Intensive Session 3 Criminal Law 2024 PDF

Temporal Jurisdiction in Egyptian Criminal Law Article 95 of the Egyptian constitution stipulates, “Penalty shall only be imposed for acts committed after the coming into force of the law imposing it”. The Egyptian criminal code adopts the same position by stating in article 5 that “Crimes...

Temporal Jurisdiction in Egyptian Criminal Law Article 95 of the Egyptian constitution stipulates, “Penalty shall only be imposed for acts committed after the coming into force of the law imposing it”. The Egyptian criminal code adopts the same position by stating in article 5 that “Crimes shall be punished by virtue of the law in force at the time of its commitment”. Yet, article 5 of the Egyptian criminal code continues to state that “However, if after the commission of the deed and before the pronunciation of a final judgment a more favorable law to the accused is issued, that law shall be the one that is exclusively applied.” This is called the principle of the Retroactivity of favorable rules. Before getting into the details of what is favorable or unfavorable to the accused, one has to determine the time of commission of the crime. The Time of Commission of the crime: We should determine when exactly the crime is committed. This is an easy task when the crime is instantaneous, committed by a single act and produces its results immediately. - Example, if a person shot another on the 1st of October, and the shot person died immediately, then the crime is committed on the 1st of October. ❖ There are some cases where crimes are more problematic than this simple scenario: 1) Divergence of elements of the crime: ▪ This happens when the outcome or the criminal result occurs after a relatively long period from the moment of the commission of the act. - In the previous example, if the person died not immediately but after two months, on the 1st of December. In that case, the crime will be considered to be committed in the moment of the action and not at the moment of the result. Rana Ammar/ 01222416663 1  2) The case of continuing crimes: ▪ These are crimes whose criminal act (material element) require the intervention of the author for an extended period of time - For instance, kidnapping a person in committed in the moment of the beginning of kidnapping him or during the period in which he is kidnapped or at the moment where he is released. In these types of offenses, the crime is considered in commission during the whole period of the continuing act of the accused. 3) The complex crimes: ▪ The material element of these crimes is composed of distinctive actions that are not necessarily fulfilled at the same time. The crime is considered to be committed in all moments of commission of any of the constitutive acts of the material elements. - The best example to these crimes is Fraud. 4) Habit crimes: ▪ In this type of offense, the offense is not realized by the commission of the act for one time. The incriminating text requires that the act shall be repeated at least twice in order for the incrimination to be established. - For example, the crime of habitual prostitution. In these crimes, the crime is considered to be committed in any of the moments of commission of one of the acts; either the first or the second. The Non-Retroactivity of Unfavorable Rules: The rule of non-retroactivity of new unfavorable criminal provisions requires as a precondition that the whole crime is committed under the old provision. ✓ If only part of the criminalized act is committed under the new provision, then the new provision will apply without any violation of the rule of non-retroactivity. o If in continuing crimes: Rana Ammar/ 01222416663 2  The act starts under the old rule and finishes under the new rule; the new rule will apply even if it is unfavorable without any violation of the principle of non- retroactivity. o If it is a question of a complex crime or a habit crime: It is enough that only part of the criminal act is committed under the new rule to apply it regardless of whether it is favorable or unfavorable to the accused. The question is now what is an unfavorable rule to the accused? ✓ On the level of criminalization: if it o Creates a new offense that has not been criminal. o Removes an element of the legal structure of the offense, turning the offense to be easier to prove. ✓ On the punishment level: o If it makes the punishment harsher by changing the category of the punishment from a lower punishment like imprisonment to a higher punishment like prison, or changing the punishment from prison to aggravated prison. - It is worth noting that changing the grade of punishment to a higher degree is considered to be unfavorable to the accused even if the period of the term is lesser. - Therefore, a term of three years of aggravated prison is unfavorable than five years of prison. The punishment could be also harsher when only the quantum of the punishment is higher, so five years of prison is definitely unfavorable as opposed to three years of prison. The Retroactivity of Favorable rules: If the new rule that is issued after the complete commission of the crime under the old rule is favorable to the accused, then the law provides for retroactivity with conditions and with exceptions. a) Conditions of Retroactive application of Favorable rule: Rana Ammar/ 01222416663 3  The retroactive application of criminal law depends on the existence of two conditions: that the new criminal is favorable to the accused and that the rule is promulgated before the pronunciation of a final judgment. ✓ First, the new rule is favorable to the accused: 1) A rule could be favorable to the accused on the level of criminalization: ▪ If it decriminalizes an offense and renders it not criminal. A criminal rule is also favorable if it adds an element to the legal structure of the offense, turning the offense to be harder to prove. 