Arab Penal Reform Organization
Summary of Study:
Death penalty in Egypt
Theoretical and practical study in the light of Islamic Shariah and international human rights law
Written by:
Dr. Mohamed Al Ghamry
Lawyer and expert in human rights field
Summary
This study addresses the subject of the "death Penalty in Egypt", which is an applied theoretical study done in light of the principles of the Islamic law and provisions concerning international human rights law. Egyptian Penal Code No. 58/1937 is the modern penal code that still retains the death penalty in spite of its cruelty and strictness and impossibility of reforming its results or amending them. The laws governing the death penalty in Egypt are considered one of the most deterrent penalties at all levels, general and private, that ensures combating crimes and preserving the interests of society, as well as ensuring stability in spite of the presence of an increasing international inclination led by the United Nations and some international NGOs headed by Amnesty International to abolish the Death Penalty given the difficulty to reconcile between this penalty and obligation to respecting human rights.
There is no doubt that the intention to study the legislative system of the death penalty in Egypt, with the purpose of the determination of legality of this penalty and the demonstration of the feasibility of its application for society, is difficult without identifying all the roles and functions caused by the death penalty over successive legal ages in Egypt. When the criminal legislator passes new laws that address crimes in Egypt, in his appreciation, to achieve deterrence and for the purpose of combating crime, the legislator does nothing new in society. The work of the legislature work is a product of an interaction between the proposed legislative articles to solve the realistic problems from which society suffers in a historical moment on the one hand, and the cultural, social, religious, legal and political heritage coming to our society from abroad, may play a key role in the determination of the content of the proposed legislative text in the context of the mutual influence between cultures.
In this context, this study begins by an introductory chapter entitled "The Historical Origins of the Death Penalty in Egypt" in which we tried to pin the Egyptian penal legislation to its origin by studying the position of death penalty and its evolution in society. By identifying the historical origin of the Death Penalty in Egypt, we then present an objective view on the future of death penalty in Egypt between retention and abolition.
The great legal ages of Egypt can be divided into five ages:
1. The Pharaonic age: beginning from 3200 BC and ending with Greek subjugation of Egypt in 332 BC, which is the date of the establishment of the Ptolemaic
2. The Ptolemaic Age: starts with the subjection of Egypt to the governance of Greece on 332 BC and ends with Romani governance in 31 BC
3. The Roman Era; begins by the advent of Roman law in Egypt on 31 BC and ends by the evacuation in 641 at the hand of Muslim Arabs
4. The Islamic Era; began in 641 till the issuance of civil legalizations in the late 19th century
5. The Modern Era: began with the first emergence of penal legalizations in the era of Mohamed Ali with the purpose for the protection of the seeds of the Egyptian renaissance, extending to the issuance of the current penal code No. 58/1937 including the continuous developments targeting the conformity of the changing conditions in Egyptian society lives.
Firstly, the study will begin with the historical overview of Egyptian law in general, and the death penalty in particular. Recognition and application of various ages during the successive legal to Egypt, despite the multiplicity and diversity of those times, are very different to determine where the source of the death penalty, particularly in the philosophic and objectives of the substantive scope of application and the forms of implementation and guarantees surrounding the implementation of this procedure. The comparative study of those times, and the statement of its position on the death penalty, it is noted that the substantive scope of crimes punishable by death in Islamic law was narrower than the Pharaonic and modern ages, where the issuance of the death penalty was not to exceed three (3) crimes: the fortified banditry, adultery, and the crime of murder. In the Pharaonic criminal legislation, the death penalty was issued for twenty (2) different crimes, and increased the number of crimes punishable by death in the current Penal Code No. 58 of 1937 in the special criminal legislation, namely: the Law on Narcotic Drugs, Arms and Ammunition Act, and Martial Law.
The base of death penalty, its objectives, kinds and areas of application in the Pharaonic era
Death penalty source and its objectives / Types of application / Scale of death penalty1. Punishment source:
* religious mythical
* God is the King legislator
2. Objectives of the punishment
* life objectives: the impunity of the offender in accordance with the law "ideals." And that the punishment for the crime must be similar to the crime in quantity and quality.
* other life objectives: to deprive the offender of divine vengeance in Paradise and that the extermination of the body / • hazing: by killing the convicted to death by the insertion of hazing in the anus.
• dumping: the dumping of the body of the convicted person is alive or after death in the Nile crocodiles to eat.
• Odhir cremation ashes: even the body of the offender are being exterminated, and deprived of the entry of the offender.
• cut off the head: the body then to deny the extermination of the offender from entering heaven. / First: crime of aggressions on the King: the conspiracy to the King, the prisoners of war, espionage, harboring criminals and conceal them
Second: the crime of aggression on the religion, namely: the violation of the sanctity of graves, attack the property of the temples, a sacred animal was killed intentionally.
Third: the crime of aggression to justice, which are: perjury, that the crime was reported, perjury, false communication, bribing judges and deviating from justice.
