Introduction
Since the adoption of the Egyptian Constitution in 2014, calls have persisted for the necessity of a comprehensive legislative review to ensure the enforcement of constitutional entitlements. Imprisonment in publication-related cases is among the key issues being demanded for review in accordance with the provisions of Articles 67 and 71 of the Constitution. These articles prohibit the imposition of custodial sentences for offenses committed through publication or public dissemination.
The legislature, whether through Parliament as the primary body or through proposals submitted by the government as a secondary channel, has failed to adhere to these constitutional directives, creating a contradictory judicial reality.
While the Constitution prohibits custodial sentences for publication offenses, numerous provisions in different laws permit the imposition of such penalties for offenses committed through publication. This has led to varying interpretations adopted by Egyptian courts regarding this constitutional right, as they attempt to avoid directly applying the principle of prohibiting custodial sentences in publication offenses.
This paper examines the Egyptian criminal courts’ disregard for the constitutional principle prohibiting custodial sentences for publication offenses. It analyzes three court rulings where custodial sentences were imposed despite this principle. The paper then critiques these judicial interpretations, arguing that they contradict the Egyptian Constitution and the established jurisprudence of both the Supreme Constitutional Court and the Court of Cassation.
The Constitutional Basis for the Principle of Prohibiting Custodial Sentences for Publishing Offenses
In articles 65, 67, 70, 71, and 92 of the 2014 constitution in force, the constitution acknowledged individuals’ right to express their opinions by any means of public or private expression. This serves as the general constitutional basis, and the extension of the provisions outlined in previous constitutions. This right is also affirmed by international treaties and conventions related to rights and freedoms, foremost among them the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
This right serves as the general rule governing expression and publication in all their forms, which has been granted constitutional protection. This constitutional protection extends to the right to use public communication means in all their forms, prohibiting the arbitrary deprivation of citizens from using them. This is because traditional and modern public communication means, in all their shapes and forms, are the primary tools for expressing opinions through broadcasting, publication, speech, writing, or photography.
The constitution reaffirms this by assuring guaranteeing the freedoms that stem from this right, including the freedom of artistic and literary creativity, as well as the freedom of the press, printing and publishing in paper, visual, audible, and electronic forms. It also included the prohibition of violating these rights in any way. This prohibition extends to limiting the right to litigate for the purpose of halting or confiscating artistic, intellectual, or literary works solely to the public prosecution and no one else.
The aim of the constitutional legislator in prohibiting custodial sentences for publication and publicity offenses as a general principle was to protect individuals subject to the provisions of the constitution from any tyranny, intimidation, or threat to their personal freedoms that the executive or legislative authority may impose, as a result of expressing their opinions using their constitutional right to use all forms of communication. Therefore, any other constitutional rules within the same constitution that contradict this principle are merely exceptions within narrow limits and should not be expanded.
In addition to this, and to provide further constitutional protection for these freedoms and rights, the constitution imposed a restriction on the principle of criminalization and punishment. It prohibited the legislator from imposing any criminal penalty that infringes on individuals’ personal freedom as a result of exercising their rights to express their opinions or ideas in any of the aforementioned forms. It also prohibited the imposition of prison sentences for offenses committed through publishing or publicity as a general rule.
The constitution exclusively excluded three types of offences: offenses related to incitement to violence, discrimination among citizens, or defamation of individuals.
- Article (65): “Freedom of thought and opinion is guaranteed. All individuals have the right to express their opinion through speech, writing, imagery, or any other means of expression and publication.”
- Article (67): “Freedom of artistic and literary creativity is guaranteed. The state shall undertake to promote arts and literature, sponsor creators, protect their creations and provide the necessary means of encouragement for this end. No lawsuits may be initiated or filed to suspend or confiscate any artistic, literary or intellectual work, or against their creators, except through the public prosecution. No custodial sentences may be imposed for offenses committed due to the public nature of the artistic, literary, or intellectual product. The law shall specify the penalties for crimes related to incitement to violence, discrimination among citizens, or defamation of individuals.”
- Article (70): “Freedom of the press, print, and publication, whether in paper, visual, audio, or electronic formats, is guaranteed. Egyptians- whether natural or legal persons, public or private- have the right to own and publish newspapers and to establish visual, audio and digital media outlets. Newspapers may be issued upon notification as regulated by law. The law shall regulate ownership and establishment procedures for visual and radio broadcast stations in addition to online newspapers.”
