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Egypt’s Empowered Prosecution and Threats to Fair Trial Guarantees

05/04/2020 . By Nourhan Fahmy

Legally defined as acting in the interest of the public, the public prosecution has always been a critical juncture in the Egyptian criminal justice system. As the body that initiates investigations, presses charges, and refers suspects to trial, it has been the topic of extensive study, debate, and criticism. In recent years, the appointment, mandate, and role of the public prosecution has had a significant impact on fair trial guarantees and the rule of law more generally.

The importance of this issue has been particularly underscored in the last few years in light of recent developments, including the 2019 amendments that normalized executive interference in the appointment of the public prosecutor and the rising influence of the State Security Prosecution. Prosecutors have been empowered by the current regime’s counter-terror policies and a vast pool of legislation that—in part—has expanded or facilitated the prosecution’s powers. Adequate legal guarantees that put limits on prosecutorial discretion, foster prosecutorial independence, and protect the rights of detainees have not materialized amid this trend.

Recent Developments Expanding Prosecutorial Authority

Recent developments that include constitutional amendments, legislative changes, and the creation of new entities within the prosecution have expanded prosecutorial authority.

Constitutional amendments governing the appointment of the public prosecutor

While the literature on prosecutorial independence largely consents to a degree of executive involvement in the selection and practice of the chief prosecutor, certain guarantees and safeguards must be in place to ensure objectivity and impartiality during investigations. Recent constitutional changes in Egypt threaten this objectivity and impartiality.

In April 2019, the Egyptian parliament approved amendments to the constitution, giving the president the authority to select and appoint the public prosecutor along with the heads of other judicial bodies and the Supreme Constitutional Court. The legislative body later passed laws that put the constitutional articles into effect; giving the president the right to appoint the public prosecutor from among three senior judges nominated by the Supreme Judicial Council (SJC). This reflects a reversal in state policy, as both the 2012 and 2014 constitutions had given the SJC the power to select the prosecutor, limiting the president’s role to only ratifying the decision.

Lawyer Adel Ramadan of the Egyptian Initiative for Personal Rights (EIPR) explains that the judiciary previously had more “space” to decide who assumed such a high-profile position, further warning that presidential interference could create problems within the ranks of the prosecutorial body as rules of seniority and customary practice are disrupted.

Under the new amendments, incumbent public prosecutor Hamada al-Sawy, who was junior to other nominees, was appointed by the president in September 2019. This departure from historical deference to seniority triggered silent opposition from within the public prosecution; this was evident in the resignation of the assistant to the former public prosecutor, who was more senior than al-Sawy.

The new appointment procedure raises concerns regarding the independence of the public prosecutor and the apparatus as a whole. Given its hierarchical structure, lower-ranking prosecutors mostly abide by the decisions of their supervisors, all of whom follow the orders of the public prosecutor, as well as the policies and guidelines he sets.

Legislative amendments that facilitate and expand prosecutorial powers

In recent years, legislative amendments have facilitated and expanded prosecutorial powers; these include amendments to the Counter-terrorism and Terrorist Entities Laws and amendments to the Code of Criminal Procedures.

Counter-terrorism and Terrorist Entities Laws

Both the Counter-terorrism Law and the Terrorist Entities Law were ratified in 2015, with the former coming into effect soon after the assasination of Public Prosecutor Hisham Barakat. Both have been amended several times since and criticized by lawyers for including vague and broadly-worded clauses that are often used to target a wide spectrum of individuals like journalists, civil society activists, and others deemed as a threat by the government. Vague language in these laws and others like the Penal Code have led to thousands of arbitrary arrests and detentions, as well as the prosecution of hundreds in unfair trials.

Per recent amendments to both the Counter-terorrism Law and the Terrorist Entities Law approved in February 2020, the public prosecution now has authority to designate a wider array of groups as affiliated with terrorist activity and enjoys additional powers to take action against what it deems as “terrorist funds.”

The amendments also expand the types of organizations that can be classified as terrorist groups to include companies, associations, and media outlets and broaden the criteria for the seizure and freezing of assets, funds, and property of individuals classified as terrorists to encompass assets not used in terror-related activity.

Amendments to the Code of Criminal Procedures

One of the first legal measures following the 2013 ouster of President Mohamed Morsi was to amend the Code of Criminal Procedures, specifically as it relates to pre-trial detention limits. The amendment essentially removed any limit for pre-trial detention for defendants who have been sentenced to death or life imprisonment by a first ruling and are awaiting appeal.

This has given way for a new modus operandi whereby the state, represented by the prosecution and the criminal courts, has become widely in favor of extending pre-trial detention for an increasing number of detainees, as opposed to invoking alternative precautionary measures defined by the law including house arrest or periodic visits to the police station.

In December 2018, the Supreme Constitutional Court ruled against a challenge to the constitutionality of a particularly critical part of the Code of Criminal Procedures—Article 206 (bis)—which grants senior prosecutors investigating terrorism and state security crimes powers normally assumed by an investigative judge and extends their pretrial detention authority to up to 150 days.

