1953 Code of Criminal Procedure

Published in the Official Gazette, 1954 Special Edition

Article (1)

The Public Prosecution shall hold sole competence to file and initiate criminal proceedings. Other entities may only file such proceedings in the circumstances set out in the law. Criminal cases may not be abandoned, discontinued, or suspended, except in the circumstances set out in the law.

International Covenant on Civil and Political Rights

Article (2)

[3. (b)] To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

Society’s right to establish the pillars of justice

Power of the investigating authorities to stay a case under the appropriate power in accordance with Article (49) titled “Retaining Documents”

Public Prosecution combining investigation and indictment powers

The nature of a criminal case restricts the investigating authorities to suspend or delay its progress except with a legal ground.

Belief in the mission of searching for the truth in pursuit of justice, Article (38), Criminal Investigator Guide

Full independence in investigation procedures and formation of its belief through the investigation proceedings and not being influenced by media broadcasts, Article (40), Criminal Investigator Guide, chapter on investigator qualities

1953 Code of Criminal Procedure

Article (2)

The Prosecutor-General, directly or through a member of the Public Prosecution, shall initiate criminal proceedings as set out by law.

Society’s right to establish the pillars of justice

Right to initiate proceedings

“The function of the Public Prosecution may be performed by other parties in accordance with the law.”

Unclear wording

Authorisation of administrative monitoring under Law No. (19) of 2013, powers of the Public Prosecution

Authorisation of the military courts under the Special Criminal Procedure Code No. (1) of 1999 and amendments thereto

The prosecutor-general is the principal because he represents society in establishing the pillars of justice

Law No. (6) of 2006 on the judicial system and amendments thereto

Article (38)

The Public Prosecution shall exercise the competencies entrusted thereto by the law. The Prosecutor-General shall undertake the function of the Public Prosecution with the assistance of a sufficient number of members.

Each court of appeal shall have an advocate-general, under the supervision of the Prosecutor-General, who shall have the powers and competences provided by law.

Anyone performing the duties of the Prosecutor-General must meet the same conditions as those required to be appointed a counsellor on the Supreme Court, and shall have all of the rights and guarantees provided for a counsellor of the Supreme Court.

If the Prosecutor-General is absent, his post is vacant, or he is unable to perform his functions, he shall be replaced in the exercise of all his powers by the most senior, followed by the next most senior advocate-general, then chief prosecutor in the absence of an advocate-general.

The authorities represent society, combining investigation and indictment powers

Law No. (6) of 2006 on the judicial system and amendments thereto

Article (39)

a. The locations in which members of the Public Prosecution work, as well as their transfer and assignment to work entities other than the first instance prosecution to which they are affiliated, shall be determined by a decree from the President of the Council, based on a recommendation from the Prosecutor-General.

b. The Prosecutor-General shall have the right to transfer members of the Public Prosecution within the district of the prosecution to which they have been appointed. He shall also have the right assign them to work outside of this district for a renewable period of not more than three months.

c. The chief prosecutor within a first instance prosecution district shall have the right to assign a member to perform the work of another member.

d. If the position of chief prosecutor is vacant, or if the chief prosecutor is absent or unable to perform his functions, he shall be replaced in the exercise of his powers by the most senior public prosecutor in the First Instance Prosecution. In the absence of public prosecutors, the Prosecutor-General may assign a district prosecutor to undertake the work of the chief prosecutor for a period of six months. This period may be renewed for additional periods by a decision from the President of the Council based on the proposal of the Prosecutor-General. The assigned member shall enjoy all of the competences entrusted to the chief prosecutor by law.

Society’s right to justice

Independence of the Public Prosecution from the executive authorities

1953 Code of Criminal Procedure

amended by the Law issued on 13/12/1955,  amended by Law No. (22) of 1963, published in the Official Gazette

Article (2) (bis)

Without prejudice to Articles (1) and (2), some policemen may be assigned to perform investigations, file and initiate public actions for misdemeanours and petty offences. In remote areas, the assignment may include granting the assigned policemen the authority to investigate felonies, provided they refer such to the Public Prosecution for action thereon.

Assignments shall be made by decree from the Prosecutor-General after approved by the Ministers of Justice and Interior. Assigned policemen shall be affiliated to the Prosecutor-General and subject to his supervision and direction.

Society’s right to establish the pillars of justice

Victim’s right to representation

Possibility of applying the provision if it is not repealed

because it is a valid provision

The provision is not used due to the increasing number of graduates from the law faculty.

Currently there are no remote, unreachable areas in Libya.

1953 Code of Criminal Procedure

Right of the injured party to file a complaint

Article (5)

If the victim of a crime has not yet reached the age of fifteen or has an intellectual disability, the complaint shall be filed by their guardian.

Convention on the Rights of the Child

Article (12)

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

The right of juveniles, individuals with special needs,

and victims of crime

to file a complaint

Knowledge of the law

Victim’s non-acquiescence to customs and traditions

Lapse of the right by a short prescription period in Article (3) of the 1953 Criminal Procedure Code

Requiring police officers to receive complaints during the evidence-gathering stage.

Requiring them to refer the complaints to the Public Prosecutor (Article (14), Acceptance of reports and complaints, and Article (17),

1953 Code of Criminal Procedure

1953 Code of Criminal Procedure

Article (6)

If the interests of the victim conflict with the interests of their representative or they do not have a representative, the Public Prosecution shall replace said representative.

Victim’s right to representation

Victim’s right to file complaints and to compensation

Lapse of the right by a short prescription period in Article (3) of the 1953 Criminal Procedure Code

Society as the guardian of those who have no guardian.

The principle of human solidarity has its source in the Islamic sharia and is confirmed by Libyan legislation.

1953 Code of Criminal Procedure

Article (7)

The right to file a complaint shall expire upon the victim’s death. If death occurs after the complaint is filed, it shall not affect the proceedings.

Article (10)

Anyone who files a complaint or request in the cases referred to in the preceding Articles may waive such at any time until a final ruling is issued on the case. The criminal case shall terminate with the waiver.

If the complainant dies, their right does not transfer to their heirs

Article (173)

Anyone who sustains damages from the crime may claim civil rights during the investigation into the case. The Public Prosecution shall decide on accepting this capacity in the investigation within three days from the submission of such claim. Anyone whose request is denied may appeal the decision before the Indictment Chamber within three days of being notified of the decision.

Victim’s right to file a complaint is a personal choice

Failure to observe society’s right to justice

Right of the injured party to file a complaint is a basic right

In the same Article (7): “In the case of multiple victims, the waiver shall not be taken into consideration unless it is issued by everyone who submitted the complaint, and the waiver of one of the accused shall be deemed a waiver for the others.”

The complainant’s interests given priority over society’s interest in justice

1953 Code of Criminal Procedure

Article (49)

If the Public Prosecution deems that a case cannot be continued, it shall order the documents be retained.

Presumption of innocence and burden of proof (Guide to Fair Trials)

International Covenant on Civil and Political Rights

Article (14), paragraph (2)

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Right to information

Slowness of procedures due to failure to establish set time periods

Public Prosecution combining investigating and indictment powers

Suitability or lack of importance as a justification for discontinuing criminal cases is considered by some a waiver of society’s right to retribution, as will be shown

Detachment from all influence, Article (39) Criminal Investigator Guide

1953 Code of Criminal Procedure

Article (50)

If the Public Prosecution issues a retention order, it must serve notice of such by registered letter to the victim, civil plaintiff, and complainant

International Covenant on Civil and Political Rights

Article (14), paragraph (3)

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

Right to information and notification

Acting on criminal cases immediately upon completion of the investigation or evidence-gathering procedures, without delay.

