Address of Mr. Hafez Abo Seda at the workshop in Cairo 15/16 2017

Chairman of the Egyptian Organization for Human Rights

The 2014 Egyptian constitution is considered a distinguished milestone on the road of the Egyptian culture and history. It initiated the establishment of the pillars of a modern, strong state which is open to the cultures and progress of the world with the aim of achieving stability for the good of all Egyptians, striking a balance between the presidency and the parliament, while having absolute bias towards the Egyptian citizen, through establishing the principles of equality, justice, and equal opportunities; it also provides strong safeguards for protecting the rights of the workers and farmers, enhances the rights to education and medical care,  protects social rights, boosts public freedoms, especially the freedom of expression, innovation and the press, prevents imprisonment based on political views, prevents and incriminates discrimination among citizens, and stresses the rights of women, children, workers, farmers, and regulates the laws related to marriage of Christians and Jews and made their religious teachings the basis for such laws.

In spite of the fact that the constitution was written three years ago, various legislations have not been amended in a way that cope with the provisions of the new Egyptian constitution. It is worth mentioning that the current legislative provisions are stale and are not suitable for the new status quo. Therefore, we are in a dire need for new legislations that are consistent with the aspirations of the citizens regarding living a decent life and establishing a modern state. This requires a legislative agenda that would achieve the constitutional entitlements relevant to articles starting from article 8 forward.

The new legislations should address all negative phenomena, so that the legislative provisions will be based on modern punitive philosophy that would lead to preventing crimes and infliction of grave harm on society and citizens.  The issue is not related to interference just to punish the criminals because this happens anyway, but it is important to interfere with new legislations that would guarantee preventing the commission of crime or its repetition.

Therefore, we are in need of a legislative amendment that would review all the current legislations, remove obsolete ones and replace with new ones that would cope with the status quo in view of establishing a modern state. It is meant that there should be legislations that are consistent with the aspirations of the citizens regarding conducting a change in all aspects after making two great revolutions on January 25th and June 30th.

Therefore, we are in a dire need for a legislative agenda that is consistent with the modern state way of thinking, and achieves the constitutional entitlements starting from article 8 forward and turning them into legislative provisions, as we see that the constitutional articles state explicitly that it should “be regulated by the law”. Therefore, there must be laws that include legislative provisions activating the articles of the constitution.

We have many obsolete laws such as public places regulated by law no. 371 of 1956 which was drafted 60 years ago and the penalty in that law is still LE 5 and in the field of water surfaces and boats the regulating law is law no. 10 of 1954 and fine in it is LE 10.

Therefore, the parliament should work on emending various punitive legislations including the criminal procedures law for instance. It is worth mentioning that this law includes a number of rules regulating the legal action proceedings arising from a crime since the time of committing the crime till a final verdict is issued and implemented.

Hence, the importance of this law since it includes the procedures according to which the citizens are tried. Therefore, procedures should be drafted for safeguarding the rights of citizens in consistency with the principles of the human rights approved by international pacts and agreements.

Thus, we need extensive legislative amendments on the current laws to limit the excessive use of powers by law-enforcement officers in criminal cases, especially the police because there are proven cases of arrests violating the law and contradicting with the true concepts of criminal procedures law, separating between the authority of the public prosecution in investigating a case and the authority of the referring judge who has the original right to take a decision regarding a legal action whether through shelving or referring the case or any other way, and limiting the provisional detention which should be reasoned and for a certain period of time. Excessive use of provisional imprisonment is a burden on the society more than a penalty for the suspect who is, according the constitution, innocent until proven otherwise, and that preventing a person from travelling abroad should be for objective reasons required by investigations, and not used as a penalty for families, or preventing the suspect from supporting his family that is in a dire need for his assistance so that the community shall not bear the responsibility of indicting a person who is proven later on to be innocent. In addition, verdicts in absentia should be totally abrogated.

The required amendments in the criminal procedures law

  • Combating the crime of torture

The Egyptian government ratified on the first of October 1981 the International Covenant on Civil and Political Rights and this ratification was published in the official gazette on April 15th 1982. Egypt also ratified The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Penalty on January 25th 1986 and it was published in the official gazette on January 7th 1988 to be in effect as of July 15th 1986. However, ratification by Egypt of The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Penalty was not accompanied by drafting any suitable legislations or effective procedures for protecting persons from being tortured or from other forms of inhuman or degrading treatment.

As the international community gave a special focus to the torture issue, as manifest in Article 5 that added torture to the list of crimes against humanity in Rome Agreement on Establishing the International Criminal Court in 1998 which came into effect, April 11th 2002, this crime has thereupon become governed by the international criminal jurisdiction.

As Egypt is one of the founding countries of the UN system and is one of the first countries to participate in drafting the Universal Declaration of Human Rights, it has a special duty to render its legal system in compliance with its international commitments as per the agreements signed.

