World Day Against the Death Penalty: 10 October 2020 — Focusing on the Necessity for Effective Communication between Lawyers and Defendants Facing the Death Penalty.
The Egyptian Initiative for Personal Rights (EIPR) takes part in the World Day Against the Death Penalty, which aims this year to highlight the right to access to counsel and the right to effective counsel for those sentenced to death. EIPR engages with the topic through highlighting specific difficulties that have impeded the fulfillment of the right to counsel in a number of cases seen before Egyptian courts, where death sentences have been issued. The case files and investigation papers of these cases were collected and documented by the team between 2017 and 2019. Additionally, we present the opinions of a number of lawyers experienced in criminal cases on the importance of the right to counsel and the difficulties in obtaining this right in Egypt, especially in cases of a political nature. The lawyers present their perspective on the difference between a legal service provided by a private lawyer appointed by the defendant and a court appointed lawyer.
- This paper is divided into two parts; the first part presents the various stages that the defendant goes through - starting with the moment of his/her arrest - and what precedes his/her questioning before a public prosecutor, the investigation stage all the way until the issuance of a judgment against the defendant. This part is based on and refers to documented examples from cases reviewed by the research team, the legal framework regulating the right to defense and to legal counsel and the provisions of the Egyptian constitution guaranteeing the right to a fair trial.
- The second part consists of a series of Q&As with human rights lawyers on the effectiveness of court-appointed legal representation in criminal trials, the extent of its impact on the right to counsel and the supposed form of effective communication between a defendant and his/her lawyer.
In the course of a prosecution a defendant typically goes through multiple stages, which consist of the following: firstly, arrest and detention at police premises. This stage precedes an investigation and is the stage in which the arresting authority collects evidence and prepares an arrest report. In cases of a political nature, 1the defendant is typically detained inside one of the premises of the National Security Agency, where in most cases neither his/her family is notified nor is he/she allowed access to counsel, in violation of the law. Secondly, the defendant is presented to the Public Prosecutor’s Office in order to carry out and complete the investigation. The third and last stage begins the moment a defendant is referred to trial, and continues all the way through the various litigation stages until the court issues its final verdict.
The Egyptian Constitution2 and Egyptian legislation both guarantee a defendant’s right to counsel, and further provide for activating the right to communication between the defendant and his/her lawyer at all stages of adjudication - starting from the early stage of evidence collection. This is in order to allow for consultation on everything related to the charges, the case and final verdicts, for the purpose of ensuring a fair trial. The absence of effective legal representation, especially in a criminal trial which could potentially result in the issuance of the most severe of penalties under Egyptian law, --the death penalty-- is a matter of life or death for an individual, precisely because any error in this case is irreversible. Accordingly, the right to effective assistance and communication with a lawyer is a major pillar of the right to fair trial and of realizing justice and ensuring the rule of law.
PART I: The Egyptian legal framework regulating the right to defense and the right to legal counsel
In addition to the Law Governing the Legal Profession, the Code of Criminal Procedures regulates the right to counsel as part of regulating and ensuring the right to a fair trial and a citizen’s right to access to justice, which are both among the main constitutional rights guaranteed by ِEgypt’s constitution3 as it is the case with other constitutions from around the world.
The Code of Criminal Procedures provides the right to counsel as stipulated in the following articles:
"If the victim's interest conflicts with the interest of his representative, or if he has no one to represent him, the Public Prosecution shall take over this task."
“In cases other than flagrante delicto and a state of urgency out of fear of losing evidence, a criminal investigator may not interrogate a suspect or confront him/her with other suspects or witnesses except after calling his lawyer to attend, if available."
"The lawyer must be allowed to have access to the investigation files the day preceding the questioning or confrontation, unless the judge decides otherwise."
“In all cases, the investigative judge may prohibit communication between an accused detainee and other prisoners and prohibit his visitations, without prejudice to the accused's right to always contact his lawyer without the presence of any person."
As for Law No. 17 of the Year 1983 governing the legal profession, its articles 52 and 53 provide the following:
“The lawyer has the right to view the lawsuits and judicial documents and obtain the data related to the lawsuits he is working on. All courts, prosecution offices, police departments, offices of real estate proclamation and other entities before which the lawyer exercises his profession, must provide him with the facilities required to carry out his duty and enable him to view the documents, obtain the data and attend the questioning sessions with his client in accordance with the provisions of the law. His requests may not be rejected without legal justification.”
"A lawyer who has a permit from the prosecution to visit one of the detainees in a public prison has the right to visit him at any time and meet with him in private and in a suitable place inside the prison."
