History of Criminal Accusation
In the preceding Chapter we explained how the Islamic Law requires from all the Believers to combat crime and how the positive laws had given the public the right to fight crime, but not as a religious responsibility. All that these laws had done was granting the people, and only in certain cases, the right to take part in indictment. This right is not always being exercised, with the result that the power of accusation becomes weak and crimes are provided with a chance to increase.
Following is a review of some of the old and modern laws from which it will be seen that in general, the duty of combating crime is of the state alone. Whenever these laws allow the people a sort of participation, the participation is considered a right, and not a religious duty.
1 - In Ancient Laws
The history of criminal accusation in all the countries since the dawn of history is untraceable but still one can make a study of this history in the civilized countries, the ancient and the modern.
Accusation in the Ancient Egyptian Law Ancient
Egyptians knew the criminal accusation, both the common and the private, in all its stages whether in announcing the offence, in litigation, or in the process of bringing evidence after which proceeding the offender was either punished or pardoned.
As regards the first stage of common accusation, that is the stage of indictment, the ancient Egyptian had a public prosecutor who was to make the accusation on behalf of the general authority. During this reign of the Twelveth Dynasty, the king had a vicegerent, and this man was called "nem", i.e., the king's mouth or tongue. It was he who represented the king and made the accusation in criminal cases in the king's name and on his behalf. In litigation, he was usually referred to as the great prince, the vice regent. It was he who would ask for punishing the offenders, collect evidences and specify the articles of law which were to be applied in the presence of the offenders. It was also he who would lead the investigation. [Interpretation of Criminal Investigation, by Hassan Nashat, p.19, 1921 Edition; and the Criminal Encyclopaedia, by Guindi Abdel Malik, p.486, Vol.5.] Engravings on some monuments made during the reign of the Third Dynasty indicated that accusation was levelled by a person called Unah who was close to the king. Talking about himself, this man said "His Majesty the king has chosen me to be the plaintiff in the suit brought against his wife, the first queen Ani. His Majesty has secretly summoned me to hear her defence in camera ; no prince, chief, senior official or judge was present. I have been selected for this job because he trusted me. It was I who made all the inquires alone." [Interpretation of Criminal Investigation, by Hassan Nashat, p.17 Para 21, 1921 Edition;] As regards individual accusation, the ancient Egyptian law had entitled the individuals to make formal complaints and inform of offences committed either against themselves, against others, or against the State. In one of the inscriptions, it was stated that a certain worker had accused two of his co-mates of disintering the tomb of the Queen Isis. Herodotus had also mentioned similar stories. Like the individuals, the government officials, the common authority, also entitled to inform of offences and even to make personal investigation in any offence they would come to know of [Interpretation of Criminal Investigation, by Hassan Nashat, p.17-18, 1921 Edition;].
Announcement of offences by individuals was not only an entitlement, but a responsibility. Violation of that duty entailed a punishment of deprivation of food. [Interpretation of Criminal Investigation, by Hassan Nashat, p.23, 1921 Edition; and the Criminal Encyclopaedia, by Guindi Abdel Malik, p.188, Vol 5]
As for the victim's right to pardon, a number of historians who took interest in the history of ancient Egyptian jurisprudence stated that the ancient Egyptian laws were devoid of any clause for crime abatement. Except in very rare cases. [An essay on Criminal Jurisprudence in pharaonio Egypt pre pared by Rauf Ebeid in French. The study was presented to the Criminal Law Department of the Institute of Criminology, Paris University.] this right was only that of the gods and the kings. No significant change in the system of indictment was undergone in the days which followed the fall of the Pharaonic Modern Dynasty. The same situation re- mained unchanged during the days of the Ptolemies, who represented the Greeks in Egypt, from 332 to 33 B.C., and also from the post-Ptolemic period, during the reign of the Romans from 33 B.C. to the Islamic Conquest in the seventh century A.D.
Accusation in Ancient Western Laws in Greece
The Athenian law made distinction between two kinds of crime, the common crime and the private crime. This differentiation was based on the damage made. If it was the public interest which was affected, the crime was public, and if it was done only to an individual, the crime was plivate.
In public crimes, any individual was entitled to inform of any offence in his capacity as a member of the community. In the court, he would make the indictment. But if the crime was private, the announcement of the crime was the right of the victim alone or of those who could do the same on his behalf such as his parents or the ward and the master if the victim was a slave. ["Traite de l'Instruction Criminelle," Faustin by Helie.]
