Mixed courts of justice in Egypt
The mixed courts of justice in Egypt were courts in Egypt during the British rule and the subsequent period of the Kingdom of Egypt , which primarily served to negotiate civil and commercial disputes between locals and foreigners as well as between foreigners of different nationalities. A planned jurisdiction in the area of criminal law , however, was not realized in practice. The two-level courts were manned by both foreign and local judges . They were based in Alexandria , Cairo and al-Mansura and existed from 1876 to 1949.
history
The mixed courts of justice came into being at a time when Egypt was heavily indebted due to the construction of the Suez Canal and was in fact subject to the government debt administration, which was directed by the British Consul General . The creation of the mixed courts of justice resulted from the privileged position of foreigners in Egypt, which went back to a series of agreements between the Ottoman Empire and various European countries. These trade agreements, also known as the surrender of the Ottoman Empire , resulted in almost complete immunity from the Egyptian judiciary for foreigners. A serious consequence of these contracts, however, was great legal uncertainty in disputes between locals and foreigners, as due to lawsuits and counterclaims, practically every case concerned had to be dealt with in several different legal systems. This caused high costs for those involved and also contradicted the legal principle of Actor sequitur forum rei (“The plaintiff must follow the place of jurisdiction of the defendant”).
From 1867, therefore, at the instigation of the Egyptian Foreign Minister and later Prime Minister Nubar Pascha , negotiations between the Egyptian government and the countries of Germany , Austria , Belgium , Denmark , Spain , the United States , France , Great Britain , Greece , Italy , Norway and the Netherlands took place , Portugal and Russia . In 1875 this led to the signing of the Charter of the Mixed Courts of Justice ( Règlement d'Organisation Judiciaire ), which then began their work on February 1 of the following year. This meant the extensive elimination of the special legal status of foreigners in Egypt in favor of a uniform jurisdiction. The duration of the mixed courts of law was initially set to five years. This agreement was extended for a further five years until, after further negotiations, an unlimited duration was agreed in 1921.
The Jabès case against van Meeteren and Safarowsky, which was tried in the mixed courts of justice between 1933 and 1935, attracted international attention . With the 1937 Treaty of Montreux to abolish the contractually fixed privileges for foreigners in Egypt, it was decided to close the mixed courts on October 24, 1949. The removal of the relevant lettering from the court palace in Cairo and the handing over of the building to the national judiciary became a symbolic event with nationwide attention, as the end of the mixed courts of law was seen as an important step towards achieving full sovereignty of the country.
Jurisdiction
The jurisdiction of the mixed courts in the area of civil and commercial law encompassed all cases on the territory of Egypt in which locals and foreigners or foreigners of different nationalities were involved as parties . Family law and questions of nationality were excluded from this . The planned jurisdiction in the area of criminal law, however, was not implemented, so that so-called consular courts of the respective countries of origin continued to be responsible in this area even after the creation of the mixed courts of law.
Foreign nationals from states that were not party to the Charter also had the right to have their cases heard by the Mixed Courts. The judges also extended their jurisdiction to cases in which they saw only foreign interests involved, even if the parties involved were exclusively Egyptian citizens or companies. In addition, uninvolved foreigners were sometimes used as straw men to hear cases before the mixed courts.
Legal bases
As general sources of law of the mixed courts of law, their charter defines natural law (French Droit naturel ) and so-called equity (French Équité ), i.e. the judgment of a case according to the natural sense of justice . This was especially true for cases that were not or insufficiently covered by written law or in which the existing law was not clearly applicable. In the course of the revision of the Charter in 1937, which took place in preparation for the cessation of the Mixed Courts and, among other things, strengthened the position of the Egyptian judges, these two principles were retained as the main sources of law for such situations. In practice, the formal regulations that were created for the work of the mixed courts were based primarily on an adaptation of the French legal traditions based on Roman law to the circumstances in Egypt.
Corresponding codes of law were created for the areas of civil law , civil procedural law , commercial law , maritime law , criminal law and criminal procedural law . Due to the short time in which they were created, they were streamlined summaries of established European legal norms, which was also reflected in the significantly lower number of articles compared to the corresponding French or Italian laws. For this reason, considerations of natural law and the principle of equity were of greater importance in the decisions of the mixed courts than in other legal systems. Such an emphasis on these two principles as the formal basis of case law and as the sole basis for decision-making in certain cases is considered unique in modern legal history.
Organization and way of working
The first instance of the Mixed Courts formed three as Tribunal Mixte designated courts in Alexandria , Cairo and al-Mansura , the Cour d'Appel Mixte called Appeal was based in Alexandria. The total number of judges in all four courts was originally 32 and later increased to around 70 in the 1930s. Two thirds were foreign lawyers and one third were local judges. They were appointed for life by the Egyptian government on the basis of nominations by the respective foreign powers. Her term of office was limited only by the five-year limitation of the courts of law, which existed until 1921.
While the proportion of foreign judges in the total was contractually determined by the charter, there were no specific regulations regarding the distribution to the individual countries. In practice, however, each of the contracting states was represented by at least one judge in each of the three courts of first instance. The specific occupation and distribution was negotiated by the respective countries through diplomatic channels. In some cases, lawyers from countries that were not party to the Charter were also appointed. French was the sole official language for all negotiations, decisions and other documents . The judges' official costume , however, corresponded to that of their respective countries of origin.
literature
- Jasper Yeates Brinton: The Mixed Courts of Egypt. Yale University Press, New Haven 1968
- Gabriel M. Wilner: The Mixed Courts of Egypt: A Study of The Use of Natural Law and Equity. In: Georgia Journal of International and Comparative Law. 5 (2) / 1975. University of Georgia School of Law, pp. 407-430
- Mark Hoyle: Mixed Courts of Egypt. Graham & Trotman, London 1991, ISBN 1-85-333321-2