Flaws of Article 368 in Egypt’s Draft Criminal Law

In a legislative move that shakes the foundations of fair trial principles, Article 368 of Egypt’s Draft Criminal Procedure Law imposes harsh restrictions on absent defendants upon the issuance of a mere in-absentia conviction in a felony, without awaiting a final, binding judgment, and without distinguishing the nature or severity of the crime. This provision does not stop at barring the defendant from managing or disposing of their assets; it goes further by completely stripping them of their legal capacity to file lawsuits, thereby opening the door to serious constitutional and legal violations.

Presumption of Innocence… A Hollow Principle?

Article 368 effectively nullifies the principle of presumption of innocence, treating the absent defendant as if definitively convicted. Instead of recognizing that an in-absentia conviction in felony cases is automatically nullified upon the defendant’s appearance or arrest, the law rushes to cripple their civil rights and deprive them of asset control as though no further legal process is required.

Blanket Punishment… Even for Non-Financial Crimes

Although the article applies exclusively to felonies, it is indiscriminately enforced across all felony cases, including those unrelated to financial matters. How can it be justified to impose asset freezing, court-appointed guardianship, and the invalidation of financial transactions on a defendant convicted in absentia of permanent bodily harm or assault leading to death?

Where is the logical connection between such crimes and these financial penalties? Has the law devolved into imposing general punishments, ignoring the nature of the offense?

When the Defendant is Barred from Defending Himself!

The most alarming aspect of Article 368 is the clause that prohibits the defendant from filing lawsuits in their name. This is not just a legal measure, but a legal disaster:

• How can a defendant protect their rights if they are denied access to the courts?
• What about critical deadlines for legal actions, such as:
• Filing tax appeals within statutory time limits?
• Appealing judgments in civil or criminal cases?
• Filing for cassation (final appeals) within mandatory deadlines?
• Should a defendant lose their legal rights simply because they were absent from a criminal trial still open to challenge?

Property Seized Without a Final Judgment

The Egyptian Constitution safeguards property, allowing expropriation only for public benefit and under strict legal conditions. Yet, Article 368 effectively confiscates the defendant’s assets, appointing a guardian and nullifying transactions, without a final judgment, and even when the offense has no connection to financial misconduct.

Justice Without Gradation… Restrictions Without Criteria

“If a conviction in absentia is issued in a felony case, the court may, upon the request of the Public Prosecution, order the temporary seizure of the convicted person’s assets if the crime in question involves financial assets or rights. Such a seizure must be based on a justified order.

The court may also appoint a judicial guardian to manage the seized assets if it deems it necessary.

All these measures shall automatically lapse once the defendant initiates retrial procedures against the in-absentia judgment or upon their death. In all cases, the rights of bona fide third parties must be respected.”

Conclusion

Article 368 in its current form exceeds the bounds of justice and restricts the rights of the defendant before they are even given a chance to defend themselves. It must be amended to apply only to financial crimes, and only by justified judicial orders, while fully guaranteeing the right to litigation and freedom of asset management until a final, binding judgment is issued. Justice is not achieved by stripping a defendant of their rights due to their absence, but by granting them all guarantees for a fair trial.

Moreover, justifying flawed legal provisions by claiming that “the convicted individual can avoid their effects through retrial procedures” is a deficient and constitutionally unsound argument. The fundamental principle is that legislation must be sound in itself and must respect the rights and freedoms guaranteed by the Constitution, not that its flaws should be corrected by shifting the burden onto the defendant or convicted individual.

If the provision entails confiscating fundamental rights, such as depriving the convicted of their right to litigation, or imposing disproportionate ancillary penalties unrelated to the crime committed, then claiming that they can simply request a retrial does not legitimize the provision. Rather, it reveals the legislative weakness and constitutes a violation of the rule of law, which requires lawmakers to draft texts in accordance with justice and the standards of a fair trial.

Furthermore, retrial procedures are not a means of correcting defective legal texts; they are a procedural safeguard granted to the absent defendant to allow them to defend themselves. They cannot be used as a pretext to pass legislation that violates established legal principles—especially since some effects of an in-absentia judgment may persist, and in certain cases, the defendant might be unable to request a retrial, whether due to death or compelling circumstances.

Such justifications do not change the reality that the criticized provision needs to be reconsidered. The true solution lies in correcting the text itself to achieve a balance between the state’s authority to punish and individuals’ rights to enjoy all guarantees of justice.

Therefore, justice is not built on the assumption that the defendant will take the initiative to correct legislative flaws; it must be built on sound, fair, and objective legal provisions from the moment they are enacted.

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