Trial Proceedings in Criminal Cases before Egyptian Courts-Youssry Saleh

Trial Proceedings in Criminal Cases before Egyptian Courts

Youssry Saleh & Partners   1 Sep 2020   190 Views
Trial Proceedings in Criminal Cases before Egyptian Courts

Trial proceedings in criminal cases before the Egyptian courts are regulated by the Criminal Procedure Law No. 150 of 1950 and the amendments thereof. Before introducing these proceedings, criminal case and crime in brief are:

  • Criminal Case: It is the set of procedures taken by the Public Prosecution, in its capacity as the representative of the Egyptian State, as of the moment it was notified of the crime until the issuance of a final verdict, whether of conviction or acquittal, for the purpose of requiring the judiciary to apply the provisions of the Egyptian Criminal Law.
  • Crime: The law did not provide a specific definition for the crime, as views differed in this regard, but the prevailing opinion defined the crime as every unlawful act stemming from a criminal intention on which the law imposes a penalty. Crimes are divided in the Penal Code No. 58 of 1937 according to their seriousness and dangerousness, and then a penalty is determined for each type according to its dangerousness. In general, crime is divided into three sections according to its seriousness and dangerousness, which are as follows (felony, misdemeanor, and contravention) according to Article (9) of the Penal Code. The point in determining the type of crime is based on the penalties determined by the law and on this basis the determination is made. With reference to the Penal Code, the following is found:
    • Felonies: are the crimes punishable by the following penalties (imprisonment, rigorous imprisonment, life imprisonment, and capital punishment) pursuant to Article (10) of the Penal Code. The law has also stipulated that the penalty for the felony shall start from 3 years up to 15 years, and some felonies are punishable by capital punishment.
    • Misdemeanors: are the crimes punishable by the following penalties (detention, and a fine the ceiling of which exceeds one hundred Egyptian pounds) pursuant to Article (11) of the Penal Code. In many cases, misdemeanors are punished with financial penalties, and the law has stipulated that the penalty for the misdemeanor shall range from 24 hours to 3 years.
    • Contraventions: are the crimes penalized with a fine the ceiling of which does not exceed one hundred Egyptian pounds pursuant to Article (12) of the Penal Code.
  • The Egyptian legislator has regulated the procedures of initiating criminal cases through a set of legal rules based on the principle of respect for personal freedoms, which is guaranteed by the Egyptian constitution. Criminal Procedure Law has been divided into four sections as follows:
  •  Book I: The Criminal Case, Evidence-gathering, and Investigation.
  •  Book II: Courts.
  •  Book III: Ways of Challenging Judgments.
  •  Book IV: Enforceable Judgments.
  • In this article, we will review briefly the trial proceedings in criminal cases before the courts, on the following basis:-
  • Proceedings shall be initiated before the criminal courts if, after the stage of evidence-gathering and investigations, it is concluded that the crime is either a felony, misdemeanor, or contravention, and that the evidence is sufficient against the accused, where the case is brought before the competent court (Article 63 of Criminal Procedure Law), on the following basis:
  • Competent Court:
  1. The competent court is determined according to the type of crime, as follows:
  • In the matters related to contraventions and misdemeanors, the case is filed by summoning the accused person to appear before the district court. The district court shall have jurisdiction over each act that is deemed by law to be a contravention or a misdemeanor, unless the crime is one of the misdemeanors that are committed by means of newspapers or other means of publication – with the exception of misdemeanors causing damage to individuals, in such a case the Public Prosecution shall directly refer them to the criminal court. The case in felonies shall be referred by the Attorney General, or those acting on his behalf, to the criminal court in the form of an indictment report submitted to the criminal court stating the crime and the elements thereof, all the circumstances aggravating or mitigating the punishment, and the articles of law to be applied; also, a list of the witnesses statements and evidentiary materials shall be attached thereto. The Attorney General shall, on his own motion, appoint an attorney-at-law for each person accused of a felony and against whom an order is issued for referral to the criminal court if the accused person has not appointed his own attorney-at-law in accordance with Articles 214, 215, and 216 of the Egyptian Criminal Procedure Law.
