At the end of last year, in a surprise move, the name of Counsellor Hamada El-Sawy, the former Prosecutor General, came to the fore following his appointment as head of one of the terrorism circuits. It was soon announced that the circuit he heads would be assigned to hear felony appeals after the law was amended, so that a defendant accused of a felony would have the right to appeal the first-instance ruling before the cassation stage, just like misdemeanours. This raised questions about the legality of this assignment and of that appointment!
When I first read the news of Counsellor Hamada El-Sawy’s appointment as head of the circuit, I remembered a situation I faced at a hearing before one of the terrorism circuits some time ago. I was then defending a defendant who had been held in pretrial detention for more than four years, in violation of the law, as the Code of Criminal Procedure stipulates that: “In all cases, the period of pretrial detention during the preliminary investigation stage and the other stages of the criminal case may not exceed one third of the maximum custodial sentence, such that it does not exceed six months in misdemeanours, eighteen months in felonies, and two years if the penalty prescribed for the crime is life imprisonment or death.” When I reviewed the legal articles and presented my defence, the presiding judge of the circuit told me: “What can I do? You should raise this matter with the Prosecutor General and the prosecution!” At that time, Counsellor Hamada El-Sawy was still the Prosecutor General.
I remembered the scene and recalled it in my mind, imagining that it had taken place before Counsellor El-Sawy, trying to work out what my answer would have been then. He is the very Prosecutor General who ordered the detention of the defendants I am defending, so how can he rule on renewing their detention or releasing them? More precisely, how can he hear the cases that were referred while he held the post of Prosecutor General, when he is the one who investigated them and decided to bring their defendants to trial? And now he is the one who will decide whether they are guilty or not. I was very surprised, but I reminded myself that anything is possible, for we are in Egypt!
What Stages Do Lawsuits Go Through Before Reaching the Final Trial?
Lawsuits go through three stages. The first is the evidence-gathering stage, and although procedurally it is a stage handled by judicial officers, under the Judicial Authority Law the Public Prosecution alone supervises its procedures, and it is carried out under its directions.
The second stage is investigation and verification, and the Public Prosecution alone has jurisdiction to investigate cases (investigation here means trying to reach the truth, whether it is in the defendant’s favour or against him). It is notable that the Public Prosecution here combines the powers of accusation and investigation, which is a further violation of the philosophy of separating the two powers, since the investigator must be neutral, which cannot happen in this case. That is why legal experts call and demand for the powers of investigation and accusation to be separated.
After that, the third stage begins: referring the case to the judiciary and pursuing it before the court. The prosecution alone has the right to refer the defendants in a criminal case to trial when it has sufficient evidence suggesting that the defendant committed the offence attributed to him. In this case, the Public Prosecution is the adversary of the defendants, demanding the imposition of the appropriate penalty applicable to the act in question, and it also has the right to examine witnesses.
Based on the above, the Public Prosecution is indeed involved in all stages of the case up to the moment the verdict is pronounced on the defendants in the criminal case. While it supervises the first stage (evidence gathering) and carries out the second stage (investigation), it cannot dominate the third stage (trial); rather, it becomes a party adverse to the defendant and his lawyer. So I wonder what could happen when one of the members of the Public Prosecution in a case is himself the judge who will rule on it?
It is unimaginable that this could happen, but on the ground this is what is actually happening, since the Public Prosecution acts as the agent of the Prosecutor General in carrying out its work. The Prosecutor General himself therefore becomes an adversary in all the cases investigated and referred during his tenure; that is, he is the one who decided to investigate the defendants, the one who ordered their detention, and also the one who considered the defendants guilty and decided to bring them to trial to be convicted.
The Texts of the Law
Article 247 of the Code of Criminal Procedure stipulates that: “A judge may not take part in hearing a case if the crime was committed against him personally, or if he acted in the case as a judicial officer, or performed the function of the Public Prosecution or of defence counsel for one of the parties, or gave testimony in it or performed any expert work…”
These are the limits of judicial impartiality in hearing cases. If any of these legally stipulated grounds is violated, the trial is void and, of course, the ruling issued is void. A judge must recuse himself from hearing cases if one of the grounds for disqualification applies to him; this is possible when a member of the Public Prosecution is promoted to the post of judge and a judge hears a case he himself investigated.
Applying the law, the case applies to the Prosecutor General himself; that is, he is an adversary and is not fit to hear any of the cases that began during the four years of his tenure. Is it likely that he will recuse himself from all these cases, or is the decision to appoint him contrary from the outset to the law, logic and the philosophy of impartiality? Let me ask whether whoever took the decision to appoint him head of the said circuit was aware of all these legal articles that contradict it, or whether he deliberately ignored them, just as he deliberately ignores all the provisions and legislation of the law?
Cases Under Deliberation
The terrorism felony court sitting at Badr prison is currently hearing a number of cases, the substantive ones among them being: “Case 26 of 2021; Case 670 of 2017, with 111 defendants; Case 1360 of 2019, in which journalist Ahmed Sebaie and 37 other defendants are accused; Case 1660, with 64 defendants; and Case 1766, in which human rights defender Moaz El-Sharkawy is accused”.
All these cases were investigated or referred to the felony court while Counsellor Hamada El-Sawy held the post of Prosecutor General; that is, he himself conducted the investigation with the defendants and decided to detain them, then referred them to criminal trial to be sentenced, in addition to a number of cases that have been referred or will soon be brought to trial. After the approval of felony appeals, it is expected that the appeals of all the defendants in those cases will be heard by Judge Hamada El-Sawy.
Finally, the role of the Prosecutor General and the separation of his authority from the judiciary is a fundamental principle of the legal system and a guarantee of impartiality, transparency and judicial independence. This separation prevents overlap between authorities, preserves the balance of the judicial system and ensures trust in the Egyptian judiciary. How can defendants trust their judge and their trial when they know that the person who will rule on them is the very one who decided to detain them?
Judicial independence is the doctrine affirming that judicial decisions must be impartial and not subject to government influence, that the judiciary must be independent of material and moral influences, and that it must take its decisions on the basis of the law without unlawful interference. In my opinion, these constitutional and legal principles cannot be guaranteed while this situation continues. If everything depends on one person who alone has the right to gather evidence, assess it, investigate the facts, refer and pursue the case, then the absence of criminal justice will become an inescapable reality. So I ask: how many defendants will have their right to a fair trial without prior bias violated?
Opinion articles do not necessarily reflect the views of Zawia3.
