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1/6/2002
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Egypt: Capital Punishment Between Islamic Shari'a and Human Rights International Standards
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The following are the capital punishment Articles in the Penal Code
Article 77
"Each and Everyone who commits, intentionally, an act harmful to the safety of the state and the integrity of its territories"
Paragraph (a)
"Each and Everyone who joins the armed forces of a country in a state of war with Egypt".
Paragraph (b)
"Each and Everyone who provides intelligence to a foreign state, or to anyone working for it, aiming at committing hostile acts against Egypt".
Paragraph ( c)
"Each and everyone who provides intelligence to a foreign state or to anyone working for it, aiming at helping in military operations, or harming Egyptian military operations".
Article (78) Paragraph (a)
"Each and everyone who interferes for the good of the enemy in affairs resulting in shaking the loyalty to the armed forces, weakening its spirit or the spirit of the people, or their ability to resist".
Paragraph (b)
"Each and everyone who gets the soldiers, in a state of war, to conduct their services to a foreign state, or facilitates such and affair to them. Each and everyone who perpetually interferes in the collection of soldiers, men, logistics, money, or arms for another country at a state of war".
Paragraph ( c)
"Each and everyone who facilitates the entry of the enemy to Egyptian territories, deliver him cities, forts, facilities, sites, harbors, warehouses, armories, ships, planes, transportation facilities, arms, military equipment, food, or any such things prepared for defense or used for it, or convey intelligence to him or is working as a guide at such".
Paragraph (e)
"Each and everyone who defects or breaks ships, planes, logistics, facilities, transportation facilities, public utilities, military equipment, medicines or any such items used for defending the country, or intentionally made or fixed it defected, or commits any other act that might make it useless for a temporary period of time in the purpose it was dedicated to, death penalty shall be inflected in such cases at times of war, and otherwise it is thus punished by lifelong imprisonment with hard labour".
Article 80
"Each and everyone who delivers to a foreign state, or to anyone working for it, mechanically or non-mechanically, secrets of defense in the state by any method whatsoever, or finds a way to collect such a secret of these aiming at delivering it or sending it to a foreign state, or to anyone working for it. Each and everyone whoever breaks something in the interest of a foreign state, that is considered one of the military defense secrets, or made it useless and can not be utilized".
Article 81
"Each and everyone whoever do not execute all or part of the commitments on him by a supply contract with the government, for the armed forces, or in relation to protecting civilians, providing them with utilities, or falls short of the right performance of such contract".
That holds against subcontractors, agents, and sellers, if the breach to performing the contract is due to their acts, and in order to apply the death penalty the offence shall occur with intention to harm the defense of the state or the operations of the armed forces.
Article 83
"Any crime that occur with the intention of harming the independence, integrity, or safety of the state, related to the state security domestically or abroad, or if the crime occurs aiming at aiding the enemy, or harming the armed forces military operations and was able to achieve the purpose thereof. Also any crime or misdemeanor intending to help the enemy or harm any of the military operations of the armed forces, and was able to reach the purpose stipulated".
Article 86 (bis) (a)
"Each and everyone who establish or run a society, association, organization, gang or group using terrorism as one of its tools to reach its goals, and each and everyone who supply it with weapons, ammunition, explosives, materials, instruments, funds or information that assist them in carrying out their aims.
Paragraph (b)
"Any member in one of the aforementioned societies, associations, organizations or gangs attempting to coerce a person to join any terrorist group or band or preventing any person from leaving such a group, and in doing so that person died".
Paragraph ( c)
"Each and everyone who cooperates with a foreign state, association, society, organization, group or gang, with headquarters outside the state, or with anyone working for any of which, and providing intelligence to it or cooperators with it in order to perform an act of terrorism inside Egypt, or against its properties, institutions, employees, diplomatic representatives or citizens while they are working, abroad, or participating in any of the mentioned above". The death sentence is under condition that the crime actually occur.
Article 88 bis
"Each and everyone who arrests anybody in conditions not allowed by the laws and bylaws, detained or kept him as a hostage intending to affect the performance of the governmental authorities to their work, or having a certain benefit or privilege of any kind whatsoever". To inflict the death sentence such an act must result in the death of a certain person.
Article (a)
"Each and everyone who assaults any of the criminal verdicts enforcers harming the government locally, and that was because of such enforcement, resisting it by force or violence, and the resistance or assault resulted in a death".
