EGYPT LEGAL STUDY
October Meeting Schedule and Daily Narrative
October 17-22, 1995
American Legal Delegation:
U.S. Federal Judge Fern M. Smith
Attorney Edward P. Davis, Jr.
ISDLS Executive Director Stephen A. Mayo
Project Coordinator Mary Ames West
Tuesday, October 17, 1995
I. Meetings at American Embassy
The American Legal Delegation met with various Embassy officials to discuss the January
Conference on the new civil justice process in Egypt, the potential funding to accommodate the
conference and the meeting schedule on the criminal justice project.
Wednesday, October 18, 1995
I. Meeting with Egypt Legal Study Group: Maher Abdel Wahed, Adel Fahmy,
Omar Hafeez, Hany Hanna, Yehia Khashaba, Aly Sadek, Iman Muhammed
A. January Civil Justice Conference
Justice Omar Hafeez opened the meeting with a description of the office of Civil Prosecutor.
The discussion continued on the subject of which Egyptian case-files to select for the conference.
The case-files should demonstrate a particular ADR mechanism in the context of the Civil
Prosecutor with the presumption that they are applying the new civil procedure.
The group discussed the need to spend more time talking about the demonstrations and how
to prepare for them. In the conference, the Study Group must assume that the audience has little
or no knowledge of these new processes, and they will need to provide the audience with some
background on the various topics. The Study Group agreed to an oral presentation of the
proposed new processes. Further, the Study Group agreed that in preparing for the conference,
the preparation of the case-files would be most important.
B. Criminal Justice Project
The criminal justice project is to have a similar Egyptian Legal Study Group, with most of
the same members, as that of the civil project because these members are familiar with the
concepts at hand. The criminal justice proposal is the same model as the civil, a four phase
project. The group decided that Phase 2 should take place before the end of March 1996 and
Phase 3 should not be before September 1996 (late October 1996 was the preferable time for the
Egyptians). It was made clear that ISDLS is only interested in studying the regular courts and
that the project is not to focus on systems but on processes.
The primary goal of the project is to study the possibilities for reducing delays in criminal
justice cases. The problems within the criminal justice processes included a lack of guarantee to a
fair trial and delays within the administration of the courts. (Note that in Egypt, often the victim
and the defendant procure their own settlement.)
C. Presentation of U.S. Criminal Justice Project and Commentary
Following the U.S. presentation, including a discussion of Rule 5 proceedings, the Egyptians
described the structure of the judiciary and prosecution departments. Under the Ministry of
Justice, the prosecution is within the judiciary but they are independent of the judges. The police
department is under the Ministry of Interior.
The Study Group members then asked the following questions:
1. Does the Magistrate Judge have the authority to refuse a warrant?
Yes, if there is insufficient evidence. The same document cannot be brought to another
Magistrate for review.
2. Can the Prosecution appeal this decision? No.
3. The warrants issued by the Magistrate Judge, are they separate for arrest and search?
Yes, there is one affidavit issued for 2 separate warrants.
4. What if the officer does not find what he is searching for but finds something else?
Good faith exceptions are occasionally provided.
5. When you issue a warrant, does it include specific areas of the house? Yes, the warrant
must be very specific.
6. What if the officer is issued a warrant and finds another person? Can he search him?
The American Legal Delegation then continued with a description of the stages of the U.S.
criminal justice process: investigation, arrest, initial presentation to a Magistrate, formal charging
(including information and indictment), arraignment (before a Magistrate), motion stage (similar
to case management) and trial. The investigation stage lasts through the formal charging, and bail
is set throughout all stages, including trial. The Delegation went on to discuss the Speedy Trial
Act of 1975, Appeals Courts, plea bargaining and guilty plea. It was noted that in Egypt, the
investigator may be put on the stand as a witness.
In response to this brief presentation, the Egyptian Legal Study Group posed the following
1. Do you put the defendant under oath in a guilty plea?
2. Can the defendant plead guilty to the lesser of 2 crimes? Why?
3. If there are 10 bad checks and through plea bargaining, the defendant is required to
plead guilty to only 3, how are the other 7 compensated?
