The Legislative Committee of the Egyptian Parliament held a meeting to discuss the new draft of the Criminal Procedure Law, prepared by a subcommittee of the Legislative Committee. This comes as Cairo prepares its report on the state of human rights in Egypt, which will be presented in the Universal Periodic Review before the United Nations Human Rights Council in Geneva next October.
The new law draft coincides with escalating protests over the increasing crisis of pretrial detention in Egypt, particularly since the Criminal Procedure Law has not undergone significant amendments since its last version 74 years ago. The law was issued in 1950 under Law No. 150, and the last amendment was made in September 2020. However, the law has become the subject of widespread controversy among human rights circles and the public after the authorities expanded the use of pretrial detention and the number of detainees increased.
On social media platforms and in the corridors of the courts, lawyers have increasingly expressed their anger over a leaked draft of the new law, raising questions about several articles they described as “catastrophic.” Comments focused on Articles 69 and 72 of the law, criticizing the dominance of the Judges’ Club in drafting special legislation and making amendments to the law without consulting representatives of the Cairo Bar Association, which is an essential party to any amendments that should be made. The “Problems of Egypt’s Lawyers” page commented on the two articles in a post, questioning: “Article 69 of the law opens the door wide for the prosecution to conduct investigations in the absence of the parties, while Article 72 of the law prohibits lawyers from speaking unless permitted by the prosecutor and only allows for written defense submissions. This represents a flagrant violation of defense rights and individual freedoms.”
According to the leaked draft of the law, Article 69 states: “The accused, the victim, the civil rights plaintiff, the civilly liable party, and their representatives may attend all investigative procedures. The public prosecutor may conduct the investigation in their absence if he deems it necessary to uncover the truth. Once this necessity is over, they may review the investigation. In urgent cases, the prosecutor may carry out some investigative procedures in the absence of the parties, who have the right to review the documents recording these procedures. The parties may bring their representatives to the investigation.” Article 72 states: “The parties and their representatives may submit to the public prosecutor the defenses and requests they deem appropriate. Otherwise, the representative of the party may not speak unless authorized by the public prosecutor. If the prosecutor does not authorize it, this must be recorded in the minutes.”
Comments from human rights activists, civil society workers, and politicians have surfaced in recent days, criticizing the articles on pretrial detention, referring to the unresolved issue of prisoners of conscience, despite the recommendations from the National Dialogue sessions praised by some decision-makers and pro-government politicians. President Abdel Fattah El-Sisi has issued orders to refer these recommendations to the government for study and implementation.
Human rights lawyer Mohsen Behensy told Zawia3 that the current draft law has sparked the same controversy as the amendments known as the “Adly Mansour Law” in 2013, which limited the duration of pretrial detention to two years. He described the new draft as “ridiculous” and disconnected from the harsh reality of Egyptian courts and prisons. He considered the National Dialogue “fragile,” stating that it should not be believed as long as those behind it do not acknowledge that the Adly Mansour Law, which is still in effect, was only issued to pursue the Muslim Brotherhood at that time and has contributed to the assassination of public freedoms and civil rights.
Human rights lawyer Mamdouh Gamal commented on the proposed law’s provisions concerning lawyers’ attendance at investigations. He said, “What Article 531 of the draft law stipulates is a grave violation of defense rights, as it states that the defendant’s lawyer may be present with him at his location, during remote investigation and trial procedures, and in all cases, the defendant and his lawyer may not be separated during these procedures. This means that lawyers will carry out their work from reform and rehabilitation centers (formerly prisons) and police stations, not from courtrooms and the public prosecution, making the defendant’s defense subject to the authority of public officials and constituting a severe violation of the constitution and the Law of Advocacy.”
Concealing Witness Data
The proposed amendments to the new Criminal Procedure Law, compared to its previous version, revolve around several aspects: formal amendments by replacing some phrases with others, which do not result in any legal effect; formal amendments by merging some articles together, which also do not result in any legal effect; and formal amendments by changing the numbering of chapters and articles. Additionally, there are substantive amendments transferring the direct handling of investigative procedures from one authority to another, which have legal implications, and another substantive amendment involving the inclusion of entities representing the Ministry of Health as a party in the link to achieving criminal justice.
