Anti-Terror Legislation and Property Rights in Egypt
How Counter-Terrorism Regimes Impinge on Property Rights and the Rule of Law
In January 2023, the Egyptian cabinet introduced a new bill for parliamentary discussion proposing the establishment of a new body to manage seized funds and assets confiscated by the state, including the seized assets of individuals and organizations legally designated as terrorists. In the midst of a severe economic crisis, the bill allows the transfer of confiscated funds and assets from the public treasury to a new entity that would have the mandate to take any form of disposition regarding these assets. Although the scope of the new bill is not limited to funds and assets that are seized based on counter-terrorism regulations, the government’s recent proposition presents the latest episode of Egypt’s legal attempts to strip ‘suspected’ terrorists from their properties and exploit them profitably without providing the minimum threshold of procedural protection. The Egyptian case shows that counter-terrorism legislation could impose substantive restrictions on property rights hand-to-hand with extremely fragile procedural protections. Also, it sheds the light on the problematic “preventive” nature of counter-terrorism regulations, which vanishes criminal law safeguards and rule of law standards.
Countering terrorism in Egypt
Political conflicts that followed the 2011 Egyptian Revolution had overwhelmingly shaped the state’s legal practice toward countering terrorism and its related preventive measures. In June 2013, President Morsi and his affiliated group, the Muslim Brotherhood (MB), were overthrown. Since then, the MB has been considered the main enemy of the newly established regime in Egypt, especially after several terrorist attacks had been linked to the Brotherhood. Consequently, significant developments within the arena of countering terrorism legislation have emerged. New legal definitions of terrorism offenses have been approved that could be arguably characterized by vagueness, breadth, and overrepresentation of uncertain and less serious harms. Furthermore, the forfeiture of property and funds of suspected terrorists has been allowed based on an identity-based approach. Remarkably, accusations of terrorism are not only limited to MB members and supporters; rather, hundreds of political activists and civil society organizations were also accused of several terrorist acts. As a result, the state’s interference in private property rights – in form of freezing funds and confiscating assets – has been expanded to unprecedented levels: New legal techniques were implemented and civil forfeiture procedures have been introduced for the first time within the Egyptian legal system.
The terrorist’s lists and the lack of procedural protections
Terrorist Entities Law N.8 of 2015 and Anti-Terrorism Law N.94 of 2015 are the principal frameworks regulating legal counter-terrorism measures in Egypt. Both laws were enacted by presidential decrees in the absence of a sitting parliament. Interestingly, both statutes do not provide an explicit definition for the meaning of “terror” as a distinctive crime, but rather as a method of committing criminal acts. Still, new legal definitions have been introduced; such as “terrorist entities”, “terrorists”, and “terrorist crimes”. The common characteristic between these new definitions was the adoption of ambiguous terminologies, including „disrupting public order“ and „endangering the security of society“, which can be interpreted subjectively.1) Indeed, the adoption of rich language and „catch-all“ terms allows preventive legal measures to be applied against those for whom the law was not intended.
Further, Law N.8 of 2015 created two lists – a list of Terrorist Entities and a list of Terrorists – that are to be prepared by the public prosecution. In keeping with the law, enlisting applications shall be presented by the Attorney General to the concerned court district backed by the documents, investigations, or information supporting the request. Such mere dependency on information and documents is relatively similar to the adopted approach within the UN counter-terrorist sanctions regime. According to the UN Security Council Resolution 1735 (2006), when proposing names to the Sanctions Committee for inclusion on its list, states must provide specific information supporting their claims regarding that individual or entity, in addition to documents that support this information. Similarities also could be found in the fact that both systems do not provide any chance for concerned individuals or entities to be heard by the court (or the sanctions committee) before being included in terrorist lists.
