Criminal Defendant Rights in Reality: Egypt’s Failure to Uphold Protections Under the 2014 Constitution and Why it Matters

By Caleb Siebeneck

In 2014, Egypt passed a new constitution by referendum.[1] Egypt’s passage of a new constitution caped a turbulent few years of political and constitutional turmoil.[2] Prior to the enactment of the 2014 Constitution, Egypt saw, after the fall of former President Mubarak,[3] constitutional changes via amendments by referendum in March 2011, and then, the enactment of an entirely new Constitution in 2012.[4] After subsequent protests, involving the same spirit and similar issues as the earlier 2011 Arab Spring protests, a military coup ousted then-president Morsi in 2013.[5] Egypt’s Constitution was then suspended so experts and delegates from all political corners could consider how to amend or pass a new constitution that would meet all relevant parties’ concerns.[6] A new constitution, which is Egypt’s current constitution and the document under review here, passed in 2014 by referendum.[7]

Given that criminal procedure in the Middle East and North Africa has long been scrutinized due to rights violations,[8] provisions regarding criminal defendant rights are a focus of the newest Egyptian Constitution.[9] However, concerns exist surrounding whether criminal defendant rights under Egypt’s 2014 Constitution are being upheld.[10] Whether the rights enumerated in a constitution are being upheld will affect aspects of a new constitution’s legitimacy.[11] There are three broad categories of criminal defendant rights under the 2014 Constitution: the right to counsel, standards and rights of detainment, and the right to a fair trial.[12] While ample evidence exists showing that the new Constitution’s provisions on the right to counsel and right to a fair trial are being abused, ignored, and circumvented,[13] the ways that Egyptian authorities abuse, ignore, and circumvent detainee’s rights and protections against arbitrary detainment are the most compelling evidence that defendants’ rights are not being sufficiently upheld in practice, despite the appearance of a new Egyptian Constitution with protections.[14] This conclusion indicates legitimacy concerns for Egypt’s new Constitution.[15]

To begin, standards and rights of detainment are articulated in Articles 54 and 55 of Egypt’s Constitution.[16] Article 54 states that defendants may only be detained by warrant or if caught “flagrante delicto,” which means “in the act.”[17] The Article lays out how detainees should be treated, time requirements for informing detainees of charges, and the right to have the judiciary review the detainment.[18] Article 55 further elaborates that detainees should be treated “in a way that preserves their dignity” and enumerates detainees’ right to remain silent.[19]

The Egyptian Code of Criminal Procedure[20] supplements pretrial (preventative) detention law.[21] Under Article 137 of the Code of Criminal Procedure, the prosecutor has free reign to request that an accused party be detained.[22] Article 139 states that detainees and arrestees must “immediately be notified of the charges made” against them and provides them the ability to notify someone about their detainment and to have an attorney.[23]

The Egyptian code also specifies time periods, as well as exceptions and extensions to these time periods, for permissible pretrial detention.[24] There is a fifteen-day maximum period allowed for temporary detention under the Code of Criminal Procedure.[25] This fifteen-day maximum does not apply if the investigating magistrate hears a statement about why the accused should or should not remain in detention from both the prosecution and the accused.[26] The investigating magistrate may then extend the period of detention as long as the period does not exceed forty-five days.[27] Article 143 of the code allows for an even longer period of pretrial detention if the “investigation has not been concluded” and the “investigating magistrate deems it necessary.”[28] This article requires that, prior to the initial forty-five day allowance of pretrial detention running out, a chamber of the Misdemeanor Court of Appeal review the case and issue an extension of detainment in forty-five day increments not to exceed six months.[29] Although, If the accused party is placed under a competent court’s jurisdiction and charged with a crime, a pretrial detention extension may be granted by that court.[30] Generally, maximum time periods of pretrial detention are based on classification: six months for misdemeanors, eighteen months for felonies, and two years for felonies punishable by life in prison or death.[31]

An exterior view of Tora Prison in Egypt, which holds thousands of political prisoners (mainly pre-trial detainees). Image courtesy of Khaled Desouki/Agence France-Presse — Getty Images.

