페이지 이미지
PDF
ePub

The Egyptian legislator has left this matter to the consideration of the courts to determine in each case whether the offense consists merely in the doing of the act or whether the accused must be proved both to have done the act and to have been aware that the conditions were present which made the act criminal. Question 11. Separation between jurisdiction of courts and definition of offense

The judicial organization of Egypt, as well as most of the continental countries and those influenced by the European legal systems, provides in its criminal procedure code or code for the judicial organization of the country provisions discussing the court system and the jurisdiction of each court, including its Constitution. On the other hand, the definition and classification of an offense is provided for in the penal code.

The general rule is that criminal courts have jurisdiction over all offenses committed on national soil. The Egyptian Code of Criminal Procedure does not distinguish between civil and criminal courts. A court in Egypt has dual jurisdiction, civil and criminal. Judges sitting in civil and commercial cases sit also in criminal cases. The Constitution and jurisdiction of the Egypt criminal courts is provided for by Law No. 56 of 1959, concerning judicial power. Question 12. Extraterritorial jurisdiction

Articles 1-3 of the Egyptian Penal Code, as discussed under Question #9, provide for the territorial application of the Penal Code. The general rule recognized in modern states is that the criminal law of a state applies to all persons committing crimes within its territory.

Despite the fact that criminal law is in principle territorial, there are certain exceptions to the application of the principle to be noted. In certain cases the state applies the opposite principle, viz., that the criminal law of the state applies to nationals of the state irrespective of the territory in which the offense may have been committed. Many states apply their criminal law to aliens who commit certain classes of crimes outside their territory.

The Egyptian Penal Code devotes Chapter I of Book II, Articles 77–85 to crimes committed against the safety of the State outside the Egyptian territorial boundaries. These articles and their numerous divisions and subdivisions spell out in detail all such offenses.

Section 209 of the proposed Federal Criminal Code compares very favorably with other codes. Question 13. Criminal conspiracy

Criminal conspiracy under the Egyptian Penal Code is provided for by Article 48 as follows.

Article 48—There is criminal conspiracy (criminal accord) when two or more persons conspire to commit crimes or misdemeanors or to prepare or facilitate their commission. The conspiracy is criminal whether the object with which the crimes or misdemeanors are to be committed is lawful or not.

When a criminal conspiracy is directed toward or contemplates the commission of crimes, the conspirators are punishable with detention; when it is directed toward or contemplates the commission of misdemeanors, they are punishable with imprisonment.

Those who instigate a criminal conspiracy or take a directing part therein are punishable with penal servitude for a term in the first case mentioned in the preceding paragraph and with detention in the second case.

However, if the purpose of the conspiracy was only to commit crimes or misdemeanors punishable with a penalty lighter than the penalties mentioned in the preceding paragraphs then the penalty shall be the one provided for by the law for such misdemeanors or crimes.

Provided that every person guilty of conspiracy who, before the commission of the crimes or misdemeanors and before the commencement of any legal proceedings, gives information to the authorities of the existence of the conspiracy and of the members thereof shall be exempt from the penalties provided by this Article.

The idea of conspiracy under the Egyptian Code. as it is clear from this Article, is not limited to conspiracies to commit political offenses. It extends to all conspiracies to commit crimes or misdemeanors. The legislator employed the word “accord” which is said to be understood, in its widest sense, as comprising not only agreements drawn up in writing, but also mere verbal agreements, provided that they contain all the elements required by the law to render them criminal. To make the “accord” criminal it must have been entered into with a view to the commission of or preparation for offenses. It is not, however, necessary that any determinate crimes should be proved to have been resolved upon. A general criminal intention suffices.

The Egyptian article, although based on the French Penal Code articles, is wider in its coverage, since it makes punishable an arrangement with a view to the commission of a misdemeanor as well as one with a view to the commission of a crime. Thus an arrangement to commit an offense may be punishable although the attempt to commit the same offense by one individual would not be so.

