Rights and Duties of Foreigners on Egyptian Soil

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We welcome every foreign national who lives, visits, works or invests in Egypt, and we wish you a distinguished stay free of any problems. Daily life is nevertheless not free of disputes, and every resident is well advised to know his or her rights and duties so as to act with confidence should a legal dispute arise.

Types of Legal Disputes a Foreigner May Face

The disputes a foreigner may encounter in Egypt are varied. They include civil and commercial disputes (contracts, partnerships, claims for damages); real estate disputes (ownership, registration, disputes with developers); personal status disputes (marriage, divorce, custody, maintenance, inheritance); labor disputes; administrative disputes concerning residence permits, licences and deportation orders; tax and customs disputes; arbitration; and, finally, criminal cases.

This article is devoted to one specific type: the detention of a foreigner on suspicion of violating the Penal Code or any other law that carries a criminal charge. "Detention" here covers arrest, custody and pretrial detention.

A. Offences a Foreigner May Face During His Stay in Egypt

The Penal Code applies to anyone who commits an offence on Egyptian territory, whatever his nationality (Art. 1 of the Penal Code), and ignorance of the law is no defence. Examples of the violations into which foreigners fall include, by way of example and not limitation, the following:

B. Duties of a Foreigner During His Stay in Egypt

1. To enter and reside in the country on valid documents (passport and visa or residence permit), and to renew residence before it expires.
2. To carry proof of identity and residence, and to keep copies of his documents.
3. To notify the competent authorities of any change of residence in accordance with the applicable rules.
4. Not to work without the required work permit, and not to carry on a commercial or professional activity without a licence.
5. To respect Egyptian law, public order, public morals, and the customs and religious rites of society.
6. To comply with customs declarations and foreign exchange regulations, and not to carry controlled medicines or prohibited devices without a licence.
7. To deal with law enforcement officers calmly and respectfully and not to resist them, asserting his rights through lawful channels.

C. Rights of a Detained Foreigner in Egypt

A detained foreigner enjoys the guarantees that the Constitution affords to every person whose liberty is restricted, together with those provided by the Code of Criminal Procedure, the instructions of the Public Prosecution and the international conventions to which Egypt is party. The most important are:

1. Personal liberty is a natural right: no person may be arrested, detained or have his liberty restricted except by a reasoned judicial order required by the investigation, save in cases of flagrante delicto as defined by law (Art. 54 of the Constitution).
2. Notification of reasons: any person whose liberty is restricted must be informed immediately of the reasons and must be notified of his rights in writing (Art. 54 of the Constitution).
3. Contact with family and counsel: he must be enabled to contact his relatives and his lawyer immediately (Art. 54 of the Constitution).
4. Presentation to the investigating authority within 24 hours: he must be brought before the Public Prosecution within twenty-four hours of the restriction of his liberty (Art. 54 of the Constitution and Art. 36 of the Code of Criminal Procedure).
5. Presence of counsel: the investigation may not begin except in the presence of his lawyer, and if he has none, the investigating authority must appoint one (Art. 54 of the Constitution and Art. 124 of the Code of Criminal Procedure).
6. Dignity and prohibition of torture: he must be treated in a manner that preserves his dignity; he may not be tortured, intimidated or coerced; he may be held only in places that are humane and sanitary; and any statement proven to have been made under coercion is void and may not be relied upon (Art. 55 of the Constitution).
7. Judicial grievance: any person whose liberty is restricted, and anyone on his behalf, may file a grievance before the judiciary, which must rule within one week, failing which he must be released immediately (Art. 54 of the Constitution).
8. Presumption of innocence and right of defence: the accused is innocent until proven guilty in a lawful and fair trial that guarantees his right of defence (Arts. 96 and 98 of the Constitution).
9. Interpretation: he is entitled to the free assistance of an interpreter if he does not understand the language of the investigation or the trial, a right that flows from the right of defence and from the International Covenant on Civil and Political Rights (Art. 14), and which the Public Prosecution observes in its instructions on investigating foreigners.
10. Consular notification (a duty of both the police and the Public Prosecution): Art. 36(1)(b) of the 1963 Vienna Convention on Consular Relations requires the competent authorities of the receiving State, which include the police (preliminary inquiry authorities) and the Public Prosecution, to inform a foreign national who is arrested, committed to prison or custody pending trial, or otherwise detained, without delay, of his right to have the consulate of his State notified. If he so requests, the authorities must notify the consular post without delay of his arrest, imprisonment, custody or detention. The decision to notify is his alone.
11. Communication with the consulate: any communication addressed by the detainee to his consulate must be forwarded to it without delay (Art. 36(1)(b)).
12. Consular access and assistance: consular officers are free to communicate with nationals of the sending State and to have access to them (Art. 36(1)(a)); they have the right to visit a national who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation, unless he expressly opposes such action (Art. 36(1)(c)). These rights are exercised in conformity with the laws of the receiving State, which must enable full effect to be given to their purposes (Art. 36(2)). This accords with the consular functions of protecting, helping and assisting nationals and representing them before local authorities (Art. 5(a), (e) and (i)).