Article 93
"Each and everyone whoever become a head for an armed bandit or take the lead in any of its divisions, aiming at taking or stealing lands, government-owned money, or that belonging to any of the people, or to resist a military force assigned to pursue the committers of such offences".
Article 102 Paragraph (b)
Each and everyone anyone who uses explosives intending to abduct a transportation facility, either by air, land or water, or to commit political assassination, or harming buildings and facilities prepared for public utilities, public utility institutions, those prepared for public meetings or any other buildings prepared for the public".
Paragraph ( c)
"Each and everyone who uses explosives in a manner unsafe for the lives of people, and resulted in the death of one or more person".
Article 290
"Each and everyone who uses deception or coercion to abduct or instigates the abduction of a female shall be liable to a penalty of life imprisonment. However, the death penalty shall be imposed on the author of the offence, if it is compounded by rape of the abductee".
Law 182/1960 amended by law 122/1989 for drug trafficking control
Article 33 uses the death penalty against:
a- Each and everyone who imports or collects a narcotic drug before collecting the license mentioned in Article 3 of this law.
b- Each and everyone who produces, collects, separates or makes a narcotic drug for the purpose of trading.
c- Each and everyone who cultivates one of the plants mentioned in table no. (5), import, collect, own, buy, sell, deliver, or transport it at any of its stages of development, and also its seeds, for the purpose of trading by any mean possible, in a manner contrary to the one designed by law.
d- Anyone who forms a bandit, head it, interfere in its affairs or organization, or became related to it, and one of its purposes was trading in drugs, providing it, or committing any of the crimes mentioned in this Article inside the territory of the state.
Article 34 applies death penalty or lifelong hard labour to:
a- Each and everyone who own, collect, buy, sell, deliver, transport or provide drugs for the purpose of trading, or traded in it in any manner other than that allowed by law.
b- Each and everyone licensed to have a drug for certain uses, and used it in a manner inconsistent with such purpose.
c- Each and everyone who directs or prepares a place for taking drugs for a monetary return.
The death penalty is applied to the mentioned offences under these conditions:
1- If the committer of such crime used someone under 21 years old, or used one of his siblings, wife, someone who raised him, or whomever has actual authority upon his control and instruction.
2- If the defendant is a civil servant assigned to enforce the provisions of this law, or assigned to drug trafficking control over trade, owning or had connection to anyone related to such affair.
3- If the defendant used, in committing his act or facilitating it, the facilities granted to him by his job, work, or immunity determined by the Constitution or law.
4- If the crime occur in a facility which is religious, educational, providing public services, clubs, public parks, curing and rehabilitation, camps, prisons or directly adjacent to any of the mentioned above facilities.
5- If the defendant had the drug delivered, introduced, or sold to someone under 21 years old, or made him take it by any means including using force, misleading, facilitating handling it or raising his desire to do so.
6- If the drug is Cocaine, Heroine or any of the materials included in part one of Table 1 attached.
7- If the defendant was prosecuted before for one of the crimes mentioned in this Article or any of the previous Articles.
Article 40
"Each and everyone who assaults one of the employees or personnel hired for enforcing this law, for a reason related to its enforcement, or resisted him violently during the performance of his job, or because of it, and the result was his death",
Article 41
"Each and everyone who intentionally kills one of the law enforcement personnel for this law during carrying out their job or because of it".
Article 34 bis
"Each and everyone who gets another person either by force or misleading to take Cocaine, Heroine, or any of the materials included in part one of table 1".
*Death penalty and the emergency law in Egypt:
Egypt was faced by the emergency laws for the first time on 1914 one the wake of WWI, then the state of emergency was declared in Egypt on 1981 until the moment, and it is renewed each three years since its first application, and was renewed for the last time on 2003 until May 31st 2006. This law granted the executive branch a wide perspective of authorities that restricts freedoms of individuals and limits their constitutional rights granted to them by the Constitution, like restricting personal freedoms to meeting, transportation, residence and traveling, arresting suspects to being dangerous to the public security, arresting and inspecting persons and places without reference from the Criminal Procedures law, beside establishing exceptional courts in the state of emergency lacking the safeguards of just and fair trials.
According to that law the High State Security Emergency Court was established, as the judges of this court are chosen by the President, and its decisions are not subject to appeal. The only procedure that can be taken against its verdicts is seeking pardon from the court that issued the verdict.
