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(New York) – Proposed new courtroom rules could block the ability of defense lawyers to call witnesses for trials in Egypt. President Abdel Fattah al-Sisi should reject the new rules.

Amendments to the Code of Criminal Procedure adopted by Egypt’s cabinet on February 18 appear to give judges the sole authority to decide whether witnesses can be called and their testimony heard, based on an official cabinet statement.

“The proposed changes to Egypt’s courtroom rules would endanger a core element of a fair trial, the defendant’s right to confront the evidence against them in court,” said Sarah Leah Whitson, Middle East and North Africa director. “Egypt’s government should clearly and publicly renounce the proposed changes without delay.”

In its statement, the cabinet said the proposed amendments – to articles 277 and 289 of the criminal procedure code – are primarily concerned with ensuring “access to prompt justice without prejudice to the rights of the litigants.” The changes would put “all matters concerned with calling or hearing witnesses” into “the hand of the court,” the statement said, without providing further details. The government has yet to make the text of the proposed amendments public.

Currently, article 277 of the Code of Criminal Procedure states that “witnesses are called on the request of litigants.” It also allows for the possibility that anyone with information about the case can seek to testify without being asked. Article 289 says that testimony collected before the trial should be read by court, and that this can only suffice if a witness fails to attend or if the defendant accepts the read testimony. Under current rules, Egyptian judges are asked to comply with litigants’ wishes to call witnesses to testify and to verify testimony collected during initial investigations.

The proposed amendments were drafted by the Supreme Committee for Legislative Reform (SCLR), consisting of senior officials, judges, lawyers, and religious leaders. Al-Sisi created the committee and appointed the members to prepare new legislation soon after he took office in June 2014.

On March 1, 2015, the website of the Lawyers Syndicate claimed that Prime Minister Ibrahim Mehleb, who heads the SCLR, had told members of the syndicate that the government had “no intentions” to pass the amendments.

Al-Shorouk, an independent newspaper, reported on March 7 that the proposed amendments had been sent to the State Council, a judicial body that is constitutionally empowered to review and advise on draft laws before they are enacted. One week later, several news websites reported that the State Council’s legislative division had concluded that the proposed amendments were unconstitutional. In a March 14 article citing unnamed sources, Al-Shorouk reported that the council had criticized the proposed changes for violating fair trial principles, holding that hearing from witnesses was “part and parcel of any judicial investigation.” Human Rights Watch was unable to confirm this information directly with the State Council.

Even if the State Council declared the proposed amendments unconstitutional and a violation of the right to fair trial, there is no certainty that the al-Sisi administration will take its advice. In the past several months, the government has often issued legislation without consulting the council or heeding its advice when it was consulted.

On January 9, Al-Tahrir, another independent newspaper, published the results of a study that the State Council had sent to al-Sisi. The study showed that the council had rejected or requested changes to 34 of 194 draft laws or legal changes proposed by the executive in 2014, but that the government had ignored each of those rejections and recommendations. The study found that the authorities had enacted other laws without consulting the council.

Several Egyptian human rights organizations have criticized the proposed amendments. Al-Youm Al-Sabaa, a privately-owned but largely pro-government newspaper, reported on February 19 that Nasser Amin, a member of the quasi-governmental National Council for Human Rights, urged al-Sisi to reject the proposed changes on the grounds that “the most important evidence for a lawyer is always the testimony of witnesses, and this law restricts the power of the defense to present its evidence and give it to the court.” Amin was quoted as saying that “the world would not recognize any verdict” issued by Egyptian courts if al-Sisi approved the proposed amendments.

Houda Nasrallah, a researcher and lawyer at the Egyptian Initiative for Personal Rights, told the Mada Masr independent news website that Egypt’s Court of Cassation, the highest appeals court, has previously overturned verdicts against “political defendants…simply because [original] judges did not listen to defense witnesses.” Nasrallah said she was concerned that the proposed amendments were intended to enable judges to bar testimony from defense witnesses in the future without risking a successful appeal.

Since the military ousted Mohamed Morsy, Egypt’s first freely elected president, in July 2013, the interim president, Adly Mansour, and al-Sisi have issued laws by decree and without the scrutiny of parliament. The lower chamber of parliament, the People’s Assembly, was dissolved by court order under military rule before Morsy’s election in 2012, leaving the upper chamber, the Shoura Council, which was dissolved after Morsy’s ouster.

The new laws issued by Mansour and al-Sisi included ones severely restricting peaceful protests, extending the power of military courts to try civilians, and allowing indefinite pretrial detention of defendants accused of offenses that carry sentences of life in prison or death.

Under Egypt’s 2014 constitution, all legislation enacted in the absence of a parliament should be reviewed by the new parliament when it takes office, but the constitution allows the members of the new parliament only 15 days for this review. Under the constitution, new parliamentary elections should have begun by July 2014. Instead, elections were scheduled for March and April 2015 but were postponed after the Supreme Constitutional Court ruled elements of the election law unconstitutional. No definite new date for the elections has been set.

The International Covenant on Civil and Political Rights, ratified by Egypt, establishes minimum procedural guarantees to anyone facing a criminal charge, including the right “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” The same right is established with identical wording in the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, adopted by the African Commission on Human and Peoples’ Rights in 1999.

“Egypt is obliged under international human rights law to protect the right to a fair trial,” Whitson said. “Given that parliament has been dissolved, it’s particularly important for the Egyptian government to consult the State Council before making any changes to the criminal procedure code, and listen to its recommendations.” 

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