- Article (71): “It is prohibited to censor, confiscate, suspend or shut down Egyptian newspapers and media outlets in any way. An exception may be made for limited censorship in times of war or general mobilization. No custodial sentences shall be imposed for crimes committed by publication or publicity. The law shall specify the penalties for crimes related to incitement to violence, discrimination among citizens, or defamation of individuals.”
- Article (92): “Rights and freedoms inherent to a citizen may not be suspended or reduced. No law that regulates the exercise of rights and freedoms may restrict them in such a way that infringes upon their essence and foundation as stated in article no. 227: The Constitution and its preamble texts are a well-knit fabric that is non-divisible. Its provisions constitute one coherent unit.”
The Generality of the Principle Prohibiting Custodial Sentences for Publication or Publicity Offences
The prohibition on imposing custodial sentences for publication and publicity offences came absolute and free from any restrictions. The constitutional legislator based this prohibition on the nature of the crime and the method of committing the criminal act, considering that publication or public expression are the only criteria necessary for any criminal behavior.
Once one of the two criteria is met, the ordinary legislator must ensure that the penalty imposed as a criminal sanction for such behavior is non-custodial, regardless of the perpetrator’s status, role, or profession. This is because constitutional legislators based the prohibition on the method of committing the crime, not on the identity or the status of the offender. The legislator did not require the perpetrator to have a specific status, such as being a journalist, writer, artist, director, producer, publisher, printer, distributor, or others. Thus, the prohibition on imposing custodial sentences applies to all individuals.
The constitutional legislator also did not impose any restrictions on the location of the crime, whether it is committed inside or outside the country. Only three specific types of offenses are exempted from this rule: those related to incitement to violence, discrimination among citizens, or defamation of individuals. The constitution allows the ordinary legislator, in these offenses and no others related to publishing or publicity, to determine the appropriate criminal penalty as a sanction for committing any of them, without being bound by the prohibition of imposing custodial sentences.
Criminal Courts’ Interpretation of the Constitutional Principle
Although the constitution recognized this guarantee nearly ten years ago, its implementation and compliance by the authorities charged with enforcing the provisions of the constitution has not been sufficiently serious. Some criminal courts have resorted to interpreting the constitutional text in a way that violates this guarantee and contradicts the constitutional text itself. This deprives the majority of individuals of the constitutional protection granted to them, which safeguards them from custodial sentences when committing any publishing or publicity related offences.
Below are three criminal court rulings that have resorted to this interpretation, as an example. As a result of this interpretation, the judiciary convicted the defendants in these cases and imposed custodial sentences on each of them for committing offenses through publishing or publicity, in cases other than incitement to violence, discrimination between citizens, or defamation of individuals.
First: Criminal Court
In March 2021, the Cairo criminal court issued a ruling sentencing one of the defendants to prison for committing a publishing offense. The court convicted the defendant and sentenced her to one year in prison for broadcasting “false news and rumors that could incite panic among the public and harm the public interest” through her posts on her page of the social media platform: Facebook.
During the pleading, the defense raised an argument of the unconstitutionality of provision no. 216 of the criminal procedures law, 102 bis of the penal code and 27 of the anti-cyber and information technology crimes law, for violating articles no. 65, 70 and 71 of the constitution. The court rejected this argument, justifying its decision by stating that this argument was intended to prolong the litigation process and delay the resolution of the case. The court provided the following justifications for its ruling:
- This argument is refuted by the fact that the constitution’s provision guaranteeing personal freedom does not prevent the legislator from enacting laws to regulate it. When the exercise of this freedom results in harm to others, it is no longer considered freedom and shall not be guaranteed.
- The conduct criminalized in article no. 102 bis of the penal code falls outside the guaranteed constitutional protection of freedom of expression and opinion, and does not fall under crimes for which the constitution prohibits the imposition of a custodial sentence.
- The prohibition included in article no. 71 of the constitution was intended to protect the freedom of opinion and press and was not intended to justify committing a crime through publication or publicity.