Structural changes implicating the prosecution’s functions

In recent years, a number of structural changes have implicated and expanded the prosecution’s functions.

In a move to expand power, Public Prosecutor al-Sawy established branches specialized in investigating money laundering and terrorism crimes, granting himself and those he delegates the right to directly obtain and monitor information related to bank accounts, deposits, and trust funds of suspects in these cases. Given the availability of adequate evidence, this office can prevent suspects and their immediate family members from managing or disbursing funds under investigation, and can control suspects’ movements through travel bans and placement on anticipated arrival lists.

Upon concluding its investigation, this prosecution then transfers the case file to the Financial and Commercial Affairs Prosecution, accompanied with its own recommendations and legal framing; thus shaping the trajectory of the case moving forward.

Last November, the public prosecution also established a monitoring unit to administer its social media presence and monitor suspicious online behavior (including the dissemination of rumors and false news), as well as content relating to its own affairs published by unauthorized parties. Recently and particularly in the aftermath of the September 20 protests, an increasing number have been accused of spreading false news and rumors, especially via online platforms, as the prosecution dedicates special focus on this space.

Procedural violations and fair trial guarantees

“The intersection of these multiple legislative enactments enable increasing practices of arbitrary detention with the heightened risk of torture, the absence of judicial oversight and procedural safeguards,” the U.N. Special Rapporteur on human rights and counter terrorism said on April 9, commenting on the latest amendments to the Counter-terrorism and Terrorist Entities Laws.

Lawyers and researchers interviewed for this research agree that the situation has gone from bad to worse as a confluence of legal, political, and social factors have produced an inextricably complex and unfair climate for the criminal justice system. Since the prosecutorial body is in charge of the preliminary investigation phase, it bears a large part of the responsibility to ensure fair trial guarantees are upheld and respected. One lawyer pointed out how the prosecution largely facilitates violations committed by the interior ministry rather than counteracting them. This is in addition to the prosecution’s own actions implicating fair trial guarantees.

The following subsections highlight the various forms in which these violations have taken, at least in part due to the expanded authority granted to the prosecution through the law and practice.

Complicity in the practice of enforced disappearances

As the pool of suspects widens in tandem with vague and malleable legislation approved by the state, more individuals are arrested and forcibly disappeared prior to appearing before the prosecution. According to lawyers’ accounts of cases involving political charges, the prosecution often falls short of investigating the detainee’s claims (as it relates to actual time of detention and being held incommunicado), continuing to uphold the security forces’ account of the arrest.

Expanded use of pre-trial detention

Prosecutors continue to exhaust available legislation to extend the pre-trial detention of suspects to its maximum limit or sometimes beyond, in direct legal violation. Several lawyers contend that the current situation is worse than under former president Hosni Mubarak, when renewable administrative detention orders were employed by the interior ministry. While the state often maintains that it respects the legal standards and procedures in place, this is merely a facade, Ramadan explains. Laws are not implemented in good faith and there are “countless procedural violations” that take place during investigation; beginning with the insufficient evidence presented in cases, to the lack of correlation between charges and length of pre-trial detention term.

Denying rights granted by law to legal counsel

Several lawyers have alluded to the difficulties they face when dealing with the prosecution, among which is not being able to examine case files, making it more difficult for them to prepare their clients ahead of interrogations or to put together their defenses. At times, prosecutors also deny lawyers the right to talk to their clients privately. These violations are more widespread in the State Security Prosecution compared to the regular prosecution, according to Amnesty International.

Free rein in asset seizures, terror listing, and travel bans

The power of prosecutors in restricting movement, designating terrorists, and seizing funds is virtually unchecked. As the scope of criminalization expands alongside shrinking judicial guarantees, human rights lawyers and other legal experts continue to voice concerns regarding the implications of such power, as methods for defense and appeal are hindered or bypassed in favor of “prompt justice.”

Lawyer and Senior Legal Researcher at the Cairo Institute for Human Rights Studies Mohamed Ansary warned that the powers given to the prosecution have put the privacy of citizens in “real danger,” as the Public Prosecutor is granted direct access to private bank accounts as soon as complaints are filed against individuals. In cases related to terrorism and money laundering, the prosecutor does not need to seek approval from the courts.

Ultimately, this analysis presents only a snapshot of legislative changes and expanded measures enjoyed by the prosecutorial body over recent years, which have correlated both directly and indirectly with increasing violations and an overall deterioration in fair trial guarantees. This deterioration can be seen in every stage of the criminal justice process; beginning with arrest, and going on to the investigation, interrogation, and trial. The prosecution is deemed so critical, because it both investigates individuals and presses charges against them—shaping the entire trajectory of the case. With the current factors at play, these violations, which have been encouraged or facilitated by an ever-expanding mandate and role of the prosecution, will only continue to fester in an environment that lacks an adequate degree of independence and accountability on the institutional level.