There is also a substantive amendment concerning the concealment of witness data from the defendant and his defense, and another substantive amendment involving the introduction of remote communication means in criminal procedures. Finally, there are amendments concerning the increase in the cost of litigation fees.
Broadcasting and Publication Restrictions
The first substantive amendment that raises questions is in Article 15 of the draft law, which states that the Court of Cassation or the Criminal Court in its two degrees may initiate a criminal case against the perpetrator under Article 13 if “acts” committed outside the session could influence the witnesses or disrupt court orders. Article 13 permits the first-instance Criminal Court to include new defendants in the case and refer them to the public prosecution for investigation.
Human rights lawyer Mamdouh Gamal said, “Under the amendment, the court’s authority extends outside of its jurisdiction if it believes there are external influences that could affect the proceedings, without precisely defining the term used. Does this mean the internet, the streets, or newspaper pages and websites that follow the case and carry out their journalistic duty?” He pointed out that this article might pose a future obstacle for journalists and increase the number of publication cases before the courts, necessitating the Journalists’ Syndicate’s comment on this article and other articles that restrict journalists’ freedom to practice their work in judicial matters. He believes that if the law is applied, the court will have the right to punish journalists, citizens, or lawyers if they publish information about cases without prior authorization.
The articles that could restrict the work of journalists and lawyers, according to Gamal, include Article 266, which states that court proceedings may not be broadcast or transmitted by any means without written permission from the presiding judge after obtaining the public prosecution’s approval. Article 267 also prohibits the publication of news, information, discussions, or debates about the proceedings in a manner that could affect the course of justice. It also emphasizes the prohibition of mentioning any data related to judges, prosecutors, defendants, or witnesses in terrorism cases, with violations subject to penalties under Article 186 bis of the Penal Code. This article states, “Without prejudice to any more severe penalty, a fine of not less than 100,000 pounds and not more than 300,000 pounds shall be imposed on anyone who records, broadcasts, publishes, or displays by any means of publicity the proceedings of a criminal trial session without the permission of the presiding judge after consulting the public prosecution.”
Heir Penalties and Fund Seizures
The new draft law’s Article 146 stipulates that the expiration of the lawsuit due to the defendant’s death before or after the trial does not prevent the court from issuing a judgment, ordering repayment against the heirs and legatees, making the right enforceable on their funds proportionate to the benefit received.
Additionally, Article 143 grants the public prosecution the right during investigations—when it deems the evidence sufficient for the accusation—to order the seizure of the defendant’s funds, which is then submitted to the competent criminal court for endorsement. The court may, upon request from the public prosecution, include in its judgment any funds belonging to the spouse, minor children, or heirs. Article 144 clarifies that objections to the order to seize funds may only be raised three months after the judgment. Articles 147, 148, and 149 authorize orders for travel bans or inclusion on watch lists for a period of one year, renewable for similar periods, if sufficient evidence of the accusation exists that warrants detention.
According to the new articles, these provisions mean that travel bans and asset seizures will be enforceable during investigations once the law is enacted, even if the defendant has not been convicted after the trial. Commenting on this, Mamdouh Gamal said, “The phrase is newly introduced in the proposed law and does not exist in the current law. However, there is a known law on asset seizure in private law that the public prosecution has relied on in some cases in the past.”
Home Inviolability and Searches
It is worth noting that the proposed law, in several articles—according to lawyers we spoke with—contradicts the Egyptian Constitution of 2014, amended in 2019, in its Article 35, which states: “Private property is protected, and inheritance rights are guaranteed. It is not permissible to impose guardianship on it except in the cases specified by law and by judicial order. Property may not be expropriated except for public benefit and in return for fair compensation paid in advance, in accordance with the law.”