Prosecution members register all cases they are acting on and submit them upon inspection of their work to the assigned party, Article (275) Criminal Investigator Guide

1953 Code of Criminal Procedure

Article (51)

If, in accordance with the Articles related to petty offences and misdemeanours, the Public Prosecution decides a case may be filed based on the evidence heard, the accused shall be summoned to appear in person before the competent court.

[…]

In accordance with the Articles related to felonies and misdemeanours, the Public Prosecution may, prior to or after the start of an investigation, request that the President of the Court of First Instance assign an investigating magistrate or conduct such directly.

The competent Chief Prosecutor may request that the Court of Appeal assign a counsellor to investigate a particular crime or crimes of a certain type

[…]

Persons accused under the Articles related to felonies may request the appointment of an investigating magistrate. In this case, the president of the court shall issue a decision after hearing the statements of the Prosecution. Said decision shall not be subject to appeal, and the Prosecution shall continue the investigation until the assigned magistrate commences their work.

Right to a fair trial

Public Prosecution combining investigation and indictment powers

Lack of a provision on the accused’s right to an attorney during the evidence-gathering stage

Appointment of an investigating magistrate is a matter of discretion

Training and qualification of judicial police officers in preparing evidence-gathering reports

Training and qualification of judicial police officers to abide by the values of human rights during the evidence-gathering stage.

Preliminary investigations are compulsory only in the case of felonies

1953 Code of Criminal Procedure

Article (52)

The investigating magistrate may only conduct an investigation on a specific crime based on a referral thereto in accordance with the law.

International Covenant on Civil and Political Rights

Article (9)

[3.] Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power

Declaration on the Protection of All Persons from Enforced Disappearance

Article (10), paragraph (1)

1. Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention.

Right to a fair trial

Appointment is a discretionary power of the Public Prosecution

Independence of the investigating magistrate appointed

1953 Code of Criminal Procedure

Article (53)

Once the case is referred to an investigating magistrate, the magistrate shall hold sole competence to perform the investigation.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Declaration on the Protection of All Persons from Enforced Disappearance

Article (10), paragraph (1)

1. Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention.

Right to a fair trial

Appointment is a discretionary power of the Public Prosecution

Independence of the investigating magistrate appointed

1953 Code of Criminal Procedure

Article (54)

The investigating magistrate may assign a member of the Public Prosecution or judicial police officer to perform one or more specific investigative tasks, with the exception of questioning the accused.

[…]

If required to undertake one or more procedures outside their jurisdiction, the investigating magistrate may assign such actions to a Summary Court judge, a member of the Public Prosecution, or a judicial police officer therein.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Declaration on the Protection of All Persons from Enforced Disappearance

Article (10), paragraph (1)

1. Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention.

Right to a fair trial

 No explicit provision for the right to silence

Abuse of cases of necessity as a justification for interrogation

Independence of the investigating magistrate appointed

The right to silence is implied by the delegate not performing the interrogation

1953 Code of Criminal Procedure

Article (57)

The investigating magistrate shall be accompanied in all of their procedures by a court clerk who shall co-sign reports. Such reports shall be kept with the orders and remaining documents at the court registrar.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Declaration on the Protection of All Persons from Enforced Disappearance

Article (10), paragraph (1)

1. Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention.

Right to a fair trial

Explicit provision for an accompanying clerk required to sign reports, which might be seen as some as an organisational matter

Article (190) of the Criminal Investigator Guide confirms the assignment of sworn clerks. When necessary a clerk shall be assigned and sworn in

The selection takes into consideration those with clear handwriting

They write their name, capacity, and body to which they are affiliated, Article (192) Investigator Guide

1953 Code of Criminal Procedure

Article (58)

The President of the Court shall monitor investigating magistrates to ensure they are carrying out their actions in an appropriately timely manner and abiding by the deadlines set out by the law.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Declaration on the Protection of All Persons from Enforced Disappearance

Article (10), paragraph (1)

1. Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention.

Right to a fair trial

Lack of a provision on the legal period for finishing the investigation.

Oversight is an organisational matter that does not infringe upon the independence of the investigating magistrate

1953 Code of Criminal Procedure

Article (59)

Investigation procedures and the findings thereof shall be considered confidential, and investigators, members of the Public Prosecution, and the clerks, experts, or others assisting them in connection with the investigation or present due to their profession or occupation, must not divulge such secrets.

Right to a fair trial

Qualification and training of clerks to urge them to adhere to confidentiality

Criminalisation of the disclosure of professional secrets, Article (236) of the Penal Code

Article (188) Broadcasting Investigation Secrets,

Penal Code

1953 Code of Criminal Procedure

Article (60)

Anyone who sustains damages from the crime may claim civil rights during the investigation into the case. The investigating magistrate shall issue a final decision on accepting this capacity in the investigation.

The right to compensation

Joining the party injured in the crime is a discretionary matter for the investigating authority

Guarantee the rights of victims of crime.

A complaint is accompanied by an explicit claim of a civil right, otherwise it is a report.

1953 Code of Criminal Procedure

Article (61)

The Public Prosecution, the accused, the victim, the civil plaintiff, the civil defendant, and their representatives may attend all investigation procedures. The investigating magistrate may conduct the investigation in their absence when they deem it necessary to uncover the truth. As soon as such necessity ends, he shall grant them access to the investigation.

However, the investigating magistrate may, in cases of urgency, conduct certain investigation procedures in the absence of the parties. The latter shall have the right to review the papers recorded for such procedures. The parties shall always have the right to be accompanied by their representatives in the investigation.

Obtaining information

Right to a fair trial

Right to information

The term “urgency” is broad and usually the procedure is conducted in the absence of the accused, their representative, and the remaining parties.

Facilitating the parties to a criminal case in obtaining information

1953 Code of Criminal Procedure

Article (62)

The parties shall be notified of the date the investigating magistrate starts the investigation procedures and the location thereof.

Right to a fair trial

Only those summoned to hear their statements are notified

Separation of indictment and investigation powers

1953 Code of Criminal Procedure

Article (64)

The Public Prosecution may access the documents at any time to review the investigation proceedings, provided this does not result in any delay.

Right to a fair trial

Failure to specify the terms of preliminary investigation procedures leads to lengthy investigations and abandonment of the principle of a speedy trial

A formal procedure does not authorise the Prosecution to intervene until a decision is issued that there is no basis for the case.

1953 Code of Criminal Procedure

Article (65)

The Public Prosecution and other parties may submit to the investigating magistrate the pleas and motions they wish to submit during the investigation. The victim, even if not claiming civil rights, may submit memoranda referring to evidence or propose certain actions to reach the truth.

The use of this ability shall not entitle the victim to any other right regarding investigation procedures, except as provided by law.

Right to a fair trial

Right of the injured party to compensation

Slowness of procedures that are not tied to mandatory time periods

Intervention of witnesses does not impact investigation procedures except inasmuch as it achieves justice

1953 Code of Criminal Procedure

Article (66)

The investigating magistrate shall rule on the defences and requests submitted thereto within twenty-four hours and state the grounds such rulings are based on.

Right to a fair trial

The period is very short

Investigating magistrates do not abide by the provided period.