While Egyptian law limits the state’s detainment powers and grants detainees protections, detainees’  rights are nonetheless being abused, ignored, circumvented, and violated in practice.[32] Authorities invoke legal strategies to circumvent (or simply ignore) the Constitution and code that lay out pretrial detention maximums.[33] One method is based on conflicting assessments by legal experts that there is no limit on the length of detention for defendants during the trial period of life imprisonment and death penalty cases. [34] While two years is the maximum period of pretrial detention for felonies punishable by life in prison or death, if authorities begin a trial and “prolong the duration” of a trial, detention is prolonged.[35] Crimes punishable by life in prison or death include crimes like “joining a banned group,” and these life and capital crimes may be added onto cases for nonlegitimate purposes.[36]

Furthermore, “rotation” and “detention pending multiple cases” are two more ways state authorities circumvent pretrial detention law.[37] Rotation occurs when a new case is brought against a defendant ordered for release, has been held for the maximum pretrial detention limit, or who has served a full criminal sentence.[38] The new case allows the pretrial detention limits to be reset at zero.[39] This strategy creates the possibility of indefinite pretrial detention.[40] In the above-mentioned situations, the additional case(s) brought against a defendant may occur before the defendant is physically released or after they have been released but under probationary measures.[41] Detention pending multiple cases works similarly and occurs when authorities bring new cases against defendants already in pretrial detention, therefore, detainees are detained via separate cases.[42] These circumvention strategies work around the Constitution and statutes to make detainees “subject to indefinite detention” in Egypt.[43]

The case of inmate Abdulrahman el-Showeikh’s mother provides a key example of these concepts.[44] Authorities in el-Showeikh’s case circumvented pretrial detention law by applying the strategy, supported by legal experts, that there is no limit on the length of detention for defendants during the trial period of life imprisonment and death penalty cases.[45] After being arrested for other crimes, prosecutors later added charges of “joining a terrorist group, (a life sentence and death penalty crime),” which sets up a strong justification for prolonged detainment, upon commencement of her trial.[46] This example is not an anomaly as investigative research by the New York Times, involving an analysis of thousands of Egyptian court logs, found that about 11,700 detainees were charged under terrorism offenses in the seven years prior to 2020.[47]

Examples of Egypt’s use of legal strategies including rotation and detention pending multiple cases to circumvent constitutionally-based pretrial detention law are abundant.[48] For example, activist Mohamed Adel was under probationary measures from a prior sentence that required him to spend nights at a police station.[49] On June 19, 2018, while spending a night at the station, he was detained for fifteen days pending an investigation of “spreading false information” and “attempting to harm state institutions” based on his recent Facebook posts.[50] On July 3, 2018, less than fifteen days later, he moved to a new prison, and a prosecutor announced Adel was under investigation for a new case, the facts of which were unknown.[51] Regarding use of the rotation strategy, the state held Adel for fifteen days, the maximum allowed for temporary detention without requiring further approval by an investigating magistrate.[52] The fifteen day maximum period ended without extension, and the new investigation into Adel that opened on July 3, 2018, set his pretrial detention limit back to zero (assuming no extension on initial detainment was granted), which achieved the rotation method’s goal.[53] Detention pending multiple cases can also be seen in Adel’s case.[54] Since the prosecution may have received a detention extension past fifteen days for the crimes that Adel was arrested for on June 19, the new case opened on July 3, 2018, was brought while he was still in detention, thus being detained per multiple cases.[55]

Ultimately, this analysis shows that constitutional criminal defendant rights are not being upheld in practice in Egypt under its newest 2014 Constitution. Criminal defendant rights are important rights in any society, and, along with other constitutional rights, “a constitution will lack legitimacy if its protections [including criminal defendant rights] are not implemented and enforced.”[56] The lack of respect, implementation, and enforcement of these protections has and will continue to cause Egypt’s Constitution to lack legitimacy, something quite harmful to Egypt when it is seeking to overcome the political turmoil it sustained throughout the 2010s.[57] Egyptian scholars and policymakers must craft solutions to help uphold a criminal defendant’s constitutional rights to ensure that protections are properly implemented and fairly enforced. Only then will the newest Egyptian Constitution begin to bear legitimacy.[58]

[1] See Timeline of Constitutions, Comparative Constitutions Project, https://comparativeconstitutionsproject.org/chronology/ (last visited Sept. 10, 2023) (indicating on the timeline that Egypt passed new constitution in 2014).

