JURIST Guest Columnist Mohamed ‘Arafa of Alexandria University (Egypt) and Indiana University Robert H. McKinney School of Law, discusses the recent Egyptian criminal court’s order of a retrial of Muslim Brotherhood followers and whether the Egyptian criminal justice system should reform to stop the violation of international human rights …

Recently, an Egyptian Criminal Court ordered a retrial for some of the Muslim Brotherhood’s followers convicted in a mass trial in 2014. Some of them were sentenced to the death penalty, and others were punished to life imprisonment for their criminal roles in the violent criminal activities against Coptic Christians and their houses of worship along with murder, attempted murder, threatening public order and scorching some police stations. The attacks are believed to be considered as retaliation’s intent for Egyptian security services’ forceful scattering of the exiled Islamist President Mohammad Morsi from Office in a popular coup lead by the general public and supported by the military. In the summer of 2014, an Egyptian criminal court in El-Minya confirmed interim death verdicts imposed after a speedy trial that cruelly breached the defendants’ due process guarantees rights. In this regard, it was significant for the Egyptian’s judiciary to assure that all of the defendants have a quick retrial in accordance with international law principles, especially regarding the fair and just trial standards.

Under the Egyptian criminal justice system, and according to Egyptian Criminal Procedural Code No. 150 [PDF] of 1950, the country’s attorney (prosecutor) general along with the defendants have the option to spontaneously appeals death penalties to the mahkmet al-naqd Supreme Court (Court of Cassation), which can order a retrial and if the retrial results in the same ruling, the defense attorney may again ask the court to grant a retrial procedure. According to Article 2 of the Egyptian Constitution 2014, “Islam is the State’s religion … and the principles of the Sharie’a is the principal source of legislation.” In light of this provision’s interpretation, the law of God requires that intentional and serious criminals be put to death which means the lex talionis (equality principle) through satisfying the victims’ feelings and then social peace will maintain. Some very classical Islamic scholars argued that Islamic norms are immutable, based on the Supreme Constitutional Court’s decision in 1991 on the interpretation of the Sharie’a values. However, the court believes that the Sharie’a law include “relative” philosophies and “updated or modern” doctrines which are capable of being adjusted within the social future development through ijtihad (individual reasoning) and Qiyyass (analogy) and without any paradox to the main maqasid or darouriat (objectives or bulk) of the Sharie’a law (protection of mind, religion, life, property and prosperity). In this domain, the most conventional religious jurists go as far as to claim the renovation of the death penalty for all crimes specified in the Qur’an (e.g., adultery) and others moderate Islamic intellectuals argued for the restoration of the diyyahh whereby criminals can be pardoned (forgiven) by their victim’s family by giving them compensation (damages).

The original trial was in obvious defilement of the Egyptian constitutional rules, human rights and international law standards. Egypt’s constitution stipulates that all those accused of a criminal offense are “presumed innocent until proven guilty in a fair legal trial in which the right to defend oneself is guaranteed” (presumption of innocence [PDF]). The Egyptian Constitution does not refer to corporal punishment, but confirmed a certain number of guarantees concerning the respect of individual public rights and freedoms, and it proscribes arbitrary detention and torture and reads that every person “should be judged swiftly by an independent justice and has the right to legal assistance by one’s chosen defense attorney [PDF].” Further, “any citizen arrested, detained or whose freedom is restricted shall be treated in a manner concomitant with the preservation of his dignity. No physical or moral harm is to be inflicted upon him. He may not be detained … except in places defined by laws … [p]risons. If a confession is proved to have been made by a person under any of … duress or coercion, it shall be considered invalid and futile.” Moreover, [the] “[P]enalty shall be personal. There shall be no crime or penalty except by virtue of law. No penalty shall be inflicted except by a judicial order. Penalty shall be inflicted only for acts committed subsequent to the promulgation of the law prescribing them.” The first trial has been violating all of these concepts which represents a direct transgression to the international standards in which Egypt committed to, such as the Universal Declaration of Human Rights (“UDHR”) and the International Covenant on Civil and Political Rights (“ICCPR”).

On the other hand, the Egyptian Penal Code along with the terrorism laws defines terrorism as:

[A]ny recourse to force, violence, threats or intimidation falling within the context of a criminal itinerary [criminal conspiracy] by an individual or a group aimed at disrupting public order, risking public security and safety, if this results in injuring, terrorizing individuals or endangering their lives, freedoms, security or causing damage to the environment, means of transport [communication], public or private property, … [or] hindering authorities, places of worship, … from carrying out their functions, or deterring the application of the [c]onstitution, laws or regulations.

International activists described this statute, as very imprecise yet broad wording, can be abused since it includes an extensive and vague definition of terrorism and can therefore interpreted and serves to increase various sorts of crimes punishable by death. The problem is the deep flaw on “terrorist offenses” term is that possibly permit the authorities to bring a terrorism case against any peaceful activist that infringes mainly the right to free expression, dents safeguards against torture and arbitrary custody, does not overtly state that “confessions” extracted under torture are null and disqualified as criminal evidence and expands the scope of application of the death penalty. The death penalty can be inflicted only for the gravest crimes, according to legal and constitutional procedures. In sum, this sentence can only be applied by virtue of a final verdict about a crime punishable by death at the time of its commission.

