The Egyptian Initiative for Personal Rights (EIPR) welcomes the draft law that would allow – for the first time – felony judgments to be appealed before a second-instance court. It is a  long-overdue step towards implementing a constitutional right, addressing historical legislative deficiencies, and responding to a demand that Egyptian rights organisations and civil society have agitated for for decades. 

EIPR described the draft amendment to the Code of Criminal Procedures, which the House of Representatives discussed in its general session on Monday, 15 January, as being in line with international standards for fair trial and constitutional principles that recognise the right to litigation at two levels.

However, EIPR criticised the government's announcement and introduction of this important amendment less than 48 hours before the expiration of the deadline stipulated in the 2014 constitution, which obligated the parliament to introduce the legal and procedural system for felony appeals within ten years from the date the constitution came into effect. The deadline is set to expire on 17 January.

EIPR stressed the need for urgently implementing the remaining constitutional entitlements that are delayed without reason. These include establishing an anti-discrimination commission; creating the processes for the allocation of the minimum thresholds of government spending on education, higher education, health and scientific research; extending mandatory education to the secondary education level; promulgating a law regulating the assignment of judges; a law on transitional justice, and a law governing local councils and their elections.

Despite the ten-year deadline stipulated in the constitution, the government waited for ten years before suddenly submitting the bill on Saturday, the 13th of January, to the legislative committee of the House of Representatives, which approved it in one session and referred it to the plenary session on Tuesday the 16th, thus forestalling a real discussion or amendment of the bill.

EIPR believes that the delay in the implementation of these constitutional entitlements does not only reflect a disregard for binding constitutional provisions, but also undermines the rights of millions of citizens. Criminal courts have looked into hundreds of felony cases during that ten-year window, during which many sentences – including death sentences – were issued against citizens accused in criminal cases who were deprived of their full constitutional right to litigation and legal defence at two stages. This is a result of the executive and legislative authorities' treatment of the current constitution as a “guiding principles” document rather than a contract binding upon the state towards its citizens.

EIPR praises the House of Representatives' insistence on putting the draft law into force immediately after its approval, rather than wait until the start of the next judicial year in October 2024, as was initially proposed by the government in its first draft of the law. Putting the bill into effect once it is endorsed would allow defendants to enjoy their constitutional rights as soon as possible, and would also allow the Ministry of Justice and courts to step up to its pressing responsibility of restructuring judicial circuits and providing necessary logistical and financial requirements.

EIPR calls on the House of Representatives to reconsider or amend a number of other provisions in the draft law before the final vote on it this week, most notably the assignment of specific circuits within each criminal court to look into state security cases with the obligation to adjudicate them "expeditiously". The experience of dedicating criminal court circuits to exclusively hear those cases and terrorism cases in the past few years has resulted in myriad problems that affected the rights of defendants and violated their right to defence under the pretext of speed. Moreover, there is no need for these specialised circuits to be fixed permanently, given the number of cases referred to them. This arrangement results in a waste of much-needed judicial resources.

Therefore, EIPR backs the amendment submitted in today's session by MP Faridy al-Bayadi, which stipulates that "one or more circuits may be assigned to hear a specific case, or cases related to a specific type of crime", without being obliged to adjudicate them in an expedited manner, and according to the discretion of the general assembly of the competent court of appeal and its president. This would allow for such assignments to be made as needed and for a greater deal of flexibility to allocate judicial resources where there is a need.

The draft law includes an article that allows the criminal court, at both stages of adjudication, to remand the accused and release them on bail or without bail, taking into account articles 142 and 143 of the Code of Criminal Procedures. The EIPR demands that this article include an explicit provision that matches the penultimate paragraph of Article 143 to emphasise that the maximum limit of pretrial detention in all felonies may not exceed 18 months, extending to two years only in case of charges that may carry a sentence of life imprisonment or the death penalty. The aim of this proposal is to prevent courts from using an expansive interpretation of the last paragraph of Article 143, which was introduced by Law No. 83 of 2013 under interim President Adly Mansour to allow the courts of cassation (appeal) and the court of referral after appeal to exceed the aforementioned maximum limits, thus allowing the continuation of pretrial detention for an indefinite period, which mars the law with serious constitutional flaws that require amendment.

The issue of reforming the pretrial detention system has been one of the main points of societal and political debate in the past two years. Thousands of innocent citizens have been held in prolonged open-ended pretrial detention due to the expansion in the interpretation of pretrial detention clauses and  and the application of this inherently flawed clause of the CPC by some circuits during the first stage of trial – not even in the stage of appeal or retrial as mentioned in the article. EIPR stresses that this partial, interim amendment will not address the crisis of pretrial detention that has been going on for a decade. EIPR reiterates previous calls for a comprehensive amendment of all the articles regulating pretrial detention in order to prevent its use as a tool for punishing dissent.

EIPR is concerned over not allowing enough time for discussing this important bill, as well as the uncertainty of implementing it in practical terms. It is mostly concerned that this scenario might recur when drafting the most important bill relevant to the justice system, namely the new Criminal Procedures Codebill, which is being drafted as a proposed replacement for the current CPC,  for the first time since  its issuance in 1950. A joint parliamentary government committee is currently working on the new code in secrecy, releasing infrequent brief statements that do not carry sufficient information. EIPR renews its call for holding public meetings on the code with rights activists, lawyers, judges, experts, representatives of former prisoners, victims of crime, and other interested parties and stakeholders; as the Code of Criminal Procedures is the cornerstone of the entire criminal litigation system.