Problems of Pretrial Detention… And Getting Out of the Impasse

The National Association for Defending Rights and Freedoms and partner organizations (Egyptian Women’s Rights Association – Middle East Foundation for Development and Human Rights – Egyptian Group for Parliamentary Studies) issued a paper with recommendations on the problem of pretrial detention, as pretrial detention represents one of the most prominent thorny issues that carry a special challenge in order to enhance and consolidate individual rights, in addition to being one of the important issues in evaluating Egyptian human rights policies and among the most prominent issues that pressure societal forces with various orientations to achieve tangible progress in addressing them, in addition to the fact that it comes amid widespread objections from political forces and activists to what they see as a shift related to transforming pretrial detention into a punishment and issuing periods without institutional restrictions.
Despite the development witnessed by the file of released detainees and the repeated talk about the necessity of their social integration, which was initiated by the Pardon Committee through an official statement on September 18, 2022, the file encountered many obstacles and impediments that require legal amendments and various executive decisions that made a limited number of those released benefit from this opportunity, which needs more attention and institutional care in order to achieve the purpose behind it in parallel with the implementation of the recommendations contained in the strategy, especially since despite the passage of (3) years, no actual steps have been taken to implement those recommendations. The truth of the matter is that the origin of (pre-trial detention) is a legal procedure taken by the investigating authority or the competent court for purposes headed by keeping the accused in a safe place until the case and the charges against him are decided on the one hand and ensuring that the evidence of the case is not tampered with or the witnesses of the incident are influenced or the community is harmed on the other hand. Despite the legitimate goals and justifications that the investigating authority seeks to achieve by ordering the accused to be detained pending trial, pretrial detention remains a dangerous procedure because it contradicts the presumption of innocence that should include the accused and protect him until a final judgment is issued convicting him, in addition to the risks associated with the length of the pretrial detention period, which may force the person to make a false confession, so pretrial detention is described as one of the most dangerous investigation procedures and the most infringing on the freedom of the accused. Therefore, the wills and discussions of the group of human rights organizations were in agreement through their experts, namely (Mr. Walid Farouk, President of the National Association for the Defense of Rights and Freedoms – Ms. Rabha Fathy, President of the Egyptian Women’s Rights Association – Ms. Atef Hafez, President of the Middle East Foundation for Development and Human Rights – Mr. Abdel Nasser Qandil, President of the Egyptian Group for Parliamentary Studies – Mr. Nabil Shalabi, the human rights expert), who consulted on the issue of pretrial detention and came up with a number of proposed recommendations and a set of executive and legislative interventions that guarantee containing the file and addressing its shortcomings as follows:
First: Finding a judicial mechanism – with a sustainable institutional status – to review and evaluate the conditions of detainees in pretrial detention whose detention period has exceeded (6) months without referring the cases to the courts and adjudicating their conditions through a timetable – with a specific duration – for their release with the completion of investigations or referring them to trial urgently in a way that ensures reaching a complete and decisive solution to the pretrial detention file.
Second: Establishing a judicial mechanism – with a sustainable institutional status – to appeal decisions issued regarding pretrial detention within a period of time not exceeding (72) hours from the date of issuance of the decision and quickly making a final decision regarding the appeal submitted within a period not exceeding (48) hours from the date of submitting the appeal, provided that the decision is issued with reasons and an official copy of it is delivered to the detainee or his lawyer. Third: The Public Prosecution is committed to issuing a periodic (quarterly) report that includes a presentation of the general conditions of the file of cases and rulings of pretrial detention in terms of the number of detainees and their qualitative classifications and the nature of the cases and their periods according to the type of crime and the field of trial and making electronic copies of the report available on the official websites of those entities. Fourth: Amend the Criminal Procedures Law No. (150) of 1950 to include the necessity of the (mandatory) release of those detained in pretrial detention if their detention – for one case or for a number of concurrent cases – exceeds (18) months and does not exceed (24) months and completes their trial without being detained (taking all legal measures to bring them before the judicial authorities if requested). Fifth: Review the text of Article (130) of the Criminal Procedures Law No. (150) of (1950) to consider reducing the aforementioned justifications for pretrial detention that do not represent a threat to the consideration of the case or tampering with the evidence related to it or with which there is no fear of the possibility of the accused escaping (especially) in light of the rights that the law provides to the person (fugitive) from the trial – if he is caught – to have his trial retried and the judgments against him cancelled.
Sixth: Considering the cancellation of the text of Law No. (83) of 2013 amending the Criminal Procedure Code No. (150) of 1950, which allowed the cancellation of time restrictions related to pretrial detention periods in crimes sentenced to life imprisonment or the death penalty.

Seventh: Amending the detention periods stipulated in Article (143) of Law No. (150) of (1950) to be (3) months instead of (6) months in misdemeanors and a period of (12) months instead of (18) months in felonies and a period of (18) months instead of (24) months in felonies sentenced to life imprisonment or the death penalty.
Eighth: Expanding the use of alternatives to pretrial detention stipulated in Article (201) of Law (145) of 2006 amending the Criminal Procedures Law No. (150) of 1950 and working to create advanced electronic and geographical alternatives to pretrial detention in line with the objectives of the National Human Rights Strategy, which spoke about (including more technologically advanced alternatives to pretrial detention in the Criminal Procedures Law and working to activate the alternatives contained therein) in accordance with the state’s vision for digitization. Ninth: In light of the guarantees contained in Article (54) of the Egyptian Constitution of 2014, the Public Prosecution and the competent official authorities are obligated to deliver to (released) pretrial detainees an official and certified certificate of the duration of detention, its causes, and its start and end dates, and they have the right to use that certificate in grievance and compensation for harm before the official authorities. Tenth: The necessity of working on the return of (the investigating judge) and activating his role in considering pretrial detention orders to ensure the integrity of legal procedures and clarifying the position of continuing pretrial detention regarding detainees on his authority, and in a way that ensures that the role of the Public Prosecution is limited to issuing the first pretrial detention decision for a period of (four) days and the subsequent renewal for a period of (fifteen) days (only), followed by referring the renewal file or continuing detention to the investigating judge for consideration. Eleventh: Addressing the repercussions of pretrial detention, especially those related to including the names of pretrial detainees – including those who have been issued final acquittals of what was attributed to them – on the Public Security lists, which entails repercussions, especially their exclusion and their families from many community activities and opportunities, in a way that preserves their social and professional future and that of their families.