4. You have pre-trial and trial stages; in Egypt, we have just one stage. Why so
5. Does sentencing depend on the criminal action?
6. If a person has committed several crimes and commits them again, is there a more sever
7. Can a person plead guilty at any time in the proceedings?
8. Is the defendant look upon favorably for this?
Thursday, October 19, 1995
I. Meeting with Egyptian Legal Study Group
A. Civil Justice Conference
The Egyptian Legal Study Group presented to the American Delegation their preparations
for and thoughts on the upcoming Civil Justice Conference in January. Justice Hafeez explained
that the papers had been divided among the Study Group members and that they expected to have
the papers prepared by November 15, 1995. The problem for the Study Group has been looking
for simple case-files for the conference. In the trial courts, cases are seen 3 days per week
(Saturday through Monday) and cases are often postponed for weeks. Such postponements
depend on the judge's calendar. Such is the nature of the discontinuous trials and complex
In response to this issue, Steve Mayo pointed out that these new mechanisms aim merely to
put restrictions on the handling of cases, not on the culture. He is of the belief that the trial courts
can accommodate numerous case management conferences.
Justice Hafeez then explained that when a complaint is submitted to the court, it is done so
without evidence. The current proposal is that this complaint should go directly to the Civil
Prosecutor (CP) and not to the court. The CP would be responsible for all service on the parties
and the witnesses and for recommending mediation or other forms of ADR. The first case
management conference would be with the CP, and from this, he would submit a status report
without an opinion to the court.
The demonstration should address the following issues:
How and when the case is to be submitted to the CP
The role of the CP at every step of the case
Why the CP is necessary and how his role will be achieved
Workshops would follow each demonstration to discuss and deliberate the various points
raised in the demonstration. Perhaps forms would be provided in the workshops to be filled out
by each participant.
The Egyptian Legal Study Group then discussed what the most appropriate civil case would
be for the demonstration. Several ideas were put forth: (1) a land dispute case regarding
contracts for ownership of land and inquisitive prescription of belongings on the land, (2) a case
with damaged goods, such as aluminum shipments poorly stored on a truck, which brings in
insured goods issues and would allow for a 3 party dispute (buyer, seller and the trucking
company). The case must demonstrate the process and not the details of the case. The aluminum
tubing case gained much favor from the Study Group, and discussions ensued involving how the
complaint and cross-complaint would be submitted to the CP.
The case-file would require the following outline form:
a 2 paragraph summary of the case (for the audience)
a summary of the plaintiff claims and of the defendant's claims (both defendants)
a brief statement of the primary witnesses
A discussion of the exact duties of the CP followed. The initial pleadings of the plaintiff and
all other relevant papers must be available to the judge for judgment at all times. The summary is
submitted to the judge with all evidence. With regards to expert evidence, it is not the obligation
of the court to seek expert witnesses unless if the case-file lacks sufficient evidence.
On the issue of appeal, the CP can submit the issue to the judge on specific topics. The CP
has the authority to exclude any unnecessary discovery which he deems to be unappealable. The
CP decides on the entirety of discovery, then the court rules on the objections of the CP in one
The Study Group then proceeded with a discussion of the conference format. In the
workshops, 20 to 30 people will attend each workshop, providing a mixture of judges, lawyers,
prosecutors, professors and legislators in each workshop. Each workshop will be led by a
member of the Egyptian Legal Study Group and will present its findings at the concluding session.
Each workshop will address (1) the proposed system, (2) the weak points of the proposal and (3)
the groundwork for presenting the new system to Parliament. The proposal will be modified in
Those conducting the workshops should be prepared to answers questions such as (1) who
is the CP and what is his role, (2) what is the problem in our process that deems a new system
necessary, (3) when will the case be submitted to the CP, (4) what are the qualifications of the
CP. Each workshop should have a reporter to record all of the discussions so that there will be a
unified voice from each workshop to be presented at the concluding session. Perhaps the issues
for each workshop should be pre-determined so that all of the questions are sure to be covered.
200 participants are expected at the conference.
B. Criminal Justice Process
To begin the discussion of the Egyptian criminal justice process, a typical case was
discussed. A misdemeanor is a case punishable with a maximum of 7 years imprisonment. When a
misdemeanor crime is committed, the police go to the scene of the crime. The police take the
suspects to the station for no more than 24 hours and are authorized to question the suspect not
under oath. For the sake of the police report, the police may interview witnesses. There is no
reporter present during the police interrogation. The police are not required to read the suspect
his rights but they do ask the suspect if he has any witnesses. The prosecutor is not involved in
this stage of the case. The judge has the right to use the statements of the police or the
The detective's report and technical evidence will be noted on the case-file. The police are
obliged to report everything. The police are the first to be contacted in the case, and detectives
are a part of the police unit.
