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Human and Peoples' Riqhts
COMMUNICATION 424/12
Samira Ibrahim Mahmoud and Rasha Ali
Abdel-Rahman (Represented by the
Egyptian Initiative for Personal Rights
(EIPR) & Interights)
v
The Arab Republic of Egypt
Adopted by the:
African Commission on Human and Peoples' Rights
DUring the 7~ Ordtnary Semon. IJeJd in Banjul, from r' to 2r May 2023.
BanjuJ, The Gambia
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Human Rights our
Collective Responsibility
Samira
Ibrahim
Communication
424/12
Mahmoud and Rasha Ali Abdel-Rahman
(Represented by the Egyptian Initiative for
Personal Rights (EIPR) & Interights) vs. The
Arab Republic of Egypt
Summary of the Complaint:
1.
The Secretariat of the African Commission on Human and Peoples Rights (the
Secretariat), received a complaint on 11 September 2012from the Egyptian Initiative for
Personal Rights and Interights (the Complainants), acting on behalf of Samira Ibrahim
Mohamed Mahmoud (the First Victim) and Rasha Abdel-Rahman (the Second Victim).
2.
The complaint is submitted against the Arab Republic of Egypt, State Party to the
African Charter on Human and Peoples' Rights (African Charter).
3.
It is alleged that the first and the second victim were arrested after they participated in
a sit-in at Tahrir Square in central Cairo in which they demanded amongst other things,
the writing of a new Constitution and protested the military's brutality against peaceful
demonstrators. It is further alleged that the victims and other detainees were
transported to a military prison where they were subjected to beatings and electrocution
as well as being subjected to a forced genital examination in prison.
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Concerning the case of Ms. Samira Ibrahim Mahmoud in particular, it is alleged that a
25-year-old, female student from Sohag in the South of Egypt, was arrested by an officer
in military uniform at a nearby pavement after leaving Tahir square, following a
dispersal of demonstrations at the Square by the military on 9 March 2011.
5.
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was bound by her hands and legs, sprayed with water, and electrocuted with a Taser
(an electroshock weapon). She was not notified of any charges against her.!
6.
The Complainants describe in detail various forms of abuse and humiliating treatment,
to which Samira Ibrahim Mahmoud was subjected during the period of her detention,
including forced searches; being ordered to undress completely in a room open to the
view of male soldiers who verbally abused her and took pictures of her, using cell
phones; electrocution, and being forced by a military doctor to undress, lie on her back,
lift her legs, and the doctor using his hands to examine her genitals for purposes of
determining her virginity. She was also forced by the military doctor to sign a prepared
statement stating that she was unmarried, that she was a virgin and that her hymen was
intact. No explanation was given for the forced genital examination.
7.
It is alleged that on the evening of 10 March, Samira Ibrahim Mahmoud and other
detainees were brought before the prosecutor in a small hallway before the prison
where charges, consisting of destroying cars, attempted assault on military officers
while performing duty, manufacturing weapons and Molotov cocktails, etc. were read
to her. She was then taken to a larger room within the prison where she faced a judge
and where two lawyers assigned by the military were present but did not speak during
the hearing.s
8.
It is alleged that All 17 female detainees including Mahmoud were sentenced to one
year of suspended sentences before being released on 11 March 2011. During the
hearing, it is contended that she was not allowed to plead her case by prison guards
who prevented her from speaking and forced her away from the judge.
9.
Regarding the case of Rasha Ali Abdel-Rahman, it is alleged that she was arrested. by a
soldier on 9 March ~011, and taken to the Egyptian museum where along with, other
female detainees, was subjected to swearwords, electrocution and beating by soldiers.
Abdel-Rahman alleged to have been assaulted by a military policeman in the toilet, and
subjected to forced genital examination in a hallway, between two open rooms open to
the view of many soldiers and officers.3
See, Facts in Paragraph 3 to 23 based on based on written and recorded testimonies of the A
of investigation from the military prosecutor, as well as decisions by the Administrative C
Court of Justice. See Annexes 1-20
1
2
Captured in Paragraph 19 of the Complainant Submission on Merit
3 Captured
in Paragraph 8
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10. The Complainants assert that on 10 March, Abdel-Rahman and the rest of the detainees
were interrogated and charged with manufacturing weapons and Molotov cocktails,
possessing knives, and sabotaging public and private property+
11. On the same day, Abdel-Rahman and the other detainees faced a judge in the presence
of two lawyers who were assigned to them. They repeatedly asked to speak to their
families but were refused. On 11 March at around 10 pm, Abdel-Rahman was released
from the military prison along with the other detainees.
ARTICLES ALLEGED TO HAVE BEEN VIOLATED
12. The Complainants allege the violation of Articles 1, 2, 3, 5, 9(2), 11, (3) and 26 of the
African Charter.
PRAYERS
13. The Complainants request the Commission to examine their case and specifically seek:
(a) Recognition by the Commission of violations of these articles of the Charter;
(b) recognition
by the Supreme Council for the Armed Forces of the occurrence of forced
genital examinations against the Applicants and an undertaking that such examinations
will not be repeated;
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(c) prosecution of the perpetrators of the violations;
(d) reforming the military prison procedures code so as to include strict guarantees for
respecting the bodily integrity and privacy rights of prisoners during searches, medical
check-ups and during their detention;
(e) reforming the Miliiarq Justice Code for the civil prosecutor and civil courts to have
exclusive jurisdiction to investigate and adjudicate allegations of violations by military
personnel against civilians; and
if) provision of compensation to the Applicants.
4
Ibid, para 10
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PROCEDURE
14. The Secretariat received the complaint on 11 September 2012. The Commission was
seized of the Communication during its 52nd Ordinary Session. The parties were
informed of the fact of seizure and the complaint was transmitted to the Respondent
State by correspondence dated 1 November 2012. The Complainants were also
requested on the same date to submit observations on Admissibility.
15. On 7 January 2013,the Complainants' submissions on admissibility were received at the
Secretariat and transmitted to the Respondent State by correspondence dated 7 January
2013. The Respondent State was in the same correspondence requested to submit its
observations on the Victim's submissions on Admissibility.
16. The Communication was deferred from the 53rd Ordinary Session due to the
Respondent State's failure to submit its observations. -Following this, correspondence
dated 15 May was sent to the Respondent State requesting the latter to submit its
observations; otherwise, the Commission would proceed to examine the admissibility
of the Communication based on the information before it. The Respondent State never
submitted its observation on the admissibility of the Communication.
17. The Communication was during tHe 54th Ordinary Session of the African Commission
on Human and Peoples' Rights from 22 October - 05 November 2013 decided to be
admissible and the parties were fully notified of the decision and advised to submit
their observations on the merits of the complaint by the letter dated 22ndNovember
2013.
18. The Complainants by the letters dated 29th December 2013 and 8th January 2014 did
request for extension of time to present their written submission on merits and were
granted.
19. The Complainants' submission on merits was received at the secretariat from the
extended time on 27thFebruary 2014 and was acknowledged on 6th March 2014and the
same date, the submissions were forwarded to the Respondent State for its observations
under Rule 108 of the Commission's Rules of Procedure.
20. The Secretariat received an expert statement on Virginity Testing from the
Independence Forensic Expert Group from the International Council for Rehabilitation
of Torture Victims (IRTC). The Secretariat acknowledged receipt of the st
ent by
letter dated 26th February 2015.
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21. On the 14thof May, the Secretariat sent a request to the Respondent State to furnish
proof of transmittal of its Note Verba le, in which the respondent State had alleged that it
filed an objection on the admissibility of the Communication at hand.
22. On 30thJune 2015 (after one and half a month) the Secretariat advised the Respondent
State to submit on merits given that the latter had failed to submit the proof of
transmittal of the Norte Verable in which it claimed to have filed an objection on
Admissibility of this Communication. The Respondent State was given 30 days within
which to file its submission from the date of notification, something that they never
heeded.
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23. The Commission deferred consideration of this Communication between the 56th and
59th Ordinary Sessions of the Commission to later dates for various reasons; notifying
the Parties.
THE LAW ON ADMISSIBILITY
The Complainant's Submissions on Admissibility
24. The Complainants submitted that the requirements under sub-articles I, 2, 3, 4, 6 and 7
of Article 56 have been complied with.
25. Regarding Article 56(5), the Complainants indicated that on 23 June 2011, the First
Victim filed a complaint with the public military prosecutor about the violations she
had suffered in the military prison who ordered a military investigation into her claims.
Proceedings were initiated at the Supreme Military Court against Dr EI-Mogywho was
charged with indecency and insubordination. The Complainants state that Dr EI-Mogy
was tried and acquitted of all charges on 11 March 2012.
26. The Complainants submitted that on 17 July 2011,a case was filed on behalf of the First
Victim and others, before the Administrative Court by a coalition of rights groups
demanding the immediate cessation of the virginity testing policy in military prisons.
The Court ruled that the forced genital examinations carried out on the detainees were
illegal and that any further occurrence of such would be illegal.
27. According to the Complainants, the above decision only provided protection against
future abuses through the practice of virginity testing but does not afford any
Court, the head of the military stated that the ruling was inapplicable
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were no military laws that allow for the practice of forced genital examination and
virginity testing in the first place.
28. The Complainants submitted that following this decision, there were no further
remedies to exhaust, given that the decision of the Supreme Military Court which
acquitted Dr EI-Mogy of all charges could only be appealed before the Supreme Court
of Military Appeals, which only receive and entertain appeals by the military prosecutor
or the convicted person, but not the victims.
29. The Complainants further submitted that an appeal needed to be made within 60 days
of the ratification of the decision of the Supreme Military Court. The Complainants
point out that the decision of the Supreme Military Court in the First Victim's case was
ratified by General al-Rowaini on 1 April 2012 and that the military prosecutor choose
not to appeal the decision of the supreme military Court.
30. The Complainants contended that Article 49 of the Code of Military Justice prohibited
Complainants from advancing civil claims before military courts or attaching civil
claims to cases being considered by military courts. The Complainants further stated
that the code also prohibits Complainants from filing claims before an ordinary court
with criminal proceeding~ being considered by the military court until the military
court has issued its decision on the criminal aspect of the claim. They contended that
since the military court acquitted Dr El-Mogy (their alleged assailant) of all charges,
neither the First ;Victim nor any other victim could bring any civil claim before any
court, military or ordinary.
31. The Complainants, therefore, concluded that all available local remedies were
exhausted in respect of the First Victim.
32. Concerning the Second Victim, the Complainants aver that local remedies have been
unduly prolonged on one hand and unavailable, ineffective and insufficient on the
other. The Complainants explained that the Second Victim filed a claim with the
ordinary public prosecutor on 4 July 2011, in which she described the abuses she
suffered in the military prison. In compliance with the provisions of the Code of Military
Justice which vests exclusive jurisdiction over complaints against members of the
military on the military justice system, the ordinary prosecutor transferred the matter
to the military prosecutor on 5 September 2011.
33.
The African Commission
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undertaken and the Second Victim has not been asked to testify and has not been
informed of any action based on her complaint.
34. It was also claimed by the Complainants that this period was unduly prolonged as the
state has had notice of the alleged violations for 17 months without taking any action.
The Complainants, therefore, contended that domestic remedies were either
unavailable or if not, then they were ineffective or insufficient in the Second Victim's
circumstances.
35. The Complainants explained further that the rule against double jeopardy which
applies in the Egyptian military justice system is a bar for criminal proceedings in the
Second Victim's case. They explain further that Article 454 and 455 of the Criminal
Procedure Code prohibits courts from reconsidering criminal proceedings in which a
final decision has been made, even if new evidence is produced.
36. According to the Complainants, the Second Victim had no real chance of vindication
through the military justice system given that the final decision of the Supreme Military
Court finding Dr El-Mogy innocent of all ,charges bars any court, ordinary or military
from subsequently reconsidering the allegations against him even if these allegations
are made by a different victim.
37.
The Complainants also contended that the trial by a military court of military personnel
accused of human rights abuses could not be considered as an available, effective and
enough remedy for purposes of exhausting local remedies since the military justice
system in Egypt lacks the necessary impartiality and independence and the prospects
of success, in this case, are slim or non-existent.
38. On the strength of the above observations and authorities submitted supporting their
case, the Complainants urge the Commission to declare the Communication admissible.
ANALYSIS OF THE COMMISSION
ON ADMISSIBILITY
39. The Admissibility of Communications submitted to the African Commission on Human
and Peoples Rights (the Commission) is governed by the requirements contained in
Article 56 of the African Charter. Article 56 sets out seven requirements which must be
cumulatively complied with for a Communication to be admissible. The Complainants
submitted that all these requirements have been met.
40. As indicated above on procedure, the Respondent State has not
observations on admissibility. In the present circumstances and under
the Commission as enunciated in the case of
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31 Bijilo Annex Layou
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Institute for Human Rights and Development in Africa v. Republic of Angola: "in the face of the
state's failure to address itself to the complaint filed against it, the African Commission has no
option but to proceed with its consideration of the Communication follounng its Rules of
Procedure. "5 In the same decision, the Commission re-affirmed its position by holding
that" ... it would proceed to consider Communications on the basis of the submission of the
Complainants and information at its disposal, even if the State fails to submit." Consequently,
the Commission must give due weight to.the Complainants' allegations insofar as these
have been adequately substantiated.
