Legislative measures and judicial applications

In the context of current challenges

Prof. Ahmed Reda Tolba

Out of our conviction of the importance of the great contribution made by the 2014 Constitution of the Arab Republic of Egypt to the promotion of respect for and protection of human rights and in conformity with the directives expressed in the preamble and various sections of the Constitution, in particular the provisions of Part Three, “Rights, Freedoms and Public Duties”,

And based on article 93 of the Constitution, “The State shall abide by the international agreements, covenants and pacts on human rights ratified by Egypt and they shall have the force of law after their publication in accordance with the prescribed conditions”[1],

And within the context of the nature of the comprehensive regional role of the Arab Organization for Human Rights in the Arab region, the appreciation of the organization of the importance of Egyptian legislations and their great impact on Arab legislative trends and the desire to invest these important data in the development and reform of punitive legislation in the Arab region,

And with reference to the International Declaration of Human Rights that Egypt participated in drafting and ratifying, and in view of the agreements ratified by Egypt especially the International Covenant on Civil and Political Rights, the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Penalty,

And based on relevant declarations and the guidelines, especially the guidelines on the Role of Public Prosecutors”, “the Code of Conduct for Law Enforcement Officials” and “the Minimum Standards for the Treatment of Prisoners and Other Detainees”,

And out of our keenness on the importance of time, we shall shed light directly on two important sections that raised widespread concern and controversy in the current legal, judicial and human rights circles and cast their shadow over the Egyptian society as a whole. The first is the increasing demands on the imposition of the most severe penalties against terrorism crimes in the country which makes it incumbent on us to refer to the applications of the death penalty in general. The second is the amendment of the Criminal Procedures law, in which we shed light on some of the contributions of the Arab Organization for Human Rights as a proposing tool through a brief presentation of a memorandum of proposals submitted to the High Committee for Legislative Reform.

First: An Overview of the application of the death penalty

From a general perspective, judicial applications, particularly those relating to the death penalty, violate many human rights and principles, primarily the right to life, and often the absence of fair trial guarantees and the right to litigation.

With Egypt’s commitment to abide by the international instruments, particularly the International Covenant on Civil and Political Rights (ICCPR), the extremely serious crimes that in exceptional few cases may deprive their perpetrators of the right to life should be precisely defined.

In the light of the monitoring and follow-up conducted by the Arab Organization for Human Rights and many civil society organizations of legislations and the application of the death penalty, trials related to violence and terrorism cases have witnessed an unusual course in recent years which have raised widespread concern. Collective sentences of death penalty were passed; although the majority of them were in absentia, this affects the stages of litigation.

Despite the availability of the guarantees[2] relevant to the death penalty in Egyptian law, the expansion of implementation of the death sentence, as well as the excessive amount of legislations authorizing such penalty – far outweighs the “most serious crimes”, a standard permitted to be used by the international law to use the penalty as an exception – allows for the increase of doubts and cast its shadows on the whole justice system and there are grave political, social and psychological consequences for those verdicts and the implementation of death sentence.

The concern relevant to the death penalty is that it constitutes in itself a penalty whose effects cannot be remedied following its implementation; in addition, the excessive use of the penalty is a violation of Egypt’s international obligations under the International Covenant on Civil and Political Rights, which limits to the maximum the use of this excessive penalty, and is inconsistent with the international trend towards abolishing the penalty or at least suspending its implementation.

It is worth mentioning that more than 500 people sentenced to death for committing common criminal offenses remained in prison for periods that exceeded five years and reached up to 15 years in some cases; implementation rate of the death sentence is around an average of 15 persons per year, which indicates that the country has the capability to improve the rate of the suspension of the execution of the sentence in full or reduce the annual implementation rate.

In addition, some of the facts revealed that over the past three years there was excessive use of the death penalty. Thousands have been punished by the death penalty, which has given a very negative picture in Egypt. It has been difficult to show that the vast majority of those verdicts have been issued in absentia and they were cancelled once the accused restarted the appeal proceedings and appeared before the court.

There are hundreds of people who were sentenced to death in presentia (about 600 to 700); however, the death sentences have been overturned by the Court of Cassation, which ordered retrial, and only supported a very limited number of sentences.

It was noted that Dar Al-Iftaa had played an important role in limiting the implementation of death sentences in some cases. Although the opinion of the Grand Mufti of the Egypt remains advisory, his opinion is an indispensable mechanism in the issuance of death sentences. Some criminal courts[3] canceled death sentences against convicted defendants based on the rejection of the Mufti.

The decision by the President of the Republic to reduce the death penalty against a convicted person[4] also made it possible to refer to the possibility of reviewing sentences through the mechanism of ratification and implementation of sentences.

