Justifications for abolishing the death penalty
In some crimes in the Egyptian legislation
Prepare
Dr. Emad El-Feki
Introduction to
Workshop for
(Limiting the application of the death penalty
In Egyptian legislation)
Introduction
The death penalty is one of the most prominent punishments that have sparked widespread controversy since a long time ago, and controversy continues to this day about its punitive value and its legitimacy as an image of the social reaction to the perpetrator.
Not surprisingly, the death penalty is one of the oldest punishments known to mankind, and the most severe punishment ever, as it leads to the loss of the soul of the convict. In so doing, it violates a fundamental and fundamental human right, which is the "right to life".
The death penalty was commonly applied in ancient laws, especially in the eras in which the idea of religious revenge prevailed. It was also carried out in a brutal and cruel manner accompanied by ugly forms of torture methods that shed the body. This has provoked the pens of philosophers and thinkers, who launched a brutal campaign in which they deny the unjustified cruelty of punishments. They denied the torture accompanying its implementation, such as "Montesquieu", "Jean-Jacques Rousseau", "Voliter" and "Bacaria".
In light of the previous factors, philosophers and thinkers began to ask whether there was a need to maintain the death penalty or not. Hence, two currents loomed on the horizon: one in favor of retaining the death penalty and the other demanding its abolition.
Among the most important arguments in favor of the death penalty are: that the death penalty is the most appropriate punishment for dangerous criminals for whom only eradication is effective, and that it achieves general deterrence or collective intimidation with the threat it carries with the death of the perpetrator's soul, and that it fulfills the moral function of the punishment as an evil commensurate with The evil of the crime, and that the next punishment for it is hardship, which is life imprisonment, is not suitable as a substitute for it, and it is a low-cost punishment, that it satisfies public sentiments and a sense of justice, and limits revenge and revenge.
Among the most important arguments that opponents of the death penalty rely on are: The death penalty is not the right of society. Society has not given life to a person so that he has the right to take it away from him. The death penalty is characterized by a brutal character, extremely cruel, and incompatible with humanity, and it should be amended with modern progress, taking into account the feelings of the people in the group, as it represents a kind of revenge that the group must distance from. And that the death penalty in many of the crimes for which it was decided is not commensurate with its seriousness. Rather, the importance of the crime in its nature may not reach the level of destroying the soul of the perpetrator, and that the most dangerous thing in the death penalty is that it is a punishment that the resulting error cannot be corrected, since life cannot be restored. For the convicted person if his innocence is found. Finally, the effect of the death penalty on achieving general deterrence is in great doubt, because in countries that have abolished the death penalty, it has not happened that the percentage of crimes punishable by death increased.
The death penalty has received great attention from the international community, and observers of the international position on the death penalty finds that it is inclined towards abolishing this punishment. This position is embodied in the form of international treaties or agreements aimed at abolishing the death penalty in states parties.
And the controversy raised about the death penalty at the international level. Represented in the United Nations General Assembly endorsement of December 18, 2007, the resolution calls for the suspension of the death penalty ”.
This resolution, which 104 countries voted for, 545 voted for, 29 abstained from voting, and 5 countries were absent from the session.
Egypt is among the countries that voted against the resolution, after voting on the resolution and its passing by the majority. The delegate of Egypt explained that he voted against the resolution for several considerations, which can be summarized in the following points:
1- The abolition of the death penalty is inconsistent with religion and agreed practical and legal standards. The death penalty is only used in accordance with legal procedures and the texts of Islamic law.
2- The death penalty is applied for (the most serious) crimes.
3- The death penalty is surrounded by procedural safeguards that ensure its proper application.
In fact, these justifications are subject to consideration. Islamic Sharia does not preclude the call to limit the scope of application of the death penalty to the narrowest limits. Sharia has not exaggerated - at all - in the use of the death penalty. It does not impose this punishment except in three crimes only, which are the crime of unfortunate fornication, the crime of warfare, the crime of premeditated murder and the execution of the first crime is obligatory.
In the second and third, execution is permissible.
On the other hand, it is not true that the death penalty in Egyptian legislation applies in all cases to (the most serious) crimes, as there are crimes for which the legislator decides the death penalty even though it does not deserve this punishment. The issuance of the death sentence unanimously, the need to take the opinion of the mufti, and refer the case to the Court of Cassation is not sufficient.
