Egypt: The Draft Law on Witness Protection Must Respect International Law

This topic is especially sensitive at a time when violations are increasing and symbolic trials of members of the former regime are being held. Many Egyptians continue to seek justice in vain; it remains absent.

That is why we hope that the draft law on the protection of witnesses, informants and experts currently under discussion in the Shura Council will not only be a formal attempt to adhere to the UN treaties ratified by Egypt, which regulate the fight against corruption and the protection of witnesses and informants in court cases.

Article 25 of the Convention against Corruption provides for the adoption by the State Parties of legislative and other measures against the use of force, threat, intimidation and promises of gain in exchange for a false witness. It also stipulates that it is prohibited to interfere in the testimony or the provision of evidence relating to crimes committed which fall under the mandate of the Convention.

Article 32 of the same Convention also states that State Parties must adopt measures in accordance with their own judicial system to ensure effective protection of witnesses and their families who may be victims of retaliation or intimidation.

However, after review of the UN Convention against Corruption, which was signed in 2003 and ratified in 2005 by Egypt, we find that the draft law on witness protection currently under discussion in the Shura Council does not meet the minimum principles international law. This draft law of no more than 10 short articles gives no evidence of any real political will to end corruption and to protect witnesses, both of which are essential in a country plagued by corruption and violations for many decades.

The real and effective protection that the state must provide witnesses is a fundamental element of the fight against crime and corruption, encouraging individuals to cooperate with justice and advance the judicial process.

The Ministry of Justice stated that the law would result in a "social dialogue" in which all proposals will be heard and particularly those of civil society. This is why the agreement, in principle, of the Shura Council on the report of the Commission of Legislative and Constitutional Affairs regarding the protection of witnesses surprised us. We therefore urge the Legislature not to rush the final adoption of the project so that the social dialogue takes place and contributes to the improvement of the law.

Following are some comments on the draft law.

Definition of the status of witness

Note that the status of witness is not precisely defined in the draft law, and neither are criminal cases in which the protection of such persons is required.

Some countries define as witnesses anyone susceptible to be threatened because of his relationship with a criminal case, which includes, for example, judges, informants, members of the Public Ministry and translators. Other countries, however, reserve this status to those who appear before the court or took part in the court proceedings.

Defining the status of witness has a decisive impact on the people to be protected. It is clear that, the broader this definition is, the more efficient it is to ensure justice. The Egyptian draft law does not however even retain the narrower definition (which considers as a witness the person appearing before the court) and fails to protect relatives who could be threatened. This draft ensures effective protection to members of the family of the witness only to a second degree. In Kenya, the Czech Republic and Canada, for example, a blood relationship with the witness is not required to benefit from the protection of the state in a court case and can be applied to any person in connection with the witness, whether family, friends or business. Giving the protection of the State according to the broadest possible definition is indeed essential, particularly in highly corrupt countries.

Implementation of the law

To ensure that the citizens trust in the witness protection program, particularly in times of transition as is currently the case, it is essential that the law specifies its means of action and the sources and amounts of funding.

Most countries who have adopted well drafted laws for the protection of witnesses have then come up against serious difficulties in enforcing this. This is the case for example of Croatia, where the lack of resources, training and technological capabilities has led to the failure of the proper implementation of law, despite its high quality.

This failure became clear in September 2005 when the courts faced extreme difficulties in gathering evidence against Mirko Norac and Rahim Ademi, accused of war crimes. Despite the protection officially guaranteed by the law, witnesses feared for their safety. A situation that Egypt is, unfortunately, likely to experience even if the law is ultimately well drafted. Therefore it is necessary that the draft law provides funding for the protection system, as well as training and links with society, tools that ensure balance in the quality and completeness of the law and its effective implementation.

Administration of the protection

The draft law states that the system of protection of witnesses is under the authority of the Ministry of the Interior. This Ministry is itself involved in numerous cases that require precisely such witness protection and Ministry officials having at times themselves terrorised protected persons in police stations (especially in cases of torture), it is not reasonable to make this Ministry responsible for the protection system. We suggest, however, that the responsibility be assigned to the Egyptian judiciary, or at least the Attorney General. This is the approach adopted in many other countries such as Colombia, the Netherlands and the USA. The Egyptian Constitution provides for the appointment of a National Commission for the Fight against Corruption which could also be entrusted with the protection of witnesses.

Encouragement vs. intimidation

The principle behind a witness protection law is to encourage witnesses to share their information with the Judiciary. Yet we find that the proposed Egyptian law provides a penalty of imprisonment against the witness who lied while under protection. Though this may be logical in writing, this article will discourage people from testifying. Indeed, in most cases, witnesses are not in possession of clear and complete information. Threatening them with imprisonment if they are deemed to be lying will ensure they stay away from any courts, especially as the article does not specify what is meant by the term 'lying'.

The principle of encouraging witnesses is again weakened by a proposal to reinforce sanctions against those who refuse to testify in the case, for example, where their collaboration with justice could lead to danger to their personal safety. Section 279 of the Code of Criminal Procedure - which has not been revised for a long time – currently calls for a fine of between 10 and 50 Egyptian pounds. We believe that tougher sanctions against those who refuse to testify would be unjust and contrary to the basic principle of any law for the protection of witnesses.

Furthermore, Article 2 of this draft law requires the State to provide financial compensation to a witness who was assaulted while under protection. However, this article fails to mention the duration of protection: the state could thus circumvent its obligation to compensate the person who suffered the injury on the pretext of having risked his life to serve justice. This article also provides no compensation if the person assaulted is a relative of the witness.

Moreover, although Article 4 emphasizes the confidentiality of witness statements when under protection, the phrase "except as provided by law" opens the gap to other interpretations, especially as these cases are not subject to any strict definition.

No mention is made either to prohibit the media from publishing any information whatsoever that would reveal the identity of the witness and could therefore put them in danger. This is however essential to ensure the most effective protection for witnesses.

Institutions of transitional justice

The draft law does not take into account the special nature of the current situation which the country is facing and that requires the adoption of a system of transitional justice. It must be explicitly stated in the law that witnesses enjoy the protection of the state when they appear before the courts, but that this also applies to anybody involved in the judicial process, such as commissions of inquiry.

This draft law limits protection to criminal cases despite the fact that many cases of corruption within the government apparatus are rooted in the civil courts. That is why we propose to replace the text in the phrase "criminal cases" to "civil cases", which includes disciplinary matters as well as criminal.

Similarly, in connection with what has just been said, the draft law restricts the status of "authorities investigating" to the Attorney General, thus neglecting other authorities responsible for the investigation, such as the Public Ministry. This limits the scope of protection of witnesses, especially as this Ministry conducts its investigations based on complaints from citizens in cases of corruption and financial embezzlement, which was originally the main purpose of the enactment of this law.

Identity change

Section 6 of this draft law also fails to mention changing identity, which is an absolutely essential element for the protection of witnesses. In fact, most such laws provide for changes of residence or personal data on official documents, without of course affecting the rights of third parties to whom the witness would be liable in any way.

The signatory organizations (in alphabetical order)

- Alkarama Foundation

- Cairo Institute for Human Rights Studies