Investigating magistrates are appointed only to very limited cases

The provided period is organisational,

not abided by in reality

Setting short periods for ruling on requests and responding to pleas

1953 Code of Criminal Procedure

Article (67)

If the orders of an investigating magistrate are not issued in the presence of the parties, they shall be reported to the Public Prosecution, which shall notify the parties thereof within twenty-four hours from the date of issuance.

Right to a fair trial

Right to information

The provided period is organisational,

not abided by in reality

Separation of indictment and investigation powers

1953 Code of Criminal Procedure

Article (68)

The accused, the victim, the civil plaintiff, and the civil defendant may request copies of documents of whatever type during the investigation, at their expense, unless the investigation was conducted in their absence pursuant to a decision in this regard.

Right to a fair trial

Right to information

Court registrar delays

Enabling the parties to a criminal case to copy the documents that allow them to obtain justice.

1953 Code of Criminal Procedure

Article (69)

If in order to prove the case, it is necessary to seek the assistance of a doctor or other experts, the investigating magistrate must be present during the work and observe it. […]

If in order to prove the case, it is necessary to seek the assistance of a doctor or other experts, the investigating magistrate must be present during the work and observe it.

Right to defence

International Covenant on Civil and Political Rights

Article (14)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

African Charter on Human and Peoples’ Rights

Article (7)

1. Every individual shall have the right to have his cause heard. This comprises:

a. The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;

b. The right to be presumed innocent until proved guilty by a competent court or tribunal;

c. The right to defence, including the right to be defended by counsel of his choice;

d. The right to be tried within a reasonable time by an impartial court or tribunal.

2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Rome Statute of the International Criminal Court

Article (67)

1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:

a. To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;

b. To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence;

c. To be tried without undue delay;

d. Subject to Article (63), paragraph (2), to be present at the trial, to conduct the defence in person or through legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;

e. To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;

f. To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;

g. Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;

h. To make an unsworn oral or written statement in his or her defence; and

i. Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.

2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.

Anything not recorded in the expert report is not relied on, as with official papers, and such holds authority only as an evidence-gathering procedure

Lack of experts in sign language, most likely there are no sworn experts at the court

The penalty provided for abstention or fraud are too weak to be deterrent

Swearing oaths in application of Article (70) Criminal Procedure.

Restriction to a specific time period under the assignment order when using the expert procedure, in line with Article (71) Criminal Procedures.

The investigator and parties attend the expert activities as a guarantee provided in the interest of the investigation.

Expert is bound to the area of expertise specified by the investigator in the assignment order

With a specialised expert in any field, a person can defend themselves

Article (260) Penal, Refusal to perform a matter required by law

Anyone appointed by the judicial authority as an expert, interpreter, or guard for seized items who obtains by fraudulent means an exemption from the duty of appearing or submitting anything they are bound to submit because of their job shall be punishable with imprisonment for a period not more than six months or a fine ranging from ten pounds to fifty pounds.

(3) If the perpetrator is an expert or interpreter, the ruling shall result in debarment from the profession or vocation.

Article (267) Penal, Expert or Interpreter Falsehoods

Anyone who is appointed by the judicial authority as an expert or interpreter in a civil, commercial, criminal, or administrative case and intentionally gives a false opinion or incorrect translation or affirms facts that do not correspond to the truth, shall be punishable with the penalty provided in Article (266) on false testimony.

In addition to being barred from public office, the ruling shall result in debarment from engaging in the profession or vocation.

1953 Code of Criminal Procedure

Article (70)

Experts shall take an oath before the investigator to express their opinion with honesty and integrity, and shall submit their reports in writing.

Right to transparency

The procedure is converted from an investigative one to an evidence-gathering one if the oath was not taken

Guarantee to sound procedures

Article (267) Penal, Expert or Interpreter Falsehoods

Anyone who is appointed by the judicial authority as an expert or interpreter in a civil, commercial, criminal, or administrative case and intentionally gives a false opinion or incorrect translation or affirms facts that do not correspond to the truth, shall be punishable with the penalty provided in Article (266) on false testimony.

In addition to being barred from public office, the ruling shall result in debarment from engaging in the profession or vocation.

1953 Code of Criminal Procedure

Article (73)

The parties may reject the expert if there are strong reasons for such. The rejection request shall be submitted to the investigator to decide thereon and must state the reasons for the rejection. The investigator shall decide on such within three days of its submission.

Right to defence and to a fair trial

Rejection of experts is a fundamental guarantee provided for all parties represented in the right to reject an expert in accordance with the provisions on rejecting judges based on the rationale for which this guarantee was provided, the essence of which is apprehension over an expert’s neutrality or objectivity and impartiality when there are strong grounds justifying such.

1953 Code of Criminal Procedure

Article (72)

The accused may seek the assistance of an expert consultant and request they be allowed to review the documents and everything that was provided to the expert appointed by the judge, provided this does not delay the case.

Universal Declaration of Human Rights

Article (11), paragraph (1)

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

International Covenant on Civil and Political Rights

Article (14), paragraph (3)

To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

Right to defence and to a fair trial

A fundamental guarantee

Experts are appointed as required by the investigation to study relevant technical issues such as handwriting analysis in forgery cases,

building inspection in vandalism cases,

vehicle inspection in traffic accidents

1953 Code of Criminal Procedure

Article (74)

The investigator shall travel to any location whenever he deems it necessary to document the condition of locations, items, people, material evidence, and anything that proves the status of the same.

Right to a fair trial

Society’s right to establish the pillars of justice

Summoning suspects and witnesses for the prosecution and placing them in a location where they can not be coached on what to say, and receiving and closing the devices in their possession in accordance with Article (139) of the Criminal Investigator Guide, which does not refer to the need to abide by legal procedures with regard to the temporary custody of persons and receipt of the devices in their possession.

The Supreme Court: “Inspection is an investigation procedure that may be performed in the absence of the accused and all the accused may do is to argue before the Court that there may be a shortcoming or fault in the inspection. The determination of this falls to the authority of the court to characterise the inspection as a piece of case evidence that the court holds full independence to decide upon. The mere absence of the accused when the inspection was conducted is not a reason for invalidation thereof.”[1]

Establishing which superiors and security agency heads attended the investigation, Article (214), Criminal Investigator Guide

Moving to a location is tied to inspections because the first procedure realises the result represented in not tampering with the crime scene.

Preservation of evidence

1953 Code of Criminal Procedure

Article (75)

House searches are an investigation activity, and may only be resorted to in open investigations and based on a charge against a resident of the house to be searched.

Universal Declaration of Human Rights

Article (12)

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence

International Covenant on Civil and Political Rights

Article (17), paragraph (1)

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence

Right to a fair trial

Right to defence

Society’s right to establish the pillars of justice

Authorising police officers to conduct inspections prior to filing charges in cases of in flagrante delicto violates this guarantee (see, Evidence-gathering Stage)

Inspections, if conducted in the presence of the accused after they understand or learn of the Prosecution’s permit for such in accordance with Article (76) Procedures, does not require the presence of witnesses and thus the inspection conforms with the law.

Searches in the case of an open investigation

if a charge was filed previously

1953 Code of Criminal Procedure

Article (76)

If possible, the search shall be conducted in the presence of the accused or a representative thereof. If the search is conducted in a house that is not the house of the accused, the owner shall be called to attend in person or through a representative, if possible.

