The Parliament’s Legislative Committee proposed a new Criminal Procedure Code, amidst a wave of reservations and criticisms from the rights community. On Monday, 16 September 2024, the Cairo Institute for Human Rights Studies (CIHRS) organized a special seminar as part of the activities of Salon Ibn Rushd, titled ‘Legalizing repression: How does the proposed Criminal Procedure Code undermine the Constitution?’ The seminar discussed the proposal’s legal flaws: including its violations of the constitution and its contravention of fair trial guarantees, including the rights of the defense. The seminar was hosted Khaled el-Balshy, the head of the Egyptian Journalists Syndicate; Nasser Amin, lawyer at the International Criminal Court; and human rights lawyer Mamdouh Gamal. It was moderated by Egyptian human rights lawyer Mohamed Zaree.
At first, the speakers agreed that although over forty articles in the proposal violate the constitution, the problem extends beyond the text to the philosophy behind the law itself.
A law of of this importance, the ‘Constitution of Justice’ in the country, should not be prepared away from society and at great speed, al-Balshy warned, as it undermines rights and freedoms. The draft law was prepared by a limited and unrepresentative committee in closed sessions, amidst a complete media blackout.
Nasser Amin considers the Criminal Procedure Law to be the ‘pillar of the justice system’, and a reflection of the political, social and cultural situation in which it is formulated. The proposed law, Amin explained, was drafted hastily and bypassed the constitution to legitimize crimes and violations, while confiscating freedoms and all their guarantees. As the current period is the worst for rights and freedoms in modern Egyptian history, Amin explained, it unfortunately follows that the proposed Criminal Procedure Law is based upon a philosophy of repression, with citizens deprived of their constitutionally guaranteed rights. The proposed law further codifies the exceptional or emergency state and rights violations it allows, rendering exceptional repressive legislation the norm while rendering the norm of rights protections as exceptional. The proposed law explicitly violates the rights of the defense during the litigation process, and clearly violates the rules of appeal. The proposed law expands the powers and authorities of the Public Prosecution, Amin continued, which cancels judicial oversight of its work and blatantly violates an important guarantee for the accused: the right to seek the assistance of witnesses.
Amin further explained how the proposal expands the powers of judicial police officers, who are police officers, in a way that allows them to violate the rights and freedoms of individuals without a judicial basis, and legalizes the violation of the right to privacy. For the first time, the proposal explicitly grants the General Attorney’s Office the right to prevent travel without judicial order and without committing to a specified period. What is even more dangerous, warned Amin, is that the proposed law transfers texts ‘as is’ from the Anti-Terrorism Law. This law thus paves the way for transforming the exceptional articles and laws of the Anti-Terrorism Law, which appeared at a critical moment, into a permanent law.
Gamal explained the danger of the draft law’s alarming expansion of the powers granted to police officers, and the resulting powers related to violating the sanctity of homes and encroaching on personal life, monitoring correspondence and communications, and confiscating private belongings without a judicial order. Gamal added that this further applies to the powers of the Public Prosecution, which the law ‘excessively’ overstepped, disregarding rights violations. Gamal further warned against the way the draft law uses technology in litigation procedures, explaining the danger of the laws articles in regards to remote trials, procedures for renewing detention, or rulings in absentia via electronic platforms, which were resorted to as an exception during the Covid-19 pandemic.
The draft law, Gamal continued, is now attempting to turn these exceptions into a rule while it fails to address other uses of technology that serve the rights of the accused, including the replacement of police surveillance with an electronic bracelet.
El-Balshy discussed the danger of many articles of the proposed law, related to the media, journalistic practices, freedom of information, and the Internet. He indicated that these restrictive articles reflect the legislator’s intent to confiscate freedoms and intimidate media professionals and individuals. EL-Balshy stressed the need to diversify the groups and parties that should engage in the dialogue about the provisions of the law, which affect everyone. El-Balshy cited as an example the current discussion between the Judges and Lawyers Club, and how it could create crises within the courts unless the law absorbs and regulates it, taking into account the reservations and vision of each party.
Amin disagreed with the promotion of the proposed law as a solution to the issue of pretrial detention. Amin explained that the Criminal Procedures Law originally did not expand the pretrial detention periods to two years; its maximum was only 6 months. The amendments to the law in 2006 and 2018, however, expanded the pretrial detention periods to two years. According to Amin, the proposed law now fails to meet aspirations to return to the original Criminal Procedure Law before it was amended. El-Balshy commented that perhaps applying the current texts to the issue of pretrial detention, even after the 2006 and 2018 amendments, would resolve more than 80 percent of the problem. The crisis of pretrial detention is a legal crisis, as hundreds of detainees have exceeded their pretrial detention periods according to the law but remain detained as a result of the prosecution’s violations.
In conclusion, the participants warned of the impact of the proposed Criminal Procedure Law on the justice system in Egypt. Gamal described the impact as catastrophic and potentially leading to a complete loss of confidence in the justice system as a whole. El-Balshy considered the law in its current form, as a law against justice. Amin warned that this draft law would stigmatize the justice system in Egypt as inccompetent, and thus expose it to prosecution or jurisdiction of the international criminal judiciary. Amin added that the proposed law is not compatible with Egypt’s constitution, its international obligations, or international standards for fair and just trials.
Watch the full seminar here:
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