[2] See generally Egypt Timeline: Since the Arab Uprising, U.S. Inst. of Peace (July 2, 2019), https://www.usip.org/egypt-timeline-arab-uprising.

[3] ICG, Popular Protest in North Africa and the Middle East (I): Egypt Victorious? Crisis Group Middle East/North Africa Report N°101 1,14 (2011).

[4] Katerina Dalacoura, The 2011 Uprisings in the Arab Middle East: Political Change and Geopolitical Implications, 88 Int’l Affs. (Royal Inst. Int’l Affs 1944-) 63, 65 (2012), http://www.jstor.org/stable/41428541; See also Timeline of Constitutions, supra note 1 (indicating on the timeline that Egypt had an interim Constitution in 2011).

[5] See Profile: Egypt's Tamarod Protest Movement, BBC (July 1, 2013), https://www.bbc.com/news/world-middle-east-23131953; Sahar F. Aziz, Independence Without Accountability: The Judicial Paradox of Egypt's Failed Transition to Democracy, 120 Penn St. L. Rev. 101, 106 (2016). While issues similar to those during the 2011 protests played a prominent role in igniting the 2013 protests, backlash the leadership of the ruling Muslim Brotherhood, which was represented by then-president Morsi, was also a critical factor during the 2013 protests. See Profile: Egypt's Tamarod Protest Movement supra.

[6] See Egypt Military: President Morsi Ousted, Constitution Suspended, CBS News (July 3, 2013), https://www.cbsnews.com/news/egypt-military-president-morsi-ousted-constitution-suspended/.

[7] See Timeline of Constitutions, supra note 1 (indicating on the timeline that Egypt passed new constitution in 2014).

[8] See, e.g., Systematic Violations of Fundamental Rights and Freedoms:Egypt’s Human Rights Crisis, MENA Rts. Grp. (Apr. 1, 2019), https://menarights.org/en/documents/systematic-violations-fundamental-rights-and-freedoms-egypt.

[9] Constitution of the Arab Republic of Egypt, 18 Jan. 2014, arts. 54–55, 96, 98.

[10] See, e.g., Egypt: 7,400 Civilians Tried in Military Courts, Hum. Rts. Watch (Apr. 13, 2016), https://www.hrw.org/news/2016/04/13/egypt-7400-civilians-tried-military-courts (indicating the thousands of defendant rights abuses in Egypt at the hands of military tribunals only three months after Egypt passed a new constitution).

[11] See generally Darin E.W. Johnson, Beyond Constituent Assemblies and Referenda: Assessing the Legitimacy of the Arab Spring Constitutions in Egypt and Tunisia, 50 Wake Forest L. Rev. 1007, 1012 (2015) (“[A] constitution will lack legitimacy if its protections are not implemented and enforced.”).

[12] See Constitution of the Arab Republic of Egypt, supra note 9.

[13] See, e.g., Egypt: 7,400 Civilians Tried in Military Courts, supra note 10 (indicating the thousands of defendant rights abuses in Egypt at the hands of military tribunals only three months after Egypt passed a new constitution); See, e.g., Egypt: Fresh Assault on Justice, Hum. Rts. Watch (Apr. 29, 2014), http://www.hrw.org/news/2014/04/29/egypt-fresh-assault-justice (providing an example of a court sentencing defendants to death without any lawyers present for any of them).

[14] See generally Yasmin Omar & Mai El-Sadany, Indefinite Pretrial Detention in Egypt: Rotation and Detention Pending Multiple Cases, The Tahrir Inst. for Middle East Pol’y (Feb. 9, 2021), https://timep.org/explainers/indefinite-pretrial-detention-in-egypt-rotation-and-detention-pending-multiple-cases/ (providing examples of how authorities circumvent the legal protections for pre-trial detention rights in Egypt).

