The new Constitution approved in 2014 does not refer to capital punishment but ensures the right to life (article 59) and stipulates that Sharia law principles is a “main source for legislation”. However, art 93 states that «The State shall be bound by the international human rights agreements, covenants and conventions ratified by Egypt, and which shall have the force of law after publication in accordance with the prescribed conditions».
Capital offences number over 100 as defined by the Penal Code, the Military Code of Justice, the Arms and Ammunition Law, and the Egypt Narcotics Law.
The Egypt Penal Code, Law No. 58 of 1937, as amended by Law No. 5 of 2010, provides the death penalty as a main punishment for serious crimes (in addition to other possible alternative imprisonment sentences, the death penalty is mandatory in a few crimes, but the majority of the articles included death penalty provides alternative sentences, up to the court) for: premeditated killing (art.230), torture causing death (art. 126), use of substances/drugs resulting in death (art 233) as well as other deliberate murder if associated with another crime (arts. 234 and 375 bis first), intentional arson of a building, resulting in the deaths of persons who were present in the building at the outbreak of the fire (art. 257), kidnapping of a female aggravated by rape (including statutory rape) (art. 290); espionage "in times of war" (arts. 77-77(C), 78(A)-78(C), 78(E), 80, 81, 82(B), 83(A) cum. 86-102 Bis, 85, 86-102(2), 87 cum. 102(B), 92,) . A variety of treasonous offenses are punishable by death, such as: intentionally undermining Egypt’s independence, unity or territorial integrity; fighting against Egypt or assisting Egypt’s enemies or inciting the same; demoralizing the troops or people; undermining the defense of Egypt, particularly in time of war; breaching defense contracts at time of war; interference with the constitutional order; armed attempts to overthrow the government; or other offenses.
According to art 17 of the penal code, the court has the right to reduce the punishments form death penalty to life imprisonment (20 years max.), and life imprisonment to medium imprisonmet (7 to 15 years), and medium imprisonment to regular imprisonment (3 to 7 years).
This redusction wouldn't be aplicable for articles 86, 87, 88 & 89 unless the articles gives alternative punishemnt (Example: Death Penalty or Life Imprisonment).
In all other chapters, death penalty might be reduced by the court.
Martial Rules Law. In crimes of war related to the enemy, captives, the wounded and instances of rebellion, capital punishment is prescribed in articles 130 -132-133-134-135-136-138-139-140-141-151 -154 for a number of military offenses not resulting in death may be punishable by death, such as desertion, insubordination, looting, dereliction of duty, ill-treatment of the wounded, assisting the enemy and abuse of power (see also: arts. 77(B), 80, 85, 295 of the penal code).
Death penalty isn't deem necessary the only punishment, it is optional in all those articles, 2 pragraphs in article 133 & 135 make it the only punishment.
Its worh mentioning that 2014 constitution has kept a possible military trial for non military enmates conditioning the accused persons has been accused for committing crimes against the armed forces and its venues, Arab Organisation for Human Rights (AOHR) and other Human Rights groups has stood against keeping this exception, rather the fact it is a huge progress comparing to 1971 Constitution and 2013 Constitution, both has kept it open without any limitations, and in practice the most dangerous terrorist groups, such as Qaeda, ISIS and the Brotherhood armed wing (Hassm) are trialed by the military courts.
With regard capital crimes, the Code of Criminal Procedures foresees that:
- if the accused person fails to engage counsel, the court must appoint a lawyer to perform this function, at the State’s expense (Code of Criminal Procedures, arts. 381);
- a death sentence can be pronounced only by a unanimous decision and after consultation with the Mufti of the Republic. The sentence can be appealed by means of a legal challenge and a request for a retrial (Code of Criminal Procedures, art. 381). Mufti didn't approve death penalty for many cases, and in many other cases didn't aprove death penalty for most of the accused persons, and rather his opinion is consultative, but courts do resepect his opinion.