41. The Commission notes from the complainant's submissions and the facts of the
Communication, that the requirements under subsections (1) (2) (3) (4) (6) and (7) Df
Article 56 raise no. contentious issues and require no further examination. The
Commission considers that the Communication meets these requirements and will
assess further, the conformity of the Communication with the requirement under
Article 56 (5) Dfthe Charter.
42. Article 56(5) allows the Commission to.consider a Communication after the Victim has
exhausted local remedies, if any, unless, it is DbviDUSthat this prDcedure is unduly
prolonged. The rationale of this rule has been clarified in the Commission's
jurisprudence as a means of giving the state notice and affording it the opportunity of
remedying a violation that has Dccurred in its territory, using its local mechanisms,
before its international responsibility can be called into.question at the level of regional
Dr international mechanisms. 6
43.
Regarding the First Victim, the Complainants explained, as outlined above, that her case
was heard by the Supreme Military Court which acquitted the accused Dfall charges. It
has also.been explained that the decision acquitting the accused was not appealed by
the Military Prosecutor even though that possibility existed and that the Code of
Military Justice prohibits the lodgement of civil claims before military courts Dr
attaching civil claims to' cases being considered by the military courts. It has further
been explained that the acquittal of the accused by the military court bars any other
court, criminal Dr civil from considering a civil claim on the matter.
Communication 292/04 para. 34; See also, Communication 155/96 Social and Economic Rights Action Center,
Center for Economic and Social Rights v. Federal Republic of Nigeria, and 159/96 Union Inter Africaine des
Droits de I'Homme, Federation Intemationale des Ligues des Droits de l'Homme, Rencontre Africaine des
Droits de l'Homrne, Organisation Nationale des Droits de l'Homme au Senegal and Association Malienne des
Droits de l'Homrne v. Republic of Angola.
5
6
See Communication 296/05 Centre for Housing Rights and Evictions (COHRE) v. Sud
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44. It was submitted according to the Commission's jurisprudence, that the generally
accepted meaning of local remedies, which must be exhausted before any
Communication/ Complaint procedure before the Commission, is the ordinary
remedies of common law that exist in jurisdictions and are normally accessible to people
seeking justice."
45. As outlined above, it is apparent that the ordinary remedies that were available to the
First Victim were duly exhausted by the legislation, which barred the victim from
accessing any other remedies that were ordinarily available. Without any argument
from the Respondent State to the contrary, the Commission considers that the First
victim duly exhausted local remedies.
46. Regarding the Second Victim, the Complainants have pointed out that the outcome of
the First Complainants case, declaring the accused innocent of all the charges directly
affects the ability of the Second Victim to exhaust local remedies because this has
rendered the remedies unavailable or ineffective on the one hand and unduly prolonged
on the other.
47. The Commission notes that the Second Victim brought a complaint before the ordinary
prosecutor on 4 July 2011, describing the abuses to which she was subjected while in
detention. The Commission notes further that this complaint was brought less than one
month after the First Victim initiated proceedings against Dr EI Mogy. However, while
the trial of the accused in the First Complainants case commenced on 20 December 2011
and was concluded on 11 March 2012, the case of the Second Victim saw no further
progress following the transfer of the case from the ordinary prosecutor to the military
prosecutor.
48. It is evident from the above that the State had ample notice of the violation but failed to
take any measures to remedy same. While the case of the First Victim was expeditiously
dealt with, not even an investigation was initiated following the Second Victim's
complaint despite the seriousness of the allegations. The Commission observes that
where allegations of serious wrongdoing, such as the infliction of torture or cruel,
inhuman or degrading treatment or punishment have been brought to the attention of
the State, it is under an obligation to initiate a prompt, impartial and effective
investigation to establish responsibility for the wrongdoing.
The African Commission
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49. The Commission considers that Seventeen months of inaction on the part of the State
following the introduction of a complaint by the Second Victim is an unduly prolonged
period. The Commission notes also that Articles 454 and 455 of the Egyptian Criminal
Procedure Code prohibit courts from reconsidering criminal proceedings in which a
final decision has been made, even if new evidence is produced. The Commission
considers that for the Victim to exhaust local remedies, these remedies must exist not
only in theory but also in practice. The Victim must be able to pursue the remedies
without difficulties or impediments and must be able to use the remedies in the
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circumstances of his/her case."
50. In the present Communication, the Complainants have amply demonstrated that
because of the acquittal of the accused in the First Victim's case, the remedies that would
otherwise have been available to the Second Victim, have been rendered inexistent by
the legislation in force, which bars any court from subsequently reconsidering the
allegations against the accused, even if these allegations are made by a different victim.
It is therefore apparent that the Second Vietim could not have had unimpeded access to
the local remedy.
51. From the above, the Commission considers that tlje remedies that were ordinarily
available to the Second Victim were unduly prolonged on the one hand and insufficient
to redress the violations complained of on the other.
THE DECISION OF THE COMMISSION ON ADMISSIBILITY
52. Because of the above reasons, the Commission declared this Communication
Admissible in accordance with Article 56 of the African Charter.
MERITS
53. In the merits of this Communication, the Commission is called upon to determine
whether the alleged acts or omissions by State or its agents are a violation of rights
under the African Charter; specifically, Articles 1, 2, 3, 5, 9, 11, 18(3) and 26.
PARTIES' SUBMISSIONS ON MERITS
54. Despite several reminders to the Respondent State to file submissions on the merits, the
latter has failed to do so. The communication is, therefore, considered ex-parte, based on
8
Citing Dauida [auiara v. The Gambia, Comm. Nos. 147/95 and 149/96, para 46
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the submission by the Complainants. The Commission remains guided by its positions
in the Institute for Human Rights and Development in Africa v. Republic of Angola and the
analogous decisions of the Commission cited in paragraph 40 (above).
Complainants' Submissions
55. In a nutshell, the Complainants submitted that the Respondent State violated the rights
under the Charter in Article 2 (the right to freedom from discrimination) and Article
18(3) (elimination of discrimination against women); Article 5 (prohibition of torture,
cruel, inhuman and degrading treatment); Article 26 (right to eguality before the law
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and equal protection of the law); and Article 3 (duty to guarantee the independence of
the courts).
56. The Complainants, further analysed the violation of Xrticles 9 ahtf:11, showing that the
Respondent State in arresting, detaining and subjecting the victims to torture and other
ill-treatment did violate their right to freedom of opinion, and freedom of assembly,
before finally analysing how all constituted the breach of the State's obligation in Article
1 (obligations of member states).
On Alleged violation of Article 2 and Article 18(3)
57. The Complainants submitted that the victims were subjected to violence, based on their
sex, political opinion, and subjected to gender stereotypes. They also submitted that the
State failed to adequately investigate their claims of violence and prosecute the
perpetrators, something that constituted secondary victimization.
58. Substantiating these, the Complainants submitted that the State must ensure that
individuals enjoy identified rights and freedoms under the African Charter without
distinction based on sex or gender among others. Citing provisions of international and
regional human rights instruments." the Complainants submitted that the nature of
obligation attracted to the principle of non-discrimination
is both positive and negative
and is widely accepted internationally.
59. The Complainants cited the Commission in Kenneth Good v Republic of Botsuuma.l?
approving the Protocol to the African Charter on the Rights of Women in Africa (the
Maputo Protocol), that the principle of non-discrimination arises when: a) equal cases
are treated differently; b) a difference in treatment does not have an objective and
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reasonable justification; and c) if there is no proportionality between the aim sought and
the means employed.
60.
As to what constitutes discrimination, they cited the expansive definition of
Discrimination under the provisions of Article 1 of the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW)l1 and provided the
analogous obligation of States Parties to condemn discrimination against women in -all
its forms and to refer to appropriate measures to contain all its manifestation, direct or
indirect in Articles 2 and 3 of the same Convention. They cited the Commission's
position in the Association Mauritanienne des Droits de 1"Homme v Mauritania,12 which
approved the above-mentioned positions in CEDAW.
61. The Complainants citing EIPR and INT~RIGHTS 19, Egypt13 submitted further that
violence against women constitutes discrimination based on sex. Against this, to
describe what violence against women entails, they armed their position with the
provision of Article 1 of the Maputo Protocol and, argued that all acts perpetrated
against women which cause or could cause them physical, sexual, psychological, and
economic harm, including the threat to take such acts; or to undertake the imposition
of arbitrary restrictions on or deprivation of fundamental freedoms in private or public
life constitutes violence against women.
62.
In the same vein they cited General Comment No. 19 by the Committee on the Elimination
of All Forms of Discrimination Against Women (CEDAW Committee) 14 which
provides that violence against women is a human rights issue and that it is a form of
discrimination that seriously inhibits women's ability to enjoy rights and freedoms on
a basis of equality with men. Also, the position that it is violence that is directed against
a woman because she is a woman or that affects women disproportionately and what
is otherwise termed gender-based violence."
63.
Elaborating on the level of recognition of gender-based violence as a bad vice, the
Complainant cited the General Assembly Resolution 67/144 on Intensification of efforts to
11
The Respondent State ratified CEDAW on 18 September 1981
12
Communication No.210/ 98, (2000), para. 11
13
Communication No. 323/2006, (2013), para. 165.
CEDAW Committee, General Recommendation
15 Ibid, para 6.
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eliminate all forms of violence against ioomen.w the CEDAW Committee, General Comment
No. 1917 and the Commission decision in EIPR and INTERIGHTS v Egtjpt,18 which all
accept that Gender-Based Violence seriously inhibits women's rights to enjoy rights
and freedoms on a basis of equality with men.
64. The Complainants submitted, therefore that it is the obligation incumbent on States to
take steps to eliminate discrimination based on sex, induding violence against women.
In determining the State obligation in regard, the Complainant cited the CEDAW
Committee, General Recommendation No. 28,19 and submitted that States Parties must
respect, protect and fulfil women's rights to non-discrimination and the enjoyment of
equality.
65. Expounding on the obligation to respect, the Complainants submitted that it requires
that States, through their State agents or apparatus, refrain from making laws, policies,
regulations, programmes, administrative procedures and institutional structures that
directly or indirectly result in the denial of the equal enjoyment by women of their civil,
political, economic, social and cultural rights.2o
66. And the obligation to promote and fulfil women's rights to non-discrimination and the
enjoyment of equality encompasses States, at least, need to develop a national plan or
strategy for addressing violence against women; adequate funding and the creation of
appropriate national machinery to implement the national plan or strategy; and steps
are taken to identify the causes and consequences of violence against women, through
the generation and dissemination of gender-disaggregated data.s!
16
20 December 2012, para 2
17
See, Para 7
18 Communication
19
No. 323/2006, (2013), para. 165
Para 9
21See,para 24-49 of the Complainant Submission on Merits
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67. The Complainant also submitted that this obligation also extends to raising public
awareness about the issue of gender-based violence'? and taking steps to transform
social and cultural norms regulating the relations of power between women and men.23
68. Submitting on the obligation to non-discrimination based on political opinion, the
Complainants submitted that it is a negative obligation. i.e., the States must not
discriminate based on a person's political belief.
69. They armed this position by citing the UN Special Rapporteur on the rights to freedom
of assembly and association." submitting that -the ability to hold peaceful assemblies
is a fundamental and integral component of the multifaceted right to freedom of
peaceful assembly, which must be enjoyed by everyone, and more relevant for groups
most at risk of violations and discrimination, such as "Yomen.Hence, states must ensure
that those who violate and/ or abuse the rights of individuals to reedom of association
and peaceful assembly are held fully accountable by an independent and democratic
oversight body and by the courts of law.25
70. Associating with the facts, the Complainants stated that on 10 March 2011, along with
15 other female detainees and 157 male, they were transported to a military prison
where the State agents segregated them based on sex. The female detainees were
further segregated based on marital status and, following identification of the seven
unmarried female detainees in the group, they were later subjected to beating,
electroshocks, and forced genital examinations by a male military doctor, one at a time.
71. The Complainants accounted for verbal and physical coercion through electroshocks,
while naked and completely in view of the male military doctor, a female prison guard,
22Citing,Special Rapporteur on Violence Against Women, 1999, para 25; Conclusions and recommendations of
the Committee on the Elimination of All Forms of Discrimination against Women, Cameroon, U.N. Doc.
CEDAW/C/CMR/CO/3
(2009), para 27; Committee on the Elimination of Discrimination Against Women,
Spain, U.N. Doc. A/59/38 (SUPP) paras. 323-355 (2004),para 335.
2.3CitingSpecial Rapporteur on Violence Against Women, 1999, para 25; Conclusions and recommendations of
the Committee on the Elimination of All Forms of Discrimination against Women, Cameroon, U.N.
Doc.CEDAW/C/CMR/CO/3
(2009), para 27; Committee on the Elimination of Discrimination Against
Women, Spain, U.N. Doc. A/59/38 (SUPP) paras. 323-355 (2004),para 335
24Citing the Report of the UN Special Rapporteur on the rights to freedom of assembly and association, 43, del' red to
the Human Rights Council, U.N. Doc. A/HRC/23/39 (24 April 2013).
