides further authority to the summary State Security Courts (Emergency) to apprehend persons for a period of one month which is renewable indefinitely with no limit for the times of renewal.

The International Covenant on Civil and Political Rights (ICCPR)[7], under Article 4, allows for the imposition of a state of emergency and the adoption of exceptional measures during crises faced by States as follows:

  1. In cases of exceptional emergencies that threaten the nation, where a state of emergency is officially declared, the States Parties to the present Covenant may, to the extent strictly required by the situation, take measures not in compliance with their obligations under the present Covenant provided that such measures are not incompatible with their other obligations under the international law and without any discrimination on the basis of race, colour, sex, language, religion or social origin.
  2. This provision does not constitute a violation of the provisions of Articles 6, 7 and 8 (paragraphs 1, 2, 11, 15, 16 and 18.) (This means that fundamental rights are not affected: the right to life – fair trial – prohibition of torture …)
  3. Any State Party to the present Covenant that has exercised the right of derogation shall immediately notify the other Party States, through the Secretary-General of the United Nations, of the provisions which it has not complied with and the reasons that have led to this. On the date on which the derogation is terminated, it must inform them again and in the same way.

Constitutional entitlements and codifying the right to demonstration

Law No. 107 of 2013 “Regulating the Right to Public Meetings, Processions and Peaceful Demonstrations” raised a wave of controversy due to its adoption of a philosophy based on prohibition rather than permissibility. This was accepted by the community to some extent in the context of the non-peaceful protests the country witnessed after the revolution of 30 June 2013, which claimed the lives of dozens of innocent people; however, the calls of human rights groups have not been responded to; hundreds of people were prosecuted under this law and were punished for its violation in addition to other charges.

The law did not initially receive the attention of the executive authority or the People’s Assembly against the background of its promulgation before the promulgation of the 2014 Constitution, which established the freedom of assembly and peaceful gatherings in a strong manner and was prone to be challenged as unconstitutional before the Supreme Constitutional Court which ruled out on 3 December 2016[8] that article (10)[9] of the law is unconstitutional and item 2 of this article was dropped.

The Court established a principle for its judiciary that “the Constitution is keen to impose on the legislative and executive authorities the restrictions that it considers sufficient to safeguard public rights and freedoms, foremost of which is the right to peaceful assembly and demonstration so as not to intrude into one of the areas which are protected by the right or freedom or interfered with it, in a way that prevents the effective exercise of these rights. The development of these rights and freedoms through continuous efforts to establish their international concepts among the civilized nations is an essential requirement to affirm their social value and appreciation of their role in satisfying the vital interests associated with them. Unlike the previous constitutions, this Constitution has established a more advanced and democratic approach in safeguarding the right to peaceful assembly and relevant rights. The legislators confined the means of exercising these rights and necessitated that they should only be practiced through submitting a notification without following other means to use and exercise such a right such as permission or authorization. Notification as a means of exercising the right is to inform or notify the management of the notifier’s intention to exercise the right notified thereof, without this being subject to the consent or non-objection of the management authority, and in that case it shall verify the availability of the legally required data in the notification, and that it was submitted on time and to the party specified in the law. If the requirements of the notification are met and its legal conditions are fulfilled, the notifier has the right to exercise his right as stated in the notification. The administration shall not be then authorized to impede the effects of the notification or prevent the notifier from exercising his right or restricting its scope. Administrative control of places may not be taken as an excuse to impede constitutional rights. If it has done so and prevented the demonstration or narrowed its scope, it would have been undermined the origin and essence of the right, and so it would have committed a constitutional violation.

In order to address the unconstitutionality of the application of the anti-Demonstration Law, Law No (14) of 2017 was issued. The amendment dealt with the text of Article 10, which was the basis for claiming the unconstitutionality of the article. The amendment reads: “The Minister of the Interior or the competent security director, before the date set for the commencement of the rally, procession or demonstration, upon receiving serious information or evidence of the existence of a threat to security and peace, has the right to apply to the temporary judge of the competent court of first instance to cancel or postpone the rally, the procession or demonstration. The judge shall issue a reasoned decision immediately. The applicant shall be notified immediately of this decision upon its issuance, and the complainant shall have the right to appeal against the decision in accordance with the rules laid down in the Civil and Commercial Procedure Law.”

Presidential pardon committee and the dismantling of the crisis

In response to the demands of the community and human rights organizations, the President responded and formed a presidential committee to consider requests for pardoning of some of the detainees held in custody and sentenced because of crimes including charges of participating in a demonstration. The pardoning should be for the original penalty and what remains of it, and the subsequent sentence. The first group consisted of 82 citizens and the second group[10] (203). It was found out that among the released prisoners there were 65 persons in their twenties, 43 in their thirties, 57 in their forties, 31 in their fifties, and 3 in their sixties.