“The Attorney General shall appoint a lawyer, at his own initiative, for every defendant accused of a felony, and has been referred to trial before a court of felonies, if the latter had not appointed a lawyer to represent him.”
Article 3 (bis) c) of the Emergency Law 4
“The emergency state security district courts may, upon the request of the Public Prosecutor's Office, detain anyone, where there is evidence of him posing a threat to public safety, for a renewable period of one month.”
Even though the Anti-Terrorism Law No. 94 of the year 2015 has expanded the powers of custody over an accused during the stage of evidence collection and has amended many of the procedural matters regulated under the Code of Criminal Procedure that relate to the crimes stipulated in the Anti Terrorism Law, it still did not eliminate the basic constitutional right to counsel. In fact it even stipulated the necessity for the law enforcement officer to inform the person in custody of the reasons for his detention and allow him to seek counsel, albeit with an ambiguous restriction to this right by stipulating that its enforcement shall not prejudice the "interest of evidence collection."5
Part II: Difficulties in accessing a lawyer for those sentenced to death
Access to counsel and effective communication before or during questioning before the Public Prosecution
The lack of effective communication between the defendant and the lawyer during the investigation stage and particularly during the period that precedes questioning by the prosecutionn, where some violations may occur (such as coercing the defendants to confess to crimes) has a profoundly negative impact on the defendant’s chances in the case and in the subsequentlater investigation stage. There has been recurring allegations that defendants were subjected to torture during this period (this is in addition to, during the investigation stage, the prosecution’s frequent disegard forignoring of the defendants’ requests to be subjected to forensic examination during the subsequent questioning stage— or on occasion officialthe “procrastination” in considering such requests).
Furthermore, there is the occasional filming and broadcasting of the defendants’ confessions publicly6 by the Ministry of Interior before the start of a judicial investigation by the prosecution or the investigative judge, which undermines the possibility of any possible criminal defence legal counsel before the adjudicationlitigation stage begins and impedes the lawyer’s ability to fulfill his function or use his legal tools to effectively access and defend the accused.
At times, the Prosecution repeatedly invokes the following justifications to initiate a questioning session without the presence of a lawyer:
- The existence of a state of necessity and urgency (the defendant’s confession or his own initiative to give his testimony).
- Fear of loss of evidence.
- Lack of available lawyers to be assigned.
- Fear of expiration of the legal limits to the duration of the defendant’s detention.
Even though these circumstancescases are supposed to be extremely exceptional, the prosecution conducts questioning sessions without the presence of a lawyer frequently, especially in cases of a political nature and cases, that include charges from the anti-terrorism law. In other cases, the prosecution does not provide any justification at all as to why it initiated and continuedcompleted to questionthe questioning of a defendant over the course of more than one hearing in the complete absence of a lawyer.
The figures presented below provide an approximate picture of the frequent resort to this practice by the investigative authorities and of the number of cases involving death sentences in which the right to counsel was undermined during the investigation stage. These numbers are a mere sample based on the cases reviewed by EIPR between 2017 and 2019. They refer to defendants who were able to communicate with lawyers during the investigation stage before the Public Prosecution, and they were as follows:
- 29 defendants were questioned (at least initially) without the presence of any lawyer, whether appointed or private - that is, in the complete absence of legal assistance.
- 15 defendants were represented by an appointed lawyer instead of one of their choice.
- Only 3 defendants were represented by private lawyers.
- Eleven instances where questioning was initiated withoutinitiated without defendants were questioned without the presence of a lawyer.
- Five defendants had an appointed lawyer represent them.
- Only one defendant was represented by a private lawyer.
- 15 instances where questioning was initiateddefendants were questioned without the presence of a lawyer.
- Three defendants were represented by an appointed lawyer.
- There is not a single case documented by the EIPR among cases involving chages that carry the death penalty in 2019, in which the questioning hearings were attended by a lawyer of the defendant’s choice.
Access to counsel after appearing before the prosecution and during the trial
From the moment a defendant is referred to court, the law requires that the defendant be present with a private or appointed lawyer, otherwise the verdicts issued in that case will be null. Therefore, what usually happens in the absence of a private lawyer, is that the court appoints a lawyer, who is present at the seat of the court, to appear with the defendant.
This part of the paper is a series of Q&As with human rights lawyers on the effectiveness of appointed legal representation during criminal trials and its impact on the right to counsel.
Who is the appointed lawyer?
Since it is prohibited by law to issue a verdict on any felony except in the presence of the defendant's lawyer, in the absence of a private lawyer, the criminal court will appoint a lawyer for the defendant. A list with the names of the available appointed lawyers, present in the criminal courts is made available for the judge. He requests the appointment of a lawyer from those present in the court and hands him over the case documents in order to plead or submit his requests to the court (For example: request for a hearing postponement for the purpose of reviewing viewing the documents.)