As for arguing the unconstitutionality of article no. 216 of the criminal procedure law, article no. 102 bis of the penal code, and article no. 27 of law no. 175 of 2018 for their violation of articles no. 65, 70, and 71 of the constitution, on the grounds that the constitution guarantees freedom of opinion and expression, as well as freedom of publication for Egyptians, and prohibits imposing custodial sentences for offenses committed through publication or public expression, this is refuted by what is established as in article no. 4 of the constitution, which states that personal freedom is guaranteed. However, this does not prevent the legislator from enacting laws to regulate it in favor of the group/community. For an individual, this freedom, like all other freedoms, cannot exist or extend further than the framework of respecting the freedoms of others. In case using this freedom results in harm to others, it ceases to be a freedom in fact and consequently may not be guaranteed.
Law no. 48 of 1979 establishing the supreme constitutional court law stated in article 29 that: “the court shall undertake judicial oversight over the constitutionality of laws and regulations as follows: A: ….. B: During the hearing of a case before one of the courts or bodies with jurisdiction, if one of the litigants argues that a provision in a law or regulation is unconstitutional, and the court or body deems the argument to be valid, it shall postpone the hearing of the case and set a time limit of three months for the person who raised the argument to file the case before the supreme constitutional court, and if the case is not filed within the time limit, the argument shall be considered as if it had not been made. The meaning of this provision is that the trial court alone is the competent authority to assess the validity of the unconstitutionality defense, and that ordering the suspension of the case before it and setting a date for filing the unconstitutionality lawsuit is permissible and left to its absolute discretion. It is established that the text of article no. 29 of law no. 48 of 1979 on the Supreme Constitutional Court is consistent with the general rule established in article no. 16 of law no. 46 of 1972 on the judicial authority, as amended, which states that the trial court alone is the competent authority to assess the validity or significance of the unconstitutionality defense. Given this, the crime of disseminating false news, which is criminalized in article no. 102 bis of the Penal Code falls outside the protection guaranteed by the constitution for freedom of opinion and expression, and does not fall under those crimes for which article no. 71 of the constitution prohibits the imposition of a custodial sentence on the perpetrator, since this prohibition is intended to protect freedom of opinion and the press and was not intended to justify committing crimes through publication. As for article no. 216 of the criminal procedure law, it does not violate any provision of the constitution, as the constitution does not specify or regulate the jurisdiction of the criminal court over particular types of crimes. It is the legislator who determines the jurisdiction of the courts over cases. Therefore, the legislator’s intervention in providing additional guarantees for certain types of crimes and making them under the jurisdiction of the criminal court does not violate constitutional provisions. The court, within its discretionary authority, finds that the defense’s objection in this regard does not raise any constitutional doubt. The defense’s intention in raising this objection appears to be to prolong the litigation process and delay a ruling in the case, which indicates a lack of validity or significance. As such, the court finds no basis to accept the request to suspend the case in order to file it before the Supreme Constitutional Court, and consequently disregards it.
Second: The Economic Court
In September 2023, the Cairo economic court sentenced a defendant to imprisonment for committing the crime of deliberately disturbing others by misusing means of communication. According to the ruling, the defendant posted an article on his personal Facebook account containing phrases that constituted the crimes of defamation and libel against the victim. The court sentenced the defendant to three months in prison to be enforced with hard labor.
During the hearing, the defendant’s defense raised an argument regarding the unconstitutionality of article no. 76 of the Telecommunication Regulation Law issued by law no. 10 of 2003. The defense argued that the text of article no.76 imposes a custodial sentence for the offense specified in clause 2, in violation of the principle of not imposing custodial sentences for crimes related to publication or publicity, as well as the principle of legality of criminalization and punishment. The defense based this argument on articles 4, 9, 51, 53, 54, 59, 62, 65, 67, 71, 92, 94, 95, and 96 of the constitution.
The court rejected this defence, considering it invalid or insignificant. It deemed it an attempt by the defendant and his defense to take advantage of what is stipulated in article no. 71 of the constitution and the protection guaranteed in it in order to evade the application of the provisions of the indictment articles applicable to the incident, prolong the dispute, and prevent the court from adjudicating the case. The court justified its rejection for the following reasons:
- Article no.71 of the constitution established an important principle concerning the prohibition of censorship on Egyptian newspapers and media outlets, or their confiscation, suspension, or closure, thereby reinforcing the freedom of the press. Consequently, the constitutional legislator prohibited the imposition of custodial sentences for the exercise of these freedoms.