It turned out that a large number of prisoners released had sentences ranging between rigorous imprisonment and life imprisonment, which confirms the importance of exerting efforts to address this file and to dismantle the crisis associated with it, not only from the legislative perspective, but also from the practical perspective.

The impact of terrorist acts on the excessive use of the death penalty

Under article 6 of the International Covenant on Civil and Political Rights, States party to the covenant that still apply the death penalty are obliged to confine such use to the narrowest range possible through legislations, application and enforcement, so that the penalty is confined on the most serious crimes and the minimal number possible under article 6/2 of the International Covenant.

This commitment raises some controversy, particularly in countries facing major threats such as terrorism and in view of the turbulent regional environment, which pose an additional threat; however, it remains a fundamental commitment due to its relationship to the maintenance of the right to life, a fundamental right that cannot be derogated in extraordinary contexts.

Various researches and studies conducted in various countries that have undergone major ordeals and crises have shown that the excessive use of the death penalty does not solve problems but it may lead to endless cycles of turbulence and crises; in addition, experiences that took place in traditional contexts proved that lots of convicts who were sentenced to death, did not deserve conviction, either due to finding evidence indicating their innocence or that the offense was not commensurate with the death penalty issued.

The Egyptian legal system includes many areas and cases that may be punishable by death, including traditional crimes in the Penal Code and other offenses under special penal laws. In the Penal Code, the section dedicated to offenses against State security committed from abroad includes 12 crimes punishable by death penalty; the section dedicated to crimes committed against state security internally includes 14 crimes punishable by death penalty, and 9 crimes punishable by death penalty are included in the section dedicated to the crimes of assault on individuals; the special penal laws have about 10 crimes in the Narcotics Act; and 10 Crimes in the Law of Military Rules, and one crime in the Arms and Ammunition Act, and 12 crimes in the Anti-Terrorism Act.[11]

It is noteworthy that the legislators expanded the crimes punishable by death penalty; however, the legislator surrounded the application of death with several guarantees, including referral of the case to take the view of the Mufti of the country, and the obligatory challenge by the Attorney General’s Office of the death penalty. The death penalty was mainly used to confront the most serious and grave crimes, such as the crime of drug trafficking, or a murder accompanied by theft or arson or some crimes of espionage committed during wartime. However, with the increase in terrorist acts in the current period, many crimes have been referred to the criminal courts, some of which received death sentences, while others were retried again after submitting an appeal against the verdicts to the Court of Cassation and convicts were acquitted or received lesser sentences. This makes it important to reconsider legislations, and criminal procedures[12] to address the phenomenon of the excessive use of death sentences, which may undermine the integrity of the criminal trial itself and the availability of guarantees of a fair and just trial in accordance with the rules of constitutional legitimacy, and in accordance with international standards of fair and just trial.

Probing criminal justice in view of the recent partial amendments

Laws that have to be issued in the field of criminal justice, in accordance with the provisions of the Constitution:

1)  Criminal Procedures Law – Appeal of Criminal Rulings (Article 96 and Article 240)

(2) Law on Compensation for Preventive Detention Law (Article 54)

3)  Criminal Procedures Law- The intervention of the National Council for Human Rights in the civil case in the interest of the violation-affected party (Article 99)

4) Law on the organization of the rules for the secondment of judges (Article 239)

5)  Judicial Authority Law (Article 186)

6) Law on Legal Assistance for Persons with Disabilities (Article 54)

7) Protection of Detainees and Access to Justice by Persons with Disabilities Law (Article 55)

8) Law on Judicial Supervision of Prisons and Detention Centres (Article 56)

9) Law on the Protection of Witnesses, victims, Informants and Defendants (Article 96)

10) The Law on the Right to Defence of the needy (Article 98)

11) Transitional Justice Law (Article 241)

12)  Law of combating corruption and  promotion of values ​​of integrity and transparency (Article 218)

In view of the escalating terrorist crimes that affected the right to life of dozens of citizens, as well as the explosions that affected the places of worship of Christian Egyptians, and due to the humanitarian influence of these events, voices were raised to call for expediting the prosecution of perpetrators and to minimize the importance of talking about fair trial guarantees and protecting the justice system. The House of Representatives issued important partial amendments to four laws that are directly related to the legal response to terrorist acts.