In private crimes, the victims, or their representatives, were allowed to nonsuit and to settle it by reconciliation. After reconciliation, the judge had to discontinue the proceedings and the offence itself would become out of place: It was obvious that reconciliation in cases of murder would not be consumated except by the collective agreement of the parents of the murdered. If both of them would not agree to the reconciliation, and the reconciliation would be accepted by only one of them, the dissenting party, could go ahead in litigation.
In public crimes, on the other hand, the common authority would carry out law proceedings. Individuals were also permitted to continue ligitation.
In Athens, there was another system whereby the common authority had the right to interfere in private crimes. In certain private crimes, when victims themselves were exposed to direct danger, the Athenian law granted the magistrates to take the case to the Senate or the People's Assembly. These institutions would then appoint someone to make the indictment before an assembly of judges who were selected by the same institution. This process was similar to that of the Muhtasib" [Preventive and reformative punishments are not alien to Islam. "Muhtasibes" were appointed for the prevention of offences in public places and in small matters they them selves could try the cases Translator.] who had to discharge certain duties according to Islamic jurisprudence.
Indictment in the Roman Law passed through three stages. The first started from the emergence of Rome until the beginning of the seventh century B.C. Most significant during this period was the issuance of a set of laws which accorded the right of indictment to a public assembly composed of one hundred citizens, at the top of whom was a judge or a ruler. This assembly had the right to make the indictment and purse the legal procedures. Anyone who wanted to make a criminal indictment had to approach this assembly. Even when the Senate wanted to do so, it had to summon a meeting of the People's Assembly to study the indictment. This proves that during this period, individual indictment was not practised. In the second phase, which started from the seventh century B.C. until the rise of the Roman Empire, the right of indictment on public offences was granted to every citizen. This right could be exercised at various courts. But in private offences, only the victim or his representative were accorded this right, but under the legal restrictions which were imposed at that time.
During the third stage, which started with the reign of Emperor Augustus and ended with Justinian, a new tendency appeared which tried to restrict individuals' rights to indictment on anti-common interest offences. The right was left to the individuals only when they had special interest in the indictment. The concept of the public interest ,and, later, the concept of public indictment were not made known except in that period. The concept of public indictment was inspired by a notion which loomed at that time and which established the conviction that if litigation for public interests was left to individuals, most of the crimes committed against the state would remain unpunished. For this reason, the Emperors gave the rulers of the Provinces the right of making indictment on anti-State security offences. The ruler was to investigate these cases and refer them to the court without waiting for any information from individuals.
It must be understood that public indictment, as referred to here, does not mean indictment on public of fences. Likewise, private indictment does not mean indictment in private offences.
2 - In Modern Laws
In The English Law
Like any other ancient or modern law, the English law gives the right to inform of crimes to any individual whether the informer himself was the victim or alien to the crime.
At criminal courts, any Englishman can make indictment on a special action. By such action anyone can litigate any other one who has committed an incriminatory offence and petition for his punishment. This right was stipulated by the Common Law, which was identical to the Equity Law. But when the Criminal Procedures Law was issued in 1879, and this was a written code, it reaffirmed the same principle, but with certain restrictions on its application. The law stipulated that every individual had the right to make criminal indictment on any offence and that he was allowed to continue the stipulated procedures unless it was otherwise postulated. Only in two cases would criminal indictment be made by the State. The first concerned the major crimes, such as wilful homicide, forgery of official documents, espionage, State security, and religious offences especially polygamy. The second case concerned bankruptcy crimes. But even in these two cases any individual was allowed to make criminal indictment, but after permission obtained from a court. Usually the court would give permission, particularly if the case was serious. When permission was sought from the court, it was the court itself that would prepare the bill of indictment. The practice was that with this right, any individual could directly send a case to the Crown. The Crown would first investigate the case and when it was convinced of it, the court would bring it up against the offender. Otherwise, the petition would be rejected. Similarly, anyone could bring a case to a peace officer for investigation and if the peace officer found no justification in referring the case to the grand jury, the plaintiff was allowed to refer the case to the jury direct. Only in cases when the plaintiff would think that the grand jury were not competent to investigate the case minutely was he allowed to refer it to the Crown direct [This was one of the first instance supreme courts was presided over by a chief justice.].
