Australian national Peter Greste smiles during a court session in Cairo (Photo: AP)
Egyptian President Abdel-Fattah El-Sisi issued a law on Wednesday authorising non-Egyptian defendants on trial or convicts to be sent to their home countries to be tried or serve their sentences.
The law might be used in the highly publicised case of Al Jazeera journalists currently detained in Egypt, as two of the three defendants are foreigners – Australian Peter Greste and Egyptian-Canadian Mohamed Fahmy.
Moustafa Nagui, Greste's lawyer, told Ahram Online that it's very possible the law may allow Greste to be repatriated to Australia, but that he won't take any steps on the matter until the law is published in the cabinet's official gazette.
"Details of the law aren't available yet. A simple preposition may have a significant impact on what the law means, so we're waiting to see the complete text of the law," Nagui said.
Regardless, information revealed so far about the law shows that it allows repatriation but doesn't require it, leaving the ultimate decision up to the president to decide, Greste's lawyer said.
The new law stipulates that the general prosecution has to request the transfer of the prisoners and the cabinet has to approve the request.
The three Al Jazeera journalists were sentenced in June to jail terms ranging from seven to 10 years on charges of spreading false news and aiding the Muslim Brotherhood.
When responding to international pressure to release the journalists last month, El-Sisi said that the best way to deal with violations committed by foreign journalists was to deport them. However, he made it clear that he could not interfere with the judicial process, stressing that the country's judiciary was "completely independent."
In the absence of international treaties regulating repatriation, the home countries of foreigners will probably free prisoners upon their arrival, Mohamed Nour Farahat, Court of Cassation lawyer and philosophy of law professor at Zagazig University, told Ahram Online.
"If the home country of the suspect or convict isn't obliged to resume the trial of the suspect or jail the convict, it's most probable that he'll be freed," Farahat said.
But this would contradict the justification given by Egypt's presidency to issue the law. On Wednesday, the presidency said the new law was based on the reasoning that repatriated convicts will find it easier to reintegrate into society when they serve their sentences in their home countries.
Farahat also believes the law breaches constitutional guarantees of judicial independence.
He points to article 184 of Egypt's constitution, which criminalises any interference in matters of justice or court courses and would thus make the president's newly-issued law illegal.
The penal code is territorial; its jurisdiction spans all the territory of the state and any person – regardless of nationality – is subject to it, Farahat said. He believes the new law violates the sovereignty of the Egyptian state.
Repatriation should only be subject to international treaties regulating them, he added.
It's still unknown whether the law is applicable for dual nationality holders, like Fahmy, the Egyptian-Canadian Al Jazeera defendant.
The law's application on dual-nationals may also affect the case of Egyptian-American Mohamed Soltan, who has been on hunger strike for over 285 days and is being tried in the case known as the "Rabaa control room."
Soltan, 26, along with 50 others, is accused of setting up an operations room during the Brotherhood-led Rabaa Al-Adaweya protest camp in July-August 2013, as part of plans to defy the state and spread chaos, as well as plot attacks on police stations, private property and churches.