  1. The competent court is determined in terms of location according to the following:-
  • Pursuant to the provisions of Articles 217, 218, and 219 of Criminal Procedure Law, the spatial jurisdiction shall be determined according to the area where the crime was committed, or where the accused resides or is arrested. In case of attempting to commit a crime, it shall be deemed committed in every place where an act initiating the commission of such crime is carried out. In continuing crimes, any place where the state of continuity occurred shall be deemed a crime scene. In the cases of habitual and successive crimes, any place where any act which is part of such crime is committed shall be deemed a crime scene. If a crime, to which the provisions of Egyptian law applies, is committed abroad, and the perpetrator has no residence in Egypt nor was he arrested therein, the criminal lawsuit shall be filed against such perpetrator before Cairo Criminal Court; whereas in misdemeanors, a lawsuit shall be filed against the same before Abdeen Court of
  • Procedures of Notifying the Persons Accused and Witnesses:
  1. The Accused:
  • Upon the request of the public prosecution or the civil plaintiff, the persons accused shall be summoned to appear before the court one full day before holding the hearing in contraventions, three full days, at least, before holding the hearing in misdemeanors, and eight full days, at least, before holding the hearing in felonies, excluding travel time. If the accused resides outside Egypt, the committal order and the summons notice shall be served upon him at his residence address, if known, at least one month before the date set to hear the case, excluding travel time. In the event that the accused is caught in the act, or provisionally detained for a misdemeanor, the summons may be issued without specifying a date.
  • The summons document should be served upon the notified party in person or to his/her place of residence through the methods prescribed in in the civil and commercial articles of Procedural Law. If search did not lead to knowledge of the accused’s place of residence, the process shall be handed over to the administrative authority where the accused person had last resided in Egypt. The process of imprisoned persons shall be delivered to the prison governor or whoever in his place. Procedures and methods of serving summons to appear before the court, of the litigants and parties to a lawsuit, are regulated by Articles 157, 232 to 236, Articles 374, 384, 387 of the Egyptian Criminal Procedures Law.
  1. Witnesses:
  • The Criminal Procedures Law regulates the steps and methods of notifying the witnesses to appear before the court, provided that witnesses shall be summoned to appear before the court upon the request of the litigants twenty-four hours before the hearing date in misdemeanors, excluding travel time. Witnesses shall be summoned to appear before the court at least eight full days before the hearing date in felonies, excluding travel time.
  • Witnesses shall be notified in person, or at the place of residence thereof, by the means provided for in the Civil and Commercial Procedural Law. Witnesses may attend the hearing without a notice, upon the request of the litigants.
  • Litigant shall identify the name of the witnesses, the data thereof, and the significance of hearing the evidence thereof. The court decides which witness is necessary to hear his/ her testimony. If the court decides that it is unnecessary to hear the testimony of any of the witnesses, it should justify its decision in the judgment. The court may, during the hearing, summon any person to testify, if necessity so requires, and may order their summons to appear at another hearing. The court may hear the testimony of any person who willingly attends the hearing to present information related to the case. Procedures and methods of summoning witnesses to appear before the court are regulated pursuant to the provisions of Articles 277, 279, 280, 374, and 384 of the Egyptian Criminal Procedures Law.

  • Procedures of Attendance of the Accused:
  • The accused must attend by himself in the misdemeanors punishable by imprisonment, which the law enforces the execution thereof upon the issuance of the judgment. In case the accused who is present in a misdemeanor punishable by imprisonment with immediate effect does not have a lawyer, the court must appoint a lawyer to defend him.
  • In other misdemeanors and contraventions, the accused may delegate an agent to submit his defense, without prejudice to the right of the court to order his personal presence.