Also in relation to the Military Courts formed by officers in the armed forces that civilians can be referred to, the procedures of the court are limited and final verdicts that can not be appealed are issued, and the only procedure that could be taken against its verdicts is to seek pardon from the President or whoever he delegates.
According to Article nine of the emergency law, the President can refer to the State Security Emergency Courts the crimes penalized by the general law, which is a breach to Article 40 of the Constitution. Also Article six of the Military Courts Code allows the President to refer to the military courts any crime during the state of emergency.
From the mentioned above, it is evident how grave are the death sentences issued from exceptional courts that can not be appealed, and how grave it is to execute the sentences against people who might be innocent of the offences they are presumed to have committed.
Third: Death penalty between the Islamic Shari'a and the international standards for human rights
Islamic Shari'a classified penalties to three classes: applying limits, just retribution, and light discipline.
The Islamic Shari'a limited the death penalty to crimes necessitating applying limits and just retribution. The original penalty for the intentional murder with premeditated design is the just retribution, or killing the killer if proven guilty. However, the Islamic Shari'a surrounded the application of this cruel penalty by a fence of safeguards and a lot of conditions, it even imposed many obstacles that stops short applying the just retribution from the killer, most important of such obstacles banning the penalty is when the victim is related to the murderer, as when a father kills his son or daughter, in such case just retribution is banned, and vise versa, when a son or daughter kills a father or mother. In other cases where just retribution is banned, is what is called "various avengers in a common retribution", when one of them denies applying the penalty to the murderer the just retribution is thus denied to all. As just retribution can not be segmented, as it can not be imagined to fulfill some of it and deny some, therefore the others' part of the right to retribution becomes a financial remedy, and they take their share of the "Deya". Also Shari'a does not apply retribution just by collecting evidences, but also by the testimonies of others, in spite of the Hadith of Prophet Mohamed, "Do not apply God's limits if there is any doubt", stipulating cautious in applying limits, including death penalty or killing. However, His words didn't manage to abolish the penalty, which with no doubt went wrong footed in many cases during the long extended Islamic history.
May be this is what made the international law legislators take another trend by using more clear-cut and strict words toward abolishing the death penalty, as many international and regional documents were endorsed, calling upon abolishing the capital punishment, most important of which is:
- The Universal Declaration for Human Rights denied any kind of taking lives, or restricting freedoms, as all international charters and conventions worked upon effectuating this right, which is the right to life, as one of the personal rights, and Article (3) of the Declaration stipulates, "Everyone has the right to life, liberty and security of person.
- Paragraph 2 of Article 6 of the International Covenant on Civil and Political Rights stipulates that In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. Also in Paragraph 4 of the same Article Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.
Amnesty, pardon or commutation of the sentence of death may be granted in all cases. Sentencing to death is not allowed, as in Paragraph 5 of the same Article, for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. While Paragraph 6 stipulated that, "Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
- Second Optional Protocol to the International Covenant on Civil and Political Rights, targeting the abolishment of the death penalty.
- Protocol (6) to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
- Paragraphs 2 & 3 of Protocol (4) to Abolishing the Death Penalty, to the American Convention of Human Rights.
- Directives 8/1998 and 61/1999 of the Human Rights Commission, in which the Commission declares its convention that the abolishment of the death penalty will promote the human dignity, and the gradual development of human rights.
- Paragraph (a) of Article 37 of the Convention on the Rights of the Child, Paragraph (3) of Article 5, of the African Convention on the Rights of the Child and his Protection.
- Paragraph 5 of Article 77, of the First Protocol to Geneva Conventions.
- Paragraph (4) of Article 6 of the Second Additional Protocol.
- Directive 50/1948, Protocol 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which came to deal with the defect in Protocol 6 banning the death sentence unless in crimes committed during times of war.
International Safeguards against death penalty
The international law for human rights held that the death penalty is an exceptional case that shall not be applied but in few cases, as a preliminary phase for abolishing this penalty on the international level, and that abolitionist states shall not return to using it, even in exceptional cases. The international law for human rights imposed also many international safeguards concerning the execution, which are well respected and untouchable, either by restriction or in exceptional cases, among such safeguards:
1- Safeguards related to determining the crimes punished by the capital punishment
Paragraph 2 of Article 6 of the International Covenant on Civil and Political Rights, and Paragraph 2 of Article 4 of the American Convention on Human Rights, stipulated that, "…In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide…" and stressed on making the death penalty an exception that shall not be expanded in usage, as in the ECOSOC directive 50/1984, related to the standards of protection of persons facing the death penalty, stating that determining the sentence "most serious crimes" as not exceeding the international crimes in which lives are taken. While Article 6/6 of the International Covenant on Civil and Political Rights stipulates that, "Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant".
