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.