The Penal Code sets this punishment for various crimes. Legally speaking, crimes of this punishment are tried by the criminal circuits of the Courts of Appeal in which the criminal rules does not offer a fair system of reasonable administration of justice which constitutes a breach of the UN Safeguards ensuring defense of the rights of those facing the death sentence. The Penal law obliged the court to pass the case file to the Mufti (religious leader) for his opinion, before pronouncing this sentence decision to make sure if it is compatible with Islamic criminal law rules or not. Therefore, the public prosecutor must refer any case resulting in this penalty to the Supreme Court as a memorandum, recording his opinion and within 60 days following the ruling of the penalty which must have been given in the presence of the defendant. The court’s appeal should be done:

[I]n three months of its being lodged and the court must give its decision within a maximum of two months after the appeal has been heard. In all cases, the appeal process postpones the execution. If the appeal is accepted, the court may decide to set aside the verdict appealed or submitted to it for its opinion by the prosecution and to send the case back to the court of first instance for a retrial and if the appeal rejected, the ruling becomes final and the death penalty activate.

In Egyptian law, execution can be postponed by retrial’s request, as the right to demand a retrial belongs exclusively to the prosecution, the defendant [or legal representative, etc.]. The retrial request is only admissible:

[I]n case of a sentence for murder and when it turns out that the victim is still alive; when, after sentencing, a new verdict sentences another accused for the same crime; when one of the witnesses who has been heard was, subsequent to the sentence, tried and sentenced for perjury against the accused; when the decision is based on a judgment which was later annulled and when, after sentencing, a fact is produced or comes to light, or when evidence not known at the time of the hearing is produced and is of such nature as to establish the innocence of the accused.

In case that an appeal or retrial request has denied, the justice minister systematically refers the case file to the president to approve the ruling or grant pardon. Sometimes, these abuses are tolerated by the authorities, under the cover of ensuring public order and national security and that considers a severe violation of universal norms, especially concerning the Convention Against Torture and Inhumane Punishment.

In conclusion, and for practical considerations, it is highly recommended that the Egyptian legislature to adopt a cessation policy on executions, as a first step to abolish the death penalty in most cases—unless it seems significant in some situations—in conformity with the international instruments. Additionally, restraining various misconducts punishable by death to those which have serious or lethal consequences according to universal ideals is suggested. Also, ensuring the observation of the Code of Criminal Procedure on those sentenced to death, by counseling them of the decision of the court, setting up a legal remedy to appeal the judgments of the State Security Criminal Courts and guarantee that the conditions of detention for those punished to death and all other prisoners, are harmonious with the respect to human dignity. Further, training criminal judges and law enforcement officers to stand with the principle of inadmissibility of confessions obtained under torture, as provided in the domestic legislation and international jurisdiction along with supporting projects of the Egyptian civil society organizations. Exceptional measures, which are flagrant ruins of human rights should be banned and criminal laws should be more precise in defining the concept of “terrorist activities” then, and only then, there is no need to worry about the punishment’s legality.

As a question on the Sharie’a on the death penalty eradication, and based on the constitutional’s moderate interpretation of Islamic norms, as Islam should familiarize to the fluctuations which have come about since the Prophet Mohammad’s period, addressing Talion Law is an outdated practice which should be swapped by the legislature and the judiciary to end up the debate on death penalty not only in Egypt but also in the Islamic world. For decades, reprisal no longer institutes the basis for punishment, as any development appears to aggregate law’s secularization, the purpose of which is to isolate the Prince’s law from God’s law. Regrettably, the rise in various forms of fundamentalism is not favorable to this expansion.

Egyptian policy of patronage and nepotism has further compromised justice independence. As with other state bodies, the judiciary is fashioned by favoritism, and the selection process is far from meritocratic (e.g., judges’ family members or relations are often appointed to judgeships even poor academic credentials that exclude them). Under this status quo, if the judiciary continues generate “special circuits” within the regular criminal courts to try high-profile cases and targeting specific individuals via speedy trials that will lead to non-independence, more demoralized judiciary and will influence the outcome of the legal cases. Fortuitously, Egypt’s judicial system is far from monumental and is made up of several magistrates dedicated to crafting an autonomous judiciary that can defend Egyptians from government manipulations and reserve order. But until the rules overriding the judiciary are adjusted to pry it away from the presidency and Justice Ministry, Egypt’s heritage of impartiality is condemned to be a detached past and nothing more than an echoing talent.

Dr. Mohamed ‘Arafa, is an Assistant Professor of Criminal Law and Criminal Justice at Alexandria University Faculty of Law (Egypt) and an Adjunct Professor of Law at Indiana University Robert H. McKinney School of Law at Indianapolis. ‘Arafa focuses his teaching and scholarship in Criminal Law; Criminal Procedures; White Collar and Corporate Crimes; and recently, Islamic Law; Islamic Criminal Law; International Criminal Law; International Human Rights Law and Humanitarian Law. ‘Arafa is a member of the Council on International Law and Politics; The American Bar Association (ABA); The ABA’s Dispute Resolution, Business Law and Educational Committees Program; and The Egyptian American Rule of Law Association (EARLA). His scholarship can be accessed at his author’s page.

Suggested Citation: Mohamed ‘Arafa, Egypt’s Judiciary: Reform in the Criminal Justice System or Violation of International Human Rights Law?, JURIST – Academic Commentary, Jan. 31, 2015, http://jurist.org/academic/2015/01/mohamed-arafa-egypt-judiciary.php.