Presentation:
Pretrial detention is one of the most crucial components of justice, since it relates to the personal freedom and security of citizens; which the Egyptian Constitution has been always keen to protect.
This significance relies on that pretrial detention may be a tool to deprive citizens of their freedom during the stages of the criminal case, even though the default is acquittal, and before his final ruling of conviction.
Criminal Procedure Law No. 150 of 1950 and its amendments specify the regulations of pretrial detention. In 2006, the Egyptian legislator issued Law No. 145 of 2006, introducing radical amendments to the provisions of pretrial detention, to reduce the chance of imprisoning citizens during their trial stages.
And while such amendments by the Egyptian legislator appear to achieve compatibility with constitutional and procedural legitimacy according to their international standards, however, the practical reality within the corridors of prosecutors and courts – the Supreme State Security Prosecution and the Terrorism Chambers in criminal trials – points out that these amendments are merely ink on paper and do not have practical application.
This paper:
In this paper, we present the process of renewal of pretrial detention before the Minister of Justice decision to hold detention renewal sessions remotely, whether at the Public Prosecution, or the criminal departments in the consultation rooms in Supreme State Security Prosecution cases.
While showing the scene also after the generalization of holding sessions remotely and its impact on those guarantees created by Law No. 145 of 2006.
First: Scenes of detention renewal sessions before becoming remote:
- Scenes of detention renewal sessions before the Supreme State Security Prosecution:
Detention renewal sessions used to be inside the headquarters of the Supreme State Security Prosecution in New Cairo in recent years before the spread of the Corona pandemic in March 2020.
Such sessions used to take place with the presence of the defendants in pretrial detention inside the prosecution headquarters. They usually begin by distributing the defendants among the prosecutors present that day, and asking each defendant individually to enter the room of the prosecutor responsible for examining the renewal, together with his lawyers.
The renewal session in the prosecutor office was limited to the defendant, his defense, and the investigation secretary. The session started by asking the defendant if there were new statements that he wanted to add to his previous statements, and then the defense allowed to prove his defenses in the minutes of the session.
After completing the records of the requests and defenses, most of the time, the prosecutor allowed the lawyer to talk to the defendant and check on his condition and the conditions of his detention, for a few minutes. That used to happen either inside the prosecutor office in the presence of the prosecutor and the investigation secretary, or outside in the presence of the guards accompanying the defendant.
This has been the case until March 2020 with the beginning of the Corona pandemic inside Egypt and the issuance of a decision by the Minister of Justice to suspend hearings. After that, the State Security Prosecution took a new turn in the pretrial detention renewal sessions, mainly the issuance of pretrial detention decisions automatically with neither the presence of the defendants from their custody nor enabling the defense to enter the prosecution headquarters and prove its defense, in a phenomenon known at that time as the renewal on paper.
This situation continued until mid-June 2020 with the resumption of court hearings, and hearing session of detention renewal once again within the Supreme State Security Prosecution in the presence of the defendants from their detention.
However, the sessions do not address defendants separately, since the detention renewal sessions of all defendants of one case take place at the same time and before one prosecutor, overcrowding prosecutor office and stopping the defendant to speak with the prosecutor or his lawyer.
- Scenes of detention renewal sessions pending before the terrorism chambers in the criminal courts:
Detention renewal sessions used to be in the counseling room of the criminal courts, within the Institute of Police Secretaries in the Tora Prison District.
The sessions in the years prior to the Corona pandemic started by identifying a number of departments within the headquarters of the Institute of Police Secretaries and dividing the cases among those departments.
Pretrial detention renewal sessions used to be in the presence of all defendants from their detention, and court bodies ensured the presence of all defendants.
Most of the time, pretrial detention renewal sessions in cases involving large numbers of defendants took place inside the main hall of the court rather than inside the deliberation room, while considering each case separately.
That provided an opportunity for all lawyers present with the defendants in the renewal sessions to talk with the court about the justifications for pretrial detention and the circumstances of each defendant’s arrest, with the court allowing defendants most of the time to address it.
The pretrial detention renewal hearings continued until March 2020 with the beginning of the Corona pandemic within the Arab Republic of Egypt and the issuance of a decision by the Minister of Justice to suspend the hearings.
The pretrial detention sessions for the detained defendants took a new turn, of which the main feature was the automatic issuance of pretrial detention decisions without the presence of the defendants from their detention.
With the detention renewal sessions resuming, they took place in the presence of the defendants, but with a slight change.
It was the designation of one terrorism chamber in Cairo Criminal Courts, terrorism chamber-III, to consider the detention renewal sessions for all presented cases, crowding the courts with defendants and lawyers, and in turn not allowing all lawyers to speak, but rather only one or two lawyers at most. Moreover, this happened most of the time without bringing the defendants from their detention having their renewal sessions without their presence.
Second: Scenes of remote detention renewal sessions:
On October 18, 2020, Counselor Omar Marwan, Minister of Justice, and Dr. Amr Talaat, Minister of Communications and Information Technology, witnessed the launch of the proceedings of the first phase of the project to renew pretrial detention remotely, between New Cairo Court from one side, and Tora, May 15 and Nahda Central Prisons from the other side.
The first stage entailed hearing the session of detention renewal, using modern technological as the judge communicated with the defendants inside their prison through designated rooms in each prison in the presence of their lawyers.
Linking courts and some prisons through closed and secured television networks, in preparation for circulating this project to all courts and prisons.
The meeting was for a group of leaders from the Ministries of Justice, Interior, Communications and Information Technology.
On December 20, 2021, Counselor Omar Marwan, Minister of Justice, issued “Resolution No. 8901 of 2021.”, which now allows judges to hold hearings to consider renewing pretrial detention remotely “using technology,” “taking into account all legal guarantees.”