One of the most significant implications of inclusion in any of the terrorist lists is the imposition of severe limitations on the private property rights of concerned individuals or entities. An immediate effect of the enlistment verdict is “freezing money or other assets owned by the terrorist, whether in full or in the form of a share in common property, the proceeds generated thereof, or directly or otherwise controlled by him/her, and the funds or other assets of the persons and entities which operates through him/her”. It must be noted that this massive expansion in the scope of property subject to restriction was not the initial approach when the law was enacted. The 2015 version of the Terrorist Entities Law limited the scope of funds that could be frozen as a result of enlistment verdict to only that “used in the exercise of his terrorist activities”, however, several amendments were brought to the law in 2020. Moreover, the law permits the Attorney General to issue a seizure order concerning funds or assets of individuals or entities who are not even included in the terrorist lists, if any information or serious indicators show a link between these funds and any terrorist activities.
Accordingly, it could be recognized that the Egyptian counter-terrorism regime does not require a substantial connection between frozen funds and terrorist activities. Instead, the fact that certain funds and assets merely belong to the suspected terrorist is a sufficient justification for imposing substantial restrictions on the privilege to use these properties and the power to transfer them. The origins of this approach could be traced to the US Patriot Act of 2001. In the USA, as Hamed Tofangsaz describes, “what makes an asset forfeitable is not its use for the commission of a crime or its illegal origin, but its attachment to the terrorist-labelled identity”. Bearing in mind political conditions shaped the current counter-terrorism regulations in Egypt, it is not surprising that Egypt has favoured the adoption of such an approach which could be considered one of the most arbitrary forfeiture regimes in modern legal systems.
Preventive measures and the rule of law
The assumed preventive purpose behind current limitations on property rights included in Egypt’s Terrorist Entities Law reveals the problematic nature of legal preventive measures, which is deeply lacking conventional criminal law protections and rule of law standards. The law’s explanatory memorandum included that the main objective of the law is the establishment of a “preventive mechanism” (terrorist lists) in order to maintain the security and stability of the country, “without allowing criminals to exploit existing loopholes in criminal laws”. Unlike emergency regimes that allow the suspension or the limitation of several fundamental rights for temporary periods, counter-terrorism regimes have emerged as permanent legal tools within most contemporary legal systems. Therefore, counter-terrorism measures, preventive or not, must adhere to basic principles of constitutionalism and be subject to rule of law standards-based assessment. One simple meaning of constitutionalism „is the restriction of state power in the preservation of public peace“.2) To do so, a set of concepts and principles, including the rule of law, must be integrated into the operative legal arrangements in order to prevent any despotic ambition. Andrew Ashworth and Lucia Zedner suggest that a starting point to curtail the abuse of preventive counter-terrorism provisions is the reassertion of the presumption of innocence. Further, the following restraining principles shall be considered: (a) the necessity principle; (b) the principle of sufficient substantiating evidence; (c) the right to a fair trial.3) These principles seem to be absent in the Egyptian counter-terrorism regime.
Starting with the aforementioned vague definitions of terrorist offenses (including those enacted on a preventive rationale), it’s clear that no compliance with principles such as “maximum certainty of definition and fair labelling”.4) As a result of such a practice, courts are no longer able to adjudicate suspected terrorists on particular wrongdoing, but rather on some broader conduct. Looking into the enlistment provisions and their related procedures, which argued to be seen as a preventive mechanism, shows the same conclusion. The necessity element has never been justified for imposing significant restrictions on all assets and funds belonging to a suspected terrorist, instead of limiting such restrictions on funds connected to terrorist activities. Moreover, the mere dependency on investigations and security information clearly infringes the principle of sufficient substantiating evidence. Also, the right to a fair trial, which includes elements such as the right to know on what grounds the measure is needed, is completely neglected. Terrorist Entities Law only provides the right to appeal enlistment verdicts before the Court of Cassation within 60 days of the date of its publication. In fact, providing such a judicial review process could be considered the only procedural protection mechanism within the entire enlistment system.
