Institute for the Study and Development of Legal Systems


OUNTRY PROJECTS

EGYPT

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

a)

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 questions:

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 complicated?

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 punishment?

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 case-files.

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 sitting.

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 each workshop.

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

1. Misdemeanors

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 prosecutor.

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 defense.

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 expires.

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).

2. Felonies

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 evidence attached.

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 compensation.

Saturday, October 21, 1995

I. Meeting with Egyptian Legal Study Group on Criminal Justice Process

A. Prosecutor

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 deputies.

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 this warrant.

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 interview.

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 misdemeanor).

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 Council.

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).

C. Judiciary

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 Hafeez

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 mediation.

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 ditto.

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 expectations.

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.)