Individuals in England had also the right to arrest anyone if they had good reasons to suspect that such a man had committed an offence. Likewise, all individuals had the right to arrest anyone who was transgressively caught red-handed. [The Legal System in England, by Ahmed Safwat 249. (1923) p.]
On the other hand, the English Law has provided guarantees against abusive actions and false allegations made by certain people against others. Besides, the English Law has entitled any individual to inform of any offence, whether he might be the victim or alien to the offence.
As regards abandonment of action, it was an established rule that one's right in making indictment could not be relinquished. Any agreement concluded between the victim and the plaintiff on abandonment of accusation was considered by some jurists an offence.
If the victim had no right to abandon action, it was more proper to deny the same right to anyone who would volunteer to file a case. Only in one case did the English courts make exception to this rule, and that was in case the offence had greatly affected the interests of the victim, provided the common interest was not so affected. In such a case, the English judiciary would allow the victim to abandon action.
Indictment by the State
Despite the fact that the English Law has entitled anyone, be he a victim or an alien to the offence to make indictment, the individual's right to file a criminal case was only a license. This right had not been practically exercised, because, according to the English Law, the right of indictment was left to some other institutions, which had their own authority and independence. One of these institutions was the attorney-general, who would make the indictment on behalf of the Crown and represent it in courts. Among these institutions were also the Police who were to keep law and order. The attorney-general would make the indictment only in cases where the interests of the Crown were flagrantly affected by major offences which were laid down by laws or by usage, such as murder, embezzlement of the States' funds, and anti-State security offences, whether from within or from without, such as crimes of high treason and polygamy.
Right of Attorney-General to Abandon Process
As it was ruled that an individual could not abandon an action after its procedural arrangement had been made, it was also the rule that the attorney-general was the only person who had absolute right to dismiss any criminal case. Such an action should be taken in the court, and his demand should be accepted by the court without any argument except as regards the form. If his application was in form, litigation had to stop.
In the German Law
According to the German law for criminal procedures of 1877, which was amended in 1924 [This extract from the German legislation was deliberately mentioned to by-pass the consecutive legislations which were enacted after the partition of Germany into East and West Germany.] public prospecuttion was the responsibility of only the public prosecutor unless it was otherwise indicted by law, when permission was sought from a victim or anyone else.
In Germany, public prosecution had the right to file or to dismiss a case.
The German Law for criminal procedure stipulated that if the public prosecution has in its possession sufficient evidences for conviction, a case is either to be filed against the accused or referred to an examining magistrate. Otherwise, the public prosecution would stop the suit.
Though the public prosecution has the right to make indictment or to stop a suit before referring the case to a court, it cannot abstain from taking any of these courses. According to the law of criminal procedure, a victim has the right to ask the Criminal court to attack the prosecution's decision to nonsuit and to ask the criminal court to re-investigate the case and to force the public prosecution to go on the criminal process [Clause 168 of the German Law for criminal procedures of 1877]
On the other hand, the German Law defined particular crimes in which the public prosecution cannot make indictment except by permission from the victim [Clause 414 of the German Law for criminal procedures of 1877]
In calumination and libel offences and crimes of injury, the victim can independently prosecute by direct indictment, without seeking help from the public prosecution .[Clause 414 of the German Law for criminal procedures of 1877]
Since the victim is entitled to make his own prosecution, he is also authorised to drop the case by not attending the hearing of the case of the court. [Clause 431 of the German Law for criminal procedures of 1877]
In order to synchronise the individual's right to file a public case of a private offence with the State's responsibility for preserving order, the German law authorised the public prosecution to make prosecution in two cases. The first when a private case is referred to a court of first instance, and this is done only when the public interest is involved, and the second, when it practises its right in interferring in private cases as an interferring party. [Clause 417 of the German Law for criminal procedures of 1877]
In the Present Egyptian Law
The Right of Informing of an Offence
According to the Egyptian Law of Criminal Procedure, the right to inform of an offence is not restricted to only the victim, but it can also be exercised by any individual who has witnessed the crime or knew something about it. Not only that; informing of an offence is a duty which is to be discharged by anyone who has witnessed the crime or directly heard of it. Clause 25 of the Law of Criminal Procedure stipulates that "whoever comes to know of a crime for which public prosecution would file a case without a complaint or a petition has to inform the public prosecution or a public judicial officer of the offence."