Right to defence

International Covenant on Civil and Political Rights

Article (14), paragraph (3), clause (d)

To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

African Charter on Human and Peoples’ Rights

Article (7), paragraph (c)

The right to defence, including the right to be defended by counsel of his choice;

The right to transparency, the right to privacy

The expression “if possible” reduces compliance with having the accused or representative thereof present

1953 Code of Criminal Procedure

Article (77)

Whenever they find it necessary to move to a location or conduct a search, an investigating magistrate shall notify the Public Prosecution of such.

Right to defence

International Covenant on Civil and Political Rights

Article (14), paragraph (3), clause (d)

To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

African Charter on Human and Peoples’ Rights

Article (7), paragraph (c)

The right to defence, including the right to be defended by counsel of his choice;

The right to privacy

The sanctity of private locations

The search of locations is an investigation procedure whose scope widens and narrows depending upon the authority performing such search.

The search of locations is a procedure necessitated by an investigation to uncover the surrounding facts, and thus is conceived of only as subsequent to the commission of a crime

if there is sufficient evidence to believe that a given person committed a felony or misdemeanour

1953 Code of Criminal Procedure

Article (78)

Investigating magistrates may search the accused as well as persons who are not accused if strong signs indicate that they are hiding items useful in uncovering the truth.

Universal Declaration of Human Rights

Article (12)

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence

International Covenant on Civil and Political Rights

Article (17), paragraph (1)

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence

The right to privacy

The sanctity of private locations

There are no standards to define the signs that warrant a search. The Article does not presume the innocence of the person who is not accused.

Their presence with the accused as cause for suspicion that they have participated in some way in the commission of the crime is a matter that warrants review

Adhering to the objective of the search, which only takes place when a felony or misdemeanour crime is committed

Investigating magistrates may inspect the house of the accused or other persons who are not accused when they are assigned to investigate an ongoing incident, in order to search for evidence, and other public locations, or allocated as public if they find it necessary to search them to dispel ambiguity around the incident. Their authority is limited by the restrictions provided under the law with regard to certain locations of a private nature, such as embassies, and the houses of ambassadors and members of diplomatic missions. The Public Prosecution may only search houses when the objective conditions required in this regard are met, and must also obtain a permit from the summary judge.

1953 Code of Criminal Procedure

Article (79)

Investigating magistrates may seize all correspondence, letters, newspapers, publications, and parcels in post offices and all cables in telegraph offices. They may also monitor telephone conversations whenever this serves to uncover the truth.

Universal Declaration of Human Rights

Article (12)

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence

International Covenant on Civil and Political Rights

Article (17), paragraph (1)

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence

The right to privacy

The sanctity of private locations

Violation of the right to privacy, wording does not indicate if there are conditions for such monitoring

Wire-tapping is a procedure whose time period must be specified, otherwise it is a grave violation of human rights. The task is supposed to be assigned to a trustworthy person who writes down or records conversations in order for them to be listened to later by the investigating power, unless it performed the procedure directly.

Necessity that seized items are described diligently and in detail

The investigating magistrate’s power to monitor telephone conversations is restricted to such being beneficial to uncovering the truth.

Guarantee of a person’s right to privacy in their communications and private life

Monitoring wired and wireless conversations is usually done by receiving telegraphic or telephone correspondence and other modern means of communications such as the internet, and adopting ways of spying on domestic lines or wireless message waves to listen or record them.

According to prevalent rules, the investigating authority is prohibited from monitoring telephone conversations between the accused and their lawyers or consulting expert.

1953 Code of Criminal Procedure

Article (80)

Investigating magistrates may not seize from the accused’s attorney or expert consultant documents and papers that the accused handed over to them to carry out the task entrusted thereto. Nor may investigating magistrates seize from them correspondence exchanged on the case.

Universal Declaration of Human Rights

Article (12)

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence

International Covenant on Civil and Political Rights

Article (17), paragraph (1)

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence

The right to privacy

The right to defence

Narrow jurisdiction of investigating magistrates to seize correspondence and letters, a fortiori the Public Prosecution, if the seized items are papers granted special protection under Article (80) Criminal Procedures

1953 Code of Criminal Procedure

Article (81)

Investigating magistrates shall have sole access to the correspondence, letters, and other documents seized.

[…]

When necessary, they may assign a member of the Public Prosecution to sort said documents. Depending on what emerges from the examination, they may order such documents be joined to the case file

Article (83)

Investigating magistrates may order the possessor of an object to present it if they find it necessary to seize or review it.

Article (84)

The accused or recipient shall be informed of the seized correspondence and telegrams or shall be provided with a copy thereof as soon as possible, unless this would harm the investigation.

Universal Declaration of Human Rights

Article (12)

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence

International Covenant on Civil and Political Rights

Article (17), paragraph (1)

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence

Investigating magistrates have the power to seize correspondence and letters and monitor telephone conversations without the Public Prosecution, whose powers are limited by legislation.

1953 Code of Criminal Procedure

Article (85)

An order may be issued to return the items seized during the investigation, even prior to the ruling, unless such items are necessary for the conduct of the case or are subject to confiscation.

Article (86)

Seized items shall be returned to the person who was in possession of the item at the time of seizure.

The right to ownership

Universal Declaration of Human Rights

Article (17)

1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

The right to the protection of the rights of good intentioned persons

Delay in the return of items

Procedures of matters of a private nature, either because the owner of the item did not request its return, or because the seized item was damaged over time or was disputed or not claimed

Articles (79) to (92) Procedures govern the special provisions on the seizure of items related to a crime and the disposition thereof

Article (257) Penal Code, Claiming Influence, criminalises and adds the characterisation of a felony to the crime, with a maximum imprisonment not to exceed five years.

Under Article (90) Criminal Procedures, the investigating authority that handled the case is obliged to issue the order to retain custody or to file the case and determine “how to dispose of the seized items, if this was not decided previously.”

Article (91) sets the conditions on disposal if items were not claimed, and requires, in order for the procedure to be correct, that three years pass from the end of the case and ownership of the seized item then transfers to the state

1953 Code of Criminal Procedure

Article (93)

Investigating magistrates shall hear the testimony of the witnesses called by the parties, unless they deem such to be of no benefit.

Society’s right to justice

Right of the accused to a fair trial

There is no witness-protection program

Establishing a provision penalising anyone who discloses witness information

Establishing a provision to maintain the confidentiality of witness information

Witness Capacity: A fundamental element to take into consideration due to the effects of the testimony as evidence. If a witness is sworn in and does not hold or lacks legal capacity for any reason the testimony cannot be used other than as an evidence-gathering procedure.

Article (260) Penal, Refusal to Perform that which is Legally Required

The same penalty shall be applied to anyone who is summoned before the judicial authority to perform any of the aforementioned functions, refuses to offer personal information about themselves, take the required oath, or to perform that with which they were entrusted.

The previous provisions shall apply to a person summoned to testify before the judicial authority and to any other person summoned to perform a judicial function.

Article (266), Penal, False testimony

Anyone who gives testimony before the judiciary and conceals, denies, or fails to disclose, whether in whole or in part, what they know of the facts on which they are questioned shall be punishable by imprisonment for a period not exceeding two years.

If the false testimony results in a sentence of imprisonment not exceeding five years, the penalty shall be imprisonment. If the sentence issued is imprisonment for a period exceeding five years, the penalty shall be imprisonment for a period not exceeding seven years.

If the false testimony results in a sentence of life imprisonment, the penalty shall be imprisonment.

The penalty shall be life imprisonment if the false testimony results in the death sentence.