We cannot consider it a real guarantee except for one guarantee, which is the issuance of the death sentence unanimously. The other two guarantees have no effect or effectiveness. The opinion of the Mufti is advisory on the one hand, and presenting the case to the Court of Cassation is not a privilege limited to the cases in which the death penalty is ruled, but rather it is a decided right for the concerned parties - likewise - in the case in which the death penalty is not sentenced. There is no de facto court that tries the appealed verdict, nor does it hear the whole case anew.
Search Plan :-
The Egyptian legislator establishes the death penalty as a penalty for committing a range of crimes. The legislator has stipulated the death penalty in the General Penal Code, as well as some special criminal laws such as the Anti-Narcotics Law, the Military Judgment Law, and the Arms and Ammunition Law.
Of course, the field in this regard will not allow all crimes punishable by death to be covered in Egyptian legislation. Therefore, this study will suffice to present the justifications for abolishing the death penalty in some crimes in the various laws in which the legislator decides the death penalty.
I have to do this through four demands, as follows:
The first requirement: the justifications for abolishing the death penalty in the penal code.
The second requirement: the justifications for abolishing the death penalty in the anti-drug law.
The third requirement: the justifications for the abolition of the death penalty in the Military Judgment Law.
Fourth requirement: justifications for abolishing the death penalty in the Weapons and Ammunition Law.
The first requirement
Justifications for abolishing the death penalty
In the penal code
Smoothing and splitting:
The Egyptian legislator decides in the penal code the death penalty for a range of crimes, and among these crimes are those that harm the security of the state from the outside (Articles 77 and following of the Penal Code) and what occurs harm to the security of the state from the domestic side (Articles 79 onwards of the Penal Code).
Including what happens to individuals, such as premeditated murder or stalking (Article 230 penalties), poison killing (Article 233 penalties), arson that results in the death of a person (Article 257 penalties), the crime of kidnapping a female associated with her rape (Article 257 penalties) and the crime of false testimony. If it results in the execution of a person (Article 294 penalties) and the crime of thuggery associated with premeditated murder (Article 35 bis (a) penalties).
It should be noted that some add to the range of crimes punishable by death in the penal code the crime of torturing the accused in order to campaign for confession if torture leads to the death of the victim as stipulated in the second paragraph of Article 126 of the Penal Code.[1]
There is no doubt that this is a false interpretation of the text of Article 126/2, which states that “if the victim dies, he shall be punished for deliberate murder.” Because the perpetrator in this crime did not act his will or did not go away with his intention to destroy the soul of the victim, but rather to prejudice the safety of his body only. Accordingly, death in this case is a transitive result of the perpetrator’s intent. Therefore, the correct interpretation of the text of the second paragraph of Article 126 penalties means that the legislator wanted to refer to the text of Article 234 Penalties, which states that “Whoever kills a person without premeditation and is not monitored shall be punished with life imprisonment or temporary hard labor. ”[2]
division:
In this regard, we will list an example of some crimes punishable by death in the Penal Code, the justifications for their abolition, and the criticisms that may be directed at these crimes.
- The crime of infringing upon the independence, unity, or territorial integrity of the country.
Article 77 of the Penal Code stipulates that "anyone who intentionally commits an act that leads to prejudice to the independence, unity, or territorial integrity of the country shall be punished with death."
The material element of this crime consists of every act that may lead to prejudice to the country's independence, unity, or territorial integrity. The word (country) means the lands subject to the sovereignty or sovereignty of the Egyptian state, “Article 85 / A Penalties”
The legislator did not specify in Article 77 of the aforementioned statement what are the acts that lead to prejudice to the independence or unity of the country or the integrity of its territories. Therefore, the determination of these acts falls on the shoulders of the judge of the matter, as he is the one who decides whether the act attributed to the accused would be criminal behavior or No.
There is no offense that the wording of Article 77 penalties in this way is in flagrant violation of the principle of legality of crimes and the penalties stipulated in Article 66 of the Constitution which states that “There is no crime and no punishment except according to a law, and no punishment is imposed except by a court ruling ………”
The expressions in which the text of Article 77 was formulated are penalties of general and broad, to include unlimited classes of acts. Since the material element in this crime is based on voluntary behavior, its content was not determined, but the legislator was satisfied only with stating its descriptions and characteristics.
- The crime of criminal agreement and incitement to it
Article 82 (B) of the Penal Code states that “Whoever participates in a criminal agreement shall be punished with hard labor, regardless of whether the purpose is to commit the crimes stipulated in Articles 77, 77 (A), 77 (B), 77 (C), 77 (d), 77 (e), 78, 78 (a), 78 (b), 78 (c), 78 (d), 78 (e), 80 (a) and take them as a means to achieve its intended purpose.