~ 01'1 HUM4,... <1",
25 Ibid, 81. Citing also the additional recommendations in Report of the UN Special Rapporiei
"q,t°tlfecftkhi~1h)- 0~
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and other male officers and soldiers." They added that military doctor one Dr El-Mogy
conducted forced genital examinations using his bare hands, an examination which
lasted for approximately five minutes without their consent, and after which, they were
ordered to sign a prepared statement saying that they were unmarried, virgins and that
their hymen was intact. 27
72.
The Complainants reiterated that at no time did any State official or other person
inform the victims of any lawful purpose for the genital examination or the statement
they were ordered to sign, only to be informed when the Second Victim inquired from
the officer in charge of the prison it was so that no girl (who is not a girl) goes out and
says we attacked her.28The same logic is also to be found in the justifications of forced
genital examinations made by members of the Supreme Council of the Armed Forces
(SCAF),the Complainants added.
73.
The Complainants faulted the practice and procedure of genital examination as
unjustified and a weapon used to discriminate against women and a tool to suppress
their exercise of the right to political opinion. They stated that such acts had severe
physical, mental and social impacts on the victims, both at the time of doing it, the
manner it was done, and afterwards.
74.
In terms of its physical impact, the Complainants submitted that they suffered pain
through rough handling,
beating, electroshocks and the forceful nature of genital
s.
examinations. In terms of mental suffering and social impact, the complainants, reading
from the first victim's recorded testimony, submitted that she felt humiliated, and went
through physical, psychological and mental damage to the extent that she wished for
death.s? She subsequently lost her job due to the emotional impact. The second victim
testified that she felt that the soldiers enjoyed beating and humiliating them.
75.
On the failure of the state to adequately investigate the victims' claims of violence and
prosecution of the perpetrators, the Complainants submitted that during the detention
and trial against their aggressors, they were refused an opportunity to give a proper
26
See paragraph 60-65 of the Submission on Merits
27
See, paragraph 61 ibid
28 See Annex
29
18, also pictured in Para 61 of the Submission
See, First Applicant video testimony (transcribed and translated), p4. See Annex 20 Para
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account to the prosecutor and judge of the abuse they suffered/'? To this effect, the First
Victim stated her first attempt to complain before the military public prosecutor about
the violations she had suffered in the military prison was denied, only to be accepted
later on and the accused military doctor charged with an only public act of indecency
under Article 278 of the Penal Code (as well as insubordination), an offence associated
with a maximum prison sentence of one year.
76. Apart from alleged inadequacy in the law, the Complainants also submitted that the
investigation and trial taking place under the Code of Military Justice, prevented the
First Victim from pursuing a civil remedy before the military tribunal and was relegated
to being a mere witness in the case. She was therefore also prevented from appealing
the subsequent decision by the Supreme Military Tribunal to the Supreme Court of
Military Appeals, as Article 43 of the Co~e allows only the military prosecutor or the
defendant to appeal the decision.t!
77. She further submitted that she experienced a substantial delay in her attempt to access
justice in response to the forced genital examination and other abuse with her two
lawsuits getting postponed as the Government never wanted to investigate not to raise
the issue of virginity tests. And worse still, she was subjected to threatening phone calls
following her attempts to access justice in response to the abuse, and she notes that the
criminal justice system of the Respondent State was unable to offer adequate protection
for her safety. 32
78. Concerning sexual violence, the Complainants submitted that the Egyptian criminal
justice system in practice completely prevented the Victims from pursuing justice. This
is because the forced genital examinations of the seven female detainees were
considered in court as one criminal act, even though multiple Complainants were
involved, for the' apparent purpose of seeking to protect the accused from double
jeopardy and to prevent the possibility of conflicting judgments on the same allegations.
The Second Victim was precluded from pursuing a case against the military doctor as
he had been acquitted in the trial ensuing from the First Victim's claim, and this decision
had not been repealed.
30
See paragraph 68 of the Submission.
31
See, para 70 of the Victim submission on merit
32
Ibid para 77-8
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79.
Regards to State's inactions in response to the Victim's allegations of violence as
secondary victimisation, the complainants cast the focus on among other things, the acts
of victim-blaming attitudes, behaviours and practices engaged in by officers, the
prosecutor and judges, which resulted in additional trauma for the Complainants
separate to the initial violations. The Complainants alleged that many of the questions
put by the authorities to them during their detention and trial were of seeming
irrelevance and based on gender stereotypes of the activity expected of a young woman
in Egypt.33
80.
Finally, the Complainants faulting various provisions of the Egyptian Penal Code34 on
the nature of offences and penalties, submitted that the State has failed to enact
appropriate legislation to protect women from violence." They faulted various
provisions including the provisions Article 267 which prohibits anyone from lying with
a woman without her consentl (with a sentence of death or life imprisonment), the
provision that the Court of Cassation, (the highest court of the Egyptian judicial system)
clarified that means nothing less than full vaginal intercourse using a penis.wThey also
faulted Article 268 which prohibits indecent assault and punishes it with hard labour
for three to seven years.F The Complainants submitted that the Instances of anal rape
or rape using parts of the body or objects other than male genitals are treated as indecent
assault. They also faulted Article 278, which prohibits public acts of indecency (with a
penalty of detention up to one year or a fine); and Article 279, which prohibits immoral
acts against women, whether carried out in public or private (with a penalty of
detention up to one year or a fine).38
81.
Accordingly, the Complainants submitted that they were precluded from accessing
appropriate remedies given the restricted legislative framework, leading to feelings of
disempowerment. They submitted that in the absence of a comprehensive rape
definition, the Respondent State sends a clear message to Egyptian society that certain
33
See, Para 80 of the Complainants 'Submission on Merit
Penal Code, Law 58 for the Yea]' 1937 (as amended). See Annex 13 for relevant extracts from the Arabic and
English versions
34
35
Para 80
36
ibid
37
See, para 81 of the Complainants'
38
Ibid
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forms of rape are either acceptable or not as significant as the narrowly defined form of
rape.
On Alleged violation of Article 5
82. The Complainants submitted that the authorities violated their right to dignity, firstly
by engaging in acts amounting to cruel, inhuman and degrading treatment (illtreatment) and torture; Secondly, by failing to adequately investigate and prosecute
those responsibly and thirdly, by failing to provide redress to the Complainants, as a
separate violation of Article 5.
83. Substantiating these, the Complainants armed their position following the Commission
decisions in Sudan Human Rights Organisation& Centre on Housing Rights and Evictions
(COHRE) v. Sudanr'; Malawi African Association, Amnesty International, Ms Sarr Diop,
Union interafricaine des droits de l=Homme and RADDHO, Collectif des veuves et ayantsDroit, Association mauritanienne des droits de i=Homme v Mauritania,40Egyptian Initiative
for Personal Rights & Interights v Egypt;41 Institute for Human Rights and Development in
Africa (on behalfofSierra Leonean refugees in Guinea) v Guinea,42which recognized that the
acts of rape, and the failure to prevent and respond to its orchestration by a State,
amount to a violation of A~ticle 5 of the Charter.P
84. The Complainants called upon the Commission in the present case to spell out its
position on the relationship between Article 5 and sexual violence generally, i.e. sexual
violence and rape (and forced genital examinations or virginity tests specifically) as a
distinct form of torture.ss
85. To support their argument, the Complainants cited the report of the UN Special
Rapporteur on Contemporary Forms of Slavery, Systematic rape, sexual slavery and slavery-
39
Communication Nos. 279/03-296/05,2009, para.157
40
Communication Nos. 54/91, 61/91, 96/93, 98/93, 164/97, 196/97, 210/98, para.118;
41
Communication 323/06, paras.201-202
42
Communication No. 249/02
43
See, Paragraph 87 of the complainant Sumission on Merit
44See,Para88 ibid
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like practices during armed confiicr> and the UN Security Council= Confirming that sexual
violence and rape by officials can constitute a form of torture.
86. They added that in many cases, the discrimination prong of the definition of torture in
the UN Torture Convention provides an additional basis for prosecuting rape and
sexual violence as torture.
87. On elements of the offence of rape, while faulting the definition under the Egyptian
law, the Complainants cited the Prosecutor v Anto Furundiija by the International
Criminal Tribunal for the former Yugoslavia (ICf'Y) that found that rape is constituted
not only by sexual penetration, however slight of the vagina of the victim by the penis
but also any other object used by the perpetrator and by coercion or force or threat of
force against the victim or a third person.'?
88. The Complainants also submitted along the International Criminal Court's Elements of
Crimesw and the position adopted in the Inter-American Court in the Miguel CastroCastro Prison v Peru49 that rape is constituted with conduct resulting in penetration,
however slight, any part of the body of the victim or the perpetrator with a sexual organ
or of the anal or genital opening of the victim with any object or any other part of the
body.50
89. The Complainants also submitted along with Miguel Castro-Castro (cited above), in
which the Inter-American Court considering the circumstances of the case, agreed that
finger-vaginal examination of the inmate constituted rape and torture.P! They further
added that rape among sexual violence meets the severity threshold for torture under
international law.P
E/CN.4/Sub.2/1998/13,
22 June 1998, para.55.
46UNSecurity Council, S/RESj2106 (2013), adopted at 6984th meeting, 24 June 2013, para.2; S/RES/1829 (2008),
adopted at 5916th meeting, 19 June 2008, Para.4.
47 Citing, the International
Criminal Tribunal for the former Yugoslavia, Prosecutor v Anto Furundiiia, Case No
IT95-17/1-T, Trial Chamber Judgment of 16 November 1998, para.185.
48Citing, the International
Criminal Court, Elements of Crimes, Article 8(2) (b) (xxii)-l, at
http:// www.icchup:llwww.icc-cpi.in Unr/rdonlyres/336923d8-a6ad-40ec-ad7b45bt9de73d56/0/elementsofcrimeseng.pdfcpi..i.ntl or I rdonlyres I 336923d8-a6ad-40ec-ad7b45bf9de73d56! O!elementsofcrimeseng. pdf.
49 IACtHR, Case of tile Miguel Castro-Castro Prison v Peru, Judgment of 25 November 2006 (Merits, Reparations
and Costs), Series C No 160, para.310 (Castro-Castro Prison Case ")
50 See Paragraph 90-1 of the Complainants'
Submission on Merit
45
51
Ibid, para.312.
52 See para 95 of the Complainants'
Submission on Merit
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90. The Complainants backed up this by the United Nations Human Rights Committee's
position in General Comment No. 28, which recognized that rape may amount to a
violation of Article 7 of the International Covenant on Civil and Political Rights
(ICCPR) (prohibition of torture),53 the position that is widely reflected in the
jurisprudence of courts and human rights treaty bodies, which recognise that the pain
and suffering caused by an act of rape, both physical and psychological, is so severe as
to constitute torture. The Complainants cited Mejia v Peru,54 Aydin v Turkey,55 C. T. and
K.M. v. Suiedeni» and Miguel Castro Castro Prison v Perui? the decisions that on different
occasions but conunon on detainees, suggested that rape committed against detainees
will always amount to torture.
91. Giving facts around all these, the Co~plainants reiterated the facts around what
happened when the victims were in the detention centre. In particular, they submitted
that they were forced to undress and lie on their backs, and electroshocked. The Second
Victim was threatened to be beaten, raped and subjected to electroshocks if she resisted
the examination and had their genital parts forcefully examined.P
92. Considering the foregoing, they submitted that the forced genital examination
constituted vaginal penetration of the First Victim and sexual violence committed
against both Complainants. They added that it was carried out with the use of force and
threat of force and under the coercive circumstances of detention, this treatment
regarding the First Victim amounted to rape and regarding both Complainants to
sexual violence amounted to torture under international human rights law. and that the
nature of the forced genital examinations and the circumstances under which they took
place met the severity threshold for torture.'?
93.
Concerning discrimination on the grounds of gender and political opinion, in addition
to the narrated ill-treatment, those sorts of sexually demeaning terms such as prostitute,
Citing, the Human Rights Committee, General Comment No.28: Equality of rights between men and women
(Article 3), CCPR/c/21/Rev.l/
Add.l0, 29 March 2000, para. 11.
54 Inter-American Commission on Human Rights (IACmHR'), Raquel Marti de Mejia v Pent (1996), Case 10.970,
Report No. 5/96, Judgment of 1 March 1996.
55 ECtHR, Aydin v Turkey (1997) Application No. 57/1996/676/866,
Judgment of 25 September 1997.
56 Committee against Torture (CAT), c. T. and K. M. v. Sweden, Communication
No. 279/2005,17 November
2006, para. 7.5.
57 IACtHR, Castro-Castro Prison Case
58 See Annex 11 and 12
53
59 See, Paragraph
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bitch and -slut used when referring to them, the complainant specifically stated that
out of all protesters arrested and who were taken to the military prison on 10 March
2011, they were the only who were subjected to forced genital examinations together
with other five, identified as unmarried.w
94. The Complainants submitted that the sexual humiliation manifesting repeated verbal
abuse, electroshocks and beatings, dragging the Complainants by their headscarf,
threats of beatings, electroshocks, and strip searches in full view of others, (which
qualify the acts to be torturous) against them was deliberate to send a message to other
women engaged in protests that they risk suffering the same fate if they engage in
activities related to the protest movement. This included.f!
