Constitutional Challenge to the Constitutionality of Paragraph (4) of the First Clause of Article 134 of the Egyptian Code of Criminal Procedure, as Amended by Law No. 145 of 2006, for Its Conflict with Article 54 of the Constitution of the Arab Republic of Egypt

Submitted by Counsel for the Defendant:
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In Case No.:
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Submitted at the Hearing for the Renewal of the Defendant's Pretrial Detention on: .... / .... / 2019

The undersigned counsel for the defendant submits this memorandum to set forth the constitutional challenge to Paragraph (4) of the first clause of Article 134 of the Egyptian Code of Criminal Procedure, on the grounds that it conflicts with Article 54 of the Constitution of the Arab Republic of Egypt.

Defense

Many legal scholars and jurists rightly regard pretrial detention as a harsh and exceptional measure that is inconsistent with justice. On one hand, it conflicts with the presumption of innocence afforded to every accused person; on the other, it undermines the principle of equality by treating a defendant held in pretrial detention differently from one who has been released pending trial.

Despite the severity of this measure, it has a legitimate legal basis rooted in the State's interest in preserving the integrity of criminal investigations and safeguarding the proper administration of justice. Accordingly, legislation has established rules governing the use of pretrial detention so that it remains confined to its proper purpose: protecting the integrity of investigations by ensuring that the accused remains available to the investigating authority for questioning and confrontation whenever necessary, while at the same time preserving the defendant's constitutional presumption of innocence.

Legislative and Historical Development of the Grounds for Pretrial Detention

Historically, pretrial detention was primarily used against persons who had no fixed residence or employment, since such circumstances increased the risk of flight. Consequently, the legislative policy in many jurisdictions—including Egypt—limited the use of pretrial detention to persons without a known place of residence or where there was a genuine risk of absconding, provided that sufficient evidence existed against the accused and that the alleged offense constituted either a felony or a misdemeanor punishable by imprisonment for more than three months.

Accordingly, Article 134 of the Code of Criminal Procedure, prior to its amendment, provided:

"If, after questioning the accused—or in the event of the accused's flight—the evidence appears sufficient, and the offense constitutes either a felony or a misdemeanor punishable by imprisonment for more than three months, the investigating judge may order the accused to be held in pretrial detention.

The accused may also be held in pretrial detention where he has no fixed or known residence in Egypt and the offense is a misdemeanor punishable by imprisonment."

Subsequently, a legislative trend emerged whereby pretrial detention came to be used as a general preventive measure intended to preserve public order. This approach was adopted by the Egyptian constitutional legislator in the 1971 Constitution, Article 41 of which provided:

"Personal liberty is a natural right and shall be safeguarded and may not be infringed. Except in cases of flagrante delicto, no person may be arrested, searched, detained, have his liberty restricted in any manner, or be prevented from moving except by an order required by the necessity of the investigation and the protection of the security of society. Such order shall be issued by the competent judge or the Public Prosecution in accordance with the law. The law shall determine the duration of pretrial detention."

Pursuant to this constitutional provision, Article 134 of the Code of Criminal Procedure was amended to include additional grounds for pretrial detention, including Paragraph (4) of the first clause, concerning the prevention of serious disturbances to public security and public order resulting from the gravity of the offense.

Following the 2006 amendment, Article 134 provided:

"After questioning the accused—or in the event of the accused's flight—where the offense constitutes a felony or a misdemeanor punishable by imprisonment for not less than one year, and sufficient evidence exists, the investigating judge may order the accused to be held in pretrial detention if one of the following circumstances or grounds exists:

1. The offense was committed in flagrante delicto and any resulting judgment must be executed immediately.

2. There is a risk that the accused may flee.

3. There is a risk of prejudice to the investigation, whether by influencing the victim or witnesses, tampering with physical evidence or other indicia, or reaching agreements with co-defendants to alter or conceal the truth.

4. To prevent serious disruption of public security and public order that may result from the gravity of the offense.

Nevertheless, the accused may be held in pretrial detention if he has no fixed or known residence in Egypt and the offense is a felony or a misdemeanor punishable by imprisonment."

This legislative approach was subsequently subjected to considerable criticism on the ground that, in this form, pretrial detention effectively assumed the character of a punishment, contrary to its preventive nature. As a result, a new legislative trend emerged, restoring pretrial detention to its original purpose: safeguarding the investigation rather than protecting public order. Accordingly, French law adopted the system of judicial supervision as an alternative.