This confirms the availability of opportunities for creating possible positive trends for conducting important transformations that do not reduce the measures of protecting the State and community and enhances the legislative reforms of the criminal justice system as a whole.

There are also clear statements by judges in official and non-official forums relevant to refraining from succumbing to any social, political or media pressures to use the law to impose the death penalty on terrorism suspects, as well as the explicit rejection of any violation of the rights of the defense or the judge’s discretion of weighing evidence and hearing of witnesses, as well as the seriousness of interference in the role of the Court of Cassation as it is a body that passes judgments regarding verdicts and not the content of the case, without prejudice to the general structure of the basic laws (the Criminal Procedures law and the Penal Code).

Certainly, any path followed to address exceptional circumstances must include a strong, impartial and independent justice system that does not succumb to external or internal pressures and does not meet temporary demands, in addition to the need to respect and protect human rights principles; the excessive use of stringent penalties such as the death penalty, in relation to exceptional circumstances related to combating terrorism, should not be the general trend. In light of the above, we urge the Egyptian legislators to intervene quickly and to review the arsenal of laws that allow for the issuance of death penalty and to find alternatives to them to ensure justice. Practically speaking, there is no escape from reducing the application of the death penalty.

Second: Brief presentation of a memorandum of proposals to amend some articles of the Criminal Procedures Law

Within the context of the contributions provided by the Arab Organization for Human Rights, the researcher participated as a representative of the organization in the conference of amending the Criminal Procedures Law. The memorandum[5] was presented to the Higher Committee for Legislative Reform and submitted for discussion.

The Organization had the honor to submit the following proposals, which have been accepted in principle by the Technical Secretariat of the Conference, the members of the Committee and the experts present, with the possibility of including them, after their consideration and appropriate drafting by a committee entrusted with drafting all proposals to the anticipated draft Criminal Procedure law or any relevant laws:

Proposals:

These proposals are linked to the long-standing judicial institutions of the Arab Republic of Egypt, that maintain established traditions and legislative systems that have a transboundary impact, as well as the rich and diverse expertise of those well-established Egyptian judicial institutions, whose laws enshrine high levels of independence compared to their counterparts in the region; they turned this independence into reality through the actual practice even in the most difficult stages, and they are expected to make use of their full legal independence in accordance with the entitlements emanating from the current Constitution, without ignoring the need to adopt a Criminal Procedures law that is in line with the amendments expected under the Constitution to allow for the right to challenge verdicts through the appeal of criminal verdicts within the coming seven years at most.

 

  1. Provisional detention

Provisional detention is an exceptional measure that contradicts with the original rule of “liberty”; in this sense it is not a requirement in itself unless there is a necessity to take a precautionary, “preventive” measure.

The law is based on sustainability and not meeting an emergency or urgent needs that have the inherent nature of abating after some time.

The excessive use of provisional detention at this timing, as part of measures to combat crimes, in general, and terrorist crimes and corruption offenses, in particular, is a kind of emergency requirement that a sustainable law cannot meet, especially if it is a governing law like the Criminal Procedures law.

Considering the fact that provisional detention constitutes a real penalty for accused persons who might be proven to be innocent, and taking into account the legal, economic, social, psychological and cultural consequences of pre-trial imprisonment of the accused in the current Egyptian cultural context,

The organization proposes the following:

  1. The proposed amendments shall provide the necessary controls to limit the use of provisional detention only to the minimum extent possible and in light of the presence of aggravating circumstances that are commensurate with the nature of the offense in the first place and proportionate with the availability of sufficient evidence and legal indications found in the results of preliminary investigations, research, and criminal and forensic reports.
  2. Considering alternatives to provisional detention to mitigate the consequences of the excessive use of it on detention facilities, such as house arrest, restriction of freedom of movement to a particular district and travel ban if necessary, subject to judicial review within reasonable time limits.
  3. The urgent abrogation of the temporary law No. 83 of 2013, which made the period of provisional detention indefinite as per the amendments of 2006.

The organization noted that the Criminal Procedures law, in accordance with the results of its application, – in various world countries- is routinely reviewed at close intervals, usually not exceeding 10 years, with a view to strengthening the legal safeguards to be enjoyed by the accused and reducing burdens imposed on the suspects and their families.

2 – Compensation for the wrong decisions of provisional detention

In various justice systems across the world, many criminal cases result in the acquittal of defendants, whether due lack of evidence or insufficient evidence, or for a variety of other reasons.