- the Department of Public Prosecutions must appeal death sentences delivered in the presence of the parties to the Court of Cassation in order to ensure the proper application of the law, even if the condemned person has not lodged an appeal with the Court (article 46 of Act No. 57 of 1959, concerning the circumstances and procedures for lodging an appeal with the Court of Cassation); the file pertaining to a case in which a final sentence of death has been delivered must be transmitted to the President of the Republic through the Minister of Justice so that the person may exercise his right to a pardon or to commutation of the sentence (Code of Criminal Procedures, art. 470); the President is entitled to reduce the sentence to imprisonment or full amnesty when the verdict is final.
- The penalty may not be executed on official holidays or days that the faith of the condemned person regards as special feast days (Code of Criminal Procedures, art. 475); the execution of a penalty of death imposed on a pregnant woman shall be suspended until she has been delivered of her child (Code of Criminal Procedures, art. 476); the death penalty shall not be imposed on persons under the age of 18 (The Children’s Act No. 12 of 1998, art. 112); the relatives of a condemned person may meet with him on the day appointed for execution of the sentence and shall be provided with facilities to perform the religious rites required by the faith of the condemned person (the Criminal Code, art. 472).
Egypt has progressively expanded its application of capital punishment since former President Hosni Mubarak took office in 1981 as well as after his resignation in 2011 and the ouster of President Morsi in 2014.
Under the nation’s legal system, death sentences are referred from criminal court judges to the Grand Mufti of Al-Azhar, the country’s top religious leader, for a non-binding review. First instance death sentences are subject to appeal in the Court of Cassation, which may decide to confirm criminal courts’ rulings, making them final, or revoke them, in which case the trial would be repeated in another criminal court that belongs to a different circuit. If the second criminal court issues a second ruling, it could be appealed at the Court of Cassation, which may accept the appeal, repeat the trial and issue a final sentence, or it may reject the appeal, in which case a criminal court’s second ruling is considered final.
Executions cannot take place on public holidays or religious holidays in accordance with the religion of the accused.
State of emergency laws - imposed in 1981 after Islamic extremists assassinated President Anwar Sadat - allow the government to try militants in a military court without the right of appeal. Since 1981 thousands of militants have been arrested and scores put to death.
In 1999 the Government abolished an article of the Penal Code that permitted a rapist to be absolved of criminal charges if he married his victim. However, marital rape is not illegal.
On 11 February 2011, following an 18-day popular uprising, Hosni Mubarak was forced to resign.
As a consequence of the “revolution” of 2011, the Supreme Council of the Armed Forces (SCAF) took the power to “temporarily administer the affairs of the Country.” The Supreme Council of the Armed Forces maintained the state of emergency that had been in effect for three decades, and thousands of civilians were tried in military courts since the SCAF assumed power in February 2011. The special courts, which often group dozens of defendants together before a military judge, are notorious for their quick and severe sentences. Defendants are regularly denied access to legal counsel and verdicts cannot be appealed. In July 2011, the SCAF insisted that only cases of “thuggery” associated with weapons, rape or assault of military personnel were being referred to military courts. However, military courts continue to rule on cases ranging from petty theft to violent crime, handing down sentences of six months to 25 years in prison.
The SCAF said military trials were necessary due to the spiralling crime rates that accompanied the uprising that led to Mubarak’s ouster. “No civilian should be tried in front of military courts,” SCAF member Major-General Mamdouh Shaheen told reporters. “But in this emergency situation... military courts took the place of civilian courts until they were able to work.”
The Supreme Council of the Armed Forces also added new offences to the already wide range of capital crimes. On 10 March 2011, the Supreme Council of the Armed Forces issued a decree (Law 7 of 2011), amending the 1937 Penal Code with two articles on “Hooliganism, Terrorizing and Thuggery”, for which “the penalty shall be death if the crime is preceded or accompanied or associated with or followed by the felony of murder.” On 1 April 2011, Egypt’s military decided to authorize execution as a punishment for convicted rapists.