The prosecutor is informed within 24 hours of arrest. The prosecutor may begin a new
investigation, unless if he is satisfied with the police report. The prosecutor enforces a 4 day
detention before going to court. Depending upon the nature of the crime, it is entirely up to the
prosecutor as to how much interrogation is needed. The prosecutor advises the suspect that he is
a prosecutor, asks if he wants a lawyer, puts him under oath and interviews him. There is no right
to a lawyer before going to court (unless if the defendant already has a lawyer of his own). The
prosecutor does not ask the suspect if he wants a lawyer from the court - the court does not
appoint lawyers in misdemeanor cases. The clerk records the suspect's testimony, and the
prosecutor reads the testimony to the suspect to sign, if the suspect cannot read.
In misdemeanors, the prosecutor has the power to dismiss the case unless if the victim
wishes to pursue or appeal the case. The case can be dismissed if (1) there is no evidence towards
who committed the crime, (2) there is not enough evidence to prosecute, (3) the offense is not
considered a crime, (4) the dispute has already been resolved and there is no need for the courts,
(5) the statute of limitations has expired. To prosecute, the evidence must be substantial. If the
prosecutor lets three months pass without a re-investigation, then the case is dismissed as well.
The case may be appealed to a 3-judge panel on issues of fact and legal question. There can be no
new witnesses presented on appeal. The prosecutor can bring the case on appeal as well as the
The prosecutor interviews witnesses, which is recorded by a clerk. The interview is read to
the witness who then signs the statement. The prosecutor send the witness a subpoena but
remains neutral. The victim also provides negative witnesses. The prosecution interviews these
witnesses who are against the suspect.
In "special crimes" the prosecutor has the competence of a judge. A prosecutor can keep a
suspect in detention for 15 days and up to 3 months. In the case of misdemeanors, a suspect can
be detained for up to 6 months during an investigation. Detention must be renewed every 15
days. If the trial date is set, however, the suspect can remain in jail beyond 6 months (which
provides credit towards the punishment). If there is no charge within 6 months of arrest, the
prosecutor must release the suspect. The file records his detention period and an administrative
person is responsible for these files. The suspect is immediately released if the detention period
The case goes before the judge (a one-judge panel) in 4 days. After the 4 days, the suspect
goes to District Court and they decide whether to extend his detention or release him. All court
proceedings are open. The only involvement of the court, therefore, is on detention issues. The
police will only get re-involved if the prosecution asks to have more evidence recovered.
It is up to the discretion of the court to decide whether a confession is acceptable. Only a
confession of the court can be considered, and a confession before a judge may or may not be
enough to convict the suspect. The judge can re-open the investigation if necessary. A
confession does not stop the investigation, and the prosecution cannot negotiate with the defense
lawyer after the confession has been given. The prosecution has no bargaining power.
In the misdemeanor trial, the judge can refuse to see certain witnesses and will decide on
which witnesses to be heard. The judge questions the witnesses and is suggested supplemental
questions by the prosecution. There is no cross-examining in the trial. The defendant can be
interviewed at any time in the trial, but he is never under oath since he cannot convict himself.
The judge will not refuse live testimony because of pre-judgment considerations. The prosecution
submits the case at the beginning of the trial, including affidavits or statements in writing. The
sentencing is part of the verdict (to which the previous detention period is credited).
A felony is crime punishable with 3 to 25 years imprisonment. In a felony, the defendant has
the right to a lawyer at all times. In a felony trial, the defendant has the right to an attorney at the
beginning of the trial. The trial is overseen by a 3-judge panel. The defendant is often questioned
at the beginning of the trial and is always the last witnesses to be questioned.
In felonies, the fingerprints are recovered at the scene of the crime by a forensic lab
specialist. All confessions are submitted to the court as a bill of indictment with all of the
The trial is oral and public. If trial is denied, the case is filed as a non-judgment. Because of
the caseload, parties are often convinced to write their statements. Judgments are given
immediately after trial, following deliberation by the 3 judges. Witnesses can be called that neither
the defense nor the prosecution have worked with. Both parties are permitted to argue their
cases. The prosecution begins the trial with an explanation of the case.