The 1961 Vienna Convention on Diplomatic Relations, by contrast, makes the person of a diplomatic agent inviolable and not liable to any form of arrest or detention (Art. 29) and grants him immunity from the criminal jurisdiction of the receiving State (Art. 31); it does not apply to an ordinary foreigner. Consular officers, for their part, are not liable to arrest or detention pending trial except in the case of a grave crime and pursuant to a decision of the competent judicial authority (Art. 41 of the 1963 Convention), and their immunity from jurisdiction is limited to acts performed in the exercise of consular functions (Art. 43).

D. What the Authorities Must Do with a Detained Foreigner

1. Preliminary inquiry stage (before the judicial police officer)

• Arrest or search him only in the cases the law permits, and enter or search his residence only under a reasoned judicial warrant, except in cases specified by law.
• Inform him of the reason for the arrest and of his rights, hear his statements immediately, and record this in a report stating the date and time of arrest.
• Enable him to contact his family and his lawyer, and provide an interpreter.
• Inform him without delay of his right to have his consulate notified, and notify it without delay if he so requests (Art. 36(1)(b) of the Vienna Convention on Consular Relations).
• Hold him in a lawful and suitable place and present him to the Public Prosecution within twenty-four hours, failing which he must be released.

2. Investigation stage (before the Public Prosecution)

• Interrogate him within twenty-four hours of his being brought before it, and then order either his pretrial detention or his release.
• Confront him with the charge and the evidence, interrogate him only in the presence of his lawyer (except in cases of flagrante delicto and urgency), and allow counsel to review the investigation file.
• Use an interpreter and record his statements as he gave them.
• Ensure that he has been informed of his right to consular notification, that the consulate is notified without delay if he so requests, and that its representatives may visit and speak with him (Art. 36 of the Vienna Convention on Consular Relations).
• Order pretrial detention only in the cases defined by law and by a reasoned order, and consider the statutory alternatives (such as a travel ban or a duty to report to the police). Pretrial detention is subject to statutory maximum limits, and after the prosecution's own period expires, detention is renewed only by order of the competent judge.

3. Trial stage (before the court)

• Summon him properly and in sufficient time to prepare his defence, and hear the case at a public hearing except where the law provides otherwise.
• Appoint counsel for him in felony cases if he has not retained one (Art. 214 of the Code of Criminal Procedure).
• Hear his defence and his witnesses, and have the bench provide an interpreter if he does not speak Arabic.
• Issue a reasoned judgment after deliberation and make available to him the avenues of appeal provided by law.

E. Rights of the Foreigner Before the Investigating and Trial Authorities

1. Before the police (preliminary inquiry)

• To ask why he is being arrested and to receive a statement of his rights.
• To request contact with his lawyer and his family, to ask that his consulate be notified without delay, and to ask that his message to it be forwarded.
• To request an interpreter, and not to sign any paper whose content he does not understand.
• To remain silent until his lawyer arrives; his silence may not be treated as evidence against him.
• To ask to be examined by a doctor if he has injuries, and to have this recorded in the report.

2. Before the Public Prosecution (investigation)

• To have his lawyer present and to review the case papers.
• To present his defence and to request that witnesses be heard or that an inspection or technical examination be carried out.
• To apply for release on bail or on a guarantee of his place of residence, and to file a grievance against his detention order.
• To make sure his statements are recorded in full before he signs the report.

3. Before the court (trial)

• To attend in person with his lawyer, and to request sufficient time to prepare his defence.
• To cross-examine witnesses, to submit documents and pleas, and to request translation of the necessary papers.
• To apply for release at any stage of the trial.
• To appeal the judgment within the legal time limits: an appeal in misdemeanor cases within ten days of a judgment rendered in his presence, and an appeal to the Court of Cassation within sixty days.

Counselor Dr. Hassan Abdelmoneim Hassan

This article is general information for legal awareness purposes, does not replace legal advice for your specific case, and does not promise any particular outcome.