Criminal Procedure Law to be fully amended for 1st time since 1950s

CAIRO - 2 August 2017: Egypt’s Criminal Procedure Law, which is known as the country’s second constitution, is scheduled to witness a full amendment after the government has forwarded a draft of 320 articles to the parliament for discussion, which will mark the first full amendment of the law since the 1950s.

Parliament will hold three extraordinary sessions to discuss the law on August 2, 8 and 9, with Minister of Justice Mohamed Hossam Abdel-Rahim and General Prosecutor Nabil Sadek in attendance, Baha Abu Shuqa, the head of Parliament’s Legislative and Constitutional Committee, announced on Monday.

In a phone interview, Ahmed Helmy El-Sherif, the deputy of the committee, told Egypt Today that the three sessions are extraordinary since the parliament is not set to convene until October, and that these sessions are being arranged only for the aim of holding discussions about the full amendment of the Criminal Procedure Law.

The three sessions will be divided as follows: The first will be for hearing the views of the judicial authorities’ members, the second for hearing the views of law professors specialized in criminal law from different universities across the nation, and the third will be dedicated for hearing the views of lawyers.

The discussion over the law will continue throughout the months of August and September, to be looked at in a general session during the first week of the third legislative round that will start in October.

During the discussions, the attendees will provide their comments and views over the government’s draft articles and also over the currently enforced law of 1952. The committee will submit the draft law to be studied by the judges, who must then send their comments on it within 15 days. These comments and views will be considered during the committee’s final discussion over the law, said Ihab el-Tamaway, a member of the committee.

The law originally consisted of 560 articles, and has been summarized to 320 articles. The draft includes 44 articles newly added to the law and 150 articles being replaced, El-Tamawy added.

Over the past few years, the law has witnessed a total of 20 partial amendments, but has never been fully amended, stated the cabinet in July, according to state-run Al Ahram newspaper. In November 2014, President Abdel Fatah al-Sisi had approved amendments to the law in absence of the parliament, which had resumed its session in 2016. Moreover, a number of articles were previously amended in 2003.

Recently in April, the parliament approved amendments to a number of the law’s articles, which were submitted by MP Salah Hassaballah of the Egypt Support coalition. The amendment focused on improving some regulations for concluding terrorism-related cases.


Why will the state amend the law?

Abu Shuqa explained that the state is aiming to reach new regulations appropriate for criminal procedures, as there are “defects and obstacles in the current proceedings in Egyptian courts” due to the presence of “sterile laws”, privately-owned Shorouk newspaper reported.

He also said that there are a number of crime cases involving drugs, violence and weapons that could go through many stages of trial; however, there have been new systems adopted to improve such situations.

Inside courts, a group of defendants involved in the same case could be handed different penalties, and if referred to another judicial panel, the whole group could be acquitted; therefore, moderate legislation is required for prompt and fair justice, he continued.

Abu Shuqa, who is also judicial counselor, indicated that there are some conditions in courts related to verdicts and trial proceedings, along with other issues, that need to be modified through a full amendment of the Criminal Procedure Law.

“The law should be amended in accordance with modern systems to suit the current condition,” Abu Shuqa concluded.

Egypt Today contacted a number of prominent law experts to inquire about reasons behind the law’s amendment and about major issues of the current law.


Separation between investigations and charges

“The law should be fully amended to ensure limiting obstacles hindering the process of fast litigation; not only some articles. Apparently, the criminal judiciary is witnessing a number of problems that have caused reasons for slow litigation,” prominent lawyer Essam El-Eslamboly said.

At the top of the suggested amendments, El-Eslamboly said that the law should separate between entities that investigate and those that make charges, explaining that the prosecution became the entity investigating defendants and also bringing charges against them.

For more explanation, lawyer Ihab Ramzy said, “We have long been calling for determining the role of the prosecution as investigation only, and then referring their reports to a judicial advisor to evaluate the case and decide if it should be referred to court.”

“The prosecution is already the opponent of the defendants in the courts, so there should be a judge to evaluate its reports against the defendant”, Ramzy, who was also former MP, said.

The lawyer indicated that the separation between both authorities will make the number of cases being sent to courts that remain pending for a long time more manageable.


Sentence in absentia

Article 394 of the Criminal Procedure Law stipulates that sentences issued in absentia by the criminal court shall not be dropped until the completion of the duration of the sentence. This indicates that the criminal record would remain, but the punishment would be dropped following the end of the sentence’s time of duration, even if the defendant did not serve it.

El-Eslamboly is against this article, saying that each defendant should be held accountable in accordance with the law and should serve the sentence, as many individuals flee without being punished over their crimes due to this regulation.


No reconciliation with defendants

According to Article 18 of the law, it is permissible to reconcile with defendants accused of criminal offenses and misdemeanors punishable by law after the payment of a fine. El-Eslamboly commented on this, saying that no reconciliation should occur with defendants, as they could be facing suspended sentences only.


Criminal appeals

Ramzy explained that the criminal court is the only court that does not handle appeals, as the defendants have to wait until the final verdict is issued and then file an appeal before the Misdemeanor Court; however, the 2014 Constitution has stipulated a number of articles aiming to assist appeals in criminal courts.

Constitutional Article 240 stipulates that “the State shall ensure providing financial and human resources necessary for appealing the judgments issued by criminal courts on felonies within 10 years from the date on which this Constitution comes into effect. The foregoing shall be regulated by law.”

This indicates that the state has to offer judicial circuits, increasing the number of judges and providing expenses for special courts, the lawyer explained.

Similarly, El-Eslamboly said that there are a number of constitutional articles that could be activated to update the law, and there were four attempts to change the law, but all failed and never even had an opportunity to be discussed.

He also said that the new law should determine phases of the litigation process and its duration, so that cases could be concluded promptly and justly. He further mentioned that there are dozens of cases that are kept pending in court for years.

Additionally, there are some legal conditions that need to be more regulated, such as pre-trial detention, travel bans and fast litigation, El-Sherif said.


Calls for the law amendment

Previously, a committee of Egyptian university law professors appointed by the Ministry of Justice made a number of suggestions regarding amendments to the law for achieving fast litigation, including the cancelation of handing out sentences in absentia, urging that this is an obstacle in the path of the fair and prompt trials, Osama Abed, professor of criminal law at Cairo University, said previously to the Parlmany news website.

On July 11, Minster of Legal and Parliamentary Affairs Omar El Khattab Marwan Arafa declared that the government has referred an integrated draft law on criminal procedures to the State Council for review before submitting it Parliament for discussion.

President Abdel Fatah al-Sisi called on the judicial system to amend the Criminal Procedure Law following the deadly bombing of St. Peter and St. Paul’s Church that took place in December 2016. Sisi had also made the call following the assassination of General Prosecutor Hesham Barakat in June 2013.

Moreover, throughout recent years, there have been calls raised by law experts and several media and public figures to amend the law in order to improve the condition of the criminal judiciary.

The parliament’s second legislative round concluded on July 5, and it aims to look into a number of pending laws, including the Criminal Procedure Law, during the upcoming round.