95. The Complainant also cited Curtis Francis Doebbler v .Sudan62 and African Commission,
Media Rights Agenda v Nigeria63 and argued that the Commission does not explicitly
distinguish between torture and ill-treatment in interpreting the scope of Article 5, but
calls for as widely as possible interpretation to encompass the widest possible array of
physical and mental abuses. They also cited Gabriel'Shumba v Zimbabuie+, and Sudan
Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan,65
with the position that Article 5 is aimed at the protection of both the dignity of the
human person and the
physical and mental integrity of the individual subject to Article
.
1 of the UN Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (UN Torture Conventionj.w
.
96. The Complainants submitted that the treatment inflicted on the Victims resulted in
physical injuries and psychological trauma.s? The First Victim testified that following
the ill-treatment at the museum and military prison she came -out as a wreckpsychologically, physically and emotionally and that her entire body had marks from
61
See, Section 0: Analysis of Articles 2 and 18 (3) Violations on the complainant Submission on Merit
See, Paragraph 124 of the Submission on Merits
62
Communication 236/00, para.37
63
Communication No. 224/98, para 71
64
Communication 288/04, para.l43
65
Communications 279/03-296/05 para.156
66
See, Paragraph 124 and the referred notes thereat.
60
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the electroshocks.s'' The Second Victim testified how the authorities' ill-treatment,
including threats of rape, beatings and electroshocks, verbal abuse and forced nudity
in front of others, left her in fear and shock.s?
97. The Complainants also added that under such circumstances the burden shifts to the
Respondent State to convince the Commission that the allegations of torture raised by
the Complainants are unfounded. The context of the Complainants' incommunicado
detention and interrogation is such that available evidence is necessarily limited.
However, the allegations of torture and ill-treatment are supported by the victim's
"
independent testimonies of similar ill-treatment.Zl The Complainants, therefore,
submitted that the different forms of ill-treatment as outlined above singly amounted
at least to ill-treatment, and taken together, to torture, contrary to Article 5 of the
Charter.
98. Concerning the State's obligations to safeguard the right to dignity, the Complainants
submitted that the authorities violated their right to dignity contrary to Article 5.
Substantiating this the complainants cited. Purohit and Moore v The GambiaZ) with the
Commission holding that exposing an individual to personal suffering and indignity
violates the right to dignity that can. take many forms and will depend on the
circumstance of each case.'?
99. As to what constitutes a violation of the right to dignity, the Complainants referred to
Commission in Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt,(cited
above) at para 200 referring to the judgment of the European Court of Human Rights
position in Campbell and Cosans v UK/3 that treatment is degrading when the person
concerned has undergone humiliation or debasement in the eyes of others attaining a
minimum level of severity assessed regarding the circumstances of the case. And
specifically, about the treatment of a sexual nature citing Iwanczuk v Poland/4where the
European Court of Human Rights held that the prison's guards' verbal abuses and
First Victim's video testimony (transcribed and translated). See Annex 20
Written Testimony of Second Complainant. See Annex 18
70 Ibid., para.169
71 Communication
241/01, para. 57
68
69
74
Application no. 25196/94, Judgment of 15 November 2001, para 59
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ridicule of the Victim were considered intentional to cause the Victim's feelings of
humiliation and inferiority.
100. Specifically, regarding the practice of forced gynaecological or genital examinations of
women, the Complainants cited the CEDAW Committee view in the Concluding Comments
against Turkey75 that forced genital examination of women, including those in custodies
is such coercive, degrading, discriminatory, unsafe and constituted a violation by state
authorities of the right to bodily integrity of a person and dignity of women.
101. About the use of abusive terms against them while in custody, the Complainants cited
the Egtjptian Initiative for PersonaL Rights & Interights v Egypt, (cited above)76holding that
such treatment which included fondling of the Complainant's breasts and other body
parts and tearing off the Complainant's clothes amounted to discrimination as well as
physical and emotional trauma contrary to Article 5.77
102. The Complainants submitted that in the present case, the authorities aimed specifically
at degrading the Victim's dignity and intended to humiliate them. Citing multiple
occasions where they were called prostitutes' and sluts' to insult them." the First Victim
testified that upon her arrest, the military officers, in addition to verbally insulting her,
spat on and slapped her in the face with a shoe. She added that she was forced to strip
naked in full view of male soldiers, who laughed at and took photos of her with their
mobile phones. The Second Victim testified that a military police officer sexually
assaulted her by trying to kiss her and preventing her from leaving, saying, he had not
seen his wife in 38 days"? They submitted that the forced genital examination of both
Complainants took place with both Complainants lying on their backs with their legs
up and in the presence and full view of male soldiers and officers.80
103. As to the failure of the Respondent State to adequately investigate and punish the
perpetrators to constitutes a separate violation of Article 5 of the African Charter, the
Complainants submitted that indeed the State must carry out an effective investigation,
75 Combined
second and third periodic report, 13-31 January 1997, para.l72.
76
Particularly at Para 197, 201-202
77
See, paragraph 138 of the Complainant's
submission on Merit
Written Testimony of Second Victim transcribed in Para 140
79 See, Paragraph 140 of the Complainaint
Submision on merit citing Annexture 20
78
80 Ibid Para
140
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citing Hawa Abdallah (represented by the African Centre for Justice and Peace Studies) v
Sudant! and the Amnesiu International and others v. Sudan.82
104. The Complainant reckoned that the obligations to investigate, prosecute and punish the
perpetrators of the crime of Torture, are in line with standards contained in several
international and regional treaties, and soft laws, naming for instance, the UN
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment;83 the Maputo Protocol+ the UN Report of the Special Rapporteur on
Torture;85 as well as in instruments such as the Body of Principles for the Protection of
All Persons Under Any Form of Detention or Imprisonment.w the Standard Minimum
Rules for the Treatment of Prisoners.V
105. In the present case, as set out, the complainants submitted that the investigation of the
First Victim's complaint regarding her ill-treatment and torture by military officials fell
short of these standards. The investigation was continuously delayed and was carried
out by military officials in a partial fashion as is also evident from the military
prosecutor's biased questioning of the First Victim.
106. They added that no diligent attempts were made to hold anyone accountable for the
violations. The military doctor accused of the forced genital examination was charged
with a public act of indecency an offence associated with a maximum prison sentence
of one year, which does not reflect the gravity of the First Victim's complaint. The First
Victim received several threatening phone calls following her attempts to obtain
justice.v
81 Communication
401/11, para.57 (Admissibility)
African Commission, Amnesty International and Others v Sudan, Communications 48/90, 50/91, 52/91,
89/93, para.56.
83 See, Article 13 of the Convention against Torture
82
84 Protocol to the African Charter
on Human and Peoples' Rights on the rights of women in Africa, Article 4 (e)
Report of the Special Rapporteur on Torture, E/CN.4/2004/56, 23 December 2003, para. 39 and General
Recommendations of the Special Rapporteur on Torture, E/CN.4/2003/68, 17 December 2002, para. 26(i).
85
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107. As to the question that the Respondent State's failure to provide redress to the
Complainants also constitutes a separate violation of Article 5, the Complainants
submitted that it is a must obligation. The Complainants armed their position by citing
the Commission's recognition of a right to an effective remedy and violations of the
Charter, including Article 5, in the Gabriel Shumba v Zimbabuies? Egyptian Initiative for
Personal Rights and Interights v EgtJpt;90 Curtis Francis Doebbler v Sudan;91 Malawi African
Association and others v Mauritania.92
108. In the same understanding, the Complainants also cited the Commission's Resolution on
the Right to Recourse and Fair Trial,93 the Commission's Principles and Guidelines on the Right
to a Fair Trial and Legal Assistance in Africa' (Fair Trial Principles), and the Guidelines and
Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading
Treatment or Punishment in Africa (Robben Island Guidelines) and submitted along their
provisions that person whose rights or freedoms are violated is entitled to have an
effective rernedy.w
109. The Complainant submitted that this right entails that an individual whose rights have
been violated can bring his or her claim before a competent judicial body that has
jurisdiction and powers to afford adequate reparation for the harm suffered and
adjudicates on the claim within a reasonable period. The Complainants submitted
further that States must ensure that women Complainants can file criminal complaints
and to obtain redress for the proper investigation of the violence suffered, to obtain
restitution or reparation and to prevent further violence; 95 and that States must ensure
that all Complainants of torture and their dependents are offered appropriate medical
care, have access to appropriate social and medical rehabilitation and are provided with
appropriate levels of compensation and support.w
89
Communication 288/04
90
Communication 334/06 (cited above)
91
Communication 236/00
92
Communications 54/91-61/91-96/93-264/97-296/97-210/98
93
Adopted in its Eleventh Ordinary Session, in Tunis Tunisia, from 2 to 9 March 1992
94
See, Paragraph 150 and 150 of the Complainant Submission on Merit
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110. The Complainants also cited the UN Committee Against Torture in its General
Comment No 3 on States' obligations under Article 14 of the UN Convention against
Torture (the right to redress) and submitted that in addition to the procedural obligations
under Article 14, State parties to the Convention must ensure that Complainants of
torture or ill-treatment obtain full and effective redress and reparation, including
compensation and the means for as full rehabilitation as possible."
111. Specifically, concerning the right of Complainants to a remedy of sexual violence and
reparation thereof, the complainant submitted citing the African Commission,
Resolution on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual
Violence '98 which calls on states to put in place efficient and accessible reparation
programmes that ensure information, rehabilitation and compensation for
Complainants of sexual violence; and ensure that Complainants of sexual violence have
access to medical assistance and psychological .support,
112. Finally, the Complainants stated that they could not be able to pursue their complaints
effectively, and could not claim adequate reparation, restitution, compensation,
rehabilitation, satisfaction and guarantees of non-repetitional- for the violations they
have suffered. Besides the lack of effective investigations as outlined above, the
Complainants furthermore did not obtain any other form of reparation, including
compensation for the material and moral harm suffered, rehabilitation, or guarantees
of non-repetition.
113. The Complainants, therefore, submit that the Respondent State's failure to provide
adequate redress, including an effective remedy and adequate reparation, constituted
a separate violation of Article 5.
On Alleged violations of Article 26
114. The Complainants submitted that the Egyptian military justice system does not satisfy
the criteria of independence, impartiality and appropriateness to give effect to the rights
guaranteed by the Charter, especially so in cases, which involve allegations of gross
violations of human rights by military personnel, which is a violation of this article of
the charter.
97
Cited in paragraph 152 of the Complainant's
98 Adopted
2007
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115. In support of this, concerning independence, the Complainants submitted that the
Egyptian Military Justice System is neither Independent nor Impartial, citing the
Commission's Principles of Fair Trial, the complainant submitted that there are clear
criteria as to what constitutes an independent court, i.e. that [t]here shall not be any
inappropriate or unwarranted interference with the judicial process nor shall decisions
by judicial bodies be subject to revision except through judicial review, or the mitigation
or commutation of sentence by competent authorities, under the law.99
116. They also submit along the requirement that -[a]ll judicial bodies shall be independent
of the executive branch.F?
117. The Complainants' cited Marcel Wetsh "okonda Koso and others v. ORC and stated the
Commission's reaffirmed position that -the independence of a court refers to the
independence of the court uis-a-tns the Executive. This implies the consideration of the
mode of designation of its members, the duration of their mandate, the existence of
protection against external pressures and the issue of real or perceived independence.Pt
118. The Complainant reiterated the Commission's positioning that considers that the
selection of active military officers to 'play the role of Judges to violates the provisions of
paragraph 10 of the fundamental principles on the independence of the judiciary, which
stipulates that Individuals selected to carry out the functions of judges should be
persons of integrity and competence, with adequate legal training and qualifications.tv119. The Complainants provided a comparison with other human rights bodies, such as the
Inter-American Court and the European Court that have criticised the use of the
military justice system to try human rights abuses as lacking such procedural
guarantee.
120. Citing for example the case of La Cantuta v. PerU,103 where the Inter-American Court
stated that -military courts do not guarantee the necessary independence and
impartiality to try cases involving members of the Armed Forces. The Court noted that
the characteristics like hierarchical subordination and the fact that military judges are
on active duty, make it impossible to regard military courts as a true judicial system.
Principle A.4(f).
100 Ibid, Principle A.4(g).
99
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Furthermore, in Pueblo Massacre v. Colombia, the same Court pointed to several
procedural flaws, including the fact that the military justice system was not within the
formal judicial branch and that its judges were active military officials as reasons why
the Colombian military justice system simply could not be independent or impartial in
trying military officials for human rights abuses.P'
121. Whereas the European Court emphasised that judicial proceedings must not only be
independent and impartial but must also appear to be independent and impartial in Incal
v. Turkey.IOS In this case, the Court found that in the trial of a civilian in which one of
three judges was a member of the Military Legal Service, the military Judge's active
military status, the possibility of military discipline for this judge" and the short
duration of this judge's term appeared to have rendered concerns about independence
and impartiality of the trial objectively.lw
122. The Complainants also cited the International Commission of Jurists' concerns of
partiality and lack of independence of military judges and prosecutors as active
members of the military have made military courts particularly vulnerable to
allegations of impunity and lack of independence and impartiality, stating that, the
independence and impartiality of military
courts are 'often particularly questionable, as
.
these courts exist as part of the executive hierarchy, thus failing to achieve separation of
powers. Officials in military courts answer to their superiors and are subject to
hierarchical subordination, raising concerns about the actual independence and
impartiality of the judges in these courts.l'?