The use of the same word "accord” in both Article 40(2) and Article 48 might lead to the conclusion that every arrangement which would, had an offense followed, been punishable as accessory conduct under Article 40(2) might, if no offense actually resulted, be punishable as a conspiracy under Article 48. But according to a decision of the Court of Cassation “the nature of the agreement is different in the two cases. Some degree of organization, however slight, and a certain permanence of agreement are necessary to constitute a criminal conspiracy, whereas complicity requires neither of these elements."

Article 40.-A person is concerned as an accessory in the commission of an offence: (1) who instigates to the commission of the act constituting the offence, provided that the act is the consequence of such instigation; or (2) who is a party to an arrangement having its object the commission of the offence, provided that the offence is the consequence of such arrangement; or (3) who knowingly supplies weapons or other implements or means employed in the commission of the offence, or in any other manner aids the principal or principals concerned in the offence in the preparation, facilitation, or commission thereof. Question 14. Felony-murder

In Egypt the pronouncement of the death penalty is never obligatory. If extenuating circumstances are found to be present, the court can always substitute penal servitude for life. And unless murder was accompanied by one of the aggravating circumstances mentioned in Articles 230, 233 and 234 (2) of the Penal Code, a sentence of penal servitude for life or for a term must be pronounced. The aggravating circumstances which justify the death penalty under the Egyptian Penal Code are (1) premeditation, (2) lying in wait, (3) poison, (4) simultaneous commission of another crime, and (5) correlation of the murder with misdemeanor.

Simultaneity and correlation of willful homicide with another offense is a cause for aggravation of the punishment of willful homicide. This is provided by the second paragraph of Article 234. If there is simultaneity of the homicide with another crime, the punishment is death ; if there is correlation of the homicide with a misdemeanor, the punishment is death or penal servitude for life.

Article 234 states that the homicide must have been preceded, accompanied. or followed by another crime. The word "crime" is here used in its technical sense as in Article 10 of the Code. In Egypt attempt to commit a crime is a crime. Therefore, if the homicide is committed simultaneously with an attempt to commit a crime, the aggravation applies. Under Article 234 the homicide must be willful in every case, while other countries rule it may aggravate an unintentional homicide and punishes it as if it had been willful because it was committed during the commission of another crme.

The following is the translation of the pertinent articles.

Article 230.-Willful homicide committed with premeditation or after lying in wait shall be punished by death.

Article 233.-Poisoning is willful homicide committed by means of any substance capable of causing death more or less swiftly. However the same may be employed or administered, poisoning shall be punished by death.

Article 23h.-Willful homicide committed without premeditation or lying in wait shall be punished by penal servitude for life or for a term.

Nevertheless, the penalty shall be that of death if the willful homicide has been preceded, accompanied, or followed by another crime. The penalty shall be that of death or penal servitude for life when the object of the homicide is to prepare, facilitate, or actually commit a misdemeanor, or to assist the escape or immunity from punishment, of any person concerned in the commission of a misdemeanor, whether as principal or accessory.

Article 235.—When a homicide entails the punishment of death for the person committing it any accessory shall be punished by death or by penal servitude for life. Question 15. Not applicable to Egypt. Question 16. Para-Military Activities

The foreign codes consulted, in particular the Egyptian and Libyan, do not have a provision or provisions similar to $1104, Para-Military Activities. They all have provisions under offenses against the internal safety of the State which cover such activities and more. Some countries, in addition to the provisions found in their penal codes, have enacted certain laws covering similar grounds under names such as subversive activities, spies, espionage, etc.

The Egyptian Penal Code provides in Article 87, as amended, the following:

Whoever attempts by force to overthrow or change the Constitution of the State, the form of the government of the Republic, shall be punished with penal servitude for life or for a term. If the offence has been committed by an armed band, the person who organized the band or placed himself at its head or held command in it shall be punished with death.

The Libyan Penal Code provides in Article 196 the following:

Whoever, by force or in any other unconstitutional manner, attempts to alter the Constitution of the State or the form of the government, shall be punished by imprisonment for life or by imprisonment for a period of not less than five years.

If the offence is committed by an armed band, whoever raised the armed band or assumed leadership thereof in whatsoever manner shall be punished by death.