The phenomenon of the link between state of emergency and the increase of criminalizing and cruel punishment is restricted by the international law for human rights, by that principal concerning the death penalty, stressing upon the immunity of the right to life, a rule imposed by the international legislator in Paragraph 2 of Article 4 of the American Convention on Human Rights.
2- Safeguards related to the death penalty procedures
Paragraph 2 of Article 6 of the International Covenant on Civil and Political Rights stated that, "(Death) penalty can only be carried out pursuant to a final judgment rendered by a competent court".
Paragraph 4 of the same Article stated, "…Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases".
Paragraph 2 of Article 6 stated that "Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant" in accordance to Article 14 and 15 of the Covenant on issuing a death sentence. And because of the grave danger of the death penalties issued in criminal cases, the international standards for criminal justice seeks that persons defendants in criminal cases in which death penalty might be applied, to have the sentences as a result of clear cut criminal evidences that leaves no doubt at all.
According to Paragraph 2 of Article 6 of the International Covenant on Civil and Political Rights, the convicted murderer has the right to challenge the verdict in a higher court, and executing the death penalty without enabling the sentenced to file a challenge to the sentence in a higher court of law is a breach to the Covenant and an arbitrary execution. Also pardon or commutation of the sentence was mentioned in Paragraph 4 of Article 6 of the Covenant.
Sure enough, providing a pardon or commutation safeguard to the death sentences promotes the protection of the right to life, and in limiting the arbitrary killing in states of emergency, where death sentences are held by exceptional courts.
3- Safeguards related to the death sentence execution
Article 6, Paragraph 5 of the International Covenant on Civil and Political Rights stated, "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women", as a consideration for the rights of children and family, and the two additional protocols to Geneva Conventions issued on 1977 stipulated banning the execution of a pregnant woman or mother when she has children in need for care, Article 76 of the First Protocol and Article 6 of the Second Protocol.
The capital punishment was also banned in crimes committed by persons under eighteen years old on the time of committing the crime. This ban is also mentioned in the American Convention on Human Rights, in its fourth Article, which became a part of the conventional international law, as it establishes an international commitment by the state by which it is supposed to change its internal laws to its accordance, even if such a state is not a party in the human rights conventions, as stated in Article 4, Paragraph 5, concerning banning the death penalty on those who exceeded 70 years old on the time of committing the crime.
Fourth: Capital punishment cases
The death sentences increased notably in Egypt over the past few years, as during the period from 1991 to 2000 no less than 530 death sentences were issued, beside executing 213 persons, and in 2002, 47 were executed. They were all convicted of intentional murder for robbery, 31 in 2003, 36 in 2004 and 12 in 2005, all of which were hanged. On the other hand, Amnesty International recorded from 1981 to 1990 the issuance of 179 sentences, beside executing 35 persons.
In an international report about the death penalty prepared by the UN Commission on Crime Prevention and Criminal Justice on March 2001, from the information provided by governments, Egypt was among 12 states in which 100 executions were carried out in five years, from 1994 to 1998. the Un Directive E/CN. 15/2001.10, the UN Commission on Crime Prevention and Criminal Justice, about the death sentences and promoting safeguards guaranteeing the protection of the sentenced to death, March 29th 2001.
This part of the report shall handle some cases the criminal courts dealt with and issued in it death sentences, but the Court of Cassation challenged it relying on many principals, most important of which:
- Concerning the intentional murder cases, the Court of Cassation was concerned about having evidence to the intention to kill, as many sentences didn't include the intention to kill by the convicted, which is a defect to the verdict, as the Court stated that, "The intentional killing crime is distinguished among other crimes assaulting lives, by a special criminal intention, that the convicted intended to kill the victim, and this special element is different from the general one necessary for the law in other crimes, therefore the sentence convicting the defendant in such an offence must handle this special purpose independently or dedicatedly by providing the evidences the court extracted from the defendant when he committed the material offence intending to kill.
