In Absentia Convictions: Legal Placeholders

In Egypt, in absentia convictions and sentences (judgments entered in the absence of the defendant) are not "real" convictions or sentences. They are more like legal placeholders.

If a case is called for trial and a defendant fails to appear, in Egypt and some other countries the trial court will proceed to summarily enter a conviction and sentence in absentia. The sentence will almost always be the statutorily allowed maximum because if the defendant later appears in court the in absentia conviction and sentence will be vacated, a real trial will be held, but if the defendant is convicted the sentence imposed in the real trial can be no greater than that imposed in the in absentia proceeding.

So, maximum sentences following in absentia convictions, including death sentences, carry no meaning other than that the court followed the routine procedure for preserving the full range of sentencing options for any future court conducting a real trial.

Is it any wonder, then, that Egypt's Ministry of Foreign affairs issues statements characterizing as disingenuous the frequent international outcry over of death and other harsh sentences imposed in absentia, as if such sentences were real?

Egypt's practice of entering in absentia convictions and sentences was patterned after the practice in the French legal system—the old French legal system. France modernized its legal standards and procedures for cases in which the defendant has not yet been apprehended or is otherwise absent, but Egypt has not, at least not yet. Given the huge damage its current practice is to the national interest, sooner or later Egypt will surely modernize its procedure.

In the meantime, no more should be made of in absentia convictions and sentences than is factually justified.

That said, in absentia convictions do carry some legal consequences, as noted by Counselor Sarwat Abd El-Shaheed in his legal analysis of the practice. (Read here.) He concludes that the practice violates both the Egyptian constitution and Egyptian standards of due process of law.

Most obviously, to convict and sentence an absent defendant without a trial on the merits, even if the conviction is no more than a legal placeholder, is logically irreconcilable with the presumption of innocence.

Also, no lawyer or other representative of an absent defendant is allowed to enter an appearance or speak on the defendant's behalf in in absentia proceedings, even to offer an explanation for the defendant's absence or to challenge the legality of the criminal charge or charges.

The first paragraph Article 96 of the Egyptian constitution states, "The accused person is presumed innocent until proven guilty in a fair legal trial in which the right to defend himself is guaranteed."

By that fundamental Egyptian standard of justice, the practice of entering in absentia convictions and sentences without any sort of hearing on the merits or an opportunity to be represented by a lawyer fails the test.

But, until the law of procedure requiring trial courts to enter in absentia convictions and sentences when defendants fail to appear for trial in changed or struck down as unconstitutional by the Supreme Constitutional Court, trial judges will continue to enter such convictions and impose maximum sentences. But, no more should be made of such convictions and sentences than what they are, and are not.