Additional Evidence and Impartiality of Courts in Felony Cases

March 31st, 2013

It is commonly agreed that jurisprudentially, judicially and legally, the Public

Prosecutor has the power of investigation as long as a case is in the investigation

stage and subject to his review. During the investigation, the Public Prosecutor

looks into witness testimonies and reviews written evidence. Upon completion of

his investigative procedures, and the announcement of his decision to consider

the individual under investigation a defendant, an indictment decision is issued

against the defendant based on the written and oral evidence supplied.

The Public Prosecutor then submits this decision to the Attorney General. Once

the Public Prosecutor submits the indictment decision to the Attorney General, the

case file falls under the jurisdiction of the Attorney General, unless the Attorney

General returns the case file to the Public Prosecutor for further investigation.

In the event that the Attorney General agrees with the Public Prosecutor's

decision, the Attorney General issues his indictment decision based on the

evidence submitted by the Public Prosecutor. Accordingly, the Public Prosecutor

is then assigned to prepare the Statement of Indictment and to refer it to the

court.

Once the Attorney General assigns the Public Prosecutor to prepare the

Statement of indictment, the Public Prosecutor’s investigative role ceases.

Instead, the Public Prosecutor’s role becomes that of representative of the public

before the court. His role here is to convince the court of the validity of the

allegations made against the defendant, in light of the evidence submitted in the

case file (upon which the Attorney General based his indictment decision). After

referring the case to court, the trial procedures start, and the Attorney General,

as well as the Public Prosecutor, must not conduct any further investigation

(including gathering new evidence or hearing the testimony of new witnesses)

with respect to the case file.

Additional Evidence and Impartiality of Courts in Felony Cases

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Submitting new written evidence during trial actually constitutes a violation of

law, and there is no exemption for this rule. Equally, the Public Prosecutor’s

request to introduce a new witness whose name was not mentioned in the list of

evidence, is a violation of law, in as much as it violates Article (217) of the

Criminal Procedures law mentioned below.

The court is not entitled, whether upon the request of the Public Prosecutor, or at

its own discretion, to accept any additional written evidence not mentioned in

the Prosecutor's list of evidence. Otherwise, such a decision shall constitute a

violation of law.

Furthermore, the court does not have the authority to bring in any individual

whose name was not mentioned as a witness in the Prosecutor's list of evidence

unless in accordance with Article (226) (1) of the Criminal Procedures Law, which

stipulates that such a call can only be made for the purpose of removing

ambiguity and ascertaining the truth. If the aim of introducing a new witness to

testify before the court is merely to prove the allegation, the court here will be

deemed to have lost its impartiality. The Court of Cassation affirmed this in

several judicial precedents, including its decision no. (1846/2009) mentioned

below.

Article (217) of the Criminal Procedures Law states that "the Public

Prosecution shall not… bring in any individual to testify whose name has

not been mentioned in the list of witnesses names submitted to the court, so

long as the Defendant or his attorney were not served with a notice of the

witnesses name who are required to testify".

Article (226) of the Criminal Procedures Law states that "the court shall be

entitled during trial to bring in at its own discretion any person to hear his

testimony if it deems that this testimony will help in removing ambiguity

and ascertaining the truth".

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Based on these two articles the Court of Cassation decided in its decision no.

(1846/2009) the following:

"What is learned from Article (226) (1) of the Criminal Procedures Law and

pursuant to what has been adapted by our court, is that the legislator permitted

the court pursuant to Article (226) (1) of the Criminal Procedures Law, to bring

in, at its own discretion, any individual to hear his testimony as a witness if it

deems that this will help in removing ambiguity and ascertaining the truth.

Ascertaining the truth means removing any ambiguity connected to the

circumstances and facts. Accordingly, the court is not entitled to create evidence

against the Defendant, because the court is an impartial party, and in particular,

when the Public Prosecution did not mention the name of the witness in the Public

Prosecution's list of evidence. … The criminal court is not legally entitled to create

evidence against the Defendant by bringing a new witness whose name is not

mentioned in the list of evidence submitted to the court, and where the Public

Prosecutor did not request to hear such witness pursuant to and in accordance

the provisions Article (217) of the Criminal Procedures Law. Otherwise its verdict

shall be deemed to have violated the law for being based on illegal evidences

and accordingly its verdict shall be due for dismissal".