The appointed lawyer performs the role of defense like any lawyer. However, he/she works on the basis of secondment to the court of felonies and his/her fees are determined by the lawyers’ syndicate on a case by case basis. In most cases, the secondment lawyer will be always present in the court of felonies waiting to be appointed by the judicial authority. It is difficult for the appointed lawyer to perform his role effectively because his appointment is almost always instanttemporary and criminal cases usually need a study period of no less than a week. Of course the more difficult the case and the more serious the charges that the defendant is facing, the longer the time the lawyer will need to study the case and get to know the defendant.
Are lawyers appointed to trials for crimes that carry the death penalty?
Yes, it happens a lot of times. But in cases, where harsh penalties may be issued, such as the death penalty, the court usually asks the defendant if he/she is able to hire a lawyer. If it is in the defendant’s capacity and desire to do so, the court session is postponed. If the defendant prefers that the court assigns him/her a lawyer, the court will appoint a lawyer and the trial begins. In theory, the court should make its decision based on the defendant's requestresponse.
Does the appointed lawyer usually have sufficient experience and sufficient time to study the case?
In court sessions, the judge assigns a lawyer and hands him over the case files in order to plead or present his requests (postponement, etc.) on the same day — sometimes a few hours before the hearing begins. If the lawyer chooses to plead, which is often the case, he/she does not fulfill the right to defense well because there is not enough time to prepare. In some few cases in courts of felonies in Egypt, lawyers request postponement and a copy of the case files in order to have sufficient time to review them and prepare the defencedefense.
Is there a chance for the appointed lawyer to have a one-on-one session with the defendant like the private lawyer would, from the very beginning?
A request is submitted to court, and it has discretionary power to accept or reject the request.
What are the basic differences between the appointed and the private lawyer that can best illustrate how legal defencedefense cannot be reduced to the mere appearance of a lawyer, whether he is a private or appointed one?
Appointing a lawyer to court sessions is only to satisfy a formal requirement. Usually the appointed lawyer has the experience and skills to quickly read through the case files upon having them handed over to him/her on the same day of the trial. He/She usually drafts his/her defense memo quickly and performs his/her part in the case, with no regard to the final outcome or the court verdict at the end of the trial.
A private lawyer differs from the appointed lawyer in the sense that he/she is supposed to have been present at - or knowledgeable about the investigations from the beginning and aware of all the details relating to the case in a way that enables him/her to prepare a good defencedefense. As for the appointed lawyer, he/she does not have the opportunity to conduct a proper study or review of the case, because at the end of the day and in most cases he/she is perceived as a requirement that needs to be satisfied in order to complete the legal form of a trial and for the verdict not to be nullified.
Possible difficulties that lawyers can face, while representing defendants in cases, where death sentences may be imposed
What are the practical difficulties that a lawyer usually faces in terrorism cases or in cases where the death penalty may be imposed?
In recent years, access to (emergency) state security prosecution case files has become almost impossible, whether to obtain a copy or even for the purpose of viewing them. This situation has been normalized to the extent that it has become standard knowledge that a private lawyer of the defendant's choice, in most cases, will not be able to obtain a copy of the investigation documents from State Security Prosecution, and that he/she will not have an opportunity to do so before the case is referred to trial.
How does this affect the right to counsel and the pleading?
Studying the case and reviewing the case filedocuments, charges, and questioning sessions are the cornerstone of a good defencse memo - in its absence it is very difficult for a lawyer to develop good legal arguments for his/her defense. Accordingly, the right to counsel isbecomes severely undermineddeficient - if not completely violated - if the lawyer has not obtained a copy of the case documents since the start of the investigation stage, and especially if he/she was not allowed to even view the documents in the first place., The latter practice has become commonplacethe latter having become frequent practice, particularly in cases overseeninvestigated by the State Security Prosecution.
Does the lawyer have the opportunity to sit alone with the accused?
Speaking with the defendant in complete privacy is also an essentiala key pillar of the right to legal representation. In regular criminal cases, the lawyer is allowed to sit in privatecan be alone with his/her client. However, in cases of a political nature, especially in cases that are investigated by the Emergency State Security Prosecution, obtaining privacy with the client has become extremely difficult.
What is the importance of having a lawyer be alone with his defendant?
It goes without saying that the defendant needsis allowed to speak with his legal representative regarding what may benefit his legal position without the presence of his legal opponent. Sharing some statements privately and without having any external party, especially the opponent party to the legal dispute the case, hear them, is crucial and may be beneficial to the developments of the case.