In view of the nature of the measure of provisional detention as a penalty that has the previously mentioned effects, and taking into account various world experiences,

The organization proposed the following:

  1. To guarantee the right of the accused who are finally proven to be innocent to claim compensation, unless the accused contributes to the failure to defend himself (by remaining silent for instance); compensation may be obtained through a bilateral reconciliation contract in the event of agreement or through a judicial proceeding to be submitted to the competent court.
  2. To set up necessary criteria for the valuation of the compensation for the provisional detention taking into account the acquittal resulting from the lack of evidence supporting the indictment decision and acquittal resulting from insufficient evidence, as the jurisprudence of the Egyptian Penal Code adopts the rule that doubt in evidence and proofs is interpreted in the benefit of the accused.
  3. The provisions of the final acquittal verdicts shall be published in the Egyptian official Gazette in a way that redress “moral injury” of the accused who are finally proven to be innocent.
  4. Considering the establishment of a “special” fund for the settlement of compensations resulting from provisional detention; the Fund shall be financed by (1) the State Treasury; (2) annual allocations by the supreme judiciary council from the judiciary system budget

5 – The management of the special fund referred to may conclude an agreement and contract with a company or companies working in the field of insurance to provide the value of compensation granted to defendants who were subjected to provisional detention and are finally proven to be innocent.

3 – Appealing orders issued by the investigative authority

Articles 162 and 210 of the Criminal Procedures law prohibit the plaintiff from appealing the order issued by the examining magistrate or the Public Prosecutor’s Office unless it is issued regarding a charge against a public official or a member of the prosecution for an offense committed during the performance of his or her duties or due to them.

This prohibition constitutes a form of favoritism towards the members of the judiciary system, and denies the plaintiff the right to appeal orders issued by the examining magistrate,

On the other hand, the legislators limited the scope of this right to the plaintiff and not the victim, which entails the loss of the rights of the victim who did not initiate civil case proceedings before the investigating authority.

Therefore the organization proposes the following:

  1. The necessity of allowing for initiating an appeal against the order issued by the investigating authority to the effect that it is not possible to initiate a criminal lawsuit by the plaintiff or the victim whose circumstances did not allow him to initiate a civil lawsuit proceedings before the issuance of this order.

4- Bail

Taking into consideration the accumulated experiences of the implementation of releasing the accused on bail which is a discretional power of the investigation authorities, the current economic and social conditions as well as the prevailing financial burdens.

The organization proposes the following:

  1. Establishing standard criteria for the valuation of the financial guarantee to be determined for the release of the accused so as to be commensurate with the nature of the offense, the level of evidence and proof, level of financial solvency and professional background.
  2. Hearing witnesses

In connection to attitudes expressed in draft laws submitted during the past years, the trend of some media and in view of the necessities indicated in the context of combating terrorist crimes and achieving the desired legal and judicial deterrent,

The organization wishes to shed light, in this regard, on the risks that would undermine the right to a fair trial, especially if the attitudes would seriously affect the obligation of the court to accept the defendants’ defense request to hear “defense witnesses“.

 

  1. Protection of witnesses

Witnesses protection has been one of the key common demands during the past five years, especially as it is considered one of the requirements of justice in some of the issues that include crimes committed by previous regimes against citizens, corruption crimes and terrorist crimes.

In view of the ongoing efforts to issue a special law for the protection of witnesses according to the constitutional requirements of issuing a law for the protection of witnesses and informants,

The organization proposes the following:

  1. The Criminal Procedures law may adopt specific measures to provide protection for witnesses in a way that enhances the efforts of law enforcement officers aiming at arresting perpetrators and holding them accountable, without prejudice to the right of the accused and their lawyers to have access to evidence, indications and the possibility of refuting them.
  2. The decision to protect witnesses in necessary and exceptional cases shall be a “judicial decision” issued on the recommendation of the competent head of the prosecution and shall be submitted to the head of the competent court of appeal for giving his decision in this regard. Neither of them may delegate this power.
  3. The Criminal Procedures Law provides for the establishment of a special judicial department for the protection of witnesses; it shall be concerned with special measures relevant to the protection of certain witnesses in exceptional cases. The competency of this department shall be granted by a special decision issued by the head of the competent Court of Appeal.

The organization proposes to draw on the experience of the ICC’s Witness Protection Department, which by its nature brings together diverse expertise from various global experiences and best practices followed in this regard.

  1. It is not permissible to incarcerate a person for misdemeanors resulting from financial debts for non-payment of public services fees

According to the directives of the state relevant to boosting the market economy during the last quarter of the last century and in light of the prevailing economic conditions, many local administrations have taken administrative detention measures on the movables of people who are unable to pay public services fees (water, electricity, sanitation) and they have taken criminal measures through filing misdemeanor cases for non-payment of debts.

