Guarantees of Prosecution Independence Needed for a More Effective Justice System

Press Release

9 August 2014

In a court of law, a prosecutor recently demanded the maximum penalty for three journalists based on evidence that included pictures of a family vacation, clips from international newscasts and a music video by the Australian singer, Gotye. 

The three journalists got prison sentences that ranged from 7 to 10 years in the infamous AJE trial. The trial was criticized for the lack of concrete evidence and due process. But such criticism has become common and it usually starts with the public prosecution authority, which is the focus of a study the Egyptian Initiative for Personal Rights released today. 

The study, “Whose Interest Does the Public’s Defender Serve?” investigates how the prosecution authority in Egypt contributes to an alarmingly selective justice system. The questions posed in the study, were addressed during a roundtable discussion on June 21, moderated by Judge Hisham Raouf of the Cairo Appeals Court with the participation of a number of judges, lawyers and other legal experts. The public prosecutor's office did not respond to EIPR's invitation to attend the discussion. 

Since the 2011 revolution that ousted former President Hosni Mubarak, the public prosecution’s office has demonstrated evidence of political bias. Thousands of political dissidents were referred to trials based on flimsy evidence with little effort to establish individual criminal responsibility. In one instant in a case known to the media as the “Matay” case, the public prosecutor referred 545 people to trial on the charge of killing a single police officer. On the other hand, the public prosecution routinely fails to conduct serious investigations into reports of killings and torture at the hands of law enforcement officials, further entrenching impunity. The acquittals of the vast majority of police officers charged with killing protesters during the past three years of political upheaval are partially the result of the flawed investigations conducted by the public prosecution. 

Since the removal of former President Mohamed Morsi, the public prosecution has also been in the habit of interrogating suspects in political cases inside detention facilities rather than prosecution or court complexes, failing to guarantee the presence of lawyers in all instances, and refusing in some cases to grant lawyers access to all relevant information, thus undermining due process rights. 

These violations partially reflect shortcomings in the existing legislation which entrusts both the powers to investigate and to prosecute to the public prosecution. The combination of those roles undermines the impartiality of fact-finding as public prosecutors have a clear conflict of interest in acting both as litigants prosecuting defendants as well as investigators responsible for collecting all evidence whether it was in the interest of or against the suspects in the case. To address this flaw, EIPR’s study calls for legislative reforms to ensure prosecutors are protected from interference when carrying out investigations- a recommendation welcomed by most participants at the roundtable discussion. It also calls for strengthening the role of investigative judges and providing adequate training to judges to enable them to carry out investigations. 

Prosecutors have broad discretionary powers over a case. They can choose to shelf inquiries for indefinite periods of time, refer cases for trials, or dismiss other cases as baseless. Such expansive, barely challenged powers, combined with the risk of political bias could result in unfair treatment of suspects, selective indictment, and serious concerns about the impartiality of the judiciary system. On September 10, 2013,  the prosecution chose to indict Mr. Morsi and a group of his supporters for responsibility in the killing of three anti-Morsi protesters during the presidential Ittihadeya palace events of December 2012, while simultaneously opting to leave investigations open without referring anyone to trial in the killing of nine supporters of Mr. Morsi during the same events. 

Such discretionary powers are often used to grant public officials impunity when complaints of alleged violations or other abuses of authority arise. This problem is made worse by the fact that the decisions of public prosecutors to dismiss such complaints without indictment cannot be appealed by victims or their representative –an option otherwise available in cases not involving public officials.    

The study also analyses the system of appointment, promotion and placement of prosecutors as a factor further impeding judicial independence especially in the light of the power exercised by the Public Prosecutor on a large part of the judiciary system. The selection process is subject to unwritten rules that cover the social and political background of the candidates during the selection process for prosecutors despite legal assurances of equal opportunity. The process lacks transparency and effectively denies women access to appointments as public prosecutors in spite of constitutional guarantees to ensure women representation in the judiciary. 

Independence of the judiciary is further flawed by the influence the executive branch exercises over the public prosecution authority, the study said. Until the passage of the 2012 constitution, the president wielded nearly unchecked powers to appoint the Public Prosecutor for life. The latest constitutional amendment in 2014 limited the president’s authority to endorsing the selection of the Supreme Judicial Council –the highest representative body of judges responsible for the appointments and promotions of judges and prosecutors- for the appointment of a Public Prosecutor for a  four-year term. In practice, however, the president continues to hold a lot of influence over the appointment of members of the Supreme Judicial Council itself. The Ministry of Justice also exercises considerable power over the public prosecution including through administrative oversight. 

The existing mechanisms of accountability for public prosecutors are judicial inspection exercised by the Ministry of Justice as well as disciplinary procedures including dismissal. Such measures do not effectively guarantee that public prosecutors abide by the rule of law and the professional code of ethics, the study found. The lack of transparency and information available for the public on accountability for prosecutors often leave the impression that punitive measures apply selectively to punish prosecutors not for committing grave professional errors, but for not acting in the interest of the ruling elite. A case in point is the decision of a former Public Prosecutor to banish Mostafa Khater from his post as the General Attorney for East Cairo to the southern province of Beni Suef following his decision to release suspects in attacks against supporters of former president Morsi in the Ittihadyea palace violent events of December 2012. After the ouster of Morsi, a number of judges suspected of affiliation with the Muslim Brotherhood were moved to administrative (non-judicial) positions. 

During the roundtable discussion, the judges present disagreed with EIPR’s call for greater transparency on the penalization of members of the judiciary, arguing that publicizing such cases would undermine the public trust in the judiciary. EIPR believes the contrary: judicial accountability would contribute to increasing public trust in the independence and integrity of the judiciary as it sends a message that nobody –including judges and prosecutors- is above the law. 

The lack of effective oversight mechanisms coupled with hurdles placed on public criticism of the prosecution mean that citizens wronged by the public prosecution’s decisions currently have little avenues to seek redress or even air their grievances. The mere criticism of the prosecution is often branded as “insulting the judiciary” –a crime punishable by prison in Egyptian law. 

Most judges in Egypt start their careers as prosecutors, and so, reform in the public prosecution authority is the first step towards reinforcing the independence of the judiciary and to grant citizens their constitutional rights to due process and fair trials. The study concludes with a series of recommendations endorsed by the participants of the roundtable discussion to ensure the independence and impartiality of the public prosecution –an urgent and necessary step to guarantee the fair administration of justice.

To read full study in Arabic: Click here