The judge thus shall define it in a clear manner, and return it to its origin in the filed case concerned".
- The Court of Cassation stipulated the necessity of validating the confessions of the defendants on the occasion of questioning the validity of the confessions of the defendant.
As such confessions are not to be proven sound if it were extorted by physical or psychological pressures.
In the verdict of the Court of Cassation on 23/11/2004 the following was stated, "Challenging the validity of the confession is a fundamental challenge which the court shall discuss and reply to, as long as the verdict is based on such confession, and as long as the confession considered valid must be optional, based on free will, so confession shall be void if under pressure or threats, and pressing the defendant in choosing between confession and denial will lead him to think that he might profit from confession, or even avoid a certain damage. So the court shall investigate by itself with the defendant and seek the connection between pressured confession and its relationship to the defendant's testimony, therefore the verdict might be defected and harming the right to defense, beside falling short of validity".
Notably, as the Egyptian Organization for Human Rights stands against the death penalty, it recorded and documented, by the help of a field work unit, some cases in which death was sentenced, then challenged in the Court of Cassation, which cancelled the sentence and returned the case to a criminal court other than the one that issued the sentence.
The organization sent also fact finding missions to meet with the families of the defendants convicted with murder, to know whether they were guaranteed access to visits, and whether they were notified about the date of execution in cases where execution was held, with the following details:
First case:
7692/2000 criminal case, Aga, registered 1219/2000 Mansoura Court in which a death sentence was issued for each of Sameh Mahmoud Hamza Al Qaliouby (second defendant), and Abdulmonem Mohamed Abdulmonem (first defendant) for killing Fahmy Abdulhameed, as the intention was to commit robbery offence. On 25/3/2001 Mansoura Criminal Court sentenced them both to death by hanging, while the second defendant was 19 years old on accusing him. The Court of Cassation supported the verdict of the Criminal Court, as it issued in its session held 4/10/2004 in Appeal 20107/74 Judicial year, for the second time, a verdict for sentencing the two defendants to death.
On 10/11/2004 the first defendant filed an official petition to the Zakazique Prison director, confessing committing the murder alone, and that he didn't see the second defendant (Sameh) on the day the offence was conducted, as the second defendant was not present at all.
He added that he intended to get a commuted sentence, thinking that the presence of two defendants in the case will lead to such a result, and that was after refusing the second appeal and verifying the death sentence, as the first defendant became sure that the verdict will not be commuted and an innocent will be killed. The petition followed the route of all official petitions, in its lengthy law procedures, until on 12/5/2005 the first defendant was called to be questioned by the Persecutor General of Mansoura, an investigation during which the first defendant confessed the same, and sent his confession on 15/5/2005 to the Prosecutor General, where his petition was registered by no. 62/2004 in the Technical Office. However, the petition was refused on 4/6/2005 by the Prosecutor General, and so all hopes in stopping the execution died.
Transfers: Since 25/3/2001 the sentence was issued by the Mansoura Criminal Court upon each of the two defendants, since then Sameh (the second defendant) is being transferred between prisons, as he was imprisoned in the Public Mansoura Prison for less than a year, then moved to Public Tanta Prison, then to Public Mansoura Prison, and finally to Zakazique Prison, where he remained in solitary imprisonment since 2001 and the date of the first death sentence, and remained in total solitude until the execution.
In secret
On 14/7/2005 at 7 a.m. the execution was carried out in secret, as the defendants were executed without notifying their family members about the date, or granting them access to visits. Also the execution was in the early morning!! Beside the absence of the defence on the spot.
The detention conditions before the execution
The defendants were put in solitary imprisonment, in total solitude, under strict guarding, and their family members were not allowed to visit.
Father's testimonies: Citizen Mahmoud Hamza Al Qaliouby the father of the second defendant talked about the execution of his son to the EOHR, saying, "on 14/7/2005, about 7.30 a.m., I received a phone call from the Zakazique Prison Director, asking me to go to Public Zakazique Hospital to receive the body of my son Sameh, from the Hospital's morgue. They executed my only son without letting me see him" he said, "I didn't expect the sentence to my son for being young, and because the other defendant confessed that my son wasn't with him at the time of the murder".
Second case:
The case goes as much back as 1996, when the police investigators found the body of Abdulsadique Mohamed Abu Bakr, inside a tools storehouse owned by Adel Mamdouh Shatah.