A civil claim can be brought before a criminal judge, for example in temporary compensation
misdemeanors. Defendants can represent themselves in these claims. In these cases, a judgment
is rendered and the total amount of financial compensation is determined by a civil court. (A civil
court cannot rule on a criminal case). A criminal judge cannot rule civilly from a criminal case.
He must refer the case to a civil judge since he loses his jurisdiction in a civil dispute. Often, the
defense will ask the prosecution to appeal the criminal case to extend the life of the case in court.
A panel of Bar Association members choose the lawyers for criminal cases, offering little
Saturday, October 21, 1995
I. Meeting with Egyptian Legal Study Group on Criminal Justice Process
The minimum age to become a senior prosecutor is 30 years of age. Typically, one would
be promoted from Assistant DA to DA. The minimum age to be appointed judge is also 30 years,
but one may continue in the prosecutorial office thereafter. The prosecutor is a member of the
judiciary. Every district has a certain amount of years for the judiciary, with minimum
requirements for positions. The prosecutor cannot be a judge in an area in which he has already
served. By law, there is no time limit but there is a restriction of a few years.
The powers of the prosecutor are laid out in the criminal procedural law, based on the
constitution. These laws are published in the Criminal Procedure Code and the two volumes of
Administrative Instructions, one for administrative and the second for judicial matters. The
prosecutor's primary power is with the general prosecutor, to whom all other prosecutors are
The prosecutor has the power to issue an order of seizure without review by the court in the
investigative stage. The exception to this power is if the documents in question are in the
possession of a third party who is not involved in the dispute in question, for which the prosecutor
must seek court review. There are no third party searches without court rule. There are no forms
for the order of seizure. The document is similar to the U.S. form for a subpoena, where the date,
name and address, the duration of the search and signature are indicated. The surrender of
records does not necessitate a search warrant. Further, the suspect cannot be forced to bring any
papers to court. No order can be issued to force the suspect to incriminate himself.
The order for records is put in a file and the police must carry the order during the search.
These seized records are submitted to the prosecutor and subsequently put into the docier. The
police conduct the inventory of seized documents. If in reading the inventory, the prosecutor
decides that he must talk with another witness, he will issue a subpoena. If the witness refuses to
reply after three subpoenas, an arrest warrant will be issued, following a request to the court for
The witness interview is recorded by a clerk, and the witness must review the interview and
is free to edit the remarks. There is no tape recording of these interviews because of the
procedural law - it is not submissable in court. The prosecutor cannot prevent the witness from
having a lawyer with him during the questioning. The prosecutor can also subpoena the suspect
to his office for an interview, which does not require consent of the court. If the suspect refuses,
an arrest is issued. If the suspect is arrested, the prosecutor can order him out of prison for an
A poor suspect can refuse to talk, which cannot be used against him, but the prosecutor will
take note of it for the judge's review. If the suspect requests a lawyer, a lawyer is provided only
in felony cases or only at the time of trial. The suspect can ask the Bar Association for legal
assistance at the prosecutorial level, but the state will not provide him with a lawyer. There is a
public defender organization in the lawyer's syndicate.
The prosecutor is required to inform the suspect of his rights and of what crime he is being
accused. He does not advise the suspect of his right to remain silent. The questioning goes
roughly as follows: "I am a prosecutor. Have you committed a crime? Do you have an attorney?
Do you have anything to say?" The suspect then either admits or denies the charge. If the
suspect requests an attorney but cannot afford one, there are no mechanisms stipulations for the
prosecutor to ask the Bar Association for representation; the prosecutor does not advise the
suspect that the Bar Association is available to him either. It is assumed that the suspect is aware
that the Bar Association is available to him. The suspect is not under oath during the questioning.
After the questioning is complete, a formal charge is issued. The case is prepared to go to
court according to the crime. In a misdemeanor, the prosecutor can bring the charge directly to
court. In a felony, the prosecutor sends the case to the Attorney General to bring to court, only
if the evidence is complete. The Attorney General has the right to drop the charge is there is not
enough evidence. There is a written indictment for a felony after the interrogation, which is
submitted to the Attorney General. Once the indictment is written, the prosecutor loses
jurisdiction and the court schedules a date for trial. After the indictment is filed, if other evidence
surfaces, the prosecutor can submit the evidence to court.
