Introductory Note: Counselor Sarwat Abd El-Shahid is a former Judge and Counselor (a senior judicial rank) of the Egyptian State Council (Conseil d'Etat), now in the private practice of law. He is the founder and managing partner of Shahid Law Firm.
Below is his legal analysis of Egypt's rule of criminal procedure pursuant to which absent defendants are convicted in absentia (in their absence) and are typically sentenced to the maximum possible sentence, because a defendant who later appears in court is entitled to a retrial (real trial), but if convicted can receive no greater sentence than was imposed in absentia. Counselor Sarwat Abd El-Shahid maintains the practice of convicting and sentencing defendants in absentia violates Egypt's constitution and basic standards of justice. His point in Section IV of his analysis is buttressed by Article 93 of the 2014 constitution, which states: "The State is committed to the agreements, covenants, and international conventions of human rights that were ratified by Egypt. They have the force of law after publication in accordance with the specified circumstances."
The Phenomenon of Existence of Plenty of Criminal Judgments in Absentia in Egypt Due to the Non-Acceptance of Hearing the Defense of the Absent Accused Person in Felonies
The Public Prosecution and criminal courts insist on not hearing the defense of the attorney representing a defendant in absentia, pursuant to Article 388 of the Egyptian Criminal Procedural Law, which prohibits the attorney of a defendant in absentia from appearing before criminal courts in order 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 although they are deemed an integral part of the Egyptian legislation and supersede laws in application. Further, said Article contradicts with explicit judicial precedents rendered by the Supreme Constitutional Court as illustrated and clarified in the following sections.
The Egyptian Criminal Procedural Law is one of the oldest laws in force in Egypt. It was issued in the year 1951, i.e. 64 years ago. This Law was adopted from the French Criminal Procedural Law and remained as is despite that many amendments were incorporated to the French Code which led that several provisions thereof have been amended or replaced by new modern regulations and procedural alternatives that conform with the concepts of guaranteeing and protecting human rights, one of which granted the defendant in absentia to be entitled to appoint a defense attorney.
II. The Judgments in absentia due to the provision of Article 388 entails flagrant violation of the established legal principles related to fair trials, mainly the impartiality of the judge (1)
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 entirely not biased towards any inclination or trend, harboring preconceptions about the matter put before him. The absence of the judge’s impartiality makes him incompetent to sit for judgment and leads to his recusal or disqualification, as established by the judgments rendered by Court of Cassation, among which the latest Judgment No. 2303 of the judiciary year 71, issued in the hearing of January 27, 2013.
“Judgment in absentia” is a description related to the absence of the defendant and does not completely relate to the content of the judgment and the Court’s conviction regarding the case. Because the Court, whether the defendant is present or in absentia, should have read the Case, formed its conviction then rendered its judgment.
Hence, the only method for the defendant to challenge a sentence based on a judgment in absentia, is requesting the remand of procedures before the same Court that rendered such judgment pursuant to Articles 395 and 401 of the Criminal Procedural Law. Accordingly, permitting the same Court to deliberate the case once more following the issuance of a judgment in absentia therein means that the judge has at least an inclination of the mind or a preconceived opinion regarding the merits of the case.
This burdens the defendant with a doubled hardship, represented in exerting efforts for clearing the Court’s preconceptions that were harbored 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 defense. (2)
III. Article 388 violates the provisions of the Constitution and the precedents of the Supreme Constitutional Court
This 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.”
Whereas Article 97 stipulates that:
“The right of defense in person or by proxy is guaranteed ….” (3)
The explanatory memorandum of Law No. 16 of the year 2015 amending certain provisions of the Criminal Procedural Law promulgated on March 12, 2015, permitted settlement in certain crimes even if the judgment related thereto is rendered in absentia as well as allowing the appointment of an attorney to represent the absent defendant for finalizing the negotiations and settlement and putting an end to the criminal action. Accordingly, said memorandum admitted the following, ad verbum: "6. The provision tackles the issue of judgments rendered in absentia. Due to the conditions experienced by our country, the provision permitted the absent convicted defendant to submit a settlement request via his proxy (attorney) and undertake all procedures for the remand of procedures on behalf of the convicted. Such conforms with the present Constitution that guarantees the right of defense in person or by proxy."
IV. Said Article violates the international conventions to which Egypt is a party (4)
1) Article 14.3.d. of the International Covenant on Civil and Political Rights (“ICCPR”) to which Egypt acceded in 1982, stipulates that:
“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.”
2) Article 6.3.c of the European Convention for the Protection of Human Rights (“ECHR”) 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 ICCPR, and whereas 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, Court of Cassation, and 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.
V. The Egyptian jurists’ stance on Article 388
Under the Egyptian judicial system, the rules regarding trial of an accused of a felony in absentia are extremely harsh, and are repeatedly criticized by Egyptian jurists for curtailing the right of the accused to a fair trial. In particular, prohibiting or allowing an accused to have a legal representative to defend him 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. (5)
VI. Application of this defective Article during the investigation and interrogation is legally ungrounded
Although the aforesaid 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 Public Prosecution refers the absent accused person to the criminal court, depriving him of the benefit of the preparatory investigation phase and the judgment will be rendered in absentia without hearing his defense. This led to the phenomenon of issuing many judgments in absentia.
VII. Legal and Factual Consequences of the unfair judgments in absentia
Based on the judgment in absentia, the Public Prosecution (i) includes the accused person’s name in the list of wanted persons to be arrested upon their arrival at the ports of entry, (ii) bans him from traveling, and (iii) notifies the International and Arab Criminal Police Organization (Interpol) to search for and arrest the defendant. The condemned
in absentia is further deprived from disposing of, or managing, any financial affairs, or has no capability to file any legal action (known as civil death). He is not also allowed to issue a power of attorney to any lawyer or person to represent him in any conciliation that he wishes to make and that may release him from or stay the execution of the penalty. The Administrative Court confirmed the foregoing by its judgment rendered in case no. 4690 of judiciary year 69 dated January 27, 2015, upholding the Egyptian Minister of Foreign Affairs’ decision that rejected notarizing a power of attorney a condemned person in absentia wished to issue, at an Egyptian Embassy abroad, to a lawyer for negotiating on his behalf the conciliation/settlement with the State. 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 have been challenged before the Egyptian Supreme Constitutional Court in the 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 the phenomenon of the judgments in absentia in felonies. All judgments should be rendered in presence by setting forth a provision permitting the appearance of an attorney representing the absent defendant in felonies.
Sarwat Abd El-Shahid
Chairman & Founder
Lawyer of the Supreme Court
Former Conseil d’Etat Judge
Shahid Law Firm
June 25, 2015
 A series of articles for Counselor Bahaa Abou Shaqa, Lawyer of the Supreme Court, published in El-Wafd Newspaper.
 Judgment rendered by the Supreme Constitutional Court in Case no. 196 of constitutional judiciary year 35 in the hearing of November 8, 2014.
 Judgment recently rendered by the Court of Cassation in Case No. 20238 of the judiciary year 84 in the hearing of January 24, 2015.