The Supreme Council of the Armed Forces said it would allow the death sentence for rapists whose victims are under 18 or in cases where the perpetrator has a special connection with the victim, such as being the victim’s guardian or employee.
The SCAF relinquished power on 30 June 2012, immediately after the election of Mohamed Morsi, a leading figure in the Muslim Brotherhood, as the new President of Egypt. However, President Mohamed Morsi spent one year in office ending in July 2013, when the army deposed him after mass protests against his rule. On 27 May 2014, the former head of the Army, Abdel-Fattah al-Sisi, was elected the new President of Egypt. On 2 April 2018, he was re-elected with 97% of votes.
The war on terror
The ouster of Islamist President Mohamed Morsi in July 2013 has triggered a wave of attacks on the security forces in North Sinai and further west in the towns and cities of the Nile Valley and Delta. The army-ruled Government has blamed Morsi’s Muslim Brotherhood and their Islamist allies for orchestrating the violence and plotting against the country. The Muslim Brotherhood itself was dissolved by the supreme administrative court in September 2013 and was designated a terrorist group in December 2013. Therefore, all its activities were banned.
On 9 August 2014, the supreme administrative court also dissolved the Freedom and Justice Party (FJP), the political wing of the banned Muslim Brotherhood. The court’s ruling excludes the Brotherhood as a whole from formal participation in electoral politics, potentially forcing the mouvement underground. The FJP was established in June 2011, in the aftermath of the uprising that removed Hosni Mubarak from power after 30 years.
On 3 April 2014, the Egyptian Government approved a new anti-terrorism law, in the wake of a terrorist attack outside Cairo University on 2 April. The counter-terrorism law had been amended as it went through the House, and that it had been referred to interim President Adly Mansour for ratification. The new law increases the punishment for terrorism-related crimes and expands the scope of crimes that fall into this category. The amendments called for the death penalty for any person convicted of terrorism-related crimes, in addition to expanding the powers of security officers to enforce counter-terrorism laws. The law also reportedly mandates harsher prison sentences for those found guilty of the crime of promoting terrorist organizations, including on the Internet.
A wide and vaguely-defined range of terrorism-related offenses not necessarily resulting in death are punishable by death.
Under article 86 of the Egyptian Penal Code (*), the terrorism means “any use of force, violence, threats or intimidation to which an offender resorts in order to put into effect an individual or collective criminal plan designed to disrupt public order or endanger public safety and security by harming or terrorizing persons, jeopardizing their lives, freedoms or security, damaging the environment, damaging or seizing control of public or private communications, transport, assets, buildings or property, preventing or obstructing the functioning of public authorities, places of worship or academic institutions or rendering the Constitution, the laws or regulations inoperative.” The penalties applied to terrorism are reproduced in article 86 bis of the Penal Code and the penalty of death or hard labour for life has been introduced for using the method of terrorism in realising or excecuting association, corportion, organization, group or band and providing arms, ammunitions, explosives, materials, machines, funds, property or information (article 86 bis, paragraph (a). The same penalty is prescribed in case of the victim’s death in an attempt to force people to join or maintain membership in anti-state or terrorist organizations (article 86 bis, paragraph (b).
If with a foreign country or with an association, corportion, organization, group or band whose headquarter is based abroad or with any of those who work in the interest of any of them and also communicate with them, to carry out a terroristic act inside Egypt or against its properties, insitutions, civil servants, diplomatic reprsentatives, or its citizens, in the course of their duties or during their being abroad, if the crime occurr or is attemped (art. 86 bis C). Causing death in conjunction with a hijacking of any form of transportation (art. 88), while keeping in hostage a person with the aim to influence the public authorities or obtaining a benefit or privilege of any kind from them (art. 88 bis), while resisting to authorities assigned to the executions of the provisions of Section 1, Part 2 “Prejudice to the Government” (art. 88 bis A) or in conjuction with the destruction of a government facility, utility or place for public use (art. 90). The use of explosive with the intention to commit crimes of art 87 (overthrow or change the constitution or the republican regime) or with the purpose of political assasination or damaging public properties (102 bis B) is punished with death meanwhile the in case of use or attempt to use explosive in a way liable to expose people’s life to a danger is punished by death in case the explosion cause death (ar. 102 bis C). Usurping military authority or leading armed gangs for criminal purposes (art. 91 and 93) is punishable by death.
