Overview
In Egypt, the Prosecutor General and the Public Prosecution Office he heads are an independent arm of the judicial branch of government, not subject to executive branch authority or control. (Article 189 of the 2014 constitution states, “The public prosecution is an integral part of the judiciary.”)
The Public Prosecution Office is headed by the Prosecutor General, who is a senior judge, selected by the Supreme Judicial Council from among the senior judiciary (including senior officials of the Public Prosecution Office). Prior to the 2011 revolution, the President of the Republic had the authority to select the Prosecutor General, but that authority to select was eliminated by both the 2012 and 2014 constitutions. Now, the President of the Republic has only the authority to appoint, as an essentially ministerial act.
Prior to the 2011 revolution, even though the President of the Republic had the power both select and appoint the Prosecutor General, the President lacked the authority to remove him from office, as President Morsi discovered when he unsuccessfully attempted to remove Mubarak-appointee Abdel-Mageed Mahmoud from office. (The details of that rather long story will not be delved into here.) Once appointed, the Prosecutor General served until he either stepped down or reached mandatory judicial retirement age. One of the reforms introduced by the 2012 constitution (Article 173) and preserved in the 2014 constitution (Article 189) is that the Prosecutor now serves a term of only four years, or until he reaches mandatory retirement age, and may not serve as Prosecutor General more than once during his judicial career.
The Public Prosecution Office is modeled on the French Parquet. (In French, “parquet” literally means wooden floor. In its legal sense, the word is used to distinguish between those judicial officers who stand on the floor of the court—the public prosecutors—and the “sitting” judges who preside in the courtroom.) As in France, the prosecution function can also be filled by investigative judges (in France, called investigative magistrates), the main difference between a public prosecutor and an investigative judge being that the former serve under the supervision and control of the Prosecutor General, while the latter do not. In Egypt, however, unlike France, there are no standing investigative judges; they serve only by special appointment on an as-needed, case-by-case basis.
Public prosecutors act as both investigators and courtroom prosecutors. In Egypt, public prosecutors distinguish between an initial inquiry conducted by police agencies, which they consider to produce only intelligence information (the functional equivalent of leads), and an “investigation” conducted by one or more public prosecutors, the written report of which is admissible in court as substantive evidence without the need for any supporting live testimony.
The role of the public prosecutor is to conduct a neutral, unbiased investigation into the truth. Criminal investigations are generally initiated based on complaints filed by citizens or government officials, but may also be initiated by the Public Prosecution Office itself based on information such as news reports.
It is considered mandatory to investigate criminal complaints, which means that no inference as to the merits of a complaint can reasonably be drawn from the mere opening of an investigation. It is common for complainants to file a complaint, then announce to news media that the Prosecutor General is conducting an investigation into the matter, creating the misimpression in the minds of those who do not understand the non-discretionary nature of opening an investigation that the Prosecutor General sees potential merit to the allegations made in the complaint. All complaints are considered deserving of at least preliminary investigation, even those that are facially frivolous or fanciful.
In conducting investigations, public prosecutors acting in their capacity as judicial officers receive the sworn testimony of witnesses, which is reduced to a written statement and signed by both the witness and the prosecutor, much like a deposition or affidavit. Such a sworn statement constitutes substantive evidence without the need to call the witness to testify at trial.
If the public prosecution finds that the evidence justifies a trial, charges are filed with the trial court in the form of a referral, which consists of a statement of the charges and a summary of the evidence supporting each charge as to each defendant. The referral and public prosecution file constitute substantive trial evidence without the need to call live witnesses.
To those from a common law system background, in some ways an investigation by the Public Prosecution Office resembles a trial, conducted informally in the prosecutor’s office, with the formal “trial” of felony cases before a panel of three Court of Appeals judges resembling a de novo (from the beginning) appeal of the public prosecutions findings.