As a general rule, criminal law is territorially connected to the State, but the Egyptian legislature has extended its application in certain cases to offenses committed outside the country. One of the most important of these cases concerns offenses committed abroad by Egyptian nationals, a principle known in criminal-law doctrine as the active personality principle of criminal jurisdiction.
Dual nationality does not, in itself, alter this rule. As long as Egyptian nationality remains vested in the person, that person is treated by the Egyptian authorities as an Egyptian national, subject to the conditions prescribed by law for the exercise of criminal jurisdiction over an offense committed abroad.
First: The General Rule Is the Territoriality of the Penal Code
Article 1 of Penal Code No. 58 of 1937 provides that its provisions apply to every person who commits in Egypt an offense provided for therein.
This is the general rule: the place where the offense is committed is the primary basis for determining the applicable criminal law.
However, the legislature did not stop at territorial boundaries. Articles 2 and 3 establish cases in which Egyptian law extends to acts committed outside the country.
Second: Article 3 and the Liability of an Egyptian for an Offense Committed Abroad
Article 3 of the Penal Code provides that:
“Every Egyptian who, while outside the country, commits an act deemed a felony or misdemeanor under this Law shall be punished in accordance with its provisions if he returns to the country and the act is punishable under the law of the country in which it was committed.”
This provision means that an Egyptian citizen may be subject to Egyptian criminal law for an offense committed entirely in another country, but not without limitation.
Third: Conditions for Applying Article 3
Several cumulative conditions must be satisfied for this rule to apply:
- The offender must have been Egyptian at the time the offense was committed: nationality at the time of the criminal conduct is decisive. If the person was Egyptian when the offense was committed, subsequently acquiring another nationality or a later change in nationality status does not, by itself, extinguish the jurisdiction that arose at the time of the act.
- The act must constitute a felony or misdemeanor under Egyptian law: Article 3 does not concern merely an unlawful act, but an act that constitutes a felony or misdemeanor under the Egyptian Penal Code or the applicable criminal legislation.
- The act must also be punishable in the State where it occurred: this is known as the dual criminality requirement. It is not sufficient for the act to constitute an offense in Egypt; it must also be punishable under the law of the State in which it was committed.
- The offender must return to Egypt: the provision links punishment of an Egyptian for an offense committed abroad to the person’s return to the country.
Accordingly, the mere fact that a person is Egyptian does not make every act committed abroad subject to Egyptian criminal law. These conditions must be examined in each case individually.
Fourth: Does Dual Nationality Change This Rule?
Dual nationality does not confer immunity from application of the Egyptian Penal Code.
If a person holds Egyptian nationality alongside a foreign nationality, and Egyptian nationality remained in force at the time the offense was committed, the person falls, in principle, within the expression “every Egyptian” used in Article 3.
A person cannot exclude his Egyptian nationality before the Egyptian courts merely because he holds a foreign passport or because the offense was committed in the State of his second nationality.
Nationality Law No. 26 of 1975 reinforces this concept from another perspective. Article 10 provides that an Egyptian who naturalizes in a foreign nationality without obtaining the prescribed permission remains regarded as Egyptian in all respects and in all circumstances unless a decision is issued depriving him of Egyptian nationality in accordance with the Law.
If permission to naturalize is issued while retaining Egyptian nationality, the person lawfully becomes a dual national, and the person’s status as Egyptian remains effective for purposes of Egyptian law.
Fifth: Nationality at the Time of the Offense Is Decisive
This is an important practical point.
If a person was Egyptian when the offense was committed abroad and subsequently lost Egyptian nationality, the later change in nationality does not necessarily extinguish the legal effects arising from the person’s status at the time the offense was committed.
Conversely, if the person was a foreign national when the act was committed and later acquired Egyptian nationality, that subsequent acquisition alone is insufficient to apply Article 3 to the earlier act, without prejudice to the possibility that Egyptian law may apply on another legally recognized jurisdictional basis.
Sixth: Dual Criminality Is Not a Formal Requirement
One of the most important elements of Article 3 is that the act must be punishable in the State where it occurred.
The Court of Cassation has confirmed that this requirement must actually be verified where it is disputed, and it is not sufficient to assume that conduct constituting an offense in Egypt must necessarily constitute an offense in the foreign State.
The Court of Cassation has considered cases involving offenses committed abroad and held that, when applying Article 3, the Egyptian court must verify that the act forming the subject of the charge is punishable under the law of the State in which it occurred.
This issue may be decisive in offenses regulated differently from one country to another, such as certain economic offenses, financial transactions, corporate offenses, and certain forms of misuse of data or conduct associated with digital activities.