- The text of article 2/76 of the Telecommunication Regulation Law has nothing to do with crimes committed through publication or publicity or that occur due to the publicity of an artistic, literary or intellectual product, for which the constitution prohibits the imposition of a custodial penalty on their perpetrator.
- The constitution specifies conditions and circumstances that do not apply to the defendant, especially article no. 71 of the constitution, which does not include a defendant, whose freedom is guaranteed by other articles of the constitution, such as the guarantee of freedom of opinion and expression.
“Since the defense of the accused argued the unconstitutionality of article no. 76 of law no. 76 of 2003 concerning the regulation of telecommunications, in loose phrases in which the court did not identify where the text violates the Egyptian Constitution, nor did it specify the grounds and specific points of this argument so that the court can validate the defense or not.. This argument or defense, in addition to not being binding on the court due to its lack of relevance to public order, happened to be neither significant nor valid, as it is well-established that Egyptian society is governed by the principle of the rule of law as the foundation for the legitimacy of actions.
It is not decisive in this regard the argument raised by the defense regarding the unconstitutionality of article 2/76 of the telecommunications regulation law no. 10 of 2003, claiming it violates constitutional provisions, including Articles 71 and 67 of the Constitution. The text of article 2/76 of law no. 10 of 2003 concerning telecommunications is unrelated to crimes committed through publication, publicity, or those resulting from the public nature of an artistic, literary, or intellectual product. The Egyptian constitution of 2014, in articles 71 and 67, explicitly prohibits the imposition of imprisonment as a penalty for such acts. These two articles of the constitution establish specific conditions and circumstances that do not apply to the accused, particularly article no.71, which enshrines an important principle concerning the prohibition of censorship of the press and Egyptian media, as well as their confiscation, suspension, or closure. This is a fundamental protection of press freedom, which the constitution guarantees and facilitates in all forms of expression, ensuring its uninterrupted flow. Restrictions on it would amount to an assault on its mission, potentially unraveling its coherence and opening the door to control and domination over it, signaling its decline. Thus, it became essential for the legislator to establish legal rules that protect the press’s freedom – both in terms of its publication and practice. The constitutional legislator followed this by prohibiting the imposition of imprisonment for these freedoms, which does not include an accused protected by other constitutional provisions related to guaranteeing freedom of opinion and expression within the constitutional limits that protect the values of society and the freedoms of other citizens. When the court examined this, it became clear that the accused and his defense sought to exploit the protections provided by those constitutional provisions in order to avoid the application of the relevant legal provisions to the case, thereby prolonging the dispute and preventing the court from ruling on the matter. Therefore, the objection regarding the unconstitutionality of these two provisions, based on alleged violations of the constitution, was found to be groundless and invalid in terms of fact and law. Accordingly, the court may disregard and reject it and is satisfied with stating the reasons for its decision without elaborating in the verdict itself.”
Third: Misdemeanors Court
In January 2024, the misdemeanor court of Nasr City sentenced one of the defendants to one year in prison with hard labor, accusing him of committing the crime of broadcasting false news abroad. The court based its ruling on the public prosecution’s accusation that the defendant had committed this crime by using his personal Facebook account from within Egypt to publish articles that were accessible to all of his followers.
During the hearing, the defendant’s defense raised an argument that the text of articles no. 80d and 102 bis/1 of the penal code are unconstitutional as they violate articles no.70 and 71 of the constitution. Additionally, the defense argued that the referral order to trial was invalid for being abolished by article no. 71 of the constitution and article 29 of law no. 180 of 2018 regulating press and media.
The court rejected this argument and justified it by saying that the accused is not subject to the provisions of the press and media regulation law, and that the account he used to commit the incident on the social networking site “Facebook” is a personal account. The court justified the rejection with the following reasons:
- The state is committed to protecting freedom of thought, creativity, the press, printing and publishing, and guarantees equal opportunities in addressing public opinion without imposed censorship other than the provisions of the laws regulating these freedoms, within a framework that does not constitute incitement to violence, discrimination between citizens, or defamation of individuals. This framework extends to the application of legislation related to the practice of press and media work.