In line with this legislative development, the constitutional framers of the 2014 Egyptian Constitution embraced the same principle, limiting the legitimacy of pretrial detention solely to the needs of the investigation, abandoning the broader justification contained in the 1971 Constitution that extended to the protection of society's security.

Accordingly, Article 54 of the current Egyptian Constitution provides:

"Personal freedom is a natural right, safeguarded and inviolable. Except in cases of flagrante delicto, no person may be arrested, searched, detained, or have his freedom restricted in any way except by a reasoned judicial order required by the investigation.

Every person whose freedom is restricted shall immediately be informed of the reasons, notified in writing of his rights, enabled to contact his family and lawyer without delay, and brought before the investigating authority within twenty-four hours from the time his freedom was restricted.

No investigation may commence except in the presence of the accused's lawyer. If the accused has no lawyer, one shall be appointed for him, with appropriate assistance provided for persons with disabilities in accordance with the procedures prescribed by law.

Every person whose freedom is restricted, and any other interested person, has the right to challenge such measure before the judiciary, which must decide the challenge within one week; otherwise, the detainee shall be released immediately.

The law shall regulate the rules, duration, and grounds for pretrial detention, as well as cases in which compensation shall be payable by the State for pretrial detention or for the execution of a sentence subsequently overturned by a final judgment.

In all cases, no defendant in an offense for which detention is permissible may be tried except in the presence of retained or court-appointed counsel."

Having briefly outlined the legislative and historical evolution of pretrial detention, particularly within Egyptian legislation, it remains necessary to demonstrate the conflict between Paragraph (4) of the first clause of Article 134 of the Code of Criminal Procedure and Article 54 of the Egyptian Constitution.

This conflict is evident in the first paragraph of Article 54, which states:

"Personal freedom is a natural right, safeguarded and inviolable. Except in cases of flagrante delicto, no person may be arrested, searched, detained, or have his freedom restricted in any way except by a reasoned judicial order required by the investigation."

Thus, the constitutional legislator has prohibited any restriction on personal liberty—except in cases of flagrante delicto—unless three cumulative conditions are met:

1. A judicial order exists;

2. The judicial order is reasoned; and

3. The reasoned judicial order is required by the investigation.

However, Paragraph (4) of the first clause of Article 134 authorizes pretrial detention for an entirely different reason—namely, to prevent serious disruption of public security and public order that may result from the gravity of the offense. This directly conflicts with Article 54 of the Constitution.

Nor may it be argued that the fifth paragraph of Article 54 authorizes the legislature to regulate the grounds for pretrial detention, since such legislation must remain consistent with the limitations imposed by the first paragraph of Article 54. This conclusion follows from the constitutional principle that constitutional provisions must be interpreted harmoniously and as an integrated whole.

Furthermore, Article 29 of the Supreme Constitutional Court Law No. 48 of 1979 provides:

(a) If, during the hearing of a case, a court or judicial body finds that a statutory provision or regulation whose constitutionality is necessary for deciding the dispute may be unconstitutional, it shall stay the proceedings and refer the matter to the Supreme Constitutional Court without fees.

(b) If one of the parties raises a constitutional challenge during the proceedings and the court considers the challenge to be serious, it shall adjourn the case and grant the party raising the challenge a period not exceeding three months to institute constitutional proceedings before the Supreme Constitutional Court. If such proceedings are not instituted within that period, the constitutional challenge shall be deemed abandoned.

Accordingly, the defense respectfully submits that Paragraph (4) of the first clause of Article 134 of the Code of Criminal Procedure is unconstitutional because it conflicts with Article 54 of the Constitution, for the reasons set forth above.

Accordingly

The defense respectfully requests that the Court:

1. Refer Paragraph (4) of the first clause of Article 134 of the Code of Criminal Procedure—which authorizes pretrial detention "to prevent serious disruption of public security and public order that may result from the gravity of the offense"—to the Supreme Constitutional Court on the grounds that it conflicts with Article 54 of the Constitution;

Or, alternatively:

2. Grant the defense leave to institute proceedings before the Supreme Constitutional Court challenging the constitutionality of Paragraph (4) of the first clause of Article 134 of the Code of Criminal Procedure, insofar as it authorizes pretrial detention "to prevent serious disruption of public security and public order that may result from the gravity of the offense," for its conflict with Article 54 of the Constitution.