Adel Mamdouh Shatah was arrested and accused of killing Abdulsadique Mohamed Abu Bakr, and he was tortured in Giza Police Department to extort his confession for committing the crime, and that there was an affair between the wife of the victim and him, because he was working as the secretary of the warehouse owned by Adel. An official report was issued against the first defendant Adel Mamdouh Shatah and Gerges Eid Atteya, his friend.
The report was registered 4934/1996 accusing the defendant of intentional murder for Abdulsadique Mohamed Abu Bakr, and after referring them to the North Giza Prosecution Office, they were detained for 45 days inside the Waraq Police Department, on call for the investigations. The period was renewed, and after investigations they were referred to Giza Criminal Court, that issued its sentence on 18/3/1999, to death by hanging for each of them. The sentence was appealed by the lawyer of the two defendants, and the appeal was accepted, then they were tried again in another court that sentenced them to death. The court confirmed in its sentence that it is confident with no possibility for any level of fault that the evidences and facts are against the defendants, and the testimonies in the Court of Cassation confirmed that the defendants were present in their houses on the night of the offence. But these testimonies were not supported by a single physical evidence confirming the commitment of the offence by the defendants. The judges found that there is no evident motivation behind the crime, as the wife of the victim denied any relationship with the first defendant.
The court cleared them for the absence of a motive behind the crime, which is a fundamental and important part of the crime, also the autopsy report stated that the wounds inflicted upon the victim were not the reason leading to his death.
Third case: no. 9656/2004 Maadi Criminal Court, registered 1125/2004
Death sentence was issued against Bakr Hanafy Bakr the first defendant, and others, for committing the murder of Shabaan Abdulsalam Abdulhamed on 4/6/2004, as the criminal court decided to punish each of the first defendant Bakr Hanafy and second defendant Sayed Abuzied by executing them both by hanging, and the third until the sixth defendant for life imprisonment.
Facts of the case were that during 2004 each of Bakr Hanafy Bakr Farag, Sayed Abuzied Taleb, Eleya Farouk Eleya, Ragab Mahmoud Mohamed, Mohamed Alsayed Abdulatty, Ramadan Ali Mohamed, were arrested and accused by the Public Prosecution Office of intentional murder with premeditated design for the victim Shabaan Abdulsalam Abdulhamed.
The defendants appealed to the sentences
On late December 2004 the defendants filed an appeal in the Court of Cassation regarding this verdict and it was filed at the Prosecutor Office by no. 71256/2004, and at the court by no. 71256/74 judiciary year, and the session was appointed on Thursday, March 3rd 2005.
Court decision:
The court decided the following:
First: To accept the appeal of the defendants.
Second: To accept the Public Prosecutor Office's presentation for the case and the appeal to the appealed sentence, and to return the case to Cairo Criminal Court, so as another court of law shall process it, in another district.
The decision:
In the statement of the appealed sentence, and after it provided the facts of the case, and that it relied mainly on accusing the first and second appealers in the course of establishing their intention to kill on their confession in the investigations at the office of the public prosecutor, and that was established in, "Each of the defendants Sayed Abuzied Abutaleb, Eleya Farouk Eleya, Ragab Mahmoud Mohamed, Mohamed Alsayed Abdulatty in the investigations that they agreed on executing the idea provided by the first defendant Bakr Hanafy, to steal the warehouse of Ghandour Mohamed Ibrahim after binding the guard (the victim), Shabaan Abdulsalam Abdulhamed.
The sentence was confined to the confession of the defendants, from second to fifth, at the investigations, and their agreement to steal the warehouse after binding its guard so as to steal, and they didn't intend to kill him, and their confession didn't include agreeing to bind the victim and kill him if he tried to resist or call for help. Therefore, the sentence included facts that has no origin in the case file that had an effect in the reason of the verdict, and reaching the intention to kill by the defendants, which makes it produced in fault.
The Court of Cassation decided that any sentence shall state the content of each of the evidences, so as its safety is guaranteed, in order that the Court of Cassation can supervise the sound application of law regarding the event, or else it is void. And if the appealed sentence relied on an evidence taken from the confession of the first defendant, Bakr Hanafy Farag, without stating its content, it is thus faulted with being short of reasoning, which makes it void.