2) A rule is favorable on the punishment level: ▪ If it makes the punishment more lenient. This could be through changing the category of the punishment from a higher punishment like prison to a lower punishment like imprisonment or changing the punishment from aggravated prison to prison. ▪ It is worth noting that changing the grade of punishment to a lower degree is favorable to the accused even if the period of the term is more than the old rule. ▪ Therefore, a term of five years in prison is favorable to the accused than three years of aggravated prison. The punishment could be also more lenient when only the quantum of the punishment is lower, so five years of prison is favorable as opposed to seven years of prison. ✓ Second, a final judgment is not pronounced: It is not enough that a new favorable rule is promulgated in order to be applied on the person who has committed his crime completely under the older unfavorable rule. Article 5 stipulated that the new rule has to be promulgated and entered into force before a final judgment is rendered. ▪ What is meant by final judgment? Rana Ammar/ 01222416663 4  - It is the judgment that cannot be appealed before any court, either because it exhausted all means of appeal, by having a judgment of the Court of Cassation, or that the judgment is declared by a lower court, but the period of appeal has passed so it became irrevocable. - Therefore, the new rule would apply to the accused who is executing his sentence in prison if his case is still under review from a higher court. To the contrary, the new rule will not be applied to someone who still did not start his sentence if the judgment on him became final as article 5 provided. ▪ Exceptionally, the condition of promulgating the rule before a final judgment does not apply if the new rule decriminalizes totally the act. - This means that if the new criminal rule removes the criminal character of the acts for which the person has been convicted, the person is released or absolved of responsibility even if there was a final judgment against him, or even if he was already passing his sentence after the final judgment. b) Exceptions to the Retroactive application of favorable rule: Temporary laws The only exception of enforcing the rule of retroactive application of criminal rules concerns the Temporary laws. A temporary law is that law that is promulgated while providing that it is going to be applicable only for a specified period of time. After the passage of this period, the law becomes automatically inapplicable. The legislature considers that crimes committed under those laws shall always be prosecuted even if the prohibited acts are not criminal anymore after the passage of this period of time. Therefore, even if the new status of laws is more favorable to the person after the end of the period in which the temporary laws are applicable, he remains subject to the provisions of these laws as long as his actions are committed during their time of application. Rana Ammar/ 01222416663 5  A specific problem arises when the new rule contains provisions of a mixed nature, some being harsher, others being more favorable. The judge can only apply the part that is favorable to the accused based on his concrete situation depends on the nature of such conflicting provisions:  If they are easily separable: - Such as a new rule attenuating sentence for primary offenders while aggravating it for recidivists. Each part shall apply in its own scope: - The more favorable applies retroactively, the other non-retroactively.  If the conflicting provisions are inseparable: - Such is the case when the new rule raises the minimum and reduces the maximum of the penalty. - The prevalent view prefers resorting to concrete appreciation depending on the circumstances of each particular case and offender. ✓ If the court opts for leniency with a particular offender, the more favorable rule is that which contains a lesser minimum, irrespective of the maximum. ✓ If the court is not inclined to clemency, it shall apply the rule which contains the lesser of the two maximums. Rana Ammar/ 01222416663 6  Answer the following Questions: 1- “A” has been tried for theft which is punishable by imprisonment for 3 years. During the prosecution, a new law was enacted in which it made the offence punishable by ordinary detention for just 2 years. Which law will be applied to this case? Why? 2- “A” incited “B” to commit a theft which is punishable by 2 years for both the principal and the accomplice. Before the commission of the offence a new law was enacted in which it made this offence punishable by 3 years imprisonment. “B” however committed the offence as planned. “A” and “B” have been caught by the authorities. During the trial “A” claimed that the new harsher law shall not apply retroactively to him as he committed the instigation under the old law. If you were a judge what would be your decision. 3- “A” who has possessing a firearm which is a misdemeanor punishable by one year imprisonment. During his possession a new law has been enacted in which it made this offence punishable by 3 years imprisonment. But continued his possession until he caught. “A” claimed that he shall be subjected according to the old law as he started the possession under this law. If you were a judge what would be your decision Rana Ammar/ 01222416663 7 4- Zaki has been charged with driving without a license, a misdemeanor that is punishable with imprisonment not exceeding six months. He has been sentenced to the maximum punishment in the first degree but during his appeal, a new law has been enacted to punish the same offence with imprisonment not exceeding three months. Which law shall be applicable to the case of Zaki, the new law or the old law? And why? Would the answer be different if the new law has been enacted after the criminal process had been finished and during the time where Zaki was executing his sentence? Study Hard..To Slay the Past Rana Ammar/ 01222416663 8