Capital punishment or life imprisonment shall be inflicted on whoever instigates the agreement or has a stake in managing his movement. Nevertheless, if the purpose of the agreement is to commit one specific crime or to use it as a means to the intended purpose, he shall be punished with the prescribed penalty for this crime.
The crime punishable in this text is a formal crime, i.e. the crimes of a harmless juvenile and a harmless juvenile is an agreement to commit the crimes specified in the criminalization text.[3]
The Court of Cassation defined the agreement by saying, “The agreement is the union of the intention of parties to commit the agreed act, and it is often done without external manifestations or tangible acts that can be inferred.”[4]
I believe that the aforementioned text of Article 82 (b) is surrounded by a suspicion of unconstitutionality, because mere criminal spending is punished just as Article 48 used the penalties that were ruled unconstitutional for violating the text of Article 66 of the Constitution Act. Punishment according to the text of the constitution does not constitute acts of the highest intentions.
The second requirement
Justifications for abolishing the death penalty
In the anti-drug law
Smoothing and splitting: -
The Egyptian legislature has decided the death penalty in Law No. 182 of 1960 regarding combating drugs, regulating their use and trafficking in drugs, as amended by Law No. 122 of 1989 for committing many crimes referred to in the following: -
- The offense of importing and exporting narcotic drugs (Article 33 bis "A").
- The crime of producing and extracting narcotic gems (Article 33 (b)).
- The crime of growing narcotic plants mentioned in Table No. (5) (Article 33 bis “C”).
- The crime of forming, managing or participating in a gang with an unlawful purpose (Article 33 bis (d)).
- The offense of possessing or possessing substance of a drug or dealing or mediating in it intends to accomplish (Article 34 bis)
- The offense of using substance narcotic for other than the purpose authorized to use (Article 34 (b)).
- The crime of managing or creating a place for drug abuse in return (Article 34 (c)).
- The offense of paying for the abuse of cocaine or heroin (Article 34 bis).
- The crime of assaulting one of the officials in charge of implementing the anti-drug law if it results in the death of the victim (Article 40).
- The crime of premeditated murder of an employee implementing the provisions of the Anti-Narcotics Law (Article 41).
Division: -
We will present the following justifications for the abolition of the death penalty for some crimes included in the Anti-Drug Law, as follows: -
(1)
The crime of using the substance of a drug
For purposes other than that for which it is authorized to be used
Article 34 of the Anti-Narcotics Law states that: -
- A - is punishable by death or life imprisonment and a fine of not less than one hundred thousand pounds and not exceeding five hundred thousand pounds.
- B - Whoever is licensed to possess substance of a narcotic for use in a specific purpose and it is known to be an image for other than this purpose.
The criminal behavior of this crime assumes that the perpetrator is legally authorized to possess the substance of a narcotic, such as being a doctor, for example, if the law authorizes him to have a license to prescribe drugs to patients, dispense them and give them with the intention to cure the disease. This is why it is described as a correct medical treatment. Rather, it is intended to facilitate drug abuse for addicts. This text is spoken on the same footing as the jealousy of common people ([5])
The crime is based on the fact that the doctor uses the narcotic substance for a purpose other than the authorized purpose, regardless of the motive for that, so it is sufficient for this to be in order to obtain the money or achieve another purpose.
We see that there is a kind of disproportion in this crime between the punishment prescribed for it, specifically the death penalty, and criminal behavior. Whereas this behavior does not qualify as the punishment prescribed for it to be "execution".
(2)
A crime of managing or creating a place
To give drugs in exchange
Article 34 of the Anti-Narcotics Law states that: -
Shall be punished with death or temporary hard labor ...
(C) Whoever manages or prepares a place for the use of narcotic essences for a fee.
The criminal behavior constituting the material element of this crime consists of two forms: -
First: Managing the place for scientific and organizational drug abuse in such a way that the perpetrator is the one who dominates the place, whether he is the owner or the owner.
The second: preparing the place for abuse: -
Preparing the place for abuse means preparing it in a way that leads to the possibility of using or exploiting it in drug abuse, such as providing it with (gel) to prepare the use of hashish, and syringes to prepare for the injection of drug addicts (Maxton Fort) or cylindrical ampoules to prepare the smell of heroin and cocaine, and the purpose of the administration of the place must be to prepare It is drug abuse, and the administration of the place or preparation for abuse must be in return, and if it is without compensation, then this crime does not take place.