Fourth Case: 2805/2004 Criminal Court/ Oseyrat District, registered 736/2004 Sohag Criminal Court
Defendant Mohamed Ahmed Mohamed Ahmed was sentenced to death by hanging in this case for committing intentional murder on 26/2/2004 for citizen Razqa Mohamed Abdulrehem and stealing her necklace.
The appeal
On January 10th 2005 the defendant appealed to this sentence, and a brief for the reasons of the appeal was filed on February 27th 2005 and the Public Prosecution presented a brief about its opinion on January 17th 2005.
On the public session held at court in Cairo, May 8th 2005, the court produced its sentence filed at the Prosecutor schedule by 8592/2005 and at the court by no. 8592/75 judiciary year, as follows:
First: Accepting the Prosecutor's presentation of the case.
Second: Accepting the appeal to the court appealing to the sentence and returning the case to Sohag Criminal Court in order to be processed by another court.
Sentence: as the appealed sentence is about intentional murder the Court of Cassation provided an important principal, which is that the intentional murder is distinguished from other cases involving physical assault by a certain element, which is that the defendant intends to take the life of the defendant, and such an element is different from the general purpose demanded by law in all such crimes.
And as the sentence defined the intention to kill by the appealer as that when he was out of options to silence the victim in order to escape with the stolen items (which is a physical act), he pressed her head with all his might and didn't leave her until she was dead, and so he killed her to run away with the stolen items, something the Court of Cassation does not consider but the intention of the appealer to commit a physical act without an intention to kill. Therefore, the Court of Cassation holds the sentence produced in the case faulty in determining the intention to kill by the appealer (defendant), and thus it accepts the appeal and returns the case to the Criminal Court in order to be processed by another court.
Fifth Case:
9399/2004 Criminal Court/ Al Saf, registered 2306/2004 Giza Criminal Court
In this case a death sentence was issued against defendant Mohamed Ramadan Ahmed Ali for killing citizen Nabaweya Abu Alela Ahmed.
Appeal
On November 23rd 2004 the defendant appealed to the Court of Cassation, and his appeal brief was filed on 18th of the same month, then the Public Prosecutor Office presented the case with a brief for its opinion in the case.
The sentence:
On the public session held at the headquarters of the court in Cairo, on March 3rd 2005, the court ruled the acceptance of the appeal and the Public Prosecutor Office presented the case. The court decided to return the case to Giza Criminal Court in order to be processed by another court room.
Sentence's reasons: It was mentioned in it that the Public Prosecution accused the defendant of committing intentional murder, raping a female and stealing. The sentence lacks reasoning and the right to legal counsel was breached. The Court of Cassation deduced that the confession of the defendant was forced out of him. Therefore the court rules that questioning the validity of the confession is essential, and shall be discussed by the court and replied to soundly, as long as the sentence relied in its condemnation to such confession. The confession to be taken shall be optional, relying on free will, as confession under threats affects the freedom of the defendant to chose between confessing and not confessing, and leads to making him believe that he will profit from confessing or avoid harm, something the court shall provide and researches the link between threats and the defendant's confession, because otherwise its sentence will be breaching the right to legal counsel.
Sixth Case:
Crime 1867/2004 Borg Al Arab Department, registered 1584/2004
On November 23rd 2004 Alexandria Criminal Court decided to turn the case of defendant Kamel Abdulhamed Abdulgawad to the Mofty, for counsel concerning the defendant, and a session was decided on December 23rd 2004 for the sentence. In the session the sentence was to punish the defendant by the death penalty, for killing his baby daughter Nora Kamel Abdulhamed Abdulgawad on April 19th 2004, Borg Al Arab Department, Alexandria.
The Appeal
The defendant appealed to the sentence at the Court of Cassation on December 26th 2004, the brief of the reasons of appeal was field on November 1st 2005, and the Public Prosecution presented its brief with its opinion.
The Court of Cassation issued its decision on Saturday May 7th 2005, regarding the appeal filed in the Public Prosecution schedule no. 8323/2005, and at the court by no. 8323/75 judiciary year, and presented the following decision:
First: Accepting the presentation of the Public Prosecution.
Second: Accepting the appeal of the defendant, and returning the case to Alexandria Criminal Court, in order to determine a new court room to process it.