The amendments came to address the slow settlement of legal actions and the importance of enforcement of fast justice. However, they did not pay attention in the drafting of amendments to the need to preserve the guarantees of the right to defence, which is considered an important guarantee of fair trial. The legislators did not pay attention to the importance of issuing a law that regulates cases of appeal of criminal proceedings in accordance with article 240[13] of the Constitution. However, the House of Representatives passed Law No. (11) of 2017 and Law No. (12) of 2017, that included amendments of five laws which are directly related to criminal trials through amending certain provisions of the Criminal Procedure law, the Law of cases and the Law of cases and procedures of appeal before the Court of Cassation, the law of the Regulation of the lists of Terrorist Entities, the Anti-Terrorism Law and the State of Emergency Law.

The latest amendments reduced the guarantees of a fair trial, which is primarily based on the right of confrontation between opponents, including the right to summon and question defense witnesses before the court. The recent amendments made the defendants’ right to request and hear the defense witnesses a genuine right of the court. The hearing was no longer obligatory and the court was given the right to refuse to listen to defense witnesses, depriving the defendants of fair trial procedures in criminal cases. In many cases, the proof of the innocence of the accused is based on the confrontation between defense witnesses and the prosecution witnesses which are contained in the list of evidence provided by the prosecutor, and the amendment represents a violation of an inherent right of the defense.

The amendment to the Emergency Law by Law No. 12[14] of 2017 violates the right to personal freedom and security of the person. The latest amendment added a new provision that gives more powers to judicial officials and goes beyond the general rules of the Criminal Procedures law regarding the prohibition of detaining a person more than twenty four hours before he appears before the Public Prosecution; the law provided a provision allowing this period to be around seven days. The law provided for the addition of articles 3 bis (b) and 3 bis (c) to Law No. 162 of 1958 on the state of emergency which reads as follows:

(Article 3bis) “Judicial officers may, upon declaring a state of emergency, detain anyone, if there is any evidence of his committing a felony or misdemeanor and may seize what he may possess with him, or in his home or an any places where he is suspected to hide any dangerous or explosive materials, weapons or ammunition or any other evidence of the commission of the crime, in exception to the provisions of other laws, provided that the Public Prosecution shall be notified within 24 hours of the detention and after the Public Prosecution’s authorization to detain him for a period not exceeding seven days for the completion of the process of collection of evidence, on condition that investigations with him shall start during this period.

Article 3 bis (c) “Partial emergency State Security Courts may, at the request of the Public Prosecution, detain a person if there is evidence that he represents a risk to public security for a renewable period of one month.”

 

[1] Preamble of 2014 constitution – the official gazette, a special edition of January 18th 2014.

[2] Report of the special rapporteur on the independence of judges and lawyers E/CN.4/2005/60

[3] The report of the special rapporteur on torture, Manfred Nowak, E/CN.4/2006/6

[4] Mahmoud Kandil, Your rights in your constitutions, the Arab Organization for Human Right, the National Council for Human Rights, Cairo, 2014 p.12

[5] Tunisian constitution, 2014, Section 20, stipulates that the agreements approved by the House of Representatives and then ratified are higher than laws and lower than the Constitution.

[6] Moroccan Constitution, 2011, the last para of the introduction,”…conclude international agreements ratified by Morocco, within the provisions of the Constitution, the Kingdom’s laws, and its well-established national identity, shall have supremacy over national legislations once they are published, and work on harmonizing those legislations according to the requirement of those ratifications.”

[7] The official gazette, ibid.

[8] The verdict of the Supreme Constitutional Court in case no. 232 of 36 constitutional year, dated December 3rd 2016

[9] The Minister of the Interior or the concerned security director, in case security bodies received, before the date specified for organizing the public assembly, march or demonstration, of serious information that it shall threaten peace and security, may issue a reasoned decision of banning the public assembly, march or demonstration, postponing it, transferring it to another place or change its itinerary; in this case, it has to inform those who submitted the notification of the organization of the event twenty four hours at least before the specified time.

[10] Presidential Decree no. 119, of 2017, the official gazette, edition 12 bis, on March 13, 2017

[11] Dr. Emad El Feki, death penalty in the Egyptian legislations, Arab organization for human rights publications, Cairo, 2008

[12] There are more than 170 countries in the world that cancelled the death sentence and voluntarily stopped its implementation within law or in real practice or suspended the implementation of this sentence for ten years.

[13] Article 240, “the state guarantees the provision of the material and human potentials necessary for appealing the sentences issued in criminal cases, within ten years of the date of putting this constitution into effect and the law regulates this.”

[14] The official Gazette, edition 17, (followed) on April 27th 2017