It is well-known that the current legislations and procedures adopted to protect persons from torture are deficient and they failed to provide protection to victims of torture and other forms of cruel or inhuman treatment. Therefore, the Egyptian Organization for Human Rights had previously submitted a proposal to amend some of the provisions of the criminal procedures law to defy this crime.

The proposed draft law aims to address the deficiencies in the criminal procedures law regarding the crimes of torture and cruel treatment, the unlawful incarceration of citizens with the aim of making the Egyptian law consistent with the Convention against Torture. Amendments are as follows:

  • Article 126 of the Penal Code was amended adding a definition of the crime of torture according to the Convention and a second item including all forms of torture; and abolishing the item that stated that torture should be used to force the suspect to confess adding “for the purpose of getting information” and “punishing any act committed or suspected to be committed against a person or intimidating him or other persons, or for making those people give in or for any other reason”. Accomplices are also added to be punished together with perpetrators of crime for facilitating or approving the crime. The penalty was aggravated – minimum penalty five years of imprisonment with hard labour, if the victim dies the perpetrator shall be charged of premeditated murder. An item was added to address the potential mitigation of penalty in certain cases.
  • As for Article 129 relevant to use of inhuman means, the article was amended to aggravate the penalty to no less than one year in prison.
  • As for Article 280 relevant to the apprehension or incarceration of people without a warrant from concerned judges, the penalty was aggravated from provisional detention to imprisonment.
  • Article 63 of the Criminal Procedures Law and Article 232 of the Procedural Law were amended to allow the victim or his family members to file a direct legal action in cases of torture or use of inhuman means or unlawful incarceration of a citizen. Prior to amendment, the Article indicated that the public prosecution is the only competent party.

 

  • Preventive detention

Preventive detention is a legal action taken by the investigation authority or competent court to guarantee that the suspect is kept in safe place until the case and charges pressed against him are considered, to guarantee non manipulation of evidence; to prevent an attempt to dissuade the witnesses; to keep the suspect safe if being released might endanger his/her life. Preventive detention deprives the suspect of his/her freedom for a period of time according to the investigation requirements as per the provisions of the law.

Preventive detention is done placing the suspect in one of the jails for a period of time based on a warrant issued by the authority concerned with investigation in the criminal case.

Therefore, it can be said that preventive detention is one of the procedures of criminal investigation ordered by the concerned party and includes a warrant to the jail warden to incarcerate the suspect; the period might be short or long according to each and every case. It ends either by release of the suspect during the initial investigation or during trial, after an acquittal ruling or an indictment and a sentence to be served.

Articles 203, 142, 143, 201, and 202 of the Criminal Procedures Law specified the periods of preventive detention that might extend to long periods, turning from an exceptional procedure required by the investigation into a custodial penalty implemented without a supporting court ruling. Preventive detention is subject to criticism in light of the following reasons:

  • Article 143 of the Criminal Procedures Law does not put a limit for the period of preventive detention during the trial which contradicts with the provisions of the constitution and the nature of preventive detention which is a temporary procedure not to be deemed as a penalty.
  • Article 201 of the Procedural Law linked the detention of the suspect to the time of interrogation and not the time when handed over to the prosecution, hence bearing the consequences of delay of interrogation. The order of the public prosecution concerning preventive detention shall be in force once the suspect is handed over to the public prosecution; it shall be issued by a prosecutor and should not exceed four days. When renewed, an order for placing the suspect under probation for ten days is issued by the judicial police.
  • Article 202 of the Procedural Law allowed the district court judge to issue an injunction to extend the preventive detention of the suspect for 45 days, which contradicts with the nature of the preventive detention that is an exceptional procedure. In the meantime, this entails failure of the judge to monitor the reasons for continuation of preventive detention. Therefore, the said provision should be amended to be: “the district court judge may renew the preventive detention of the suspect for a period of 15 days to be renewed again on condition that the whole period of detention shall not exceed 45 days”.

Therefore, the period of preventive detention has become indefinite after introducing this amendment concerning crimes penalized by life sentences or capital punishment. However, the court that may take the decision of indefinite preventive detention should be a criminal court or a court of appeal. Therefore, we propose the following:

  • Abolish the legislative amendment introduced by the Interim President Councillor Adly Mansour by virtue of decree by Law no. 83 of 2013 and return to the use of Article 143 of the Criminal Procedures Law before being amended. It stipulates that if investigations are not completed and the judge believes that preventive detention shall extend for a longer period than prescribed in the previous article, he shall refer the documents of the case before the expiry of that period to a misdemeanour appellate court to consider the case in -camera and issue its ruling after the argument of the prosecution and the suspect. The preventive detention of the suspect may extend for successive periods; each of which shall not exceed 45 days if the investigation so requires. The suspect might also be released on bail or without bail. However, the case shall be considered by the public prosecutor if the suspect stays for 3 months in preventive detention to take the necessary action to complete the investigations. Preventive detention shall not exceed three months unless the suspect is informed of referral to             a specialized court before the end of this period. In this case, the public prosecution shall send a detention order within five days at most of the date of notification of referral to a specialized court as per the provisions of Article 151.1 of this law or to release the suspect. If the charges pressed against the suspect are relevant to a felony, the period of preventive detention shall not exceed five months unless an order is issued by the competent court before the end of this period to extend detention for a period that shall not exceed 45 days once or several times. Otherwise the suspect should be released. In all cases, the period of preventive detention during the initial investigation and all stages of criminal case proceedings should not exceed one third of the period of penalty of the crime; thus, it shall not exceed 6 months in misdemeanours or 18 months in felonies and two years if the penalty is life sentence or capital punishment.”