These and many other similar provisions are provided in either the penal codes or special legislation for the protection of the state. Question 17-A. Drugs

The Egyptian legislators have provided several elaborate acts concerning drugs, which are separate from the Penal Code. Question 17-B. Abortion

Abortion is treated under Chapter 3 of Book 3, Articles 260-264, as follows.

Article 260.-Whoever willfully procures the miscarriage of a woman with child by means of blows or other violence shall be punished by penal servitude for a term.

AI le 261.—Whoever procures the miscarriage of a woman with child whether with or without her consent by administering to her any drugs or by the use or indication of any means capable of causing miscarriage shall be punished by imprisonment.

Article 262.—Every woman who knowingly consents to take such drugs or to employ or allow the employment of any of the means above-mentioned, and actually miscarries, shall be punished by the like penalty.

Article 263.--If the offender is a physician, surgeon, or pharmaceutical chemist, he shall be sentenced to penal servitude for a term.

Article 264.-Attempt to procure abortion shall in no case be a ground for prosecution.

The subject of abortion under Egyptian law has been related to both homicide and blows and wounds. It is related to homicide as involving suppression of a possible human life, although it is remarked that abortion consists not in destroying the life of the foetus but "in the intentionally causing the premature expulsion of the product of conception."

From another point of view the offense of procuring miscarriage is related to wounds and blows. An act done for the purpose of abortion is dangerous in itself to the health of the woman and may produce death or bodily injury, or, without having the intended effect, it may cause some ailment or death. It is clear that for prosecution under these articles, intent to procure miscarriage is essential.

It should be remembered that attempts to procure miscarriage are not punishable under the head of "blows and wounds." Question 17-C. Gambling

Gambling is provided for in the Egyptian Penal Code under Chapter 12 of Book 3, Articles 352-353, as follows.

Article 352.—Whoever keeps a house or place for games of chance to which the public has access shall be punished, with the person who keeps the bank in the said house, by detention and by fine not to exceed one thousand Egyptian pounds; all money and equipment found in the gambling places shall be confiscated by the authorities.

In 1957 the Minister of the Interior published Decree No. 37 of 1957 providing a long list of games, forbidding them and categorizing them as games of chance.

Article 353.–Whoever offers for sale a lottery without government permission shall be punished with the same penalties; all money and equipment used shall be confiscated by the authorities. Question 17-D. Offenses against decency and morality

Under the Egyptian Penal Code, offenses against decency and morality include indecent assault, habitual instigation to debauchery, and adultery.

Article 267.—The crime of rape shall be punished by penal servitude for life or for a term.

If the offender is an ascendant of the person upon whom the crime has been committed, if he is one of the persons who is entrusted with her education or supervision, or who is in a position of authority over her, or if he is her paid servant or the paid servant of one of the persons above referred to, the penalty shall be that of penal servitude for life.

Rape is said to consist of an illegal natural connection between persons of different sexes contrary to the will of one of the parties. Unnatural connection by violence is punishable not as rape but as indecent assault under Article 268.

Article 268.-An indecent assault accompanied by violence or threats shall, whether completed or not, be punished by penal servitude for a period of not less than three nor more than seven years.

If such assault is committed on a child who has not completed his or her sixteenth year, or if it is committed by one of the persons specified in the second paragraph of Article 267, the penalty may extend to the maximum fixed for penal servitude for a term.

When both these factors are present the penalty shall be that of penal servitude for life.

Article 269.—Whoever commits an indecent assault unaccompanied by violence or threats on a child who has not completed his or her eighteenth year, shall be punished by imprisonment.

If the assault is committed on a child who has not completed his or her seventh year, or if it is committed by one of the persons specified in the second paragraph of Article 267 the penalty shall be that of penal servitude for a term.

