The Egyptian Prosecution: A Fact Sheet

05/04/2020 . By Nourhan Fahmy

What is the Public Prosecution? 

An entity within the Egyptian judicial system that:

  • Has sole authority to investigate crimes, indict individuals, and refer cases to trial. 
  • Initiates criminal investigations based on complaints filed by citizens, government officials, and of its own accord. 
  • Issues arrest warrants and search orders, and carries out the questioning of suspects and witnesses.
  • Places individuals into remand (pretrial) detention when deemed necessary under the law for the purposes of the investigation.* 
  • Orders asset freezes against individuals under criminal investigation after obtaining court approval. 
  • Has authority to issue travel bans as a “precautionary measure.”**
  • Supervises prisons and other detention centers by conducting visits, reviewing registries, and communicating with detainees. 
  • Provides opinion on death sentences to the Court of Cassation for its review.
  • Is authorized to issue new requests for designation on a terrorist or terrorist entities list.
  • Can initiate disciplinary cases against judges and members of the prosecution as well as issue its opinion regarding the retirement or transfer of certain judges.

*The Code of Criminal Procedures dictates the circumstances during which pretrial detention can be ordered; maximum detention periods are also outlined. In addition to ordering pretrial detention, prosecutors have discretion to release individuals with or without bail. In recent years, however, some defendants have been kept in pretrial detention up to the maximum lengths allowable and even beyond them. The Court of Cassation states that “issuing remand detention orders is not an absolute right of the prosecutor,” but rather that doing so should be contingent on the presence of sufficient evidence to justify the decision. 

** Travel bans can be issued by more than one authority, including the Public Prosecution. The law grants these authorities the power to issue three-year renewable bans. While the bans can be appealed in court, there is little legislation regulating the conditions and procedures around travel bans, save for a 2013 interior ministry decree.

Who is the Public Prosecutor? 

The most senior figure in the Public Prosecution who serves for either a non-renewable four-year term or until retirement age, whichever comes first 

How has the Public Prosecutor been appointed over the years?

  • 2019 constitutional amendments: President selects and appoints the Public Prosecutor from among three judges nominated by the Supreme Judicial Council.
  • 2014 and 2012 constitutions: President ratifies the selection made by the Supreme Judicial Council for the Public Prosecutor position. 
  • 1971 amended constitution: No articles regulating appointment. Separate legislation authorizes the President to select and formally appoint the Public Prosecutor.

What appointment guidelines apply to prosecutors more broadly?

To become a prosecutor, a candidate must: 

  • Be an Egyptian citizen with full legal capacity. 
  • Have the necessary legal qualifications from an Egyptian university or an equivalent degree from abroad, accredited according to Egypt’s laws and bylaws.
  • Be at least 19 years of age for the lowest rank in the Public Prosecution Authority and at least 21 for the rank above it. 
  • Submit an application to the office of the Public Prosecution.
  • Undergo an examination (the Public Prosecutor has been directly involved in this process in recent years).

All members of the Public Prosecution swear an oath as required by law before the Minister of Justice and the Public Prosecutor. Only the Public Prosecutor swears his oath before the President. The Minister of Justice has the authority to monitor and supervise the Public Prosecution and its members. The Public Prosecutor supervises all members of the prosecution. 

Spotlight: What is the Supreme State Security Prosecution (SSSP)?

A branch of the prosecution established in 1953 by a Ministry of Justice decree. It has nationwide jurisdiction over many crimes, including:

  • Crimes stipulated in the Counter-terrorism Law (Law No. 94 of 2015) (includes founding a terrorist organization, propogating the use of violence, inciting terrorism through social media, and publising false news about terrorist acts or counterterrorism operations). 
  • Crimes in Chapters 1, 2, and 2(bis) of Book 2 of the Penal Code (includes crimes that threaten national security, terrorism, and crimes involving explosives). 
  • Several crimes in the Penal Code involving labor strikes.
  • Crimes stipulated in the Law Preserving Order in Educational Institutes (Law No. 58 of 1949).
  • Crimes that are referred to State Security Emergency Courts during a state of emergency (includes crimes stipulated per a 2018 ministerial decree including protesting and assembly; obstructing traffic; thuggery; crimes associated with subsidies, price limits and profit controls; and crimes that affect the sanctity of places of worship).
  • Misdemeanors involving the press and other media outlets if the victim is a public official.

Over the years, the jurisdiction of the SSSP has been expanded by new legislation and decrees citing counter-terrorism and security justifications. 

What international standards govern the appointment, mandate, and role of prosecutors?

There are a number of international and regional standards governing the appointment, mandate, and role of the prosecution, including the UN Guidelines on the Role of Prosecutors, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, and the IAP Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors.  

Among the principles established by these standards:

  • The appointment of prosecutors should be free of partiality, prejudice, and discrimination
  • Matters of tenure, pension, and retirement age should be regulated by law. The Public Prosecution must have “the attributes of irremovability (security of tenure).”
  • Prosecutors should be “functionally independent” from the judiciary (even in cases where the prosecution authority forms part of the judiciary), and the legislative and executive branches. 
  • Prosecutorial discretion should be exercised independently and be free from political interference. 
  • In criminal proceedings, prosecutors should proceed only when a case is well-founded upon evidence that is reasonably believed to be reliable and admissible. Prosecutions should not continue with a prosecution in the absence of such evidence. 
  • Prosecutors should refuse evidence that they know or believe on reasonable grounds was obtained through unlawful methods, and they should take all the necessary steps to ensure that those responsible for using such methods are brought to justice.