The Egyptian Parliament is discussing a proposed draft to replace the country’s current Criminal Procedure Code that would entrench the dominance of security and prosecutorial agencies, granting them broad powers through vague legal provisions while legitimizing the ongoing violations of President Abdel Fattah El-Sisi’s government.
The state of human rights in Egypt has deteriorated steadily over the past decade, exacerbated by shortcomings in legal provisions and, more critically, an absence of political will for reform. For instance, prolonged pretrial detention has been employed extensively to punish political opponents, journalists, and lawyers. Officials have also devised mechanisms to evade compliance with the two-year pretrial detention limit stated in the law, allowing for the indefinite detention of opponents without trial.
Egyptian authorities say the law aims to provide greater guarantees for justice, enhance transparency, and combat corruption. However, the draft law was developed without meaningful public participation from civil society organizations or legal experts. Members of the National Dialogue Board of Trustees, the Bar Association, the Journalists Syndicate, human rights organizations, and legal scholars have all rejected the draft and called for its complete withdrawal from parliament.
At its core, the new draft of the criminal procedure code has exacerbated existing legal deficiencies and enshrined practices that violate both the Constitution and Egypt’s international human rights obligations
At its core, the new draft of the criminal procedure code has exacerbated existing legal deficiencies and enshrined practices that violate both the Constitution and Egypt’s international human rights obligations. The draft amplifies the powers of the Public Prosecution and that of the National Security Agency concerning arrest, search, home entry, and interrogation, while simultaneously diminishing the role of defense attorneys and restricting the ability of defendants to appear directly before investigative and judicial authorities.
There are several main issues that legal and human rights advocates find to be highly problematic in the draft law.
Expansion of prosecutorial powers and erosion of judicial independence
Human rights advocates and legal experts have been pushing to curtail the extensive powers the Public Prosecution enjoys under the Criminal Procedure Code currently in effect. The draft law not only retains these powers but also further extends them.
For instance, Article 116 of the draft law maintains the prosecution’s power to decide on a defendant’s pretrial detention in certain crimes and renew it without judicial oversight for up to 150 days. Additionally, it grants the prosecution the authority to intercept private communications while investigating crimes without judicial orders, which marks a regression from the legal guarantees established in the law currently in effect and constitutes a violation of individuals’ rights to privacy.
Article 35 of the draft law also expands prosecutorial powers, allowing the Public Prosecution to impose fines on individuals who fail to comply with judicial police orders—a power reserved exclusively for judges under the law currently in effect.
Moreover, Article 147 permits prosecutors to impose travel bans on individuals when there is “sufficient” evidence indicating their involvement in a felony or misdemeanor that is punishable by imprisonment––a power that Public Prosecution does not have in the law currently in effect. Prosecutors will be able to order travel bans against defendants for up to one year with the possibility of indefinite renewal for similar periods, effectively rendering travel bans an open-ended punitive tool at their discretion.
Pretrial detention: A cosmetic amendment
The draft law proposes to reduce the maximum caps on pretrial detention for felonies and misdemeanors charges. The decreased caps continue to be excessively lengthy and inconsistent with international legal standards. More significantly, the draft law does not tackle the practice of “rotation,” whereby prosecutors add defendants to multiple cases on near-identical charges to circumvent the statutory limit of pretrial detention and keep these individuals in indefinite detention without trial.
Undermining the guarantees for a fair trial
The draft law introduces a new section on remote investigations and trial procedures. It codifies the exceptional ministerial Decree No. 8901 of 2021, issued during the COVID-19 pandemic, allowing judges to conduct pretrial detention hearings through video conferencing. Instead of restricting this exceptional measure, the draft law expands on it by authorizing judges and prosecutors to conduct some or all pretrial and trial proceedings remotely. This denies detainees the opportunity to appear physically before the prosecution and judiciary. It also compromises their ability to report on violations they may have experienced during arrest, interrogation, or pretrial detention, particularly because they would join the remote hearings from their detention facilities while surrounded by prison guards.
Article 527 also allows judges and prosecutors to review the records of legal proceedings involving minors without necessitating their physical presence, if it is deemed to be in the minor’s best interest. This provision deprives detained minors from the opportunity to communicate directly with the investigative and judicial authorities regarding their detention conditions and exposes them to potential violations of their right to a fair trial. Additionally, it raises concerns about the potential use of coercion to obtain recorded confessions from minors and the possible manipulation of proceedings records by the prosecution before they are presented to the judge.