- Article no. 1 of the press and media regulation law stipulates that it is a special legislation, and any special legislation has a scope of application and a category of individuals to which its provisions apply. This law defines the terms ‘journalist’ and ‘media professional,’ specifying that personal electronic accounts are excluded from the application of its provisions.
- None of the descriptions specified in article no. 1 of the law apply to the defendant. Reviewing the evidences, it was proofed that the account used by the defendant to commit the offense is a personal account linked to a phone number and an email address registered in his name.
“As for the second and third defenses: regarding the unconstitutionality of the provisions of articles 80(d) and 102 bis/1 of the penal code for violating articles no.70 and 71 of the Egyptian constitution, and the invalidity of the referral order to trial due to being abolished by article no. 71 of the constitution and article no. 29 of law no. 180 of 2018 concerning the regulation of press and media:
Whereas the court begins its legal response by referring to the articles of Chapter III of the constitution of the Arab Republic of Egypt entitled Public Rights, Freedoms and Duties in its articles from article no.51 to 64, which the Egyptian state has committed to in accordance with the constitutional amendments made to the Egyptian constitution until the 2019 amendment in a manner that guarantees the protection of rights and freedoms in fulfillment of its regional and international obligations and where article no. 65 of the Egyptian constitution states that: Freedom of thought and opinion is guaranteed. Everyone has the right to express his opinion orally, in writing, in pictures, or in other means of expression and publicity..
Since article no. 67 of the Egyptian constitution stipulates that: Freedom of artistic and literary creativity is guaranteed. The state shall undertake to promote arts and literature, sponsor creators, protect their creations and provide the necessary means of encouragement for this end. No lawsuits may be initiated or filed to suspend of confiscate any artistic, literary or intellectual work, or against their creators, except through the public prosecution. No custodial sentences may be imposed for offenses committed due to the public nature of artistic, literary, or intellectual product. The law shall specify the penalties for crimes related to incitement to violence, discrimination among citizens, or defamation of individuals. In such cases, the court may also order the convicted party to pay punitive compensation to the victim, in addition to the original compensation owed for any damage caused, all in accordance with the law…
Since article no. 70 of the Egyptian Constitution stipulates that: Freedom of the press, print, and publication, whether in paper, visual, audio, or electronic formats, is guaranteed. Egyptians- whether natural or legal persons, public or private- have the right to own and publish newspapers and to establish visual, audio and digital media outlets. Newspapers may be issued upon notification as regulated by law. The law shall regulate ownership and establishment procedures for visual and radio broadcast stations in addition to online newspapers…
Since article no. 71 of the Egyptian constitution stipulates that: It is prohibited to censor, confiscate, suspend or shut down Egyptian newspapers and media outlets in any way. Exception may be made for limited censorship in time of war or general mobilization. No custodial sentences shall be imposed for crimes committed by publication or publicity. The law shall specify the penalties for crimes related to incitement to violence, discrimination among citizens, or defamation of individuals…
Since article no. 72 of the Egyptian constitution stipulates that: The State shall ensure the independence of all State-owned press institutions and media outlets, in a manner ensuring their neutrality and presentation of all political and intellectual opinions and trends as well as social interests and also guaranteeing equality and equal opportunities in addressing public opinion…
Based on the foregoing, the Egyptian state, in its new legislative form, is committed to protecting freedom of thought and literary creativity, as well as freedom of the press, printing, and publication—both in print and electronic forms, along with other methods of publication. It guarantees equal opportunities in addressing public opinion without imposed censorship, except for the provisions of the laws that regulate these freedoms and their practice, within a framework that does not incite violence, discrimination among citizens, or defamation of individuals. Such acts are subject to specific legislation, which determines their penalties, and criminal prosecution for these offenses can only be initiated through the public prosecution. This general constitutional framework in protecting the right of opinion, press, media and publication extends to the application of the special legislation applicable to the practice of journalism and media, as evidenced by the defendant’s defense memorandum, namely law no. 180 of 2018 on press and media regulation and the Supreme Council for Media Regulation.
Article 1 of Law No. 180 of 2018 stipulates: ‘The provisions of the accompanying law regarding the regulation of press and media, and the Supreme Council for Media Regulation, shall apply to all entities, institutions, websites, media and press outlets. However, this does not apply to personal websites, media outlets, or personal electronic accounts, unless the accompanying law provides otherwise.
