Public prosecution and criminal courts in Egypt insist on not hearing the defence of an attorney representing a defendant in absentia. This is pursuant to Article 388 of the Egyptian Criminal Procedural Law, which prohibits the attorney of a defendant in absentia from appearing before the criminal courts to defend or represent the accused in a felony. This article is defective and represents an explicit breach of the provisions of the Egyptian constitution and international conventions to which Egypt is a party, even though they are deemed an integral part of the Egyptian legislation and supersede laws in application. Furthermore, the article contradicts explicit judicial precedents rendered by the Supreme Constitutional Court, as illustrated and clarified below. The Egyptian Criminal Procedural Law is one of the oldest laws in force in Egypt. It was issued 64 years ago, in 1951. The law was adopted from French Criminal Procedural Law and has remained as it is, despite the fact that many amendments have been incorporated into the French Code. Several provisions in the French Code have been amended or replaced by new regulations and procedural alternatives that conform to the concepts of guaranteeing and protecting human rights, including granting a defendant in absentia the right to appoint a defence attorney. Judgements in absentia in Egypt, due to the provision of Article 388, entail flagrant violations of established legal principles related to fair trials, mainly the impartiality of the judge. This principle is the cornerstone of a fair trial, which assumes that the court (judge) has a state of mind free from knowledge of the merits of the case that it/he hears. It also assumes that the judge is not biased towards any inclination or trend and harbours no preconceptions about the matter put before him. The absence of the judge's impartiality makes him incompetent to sit in judgement and leads to his recusal or disqualification. “Judgement in absentia” relates to the absence of the defendant and does not completely relate to the content of the judgement and the court's conviction regarding the case. This is because the court, whether the defendant is present or in absentia, should have read the case before it, formed its convictions and then rendered its judgement. Hence, the only method for the defendant to challenge a sentence based on a judgement in absentia is by requesting the remand of procedures before the same court that rendered such a judgement pursuant to Articles 395 and 401 of the Criminal Procedural Law. Permitting the same court to deliberate the case once more, following the issuance of a judgement in absentia, means that the judge has at least an inclination about, or a preconceived opinion towards, the merits of the case. This burdens the defendant with a double hardship, represented by exerting efforts to clear the court's preconceptions that were harboured in the first trial, and then attempting to convince it anew of another belief contrary to the one previously formulated. This explicitly breaches the right of defence. Article 388 also violates the provisions of the constitution and the precedents of the Supreme Constitutional Court. The article explicitly violates Articles 96 and 97 of the current Egyptian constitution and the like provisions in previous constitutions. Article 96 stipulates that “a defendant is presumed innocent until proven guilty in a fair legal trial, in which the right to defend himself is guaranteed.” Article 97 stipulates that “the right of defence in person or by proxy is guaranteed.” This was confirmed by the judgement rendered by the Supreme Constitutional Court in case No. 196 of constitutional judiciary year 35 in the hearing of 8 November 2014. Moreover, the said article violates the international conventions to which Egypt is a party, including Article 14.3.d. of the International Covenant on Civil and Political Rights (ICCPR), to which Egypt acceded in 1982. The covenant stipulates: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.” It also violates Article 6.3.c of the European Convention for the Protection of Human Rights (ECHR), which reads: “Everyone charged with a criminal offence has the following minimum rights: (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” As long as Egypt is a party to the ICCPR, and while the constitution and said convention supersede and prevail over the provisions of the Egyptian law, in accordance with the precedents established by the Supreme Constitutional Court, the Court of Cassation and the Conseil d'Etat, a judge is bound to apply the provisions of the constitution and the international conventions, even if in conflict with the provisions of domestic laws. The foregoing was confirmed by the recent judgement rendered by the Court of Cassation in case No. 20238 of judiciary year 84 in the hearing of 24 January 2015. Under the Egyptian judicial system, the rules regarding the trial of someone accused of a felony in absentia are extremely harsh, and have been repeatedly criticised by Egyptian jurists for curtailing the right of the accused to a fair trial. In particular, prohibiting or not allowing an accused to have a legal representative to defend himself in his absence deprives the accused of the opportunity to prove his innocence at an earlier stage, which would benefit the criminal justice system itself. The application of this defective article during the investigation and interrogation is also legally ungrounded. Although Article 388 addresses only criminal felony courts, the public prosecution insists on applying it during the interrogation and investigation phase by not permitting the attorney/counsel to appear before it to defend the absent defendant in a felony. Thus, the prosecution refers the absent accused person to a criminal court, depriving him of the benefit of the preparatory investigation phase, and the judgement will be rendered in absentia without hearing his defence. This has led to the phenomenon of issuing many judgements in absentia. There are legal and factual consequences of unfair judgements in absentia, since, based on such a judgement, the public prosecution (i) includes the accused person's name on the list of wanted persons to be arrested upon their arrival at ports of entry; (ii) bans him from travelling; and (iii) notifies the International and Arab Criminal Police Organisation (Interpol) to search for and arrest the defendant. A person condemned in absentia is further deprived of disposing of, or managing, any financial affairs, or has no capability to file any legal action (known as civil death). Any disposal or obligation undertaken by him is considered null and void, in accordance with Article 390 of the Egyptian Criminal Procedural Law. The constitutionality of Articles 388 and 390 of the Egyptian Criminal Procedural Law has been challenged before the Supreme Constitutional Court in constitutional case No. 151 of judiciary year 31. Despite all these defects and consequences, the legislator remains a bystander while he should promptly interfere to rectify them by legal provisions that repeal the aforesaid article and revoke judgements in absentia in felony cases. All judgements should be rendered by setting forth a provision that permits the appearance of an attorney representing the absent defendant in felony cases. The writer is lawyer of the Supreme Court.