The offense of indecent assault dealt with under these two articles covers a wide variety of indecent acts. As rape is limited to natural intercourse, acts of sodomy, whether committed on male or female, are indecent assaults. This term, while it covers such grave improprieties as these, also includes assault of a much less serious character, such as touching a woman's clothes in an improper manner, if the touching is indecent in character. There must always be an assault, because indecent acts done in the presence of another do not constitute an assault. While exposure is not in itself an assault, in the case of children the offense is constituted if the accused induced them to touch him improperly though no act was done of the person of the child.

The indecent act is punishable under these articles whatever the offender's objective may have been. It is not required that he have a carnal or even an obscene purpose. Consent to indecent acts, except in the case of underage children, is a good defense.

The term assault under these articles implies a measure of force. Yet the Code distinguishes between “assault with violence” and “assault without violence.” The latter is committed when the indecent act is committed upon the person of a child who is underage with his or her consent. In this case the child is regarded as incapable of consenting.

Under the Egyptian Code one may say that rape, sodomy, and indecent assaults are lumped together and are not separately punishable. There is no distinction drawn in each case between the commission of the act under circumstances in which the victim could not resist [force, threats of death, state of unconsciousness); and those in which consent has been exacted by threats of a less overwhelming kind; or by deception as to the nature of the act; or where the person was insane or mentally infirm.

Article 269.—Whoever is found in a public street inducing bypassers to commit prostitution, shall be punished by detention for a period not exceeding seven days.

Whenever the offence is repeated within one year from the date of sentencing, the offender shall be sentenced to detention for a period not exceeding six months and with fine not exceeding fifty Egyptian pounds followed by putting the offender under police surveillance for a period equal to his detention.

Articles 270-272 were abolished by Law No. 68 of 1951, concerning prostitution. Question 18. Firearms and explosives

Provisions pertaining to firearms and explosives in Egyptian criminal law are found both in the Penal Code and in separate acts.

Chapter 2 bis of Book II of the Penal Code, entitled “Explosives" was added to the Code by Law No. 50 of 1949. The following is the translation of these articles.

Article 102A.—Whoever, without a license, keeps, manufactures, possesses or imports explosives shall be punished by penal servitude for life or for a term.

Shall be considered as explosives any materials used in making explosives which are described as such by a decision from the Minister of Interior, as shall be considered explosives any kind of device, machines or tools used for their manufacture or explosion.

Article 102B.—Whoever uses explosives for the purpose of committing the crime mentioned in Article 87, political assassination, destruction of establishments devoted for public utilities, public benefits, public meetings or any other structure used by the public, shall be punished by death.

Article 102C.-Whoever uses or attempts to use explosives in such a way that he will expose the life of the people to danger, shall be punished by penal servitude for life.

If such explosion caused the death of any person the penalty shall be death.

Article 102D.Whoever uses or attempts to use explosives in such a way that he will expose the property of others to danger shall be punished by penal servitude for a term.

If such explosion caused damage to such property the penalty shall be penal servitude for life.

Article 102E.-As an exception to the provisions of Article 17, in applying the above-mentioned articles no mitigation of penalties is permitted below the one immediately following the first penalty provided for the offence.

Article 102F.—Whoever violates the requirements of Article 102A shall be punished with detention.

The laws pertaining to firearms and ammunition are more detailed and have been amended several times with their schedules. However, articles pertaining to the same subject in Libya are part of the Libyan Penal Code, which seems to carry very lenient penalties. These articles are as follows:

Article 477.—Whoever, without license, manufactures arms or brings them in any manner for sale, or collects them for trade or manufacture, shall be punished by penalty of detention for a period not exceeding one year and of a fine not exceeding fifty pounds.

Article 478.-Whoever has in his possession arms or ammunition and does not inform the authorities of the same shall be punished by a penalty of detention for a period not exceeding six months or a fine not exceeding ten pounds.

Article 479.-Whoever disobeys a lawful order issued from the competent authority to deliver up arms or ammunition in his possession during a speci. fied period therefor shall be punished by a penalty of detention for a period not exceeding one year or of a fine of between ten and twenty pounds.

Article 480.-Whoever carries arms outside his dwelling place or its anpurtenances without license to do so from the authorities shall be punished by a penalty of detention for a period not exceeding one year.

« 이전계속 »