A press conference titled “Towards a Fair Code of Criminal Procedure” was held yesterday, Thursday, at the headquarters of the Egyptian Initiative for Personal Rights in Dokki, Giza. The conference addressed the reasons for rejecting the draft Code of Criminal Procedure in its current form, and discussed the proposed amendments drafted by a group of human rights defenders and lawyers, with the aim of strengthening justice and guaranteeing litigants’ rights.
The working group, which met at the invitation of the “Defa – Khaled Ali Law Office” and was hosted by the “Al-Haq Foundation for Freedom of Opinion and Expression – Tarek Khater and Shady Amin”, with the participation of about 28 lawyers, men and women, worked over 15 workshops to discuss the bill proposed by the House of Representatives’ Constitutional and Legislative Affairs Committee, according to human rights lawyer Khaled Ali as he introduced the press conference.
The working group concluded that fundamental amendments must be made to the bill proposed by Parliament’s legislative committee. The group took into account the possibility that the House of Representatives would approve discussing the bill in principle, which prompted them to draft alternative texts and proposals for the current bill covering 184 articles out of no fewer than 540 articles in the bill, which the group presented in a complete file of 50 pages, including a table comprising the text of the bill proposed by the legislative committee, the text of the current Code of Criminal Procedure No. 150 of 1950, and the group’s proposed amendments by deletion and addition.
The working group sent a copy of the proposed amendments file to President Abdel Fattah al-Sisi, Speaker of Parliament Counsellor Hanafy El-Gebaly and Minister of Parliamentary and Legal Affairs and Political Communication Counsellor Mahmoud Fawzy, while the amendments will be presented to members of Parliament in the coming few days in the hope that they will be considered and discussed, according to lawyer Khaled Ali.
The Importance of the Code of Criminal Procedure
Human rights lawyer Nada Saad El-Din explained in her speech at the press conference the importance of the Code of Criminal Procedure, which is one of the two pillars of the criminal justice system based on the Penal Code and the Code of Criminal Procedure, which are inseparable.
She stated that the Penal Code defines crimes, their elements and the appropriate penalties, but this remains an abstract theoretical framework unless matched by an effective procedural organisation that moves the Penal Code from a state of stillness to a state of application, which is the role played by the Code of Criminal Procedure.
The Code of Criminal Procedure regulates two matters. The first is the bodies entrusted by law with carrying out criminal procedures, which are multiple and succeed one another in role and function. The principle of separation between the authorities carrying out criminal procedures, out of keenness to guard against tyranny and provide guarantees for individuals, required this multiplicity of bodies as described above.
The human rights lawyer explained that these bodies, arranged according to the stage of the procedures in which they intervene, are the judicial police, the Public Prosecution or the investigating judge, the trial judiciary and the penal enforcement authorities. The Code of Procedure regulates the formation of each of these bodies and defines its competence. As for the second matter, the Code of Criminal Procedure contains the rules governing the work of each of the above bodies, and these rules vary according to the stage the procedures have reached. Criminal procedures pass through the following stages (evidence-gathering, then preliminary investigation, and finally the trial stage, “which includes appeals against the judgment”), and the stage of executing the penalty or precautionary measure.
In general, the basic role of the law is to transform the state’s public policies and goals into effective legislative rules that achieve justice among citizens, “and with a quick look at the articles of the bill and comparing them with the Constitution and international conventions, we found that there are constitutional violations and that the bill diminishes guarantees that already existed in the current law No. 150 of 1950.”
Guarantees and Cases of Danger
Lawyer Abdallah Abdel Karim said that the group concluded in its discussions during the working sessions to reject the bill in principle, and identified no fewer than 15 reasons for this rejection.
Abdel Karim mentioned four reasons for rejecting the bill. The first reason is that it does not meet the aspirations of the Egyptian people, especially as more than 70% of the bill’s structure repeats rules contained in the current Code of Criminal Procedure, while the new bill diminishes the guarantees provided by the current law, such as the definition of cases of danger that allow entering citizens’ homes without the permission of the Public Prosecution or the consent of their owners, which the Constitutional Court ruled unconstitutional, as well as the serious consequences the new bill attaches to judgments in absentia. The second reason concerns the judicial officer in Article 25 of the current bill, as it expands the powers of judicial officers nationwide and grants them broad powers, including investigative work in Articles 31, 39 and 36, including administering oaths, questioning witnesses, arrest and summons, and interrogation, which constitutes a reduction of the Public Prosecution’s work in favour of judicial officers.