[15] See generally Johnson, supra note 11, at 1012 (“[A] constitution will lack legitimacy if its protections are not implemented and enforced.”).

[16] Constitution of the Arab Republic of Egypt, supra note 9.

[17] Id. art. 54.

[18] Id.

[19] Id. art. 55.

[20] Criminal Procedure Code, (Egypt), (translated by Egypt Justice at this link https://static1.squarespace.com/static/554109b8e4b0269a2d77e01d/t/554b9890e4b029f0ef3a188d/1431017616683/Egypt+Criminal+Procedure+Code_English_Final.pdf.)

[21] See generally Criminal Procedure Code, Part III, arts. 135-43, (Egypt) (detailing the law and rules surrounding the use of detention orders in Egypt before a defendant’s trial). Please note that specific section and numerical references to the Egyptian Code of Criminal Procedure that occur hereafter are in reference to the code as reported and translated by https://egyptjustice.com/criminal-law at this link https://static1.squarespace.com/static/554109b8e4b0269a2d77e01d/t/554b9890e4b029f0ef3a188d/1431017616683/Egypt+Criminal+Procedure+Code_English_Final.pdf. Due to the nature of Egypt’s legislative system, issues of translation, and lack of access to official Egyptian legal sources, Egypt Justice’s reporting of a translated Code of Criminal Procedure will be the one being referenced in all citations hereafter.

[22] Id. Part III, art. 137.

[23] Id. Part III, art. 139.

[24] See Omar & El-Sadany, supra note 14.

[25] Criminal Procedure Code (Egypt), supra note 21, at art. 142.

[26] Id.

[27] Id.

[28] Id. at Part III, art. 143

[29] Id.

[30] Id.

[31] Omar & El-Sadany, supra note 14.

[32] See generally id. (providing examples of how authorities circumvent the legal protections for pre-trial detention rights in Egypt).

[33] Id.

[34] U.S. Dep’t of State, Bureau of Democracy, Hum. Rts., & Lab., 2021 Country Reports on Human Rights Practices: Egypt (2022), https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/egypt.

[35] Omar & El-Sadany, supra note 14; U.S. Dep’t of State, Bureau of Democracy, Hum. Rts., & Lab, supra note 34.

[36] U.S. Dep’t of State, Bureau of Democracy, Hum. Rts., & Lab, supra note 34.

[37] See Omar & El-Sadany, supra note 14.

[38] Id.

[39] Id.

[40] Id.

[41] See id.

[42] Id.

[43] Id.

[44] U.S. Dep’t of State, Bureau of Democracy, Hum. Rts., & Lab, supra note 34.

[45] Id.

[46] Id.

[47]  Vivian Yee et al., Egypt’s Revolving Jailhouse Door: One Pretrial Detention After Another, N.Y. Times (July 16, 2022), https://www.nytimes.com/interactive/2022/07/16/world/middleeast/egypt-prisoners.html.

[48] See generally Egypt: UN Intervention Requested Following Arbitrary Arrest of Activist and Co-founder of April 6 Youth Movement Mohamed Adel, Alkarma (June 25, 2018),  https://www.alkarama.org/en/articles/egypt-un-intervention-requested-following-arbitrary-arrest-activist-and-co-founder-april-6. (providing the example of Mohamed Adel’s case where authorities utilized both the rotation and detention pending multiple cases methods of circumvention).

[49] Id.

[50] Id.

[51] Id.

[52] Criminal Procedure Code (Egypt), supra note 21, at art. 142.

[53] Egypt: UN Intervention Requested Following Arbitrary Arrest of Activist and Co-founder of April 6 Youth Movement Mohamed Adel, supra note 48; see also Omar & El-Sadany, supra note 14.

[54] See Omar & El-Sadany, supra note 14.

[55] Id.

[56] See generally Johnson, supra note 11, at 1012 (“[A] constitution will lack legitimacy if its protections are not implemented and enforced.”).

[57] Id.

[58] Id.