In a felony case, the court sets the date for the defense to be brought to court. The court
has the right to start the investigation over, but this is considered part of the trial. In the first
session in court, it is up to the court who to question first. The prosecution reads the indictment
first, then the suspect is asked if he has any words. The prosecutor responds, and the defendant
speaks last. There is no difference between a felony and a misdemeanor in the trial process except
that there is no indictment in a misdemeanor (so the prosecutor role is limited in the
In both felony and misdemeanor cases, the suspect can look at all of the evidence. The case
can be postponed to give the suspect time to read the evidence if he did not receive it prior to
trial. All files are available to both parties from the day the trial date is set. If new evidence is
submitted during the trial, the trial can be postponed to prepare the other side. In the felony case,
if there is no new evidence, the defense can ask for more time to review the trial. This is a serious
problem of delay.
At each adjourned trial, there is a fixed date for re-trial, usually in one month's time. Two
adjournments in a trial are common, after which the judge can refuse any more (only in felonies).
It is up to the court how to organize the trial. Depending on the crime, felony trials can take from
1 day to 3 months. However, the criminal/felony courts only convene 1 week per month. This
contributes to the problem of delay because some cases, depending on the overall caseload, are
resumed two months later. The more important cases are continuous trials, others though require
time for memory recall for the judges.
Appeals are not on fact but on review of technical issues or error in the law. Appeals can be
made on any legal issue, which do not have to be constitutional. Capital punishment cases are
always sent to the Court of Cassation, whose decision must be unanimous. The same case is
re-convened over by a 3-judge panel. The Court of Cassation can have as much as a 5-judge
panel. Prosecutors can appeal acquittals on legal issues.
Eighty to ninety percent of the cases are completed in 1 day, mostly in absentia. Each judge
divides up the responsibilities of the cases. If the defense admits guilt and the evidence supports
this claim, the court can close the case. If the defendant confesses to the prosecutor but denies
the accusation in court, the court must investigate the issue. If, on the other hand, the defendant
confesses in court, the court must inquire why he did not confess to the prosecutor.
The volume of criminal cases is centered in Cairo. A common problem is when the case is
tried in absentia and the defendant remains in hiding to wait for the decision and then to turn
himself in. In this case, a trial de novo is called. For felonies, the punishment would be made
worse, but the punishment would not worsen for misdemeanors. The defendant does this to
discover the intention of the court. In the trial de novo, though, the court can impose the highest
penalty. There are women defendants.
Sentencing is part of the verdict. Reasoning is required for the judgment, and there is a
formula for sentencing.
In Cairo and Alexandria there are specializations within the judiciary, but they do not have to
stay in the same specialty from term to term. There is movement between the Prosecution
Department and the Judiciary Department, from which people are promoted by the Supreme
B. Supreme Council
The Supreme Council is made up of the Chief Judge of the Court of Cassation (also referred
to as the President), two assistants to the Chief Judge, the Attorney General, and judges from
each of the appeal courts (in Alexandria, Cairo and Tanta).
The Chief Judge is appointed according to seniority. The nine most senior judges are
distributed throughout the eight appeal courts. The judges move North with each transfer of
positions. The Chief Judge is required to retire at 64 years of age. All appointments are
approved by President Mubarak, who has no veto power. The Ministry of Justice is the link
between the judiciary and the executive branch.
Sunday, October 22, 1995
I. Meeting with Maher Abu Wahed, Dr. Naguib, Ali Sadek, Essam Muhammed, Justice
The meeting focused on the details of the January Conference and the necessary components
of the Egyptian case-file to be used in the demonstrations (including a case summary, a summary
of the pleadings with the complaint and answer, and witness statements). The witness statements
in the case-file should allow for discussions on liability and damages, to incorporate case
management, and a continued economic relationship and who to pay the losses, to incorporate
The workshops were to include 60 young judges and 40 older judges, lawyers and
professors. The meeting went into detail on the methodology of the conference, see attached
II. Briefing with Deputy Consul Ministry Edmund Huhl
ISDLS briefed the DCM on the on-going legal reform efforts with the Egyptian legal
community. Of significant importance to the DCM was the economic growth and development of
partnerships in the Egyptian-U.S. alliances. Regarding the upcoming January conference, the
DCM suggested that Ambassador Walker's remarks should be drafted to include these
The USAID efforts were then discussed, which include automation of the courts and a
Judicial Studies / Continuing Legal Education Institute.
The thread throughout the meeting was the business and economic impact of the U.S. legal
reform efforts. (A primary player in this arena was discussed - Youssef Boutros Ghali, the
Minister of International Cooperation.)