On February 7, 2022, Counselor Omar Marwan, Minister of Justice, announced in a media statement that the Ministry had succeeded in circulating the project to renew detention remotely, in all Egyptian courts.
On March 1, 2022, the President of the Republic, Abdel Fattah El-Sisi, during his meeting with Prime Minister Dr. Mostafa Madbouli and Minister of Justice Counselor Omar Marwan, directed to expand the link between courts and police facilities, in regards to consideration of remote renewing pretrial detention, and circulating it to various governorates.
In the following lines, we highlight the format for holding renewal hearings after circulating the decision by the Minister of Justice, whether the sessions are before the State Security Prosecution or before the criminal departments in the consultation room in matters relating to the investigations of the Supreme State Security Prosecution.
- Renewal of detention g before the Supreme State Security Prosecution via video conference calls
In late May 2023, Attorney General of the Supreme State Security Prosecution issued a decision. The decision was to hold hearings to renew the detention of the defendants before the Supreme State Security Prosecution via video conference calls starting Saturday 10 June 2023, and after preparing one of the halls inside New Cairo Court (the building next to the Supreme State Security Prosecution).
The sessions at that time took place as follows; selecting one prosecutor from those present at the prosecution headquarters and moving with one of the prosecution secretaries, along with the minutes of the sessions only.
Next is to submit the issues to the hall designated for the renewal, which is an empty hall in which there is only one office for the prosecutor and a screen equipped with a camera in front of the prosecutor that shows the defendants in their detention, and a tablet device to communicate with such detention centers.
The prosecution member controls by turning off the audio of the defendants, not allowing them to speak or hear the lawyers during their arguments, or to end the call whenever they want.
The session begins with the session secretary communicating via video conference calls from the tablet in the hall to each prison separately where the defendants are awaiting their detention renewal hearings.
When called, all the defendants inside the prison appear in the presence of the officers in charge of the prison, accompanying the defendants after dividing them into groups specific to each issue.
The usher in front of the hall door calls the lawyers outside the hall with the case number and the name of the prison in question, for example, “Abu Zaabal Prison, Case No. …”
The lawyers enter the hall and record their requests in the minutes of the session, continuing the same until contacting all prisons and police stations holding pretrial detainees. However, the session often ends before the completion of all prisons due to the delay in holding the sessions, the closure of some prisons and the failure to respond to video conference calls due to the departure of employees working in those prisons, which results in the prosecution renewing the detention of these defendants on paper.
- Renewal of detention before the terrorism chambers of the criminal courts via video conference
On September 15, 2022, the Minister of Justice, Counselor Omar Marwan, issued Resolution No. 5959 of 2022, concerning the establishment of the mission of Badr Correction and Rehabilitation Center complex in Cairo under Cairo Court of Appeal, specializes in hearing criminal trials rather than its headquarters, the Tora Police Secretaries Institute building.
The decision was to start implementation as of Saturday, October 1st, 2022, coinciding with the beginning of the new judicial year.
Right following the transferring the trials to the new headquarters in the Badr Prison Complex, there was the circulation of three terrorism chambers in Cairo Criminal Court held inside Badr Prison, to view pretrial detention renewal sessions remotely.
Detention renewal sessions began to take place inside the deliberation rooms. Such room has an office for judges and a screen equipped with a camera in front of the court through which defendants appear in their detention. The room also has a tablet device to communicate with the detention centers, which judges control by turning off the sound of the defendants, not allowing them to speak or hear the lawyers during their pleading, or ending the call whenever they want.
The session begins inside the aforementioned deliberation room, which is a very small room that cannot accommodate the number of lawyers present to consider the renewal sessions.
The Public Prosecution Secretary contacts the detention centers through contacting each prison separately.
The guard inside the hall alerts the lawyers to begin the session and to the name of the prison, for example, “Badr Prison 1, one.”
The defendants appear on the screen in the presence of the officers in charge of the prison, with presenting all defendants in prison at once, rather than each case separately, leading to crowding the room equipped for communication in the prison with defendants, and crowding the deliberation room where the judges are present with lawyers.
Most of the time, there is a large number of lawyers who are not present in the room due to its small size, so each lawyer informs the guard of his name, the name of the defendant present with him, and his case number, then asks the court to release his client only without hearing any other details, hence no recording of any requests in the session minutes.
With the delay in starting the renewal sessions, the session usually ends without contacting all detention centers, due to closing the prisons, not responding to video conference calls due to the departure of working employees, which results in renewing the detention of these defendants on paper.
Conclusions:
Observations of remote renewal sessions, or the electronic renewals, shows the absence and violation of the guarantees by the legislator under Law 145 of 2006, in an attempt to achieve compatibility with levels of constitutional and procedural legitimacy according to international standards, and placing Egypt among the ranks of democratic countries in terms of pretrial detention.
With electronic renewals, all guarantees are void since judicial bodies such as the State Security Prosecution and the Terrorism Chambers in the Criminal Court issue the decisions to renew pretrial detention without interrogating the defendant or hearing his statements and defenses.
Moreover, the defendant remains away from the outside world and does not have direct contact with his natural judge in accordance with Article 10 of the Universal Declaration of Human Rights. The defendant also remains unable to directly contact his lawyer, and only through a screen controlled by the judge or prosecutor present, and he alone is the one who decides when the defendant has the right to hear what is going on in the session and when he does not have the right to do so.
Not to mention that the defendant only communicates through a screen in his detention center in the presence of prison officers, which negates and undermines these alleged guarantees, especially since the defendants cannot list the harassment or crimes he may have been exposed to under the Penal Code, in light of the presence of officers and individuals inside the room designated for presenting the defendant for consideration of renewing their detention.