  • The law permits the presence of a lawyer by virtue of a limited Power of Attorney in a felony to defend the accused. In case the present accused does not have a lawyer, the court must appoint a lawyer to defend him. Attorneys admitted before courts of appeal or courts of first instance shall have sole competence to act before the criminal court. The attorney commissioned by the investigating judge, the Public Prosecution or the president of the criminal court, may request an assessment of his fees to be paid from the public treasury, if the accused was poor. The court must include such fees in its judgment in the case.
  • In case the litigant who is summoned by law fails to appear before the court, and does not send an attorney, the court may render a judgment in absentia. The court may as well, instead of rendering a judgment in absentia, adjourn the case to a following hearing, and order the re-serving of the summons notice to the litigant.
  • The judgment shall be deemed to have been made in the presence of every litigant present in the court upon calling for the case, even if such litigant leaves the hearing afterwards or fails to appear at the hearings to which the case is adjourned. Law regulates such procedures in Articles 237 to 242, and Articles 376, 377, 380, 381, 384, and from Article 390 through 397 of the Egyptian Criminal Procedures Law.
  • Procedures of Case Hearing and Arrangement of Sessions:
  • The court hearing must be public; however, the court may, in consideration of public order and observation of morals, order the case to be heard in a secret hearing, wholly or partially, or to prevent specific groups from attending the hearing.
  • A member of the Public Prosecution must attend criminal court hearings, and the court must hear such member and decide on the requests thereof.
  • The hearing shall commence by calling the accused, who shall be asked about his forename, family name, profession, place of residence, and date of birth, and subsequently the charge brought against him by committal order or writ of summons, as the case, shall be recited. The Public Prosecution and the civil rights plaintiff, if present, shall then submit their requests. Thereafter, the accused shall be asked to enter a plea. If the accused pleads guilty, the court may be satisfied by such plea and shall render a judgment without hearing the witnesses; otherwise, the court shall hear the prosecution witnesses, who shall be first examined by the prosecution, then the victim, followed by the civil rights plaintiff, then the accused, followed by the civil rights respondent. The Public Prosecution, the victim, and the civil rights plaintiff may re-examine said witnesses in order to clarify the incidents for which they provided testimony during the examination.
  • After hearing the testimonies of the prosecution and defense witnesses, The Public Prosecution, the accused, and all other parties to the case may speak, and in any case, the accused shall be the last to speak.
  • The presiding judge shall be in charge of maintaining order in courtroom, controlling, and directing the session, for the purposes of which the judge may expel from the hearing room any person disrupting its order. In the vent that such person refuses to leave the courtroom and persists in such disorderly behavior, the court may issue an order against such person with imprisonment or fine. If a misdemeanor or a contravention is committed in the hearing, the court may immediately try the accused and render a judgment after hearing the Pubic Prosecution and the defense counsel. Whereas if a felony is committed, the presiding judge shall issue an order to refer the accused to the Public Prosecution without prejudice to the provision of Article 13 of the present law. In all cases, the presiding judge shall write a process-verbal and, if necessary, order the arrest of the accused.
  • If the criminal court believes that the incident, before investigation within the hearing, is a misdemeanor, the court shall, then, have the right to rule with the lack of jurisdiction and remit the case to the district court. On the other hand, if the criminal court does not believe so except after investigation, then it shall adjudge the case. If a misdemeanor case that is in connection with a felony is remitted to the criminal court, where it believes before investigation that there is no relevance, the criminal court shall adjudicate in the misdemeanor and remit it to the district court.
  • A minutes of all trial proceedings must be made, and the signatures of the court president and clerk, on the following date at most, must be affixed on each page thereof. This minutes shall include the hearing date, the hearing is either public or private, the names of judges, clerk, public prosecution member who is present at the hearing, litigants and counsels thereof, witnesses’ testimonies and litigants’ statements. In such minutes, the documents read out and all proceedings undertaken shall be referred to. Also, all requests submitted during the proceedings of the lawsuit, whatever of subsidiary matters, operative parts of judgments issued and otherwise of what happen during the hearing must be written down. All proceedings are being undertaken during the hearing have been regulated in the following articles: from 243 to 246, from 268 to 294 and from 378 to 386 of the Egyptian Criminal Procedure Law.