Since every special legislation has a defined scope of application and a category of individuals to whom its provisions apply, and as the provisions of Law No. 180 of 2018 concerning the regulation of press and media and the Supreme Council for Media Regulation include in its article no. 1 definitions for certain words and terms used in its provisions, such as the definition of a journalist, media professional, editor, as well as the terms for ‘newspaper,’ ‘audio-visual media,’ ‘electronic media,’ and so on, and since it is established in the second paragraph of article no. 1 of this law that it exempts personal websites, media outlets, or personal electronic accounts from its application unless the accompanying law provides otherwise, as previously stated, and since the defendant does not fall under any of the descriptions or definitions outlined in article no.1 of the law, and it has been established to the court from reviewing the evidence provided by the public prosecution’s investigations that the account used by the defendant to commit the offense on the social media platform Facebook is a personal account (…) linked to a mobile phone number (…) and an email address registered in the defendant’s name, it follows that the defendant is not subject to the provisions of Law No. 180 of 2018 as outlined above. The court finds that the referral order to trial issued by the public prosecution is consistent with the facts and the law, and there is no defect or invalidity in it. Accordingly, the court rules to reject this defense.”
Misdemeanor court of Nacr City, hearing of January 18, 2024, ruling in case no 1206 of 2023, Nacr City second misdemeanor.
A Comment on this Judicial Interpretation
Although the previous three rulings were each issued by a different criminal court, and the charges in each ruling varied, they all share the consideration of crimes related to publication and publicity.
- The first ruling convicted the defendant of committing the crime stipulated in article no. (102 bis) of the penal code. This article states that:
“Anyone who deliberately broadcasts false news, data, or rumors that could disturb public security, spread panic among people, or harm the public interest shall be punished with imprisonment and a fine of no less than fifty pounds and no more than two hundred pounds. The penalty shall be imprisonment and a fine of no less than one hundred pounds and no more than five hundred pounds if the crime is committed during wartime. The penalties outlined in the first paragraph shall also apply to anyone who possesses, personally or through an intermediary, or holds documents or publications containing any of the matters mentioned in the aforementioned paragraph if they are intended for distribution or to be shown to others, as well as anyone who possesses or holds any means of printing, recording, or broadcasting intended, even temporarily, to print, record, or broadcast any of the mentioned items.”
- The second ruling convicted the defendant of committing the crime stipulated in article no. 76 of the Telecommunications Regulation Law, issued by Law No. 10 of 2003. This article states that:
“Without prejudice to the right to appropriate compensation, anyone shall be punished by imprisonment and a fine of no less than five hundred pounds and no more than twenty thousand pounds, or by one of these two penalties, if they: 1- ….. 2- Intentionally annoy or harass others by misusing telecommunications devices.”
- The third ruling convicted the defendant of committing the crime stipulated in article (102 bis) and article (80d) of the Penal Code. These articles state that:
“Any Egyptian who deliberately broadcasts false news, statements, or rumors abroad regarding the country’s internal situation, which could undermine financial confidence in the state, its prestige, or its reputation, or engages in any activity that could harm national interests, shall be punished by imprisonment for no less than six months and no more than five years, and a fine of no less than 100 pounds and no more than 500 pounds, or by one of these two penalties. The punishment shall be imprisonment if the crime is committed during wartime.”
The three courts agreed to reject the argument that these articles are unconstitutional because they violate the constitutional provisions regarding the principle of prohibiting the imposition of a custodial sentence for publication and publicity offenses stipulated in articles 67 and 71 of the constitution. Each of them decided that this principle does not apply to any of these offenses.
In their interpretation of these constitutional provisions, the courts have agreed that the principle of prohibiting custodial sentences for publication and publicity offenses stipulated in these two articles of the constitution is intended solely to protect freedom of the press and artistic, literary or intellectual productions. Hence, the constitutional protection is limited to certain categories, excluding others.
The courts also unanimously agreed in all three rulings that the defendant in each case does not fall under the constitutional protection that prevents punishment by custodial sentences. This is because the defendant is not a journalist, media professional, or part of any other category benefiting from this protection, and as he is not subject to the special laws regulating the work of these categories, such as the press and media regulation law.