1953 Code of Criminal Procedure

Article (94)

The Public Prosecution shall notify the witnesses whom the investigating magistrate decides to hear. They shall be assigned to appear by bailiffs or by public authority officers. Investigating magistrates may hear the testimony of any witness who attends on their own free will

Society’s right to justice

Right of the accused to a fair trial

Some lawyers believe that it’s not their right to notify witnesses other than those on the list prepared by the Public Prosecution.

This understanding violates the principle of the right to defence

1953 Code of Criminal Procedure

Article (97)

Both the judge and clerk shall sign the testimony, as well as the witness, after it has been read back to them and they confirm it. If the latter declines or is unable to sign or mark it with their fingerprint, this shall be documented in the record, indicating the reasons expressed thereby.

Article (99)

Anyone summoned to appear before an investigating magistrate to give testimony must appear based on the summons rendered thereto.

Society’s right to justice

Right of the accused to a fair trial

Article (221) confirms reading the testimony aloud and recording their observations on what is recorded in the report, then signing with their signature or fingerprint, if they don’t know how to write, and recording such in the report.

1953 Code of Criminal Procedure

Article (103)

If the witness is ill or has an impediment that prevents them from appearing, their testimony shall be heard where they are located.

Society’s right to justice

Right of the accused to a fair trial

The investigator or person tasked thereby moving to hear a witness as an investigation procedure

Article (231) of the Criminal Investigator Guide

Members of the Prosecution must promptly respond to injured persons and immediately go to the hospital to take their statements without waiting for them to recover, after consulting the doctor

1953 Code of Criminal Procedure

Article (105)

When the accused person appears for the first time in the investigation, the investigator shall verify their identity, inform them of the charges against them, and record their statements in the record.

International Convention for the Protection of All Persons from Enforced Disappearance

Article (17), paragraph (3), clause (a)

3. Each State Party shall assure the compilation and maintenance of one or more up-to-date official registers and/or records of persons deprived of liberty, which shall be made promptly available, upon request, to any judicial or other competent authority or institution authorized for that purpose by the law of the State Party concerned or any relevant international legal instrument to which the State concerned is a party. The information contained therein shall include, as a minimum:

(a) The identity of the person deprived of liberty;

International Covenant on Civil and Political Rights

Article (14), paragraph (3), clause (e)

To examine, or have examined, the witnesses against him

Society’s right to justice

Right of the accused to a fair trial

Right of the accused to silence

[Train] and qualify members of the Public Prosecution and investigators on the right to remain silent as a fundamental right in the principles of a fair trial

Not finding the accused’s confession sufficient is a guarantee to a fair investigation.

The investigator may conduct a confrontation between the accused persons or between the accused persons and the witnesses, as required in the interest of the investigation,

Articles (200) to (201), Criminal Investigator Guide

1953 Code of Criminal Procedure

Article (106)

Investigators of felonies may not question the accused or make them confront other accused persons or witnesses until inviting their attorney, if any, to attend, except in cases of in flagrante delicto or urgency due to a fear that evidence will be lost.

Right of the accused to a fair trial

Society’s right to establish the pillars of justice

[Train] and qualify members of the Public Prosecution and investigators on the current ways of preserving evidence, strengthening the principles of a fair trial

Article (222) of the Criminal Investigator Guide, in the event of oral authorisation of power of attorney in the session, the member of the Prosecution shall document the presence of the attorney and the client’s approval, with the power of attorney document to be attached later

1953 Code of Criminal Procedure

amended by Law No. (3) of 2013

The Public Prosecution shall perform the investigation into the crimes set out in Part (1) of Book (2) of the Penal Code as well as the crimes connected thereto. When investigating the aforementioned crimes and referring them to the court, it shall have all the powers granted to the Public Prosecution and investigating magistrates.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Right of the accused to a fair trial

Granting the Public Prosecution the powers of investigating magistrates under Article (187) (bis)

Not good practice

Article (187)(b)(bis)

For the crimes referred to in the preceding Article, the accused shall be referred to the Public Prosecution within seven days from the date of their arrest. The Public Prosecution must question the accused within three days from their referral, then order they be placed in provisional detention or released.

The Public Prosecution’s detention order shall only be effective for two weeks. If it is decided to extend the detention, the matter must be submitted to the competent judge for issuance of an order, after hearing the accused’s statements, to release them or extend their detention for a period or consecutive periods not to exceed forty-five days each until the investigation is completed.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Right of the accused to a fair trial

Maximum limit of detention is not specified

Prolonged questioning period involves moral coercion

Not good practice

1953 Code of Criminal Procedure

Article (107)

In all matters, investigating magistrates may issue an order for the accused to appear or be arrested, as the case may be.

Article (108)

Arrest orders and subpoenas shall include the commissioning of public authority officers to arrest the accused and bring them before the judge if the accused refuses to voluntarily appear immediately.

Society’s right to establish the pillars of justice

Right of the accused to a fair trial

Failure of the accused to appear on the set date authorises the investigator to issue an arrest order for the accused, in application of Article (111)(a)(c)

Requesting the accused to appear before the investigating authority does not duly involve compulsion, and is left to the directed party to implement it freely.

Emphasis in legislation on the inclusion of personal data and the accusation in the arrest order or order to appear is a fundamental guarantee.

1953 Code of Criminal Procedure

Article (111)

[Order to Arrest the Accused]

If after being summoned, the accused fails to appear without an acceptable excuse, or if it is feared that they might escape, or if they do not have a known place of residence, or if the crime was committed in flagrante delicto, the investigating magistrate may issue an arrest order for the accused even if the incident is one that allows or placing the accused in provisional detention.

Society’s right to establish the pillars of justice

Specify the circumstances for the arrest of the accused if they do not appear before the investigating authority

1953 Code of Criminal Procedure

Article (112)

Investigating magistrates must immediately question an accused person who has been arrested. If such is not possible, the accused shall be detained until they are questioned. The detention period must not exceed twenty-four hours. If this period ends, the prison official must hand the accused over to the Public Prosecution, which shall request that an investigating magistrate question the accused immediately.

Prohibition of forced confessions

Prohibition of bodily force during the interrogation

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Article (15)

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

Article (12)

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

International Covenant on Civil and Political Rights

Article (14), paragraph (3), clause (g)

Not to be compelled to testify against himself or to confess guilt.

Investigators are not trained in interrogation methods that do not violate the rights of the accused, including the use of clear language in the interrogation and observing polite dialogue.

Lack of awareness of the importance of respecting the accused’s right to remain silent.

Fears over the abuse of scientific methods that do not violate a person’s dignity and do not impact their will, and thus are not barred from use, such as taking blood samples, pumping stomachs, and the like, to influence the will of the person being questioned.

Guarantees that interrogation of accused persons take place within twenty-four hours.

Prohibition of prolonging the investigation periods in a manner that exhausts the accused or using coercive or deceptive methods that impact their will and freedom in giving their statements, regardless of the type or degree of coercion, whether physical or mental, directed at the accused or others, including placing the accused under oath.

Prohibition of promising remuneration or reduction of the questioned person’s criminal liability because that is a type of mental coercion that corrupts the interrogation

If the investigator uses any of the scientific methods that affect the accused’s will, such as a lie detector, taking blood pressure, or hypnosis this is considered a violation of the accused’s right to defence and the procedure is invalidated.

1953 Code of Criminal Procedure

Article (113)

If the accused is arrested outside the jurisdiction of the court where the investigation is being conducted, they shall be sent to the Public Prosecution in the area where they were arrested. The Public Prosecution shall verify all of their personal data, inform them of the incident attributed to them, and record their statements on the matter.

