Referral of Certain Types of Cases

On 7 October 2017, the Prime Minister – acting on behalf of President Abdel Fattah El Sissi – issued a decree ordering the general prosecution to refer cases related to certain types of crimes to the Emergency State Security Courts formed under Emergency Law 162 of 1958, instead of courts of normal jurisdiction. Although the crimes contained are mostly of political nature, the decree also refers crimes in relation to violations of compulsory pricing and internal supply of goods laws to the Emergency State Security Courts. 

Background

Back in April 2017, a presidential decree[1] declared a nation-wide state of emergency for three months, following attacks on two Coptic Orthodox Churches. The same decree also delegated presidential competencies contained under Emergency Law No. 162 of 1958 (the “Emergency Law”)[2] to the Prime Minister. Following that, in June 2017, another presidential decree[3] extended the state of emergency for another three months starting 10 July 2017. In accordance with the 2014 Constitution, a simple majority of the Egyptian parliament must approve a declaration of a state of emergency within seven days of it being made. The main effect of the declaration of a state of emergency is that it triggers the application of the Emergency Law, which provides significant powers to the executive authority. In any case, the period of the state of emergency cannot exceed three months that are renewable for only one similar term by way of a two-thirds majority vote of parliament. The Emergency Law also grants the president the authority to refer any cases to the Emergency State Security Courts, which do not have the same level of independence or protections for the defendant as ordinary courts. Moreover, their decisions may not be appealed and can be annulled by order of the president.

The Decree

On 7 October 2017, the Prime Minister issued decree No. 2165 of 2017 (the “Decree”)[4] which orders the general prosecution to refer certain types of crimes to the Emergency State Security Courts formed under the Emergency Law. This only applies to cases that have not been referred to courts prior to the date of the Decree. The types of crimes contained in the Decree include crimes under Law No. 10 of 1914 on [Illegal] Assembly; crimes contained under the Second Book of the Penalty Code constituting a breach of government security perpetrated inside or outside Egypt; crimes committed with the use of explosives; obstructing traffic; terrorizing citizens, thuggery; disturbing the peace; use of weapons and ammunition; disturbing the sanctity of religious places; crimes under Protest Law No. 107 of 2013; and crimes under Anti-Terrorism Law No. 94 of 2015. Interestingly however, the Decree also has some economic effect, as it refers crimes under Law No. 95 of 1945 on Internal Supply of Goods,[5] and Law No. 163 of 1950 on Compulsory Pricing and Profit Capping[6] to the jurisdiction of the Emergency State Security Courts. The Internal Supply Law gives the Minister of Supply and Internal Trade the right to impose restrictions on the production, trade, distribution, transportation, and consumption of goods. Additionally, it grants the Minister the right to sequestrate any facility, premise, or means of transportation used in the production of food commodities, pharmaceuticals, chemicals, or laboratory equipment, and to cap the prices of goods that are confiscated by the Ministry, as well as handle their distribution. On the other hand, the Compulsory Pricing Law gives the Minister of Trade and Industry the right to determine maximum pricing for several consumer goods, and prohibits sellers and buyers of these goods from exceeding those determined prices. Crimes contained under the Compulsory Pricing Law include the sale, or offering for sale, of a good that is subject to compulsory pricing for a profit which exceeds the determined limit; the sale of state-subsidized goods for higher prices than those determined; offering food, drink, or accommodation in hotels and restaurants for prices higher than those set by the state. The aforementioned penalties are imposed on the seller of goods in violation of the Law in addition to the seller’s manager. In addition, the Law also contains punishment for a consumer who buys a good that is subject to compulsory pricing for a higher price unless they report it to the authorities or confess to the incident. Finally, the law imposes a penalty on government officials who are assigned the supervision of the application of its provisions but who fail out of negligence or otherwise to report violations. In a related update, on 10 October 2017, the Minister of Supply and Internal Trade issued decision No. 217 of 2017[7] obligating all bodies and companies that produce, import, or package food commodities to clearly type the price on each item in Arabic in a manner that may not be erased or removed. Furthermore, entities that handle the trade, distribution, or storage of these goods are prohibited from handling items which do not contain clear indication of selling price. Said entities are given a grace period to comply with this decision which ends on 31 December 2017, or face the penalties provided under the Compulsory Pricing Law.

Conclusion

The effect of the Decree is the transfer of any case in relation to the above crimes that has not been referred by the prosecution to courts of normal jurisdiction yet, to the Emergency State Security Courts, which provides less guarantees to defendants and curtails the length of a criminal trial by limiting appeal options. It is worth noting however, that the state of emergency declared for three months on 10 April 2017, and extended for another three months starting 10 July 2017, ends on 10 October 2017; which should mean that the provisions of the Emergency Law cease to apply following that date. Whether cases will cease to be referred to Emergency State Security Courts after that date is not clear. In any event, subjecting cases including crimes of an economic nature to this level of scrutiny before courts of such a special nature certainly does not send a positive message to the business community.   [1] Presidential Decree No. 157/2017 declaring a nation-wide state of emergency for a period of three months starting 1:00 PM on Monday 10 April 2017, Official Gazette, Issue No. 14 (bis) (b), 10 April 2017. [2] Presidential Decree-Law No. 162/1958 on the State of Emergency, Official Gazette, Issue No. 29 (bis) (b) “irregular”, 28 September 1958. [3] Presidential Decree No. 289/2017 extending the state of emergency declared by Presidential Decree No. 157/2017 for another three months, Official Gazette, Issue No. 24 (bis) (c), 21 June 2017. [4] Prime Minister Decree No. 2165/2017 ordering the general prosecution to refer certain types of crimes to the Emergency State Security Courts, Official Gazette, Issue No. 40 (cont.), 7 October 2017. [5] Law No. 95/1945 on the Supply of Goods, Egyptian Gazette, Issue No. 145 (bis) (a) “irregular”, 6 October 1945. [6] Law No. 163/1950 on Compulsory Pricing and Profit Capping, Egyptian Gazette, Issue No. 90 (bis) “irregular”, 14 September 1950. [7] Minister of Supply and Internal Trade Decision No. 217/2017 obligating all bodies and companies that produce, import, or package food commodities to clearly type the price on each item in Arabic in a manner that may not be erased or removed, Egyptian Gazette, Issue No. 227, 10 October 2017.