First: The judicial interpretation of the criminal courts conflicts with the provisions of the Constitution
Although these courts agreed in their judicial interpretation of this constitutional protection, this interpretation is subject to criticism. It contradicts the very constitutional provisions on which it was based as it involved limiting a constitutional guarantee that the constitution did not limit nor did the ordinary legislator grant the authority to limit.
The constitutional prohibition on imposing custodial sentences for publication or publicity crimes is absolute and unrestricted. The constitution relied solely on the nature of the crime and the method of committing the criminal act, considering that publication or publicity are the only two criteria that must be present in any criminal behavior. Once one of these criteria is met, the ordinary legislator is required to ensure that the penalty imposed as a criminal sanction for this behavior is non-custodial, regardless of the status, role, or profession of the person committing the act.
The constitution did not require a specific status for the perpetrator such as being a journalist, writer, author, artist, publisher, or any other category. Rather, the prohibition came absolute and applicable to all individuals. It also came unrestricted by the location of the crime, whether committed inside or outside the country. The constitution exempted only three types of crimes from this, namely: crimes related to incitement to violence, discrimination among citizens, or defamation of individuals.
Therefore, in their judicial interpretation of this text, the courts must take into account what the ordinary legislator must take into account so that their interpretations are consistent with the provisions of the constitution, as it is the supreme legislation that must be followed. The interpretation must not infringe on the rights and guarantees stipulated by the constitution, and must not provide justifications for legal texts tainted with suspicion of unconstitutionality that the ordinary legislator should have cancelled or amended in accordance with the provisions and controls of the constitution.
In this context, the supreme constitutional court confirmed that:
“The compatibility of legislation is one of the most characteristic aspects of the ordinary legislator’s discretionary power, unless the constitution imposes specific limits and controls that the legislation must adhere to, otherwise it would be considered unconstitutional. Therefore, it is within the right of the ordinary legislator to independently establish legal rules that they deem to serve the public interest, as long as these rules are in compliance with the constitution and its provisions.”
Second: The conflict between the judicial interpretation of the criminal courts and the judicial interpretation of the Supreme Constitutional Court
The judicial interpretation of the three criminal courts also conflicted with a ruling issued by the constitutional court in July 2024. The constitutional court reviewed a case appealing the constitutionality of article no. 303 of the penal code, which states that:
“Defamation/Libel shall be punishable by a fine of not less than five thousand pounds and not more than fifteen thousand pounds. If the defamation is committed against a public official, a person in a public prosecutorial capacity or a person entrusted with a public service, and is due to the performance of the job, prosecution or public service, the penalty shall be a fine of not less than 10,000 EGP and not more than 20,000 EGP.”
The court upheld the constitutionality of article no. 303 of the penal code, basing its decision on article no.71 of the constitution, which it interpreted differently from the criminal courts. The court ruled that the financial penalty stipulated in article no. 303 aligns with the constitutional prohibition on imposing custodial sentences for publication or publicity crimes, except in the three previously mentioned cases.
The constitutional court justified its ruling with the following statements:
“Since the penalty stipulated in the second paragraph of the appealed article no. 303 meets the constitutional requirement outlined in article no. 71 of the constitution, which prohibits custodial sentences for crimes committed through publication or publicity—except in cases of incitement to violence, discrimination among citizens, or defamation of individuals—it does not violate this constitutional limitation. The legislator has prescribed a fine ranging from ten thousand to twenty thousand pounds, allowing the court to determine the appropriate amount based on the severity and criminal gravity of the act attributed to the defendant. Thus, the legislator has adhered to constitutional principles concerning penalties without overstepping their bounds.”
It is clear from the above that the constitutional court considered that the prohibition of imposing a custodial sentence for publishing or publicity crimes, stipulated in article no. 71, applies to all individuals without any restriction. This contradicts the interpretations of criminal courts that used the same text to justify imposing custodial sentences for the same crimes.
Third: The conflict between the judicial interpretation of criminal courts and the judicial interpretation of the Court of Cassation
The judicial interpretation of the criminal courts also differed from the judicial interpretation of the court of cassation on the same subject. In one of its recent rulings, the court of cassation recognized and upheld a judicial principle regarding the prohibition of imposing a custodial sentence for publication or publicity offenses. This principle came in a ruling in a lawsuit in which the defendant was convicted of committing two offenses, one of which was the dissemination of false news.