The decision ruled that: as the appealer claimed that the appealed sentence was faulty and not likewise the facts in documents, and in the course of proving the intentional killing didn't include facts yielding it. It also proved the murder by the presence of a motive for killing the victim since months before her murder, while she was a month old on her murder, so that the sentence shall be rightly appealed.
Therefore, the sentence was not issued on evidences from the case file, and the evidences proven for the intentional murder is thus void because it was built on corrupt base, and that doesn't mean that other evidences are considered the same as well, because the criminal evidences are related to each others, and collectively provides an approach to the judge, and when any of them is proven wrong, it is thus hard to identify the effect of such evidence on the decision finally reached by the court.
Therefore, the appeal in the decision shall be accepted, along with all that might be related, and the presentation of the Public Prosecution is denied, without any need to research the other aspects of the appeal.
Seventh Case: Crime 1797/2004 Masr El Kadima Department, registered 1283/2004
Cairo Criminal Court ruled on January 6th 2005 to sentence each of Abdulhamed Alzaher Abdulwahed, and Mervet Mustafa Hussien Reidy to death by hanging, and Soaad Ibrahim Hegazy Zarzour to life imprisonment. As they committed intentional murder on November 28th 2003, Masr El Kadima Department, Cairo, to Saneya Mohamed Hammam, and the crime was accompanied by another offence, which is stealing her jewelry.
The Appeal:
The defendants filed an appeal against the decision on 6, 14, 15 February 2005, and their appeal briefs were filed on March 1st 2005.
At the public session held at the headquarters of the Court in Cairo, May 16th 2005, the court issued its decision accepting the presentation of the Public Prosecution, and in relation to the subject of the appeal in the verdict for all appealers, and it returned the case to Cairo Criminal Court to consider it by another court room.
And as it was apparent from the session reports that the Laywer Abulnaga Al Harzy attended with the first defendant and postponing was reached, during which the court listened to the testimonies of the witnesses of the prosecution, and the court altered the registry and description and announced the case as intentional murder related to a stealing offence, the defence of the first defendant asked for clemency for his defendant, and asked for dismissing the accusation with intentional murder because it is not clearly established against the first defendant. After that he defended him in relation to the second accusation, then the third. The court decided to send the case's documents to the Mofty, and postponed the case until its session on 6/1/2005, in which it issued its verdict discussed at the court without the defence of the first defendant. And as one of the basic rights provided by the law is to have access to legal counsel for each defendant in murder cases filed in a criminal court, the discussion of such an offence in the court is then faulty if in the absence of a lawyer.
Therefore, and as the court reached the decision of appealing the verdict applied to the defendant Abdulhamed abdulzaher Abdulwahed, the verdict shall be, also, appealed, in addition to the rest of the defendants.
Eighth Case:
Ismailia Police Investigation Services received a report for finding parts of a body of some one in Ibrahimia water Canal. Afterwards it was found out to be the body of a driver called Sobhy Mohamed Selim, 45 years old, and the researches of the investigation services found out that four unemployed persons, a driver and the owner of the company. They were arrested and referred to the Public Prosecution Office, where the defendants confessed and simulated the offence, the defendants are:
Mohamed Mansour Mohamed 33-Ibrahim Alsayed Nafie 31-Mohamed Alsayed Nafie 29-Mamdouh Alsayed Abdulal 28-Gamal Ismail Mohamed 38.
The defendants were referred to Ismailia Criminal Court, that ruled on June 8th 2004 the death penalty to the first and fourth defendant, life imprisonment for the fifth, determinate period of imprisonment for the last. The defendants appealed to the sentences, and on 4/7/2005 the Court of Cassation ruled the abolishment of the death sentence ruled against four citizens, and the life imprisonment to a driver, two years imprisonment for another, for accusing them of killing a driver, cutting his body, throwing him in a Canal, stealing his money and car. The court decided to return their cases to another Criminal Court.
Fifth: Conclusion and Recommendations
Finally, the Egyptian Organization for Human Rights EOHR is confirming that abolishing the death penalty is not defending those who committed dangerous offences to the society or calling for tolerating their deeds, as much as it is about the promotion of defending human rights and justice, especially that the death penalty is the only penalty that can not be reconsidered if new evidences appear proving the innocence of the defendant. Meanwhile, EOHR realizes that the abolishment of the capital punishment needs a lot of efforts by the Islamic Shari'a experts. However, for the time being, the death penalty can be abolished in crimes other than those mentioned in the Islamic Shari'a.
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