,.
,
123. In regard, the Complainants faulted the Egyptian military justice system to be falling
precisely within this framework, with subordination to the executive, and the Minister
of Defense.t'f They stated in the cases involving civilians, military courts do not satisfy
the requirement 01 impartiality, subject to various legal formulations with the
Commission among others. To support this the Complainants cited the Commissions'
IACtHR, Pueblo Bello Massacre v. Colombia, (ser. C) No. 140, Judgment dated Jan. 31, 2006
ECtHR, Incal v. Turkey, App. No. 22678/93, Judgment dated Jun 9,1998, paras. 65-73.
106 ibid
104
105
Int'l Comm'n of Jurists, Military Jurisdiction and International Law: Militanj Courts and Gross Human Ri hts
Violations
9 (2004), available
at
ht:
www.ecoi.net file u load 87 118476488
parthttp://www.ecoi.netifile
upload/87 ] 184764886 trib-mil-eng-part-i.pdfi.pdf,
p 10.
108 See paragraph 163
107
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Principles of Fair Trail, (for example Principle No.A.5(a»; and the European Court on
Human Rights tests to determine impartiality in the case of Incal v. Turkey.l09
124. The complainants cited the Commission on Law Office oJGhazi Suleiman v. Sudan,11o that
the composition of [such] military court alone is evidence of impartiality. Civilians
appearing before and being tried by a military court presided over by active military
officers who are still under military regulations violate the fundamental principles of
fair trial.
125. The Complainants submitted that the impartiality of courts is important both for
civilians being tried, as well as for the protection of other human rights, and for the
State's fulfilment of its duty to investigate, prosecute and punish. They added that the
Commission's Fair Trial Principles (referred to above) are therefore applicable both for
violations of Article 7 and Article 26.
126. Citing Amnesty International and Others v. Sudan, 111 in which the Commission reacting
on the law providing for the composition of the courts, created an impression of a lack
of impartiality, and violation of Article 7(1)(d) of the Charter, the Complainants
submitted that the government must provide the structures necessary for the exercise
of this right since failing to guarantee the impartiality of Courts in the settings, blatantly
violate Article 26.
127. The Complainants submitted that the Egyptian military justice system is not
independent or impartial. In regards, they cited structural and systemic defects;
Incidents that show the, lack of independence and impartiality; and the effects of its
Expansive Jurisdiction that violates Article 26.
128. Submitting on Structural and Systemic Defects of the Egyptian Military Justice System,
the Complainants submitted that the military justice system in Egypt, including military
prosecutors and judges, lacks independence and impartiality for they are active military
personnel. The Complainant submitted an example during the trial of Dr EIMogy's (the
complainant's assailant) that all judges were active members of the military.tt109 Incal v.
110
Turkey, para 65
Communication Nos. 222/98 and 229/99, para.64.
African Commission, Amnesty International (and others) v, Sudan, Communication
89/93, para 68.
112 See, Paragraph 171 of the Complainants
Submission
111
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129. The Complainants backed this submission citing the provisions of Article 2 of the Code
of Military Justice, the law guiding the eligibility of judges to be determined by the Code
for the Conditions of Service and Promotion of Officers of the Armed Forces (Law 232/1959 or
-Code of Military Services), which only applies to members of the military.u-means that
judges sitting in military courts must be active members of the armed forces. They
argued that the judges are selected by the head of the military justice system and are
appointed by the Minister of Defense, a member of the executive.U!
130. The Complainants added that their selection process and the judges' tenure are also not
guaranteed as it remains at the behest of the executive, citing provisions of Articles 110,
112 NS 134 of the Code of Military Services, which lists several disciplining measures
(including forced retirement) determined solely by a committee of officers of the armed
forces.11S
131. The Complainant continued to fault the justice system, submitting that being active
members of the armed forces, military prosecutors and judges report to higher-ranking
officers, stating that if a judge of the military court is ruling on a case that implicates legally or politically- higher ranked military officers, he would effectively be issuing a
judgment regarding individuals that he is obliged to report to and to follow orders from.
They submitted that according to Article 101 of the Code afServices, all officers must take
an oath of allegiance to a person or entity determined by the President of the Republic
(the head of the executive branch) before commencing their service.t= To this effect,
they stated that the judges therefore must make decisions within a framework that does
not provide structural independence from the executive branch.ll?
132. Associating it with the facts at hand, the complainant submitted that the First Victim's
legal action before the military court, the prosecutors and the judges had to deal with a
Code of Miliian] Justice, Law 25/1966 (as amended), published in the Official Gazette on [un 1, 1966, Article
2. (hereinafter -Code of Militanj Justice"), see relevant Articles in Annex 15. 207 Code of Militanj Justice, Arts. 1,54,
see relevant Articles in Annex 15.
114 Code of Military Justice, Arts. 1, 54, see relevant Articles in Annex 15
113
Code for the Conditions of Service and Promotion of Officers of the Armed Forces, Law 232/1959, Articles 110, 112,
134, see relevant Articles in Annex 16.
116 Code for the Conditions of Service and Promotion of Officers of the Armed Forces, Art. 101, see relevant Articles in
Annex 16.
117 See, Paragraph 173
115
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case that implicated at least four generals from the Supreme Council of Armed Forces,
namely, Generals Etman, Assar, Sisi and Roweini, who had admitted that virginity tests
or forced genital examinations were a routine practice. At the same time, General Adel
Morsy, the head of the military judiciary and the direct superior of the judge sitting in
the military court in question, had completely denied in December 2012 that such
practices take place, stating that there -was no decision in the first place to conduct
virginity tests and no provision for such a procedure in the regulations of military
prisons.U"
133. The complainant noting the significance of General Morsy's comments cites the Human
Rights Watch observation in regard that given the status in the milita~'Yhierarchy and
authority over the military judge in the trial, such a statement effectively prejudged
certain aspects of the trial, precluding an examination of whether the military ordered
the virginity tests or had a policy of carrying them out.
134. The Complainant further submitted that the same structural and systemic flaws that call
into question the independence of the Egyptian military justice system also raise serious
concerns regarding its impartiality. In the case at hand, submitting that an active
member of the military (the judge) was tasked with deciding on a case that involves a
defendant who is another active member of the military. In short, a member of one
institution, the army, which by its very nature highlights values of cohesion and
comradery, must decide whether one or m~r~ members of the same institution have
committed a crime against someone who does not belong to the same institution.
135. Showing the incidents that show the lack of independence and impartiality of the
Military Justice System, the complainant submitted that the military prosecutor chose
to charge Dr El-Mogy with public indecency and insubordination, the latter charge
negating the possibility that the alleged abuse could have been ordered by higherranking officers in the purview of section 268 of the Egyptian Penal Code;119 They
submitted that the First Victim's lawyer tried several times to have the charges amended
from public indecency to sexual assault, but his request was denied.F?
136. The Complainants moreover submitted that the military prosecutor ignored several
criminal acts that the First Victim had reported, such as the beating, verbal abuse and
the use of an electroshock device by military personnel during the dispersal of the
See Annex 11.
see relevant Articles in Annex 13.
120 See, Paragraph 177 of the Submission on Merit
118
119
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March 9th protest and at the preliminary place of detention at the Egyptian Museum.
They stated that the military prosecutor ignored such acts despite the presence of ample
evidence.F!
137. The Complainants submitted further that the Military Prosecutor also failed to present
to the Military Court, a record of witness statements and other evidence for the
prosecution contrary to Section 214/2 of the Code of Criminal Procedures.F" They
added that the military prosecutor presented inconsistent statements of the witnesses
for the defence, never cross-examine them or present any witnesses for the prosecution.
They stated that the four witnesses for the prosecution were presented only after the
First Victim's lawyers asked the judge for permission to bring witnesses. Moreover, they
added that the military prosecutor chose not to appeal the Court's acquittal of Dr El
Mogy, a decision that could not be appealed by the victim as per Article 43 (bis) and 117
of the Code of Military Justice.l23
138. The Complainants also faulted the court's ruling and reasoning which considered the
testimony of prosecution witnesses who were not members of the military, which
contradicted the testimony of the other military members who appeared as prosecution
witnesses as hearsay.P+ The Complainants questioned this judgment for what appeared
that it relies on military :personnel testimonies exclusively while dismissing the only
civilian testimonies available. In addition, the Complainants submitted that military
judges rejected the request by the First Victim's lawyers to call the three relevant
military officials of SCAF who had told the: above-mentioned witnesses that forced
genital examinations were a normal cautionary procedure.l>
139. As to the Expansive Jurisdiction of the Egyptian Military Justice System to violate
Article 26 of the African Charter, the complainant submitted that there is a growing
international trend to reject military courts as a platform for dealing with cases
involving allegations of human rights abuses by military personnel against civilians.
The Complainants submitted calling for the Commission to further clarify and solidify
its position on the use of military jurisdiction in cases involving human rights violations
by military personnel.
121 see
Annex14.
122See Annex 11
123
See, paragraph 1810f the Submission in Merit
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140. They armed this position by citing the Fair Trial Principles of the African Commission
that Military Courts shall be deemed to determine offences of a purely military nature
committed by military personnel! and that they -should not try offences which fall
within the jurisdiction of regular courts. 126
141. The Complainants also cited the position under the United Nations Principles for the
Protection and Promotion of Human Rights through Action to Combat Impunity, which
states that -the jurisdiction of military tribunals must be restricted solely to specifically
military offences committed by military personnel, to the exclusion of human rights
violations. 127 In the same vein, they cited the Principle 9 of the Draft Principles on Military
Justice adopted by the former UN Human Rights Commission that, "[i]n all
circumstances, the jurisdiction of military courts should be set aside in favour of the
jurisdiction of the ordinary courts to conduct inquiries into serious human rights
violations such as extrajudicial executions, enforced disappearances and torture, and to
prosecute and try persons accused of such crimes. 128
142. Associating with the facts, the complainant argued that the Egyptian Code of Military
Justice gives the military prosecutor and courts an expansive jurisdiction and wide
discretion that violates the principles enunciated above. Articles 4, 5 and 7 of the Code
of Military Justice give the military justice system jurisdiction over complaints against
members of the military, especially when the alleged abuses take place in a military
institution.P'This jurisdiction is not limited to crimes of a -purely military nature and
does not exclude -offences which fall within the jurisdiction of regular courts as
required by the Fair Trial Principles. Moreover, under Articles 1 and 48 of the Code of
Militanj Justice the only entity that may decide on whether a matter falls within the
jurisdiction of the criminal justice system is the military court itself.130
143. Based on the above, the Complainants submitted that the military justice system in the
present case did not provide guarantees of impartiality and independence of the judges
or the prosecution. It cannot be considered -independent or -appropriatel and the
Respondent State is hence in violation of Article 26 of the Charter.
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On Alleged violation of Article 3
144. The Complainants submitted that their rights to equality before the law and equal
protection of the law were violated thereby offending Article 3 of the African Charter.
145. Submitting on how their right to equality before the law was violated, the Complainants
submitted cited Zimbabwe Lawyers for Human Rights and Institute for Human Rights and
Development in Africa (on behalf of Andrew Barclay Meldrum) v. Zimbabwe 131 where the
Commission stated-the right to equality before the law does not refer to the content of
legislation, but rather exclusively to its enforcement. It ""'means that judges and
administrative officials may not act arbitrarily in enforcing laws· The complainants also
stated that while in military detention, were subjected to acts .of discrimination, torture
and other ill-treatment and were tried by an institution that is neither impartial nor
independent, hence, they did not enjoy -the rights available to other citizens and the
Respondent state has violated their rights under Article 3(1).
146. About to allegation that they did not enjoy equal protection of the law as other similarly
situated persons enjoy it, the Complainants submitted along Zimbabwe Lawyers for
Human Rights and Institute for Human Rights and Development in Africa (on behalfof Andrew
Barclay Meldrum) v. Zimbabwe (cit~,d above) that equal protection of the law under
Article 3(2) (...) means that no person or class of persons shall be denied the same
protection of the laws which is enjoyed by other persons and that -it simply means that
similarly situated persons must receive siI'l'\ilartreatment under the law.132
147. The Complainants referred to the Commission's position on the tests of unequal
treatments, namely that the Complainants did not receive the same treatment as other
male and female (married) detainees who were arrested in the same events; and that the
Complainants did not receive the same treatment accorded to other individuals being
tried by a civilian court.133
148. Regarding the first test, the complainants' averred being subjected to verbal and
physical sexual violence in detention also violates Article 3, since it was a clear situation
in which they did not receive -the same treatment accorded to others. As already
131
Comm. No. 294/04, para. 96
132
Ibid, para 100.
See, complainant submission on Merits Para 200
133
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argued above, this was a clear act of discrimination
in the administrative
and legal
proced ures.134
149. They cited the Egyptian
Initiative for Personal Rights & INTERIGHTS
v Egypt the
equality
principles
Commission
stated
that
and
non-discrimination
international
human
rights law. Consequently,
are core
the premise
under
in
Article 3 of the
African Charter is that the law shall prohibit any form of discrimination
and guarantee
to all individuals
on any ground,
equal and effective protection against discrimination
regardless of race, colour, sex, language, religion, political or other opinions, national or
social origin, property,
birth or another status.