In the new draft law’s Article 24 bis, the legislator added that “every person entrusted with maintaining public order, security, and public morals… and, in particular, preventing and detecting crimes,” is considered a public authority officer, granting public authority officers across the country the power to enter homes, not limited to judicial officers. To reinforce this, the legislator specified in Article 46 the circumstances under which homes may be entered, emphasizing their inviolability and prohibiting eavesdropping, surveillance, or entry without a judicial order. The current law only allows home entry without a warrant in emergencies such as drowning or fire, which require intervention—some examples are provided in the law as guidelines. However, Article 47 exempts public authority officers from this requirement, stating that they have the right to enter homes without a judicial warrant and expands the definition of danger or distress without providing specific illustrative examples or a precise definition of these situations.
Gamal considered the provisions regarding home searches to be disastrous, previously limited to judicial officers. However, the amendments grant public authority officers the right to enter homes without a warrant, and if an officer suspects the defendant or any of his relatives or friends are present, they have the right to take precautionary measures under Article 49, raising questions about the nature and scope of such measures. “Does this mean they can arrest or search them?” This implies that the matter is now subject to the discretion of public authority officers rather than the citizen’s distress call and request for assistance, which constitutes a clear and dangerous violation of the constitutional provisions that guarantee personal freedom and the inviolability of homes.
Increased Fines and Costs
The proposed draft law is notable for the increase in fines and litigation costs. According to Gamal, the costs have become exorbitant, with the cost of reconsideration of a final judgment reaching around 10,000 pounds ($208), up from 200 pounds ($4.17) previously. Additionally, the fees for recusal requests, which involve requesting a judge’s removal, were previously symbolic but may now reach around 10,000 pounds ($208) under the new law. Furthermore, the request can only be submitted once during the trial, with multiple requests requiring multiple guarantees, and the guarantee is forfeited if the recusal request is denied. The court hearing the recusal request may also impose a fine of 10,000 pounds ($208) on the applicant if it is determined that the request was made in “bad faith,” according to Article 247 of the law.
The fines imposed on witnesses who do not appear before the prosecution have also increased under the proposed law, with the prosecution now entitled to fine those who refuse to take the oath up to 2,000 pounds ($42). If a witness fails to attend due to a claimed illness that is later proven false, the prosecution may request that the misdemeanor court sentence the witness to imprisonment for up to one month or a fine of up to 2,000 pounds ($42), according to Articles 95 and 96 of the proposed law.
A paragraph was added to Article 289 stipulating that those who falsely claim forgery in bad faith shall be punished with imprisonment for up to two years and a fine between 5,000 and 10,000 pounds ($104 to $208) or one of these penalties. The minimum fine for misdemeanors not punishable by imprisonment has also been raised to 20,000 pounds ($417), up from 1,000 pounds ($21) in the current law. The proposed law also mandates that an administrative penalty must be issued for violations and misdemeanors punishable by a fine of no more than 5,000 pounds ($104), previously 500 pounds ($10), under the current law.
The fine for a defense attorney who fails to attend court sessions has also been raised to about 300 pounds ($6.25), up from 50 pounds ($1.04) under the current law. The fine for the absence of the appellant or his attorney at the appeal hearing has also been increased to a maximum of 1,000 pounds ($21). The bail required for filing a reconsideration request has been raised from 5 pounds ($0.10) to 5,000 pounds ($104), and if the request is rejected, the fine rises to 5,000 pounds ($104) as well. The proposed law adds that if a person is held in pretrial detention and sentenced only to a fine, 50 pounds ($1.04) should be deducted for each day served during the sentence’s execution. If the defendant is sentenced to community service, the value of each day is also set at 50 pounds ($1.04) (a low value given the rising costs and current economic conditions, which some lawyers we spoke with consider biased towards the authorities—especially since the law stipulates significant increases in other fines but does not favor the defendant in this regard, as it does not specify the number of working hours or days without reference to applying the provisions of labor law or the minimum wage). Article 476 of the law states that if the court rejects the appeal for lack of seriousness, the fine shall be 500 pounds ($10).