  • Abdication and Recusal of Judges:
  • The judge shall abstain from taking part in hearing the case if the said case is a crime committed against him personally, or if the said judge acts as a judicial officer, works in a post in the public prosecution, becomes a counsel acting for a litigant, gives a testimony therein or exercise a work related to experts.
  • The judge shall also abstain from taking part in deciding if the judge, within the case, does a work of investigation or reference, or abstain from taking part in deciding an objection if the contested judgment is rendered by the judge.
  • The accused persons are entitled to recuse the judges in the preceding cases and in all the recusal cases laid down in the Civil and Commercial Procedure Law.
  • Members of public prosecution and judicial officers may not be recused. The aforesaid has been regulated in accordance with the provisions of Articles 247-250 of the Egyptian Criminal Procedure Law.
  • Claiming Civil Rights:
  • It is permissible by Law that whoever sustains damage as a result of a crime has the right to claim, before the closure of pleadings and setting a date for adjudication, compensation before the court where the criminal case is heard, given that such are not acceptable before the appellate court. All proceedings related to claiming compensation for whom is inflected with damage as a result of a crime has been regulated in accordance with the provisions of Articles 251-267 of the Egyptian Criminal Procedure Law.
  • Adjudication:
  • The judge shall rule in the case according to a conviction that has been formed in full discretion, and the court shall not be restricted to what are recorded in the preliminary investigation or in the minutes of collecting evidence; however, the judge may not establish the judgment on any evidence that was not submitted during the hearing, and any statement proven to have been produced by an accused or a witness under duress or threat of duress shall not be relied on. If the incident is not proven or not punishable by law, the court shall pronounce the accused innocent, and s/he shall be released if he is imprisoned. If the incident is proven and punishable by law, the court shall sentence the accused to the punishment stated by law. The accused may not be punished for an incident other than the one stated in the committal order or the summons. The court has the right, in its judgment, to change the legal description of the act ascribed to the accused person, and may amend the charge by adding aggravated circumstances established from the investigation or the pleading at the hearing, even if such circumstances are not mentioned in the committal order or the summons. The court has also the right to correct any material error and rectify any inadvertence in the indictment wording stated in the committal order or the summons. The court shall draw the attention of the accused to such change, and grant the accused grace to prepare his/her defense according to the new description or amendment, if the accused so requests.
  • Each accused person who is convicted of a crime may bear the costs incurred, wholly or partially. If the accused is not ordered to bear all the costs, the judgment must specify the amount to be borne by the same. If a judgment is rendered against several accused persons for one crime, the costs ordered in the judgment shall be equally borne by them, unless the judgment states that the said costs shall be apportioned among them or be jointly borne.
  • The judgment must include all grounds upon which the judgment is based, and refer to the provision of law whereby the judgment is rendered. The aforesaid shall be regulated in accordance with the provisions of Articles 300-322 of the Egyptian Criminal Procedure Law.
  • Given that the judgments issued from the criminal courts shall not be executed except if they become final unless otherwise stipulated by law, in application of the Egyptian Criminal Procedure Law. The finality of judgments means that a judgment cannot be objected or appealed even if it can be contested before the court of cassation except if the sentence is given with capital punishment. This is what regulated in Books Three and Four of Criminal Procedure Law, and represented in ways of challenging criminal judgments and enforceable judgments.
  • Based on the aforementioned, it is demonstrated that the trial proceedings held before the Egyptian criminal courts start from the determination of the court that is competent to hear the incident in terms of kind and place, passing through the summonsing of the accused persons before this court, as well as the summonsing of witnesses if necessary, the proceedings related to hearing the lawsuit, the arrangement of hearings and the maintenance of order in the courtroom. The trial proceedings also include how judges are abdicated and recused. Those proceedings also involve matters related to protecting the accused and guaranteeing his/her submission for all defenses concerning the incident ascribed to, aiming at the ascertainment of whether s/he committed the act or not; this is to respect the principle of personal freedom and safeguard citizens’ rights.