Human Rights Subject to Procedural Protection in Light of the Criminal Procedure Law

Most States seek to ensure that their procedural legislation is consistent with human rights. Procedural legislation, through the Criminal Procedure Law, plays a role in enshrining human rights by focusing on what we consider to be the two most important points, namely, by addressing in some detail both procedural legality, its role and importance in the Criminal Procedure Law, and its direct impact on human rights. We have also attached some importance to the principle of the presumption of innocence and the extent of its impact in the field of individual rights and freedoms, which implicitly reflect human rights.

The Difference Between Substantive and Procedural Human Rights:

The legal safeguard that ensures individuals’ enjoyment of their fundamental rights throughout the stages of criminal proceedings. The Criminal Procedure Law constitutes a shield that balances the State’s right to impose punishment with the protection of the accused’s freedoms, by imposing strict restrictions on the powers of arrest and investigation, and by establishing the principle of the presumption of innocence, the right of defence, and the right to a fair trial. Procedural law aims to prevent arbitrariness and to ensure that the human dignity of any person, whether an accused, a suspect, or a victim, is not infringed. This protection is reflected in a set of fundamental principles and guarantees.

The Constitutional and Legal Foundations for the Protection of Human Rights in Criminal Proceedings:

(Article 54):

Personal freedom is a natural right, and it is safeguarded and may not be infringed. Except in cases of flagrante delicto, no person may be arrested, searched, detained, or have his freedom restricted in any way except pursuant to a reasoned judicial order necessitated by the investigation.

Every person whose freedom is restricted shall be immediately informed of the reasons therefor, shall be notified of his rights in writing, shall be enabled to communicate immediately with his relatives and his lawyer, and shall be brought before the investigating authority within twenty-four hours from the time his freedom was restricted.

No investigation may commence with him except in the presence of his lawyer. If he has no lawyer, a lawyer shall be appointed for him, while providing the necessary assistance to persons with disabilities, in accordance with the procedures prescribed by law.

Every person whose freedom is restricted, and any other person, shall have the right to challenge such measure before the judiciary, and a decision thereon shall be rendered within one week from the date of such measure; otherwise, he shall be released immediately.

The law shall regulate the provisions governing pre-trial detention, its duration, its grounds, and the cases in which compensation shall be payable by the State for pre-trial detention or for the execution of a sentence pursuant to a final judgment that is subsequently annulled.

In all cases, an accused charged with offences for which detention is permissible may not be tried except in the presence of a retained or court-appointed lawyer.

(Article 57):

Private life is inviolable, and it shall be safeguarded and may not be infringed.

Postal, telegraphic, electronic correspondence, telephone conversations, and other means of communication shall be inviolable, their confidentiality shall be guaranteed, and they may not be confiscated, examined, or monitored except pursuant to a reasoned judicial order, for a specified

Provisions Embodying Procedural Protection in the Criminal Procedure Law:

(Article 37):

Except in cases of flagrante delicto, no person may be arrested, searched, detained, or have his freedom restricted in any way except pursuant to a reasoned judicial order necessitated by the investigation.

Every person who is arrested, detained, or whose freedom is restricted shall be treated in a manner that preserves his dignity, and he may not be subjected to torture, intimidation, coercion, or physical or moral harm.

The accused shall have the right to remain silent, and any statement proven to have been made by a detainee under the effect of any of the foregoing, or the threat thereof, shall be disregarded and shall not be relied upon.

(Article 38):

No person may be detained or have his freedom restricted except in one of the Correctional and Rehabilitation Centres or places of detention designated for that purpose. The director of the Correctional and Rehabilitation Centre or the person in charge of places of detention may not admit any person thereto except pursuant to a reasoned judicial judgment or order signed by the competent authority, nor may he keep such person therein beyond the period specified in the judgment or judicial order.

(Article 41):

The judicial officer shall immediately inform the arrested accused of the reason for the restriction of his freedom and of the charges brought against him, shall hear his statements, shall notify him of his rights in writing, and shall enable him to communicate with his relatives and his lawyer.