But in conclusion, it has become the norm in Egypt for a third party to be present at any moment a lawyer speaks with his/her client, which creates difficulties for the lawyer as well as for the defendant.
In summary: How do the violations that may occur during or before the preliminary investigations affect the right to counsel?
If the defendant has made confessions under duress or was compelled to confess to committing offenses or felonies in exchange for promises, for example, and all this occursoccurrs during questioning bybefore the prosecution, the difficulties faced by the lawyer are amplified because it is difficult to retract "judicial confessions." In some of the historical cases, for example, confessions were issued by some of the defendants and were documented on paper in the investigation files, but the courts acquitted the defendants in the end because the lawyer had proven that the confessions were made under torture (that had taken place in the pre-investigation stage).
Delaying the presentation of the defendant to a forensic examination, if he so requests, which happened multiple timess frequently in many recent cases where death sentences wereare issued passed, leads to the disappearance of injuries, if any. It, and it becomes practically difficult to present legal arguments countering the confession citing on the basis of the torture and cruel treatment that was exercised to compel the defendant to confess.
These confessions extracted under pressure provide an extreme impediment for the lawyer to perform his/her function. It is for this reason also that the law and the constitution guarantee the right of the lawyer to be present at all stages of custody and investigation to ensure the rights of the defendant to a fair trial.
How can the communication between a lawyer and his client be effective?
"Constant communication"7 between the lawyer and the defendant is a basic pillar of the Code of Criminal Procedures and a cornerstone to implement the right to counsel in a fair manner. Prohibiting contact or setting specific times for communication affects the course of a fair trial and its outcome. Providing for the possibility of meetings between a lawyer and the defendant at all litigation stages is a subsidiary right of the right to “constant communication”.
In other words, communication between the lawyer and the defendant must be facilitated from the moment of arrest and evidence collection, followed by the investigation stage and finally all the way through the trial. Among the impediments to constant communication is for example the fact that the rules of the Prisons Authority in Egypt oblige the defendant to stay in his/her cell at specific times during the day, which constitutes a major obstacle to the process of setting up meetings between the lawyer and his/her client. In that case, communication with the lawyer becomes subject to the same conditions and restrictions that apply to family visits, 8while the right to counsel and direct communication between both parties should be prioritized. It is the norm in many criminal justice systems around the world that the defendant, or the person in pre-trial detention, has the right to meet with his/her lawyer at any time he/she requests.
The right to legal counsel is not complete without the guarantee of "complete confidentiality" 9 between the lawyer and the defendant — and without barriers between them. That is to say that the authorities should facilitate communication between them and allow the exchange of messages or letters and information. This confidentiality is achieved when two basic elements are fulfilled: “The defendant’s trust in whoever he speaks to,” that is, firstly, the lawyer is required to keep confidentiality as stipulated by law and not make any statement on behalf of the defendantof defendant without his/her consent.
Secondly, the absence of any third party to the legal assistance process, whether this be in the form of a meeting, a conversation, or through third party access to papers and letters that are exchanged between the lawyer and the defendant. Failure to guarantee the confidentiality between a lawyer and a defendant in matters related to the case, limits the available space for the defendant, where he can provide his statements in complete comfort and ease.10
Finally, and to ensure effective pleading, it is the duty of the judicial authorities to enable the lawyer to review all documents related to the case, in all its stages, and for a period of time sufficient for him/her to study the case well in order to provide effective legal assistance to the defendant. As from the perspective of the defendant, the authorities must guarantee the removal of obstacles impeding access to legal counsel of his/her choice, in order to guarantee the highest level of effectiveness and quality of legal representation., when it comes to the legal representation.
- 1. Adel Ramadan Rafea, “Effective Communication between the Lawyer and Defendant and the Right to a Fair Trial”, The Tahrir Institute for Middle East Policy, 2020 https://timep.org/reports-briefings/special-reports/legal-guide-effectiv...
- 2. Articles 96 and 98 of the Egyptian Constitution.
- 3. Article 97 of the Egyptian Constitution.
- 4. Article 3(bis)c) of the Emergency Law Nr 162 of the Year 1958, amended by Law 12 of the year 2017.
- 5. Article 41 of the Anti Terrorism Law
- 6. See EIPR’s yearly reports on the death penalty which have been published since 2018.
- 7. Adel Ramadan Rafea, “Effective Communication between the Lawyer and Defendant and the Right to a Fair Trial”, The Tahrir Institute for Middle East Policy, 2020
- 8. Ibid.
- 9. Ibid.
- 10. Ibid.