Counsel for the Defendant

Ahmed Ragheb
Attorney-at-Law

إليك ترجمة النص إلى اللغة الإنجليزية:

Under the widespread use of freezing the assets of defendants in public funds and terrorism cases, preventing them from disposing of such assets, and freezing them by investigative authorities, Ahmed Ragheb Law Firm and Legal Consultations provides a legal overview for interested parties, lawyers, and stakeholders. This overview includes an insight into these procedures, whether in terms of the cases in which investigative authorities may freeze assets—by preventing their disposal or administration—the difference between these procedures, the individuals whose assets may be frozen, as well as the fate of the frozen assets and the grievance procedures against such measures, as follows:

How did the Egyptian legislator regulate the freezing of assets as a precautionary measure?

The Egyptian legislator regulated the freezing of assets—whether by preventing their disposal or their administration—as part of precautionary measures and to guarantee the satisfaction of the state's financial rights, which consist of whatever the defendant may be ordered to pay in terms of restitution or compensation. Thus, Article 208 bis (A) allows for precautionary measures to be taken against the defendant’s assets. This approach was also taken by the legislator in Article 10 of Law No. 62 of 1975 regarding Illicit Gain, Law No. 8 of 2015 regarding Terrorist Entities, and Law No. 94 of 2015 on Anti-Terrorism.

To understand the legislative framework governing precautionary measures, it must be noted that these procedures—which are temporary by nature—serve as an exception to the general rule, general rights, and established judicial principles, particularly those relating to the presumption of innocence (Article 96 of the Constitution) as well as the constitutional protection of private property (Article 35 of the Constitution). Therefore, they must always be viewed and interpreted in the narrowest sense and within the legislative purpose sought by the legislator, which is the satisfaction of the state's financial rights in the event a judgment ordering restitution or compensation is issued against the defendant; any argument to the contrary would turn these measures from precautionary and temporary procedures into a punishment.

Given the nature of these precautionary measures, the legislator was keen—when regulating them in Articles 208 bis (A) and 208 bis (B) and the amendments made to them pursuant to Article 1 of Law No. 174 of 1998 regarding the amendment of certain provisions of the Code of Criminal Procedure and the Penal Code—to observe these principles.

This was especially emphasized after the Supreme Constitutional Court, in its session on 5/10/1996, ruled the first paragraph of Article 208 bis (A) of the Code of Criminal Procedure issued by Law No. 150 of 1950 to be unconstitutional, and declared the invalidity of its second and third paragraphs as well as Article 208 bis (B) of said law, in Appeal No. 26 of Judicial Year 12.

What are the crimes specified by law in which freezing measures may be taken against defendants?

Codifying the issue of preventing the disposal and administration of defendants' assets—as a departure from the fundamental rules regarding the presumption of innocence and the necessary protection of private property, as explained above—required the legislator to limit this exception to specific crimes to the exclusion of others. Article 208 bis (A) came to specify these crimes exhaustively, which are:

• Crimes provided for in Chapter Four of Book Two of the Penal Code, entitled "Embezzlement of Public Funds, Aggression Against Them, and Treachory," which includes Articles 112 to 119 of the Penal Code.
• Crimes committed against funds owned by the state, public authorities or institutions, their affiliated units, or other public legal entities.
• Crimes in which the law requires the court to rule, on its own motion, for the restitution of the amounts or the value of the items subject to the crime, or to compensate the aggrieved entity.
• Drug-related crimes and illicit gain crimes.
• Terrorist offenses provided for in the Anti-Terrorism Law No. 94 of 2015, or inclusion on terrorist lists pursuant to Law No. 8 of 2015.

Who are the individuals whose assets are frozen as a temporary and precautionary measure?

The persons addressed by the legal regulation governing the freezing of assets are, as a general rule, defendants in the crimes specified by law in which judicial authorities are permitted to issue asset-freezing decisions. However, as an exception to this rule, the assets of the spouses and minor children of these defendants may also be frozen, provided that sufficient evidence is available showing that their funds were derived from the crime subject to investigation and devolved to them from the defendant. In this case, they must be included in the Public Prosecution's request or the Prosecutor General's order—as the case may be—and the matter is submitted to the competent criminal court.

Who holds the authority to issue an asset-freezing decision?

The general rule is that freezing assets is a decision held by competent criminal courts upon request from the Public Prosecution. As an exception to this rule, in urgent cases, the Prosecutor General has the authority to order the freezing of assets, provided that this order is submitted within a time frame specified by law to the competent criminal court to confirm, cancel, or modify the Prosecutor General's decision.

This is the approach taken by the legislator in the Code of Criminal Procedure: under Article 208 bis (A) thereof, the freezing of assets is done upon a request from the Public Prosecution submitted to the competent criminal court, and in urgent cases, the Prosecutor General issues a temporary order to freeze, provided it is presented to the court within a maximum of seven days from the date the order is issued; otherwise, the order shall be considered null and void.