International Convention for the Protection of All Persons from Enforced Disappearance

Article (17), paragraph (2) and paragraph (3)

2. Without prejudice to other international obligations of the State Party with regard to the deprivation of liberty, each State Party shall, in its legislation:

a. Establish the conditions under which orders of deprivation of liberty may be given;

b. Indicate those authorities authorized to order the deprivation of liberty;

3. Each State Party shall assure the compilation and maintenance of one or more up-to-date official registers and/or records of persons deprived of liberty, which shall be made promptly available, upon request, to any judicial or other competent authority or institution authorized for that purpose by the law of the State Party concerned or any relevant international legal instrument to which the State concerned is a party. The information contained therein shall include, as a minimum:

a. The identity of the person deprived of liberty;

b. The date, time and place where the person was deprived of liberty and the identity of the authority that deprived the person of liberty;

c. The authority that ordered the deprivation of liberty and the grounds for the deprivation of liberty;

d. The authority responsible for supervising the deprivation of liberty;

e. The place of deprivation of liberty, the date and time of admission to the place of deprivation of liberty and the authority responsible for the place of deprivation of liberty;

f. Elements relating to the state of health of the person deprived of liberty;

g. In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains;

h. The date and time of release or transfer to another place of detention, the destination and the authority responsible for the transfer.

International Covenant on Civil and Political Rights

Article (9)

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Universal Declaration of Human Rights

Article (3)

Everyone has the right to life, liberty and security of person.

African Charter on Human and Peoples’ Rights

Article (6)

Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

The right to freedom

Slowness of procedures

The spatial standard is subject to three standards, the location where the crime was committed, the location of the arrest, and the location of the accused’s residence

1953 Code of Criminal Procedure

Article (114)

If the accused objects to their transfer or their health does not permit the transfer, the investigating magistrate shall be prohibited from such.

International Covenant on Civil and Political Rights

Article (9)

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Universal Declaration of Human Rights

Article (3)

Everyone has the right to life, liberty and security of person.

Right of the accused to health care

Not implemented, given the transfer of jurisdiction for the investigation to the Public Prosecutor

The spatial standard is subject to three standards, the location where the crime was committed, the location of the arrest, and the location of the accused’s residence. All have the same legal value, which allows the investigating authority to take into consideration the accused’s circumstances or avoid having them in a location that threatens their life or safety.

1953 Code of Criminal Procedure

Article (115)

If it is found after the interrogation of the accused or in the event of their escape that there is sufficient evidence and the incident is a felony or a misdemeanour punishable with imprisonment for a period of more than three months, the investigating magistrate may issue an order to place the accused in provisional detention. The accused may always be held in provisional detention if they do not have a known fixed place of residence in Libya and the crime is a misdemeanour punishable with imprisonment.

International Covenant on Civil and Political Rights

Article (9), paragraph (2)

Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

Universal Declaration of Human Rights

Article (3)

Everyone has the right to life, liberty and security of person.

Presumption of innocence

Maximum limit is not specified

Lack of compensation for provisional detention in the event of an acquittal except through the civil route

Interrogation is an investigation procedure that a judicial police officer cannot be assigned to perform

Interrogation is a procedure that precedes provisional detention

1953 Code of Criminal Procedure

Article (116)

Before issuing a detention order, the investigating magistrate must hear the statements of the Public Prosecution.

International Covenant on Civil and Political Rights

Article (9)

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Universal Declaration of Human Rights

Article (3)

Everyone has the right to life, liberty and security of person.

Presumption of innocence

Guarantee is not achieved, given the Public Prosecution combining investigation and indictment powers

1953 Code of Criminal Procedure

Article (117)

The Public Prosecution may request the provisional detention of an accused at any time.

International Covenant on Civil and Political Rights

Article (9), paragraph (2)

Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

Universal Declaration of Human Rights

Article (3)

Everyone has the right to life, liberty and security of person.

Presumption of innocence

The power led to expansion of the use of provisional detention due to the accumulation of cases

and fears that the accused might escape

1953 Code of Criminal Procedure

Article (120)

Prison officials shall not allow any authorities to communicate with a detainee in prison without written permission from the investigating magistrate.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Right to a speedy trial or release until trial

Right to a speedy, fair trial

Right to communicate with a lawyer

1953 Code of Criminal Procedure

Article (121)

The Public Prosecution and the investigating magistrate, in the cases they are appointed to investigate, may order that the accused not communicate with other prisoners and receive no visitors.

International Convention for the Protection of All Persons from Enforced Disappearance

Article (17), paragraph (d)

Guarantee that any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law, or, if he or she is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law;

Right to a speedy trial or release until trial

Unnecessary isolation of detained individuals from other prisoners

1953 Code of Criminal Procedure

Amended by Law No. (3) of 1371 FDP amending certain provisions of the Code of Criminal Procedure

Article (122)

Provisional detention of the accused shall definitively end after the passage of fifteen days. After hearing the statements of the Public Prosecution and the accused, the investigating magistrate may issue an order to extend the detention period by one or more other periods not to exceed thirty days in total.

International Covenant on Civil and Political Rights

Article (9), paragraph (5)

Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Universal Declaration of Human Rights

Article (3)

Everyone has the right to life, liberty and security of person.

Right to a speedy trial or release until trial

Extends until a ruling is issued

Cases in which provisional detention has been extended for five years until an acquittal is issued.

1953 Code of Criminal Procedure

Article (123)

If an investigating magistrate deems it necessary to extend the period of provisional detention […]

they shall, prior to the end of the aforementioned period, submit the documents to a circuit of the Court of First Instance, composed of three judges […] Said circuit may extend the period for consecutive terms, not to exceed forty-five days each

International Covenant on Civil and Political Rights

Article (9), paragraph (4)

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Universal Declaration of Human Rights

Article (3)

Everyone has the right to life, liberty and security of person.

Right to a speedy trial or release until trial

1953 Code of Criminal Procedure

Article (124)

After hearing the statements of the Public Prosecution, an investigating magistrate may, at any time, whether on their own initiative or at the request of the accused, order the provisional release of the accused […] provided the accused undertakes to appear whenever requested

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Universal Declaration of Human Rights

Article (3)

Everyone has the right to life, liberty and security of person.

Right to a speedy trial or release until trial

Usually provisional detention is extended in cases where release is mandatory

The investigating authority is obliged to release the accused:

a. If the period of provisional detention ends without being extended

b. If the incident is one that does not permit provisional detention

c. If the investigating authority disposes of the criminal case by issuing its decision to file the case

d. If the appeal filed by the Public Prosecution against the investigating magistrate to release the accused is not recorded within three days from its issuance, Article (141)

Presence of alternatives to provisional detention, such as a personal or financial guarantee.

Also, police observation (probation), agreeing to not frequent certain locations, or changing their place of residence.

1953 Code of Criminal Procedure

Article (130)

A release order shall not prevent an investigating magistrate from issuing a new order to arrest the accused or imprison them if the evidence against them becomes stronger.

International Covenant on Civil and Political Rights

Article (9), paragraph (3) and paragraph (4)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Universal Declaration of Human Rights

Article (3)

Everyone has the right to life, liberty and security of person.

Right to a speedy trial or release until trial

1953 Code of Criminal Procedure

Article (132)

The victim and the civil plaintiff may not request the detention of the accused and their statements shall not be heard in the deliberations regarding the accused’s release.