Clause 26 of the same law also stipulates that "every Government servant or officer on public duty who comes to know, while he is discharging his official duty, or as a result of discharging this duty, of an offence for which public prosecution would file a case without complaint or petition, has to inform the public prosecution or the nearest public judicial officer at once."
Filing of Criminal Care Through Public Authorities
As it is originally an indictment authority, the public prosecution's duty is to file criminal cases. In this jurisdiction, this right is also shared, by law, by other quarters. But the moment the case is filed, it has to be tended only by the public prosecution because, being the representative of the community it is the sole adversary to the accused in a criminal lawsuit, even if the case primarily and previously filed by some other quarter. Criminal courts and the Courts of Assizes have the right to continue hearing any Criminal case : but this right is an exception. Clause II of the Law of Criminal Procedure postulates that if the criminal court, when investigating a case, thinks that there are accused other than those involved in the case, or that there are other charges besides those already levelled against them, or that another crime or misdemeanor has bearing on the case tinder investigation, the criminal court is authorised to take legal action against the offenders or about the offences, referring them to the public prosecution for investigation and disposal in accordance with Part 4, of Vol. I of this Law. The court has also the right to mandate one of its members to investigate the case, and in such a case, the delegated member will enjoy all the powers of an examining magistrate. If a decision is taken at the end of investigation that the case is to be brought before a court, the case must be referred to another court. In this case, the court has the right only to put the case under investigation, either by referring it to another court or by commission; it has no right whatever to investigate the same case or pass a verdict on it.
If at the end of investigation a decision was taken referring the case to the same criminal court, the case must be referred to a chambre other than the one that Had investigated the case. The members of this chambre must not comprise anyone from among those who had taken the decision of reference. A judge can never become an adversary and an adjudicator at the same time. Clause 12 of the Criminal Procedure Law postulates that "when the criminal chambre of the Court of Assizes investigates a case after a verdict was attacked for the second time, the Court has the right to file a case in accordance with the preceding clause. If the verdict on the second case is also attacked, the case should not be re-investigated by anyone of the justices who had filed it before."
Clause 13 of the same Law stipulates that "if during a hearing of a case by the criminal court or the Court of Assizes the court's orders are disobeyed, or contempt to it is expressed, or attempts are made to influence the judges or the witnesses, the bench has the right to file a criminal lawsuit against the accused in accordance with Clause II".
Clause 243 of the Criminal Procedures Law stipulates that "the administration and preservation of order in a court are the duty of its chief justice. To do so, he has the right to order anyone who tries to disturb order out of the room. If such a man disobeys the order and continues disturbing order, the Court has the right to imprison him for 24 hours from immediate effect, or to give him one pound fine. The court's verdict in this case is not evokable. If disorder is made by anyone who is performing a duty in the court, like any other chief of any other government department, can take against him, during the court's session, disciplinary action. The court can cancel such a verdict before its sitting comes to an end." Clause 244 of the same law says that "if a misdemeanor or a contravention is made during the sitting of a court, the court can immediately file a case against the offender and its verdict can be passed after hearing the public prosecution and the defense council. Filing such a case is not made following a complaint or a petition, if the offence was one of those mentioned in Clauses 3, 8 and 9 of this Law. But if a crime is committed, the chief justice of the same court refers the accused to an examining magistrate without excluding Clause 13 of this Law. In all cases, however, the chief justice has to prepare a proces-verbal and if he finds it necessary, he can order the accused to be arrested".
As regards civil cases, Clause 104 of Code of procedure provides that the preservation or order and administration of the court hearing are the responsibility of the chief justice of the court. And in observance of the articles of the Legal Profession Law, the chief justice can order out of the room whoever breaks the order. If the offender disobeys the order and continues to do so the court can immediately sentence him to 24 hours imprisonment or impose on him one pound fine. The court's decision in such a case is final. If disorder was made by one who was on duty in the court, the court, like any chief of any government department, can take during the sitting of the court a disciplinary action against the offender. But before the hearing ends, the court can supercede its verdict.
Clause 106 of the same Law says that "in observance of the Law of Legal Profession, the chief justice of the court has to order a report to be made on any offence which may take place during the sitting of the court and on the procedure he would follow in investigating the offence. Then, he has to refer the case to the public prosecution for necessary action. If the offence is a misdemeanor or a contravention, he, if he finds it necessary, may order the offender to be arrested".