This was also followed by the Egyptian legislator in the Terrorist Entities Law No. 8 of 2015, which required that the Prosecutor General's freezing order be submitted to the competent criminal court, though it granted a longer period for submission to the court, amounting to one month from the date the order was issued.

The legislator confirmed in Anti-Terrorism Law No. 94 of 2015 the applicability of the Code of Criminal Procedure's provisions relating to asset freezing to the procedures followed in terrorist crimes, as well as the authorities' commitment to those rules.

It should be noted here that Terrorist Entities Law No. 8 of 2015 established a legal framework to confront terrorist entities by giving competent criminal courts the authority to list individuals or entities on terrorism lists, which results in freezing their assets and preventing them from disposing of them.

How can one appeal or contest asset-freezing rulings?

The legislator established a specific path to contest asset-freezing and anti-disposal rulings under Article 208 bis (B), by allowing anyone against whom a ruling was issued to file a grievance against that ruling before the competent criminal court after three months have passed from the date of the ruling prohibiting disposal or administration. The grievance is filed via a statement at the clerk's office of the competent criminal court, and the court president must schedule a hearing to consider this grievance, serving notice thereof to the aggrieved party and all interested parties. Finally, the legislator obligated the competent criminal court to decide on the grievance within a period not exceeding fifteen days from the date of its filing.

Dr. Ahmed Fathi Sorour states in his book "Al-Waseet in the Code of Criminal Procedure" regarding the nature of this grievance:

"...Furthermore, despite being called a 'grievance' (Tazallum), it does not address an administrative decision aimed at withdrawing or canceling it; rather, it is a special form of appeal against a judicial ruling aimed at reviewing it, subject to special rules that deviate from the general rules of appealing judicial rulings. The court considers it in its capacity as a second instance of the investigative judiciary. This requires that the circuit considering the grievance be different from the circuit that confirmed the freeze or previously considered the grievance, in application of the general rules regarding judicial impartiality guarantees concerning recusal and disqualification." (Al-Waseet in the Code of Criminal Procedure – Book One – Tenth Edition 2016 – Dar Al-Nahda Al-Arabiya – p. 1133)

What is meant by freezing, and what is the difference between prohibiting the disposal of assets and prohibiting their administration?

Freezing assets (al-tahaffuz 'ala al-amwal) is a general legal term that means temporarily disabling the controller's ability to deal with those assets, whether by disposing of them or administering them. Thus, freezing as a term includes prohibiting the disposal of assets and the exercise of ownership rights over them—whether through disposal, assignment, or other rights—as well as prohibiting the administration of those assets.

The essential difference between prohibiting the disposal of assets and prohibiting their administration lies in the nature of those assets. Generally speaking, as a result, under a prohibition of disposal, the frozen assets usually remain in the possession of their owner, but they are temporarily deprived of disposing of them. Under a prohibition of administration, however, control over the frozen assets shifts to an entity that manages them according to specified conditions.

What is the fate of assets subject to a freezing ruling?

The core idea behind freezing assets as a temporary and precautionary measure is to preserve the rights of others and guarantee the satisfaction of their claims should a final and unappealable ruling ordering compensation or restitution be rendered—as previously explained. Therefore, frozen assets are not confiscated, nor is the owner expropriated of them; rather, they are preserved for a specific, temporary period until the legal dispute concerning them is resolved.

To understand the fate of these frozen assets, a distinction must be made between a decision prohibiting disposal and a decision prohibiting administration:

• In the first case—prohibition of disposal—the assets generally remain in the owner's possession, as mentioned.
• In the second case—prohibition of administration—control over those assets transfers to an entity designated by the court that issued the prohibition of administration. That entity receives the assets, inventories them, and manages them, and it is obligated—upon the conclusion of the asset-freezing measures—to return those assets along with any profits they may have generated, pursuant to Article 208 bis (A) of the Code of Criminal Procedure and Article 8 of Terrorist Entities Law No. 8 of 2015.

However, it should be noted that with the issuance of Law No. 22 of 2018, the Committee for the Procedures of Freezing, Administering, and Disposing of Assets of Terrorist Groups and Terrorists became the body competent to execute judicial rulings and perform the inventory of private funds related to all such rulings issued by the Summary Court (Mahkamat al-Umur al-Musta'jala) concerning terrorist groups and terrorists. Pursuant to Article 11 of the aforementioned law, that Committee may request the court to dispose of the assets and transfer their ownership to the Public Treasury, and the Summary Court issues its ruling upon the Committee's request.