If we consider the criminal behavior in this crime, we find a report - that it does not deserve that the punishment prescribed for it is the death penalty.
The third requirement
Justifications for abolishing the death penalty
In the law of military provisions
The text on the death penalty in the Military Judgment Law was mentioned as an original punishment in fourteen articles. If we know that all crimes are in the Military Judgment Law, they are limited to articles from
(130-166) This means that the death penalty applies to about a third of the crimes stipulated in the Military Judgment Law. Among the crimes punishable by death are crimes related to the enemy, crimes of families, mistreatment of the wounded, crimes of sedition and disobedience, crimes against service and guard duties, crimes of pillage, loss, destruction and the crime of non Obeying orders and offenses related to military service, absconding and absconding offenses.
We will present in this issue some of the crimes punishable by death in the Military Judgment Law ([6]The justifications for the abolition of the death penalty.
(1)
The crime of abstaining from the news
About crimes
Article 132 of the Military Judgment Law states that:
Every person subject to the provisions of this law knows about one of the crimes stipulated in this chapter and does not initiate news about it immediately, he / she shall be punished with the death penalty or a penalty stipulated in this law.
The criminal behavior constituting the material pillar of this crime is represented in the perpetrator's refusal to news or report immediately on one of the crimes stipulated in Chapter One concerning the crimes associated with the enemy when he is aware of them.
It is a negative behavior, so this crime is a negative crime.
According to the explanatory memorandum, the legislator has settled between the punishment for the predicate offense and the punishment for those who knew about the crime and did not inform about it, and provided for the death penalty, given that he knew of the crime and did not inform the armed forces of no less than a crime against the armed forces who committed the predicate offense and urged those who knew of the crime to take the initiative to report it. Delay in reporting may result in difficult-to-correct consequences, and may even lead to the most dangerous consequences, as it is targeting the armed forces.
We see that the death penalty prescribed for this crime is not justified, because the equality between the original interaction and the knowledge of the crime in terms of the seriousness that justifies equality. Between them in the punishment is inconsistent with the common legal logic, as it is the leader that the latter refrained from reporting for fear of the former and a desire to avoid some Problems that may cause him as a result of reporting. Hence, equality between the original perpetrator and the one who knew of the crime and was not immediately informed of it is not fair in anything.
Therefore, the criminal conduct in this crime does not deserve the death penalty.
( 2 )
The crime of not obeying orders
Article 151 of the Military Judgment Law states that:
“A person subject to the provisions of this law shall be punished with the death penalty or a lesser penalty stipulated in this law who commits the following crime:
Failure to obey a legal order issued to him by a person of the superior officer at the time of performing his service in a manner that shows the authority’s deliberate refusal, whether this order is taken verbally, in writing, by reference or otherwise, or by inciting others to do so.
The great jurist and the great scholar, Prof. Dr. Mahmoud Mustafa, believes that the Egyptian legislator has exaggerated the punishment prescribed for this crime, and any legislator tried - in the explanatory memorandum to justify this, but was not successful ([7]).
Fourth requirement
Justifications for abolishing the death penalty
In the Weapons and Ammunition Act
Article 26 of the Weapons and Ammunition Law states, in its last paragraph, that:
Without prejudice to the provisions of Chapter Two bis of the Penal Code, the penalty shall be temporary hard labor or life imprisonment for anyone who possesses or acquires himself or through mediation without a license from the weapons stipulated in Article (1) of this law or ammunition that is used in the aforementioned weapons or explosives. A place of gatherings, public transportation, or places of ferry, and the penalty shall be death if the possession or possession of these weapons, ammunition, or explosives is used in any activity that violates public security or public order, or if there is a threat to the ruling system, the principles of the constitution, the basic systems of the social body or unity Patriotism or social peace.
This crime is one of the formal crimes that results in the necessity of achieving a professional result, that is, it is not one of the material crimes with a result.
The penalty prescribed for this crime shall be death if the perpetrator approaches the criminal behavior (possession or possession of weapons and ammunition) in order to achieve a specific purpose, which is the intent to use weapons, explosives, or ammunition in any activity that violates public security or public order or with the intent to prejudice the system of government, principles of the constitution or regulations. Basic social body, national unity, or social peace.