Remarkably, between 2015 and 2018, the Court of Cassation abolished several enlistment verdicts. Generally, the lack of objective evidence that makes enlistment verdicts permissible and legitimate was the main reason for these court decisions. The Court had asserted that the mere reliance on general and vague statements cannot allow the court to approve such decisions, rather, an enlistment verdict should include a detailed statement regarding the exact terrorist offenses that have been committed.5)
The terrorist funds law and civil forfeiture model
As a predictable consequence, the Terrorist Funds Law N.22 was enacted in 2018, which introduced civil forfeiture procedures for the first time within the Egyptian legal system in order to regulate the legal procedures for the seizure of funds and assets of terrorists and terrorist organizations. According to this law, criminal courts have no jurisdiction in regard to reviewing requests for the seizure of funds, instead, the Civil Court for Urgent Matters (CCUM) was designated as the competent court. In fact, this is the first time within the Egyptian legal system that seizure and forfeiture orders related to criminal activities are to be placed under the jurisdiction of civil courts. The law also established a judicial committee, appointed by the President of the Republic, which is responsible for undertaking the management and use of terrorist funds. In addition, the Committee is competent to take all relevant proceedings concerning the enforcement of judicial decisions which consider a person or entity to be a terrorist. Such judicial decisions are different from the enlistment verdicts issued under the Terrorist Entities Law N.8 of 2015 since they are not limited to individuals and/or entities whose being listed on terrorist lists. Instead, they extend to any individual or entity that the committee (established by this law) considered being a member of one of the terrorist organizations designated by a judicial decision.
To illustrate this point, in 2014, the CCUM has recognized the Muslim Brotherhood (MB) as a terrorist organization. Consequently, the judicial committee, established by the 2018 Terrorist Funds Law, has the competence to request the seizure of funds and assets of any of the MB members. Meanwhile, the committee has wide discretion regarding the materials which can rely on supporting its seizure requests. Documents, information, and security investigations could constitute a sufficient basis for considering an individual as a member of the MB, thus, allowing the forfeiture of his/her properties.
As stated in the law, the judicial committee shall submit a request to a judge pro tempore asking for the seizure of assets. Although the Supreme Constitutional Court (SCC) confirmed that “seizure procedures cannot be imposed based on an order, in the absence of the opponents, rather, through normal public judicial procedures, with all other legal guarantees”6), judges issue temporary injunctions approving the seizure request always in absentia. More importantly, once a ruling becomes final, the committee can ask the court for permission to transfer the confiscated assets to the public treasury. From a formalist point of view, these arrangements might be seen as compatible with the constitutional provision (Art.40) which states that “private confiscation is prohibited except based on a court judgment”, while substantively, the application of the 2018 law presents grave risks in regard to fair trial procedures and allows an arbitrary deprivation of property rights.
Counter-terrorism regulations in Egypt have evolved and been applied to allow the deprivation or limitation of property rights in an identity-based approach rather than a wrongdoing-based assessment. The expansion of the scope of properties subject to limitations, the tendency to avoid procedural protection provided by criminal proceedings, and the absence of required substantive evidence for imposing restrictions are common features of legislative amendments and newly enacted laws. Furthermore, elements of a fair trial were clearly neglected, and the role of courts was deliberately reduced in favour of a judicial committee appointed by the executive power. Indeed, Egypt is a very informative case study to show several structural problems which could be identified within contemporary counter-terrorism regimes and its correlation with what has been claimed to be the rise of “the preventive state” or “the preventive turn” of criminal law, which needs to be discussed in more detail.
|↑1||See: Fatemeh Alzubairi Colonialism, Neo-Colonialism, and Anti-Terrorism Law in the Arab World, Cambridge University Press, (2019), P.145-147.|
|↑2||András Sajó, Limiting Government: An Introduction to Constitutionalism, Central European University Press (1999), P.9.|
|↑3||Andrew Ashworth and Lucia Zedner, Preventive Justice, Oxford University Press (2015), P195.|
|↑5||Case N.3 of 2016 (terrorist entities), Court of Cassation, April 9, 2017.|
|↑6||Case No.26 of the judicial year 12. On 5/10/1996.|
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