150. As to the second test, the complainants
that they did not receive the same
submitted
treatment accorded to other individuals being tried by a civilian court. They submitted further
that if they had been subjected to the same abuses by an individual who was not a
member of the military, they would have had access to a legal system (ordinary courts)
which
provide
appropriate
more
rights
and
guarantees,
including
the right
to request
an
remedy, to join the case as a civil party and to have the case heard before
an independent
and impartial court. Because the alleged perpetrator
member of the military,
the Complainants
happened
were forced to seek a remedy
military justice system which lacked impartiality
and independence
to be a
through
a
and were therefore
deprived of their right to equal protection of the law.
151. Therefore, the Complainants
submitted
that the mere fact that the military doctor was
tried before a military tribunal never offered them the same level of protection
guaranteed
before a civil court. The trial of the doctor before a military court deprived
the Complainants
152. The Complainants
of their right to remedy and truth.P"
submitted
along with the Commission
for Personal Rights & INTERIGHTS
of justice. In this regard, all individuals
subject to the same criminal and investigative
enforcement
153. Associating
procedures
should be
in the same manner by law
and the courts.
it with the case at hand, they submitted
to the same criminal and investigative
134
Ibid, para 201
135
See, Paragraph 203 of the Complainant Submission on Merit
351 p, g c
position in Egyptian Initiative
v Egtjpt (cited above) that equality before the law also
entails equality in the administration
subjected
that is
that the Complainants
procedures
were not
they would have been
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subjected to had they been tried before civil courts. Accordingly, they submit that the
Respondent state has violated their right to equal protection of the law under Article
3(2) of the Charter.
Violation of Articles 9 (2) and 11
154. The Complainants submitted that the Victims were merely participating in a political
demonstration/ sit-in at Tahrir Square, not a full month after mass demonstrations led
to the removal of Egypt's long-time ruling president Hosni Mubarak. The
demonstration the Complainants took part in called for.specific political objectives, such
as creating a new post-revolution constitution and the removal of Prime Minister
Ahmed Shafik, who was appointed to his post by Mubarak only to be destructed on 9
March 2011, by the Egyptian military tanks and soldiers, together with individuals
dressed in civilian clothes who marched onto Tahrir Square, burned tents belonging to
individuals who participated in the sit-in and arrested 18 female-protesters, victims
inclusive.t=
155.The Complainants added that the activities through which the Complainants expressed
their political opinions fell within the recognised scope of the freedom of expression
and freedom of assembly. The arrest, detention, and subsequent ill-treatment and
torture of the Complainants were in response to tIfe-Complainants' exercise of their
freedom of expression and assembly.
156.As is evident from the context of the violations that took place, the nature of the
questions put to the Complainants and other demonstrators and the accusations
levelled. against them. The authorities' measures were designed to punish and
intimidate the Victims and aimed at discouraging them from exercising their freedom
of expression and, assembly. The measures were unnecessary to preserve national
security and disproportionate and therefore amounted to a violation of Articles 9(2) and
11 of the Charter.
On the Alleged Yiolation of Article 1
157. Complainants submitted along The Social and Economic Rights Action Center (SERAC) v.
Nigeria137 that compliance with the Charter entails both negative and positive
obligations on the part of the State, stating further that the Charter recognises four levels
136
See, Paragraph 215
137Comm.No. 155/96
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of duties for a State to abide by, namely, to respect, protect, promote, and fulfil the rights
of the Charter.
158. Unpacking the obligation to respect, the Complainant submitted that it entails that the
State should refrain from interfering in the enjoyment of all fundamental rights. The
Complainant further cited the Inter-American Court in Velasquez Rodriguez v
Honduras'w that -any exercise of public power that violates the rights recognized by
the Convention is illegal. Whenever a State organ, official or public entity violates one
of those rights, this constitutes a failure of the duty to respect the rights and freedoms
outlined in the Convention.
159. The Complainants stated that the conclusion is independent of whether the organ or
official has contravened provisions of internal law or overstepped the limits of his
authority and that under international law, a.State is responsible for the acts of its agents
undertaken in its official capacity and for their omissions, even when those agents act
outside the sphere of their authority or violate internal law.P?
160. As to the obligations to protect, promote and fulfil, the Complainants citing the
International Commission of Jurists, Military Jurisdiction and International Law,140submitted
that State needs not only to refrain from directly violating the concerned rights but also
to take appropriate positive steps to ensure the framework to prevent and address
violations. They noted that the significant component of such obligation is the State's
procedural duty to investigate a human rights violation and prosecute the
perpetrator(s) to be demanding prompt, thorough, impartial and independent
investigations.
161. The Complainants also submitted along the Commission's Robben Island Guideiinesrt)
that State Parties are under the obligation to ensure the establishment of readily
accessible and fully independent mechanisms to which all persons can bring their
allegations of torture and ill-treatment; [Ensure that] [i]nvestigations into all allegations
of torture or ill-treatment, are conducted promptly, impartially and effectively, guided
by the UN Manual on the Effective Investigation.142
138IACtHR, Series C, No.4, Judgment
of July 29, 1988, para 169
139Ibid, para 170
140P.33
141Adopted in October 2002, Article 17.
142 Ibid, Article 19.
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162. Associating with the facts, the Complainants submitted that the Respondent State
breached its duty to give effect to the rights guaranteed in the Charter as set out in the
analysis of the violations regarding Articles 2, 3, 5, 9(2), 11, 18(3) and 26 above. They
alleged that the agents of the State were directly responsible for engaging in
discrimination and torture against the victims, subjecting them to violence, including
sexual violence, and failing to undertake an adequate investigation into, or prosecution
of the violations, therefore preventing the Complainants from accessing an appropriate
remedy and that the criminal laws of the Respondent State failed to protect the
Complainan tS.143
163. The Complainants also citing Dawda Jawara v. The Gambia, 144 submitted that as
Commission consistently concluded in several of its decisions that a violation of any
provision of the Charter automatically means a violation of Article 1, hence, if a State
Party to the Charter fails to recognise the provisions of the same, there is no doubt that
it violates this Article.
THE COMMISSION'S ANALYSIS OF THE MERITS
164. In this Communication, the Commission is called upon to determine whether the
Respondent's State alleged failure to protect the Victims from the alleged acts or
omissions is a violation of their rights under the African Charter; specifically Articles I,
2,3, 5, 9(2), 11, 18(3) and 26.
165. In determining this issue as per each allegation, Articles 2 and 18(3) will be considered
together, given that both address an element of discrimination. Article 1of the African
Charter will be dealt with after all the other Articles have been analysed since a violation
of Article 1can only be established if other Articles in the Charter have been violated,
quite a usual drift in the Commission's practices.
Violation of Article 2: The Right Against Discrimination,
Non-discrimination
and Article 18(3): The Right of
Against Women
166. Article 2 provides that "Every individual shall be entitled to the enjoyment of the rights and
freedoms recognized and guaranteed in the present Charter without distinction of any kind such
as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and
social origin, fortune, birth or another status. "
143
See, Paragraph 223 of the Complainants written Submission on Merits
144
Comm. Nos. 147/95 and 149/96, para 46
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167. And Article 18(3) provides that "The State shall ensure the elimination of every
discrimination against women and also ensure the protection of the rights of women and the
child as stipulated in international declarations and conventions."
168. In addressing whether these Articles have been violated, the Commission remains
guided by the path it took in Egyptian Initiative for Personal Rights (EIPR) & INTERIGHTS
v Egypt14S and under Article 60 of the African Charter, considers it necessary to describe
what constitutes discrimination and its relationship with gender-based violence as
'.
alleged from several instruments. This is because. the African Charter does not
expressly define discrimination.
169. In the first instance, it is pertinent to note that, while Article 2 pf the African Charter
provides for a right and principle against discrimination, the Protocol to the African
Charter on the Rights of Women in Africa (the Maputo Protocol) specifically defines
discrimination against women as: "~ny distinction, exclusion or restriction or any
differential treatment based on sei and whose 'Objectives or effects compromise or destroy the
recognition, enjoyment or the exercise by women [... J of human rights and fundamental freedoms
in all spheres of life." The same Protocol defines violence against women as All acts
perpetrated against women which cause or could cause th~1JJ:
physical, sexual, psychological, and
economic harm, including the threat to take such acts; or t6 undertake the imposition of arbitrary
restrictions on or deprivation of fundamental freedoms in private or public Life... 1/146
1/
170. Not far away from these, on the other hand, the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) in Article 1 defines Discrimination
against women as [AJny distinction, exclusion or restriction made on the basis of sex which
has the effect or puryose of impairing or nullifying the recognition, enioument or exercise by
women, irrespectioeojtheir marital status, on a basis of equality of men and women, of human
rights and fundamental freedoms in the political, economic, social, cultural, civil or any other
field.
171. Relevant to the settings of the Complaint, the Committee on the Elimination of
Discrimination against Women (CEDAW Committee) in its General Recommendation
No. 19, establishes the correlation between discrimination against women and gender145
Decision on Merit, Para 120
146 Protocol to the African Charter on Human and People's Rights on the Rights of Worne
Protocol Text). African Union; 2003
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based violence, stating that the definition of discrimination includes gender-based
violence, that is, violence that is directed against a woman because she is a woman or
that affects women disproportionately, including inflicting physical, mental or sexual
harm or suffering, threats of such acts, coercion and other deprivations of Iiberty.W
172. Along with these definitions, the Commission reiterates its understanding in the
Association Mauritanienne des Droits de 1"Homme v Mauritania,148that discrimination in
the context of Article 2 of the African Charter manifests into two types, namely, direct
and indirect discrimination. Direct discrimination against women constitutes different
treatment explicitly based on grounds of sex and gender differences, whereas indirect
discrimination against women occurs when a law, policy, programme or practice
appears to be neutral as it relates to women and men, but has a discriminatory effect in
practice on women.t-?
173. The Commission further holds that discrimination against women is a vice that not only
needs to be tolerated by any civilized States but also needs to be prohibited at the roots
of the laws and practices. In this regards, it echoes its positions in Egyptian Initiative for
Personal Rights & INTERIGHTS v Egypt.IS0
174. It also echoes and re-states its position in Mauritanienne des Droits de 1"Homme v
Mauritania (cited above) that viblence against women amounts to a form of
discrimination and irrespective of its manifestation, whether direct or indirect, it is
prohibited with the States assuming their obligation under the African Charter and in
other human rights instruments, internationally and regionallv'Uhence, States must
therefore take positive steps to eliminate all its aspects, including violence against
women.
175. In determining the State obligation in regard, quite analogous to the obligation in
Article 1 of the African Charter, but so close to an obligation in this context, the
Commission notes from the CEDA W Committee General Recommendation No. 28,
See, The United Nations Committee
Recommendation No. 19 (1992), para. 6
147
148
on the Elimination
against Women, General
Communication No.210/ 98, (2000), Para. 11
See, CEDAW Committee, General Recommendation
150 Communication
No. 323/2006, (2013), para. 165
149
151
of Discrimination
28, Para 16.
See UDHR, Articles 1, 2 and 7; ICCPR, Articles 2(1), 3 and 26; ICESCR, Article 2; EC
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para 9152 that States Parties must respect, protect and fulfil women's rights to nondiscrimination and the enjoyment of equality.
176. In applying a framework to deal with violence against women, the Commission stresses
the following palpable obligations that States must observe, specifically at least; a. First, to enact laws prohibiting all forms of violence against women and ensure
that existing legislation is amended as necessary, and monitored through
adequate functioning of legal processes;
b. Secondly, enforce existing legislation, including
investigation,
prosecution
of
perpetrators,
support! rehabilitation services for victims; and
through effective
reparation
and
c. Thirdly, to take specific measures to ensure gender-sensitive investigations
and prevent gender stereotyping and secondary victimization.
177. In the Communication at hand, the Commission remains guided by its decision that
violence against women constitutes discrimination.Ps
Now, in determining
discrimination under Article 2, the Commission follows the tests of discrimination in
its decision in Kenneth Good v Republic of Botswana,154 that a violation of the principle of
non-discrimination arises if: i) equal cases are treated differently; ii) a difference in
treatment does not have an objective and reasonable justification; and iii) if there is no
proportionality between the aim sought and the means employed.
178. Aligning with these tests, the following incidental questions are imminent to establish
the violation, namely, (i) whether women and male protesters had similar treatment;
and (ii) whether the treatment was 'fair and just', given that all women and men in the
scene were under the same circumstances, that is, exercising their political rights.
152UN Committee
on the Elimination of Discrimination Against Women (CEDAW), General Recommendation
No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All
Forms of Discrimination against Women, 16 December 2010, CEDAW/C/GC/28,
available at:
https:11 www.refworld.org/docid/4d467ea72.html[accessed
9 April 2023]
154
Cited above, para. 219
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179. In finding answers to these questions, paragraphs 3 to 11 of this Communication under
'Summary of the Complaint' read together with the Complainant's submission on the
merits, paragraph 9 to 15 is crucial to the sexual nature of the violations purported to
have been committed against the Victims.