It is noted that the legislator, in the last paragraph of Article 26 of the Weapons and Ammunition Law, in its final part, did not define precisely and specifically the activities in which the perpetrator intended to use weapons, ammunition or explosives in them, but rather described these activities in terms so broad and stretchy that the criminal behavior punishable does not fall under a ban . Which constitutes a waste of the principle of legality of crimes and penalties
On the other hand, it is not reasonable or acceptable for the perpetrator to have a special criminal intent as a reason for deserving the death penalty, because this crime is a formal crime that is based on mere possession, as well as that the intent, in the end, is an internal intention.
Therefore, we believe that the legislator has greatly exaggerated the death penalty for this crime, as this penalty is not commensurate with the crime committed.
And yet .. those were some examples of crimes punishable by death in Egyptian legislation that do not deserve this punishment. We extracted it from a detailed and general study on the death penalty in Egyptian legislation, and through this study you can say - with a clear conscience - that the Egyptian legislator is too much exaggerated in determining the death penalty to the extent that it may describe an abuse of the right to decide punishment and a lack of respect for the right to life.
In addition to not surrounding this penalty with guarantees of fact and adequacy.
In general, we do not support the abolition of the death penalty in the crimes that are mentioned in the notebook of this paper, but we support its abolition in all crimes for which the legislature imposes the death penalty with the exception of a very limited number of them, which is the crime of facilitating the entry of the number into the country stipulated in Article 78 (c) of the Law. The penalties and crimes of assault on the right to life and the crime of kidnapping a female coupled with her rape are stipulated in Article 290 Penalties.
With regard to the military law, he refuted the limitation of the scope of application of the death penalty to some of the crimes stipulated in Article 130 of the Article in paragraphs (7, 6, 5, 4 and 3) of this Article.
As for the anti-drug law and the arms and ammunition law, we do not support the death penalty therein except for crimes that constitute an attack on the right to life.
The death penalty for these crimes should be optional, not compulsory, and the judge can exercise discretionary power in determining the punishment according to the criminal seriousness of the perpetrator.
It is also necessary to reassure that this penalty has been imposed and that these guarantees be shown in our opinion, the ability of the death sentence to be appealed before a higher court that examines the whole case again or is subject to appeal before the Court of Cassation, as in this case it is a de facto court and a law at the same time.
Finally, we suggest postponing the execution of the death penalty for a period of three years at least after the necessity of a final ruling, because the lapse of this period is sufficient to close the door of hope in front of the emergence of new evidence indicating the innocence of the person sentenced to death. Bad, and this is true, but this objection makes it easier to safeguard the right to life on the one hand. In addition, the adoption of this suggestion gives the convicted person who is awaiting execution of the sentence an opportunity to settle and atone for the crime that has been committed.
God is the Grantor of success
Dr. Emad El Feki
(([1] Dr. Raouf Obaid - Principles of the General Section of Punitive Legislation - Dar Al Fikr Al Arabi - Fourth Edition 1979 - Pg 809, Counselor Dr. Jundi Abdul Malik - Criminal Encyclopedia - First Edition - Beirut, page 45, Dr. / Abdel Qader Al-Qahwaji Dr. Fattouh Al-Shazly - Explanation of the Penal Code - General Section, 2003 Edition, P.180, Dr. Jamil Abdul-Baqi Al-Sagheer - The General Theory of Punishments - Dar Al-Nahda Al-Arabiya, P.17, Dr. Muhammad Ahmad Shehata - Execution in the Balance of Sharia, Law and Judiciary - Edition 2007 p. 106
[2] For more details, see our letter: “Criminal Responsibility for Torturing the Accused” PhD Thesis, Faculty of Law, Cairo University 2007, pg. 244, and beyond.
[3] - Dr. Ramses Behnam “Penal Code” Crimes of the Special Division, Maarif Establishment, p.20.
[4] - Appeal No. 460 for the year 29 QC session 1/2/1960 Group of Judgments Year 11 p. 112, Appeal No. 1445 Year 51 Q hearing 10/13/1980 Group of Judgments - Year 32 p. 692 and Appeal No. 890 for the year 55 Q session 5/16/1985 Year 36 p. 699
([5]) Appeal No. 62 of the year 6 BC Session 16/2/1935 Compilation of Rules Part Three No. 414 p. 524
([6]) Dr. Atef Fouad Sahih: The Military Penal Code) House of Legal Books, Edition 2004, p. 22.
([7]) Dr. Mahmoud Mahmoud Mustafa: Military Crimes in Comparative Law Dar Al-Nahda Al-Arabiya First Edition 1971 - pg. 155 ff
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