3- Composition of courts and determination of sessions  

It is suggested to amend Article 366 stipulating that “one or more criminal courts shall be formed in each court of appeal and each shall comprise three councillors”.

A criminal appellate court shall be formed in each court of appeal to review challenges against rulings issued by criminal courts if appealed by the suspect in case of indictment or by the public prosecution if acquitted if deemed justifiable.

It is suggested to add Article 336 bis that stipulates that one or more circuits of the criminal court shall be assigned to consider the crimes of bribery, embezzlement of public funds, treachery, forgery, etc., and other crimes mentioned in Chapters 13, 14 and 16 of Part Two of the Penal Code Law and the relevant crimes. Lawsuits are filed in those circuits directly by the public prosecution and are urgently considered.

Circuits in each criminal appellate court, comprising five judges heading courts of appeal and headed by one of the representatives of the court of cassation to be nominated by the president of the court, shall be assigned to consider challenges referred by the criminal courts working in their respective jurisdictions. The cases shall be considered within a period that does not exceed six months of the date of submission of the appeal. Its rulings shall be challenged through the court of cassation or the case shall be reconsidered.

Based on Article 96.2 of the Egyptian constitution stipulating that “the law shall regulate the appeal of the rulings issued by the criminal courts” and based on Article 240 of the constitution that stipulates that “The state shall guarantee the provision of the material and human resources necessary for appealing the rulings issued by criminal courts within ten years of the date this constitution enters into effect and the law shall regulate this.”

 

  • Amendment of Penal Code to abolish imprisonment in cases of crimes of publication

The system of freedom-restricting laws has to be considered and articles that relate to deprivation of freedom in cases of crimes of publication have to be cancelled. The freedom of opinion and expression shall be secured in implementation of the international commitments of Egypt relevant to international agreements and covenants of human rights.

The Egyptian constitution stipulates in Article 71 that “It is prohibited by any means to censor, confiscate, suspend or close down Egyptian newspapers and media. Specific censorship may be imposed in time of war or public mobilization for war.” No freedom-restricting penalty shall be imposed on offenses committed relevant to publication or publicity. As for offenses related to incitement of violence, discrimination against citizens or to libel of individuals, they shall be determined by the law.

The Egyptian Penal Code has dedicated a special section for crimes related to publication in the press, which entails many punitive provisions, that in essence intimidates all those working in the press or express their opinion in public. These provisions include the incrimination of any opinion that may be or may be considered – for the lack of precision of punitive provisions of the national legislations where the text abounds in many statements that allow for the criminalization of any acts – to be incitement of hatred of the regime, insult of the authorities or the army, or represents an instigation of public opinion. The Egyptian legislators believe this is not suffice they stifled all means of self-expression, including writing, photography, drawing, singing, screaming, and even gestures (Articles 171, 172, 174, and 177).

  • Enacting a law on the right of flow of information

The Organization had previously proposed a draft law on circulation of information and submitted it to the People’s Assembly (currently the House of Representatives) but this law has not been considered at all, and therefore a new law must be enacted to allow for information flow after submission to the legislative authorities for discussion in accordance with the provisions of the International Covenant on Civil and Political Rights and other international covenants and conventions, introducing legislative amendments, and developing a new legislation for the flow and conservation of information derived from the experience of democratic countries in this field. It has to provide in particular the definition of classified information; and a precise definition of the meaning of the terms “public order”, “public manners” , ‘national security” and the “supreme interests of the State”, so as to make such meanings so specific as to render a criminal penalty for their violation and to provide for the penalty of any official who withholds or prevents the publication of information, provided that this law is consistent with the principles of Article 19 the citizen’s right to information:

  • The first principle states that all official information available to the public authorities and other public bodies shall be accessible to all. Therefore, exceptions must apply only to a limited extent. The government shall be held accountable for withholding information from citizens.
  • The second principle states that the public authority must commit itself to disseminating information on the conduct and administration of public authorities and disseminating the content of any decision or policy that may affect citizens.
  • The third principle states that legislation regulating access to information must include effective measures to inform the public of their right to access information and promote a culture of openness and disclosure within the government.
  • The fourth principle, entitled “Protection of informants”, provides that the legislations relevant to access to information must include provisions that protect individuals from legal, administrative or other functional sanctions against providing information on crimes.

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