180. The Complainants referred to the events which took place on 10 March 2011,where the
Victims (along with 15 other female detainees and 157 male detainees) were
transported to a military prison, questioned on their marital status and, following
identification of the seven unmarried female detainees in the group, subjected to
beating, electroshocks, and forced genital examinations by a male military doctor. The
Complainants submitted that the Victims were coerced and subjected to verbal
intimidation and abuses by State agents. They were forced to undress completely in the
presence of the male military doctor, a female prison guard, and other male officers and
soldiers.t=
181. They submitted further that the military doctor then conducted forced genital
examinations using his hand, an examination, which lasted for approximately five
minutes without their consent to such procedure. The First Victim testified that the
humiliation and physical, psychological and mental damage she experienced was to
such an extent that.156
182. Several conclusions are obvious from the submissions of the statements made by the
Victims, namely, (i) they were exclusively women; (ii) the demonstrations were political
activity in which the victims participated, (iii) they were not protected from the
perpetrators and other unidentified actors during the demonstrations, after
demonstrations in custody and during the purported Virginity test, the justifications of
which the Commission interrogating what appeared to be its justification from the facts,
we are of the firmview that it constituted a case for "two wrongs which never make it
right"; and (iv) the violations were perpetrated on the Victims because of their gender.
183. Having said this, the burden of proof could, therefore, shift on the Respondent State, to
prove that the Victims were indeed protected by the law and that there was no
differential treatment given to both male and female protesters on the scene, and justify
whichever took place based on the established tests. However, for what is considered
in the record and all attempts, the Respondent state never submitted on merit, and there
155
See, Paragraph 60 also Annex 18
156
First Applicant testimony to military prosecution on 28 [une 2011 (translated), p8
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is no evidence to contrary, the Commission finds a violation of Article 2 of the African
Charter.
184. In addressing the violations of Article 18(3) of the Charter, the Complainants submitted
that the victims were subject to gender stereotypes and that the State failed to
adequately investigate their claims of violence and to prosecute the perpetrator; and
that the State's inactions owing to the underlying criminal justice system constituted
their secondary victimisation.
185. Analysing the testimonies provided by the Complainants to establish whether the
allegations were indeed gender-specific, and discriminatory, primarily based on gender
and political opinion together, the Commission consider 2lnaracteristics· of violence
commonly committed against women and men to differ. It affirms that only by
analysing the nature of the violence that the Commission can effectively draw its
conclusions as follows; a. Firstly, considering the sexually demeaning terms or verbal assaults used
against the Victims, such as prostitute, bitch and slut,157the Commission is of
the firm opinion that these words are usually meant to degrade and rip off the
integrity of women who refuse to abide by traditional religious and even social
norms.
The Commission recall its position in EIPR and INTERIGHTS
v Egypt158 in
which it considered that the use of terms such as "whore" and slut" amounted
to sexual humiliation, in combination with sexual molestation.
1/
b. Secondly, the physical assaults spearheaded by the virginity test, described
above are gender-specific in the sense that the Victims were subjected to acts of
sexual harassment and physical violence that can only be directed at women.
For instance, breasts fondling and touching or attempting to touch' private and
sensitive parts and the Virginity test. The Commission finds no doubt that the
Victims were targeted in this manner due to their gender.
157
See, Paragraph 120
158
See, para 143
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c. Thirdly, the alleged threats against the Victims accused of practising
prostitution for participation in the protest can also be classified as being
gender-specific.
186. To determine whether discrimination took place, the Commission recalls and repeats
the respective positions adopted by the Inter-American Court in its Advisory Opinion on
the proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica159
and the UN Human Rights Committee in its General Comment No. 18160 that:a. no discrimination exists if the difference in treatment has a legitimate purpose
and if it does not lead to situations which are contrary to justice, to reason or to
the nature of things; and
b. not every differentiation of treatment wilt~constitute discrimination if the
criteria for such differentiation are reasonable and objective and if the aim is to
achieve a purpose which is legitimate under the Covenant;"
187. Now, posing a rhetorical question on the differentiation of treatment of the Victims in
the present Communication, can it be classified as reasonable and legitimate as
expressed by the UN Human Rights Committee? The Commission finds negative. The
treatment was neither legitimate nor justifiable because there is no reasonable cause
behind the discrimination that was inflicted upon the Victims.
188. The Commission further considers that the alleged incidents took place in the form of
systematic sexual violence targeted at the women at the scene who appear to have
participated in the demonstration. Furthermore, as previously held in Egyptian Initiative
for Personal Rights (EIPR) and INTERIGHTS v Egypt, the perpetrators of the assaults
seemed to be aware of the context of Egyptian society; an Arab Muslim society where a
woman's virtue is measured by keeping herself physically and sexually unexposed
except to her husband. The perpetrators were aware of the consequences of such acts
on the Victims, both to themselves and their families, but still perpetrated the acts as a
Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion
Oc-4/84, January 19, 1984, Inter-Am. Ct. H.R. (Ser. A) No.4 (1984) para 57.
159
Human Rights Committee, General Comment 18, Non-discrimination
Compilation of General Comments and General Recommendations Adopted by H
U.N. Doc. HRI/GEN/1/ Rev.1 at 26 (1994). Para 13
160
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means of punishing and silencing them from expressing their political opinions.
Therefore, on the strength of the analysis of the statements from the Victims.lv'
189, The Commission finds that the type of violence used against the victims in detention
was perpetrated based solely on their sex. In other words, the violence was genderspecific and discriminatory by extension.
190. As to the question that the Respondent State failed to protect the Victims from the
violations of rights they faced, it goes without saying that the State has fallen short of
its obligations under 18(3) of the African Charter.
191. The Commission considering the circumstances of the case is restating its position in
Egyptian Initiative for Personal Rights (EIPR) and INTERIGHTS v Egypt162that the concept
of human rights is based on a typical recognition that every human being is equal and
recognizes the inherent dignity and worth of every human being. It accordingly, holds
that when women are targeted for whatever reason for the mere fact of being women
and are not assured the necessary level of protection by the State in the face of violence,
a range of their fundamental human rights are at stake, including their right to sexual
equality. The State, therefore, must investigate such acts of violence against, whether
committed by state or non-state actors and must bring the perpetrators to book.
192. In the present Communication, it is evident that the State failed in its legal obligation to
protect the Victims against discrimination and take measures to thoroughly investigate,
prosecute, and punish in cases where discrimination occurs by leaving the perpetrators
unpunished.163 The Commission reiterates its approval of the Inter-American
Commission position in Maria da Penha and lvutia Fernandes v. Brazi[164 that "Ineffective
judicial action, impunity, and the inability of victims to obtain compensation provide,
an example of the hick of commitment to take appropriate measures.
193. Further, noting that the effects of the violations perpetrated
on the Victims were
palpable physically, and even from the medical grounds (deploring that the practice for
genital examination has" no scientific or clinical basis" and that there is no examination
/I
161
Statements in Annexture 9, and 20 also captured in paragraphs 60 to 64 of the Submissions
162
Para 155
163 See Paragraph
164
68 of the Submission
Maria da Penha v . Brazil (2001) IACHR para.57
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that can prove a girl or woman has had sex", as the "appearance of girl's or woman
hymen cannot prove whether they have had sexual intercourse or are sexually active or
not"),l65the Commission views that the choice of the state through the Criminal-Statutes
fell short of the required standards.
As to the question of secondary victimization, the Commission considers and remains
guided by the European Committee of Ministers in its Recommendation (also cited by
the Complainants) that Secondary victimisation occurs not as a direct result of the
criminal act, but through subsequent victim-blaming attitudes, behaviours and
practices of State institutions responding to the complainantt=
194.
195. In the case at hand, the Commission particularly finds in the responses of institutions
and individuals to the victims including many of the questions put by the authorities
during their detention and trial.167
196. The Commission takes examples from questions asked to the first Victim captured in
Paragraph 66 of the Complainants' Submissions on Merits and from the English
translation of the testimony of Samira Ibrahim Mahmoud before the military
prosecutor:
-What
is your social [and professional] status?, -Why
did you work in a company
in Cairo province 'while you don't live there and you are not married? -Why
did you
choose to live [in the stated address] even though it is very far from where you used
to work? -What
were you wearing at the time of your arrest?168
Being the questions asked to a victim of sexual violence by the prosecutor, a person she
expected to be on her side, to bring her assailants to book, remains in the mystery of
mockery and constitutes secondary victimization;
Commission noting, UN-Eliminating Virginity Testing: An Interagency Statement. Geneva: World Health
Organization; 2018. Licence: CC BYNC-SA 3.0 IGO, available at
http://apps.who.inl/iris/bitstream/handleI1066S/?7S4S'I/WHO-RHR-18.1S-cng.pdi?ua=1
(Last accessed
on 14th April 2023)
165
166 European Committee of Ministers in its Recommendation
Rec(2006)8 on assistance to crime victims, para.
1.3. See also Rebecca Campbell, What Really Happened? A Validation Study of Rape
167
See, for instance facts submitted in paragraph 66 of the Complainant submission in m
168
Ibid
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197. These questions also suggest negative and gender stereotypes of women protesters,
which assign them a subservient position in society, devalue their role and voices, and
(when the message is absorbed by both women and society in general), contribute to
women adopting and being assigned a passive role in society.
198. To sum up, it is clear that the sexual assaults against the Victims which occurred on the
10th of March 2011 were acts of gender-based violence, perpetrated by state actors, that
went unpunished. For these reasons, based on the above analysis, the Airican
Commission finds the Respondent State in violation of Articles 2 and Article 18 (3) of
the African Charter.
Violation
of Article 5: Prohibition
of Torture
and Cruel, Inhuman
and Degrading
Treatment
199. Article 5 of the African Charter states that: "Every individual shall have the right to the
respect of the dignity inherent in a human being and to the recognition of his legal status; All
forms of exploitation and degradation of man particularly sla,very, slave trade, torture, cruel and
inhuman or degrading punishment and treatment shall be prohibited."
200. In the present communication, the Complainants submitted that the authorities violated
their right to dignity, firstly by engaging in acts amounting to cruet inhuman and
degrading treatment (ill-treatment) and torture; Secondly, by failing to adequately
investigate and prosecute those responsibly; and thirdly, by failing to provide redress
to the Complainants, as a separate violation of Article 5.169
201. The Commission is also called upon in the present Communication to spell out its
position on the relationship between Article 5 and sexual violence generally, i.e. sexual
violence and rape (and forced genital examinations or virginity tests specifically) as a
distinct form of torture.
202. In the first instance, in determining whether the alleged acts inflicted on the Victims
amounted to inhuman and degrading treatment (ill-treatment) in the scope of Article 5,
the Commission reiterates its holding in International Pen and Others v. Nigeria170 that
Article 5 of the African Charter prohibits not only torture but cruel, inhuman or
degrading treatment.
169See,Paragraph 87 of the Written Statement
170Communications
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203. The Commission also remain guided by its position in Curtis Doebbler v Sudan.i?' that
determination of whether an act constitutes inhuman degrading treatment or
punishment depends on the circumstances of the case and that the prohibition of
torture, cruel, inhuman, or degrading treatment or punishment is to be interpreted as
widely as possible to encompass the widest possible array of physical and mental
abuses.
204. As to the obligation of states, the Commission considers'Article 16(1) of the UN
Convention against torture, which calls on States to Undertake to prevent in any
territory under its jurisdiction other acts of cruet inhuman or degrading treatment or
punishment, which amount to torture as defined in article i;cregardl~'ss of who is the
perpetrator, with official capacity or with no capacity.
"
205. The Commission also considers Article 16(2) of the same Convention and adds that the
provisions are without prejudice to the provisions of any other international instrument
or national law which prohibits cruel, inhuman or degrading treatment or punishment
and holds along the view it took in Egyptian Initiative for Personal Rights and Interights v.
Egyptl72 that the spirit of the UN Convention Against Torture shall apply even in the
context of the African Charter.
206. In the same line of reflection, as to what constitutes ill-treatment, the Commission also
take the path it took in the Egyptian lnitiatioe'jor Personal Rights and Interights v. Egypt in
particular, considering the European Court position in Ireland v UK173underscoring that
an act will qualify as 'ill-treatment,' when it attain a minimum level of severity in terms
of (i) the duration of the treatment: (ii) the physical effects of the treatment; (iii)the
mental effects of the treatment; and (iv) the sex, age and state of health of the victim
involved.
207. On the question of what constitutes "inhuman degrading treatment," the Commission
again takes its view in Egyptian Initiative for Personal Rights and Interights v. Egypt, citing
l7lCommunication 236/2000, see also Communication 225/98 Huri-Laws v Nigeria and UN Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment
172
See, Paragraph 191-2
173
(1978) ECHR (Series A) para 162
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the combined Greek Cases174 by the European Commission, the Commission considers
that the notion of inhuman degrading treatment covers at least such treatment as
deliberately causes severe suffering, mental or physical, which in the particular
situation, is unjustifiable, and that for an act to be degrading, there must be some form
of' gross humiliation.'
208. In the Overall, the Commission echoes the positions respectively adopted by itself and
the European Court on Human Rights in John K. Modise v Botswana175 and Campbell and
Cosans v UK176 (also cited by the complainants) that the acts of inhuman and degrading
treatment "not only cause serious physical or psychological suffering but also humiliate
the individual while exposes them to personal suffering and indignity and can be
interpreted to extend to the widest possible protection against abuses, whether physical
or mental."