If the accused does not present anything that disproves the charge against him, the judicial officer shall refer him, within twenty-four hours from the time his freedom was restricted, to the competent investigating authority. period, and in the cases prescribed by law.

The Fundamental Procedural Rights of the Accused During the Preliminary Investigation Stage

The presumption of innocence, the right to remain silent and the privilege against self-incrimination, the right to the assistance of a lawyer and to have him present during the investigation, clear notification of the reasons for the arrest and the charges brought against him, the prohibition of torture or physical or psychological coercion, and the right to be informed of the charge.

The Fundamental Procedural Rights of the Accused During the Criminal Trial Stage

The right to examine witnesses and evidence, the right to the assistance of an interpreter, the right to appeal judgments, the presumption of innocence, and the right to remain silent.

What is Temporary Release?

The Public Prosecution may order the temporary release of an accused held in pre-trial detention, or terminate the precautionary measure, at any time, either on its own initiative or upon the request of the accused, with or without bail, provided that the accused undertakes to appear whenever required by the Public Prosecution.

Definition of Temporary Release:

It is a form of early release of a prisoner whereby the prisoner agrees to comply with the prescribed conditions of conduct.

The Legal Nature of Temporary Release:

Temporary release does not constitute the termination of the case or the acquittal of the accused; rather, it is merely a precautionary measure regulated by the judicial authority to ensure that pre-trial detention does not become an instrument of punishment without a final judicial judgment.

Special Conditions for Granting Temporary Release:

If the investigating judge considers that the accused’s circumstances do not permit the furnishing of bail, he may require the accused to present himself at the police station at the times specified in the release order, taking into account his particular circumstances. He may also require the accused to choose a place of residence other than the place where the crime was committed, and may prohibit him from frequenting a specified place.

Procedures for Temporary Release under the Criminal Procedure Law

Article 127 of the New Law:

Temporary release or the termination of the precautionary measure may be made conditional in cases other than those in which the accused is mandatorily required to furnish bail.

The amount of bail shall be determined, as the case may be, by the Public Prosecutor, the District Judge, or the Misdemeanour Appellate Court sitting in chambers.

One half of the bail amount shall be allocated as a penalty for the accused’s failure to appear at any stage of the investigation or proceedings, to present himself for the execution of the judgment, and to perform all other obligations imposed upon him. The other half shall be allocated, in the following order, for the payment of:

• First: The expenses incurred by the Government.
• Second: Any financial penalties that may be imposed upon the accused.

If the bail is determined without allocation, it shall be deemed to guarantee the accused’s obligation to appear, not to evade execution, and to perform the other obligations imposed upon him.

(Article 128):

The bail amount shall be paid by the accused or by another person by depositing the assessed amount with the court treasury in cash, government securities or securities guaranteed by the Government, by means of an accepted bank cheque, a bank guarantee letter, or by any of the non-cash means of payment provided for under the Law Regulating the Use of Non-Cash Means of Payment promulgated by Law No. 18 of 2019.

A solvent person may also be accepted to undertake to pay the amount assessed as bail, or to provide a bank guarantee letter, if the accused breaches any of the conditions of release. Such undertaking shall be recorded in the investigation record or in a report filed with the court registry, and such record or report shall have the force of an executory instrument.

The Role of the Law Firm in Temporary Release Cases

Submitting applications for temporary release to secure the release of an accused detained by an international criminal court pending the conclusion of his case.

Protection of Human Rights at the Appeal and Challenge Stage

The right to challenge is regarded as one of the matters of particular importance, especially when it is related to the accused’s right to a fair trial. Through knowledge of this right, namely the right to challenge judgments, the convicted person is able to know the time limits for filing a challenge so as to remedy any deficiency or inadequacy in the judgment or its reasoning. This is because, if the judgment is not challenged within the prescribed time limits, the judgment becomes final, and the convicted person shall no longer have the right to challenge it. Accordingly, the right to challenge is considered one of the important matters because it may alter the legal status of the convicted person from an accused to an acquitted person.