According to Article 25 of the bill, judicial officers throughout the republic are (directors, officers, sergeants, assistants, supervisors and police delegates, non-commissioned officers and security assistants in the National Security Sector of the Ministry of Interior and its branches and offices nationwide, in addition to directors, officers, sergeants, assistants, supervisors and police delegates, non-commissioned officers and security assistants in the Public Security Sector of the Ministry of Interior and in the investigation departments and sections of the Ministry of Interior, as well as officers of the Community Protection Sector of the Ministry of Interior, the director of the General Administration of Transport and Communications Police and the officers of this administration, the commander and officers of the Police Camel Corps, and inspectors of the Ministry of Tourism). By decision of the Minister of Justice in agreement with the competent minister, some holders of public office may also be granted the status of judicial officers with regard to crimes occurring within their jurisdiction and related to the work of their positions.
In contrast, the group, in the amendment it submitted, limited judicial officers to police officers at the Ministry of Interior, given their familiarity with the legal texts on arrest, search, entering homes and investigative work, according to Abdel Karim, who noted that the failure to apply the minimum wage is one of the most prominent reasons for rejecting the law, as the bill in its Articles 465 and 472 allows detainees to work for EGP 50 a day, a total of EGP 1,500 a month, which is inconsistent with the minimum wage approved by the President, estimated at EGP 6,000 a month. The group demanded in its amendment the application of the announced minimum wage for workers under the Civil Service Law.
The fourth reason for rejecting the bill, according to Abdel Karim in his speech, is that it opens the door to the defendant and his defence not hearing and questioning prosecution witnesses under Articles 519, 520, 521, 522 and 526. He noted that the bill mixes procedural and substantive provisions: although the Code of Procedure regulates procedures from the commission of the act until the judgment, some articles included rulings, and the bill also mixes procedural and punitive provisions, whereas the law should have contained only procedural articles and left penalties to the Penal Code.
Abdel Karim explained that the current bill does not oblige the Public Prosecution to enable the lawyer to review the case papers, and limits the lawyer’s speech during investigations to pleas, requests and oral observations, and the lawyer may be deprived altogether of hearing and questioning prosecution witnesses, who may be the reason for the arrest and conviction of the defendant. The bill also opens the door to preventing the lawyer from doing his job in completing the defence’s pleading under the heading of digression, repetition, necessity and other elastic terms included in Articles (73, 105, 242, 274) of the bill.
Pretrial Detention
Human rights lawyer Mahienour El-Masry said in her speech at the press conference that pretrial detention was the main selling point the state relied on in the bill submitted to Parliament, as there is a big crisis related to the duration of pretrial detention, which we agree on, but Chapter Seven of Part Two of the bill, which dealt with reducing pretrial detention periods, included a set of obstacles that completely eliminate the advantages of reducing pretrial detention periods, “which prompted us to amend ten articles of the bill, including one article that we deleted entirely in the amendments, Article 116, which gave the prosecution free rein in powers.”
Mahienour added that precautionary measures, including the electronic bracelet, should come first instead of pretrial detention, and there may be a pretext that financial resources are not available to provide this alternative, but in reality the economic cost the state bears in continuing to hold defendants in pretrial detention is higher than what it might bear in providing alternatives to pretrial detention.
The group deleted in its amendments part of Article 112 of the bill, which permitted the use of pretrial detention, as there were four reasons, including the crime being in flagrante delicto, fear of the offender’s escape, or fear of harming the interest and course of investigations, in addition to guarding against serious disruption of security and public order, “which is the part we deleted because it is undefined and elastic and can be used to expand pretrial detention”, according to the human rights lawyer.