The accused’s right to be presumed innocent

The civil plaintiff is not a party to the

criminal case which is society’s right

1953 Code of Criminal Procedure

Article (134)

If the investigating magistrate deems that the incident is not punishable by law, the evidence is insufficient, or the conditions to proceed with the case are not fulfilled, or if a ground for dismissal of the crime or barring penalty therefor emerges, the magistrate shall issue a dismissal order, noting the lack of grounds to file the case, and the accused shall be released

International Covenant on Civil and Political Rights

Article (9), paragraph (2)

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.

The right to freedom

1953 Code of Criminal Procedure

Article (137)

In the order issued referring the matter to the summary court or the Indictment Chamber, the investigating magistrate shall decide whether to continue the detention of the accused or release them

Right to release until trial

By referring an accused in provisional detention to the court, their attorney may submit a request for their release in the first session.

1953 Code of Criminal Procedure

Article (139)

The Public Prosecution, the victim, and the civil plaintiff may appeal an investigating magistrate’s orders that there are no grounds for filing the case.

International Covenant on Civil and Political Rights

Article (9)

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Right to a fair trial

Society’s right to justice

The handling of the preliminary investigation by an investigating magistrate provides a guarantee of a fair trial

1953 Code of Criminal Procedure

Article (140)

All parties may appeal orders relating to matters of jurisdiction. The appeal shall not suspend the investigation

International Covenant on Civil and Political Rights

Article (9)

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Society’s right to justice

Right to a fair trial

1953 Code of Criminal Procedure

Article (146)

In cases where the matter must be submitted to the Indictment Chamber, the Public Prosecution shall immediately send the documents to the court registrar and notify the parties to submit their memorandums and appear within three days.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Declaration on the Protection of All Persons from Enforced Disappearance

Article (10)

1. Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention.

2. Accurate information on the detention of such persons and their place or places of detention, including transfers, shall be made promptly available to their family members, their counsel or to any other persons having a legitimate interest in the information unless a wish to the contrary has been manifested by the persons concerned.

3. An official up-to-date register of all persons deprived of their liberty shall be maintained in every place of detention. Additionally, each State shall take steps to maintain similar centralized registers. The information contained in these registers shall be made available to the persons mentioned in the preceding paragraph, to any judicial or other competent and independent national authority and to any other competent authority entitled under the law of the State concerned or any international legal instrument to which a State concerned is a party, seeking to trace the whereabouts of a detained person.

Right to a fair trial

Society’s right to justice

Failure to rely on the trial phase as an active role

Slowness of procedures causes a delay in referring cases to the Chamber

The Indictment Chamber is part of the supplementary preliminary investigations period.

There is an indictment chamber at each Court of First Instance, presided over by the president of the court by law, without the intervention of the General Assembly, Article (145) Amended Procedures

1953 Code of Criminal Procedure

Article (148)

The Indictment Chamber shall hold its sessions in private, and issue its orders promptly after reviewing the documents and memoranda of the parties and hearing the clarifications it deems necessary.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Declaration on the Protection of All Persons from Enforced Disappearance

Article (10)

1. Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention.

2. Accurate information on the detention of such persons and their place or places of detention, including transfers, shall be made promptly available to their family members, their counsel or to any other persons having a legitimate interest in the information unless a wish to the contrary has been manifested by the persons concerned.

3. An official up-to-date register of all persons deprived of their liberty shall be maintained in every place of detention. Additionally, each State shall take steps to maintain similar centralized registers. The information contained in these registers shall be made available to the persons mentioned in the preceding paragraph, to any judicial or other competent and independent national authority and to any other competent authority entitled under the law of the State concerned or any international legal instrument to which a State concerned is a party, seeking to trace the whereabouts of a detained person.

Right to a fair trial

Society’s right to justice

 Slowness of procedures causes a delay in referring cases to the Chamber

The Indictment Chamber holds jurisdiction whenever the matter is related to the investigation of a felony

1953 Code of Criminal Procedure

Article (148)

When reviewing orders issued by an investigating magistrate or the Public Prosecution to refer a case to the Indictment Chamber, the Chamber may conduct a supplementary investigation.

International Covenant on Civil and Political Rights

Article (14), paragraph (1)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Right to a fair trial

Society’s right to justice

Performing a preliminary investigation again or conducting a supplementary investigation is a discretionary power

1953 Code of Criminal Procedure

Amended by Law No. (3) of 1371 FDP amending certain provisions of the Code of Criminal Procedure

Article (151)

When reviewing orders for referral thereto, the Indictment Chamber shall have the powers of an investigating magistrate with regard to the investigation and to the detention order, period thereof, and rules provided for the extension thereof. It may assign an investigating magistrate or the Public Prosecution, as the case may be.

International Covenant on Civil and Political Rights

Article (14), paragraph (1)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Right to a fair trial

Society’s right to justice

Failure to perform the Chamber’s role by those assigned thereto limits its effectiveness

None

1953 Code of Criminal Procedure

Article (162)

The Indictment Chamber shall automatically appoint counsel to defend each person accused of a felony for whom an order to refer to the Criminal Court has been rendered, if such person has not selected such counsel.

International Covenant on Civil and Political Rights

Article (14), paragraph (3), clause (b)

To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

Right to a fair trial

Society’s right to justice

Use of public legal defence lawyers for those who do not have enough money to appoint a private lawyer

1953 Code of Criminal Procedure

Article (163)

The file of each case on which the Indictment Chamber has issued a referral order shall be immediately sent to the President of the Court of Appeal. If the counsel defending the accused requests time to review the case file, the Indictment Chamber or the court shall set a date for such not to exceed ten days, during which the case file shall remain with the court registrar without being transferred from the office until the counsel reviews it.

International Covenant on Civil and Political Rights

Article (14), paragraph (3), clause (b)

To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

The right to defence

The right to access

The right to a fair trial

Lack of means allowing lawyers ready review

Dates are organisational, without legal effect

Administrators are not present at all times

Fear of tampering with the documents if the review requires imposing a type of oversight

1953 Code of Criminal Procedure

Article (164)

The Public Prosecution shall be notified of referral orders within twenty-four hours from the issue date and the remaining parties must be notified within a period of three days.

International Covenant on Civil and Political Rights

Article (14)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Right to a fair trial

Society’s right to justice

Dates are organisational, without legal effect

1953 Code of Criminal Procedure

Article (165)

If an order to refer a person accused of a felony to the Criminal Court is issued in their absence, then the accused appears or is arrested, the case shall be reviewed before the court in their presence.

International Covenant on Civil and Political Rights

Article (14)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

The right to a fair trial

Society’s right to justice

Invalidation of in absentia rulings on felonies is a fundamental guarantee of the requirements of a fair trial

1953 Code of Criminal Procedure

Article (167)

The Public Prosecution, the victim, and the civil plaintiff may appeal orders issued by the Indictment Chamber to dismiss the case.

International Covenant on Civil and Political Rights

Article (14), paragraph (3), clause (b)

To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

The right of the injured party to seek compensation

Society’s right to justice

1953 Code of Criminal Procedure

Article (168)

The Public Prosecution may appeal orders issued by the Indictment Chamber to refer the felony to the Summary Court or to deem the incident a misdemeanour or petty offence.

International Covenant on Civil and Political Rights

Article (14)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Society’s right to justice

1953 Code of Criminal Procedure

Article (170)

The court shall rule on challenges after hearing the statements of the Public Prosecution and the other parties. The ruling issued thereby shall not be subject to any kind of challenge.