On 27 October 2014, President Abdel Fattah al-Sisi issued a decree by Law No. 136 of 2014 expanding the jurisdiction of the military courts to include crimes against public establishments and facilities. This law allowed the trial of any civilian accused of vandalizing public property, or blocking public roads, before a military court. The military judiciary is subject to the authority of the Minister of Defense, all judges and prosecutors are military personnel of all ranks, and are subject to all regulations of discipline and order set out in the military service laws. Based on the recommendation of the Head of the Military Judiciary Commission, the Minister of Defense appoints military judges who, by extension, do not enjoy the same degree of independence as judges in civil courts. Despite some amendments to the Military Judiciary Law of February 2014 to allow for appeal before a higher court, however, military court proceedings, which allow the prosecution of civilians, continue to ignore fundamental guarantees of fair trials before an independent and impartial judiciary in accordance with international human rights standards.
On 17 January 2016, the Parliament overwhelmingly endorsed a controversial anti-terrorism law that sets up special courts and increases authorities’ power to impose heavy sentences, including the death penalty, for crimes under a definition of terrorism that is so broadly worded it could encompass civil disobedience, potentially criminalizing even private expressions of opposition to the government. The law will affect any person or group designated under Egypt’s Terrorist Entities Law, issued in February 2015, which created a procedure for courts to approve prosecutors’ nominations of individuals or groups as officially designated terrorists. The new law shields the military and the police from legal penalties for what it considers “proportionate use of force” and gives prosecutors greater power to detain suspects without judicial review and order wide-ranging and potentially indefinite surveillance of terrorist suspects without a court order. It also makes anyone judged to have facilitated, incited, or agreed to a vaguely defined terrorist crime liable for the same penalty that they would receive if they had committed that crime, even if the crime did not occur.
On 27 April 2017, some articles in the Code of Criminal Procedures were amended. President Abdel Fattah al-Sisi issued Decree No. 11 of 2017 on the amendment of appeal procedures, whereby cases can only be tried once before the Criminal Court and only once before the Court of Cassation where the latter addresses the subject matter. The amendments came in order to speed up litigation, but on the contrary, shorter periods of litigation and the absence of the possibility of a retrial - particularly in cases punishable by the death sentence - can jeopardize the course of justice, fair trial guarantees and the rights of the accused.
Prior to April 2017, the Court of Cassation could have annulled the criminal verdict and re-tried the defendant before another criminal circuit. Once referred to a new criminal court, the defendants could appeal for a second time to the Court of Cassation. As such it was possible for the defendants to appeal twice before the Court of Cassation.
An unprecedented number of death penalties have been meted out in Egypt following the ouster of Mohamed Morsi. In response, a group of public figures in Egypt, including renowned writer Ahdaf Soueif, human rights lawyers Gamal Eid and Emad Mubarak, writer and director Khaled al-Khamissi and political figure Amr Hamzawy, have launched a campaign against capital punishment. The group decries “the apparent deterioration in the justice and legal system in Egypt,” as well as the use of torture to extract confessions in several cases, which is “worrying when it comes to a penalty that cannot be reversed,” their statement said. Other human rights organizations, including the Arab Network for Human Rights Information, the Egyptian Initiative for Personal Rights and the Egyptian Center for Economic and Social Rights, also issued a joint statement expressing fear “of expanding the use of the death penalty in light of the recent escalation of repressive measures against political opposition.”
Since Morsi’s ouster in July 2013, Egypt’s military-backed government has waged a relentless crackdown on political dissent – largely targeting Morsi supporters – which has seen hundreds killed and thousands detained, and an unprecedented number of death penalties that have been meted out.
