New Law Increases Penalties for Rea

Last year ended with the issuance of Law No. 164 of 2019 (the “2019 Law”)[1] that intensified the penalties for real estate encroachments. To be specific, the 2019 Law amends six articles of Egypt’s Penal Code that was issued by virtue of Law No. 58 of 1937 (the “Penal Code”).[2] These amendments comprise the increase in imprisonment periods and in the monetary values of fines, the addition of new fines, the stipulation that almost all of these penalties would include both imprisonment and fines  (rather than either imprisonment or fines as has been previously the case), and an elaboration on some of the provisions such that they now include specific penalties for different conditions of each type of encroachment (for instance, in case the encroachment occurs through fraud, which was not always treated as a separate case leading to a different penalty). Having gone into effect on 13 December 2019, the new Law specifically addresses the penalties for the following encroachments: (1) encroaching on agricultural lands, vacant lands, or buildings which are publicly owned or possessed, whether such encroachment is done by a civil servant or otherwise; (2) entering a property in the possession of another person with the aim of preventing its possession or committing a crime in it; (3) entering an inhabited house or one intended for habitation or its annexes, or entering an occupied ship or a place intended for safekeeping funds, if these are in the possession of another person and the intention of the person entering is to prevent their possession or to commit a crime in them; and (4) hiding in any of the aforementioned places in point (3) from those entitled to remove the violator. Although real estate encroachments have been on the rise in Egypt, particularly since 2011, there is a dearth of statistics, both official and otherwise, on its incidence. Yet this is met with a profusion of qualitative narratives and anecdotes on such encroachments. In this manner, the recent amendments passed in 2019 could be seen as part of the government’s efforts to update and closely regulate the real estate condition in Egypt in terms of illegal encroachments. This is significant particularly since the current Penal Code was originally issued under King Farouk I’s reign and the government of Mustafa al-Nahhas in 1937, which provided a historically different set of legal, economic, and social issues to deal with. Although there have been numerous amendments to the Penal Code through the decades, these have also addressed the particular socioeconomic and legal contexts of the moment and imposed fines that reflected the financial circumstances then. In specific, the latest amendments before the 2019 Law to the articles related to the cases of real estate encroachments in question were passed more than three decades ago (in the 1980s), with the exception of a 2018 Constitutional Court decision[3] regarding the unconstitutionality of two of these articles. One of the six articles was also not amended since 1937. Hence, the 2019 Law could be read as an alignment of these provisions with the current state of affairs. It is also worth noting that the two articles that were deemed unconstitutional in 2018 were articles 115 (bis) and 372 (bis), which were both introduced in 1984 and concern the encroachment on agricultural or vacant lands or buildings which are publicly owned or possessed, whether by a civil servant or anyone else. In terms of legislative drafting, it would have been more accurate had the new Law included these two articles as additions rather than amendments to already existing (but unconstitutional and hence revoked) articles.   [1] Law No. 164/2019 amending certain provisions of the Penal Code promulgated by Law No. 58/1937, Official Gazette, Issue No. 50 (contd.), 12 December 2019. [2] Penal Code promulgated by virtue of Law No. 58/1937, Egyptian Gazette, Issue No. 71, 5 August 1937. [3] Supreme Constitutional Court Decision in Case No. 17 of Judiciary Year 28, Official Gazette, Issue No. 42 (bis), 22 October 2018.