Pretrial Detention
Under the proposed draft law, the maximum duration of pretrial detention may be reduced, with the maximum in misdemeanors being four months instead of six months, in felonies 12 months instead of 18 months, and in felonies punishable by life imprisonment or death 18 months instead of two years. In all cases, pretrial detention may not exceed 24 months. These amendments regarding the reduction of duration have been welcomed by some who are concerned with pretrial detention in Egypt, as they see them as positive.
In the proposed draft law, the legislator regulates the rules and procedures for pretrial detention, granting the prosecutor the authority to issue a pretrial detention order for four days in misdemeanors and felonies punishable by imprisonment for not less than one year. If the prosecutor deems it necessary to extend the pretrial detention, it must be done by a judge’s order after hearing from the defendant and the prosecution for periods not exceeding 15 days each and not exceeding a total of 45 days.
Lawyer Mohsen Behensy comments: “Every lawyer now knows that the defendant must complete 150 days in pretrial detention while the investigation is ongoing in the prosecution, as the detention is renewed for 15 days repeatedly through video screens, creating a disconnect between the defendant and his lawyer, especially in cases of opinion and politicians.” He pointed out that there have been instances where the detention has been repeatedly renewed without the presence of a lawyer, under the pretext that the defendant did not appoint a lawyer and that the Bar Association did not cooperate, and the prosecution could not find a lawyer. In some sessions, the lawyer is allowed to enter at the end of the investigation only to give the procedure a semblance of legality. He emphasized the need for a special schedule for appointing lawyers from the General and Regional Bar Associations to refute these excuses, and that the Bar Association should participate in discussion sessions on the law before it is enacted.
He questions whether the proposed law will put an end to the practice of reusing pretrial detainees in other cases. Behensy points out that the proposal does not sufficiently address the amendments related to terrorism cases, nor does it discuss the public prosecution’s oversight in pretrial detention cases and the justifications for continuing the defendant’s detention, questioning whether this is limited to police investigations without strong evidence.
Between Supporters and Critics
The Justice Support Foundation at the Arab Center for the Independence of the Judiciary and the Legal Profession commented on the proposed draft, noting that it has been under preparation since 2017 but has not been issued for various reasons. The Foundation emphasized that reducing the duration of pretrial detention “becomes meaningless as long as the provisions of the Anti-Terrorism Law, with its broad exceptional powers regarding pretrial detention, remain in place, especially Articles 40-42-43 of this law, which allows for the disregard of the rules of the Criminal Procedure Law related to pretrial detention periods, and even establishes new procedural rules different from those stipulated in the Criminal Procedure Law.”
The Justice Support Foundation also stated in its statement that the draft does not contain a clear and decisive guarantee to prevent the continued phenomenon of reusing pretrial detainees in other cases to justify their continued detention. It called for the law to be subjected to public discussion before being presented to Parliament so that the real stakeholders—lawyers, judges, civil society institutions, human rights organizations, criminal law professors, and representatives of long-term pretrial detainees—can participate. It also called for the repeal of the procedural provisions of the Anti-Terrorism Law or any other laws issued in the last ten years, relying solely on the general rules set forth in the Criminal Procedure Law.
MP Karim El-Sadat, a member of the Human Rights Committee in the Egyptian Parliament, praised the draft in a statement, describing it as a reflection of the National Human Rights Strategy and a response to the outcomes of the National Dialogue on pretrial detention. Meanwhile, Negad El-Borai, a member of the National Dialogue Board of Trustees, commented on his Facebook page, saying: “I had no doubt about President Sisi’s support for the objective and consensual vision reached by the National Dialogue on prolonged and repeated pretrial detention; once again, I call on the Attorney General to take the necessary measures to release those whose detention has been prolonged or to refer them to trial if the public prosecution has sufficient evidence for that. I also call on Parliament to consider the National Dialogue’s recommendations on pretrial detention, travel bans, and asset freezes and to take them into account when discussing the new Criminal Procedure Law. We must close this chapter and move forward to the future.”