The expanded powers of prosecution under the draft law have been accompanied by diminished powers for defense lawyers
This concern is further exacerbated by Article 529, which allows for the recordings and transcripts of remote proceedings to be signed only by prosecutors, judges, and clerks, while removing the current requirement for signatures from defendants, witnesses, experts, or translators to be included.
The expanded powers of prosecution under the draft law have been accompanied by diminished powers for defense lawyers. For instance, Article 73 denies lawyers the right to obtain photocopies of case files during the investigation if the prosecution deems it to be in the interest of the ongoing investigation. Article 105 also permits the prosecutor to deny defense lawyers access to investigation files before interrogating the defendants. These provisions effectively open the door to prosecutorial abuses and could undermine the right of defendants and their legal counsel to mount an effective defense. They also violate the fair trial standards set forth in Article 54 of the Constitution and codify prosecutorial infringements on the defense’s rights, particularly in cases involving political charges.
Formalizing abuses
In an attempt to formalize the abusive practices of the National Security Agency, Article 25 of the draft law grants officers of the National Security Agency, one of the most notorious security apparatuses in Egypt, the power of judicial police officers––which they do not have under the law currently in effect. This power allows them to formally investigate crimes, identify perpetrators, collect evidence, and make arrests and home searches.
While the law does not permit judicial police officers to interrogate the accused in principle, Article 63 of the draft law preserves the Public Prosecution’s power to delegate them to perform investigative tasks, including interrogating the accused, in situations where there is fear of losing time and the necessity to uncover the truth. This vague provision could normalize the delegation of National Security officers to interrogate suspects under these discretionary pretexts.
Another regressive amendment to the law currently in effect permits judicial police officers to enter and search homes exceptionally without a warrant in cases of “danger” or “distress,” as stipulated in Article 47 of the draft law. These unqualified exceptions allow judicial police officers, including National Security officers, to enter houses without a warrant upon their discretion of what constitutes “danger.” The draft law also removes the safeguards stipulated by Article 51 of the law currently in effect, which require the presence of the defendant, their representative, or two witnesses during the home search.
Unattainable compensation
While the draft law introduces a new section concerning compensation for pretrial detention in certain contexts, the provisions within this section—particularly Article 523—render enjoying this right nearly impossible. For instance, if the Public Prosecution orders that there is no basis for filing a criminal lawsuit against the pretrial detainee, the individual will be entitled to compensation only if this order is based on the invalidity of the facts. This situation rarely happens in practice, as such prosecutorial orders are mostly based on the insufficiency of evidence rather than the invalidity of the facts. Accordingly, individuals subjected to unlawful or prolonged pretrial detention merely on weak evidence do not qualify for compensation under Article 523.
In the same way, if a final judgment acquits the defendant, they will not be entitled to compensation unless the acquittal pertains to all charges and is based on the invalidity of the facts or that the incident is not punishable by law. Article 523(3) explicitly excludes those acquitted due to the court’s doubts about the validity of the charges. In other words, those who are acquitted for the lack of evidence against them, which is the most common reason for acquittal, will not be eligible for compensation.
Urgent withdrawal is needed
The proposed law evidently lacks the safeguards necessary to protect defendants’ rights and ensure the proper functioning of criminal justice procedures. Rather than strengthening judicial oversight and accountability, the draft law encompasses provisions that may exacerbate human rights violations, particularly in relation to torture, forced disappearance, and the misuse of pretrial detention. This concern is further intensified by the absence of effective accountability mechanisms.
Therefore, this draft law must be withdrawn entirely. If Egypt plans to replace the current law, a genuine public dialogue should be convened to formulate the new legislation in a way that reflects a markedly different legislative vision and intent. Such a law must prioritize the curtailment of abuses, impose clear limits on the overreach of public authorities, and advance the protection of individuals’ rights and freedoms. The overarching objective is to establish a judicial system that respects human rights and guarantees genuine justice free from arbitrariness and legal exceptions.
Halem Henish is an Egyptian human rights lawyer and a Legal Associate at the Tahrir Institute for Middle East Policy (TIMEP).
Obai Kurd Ali is the Accountability Manager at TIMEP and is a human rights defender with 10 years of experience in the Syrian conflict.