The criminal court sentenced the defendant to two years of imprisonment with hard labor and fined him twenty thousand pounds. The defendant appealed this ruling before the court of cassation, which accepted the appeal and abolished the custodial sentences imposed. The court based its judgment on articles no. 67 and 71 of the current constitution, considering them the constitutional foundation for the principle of not imposing custodial sentences for publication or publicity crimes.
The court decided that:
“It is understood from articles no. 67 and 71 of the constitution that the legislator has established a constitutional safeguard to protect freedom of thought and creativity. These articles stipulate a prohibition on imposing any custodial sentence for crimes committed in relation to these freedoms, with exceptions only for crimes involving incitement to violence, discrimination among citizens, or defamation of individuals, which are left to be regulated by law.”
The ruling echoed the content of the constitution without any restriction or exception. The ruling is also one of the main precedents of the court of cassation on the principle of not imposing a custodial sentence for publication or publicity offenses. Although this ruling preceded the three aforementioned criminal rulings, and although criminal courts are supposed to adhere to the principles and interpretations of the court of cassation being the highest court in the ordinary judicial hierarchy, they chose to interpret this constitutional safeguard incorrectly.
Fourth: The judicial interpretation of the criminal courts conflicts with the legislator’s commitment to the principle of not imposing custodial sentences for publication offenses
The judicial interpretation of the criminal courts attempted to overlook the ordinary legislator’s failure to adhere to the constitution by not amending or repealing the penal provisions related to publication or publicity crimes that violate the constitution. It also attempted to justify the application of custodial criminal penalties that contradict constitutional provisions.
Despite this, the interpretation conflicts with the ordinary legislator, who was more committed than the criminal courts to the constitutional safeguard of not imposing custodial sentences for publication or publicity crimes. The legislator introduced limited amendments to the penalties for certain publication or publicity offenses, in addition to considering the nature of penalties in these crimes, which were introduced after the adoption of the 2014 constitution.
After the adoption and enactment of the current constitution, the legislator adhered to this principle in the new publication and publicity crimes it introduced. One of the key examples is the Anti-Terrorism Law issued by the President of the Republic under Law No. 94 of 2015. The law includes certain crimes related to publication and publicity, including article no. 35, which criminalizes the following:
“Publishing, broadcasting, displaying, or promoting false news or information about terrorist acts that occurred within the country, or about operations related to combating terrorism, in a manner that contradicts the official statements issued by the Ministry of Defense.”
The legislator punished those who intentionally commit this crime with a non-custodial penalty, which is a fine ranging from no less than two hundred thousand pounds and no more than five hundred thousand pounds.
The same situation occurs in another offense related to publication or publicity, as stipulated in article no. 36 of the same law as follows:
“It is prohibited to film, photograph, record, broadcast, or display any proceedings of trials in terrorist crimes without the permission of the competent court president. A fine of no less than twenty thousand pounds and no more than one hundred thousand pounds shall be imposed on anyone who violates this prohibition.”
It is evident that the legislator adhered to the principle of not imposing custodial sentences. When an amendment was made to this article later through law no. 149 of 2021, which included a harsher penalty, the legislator once again upheld this constitutional safeguard. In this amendment, the legislator only increased the amount of the financial penalty, raising the fine to no less than one hundred thousand pounds and no more than three hundred thousand pounds.
In an example from the penal code, the legislator introduced article (186 Bis) to be added to chapter fourteen of the second book of the penal code, which pertains to crimes committed through newspapers or other means of publication or publicity. The text of this article criminalizes the act of photographing, recording, broadcasting, publishing, or displaying any part of the proceedings of a criminal trial session, dedicated to hearing a criminal case, without permission from the president of the competent court after consulting the public prosecution.
The legislator punished the perpetrator of this crime with a non-custodial penalty, which is a fine ranging from no less than one hundred thousand pounds to no more than three hundred thousand pounds, even in the case of recidivism as an aggravating circumstance. The legislator adhered to this prohibition and decided to double the fine without imposing any custodial sentence.