International Covenant on Civil and Political Rights

Article (14)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Society’s right to justice

1953 Code of Criminal Procedure

Article (171)

The lack of grounds to file a case bars resumption of the investigation unless new evidence emerges before the end of the period provided for dismissal of the criminal action. […] Witness testimony, records, and other documents that were not submitted to the investigating magistrate or Indictment Chamber shall be considered new evidence. Resumption of the investigation shall only be permissible at the request of the Public Prosecution.

International Covenant on Civil and Political Rights

Article (14)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Society’s right to justice

A judicial order is a disposition order in the investigation issued by the preliminary investigating authority to temporarily suspend filing a case before the trial court based on a ground set out in the Law, and possesses a special type of authority

1953 Code of Criminal Procedure

Article (175)

Detention orders issued by the Public Prosecution shall only be effective for a period of six days following the arrest of the accused or from the time they are presented before the Public Prosecution, if arrested previously. Arrest and detention orders issued by the Public Prosecution may not be enforced after the passage of six months from their issue date, unless the Public Prosecution approves them for another period.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

The right to freedom

The right to security and peace of mind

Length of preventative detention periods

A fundamental guarantee of the right to freedom

1953 Code of Criminal Procedure

Amended by aforementioned Law No. (3) of 1371 FDP

Article (176)

Extension of the Provisional Detention Period

If the Public Prosecution decides to extend the provisional detention period, the documents must be submitted to the competent summary judge, prior to the end of the six-day period for the arrest or referral of the accused. Said judge will issue an order thereon after hearing the statements of the Public Prosecution and the accused.

The judge may extend the period of provisional detention for one or more consecutive terms, provided the total detention terms not exceed thirty days.

The Public Prosecution has the right to appeal orders issued by the magistrate to release the accused. The rules and provisions provided for appeals and investigating magistrate orders under Articles (141) to (143) shall apply.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

The right to freedom

The right to security and peace of mind

Length of preventative detention periods

1953 Code of Criminal Procedure

Amended by aforementioned Law No. (3) of 1371 FDP

Article (177)

Provisional Detention Period Ending Prior to the End of the Investigation

If an investigation has not ended after the end of the provisional detention period mentioned in the preceding Article, the Public Prosecution must submit the documents to an appellate panel of a circuit of the Court of First Instance to issue an order to release the accused after hearing the statements of the Public Prosecution and the accused, or to extend the detention for one or more consecutive terms not to exceed thirty days each and ninety days in total.

The matter shall be submitted to the Prosecutor-General or representative thereof to request that the aforementioned chamber extend the terms of provisional detention beyond the limit provided in the preceding paragraph if the circumstances of the investigation or action so require.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

The right to freedom

The right to security and peace of mind

Length of preventative detention periods

Article (153) (bis) Procedure,

Expedited Hearing of Provisional Detainee Cases

If an accused in detention is referred to the competent court, the case must be submitted to the competent circuit to be heard in its following session.

(Amended by aforementioned Law No. (3) of 1371 FDP)

1953 Code of Criminal Procedure

Article (178)

The Public Prosecution may release the accused at any time, with or without bail.

International Covenant on Civil and Political Rights

Article (9), paragraph (3)

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Right to a speedy trial or release until trial

Non-utilisation of alternatives out of fears over the escape of the accused and failure to appear before the investigating authority

Alternatives to provisional detention allow the accused to avoid the disadvantages of the prison environment

1953 Code of Criminal Procedure

Article (180)

During the investigation conducted thereby, the Public Prosecution may neither search persons who are not accused or houses that are not those of the accused nor seize the correspondence and letters in the circumstances referred to in Article (79), except with permission from the summary judge.

International Covenant on Civil and Political Rights

Article (9)

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article (14)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

The right to a fair trial

The right to the sanctity of the home

The Public Prosecution does not have the power to search locations without obtaining a permit from a summary judge.

The Public Prosecution does not have the power to seize letters and correspondence (Article (79) Procedures) without obtaining a permit from the summary judge.

1953 Code of Criminal Procedure

Article (182)

If the Public Prosecution finds after the investigation that there are no grounds for filing a case, it shall issue an order dismissing the criminal case and order the release of the accused.

The Chief Prosecutor or deputy thereof shall issue orders dismissing criminal cases on felonies.

International Covenant on Civil and Political Rights

Article (9)

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article (14)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Neither investigating magistrates nor the Indictment Chamber may resume an investigation due to the appearance of new evidence without a request from the Public Prosecution, Article (171) Criminal Procedure,

because the Public Prosecution holds the right to move a criminal case in its capacity as representing society

Requiring the issuance of certain decisions by those with expertise and competence was provided in the second paragraph of Article (182), Criminal Procedure

Interested parties have the right to appeal a decision to dismiss a case

1953 Code of Criminal Procedure

Article (183)

The victim and the civil plaintiff may challenge by appeal

Article (184) Cancellation of Orders

The Prosecutor-General may cancel said order within three months following its issuance. The Prosecutor-General may not do so if the Court of First Instance issued a ruling to dismiss the appeal submitted to it in this regard.

International Covenant on Civil and Political Rights

Article (14), paragraph (1)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

The injured party’s right to compensation

The hierarchical nature of the Public Prosecution authorises the Prosecutor-General to cancel orders issued by the Chief Prosecutor

Victim’s right to appeal a dismissal decision

If the dismissal order is issued by an investigating magistrate, only the Prosecutor-General may appeal the order before the investigating authority that issued it, i.e., whether (an investigating magistrate – the Public Prosecution – or Chief Prosecutor if the matter under investigation is a felony, or the Indictment Chamber), however, the decision issued by the Public Prosecution is only authoritative after approved by the Prosecutor-General or the end of the period provided period for the Prosecutor-General’s right to cancel the order

1953 Code of Criminal Procedure

Article (186)

Dismissal orders issued by the Public Prosecution […] shall not bar resumption of the investigation if new evidence emerges

International Covenant on Civil and Political Rights

Article (14), paragraph (1)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Lack of significance due to considerations related to the crime not posing a danger to society, or the provided penalty does not achieve the objectives of filing the case

The Public Prosecution’s power to issue orders due to inappropriateness or insignificance does not have a legal basis, it is also incompatible with the Public Prosecution being a main party while exercising indictment power, which requires emphasising the necessity of the separation between investigation and indictment powers.

The order and grounds thereof are found in Articles (134), (135), and (182) Procedure, which provide jurisdiction to each by confirming the powers of the investigating authority, whether that is the investigating magistrate, the Public Prosecution, or the Indictment Chamber to issue its decision on filing a criminal case if grounds therefor are met.

Article (143) Procedure defined the required criteria of which at least one must be met in order for an investigating magistrate to be able to use their power to hold documents due to lack of grounds for filing the case

1953 Code of Criminal Procedure

Article (187) Referral to the Indictment Chamber

If the Public Prosecution finds, after an investigation, that a petty offence, misdemeanour, or felony is has sufficient evidence against a person […] by summoning the accused to appear before the Indictment Chamber.

International Covenant on Civil and Political Rights

Article (14), paragraph (1)

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Right to a fair trial

Litigation over degrees

The role of a Chamber judge is formal if there is no verification of the case file

Not in conformance with the orientation that deems it a second degree of litigation

The court has no connection to felonies other than through the Indictment Chamber (Chamber judge) formed at each Court of First Instance, Article (145) Amended Procedures

The Indictment Chamber is a stage of the mandatory preliminary investigation in felonies