Fourth: The crimes of abuse of public funds: to hide the fact the employee income
Fifth: offenses against individual people, namely: murder, killing a son of his parents, and the death of the patient, doctor error, not to help the person murdered, adultery, kidnapping as murder, rape
The basis of the death penalty
objectives, forms and scope of the Islamic era
Punishments set by God, which are: adultery fortified banditry, theft and slander.
assessed penalties in retaliation from the
* street right of Abdul, who may accept compensation or pardon, and the crimes to justice, are crimes of aggression and self-restraint without
imposed at
* the ruler's discouraged by the crimes of the street and the punishment of the ability of parents as the people's interests / * Comeuppance equally: between the offense and the penalty imposed (look to the past)
* Prevention: prevention of crime again or reduce the function of deterrence (look to the future)
* Reform: An example of such a provision to send the perpetrator of the crime of robbery, which is not allowed to return home only after the good state / 1. Stone: death by stoning the married adulterer is the one by putting it into a hole, and people threw him stoned to death.
2. Cut the neck sword: in the crime and banditry, crimes to justice, and other crimes that punitive parents decide to have the death penalty doubled last year's toll.
3. Cut off the neck with the steel: the crime of banditry, which is linked to the commission of the crime of killing people and the heart of their money. / First: the crimes of the border:
1. "Weight fortified"
2. "Banditry", which is linked to the intimidation by killing people and looting the money.
3. The crimes of "prostitute" and "apostasy" in the words of some scholars.
III: Crimes of justice:
4. Murder
Third: imposed at the ruler's crimes:
Scholars have pointed to some imposed at the ruler's crimes in which the death penalty, namely:
5. Making a habit of practicing homosexuality,
6th Sharp alcohol in the fourth,
7th Proposal to the Grand Sheikh of Al-corruption in the land,
8th Muslim spy
The study shows at the end of the introductory chapter to the evolution of the position of the criminal law of Egypt from the death penalty was not an anomaly on the evolution of the overall context of the position of the rest of human societies from the introduction of the sentence. It was the most prominent of the death penalty sanctions in primitive societies, which many in the excessive use due to severe cruelty, which has played an active role in bringing security and stability. The death penalty has been retained in the intense punitive deterrence of public and private until the end of the seventeenth century. It was behind the punishment of many thinkers, such as the French philosopher "Jean-Jacques Rousseau," the Italian thinker "Becaria." However, since the beginning of the eighteenth century, and under the affected schools of Social Defense, the intellectuals and philosophers in Europe, strongly critical of the death penalty and calling to cancel, due to confusion of systems of criminal prosecution of the time, and the spread of tyranny and political control, leading to excessive use of the death penalty, particularly against the opposition politics. Resulting in criminal jurisprudence, one of two opposing supporter of the death penalty and the other exhibitions and calls for the cancellation, and is supported by a trend supported by the international covenants on human rights to the emphasis on the death penalty should be brought to adequate safeguards in the countries which have maintained, in accordance with the approach is to urge States to repeal.
* * * *
Chapter I: In the light of the foregoing chapter we have first to study the "problem of the death penalty in the legislation and the attitude of the modern international human rights law, the death penalty" and that in four consecutive Investigation. We have "the first topic," to review the main features of the status of doctrinal debate on the punishment at the international level, where the split of international criminal jurisprudence, since the beginning of the eighteenth century to be divided between the two main supporters and opponents of the death penalty, and each of their current arguments and its evidences diverse theoretical and practical. All of these arguments and evidence related to the legitimacy of the death penalty, and the risk of its application, and the feasibility and utility of this punishment, and the appropriateness and fairness.
1. Controversy over the legitimacy of the death penalty: go where the tide of support for the retention of the punishment of the supporters of "traditional school" to say that the legitimacy of the sanctions in general are based on the theory of "social contract", built by the French intellectual, "Jean-Jacques Rousseau." Was based on "Becaria" in the book "for the crimes and penalties," in 1767 the idea of "social contract" as a State's right to punishment; individuals to the authority of the State waived their right to defend themselves and their money, and therefore the authority of the State is not just a sum of only those and all the rights that I do not remain within the limits of its authority. Thus, the punishment in that case is a breach of the social contract and the denial to him. So called "Jean-Jacques Rousseau," to retain the death penalty Each individual under its accession to the social contract has been declared to accept integration into the group and the highest authority in the community maintenance of the right to life, if attacked by the individual himself to the community in the form of the murder, before his execution in advance. While the "borrowed Becaria" from the scope of the death penalty by limiting their application in the circumstances of the political strife and unrest, which requires maximum penalties for the establishment of the system.
In view of the criticism of the views of the theory of social contract as the State's right to punishment, which is the basis for my default and not supported by historical evidence or fact, the jurist for "Jesus" in his book on "the death penalty for political crimes" (1822) and "Joe furry" in the author on the natural law (1830) to search for the philosophical basis of the latest build the foundations for the new school, and found that the idea of "absolute justice" advocated by the German thinker, "was" and considered that absolute justice is the basis of a State's right to punishment, not beneficial, according to the school traditional.
Despite the differences in "school mode" with the school's traditional right to determine the basis of punishment in the State in identifying the goals and functions of punishment in the adoption of measures (precautionary measurements defense and security) method in the fight against serious crime, but the school in the classification of the security measures and the defense emphasized the diversity of these measures Latest from the offender to the offender, which requires an examination of a comprehensive study of the physical, psychological and social development. When some of the criminals have not only succeeded eradicative measures as death or removal of life and, as others have failed remedial measures Kaliidaa in a psychiatric clinic or mental, or social measures such as prohibiting succeed in a particular place of residence or prevention of a particular profession.