About Guarantees Provided By Law for a Defendant in a Felony

First of all, it is worth noting that guarantees provided by law for a defendant in a felony include the following:

The law makes it incumbent that a lawyer should attend with the suspect in a felony during investigations of the Public Prosecution (Article No. 134 of the Criminal Procedures Code).

In addition, by virtue of the law, a lawyer of first instance, should attend with the defendant in a felony before the criminal court and should show serious defense before it, and the court shall not question the defendant except after the approval of his lawyer (Article No.377 of the Criminal Procedures Code).

Furthermore, the law obliged the judge not to build his ruling on an evidence which has not been brought up or referred to him during the hearing session, and not to count on a piece of evidence that emerged as a result of coercion or threat (Article No. 302 of the Criminal Procedures Code).

The law allowed whoever convicted in a felony to challenge the ruling before the Court of Cassation (Article No. 30 of Law No. 57 for the year 1959 concerning cases and procedures of appeal before the Court of Cassation).

The law permits reconsideration of irrevocable rulings that are issued in articles of felonies (and misdemeanors) in some cases, particularly of which is the appearance of documents or incidents that would assert acquitting the defendant.

With respect to the aforementioned, the law gives the defendant a package of guarantees during and after both stages of investigation and trial that ensure the defendant a fair trial in which hisher defense is thoroughly listened to in absolute freedom in accordance with the standards and rules of a fair trial set by Amnesty International.

This is for the defendant in a felony, in general. However, if the defendant is sentenced to death, the law provides, in addition to the aforementioned guarantees, the following guarantees:

First: The court shall consult the Mufti of the Republic before issuing the death sentence (Article 381 of the Criminal Procedures Code) so that the judge shall be completely sure that Islamic law (Sharia) articles permit the death penalty regarding the lawsuit in question. This shall take place by a decision of the court and is considered as one of the lawsuit procedures rather than a final verdict by which the judge has no right to look into the case. Also, the court is not obliged to carry out the decision of the Mufti whether in respect to the lawsuit or to the defendants. Consequently, the court is allowed to issue another ruling instead of the death penalty against the defendant mentioned in the decision of the Mufti. In this respect, these legal rules are applied to the ruling of the Minya Criminal Court which consulted the Mufti concerning 528 defendants. However the court sentenced only 38 defendants of them to death out of whom 33 were sentenced in absentia. This way, the sentence against those tried in absentia shall be null and void once they are arrested. And then, retrial procedures shall be carried out with respect to these defendants.

Second: Capital punishment shall not be issued except by a unanimous decision of the jury [Article 381 of the Criminal Procedures Code, which is reassuring that all judges of the jury approved the death penalty and affirming that the penalty is not a matter of disagreement].

Third: The law permits the convict to challenge the death penalty by virtue of Article 30 of the Law of Cases and Procedures of Appeal before the Court of Cassation No. 57 for the year 1959.

Fourth: The law permits the Public Prosecution to challenge the death sentence in favor of the defendant if it finds a loophole in the verdict [the aforementioned article].

Fifth: Article 46 of the aforementioned law, concerning the death sentence pronounced in the presence of the convict, stipulates that the Public Prosecution should submit the case, together with a memorandum of the qualified opinion, to the Court of Cassation. The Court of Cassation is competent to look into the case as long as the death sentence pronounced in the presence of the convict. Meanwhile the Court of Cassation is entrusted by Law to be invested with powers to consider all objective and formal elements of the ruling in addition to its monitoring of all rulings other than those of capital punishment. The Court may use its powers to challenge any breach of law or invalid verdict or even on its own initiative, unrestricted by the appeal or the opinion brought by the Public Prosecution concerning these rulings. The jurisdiction of the Court of Cassation is like that of the Court of Appeal it overrules and annuls the ruling due to any perceived mistake therein even if the convict has relinquished his right to appeal.

In this context, regardless of whether the convicts or the Public Prosecution challenged the ruling or not, the decision issued by the Minya Criminal Court is submitted by the force of law to the Court of Cassation, in accordance with Article 46 of the aforementioned Law of Cases and Procedures of Appeal, to re-examine how far it has applied the law along with the validity of the trial procedures and to issue a ruling, at its own discretion, challenging the decision due to any perceived loophole in this concern.

Assistant Justice Minister for the Minister’s technical office affairs

CounselorAhmed Abdel Qawy Ahmed

Deputy Chief Justice of the Court of Cassation

Source : Egypt State Information Service