Regarding the death sentences, from July 2013 to 2017 a huge number of preliminary death sentences was pronounced, more than 2,000 were sent for the opinion of the Grand Mufti who, most of the cases, did not confirmed and penalties have been reduced or not issued so death sentences have been around 800 according to Huamn Rights watch. The number of death sentences has been further restricted in the further passage to the judgment of the Court of Cassation which, in 2017, confirmed 24 death sentences in five cases (No. 11 of 2012 known in the media as the «Port Said Massacre»; No. 1781 for the year 2014, known in the media as the «Alexandria Riots»; no. 781 for the year 2014 known in the media as the case of «Killing the Mansoura Guard»; No. 6300 for the year 2013/East of Alexandria, known in the media as the «The Events of Qaid Ibrahim» ; No. 3690 for the year 2014/South of Giza, known in the media as the «Qatar Espionage Case»).
On 4 January 2018, the Egyptian Coordination for Rights and Freedoms reports that more than 13,000 civilians have already gone through military courts since 2013.
On 9 May 2017, the criminal court of Giza sentenced the Muslim Brotherhood's supreme guide Mohamed Badie to life in prison for "planning violent attacks" during protests that followed the July 2013 military-led ouster of Egypt's former Islamist president Mohamed Morsi, who hailed from the Brotherhood.
The court condemned Badie to a life term along with Mahmoud Ghozlan, a Brotherhood spokesman, and Hossam Abubakr, a member of its guidance bureau. Others had five years behind bars and 21 were acquitted. The retrial came after Egypt's court of cassation scrapped a 2015 ruling under which Badie and 13 others were condemned to death, and 34 defendants given life terms.
"We will appeal for everyone who was convicted," Abdel Maksoud told AFP. The court of cassation would have to issue a final ruling in such an appeal.
Badie is being prosecuted in more than 35 trials, according to his lawyers. He received three death sentences in other cases but those rulings have also been scrapped. The Court of Cassation has cancelled scores of death sentences against Morsi supporters including against the deposed president himself.
On 26 February 2017, the human rights committee of Egypt's parliament said it will never recommend that the death penalty be abolished, responding to repeated calls from foreign rights groups to end capital punishment.
"Western human rights organisations that lobby for the abolition of the death penalty should know that this goes against both Islamic Sharia and the country's constitution," read a statement by the human rights committee chaired by Hon. Alaa Abed.
The United Nations and several international human rights organizations expressed concern and questioned the fairness of proceedings against so many defendants lasting just few hours. Human Rights Watch described the trials as a “blatant and fundamental violation of the right to a fair trial guaranteed by the Egyptian constitution and international law.”
On 22 June 2017, a group of U.N. human rights experts demanded that Egypt halt the planned executions of six men sentenced to death on the basis of forced confessions.
On 6 December 2017, the African Union has called on the Egyptian government to repeal the death sentence in 20 new cases and "immediately suspend" the death sentences. This measure came after the Egyptian Freedom and Justice Party (FJP), the party of ousted former President Mohamed Morsi, sent a complaint to the commission on behalf of the prisoners set to be executed.
On 2 January 2018, the Office of the UN High Commissioner for Human Rights, was shocked for the 20 executions carried out between end 2017 and beginning of 2018 and said that, despite the security challenges facing Egypt - in particular in Sinai - executions should not be used as a means to combat terrorism. It expressed serious concerned that in all these cases, due process and fair trial guarantees do not appear to have been followed as military courts typically deny defendants’ rights accorded by civilian courts.
From 15 to 16 May 2017, the Arab Organization for Human Rights (AOHR) and Hands off Cain organised a workshop in Cairo to contain the death penalty in time of war on terrorism. The meeting, part of a project supported by the European Union, was an opportunity to develop a plan of reforms aimed at adapting the domestic legal system to the international human rights standards referred to in art. 93 of the Constitution.
In 2015, 7 people were executed for terrorism or political violent acts.