She explained that the group introduced another amendment to the same article, from (a member of the Public Prosecution of at least the rank of prosecutor may, after hearing the defendant’s defence, issue a reasoned order to hold the defendant in pretrial detention for a maximum period of four days) to (a member of the Public Prosecution of at least the rank of prosecutor may, after hearing the defendant’s defence, issue a reasoned order for one of the following precautionary measures: obliging the defendant not to leave the governorate in which he resides or his home depending on the circumstances of the crime; and second, obliging the defendant not to frequent specific places, for a maximum period of four days). “We also submitted an amendment allowing an electronic bracelet to be placed in a non-visible place on the defendant’s foot instead of allowing the defendant to be held in pretrial detention if he has no fixed and known place of residence and the crime is a felony or misdemeanour punishable by law.”
The human rights lawyer pointed out that the working group deleted Article 116 entirely in its amendments, as it expanded the powers granted to the Public Prosecution at the expense of the natural judge. The article gave the prosecution the power of investigation, monitoring means of communication, detention orders, travel bans and asset freezes without a maximum limit.
Article 116 of the bill stipulates: “Members of the Public Prosecution of at least the rank of chief prosecutor, in investigating the felonies stipulated in Parts One, Two, Two bis, Three and Four of Book Two of the Penal Code, shall have, in addition to the competences established for the Public Prosecution, the power to authorise by a reasoned order, for a period not exceeding 30 days, the seizure of letters, messages, telegrams, newspapers, printed matter and parcels, and the monitoring of wired and wireless communications, social media accounts and their various contents not available to all, email, and text, audio or video messages on phones and devices and any other technical means, and the seizure of the media containing them, or the recording of conversations held in a private place, whenever this is useful in revealing the truth.” She noted that the article did not oblige the prosecution to a specific time period to dispose of the case, which means compensating for the opening of pretrial detention periods by keeping the case open, resulting in defendants’ lives being put on hold, making the law merciful on its surface but full of obstacles beneath.
One Link in a Chain of Rejection of the Bill
The amendments made by the working group towards a fair Code of Criminal Procedure came as part of attempts that began when the bill was announced and continue to this day, including those of the Journalists Syndicate, which announced its rejection of the bill and called for it to be put to societal dialogue before its issuance.
The Journalists Syndicate had sent to MPs who are members of its general assembly its commentary on Parliament’s response to its observations on the Code of Criminal Procedure. The syndicate called on the journalist MPs to adopt its position and defend a law that protects the rights of journalists, the rights of society and the freedom of citizens, and also called on them to work to open a broad societal dialogue on the draft Code of Criminal Procedure in which society participates, to produce a law that meets the aspirations of the Egyptian people for legislation that represents the backbone of the judicial system and affects every individual in society.
The response included a letter from the head of the Journalists Syndicate, Khaled El-Balshy, to Counsellor Dr Hanafy El-Gebaly, Speaker of the House of Representatives, and a 47-page legal paper titled “The Journalists Syndicate’s Observations on the House of Representatives’ Response Regarding the Draft Code of Criminal Procedure”, prepared by the legal committee formed by the syndicate.
The paper sent by the Journalists Syndicate included four main observations, comprising clear responses to the observations not covered by the House of Representatives’ response to the syndicate’s first paper, namely those related to “the constitutional defects and violations in the bill, which go so far as to nullify its effect because of its contravention of the articles of the Constitution and the international human rights conventions ratified by Egypt and published in the Official Gazette”. These run to about twenty pages, despite the clear reference to nearly (42) articles of the bill marred by constitutional violations or clearly contravening the provisions of the International Covenant on Civil and Political Rights or other international human rights conventions signed by Egypt.
In contrast, the House of Representatives scheduled on its agenda next week the continuation of discussion of the Constitutional and Legislative Affairs Committee’s report on the draft Code of Criminal Procedure, in principle.
It is worth noting that a number of bodies participated in drafting and discussing the bill, including the Supreme Judicial Council, the Public Prosecution, the State Council, the Senate, the Ministries of Justice and of Parliamentary and Legal Affairs and Political Communication, the National Council for Human Rights, the Bar Association and the Egypt Judges’ Club.
