Pursuant to the constitutional obligations contained in Articles Nos. 96 and 240 of the current Constitution of the Arab Republic of Egypt, issued on January 18, 2014, regarding the appeal of judgments issued in felonies, so that litigation therein shall be on two levels, and setting a timeframe for this principle that the state guarantees the material and human resources to work on the implementation of the principle of two-tier litigation within ten years from the date of issuance of the 2014 Constitution, with such period ending on January 17, 2024.
In light of this, the Government, represented by Counsellor Omar Marwan, Minister of Justice, presented to the House of Representatives a draft law (the “Draft Law”) amending some of the provisions of the Criminal Procedures Law promulgated by Law No. 150 of 1950 (the “Criminal Procedures Law”), and in particular amending some articles of Chapters 1 and 2 of Part 3 from the second book of the Criminal Procedures Law, which was presented to the Constitutional and Legislative Affairs Committee of the House of Representatives (the “Committee”) on January 11, 2024, and which issued its report on it including the Committee’s amendments to the proposals contained therein on January 13, 2024 (the “Committee’s Report”).
It is worth noting that the Committee adopted some amendments submitted by the Government as is, and also added and deleted some fundamental amendments to the Draft Law in preparation for presenting it the House of Representatives for discussion. The Committee considered that the Draft Law was included in a package of legislation in the field of consolidating human rights and freedom and the rule of law, as well as considering the principle of two-tier litigation, in order to preserve the application of the best forms of justice and to reduce the burden on the Court of Cassation.
Perhaps the most prominent amendments proposed in the Draft Law are with regard to the formation of the Criminal Court, as the Draft Law stipulates that a Court of First Instance shall be established in each Appeal Court, composed of three counsellors (the “Criminal Court of First Instance”). It also stipulates that one or more Criminal Courts shall be formed in each Court of Appeal, which review the rulings issued by the Criminal Courts of First Instance, and each of which is composed of three counsellors (the “Criminal Court of Appeal”).
As for the proposed amendment to the procedures before the Criminal Courts, it includes an amendment to the date for assigning the accused and witnesses to appear before the Criminal Court of First Instance, so that this would be at least ten full days before the hearing instead of eight days, as stipulated in the current law.
It is also worth noting in this regard that the Draft Law stipulates that pleading before the Criminal Courts of both levels would not be acceptable, with the exception of lawyers who are authorized to plead only before the Courts of Appeal, despite the fact that the current situation entails that pleading before the Criminal Courts is permissible by lawyers who are authorized to plead before the Courts of Appeal and the Courts of First Instance. Accordingly, the Committee objected to this proposal by entitling lawyers authorized to plead before the Courts of Appeal or the Courts of First Instance – not others – to plead before the Criminal Court of First Instance, whilst only lawyers authorized to plead before the Courts of Appeal are accepted to plead before the Criminal Court of Appeal.
As for appealing in absentia issued by a Criminal Court of First Instance, according to the Draft Law, they may be appealed by the Public Prosecution and the accused provided that the Public Prosecution may appeal judgements in absentia issued in criminal matters, and consideration of the appeal and adjudication of all rulings prescribed for appeal in misdemeanor matters shall be continued unless the law stipulates otherwise.
With regard to appeal procedures, the Draft Law indicated that the appeal be submitted with a report and memorandum of the reasons for the appeal, signed by a lawyer authorized to plead before the Courts of Appeal within forty days from the date of issuance of the ruling. However, the Committee decided to delete the requirement of a lawyer’s signature on the memorandum, and for the condition to be satisfied only by submission of the appeal report without a memorandum. The Committee also added that if the appeal is filed by the State Cases Authority, the appeal report must be signed by at least one counsellor of the State Cases Authority.
With regard to effect of the appeal, the Draft Law stipulates that the suspension of the execution of the judgement will not result in the appeal, unless the Court decides to suspend the execution, provided that the convict or their representative fails, without excuse, to appear at the session scheduled to consider the appeal or at any subsequent session, in which case the Court shall assign a defense lawyer to the convict and render a judgment in the appeal. The Court may, if the appeal is filed by the Public Prosecution, order the arrest and provisional detention of the accused until completion of the appeal. However, in this regard, the Committee added the suspension of the execution of the sentence issued by the Criminal Court of First Instance if the sentence is a death sentence, while deleting the phrase, ‘if the appeal is filed by the Public Prosecution, order the arrest and provisional detention of the accused until completion of the appeal’.
It is noteworthy that the Draft Law stipulates that it will be published in the Official Gazette and its provisions will come into effect from the day following the date of publication in the Official Gazette, and its provisions will only apply to cases that have not been decided by the Criminal Courts as of the date of its entry into force.
It is also worth noting that the House of Representatives approved the Draft Law in its session on Tuesday January 16, 2024 and it is expected to be published in the Official Gazette within the next few days.Download PDF
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