Seventh: The Offense Need Not Have the Same Name or Penalty in Both Countries
The concept of dual criminality does not necessarily require the foreign State to use the same name for the offense as Egyptian law, or to prescribe the same penalty.
What matters is that the material conduct forming the subject of the charge is punishable under both legal systems, according to the legal characterization adopted by each.
Accordingly, the act may constitute a felony in Egypt and a misdemeanor in the foreign State, or vice versa, without the difference in classification alone excluding the application of Article 3.
Eighth: Article 2 Differs from Article 3
One common error is to place all offenses committed abroad under Article 3.
Article 2 of the Penal Code establishes broader jurisdiction in specified cases, including:
- A person who commits abroad an act making him a principal or accomplice in an offense committed wholly or partly within Egypt.
- Certain felonies affecting State security provided for in Chapters One and Two of Book Two of the Penal Code.
- Certain forgery felonies provided for in Article 206.
- Felonies involving counterfeiting, imitation, or forgery of currency, and cases involving its importation, exportation, circulation, or possession under the conditions prescribed by law.
In these cases, jurisdiction is not based merely on the offender’s nationality, but on protection of the fundamental interests of the Egyptian State or the connection of part of the offense with Egyptian territory.
Ninth: An Offense Partly Committed in Egypt
This rule has become increasingly important with modern offenses whose elements may be distributed across more than one country.
A fraud scheme may begin outside Egypt while the victim receives messages or transfers funds within Egypt, or an electronic instruction may be issued from a foreign State and produce its criminal effect inside the country.
If part of the offense occurs in Egypt, Egyptian jurisdiction may arise under Article 2 without the need to rely solely on Article 3 and the nationality of the offender.
Accordingly, the location of every element of the offense must be determined, rather than merely the place where the accused was physically located when carrying out the conduct.
Tenth: Special Criminal Laws May Contain Broader Rules
The issue is not always limited to Articles 1 through 4 of the Penal Code.
Certain special criminal laws contain independent rules governing offenses committed outside Egypt, particularly offenses of a cross-border nature.
One example is Anti-Cyber and Information Technology Crimes Law No. 175 of 2018, which in certain cases extends its scope to cybercrimes committed outside the Republic where one of the forms of connection specified by the Law exists with Egypt, Egyptian nationals, or Egyptian interests.
Accordingly, determining jurisdiction over an offense committed abroad first requires identifying the nature of the offense, then reviewing both the Penal Code and any special law governing it.
Eleventh: Who May Initiate Proceedings for an Offense Committed Abroad?
Article 4 of the Penal Code provides that:
“Criminal proceedings against the perpetrator of an offense or act committed abroad may only be instituted by the Public Prosecution.”
Accordingly, the initiation of criminal proceedings in such cases falls within the authority of the Public Prosecution.
The mere existence of a complaint, case, or investigation in a foreign State does not automatically give rise to Egyptian proceedings. Jurisdiction and the legal conditions applicable to each case must first be examined.
Twelfth: What If the Person Has Already Been Tried Abroad?
Article 4 also addresses a highly important issue concerning the prevention of repeated prosecution in certain cases.
Proceedings may not be instituted in Egypt against a person who proves:
- that the foreign courts finally acquitted him of the charge, or
- that they finally convicted him and he served the sentence.
This rule is based on recognition of the legal effect of certain foreign judgments and prevention of repeated punishment for the same conduct under the conditions established by law.
Thirteenth: Not Every Foreign Proceeding Bars Trial in Egypt
A distinction must be made between a final judicial judgment and other proceedings.
The mere opening of an investigation abroad, summoning the person, bringing charges, or closing an investigation by an investigative authority under a particular legal system does not necessarily amount to a final foreign judicial acquittal.
Likewise, in cases of conviction, Article 4 refers to a final judgment together with completion of the sentence.
Accordingly, any previous criminal file in the foreign State must be analyzed in terms of its nature, the authority that issued the relevant decision, whether it is final, and whether any sentence was served before concluding that it bars prosecution before the Egyptian courts.
Fourteenth: What If the Person Also Holds the Nationality of the State Where the Offense Was Committed?
A person may, for example, be both Egyptian and French and commit an offense in France.
Under French law, the person will be treated in France according to his legal status there, and his French nationality may be the nationality under which the local authorities deal with him.
However, this does not, by itself, extinguish his Egyptian nationality before the Egyptian authorities.
If he returns to Egypt and the conditions of Article 3 are satisfied, holding French nationality alongside Egyptian nationality does not, by itself, prevent the application of Egyptian law.