The importance of this subject is further reinforced by the fact that, in certain laws, the legislator has provided that a judgment shall be deemed final, that is, not subject to challenge. This raises the question as to the constitutionality of this type of legislation that excludes the right to challenge.

In view of the importance of the right to challenge, the Egyptian Constitution provides for it in Article (97) as follows: “Litigation is a safeguarded right guaranteed to all. The State shall ensure the accessibility of judicial bodies. No administrative act or decision shall be immune from judicial review. No person shall be tried except before his natural judge.”

Protection of Human Rights at the Penal Enforcement Stage

1. The Right to Physical and Moral Integrity and the Absolute Prohibition of Torture: The inmate may not be subjected to any form of torture or cruel, inhuman, or degrading treatment that violates human dignity, and humane conditions of detention shall be ensured, including the provision of healthy living spaces, adequate ventilation, sufficient lighting, as well as appropriate medical care and adequate food.
2. Procedural and Judicial Rights: The convicted person shall have the right to challenge judgments and decisions relating to the conditions of the execution of the sentence before the competent judicial authorities, and places of detention and prisons shall be subject to periodic legal supervision by independent bodies or judicial authorities (such as the Public Prosecution) to ensure that no unlawful detention exists.
3. The Social and Communication Rights of the Convicted Person: Communication with the outside world: the right to receive visits from family members and lawyers, and to communicate by telephone or correspondence, provided that this does not prejudice public order, and special humanitarian considerations: the separation of categories of prisoners from one another (such as the separation of juveniles from adults, and accused persons from convicted persons), and consideration of the needs of sick prisoners and prisoners with disabilities.

The Fundamental Rights of Convicted Persons:

The right to dignity and humane treatment, the right to work and education, the right to freedom of religion and expression, the right to be informed of the charge, and the right to remain silent.

The Balance Between the State’s Power to Punish and Individual Rights

1. The Principle of Legality (No Crime and No Punishment Except by Law): It protects the individual from the arbitrariness of the authorities; therefore, no person may be punished for an act that was not criminalized at the time of its commission, nor may a punishment be imposed exceeding that prescribed by law.
2. The Presumption of Innocence: It is the fundamental principle in criminal trials, whereby the burden of proof rests upon the State (the prosecution), and any doubt shall be interpreted by the judge in favour of the accused. The right of defence and the right to the assistance of a lawyer guarantee the accused the right to remain silent, not to be compelled to confess, and the right to challenge judgments. Proportionality of Punishment: The punishment must be proportionate to the gravity of the offence, while granting the judge discretionary authority to take into account mitigating or aggravating circumstances.
3. Judicial Supervision and Judicial Independence: The existence of an independent judiciary is the fundamental safeguard against the encroachment of the executive authority (the police and the prosecution) upon the rights of individuals.
4. Reform and Rehabilitation: The role of punishment has evolved from being merely deterrence and retribution to “reform and reintegration” into society, thereby balancing the right of society to security with the individual’s right to a future that preserves his humanity.

What are the procedural safeguards that protect the accused from torture during the investigation in Egypt?

• The necessity of treating arrested or detained persons in a manner that preserves their dignity.
• Persons may not be detained except in appropriate and humane places of detention with suitable health conditions.
• Places of detention shall be subject to judicial supervision.
• The prohibition of torture, threats, coercion, and humiliation.
• Respect for the inviolability of homes, and they may not be entered except in accordance with the law.

With Regard to Women’s Rights During Search

1- The judicial officer may not supervise the search.

2- The search may not be entrusted to a male physician except for a therapeutic purpose.

3- It is not necessary to prepare a separate report unless the search constitutes one of the investigation procedures.

Which Procedural Rights Are Considered Fundamental Under the Criminal Procedure Law?

• The right to human dignity.
• The right of a person to his image.
• The right to physical integrity.
• The right to personal liberty.
• The right to remain silent.