In 2016, 1 man was executed for terrorism or political violent acts. Of the 237 new death sentences issued, according to Amnesty International, 44 were for terrorism related crimes. On 15 December 2016, Egypt executed prominent Islamist fighter Adel Habara, 40, who was sentenced to death in 2014 for killing 25 army conscripts in Northern Sinai in August 2013. Habara had been taken from his cell at the maximum security Aqrab, or Scorpion, jail in Cairo to the Court of Cassation, where he was hanged in the presence of judicial officials. Habara's appeal was rejected by the Court of Cassation on 10 December.
In 2017, 15 men were executed for terrorism.
Top secret death
There is very little official data available on death sentences and executions in Egypt, where news of executions rarely filtered through to the local media.
Condemned prisoners are not told the date and time of their execution, and in practice their families are not made aware of the execution until they are called to collect the body – despite claims by the Egyptian authorities that relatives are permitted to visit the condemned person on the day appointed for execution.
The authorities never disclose how many people are awaiting execution. The avarage before 2011 were approximately 19 executions/year
The total executions carried out between 1906 and till 2014, were (approximately) 1429 according to academical studies.
After a de facto moratorium dating back to 2011, in 2014 Egypt carried out at least 9 executions, of which only 8 were reported by local newspapers.
The last known executions were carried out in 2011 (at least 1), in 2010 (at least 5) and 2009 (at least 5).
In 2016, 16 executions, including a woman, were carried out - but were 44 according Amnesty International - and in 2017, executions carried out were 31 executions including a woman according the Arab Organization for Human Rights (AOHR) but were at least 49 according the Report by Egyptian Initiative for Personal Rights e Adalah Center for Rights and Freedoms. Fiftheen of these executions, are related to terrorism.
At least 538 death sentences were imposed in 2015, according to Amnesty International.
At least 237 death sentences were imposed in 2016, according to the Arab Organization for Human Rights (AOHR). As of 15 February 2016, there were about 539 people under final death sentence, according to the Arab Organization for Human Rights (AOHR).
In 2017, according the Report by Egyptian Initiative for Personal Rights e Adalah Center for Rights and Freedoms at least 375 death sentences have been issued.: 260 by criminal courts for 81 cases, of whom 224 are in custody and 115 by military penal courts. With regard criminal court, 139 defendants have been sentenced to death in 16 cases of a political nature, including 112 in custody and 27 fugitives. At least 121 other defendants were sentenced to death for 65 other criminal cases of a non-political nature, 112 of whom are imprisoned and nine are fugitives.
With regard to the death sentences issued by military courts in 2017, as documented by members of the report team and which were circulated in various media, the Supreme Military Court of Appeals upheld the death sentences of at least 25 civilian defendants in three cases, including 22 persons in detention. The military criminal courts sentenced at least 71 civilian defendants, all in cases of a political nature, and 19 defendants in custody in relation to four other cases.
Media reports indicate that various criminal courts referred the papers of 45 defendants to the Mufti in 15 different cases, including one military case. Judgements were also scheduled for these cases in the first few months of 2018.
Between 580 and 590, 2 thirds of them were condemned before 2010, people are under final death sentence, according to the Arab Organization for Human Rights (AOHR) at the end of 2017
The death penalty on women
Under Article 476 of the Criminal Procedure Code, a pregnant woman cannot be executed until two months after her child’s birth. Additionally, Egypt is party to the ICCPR, which prohibits the execution of pregnant women. Women with small children, under Article 476 of the Criminal Procedure Code, a pregnant woman cannot be executed until two years after her child’s birth.
In 2016, at least 11 women have been senteced to death and one woman was executed.
In 2017, 1 woman was executed.
In November 2014, Egypt was reviewed under the Universal Periodic Review of the UN Human Rights Council. The Government rejected those to consider ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights and establish an official moratorium on executions with a view to abolishing the death penalty.
On December 19, 2016, Egypt voted again against the Resolution on a Moratorium on the Use of the Death Penalty at the UN General Assembly.
On 29 September 2017, Egypt voted against the Resolution on the death penalty (L6/17) at the 36° session of the UN Council on Human Rights.