And in line with the international standard of the non-validity of issuing freedom-depriving penalties in debt crimes, as well as the type of crimes that fall within the framework of a “public debt”, and in view of the constitutional and legal responsibilities of the state, and in light of the political trends expressed through the efforts exerted to release the “imprisoned defaulting debtors”,

The organization proposes the following:

  1. It is inadmissible to issue a decision of imprisonment in this type of cases.
  2. Giving recommendations to the High Committee for Legislative Reform to take the necessary measures to introduce amendments to the Penal Code to prevent implementation of freedom-depriving penalties in cases arising from failure to pay fees of public services provided directly by the State or through private companies entrusted to provide such services.
  3. Accelerating investigations

Previous experience indicate that the judicial assistance agencies may take long time in order to be able to fulfill their responsibilities in implementing the decisions of the Public Prosecutor’s Office. This leads, in cases in which the defendants were decided to be put in custody, to prolong the period of detention and thus does harm to the accused,  and make the state bear larger expenses.

The organization proposed the following:

  1. Setting time limits for the judicial assistance bodies to complete their work within 20 days in misdemeanors and 30 days in felonies after the date in which the investigating authority issues its decision.
  2. The period of the mandate of the judicial assistance body may not be extended except through a decision issued by the competent attorney general and upon a reasoned request submitted by the head of the competent judicial assistance body. This extension shall be valid only for half of the original period, that is to say an additional 10 days in misdemeanors and additional 15 days felonies.
  3. Reinforcing the right to defend the accused

The right of the accused to be represented by defense constitutes a fundamental cornerstone of the legal protection guarantees, as confirmed by the legal jurisprudence, and has been noted by to the directions of the Egyptian legislators in the current legal system.

A basic gap emerges and it has three features:

(1) The right of the accused to appear before the investigating authority in the presence of his lawyer, (2) to enable the lawyers to meet the accused privately; and (3) the right of lawyers to have access to the investigation documents.

Despite the guarantees provided by the law for the rights of the defense, there is an urgent need to strengthen the provisions relevant to these basic guarantees of the accused, in particular in relation to decisions of provisional detention issued in certain cases in the absence of the lawyer of the accused, as well as the period of time necessary to obtain an official copy of Investigations and case documents before and during the trial.

  1. Streamlining travel ban measures

In light of the accumulation of practical experience, and resorting in emergency situations and special conditions to issuing travel bans in connection with ongoing investigations and the general desire to regulate such measures in a way that does not violate the requirements of justice, on the one hand, and does not represents arbitrary prejudice to the rights of the accused and suspects, on the other,

The organization proposes the following:

  1. Determining the nature of the offenses for which a travel ban may be issued against the accused.

2 – The necessity of notifying the suspects of issuing the travel bans against them at a reasonable period of time that does not exceed three days.

3 – The necessity of conducting a judicial review of the travel bans issued by the Public Prosecution within a reasonable period of time not exceeding ten days, regardless of whether the person who is prohibited from traveling challenged the decision of the Public Prosecution or not.

  1. The travel ban automatically expires once a decision is passed by Public Prosecution to shelve the investigations or to drop charges, unless the person is referred to a court which necessarily addresses the decision whether by extending or cancelling it.

The Organization has provided a list of attachments and references submitted to the Committee, the most prominent of which are:

  1. International Covenant on Civil and Political Rights.
  2. General comments of the United Nations Commission on Human Rights to follow up the implementation of the International Covenant on Civil and Political Rights (9, 10, 11, 13, 15, 16, 17, 18 and 21).
  3. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Penalty.
  4. Guidelines on the role of prosecutors.
  5. Code of Conduct for Law Enforcement Officials.
  6. The Minimal Standard Rules for the Treatment of Prisoners.
  7. Guide on Political Values ​​and Human Rights, 2009 Section one (Dignity).
  8. Guide on human rights for judges, prosecutors and lawyers.

 

[1] Based on article 54, 51, 53, 55, 56, 57, 58, 59, 99 of the constitution and considering the content of article 226

[2] The necessity that the sentence should be unanimously passed by the court judges (article 381/2 criminal procedures)

[3] A news item 1( for this reason, the Mufti refused the execution of this person in the case of Hurgaga Tourist) the website of Cairo portal, September 19th 2016, news item 2( Al Watan monitors: “one case in which the Mufti rejected the execution of members of the Muslim Brotherhood since June 30th), Al Watan, May 16th 2015, the news item includes that the Mufti rejected to approve the execution of 13 members of the Muslim Brotherhood in the case of Istikama mosque and the final verdict became life sentence based on the report of the Mufti.

[4] A news item (Al Sisi issues a decree for alleviating the death sentence of a citizen from Abo Tisht to imprisonment.

[5] It was discussed in the conference of amending the criminal procedures law in the “workshop on the research and human rights, civil society” held during the period from 9 to 15 January 2017