Fifteenth: The Relationship Between Criminal Liability and Deprivation of Nationality
Two separate issues must be distinguished:
- Criminal liability: governed by the Penal Code, criminal procedure legislation, and special criminal laws.
- Legal nationality status: governed by Nationality Law No. 26 of 1975.
Article 16 of the Nationality Law provides for cases in which Egyptian nationality may be revoked by a reasoned decision of the Council of Ministers, including certain cases connected with State security, entering the military service of a foreign State without the required prior authorization, or working for the benefit of a foreign State in the circumstances specified by law.
However, deprivation of nationality is not an automatic penalty resulting from every offense committed by an Egyptian abroad and should not be confused with criminal punishment.
Sixteenth: The Most Important Practical Problems in Offenses Committed Abroad
- Determining where the offense occurred: this may be difficult in cyber or financial offenses whose elements are distributed across several States.
- Proving foreign law: because application of Article 3 requires verification that the act is criminalized in the State where it occurred.
- Obtaining evidence from abroad: such as bank records, corporate correspondence, recordings, telecommunications data, and foreign police reports.
- Translation of foreign documents: the file may require official translation and authentication depending on the nature of the document and the country in which it was issued.
- Verifying the foreign judgment: Is it final? Was it an acquittal or conviction? Was the sentence served?
- Different legal characterization: the act may carry a different legal description in each State, requiring comparison of the underlying material conduct rather than merely the names of the offenses.
- More than one jurisdictional basis may exist: Article 2, Article 3, or a special criminal law may apply, and more than one basis may exist at the same time.
Seventeenth: Does Failure to Prosecute Abroad Prevent Egypt from Bringing Proceedings?
Not necessarily.
If the person is Egyptian and commits abroad an act satisfying the conditions of Article 3, the fact that the person was never prosecuted in the foreign State does not, in principle, prevent application of Egyptian law upon return.
The important distinction is between the absence of proceedings or failure to institute a case and the issuance of a final judicial judgment producing the effect prescribed by Article 4.
Eighteenth: Steps to Take When There Is a Criminal Case Abroad
If an Egyptian dual national is involved in a criminal investigation or case outside Egypt, several matters should be reviewed before returning to Egypt or taking any other step:
- Determine the nationality or nationalities held by the person at the time of the incident.
- Determine the legal place of commission of the offense and the location of its various elements.
- Identify the Egyptian provision criminalizing the act.
- Verify whether an equivalent provision or criminalization of the conduct exists in the foreign State.
- Obtain official copies of the foreign investigations and judgments, if any.
- Confirm whether the foreign judgment is final and whether the sentence has been served.
- Translate foreign documents through certified legal translation and complete any required authentications.
- Review whether a relevant judicial cooperation or extradition treaty exists between Egypt and the other State.
- Determine whether the offense is governed by a special law containing jurisdictional rules extending beyond Article 3 of the Penal Code.
Nineteenth: The Role of the Lawyer in Cross-Border Criminal Cases
A case whose elements are distributed between two States should not be treated as an ordinary domestic criminal case.
The defense may depend on proving foreign law, obtaining a judgment issued by a foreign court, determining the legal effect of that judgment in Egypt, or coordinating with a lawyer in the other country to obtain evidence and official documents.
Determining whether the conditions of Article 3 are satisfied may itself constitute a fundamental legal defense, particularly where the conduct is not punishable in the State in which it occurred.
Accordingly, the file should be analyzed from the outset from two perspectives: Egyptian law and the foreign law governing the incident.
Conclusion
Dual nationality does not exempt an Egyptian citizen from being subject to Egyptian criminal law for offenses committed abroad.
However, liability is not automatic in every case. For ordinary offenses governed by Article 3, the offender must have been Egyptian at the time of the act, the conduct must constitute a felony or misdemeanor under Egyptian law, it must also be punishable in the State where it occurred, and the offender must return to Egypt.
By contrast, there are other cases in which Egyptian law extends its jurisdiction to offenses committed abroad under Article 2 or special criminal laws, particularly where the offense concerns State security, part of it occurred within Egypt, or it affected Egyptian interests protected by law.
Likewise, previous prosecution abroad does not always prevent trial in Egypt. It is necessary to verify the existence of a final foreign judgment of acquittal, or a final conviction together with completion of the sentence, in accordance with Article 4 of the Penal Code.
The Office of Dr. Mostafa El Rouby – Attorneys and Legal Consultants – advises Egyptian dual nationals facing a criminal investigation or judgment abroad not to analyze the matter solely under the law of the foreign State, but also to review the impact of the incident on their criminal status in Egypt before returning, while obtaining official copies of all investigations, judgments, and documents connected with the case.
Written and Prepared by: Dr. Mostafa El Rouby