209. Now, interrogating the circumstances of the case at hand to establish cruel, inhuman
and degrading treatment (ill-treatment) and torture, the Commission recalls the facts in
paragraphs 69 to 75 (above), facts also capture in Paragraphs 3 to 11 on the summary of
the complaint and several annexes. The Commission finds that the treatment against
the Victims amounts to physical and emotional trauma. It is the Commission's view that
the acts were cruel, inhuman and degrading treatment (ill-treatment) in the scope of
Article 5 of the African Charter.
210. As to the question of forced genital examination or virginity test, as distinct torture, the
Commission finds a crux of the matter in the definition of rape to be constituted by more
than just sexual penetration by a male sexual organ into a female organ, the vagina.
211. The Commission drives inspiration from the holding in the cases of the Prosecutor vAnta
Furundiija177 and MigueZ Castro-Castro Prison 7.) Peru178 respectively (also cited by the
Complainants), that rape is constituted not only by sexual penetration, however slight of
Consists of Denmark vs. Greece, Norway vs. Greece, Sweden vs. Greece, Netherlands vs. Greece (1969)
Yearbook: Eur.Conv,
174
on HR 12 page 186
175 Communication
176 (1982)
97/93 Para 71
ECHR, para 28.
IT95-17j1-T, Trial Chamber Judgment of 16 November 1998, para.185.
IACtHR, Case of the Miguel Castro-Castro Prison v Peru, Judgment of 25 November 2006 (
and Costs), Series C No 160, para.310 (Castro-Castro Prison Case ")
177
178
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the vagina of the victim by the penis, but also by any other object or by body organs
used by the perpetrator. The Commission notes and agrees in particular, to the position
in Miguel Castro-Castro (cited above), in which the Inter-American Court considering the
circumstances of the case, agreed that finger-vaginal examination of the inmate
constituted rape and torture.V?
212. The Commission is further guided by the position by the United Nations Human Rights
Committee's position in General Comment No. 28, and recognizes that rape may amount to
a violation of Article 7 of the International Covenant on Civil and Political Rights
(ICCPR), the provision, which is relevantly a prohibition of torture). 180
213. And Considering the circumstances involving inmates, the Commission Considerers
Report by the Special Rapporteur, Mr P Kooijmans,181 and too agrees with the view that
where such sexual violence is committed against women held in detention, it is a
-particularly ignominious violation of the inherent dignity and right to the physical
integrity of the human being and accordingly constitutes an act of torture.
214. The Commission also agrees with the observations=of the UN Special Rapporteur on
Coniemporanj Forms of Slavery, Systematic rape, sexual slaven) and slavery-like practices
during armed conflict! and UN Securitu Council 1 (both cited by the Complainants) that
sexual violence and rape by officials can constitute a form of torture.
215. Interrogating the forced genital examination in the context of this case, from the victims'
testimonies, submission and legal-medical facts available, the Commission finds no
legitimate justification for the conduct of the virginity test. The test was illegal,
torturous, inhuman and degrading. Taking scripts from the complainants' testimonies,
it appears that the test was done in fear of what female victims might say upon their
release". The Commission posse rhetoric as to whether such has any legal backup and
finds negative.
1/
216. In the end, the Commission Considers the joint statement by the UN Human Rights
Office (OHCHR), The United Nations Entity for Gender Equality and the
Empowerment of Women (UN Women) and the World Health Organization (WHO)
there that no scientific or clinical basis and that no examination can prove a girl or
179
Ibid, para.312.
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woman has had sex, as the appearance of a girl's or a woman's hymen cannot prove
whether they have had sexual intercourse, or are sexually active or not. It is therefore a
position that Virginity testing reinforces stereotypes and gender inequality. In addition,
the Commission finds that it is a violation of the rights of girls and women, which can
be detrimental to their physical, psychological, and social well-being, to leave alone, the
painful, humiliating and traumatic notion it reinforces.
217. In the upshot, the acts accompanied by violence, threats and use of force, in the precinct
of this case amounted to rape and torture.
218. On the issue of investigation, the Commission considers Articles 17 and 19 of the
Guidelines and Measures for the Prohibition of Torture, Inhuman and Degrading
Treatment or Punishment in Africa (the Robben Island Gu,idelines)182and holds
accordingly that States have respective obligations to ensure the establishment of
readily accessible and fully independent mechanisms to which all persons can bring
their allegations of torture and ill-treatment and to ensure that investigation of all
allegations of torture or ill-treatment, is conducted promptly, impartially and
effectively.
219. Furthermore, it considers Article 4(c) of the Declaration on the Elimination of Violence
against Women, adopted by the General Assembly Which provides that States should,
"Exercise due diligence to prevent, investigate and, following national legislation,
punish acts of violence against women, whether those acts are perpetrated by the State
or by private persons."183
220. Finding the illegal and unjustifiable acts in the present communication, it is Suffice to
say that the Respondent State failed to conduct an effective investigation into the alleged
acts of inhuman and degrading treatment and no diligent attempts were made to hold
anyone accountable. The Commission would also like to accentuate the fact that, being
a party to the African Charter, the Respondent State should prohibit inhuman and
degrading treatment under Article 5 of the Charter. Furthermore, since the Respondent
182
Adopted by the African Commission during its 32nd Ordinary Session in 2002
183
Declaration on the Elimination of Violence against Women, General Assembly resolu .
December 1993, UN Doc. A/12175/48/104,
23 February 1994
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State has acceded to the Convention against Torture.P' it has formally accepted the
Convention and is therefore bound by it.
221. The Commission notes that the Respondent State is also a party to the ICCPR,l85whose
Article 7 provides that, "No one shall be subjected to torture or cruel, inhuman or
degrading treatment or punishment." The Commission notes that the Victims in the
present Communication were not only subjected to ill-treatment but intimidated in
several ways.
222. The Respondent State, therefore, owed an obligation to the Victims to effectively
investigate the acts of ill-treatment that impacted their dignity and punish the
perpetrators accordingly. Failing to do so only amounted to an infriiigement of the
rights of the Victims under Article 5 of the African Charter and other international
instruments that the Respondent State is a party to and is unfair.
223. From the foregoing, the African Commission concludes a violation of Article 5 of the
African Charter by the Respondent State because tn,e acts committed amounted to
inhuman treatment and investigations were not conducted.
Violation of Article 26: The Duty to Guarantee the Independence of the Courts (Judiciary)
224. Article 26 of the Charter provides that State Parties to the present Charter shall have the
duty to guarantee the independence of the courts and shall allow the establishment and
improvement of appfopriate national institutions entrusted with the promotion and protection
of the rights and freedoms guaranteed by the present Charter."
II
225. The Commission notes that the guarantee of the independence of the Court or Judiciary
is one of the strongholds of the right to a fair trial protected in Article 7 of the African
Charter. In particular, the Commission consider that the adoption of Principles and
Guidelines on the Right to Fair Trail and Legal Assistance in Africa (the Principles of Fair
Trial)186support the assurance of this right. And to give effect to the provisions of Article
26, the Commission positions that States are under the obligation (i) to establish the
judiciaries and (ii) to ensure their independence.
184
The Respondent State Acceded to the Convention on 25 June 1986
185
The Respondent State Egypt ratified the ICCPR on 14 January 1982
.
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226. The Commission, recalls its Principles of Fair TriaL, notably sections A4(a) and A4(g)
which respectively goes that an independent court/judiciary exists only where there is
no inappropriate or unwarranted interference with the judicial process nor decisions by
judicial bodies, except only through judicial reviews by competent authorities, under
the law; and that that -[a]ll judicial bodies must be independent of the executive
branch.
227. As to the dimensions of this independence, the Commission reaffirms its position in
Marcel Wetsh "okonda Koso and others v. DR087 that independence of Judiciary implies
that the consideration of the mode of designation of its members, the duration of their
mandate, the existence of protection against external pressures and the issue of real or
perceived independence.
228. Specifically, on the use of military Courts of Judicature, the Commission notes a general
trend in its jurisprudence, in other regions' systems and at the level of the United
Nations discouraging it. To this effect, the Commission recalls its view in the Law Office
of Ghazi Suleiman v. Sudan,188 that Civilians appearing before and being tried by a
military court presided over by active military officers who are still under military
regulations violate the fundamental principles of fair trial.
229. This similar view is also reflected in the Principles of Fair Trial, which provides
categorically that Military or other special tribunals that do not use the duly established
procedure of the legal process shall not be created to displace the jurisdiction belonging
to the ordinary judicial bodies.V? Moreover, it provides that the only purpose of
Military Courts shall be to determine offences of a purely military nature committed by
military personnel and while exercising this function, Military courts should not in any
circumstances whatsoever have jurisdiction over civilians. Similarly, Special Tribunals
should not try offences which fall within the jurisdiction of regular courts.l'v
230. The Commission notes a general United Nations Principles for the Protection and Promotion
of Human Rights through Action to Combat Impunity, which states that -the jurisdiction
of military tribunals must be restricted solely to specifically military offences committed
African Commission, Marcel Wetsh "okonda Koso and others v. ORC, Comm. No. 281/03, para. 79.
188 Communication
Nos. 222/98 and 229/99, para.64.
187
189
See, section A4(e)
190 Ibid, section L(a) and
(c)
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by military personnel, to the exclusion of human rights violations.'?' In the same vein,
the Commission notes Principle NO.9 of the Draft Principles on Military Justice adopted
by the former UN Human Rights Commission that, "[i]n all circumstances, the
jurisdiction of military courts should be set aside in favour of the jurisdiction of the
ordinary courts to conduct inquiries into serious human rights violations such as
extrajudicial executions, enforced disappearances and torture, and to prosecute and try
persons accused of such crimes.l'"
231. It also notes the Inter-American Court position in Pueblo Bello Massacre v. Colombia that
adamantly rejected the appropriateness of trying military personnel accused of gross
human rights violations before military courts stating that human rights abuses
committed by military personnel do not fall in the category of cases to be tried by
military courts and that military criminal jurisdiction should be limited to -only try
military personnel for committing crimes or misdemeanours that, due to their very
nature, harm the juridical interests of the military system.
232. In particular, the Commission drives position from La Cantuta v. Peru,193 where the
Inter-American Court stated that -military courts do not guarantee the necessary
independence and impartiality to try cases involving members of the Armed Forces.
The Court noted that the characteristics like hierarchical subordination and the fact that
military judges are on active duty, make it impossible to regard military courts as a true
judicial system.
233. Furthermore, in Pueblo Massacre v. Coiombia.v+ also cited by the complainants, the court
positioned that the military justice system is not within the formal judicial branch and
that the military justice system simply could not be independent or impartial in trying
military officials for human rights abuses
234. Interrogating the facts of this case, the Commission finds a sticking point as to whether
the Egyptian Court system, composed of active military officials, qualifies to be
United Nations, Report of Diane Orentlicher, independent expert to update the Set of principles to combat
impunity, Updated Set of principles for the protection and promotion of human rights through action to combat
impunity, E/CN.4/2005/102/
Add.I, 08/02/2005
191
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independent in the scope of guarantees needed in Article 26 of the Charter; Also,
whether the offences charged were military nature to be tried by the military courts.
235. Going through the account for the legal structure of the Egyptian Judicial architecture
in records, provisions of Article 2 of the Code of Military Justice, the law guiding the
eligibility of judges in Egypt, it is clear that it is determined by the Code for the Conditions
of Service and Promotion of Officers of the Armed Forces (Law 232/1959 or -Code of Military
Services), which only applies to members of the militaryl'" and indeed it means that
judges sitting in military courts must be active members of the armed forces. Further,
the judges are selected by the head of the military justice system and are appointed by
the Minister of Defense, a member of the executive,196Their selection process and tenure
are also not guaranteed as it remains at the behest of the executive, citing provisions of
Articles 110, 112 NS 134 of the Code of Militanj Services, which lists several disciplining
measures (including forced retirement) determined solely by a committee of officers of
the armed forces.t"? Article 101 of the Code of Services, all officers must take an oath of
allegiance to a person or entity determined by the President of the Republic (the head
of the executive branch) before commencing their service.l'" Based on these facts, the
Commission poses a rhetorical question, whether the court can be said to be impartial
or independent in the circumstances.
236. The Complainant also narrated facts faulting the impartiality of the court in Paragraph
174 that the First Victim's legal action before the military court, the prosecutors and the
judges had to deal with a case that implicated at least four generals from the Supreme
Council of Armed Forces, who had admitted that virginity tests or forced genital
examinations were a routine practice; the head of the military and judiciary and the
direct superior of the judge sitting in the military court in question, who had completely
denied in December 2012 that such practices take place, stating that there -was no
decision in the first place to conduct virginity tests and no provision for such a
procedure in the regulations of military prisons.t=.And to make things worse, the
Complainants in paragraphs 177 to Paragraph 185 with supporting references,
accounted for incidences that reasonably showed trends of favouritism and the military
[ustice, Law 25/1966 (as amended), published in the Official Gazette on Jun 1, 1966, Article
2. (hereinafter -Code of Military Justice"), see relevant Articles in Annex 15. 207 Code of Militanj Justice, Arts. 1, 54,
see relevant Articles in Annex 15.
195 Code of Militanj
196
Code of Military Justice, Arts. 1,54, see relevant Articles in Annex 15
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justice system favouring their own ranging from the choice of minor offences to serious
sexual offences, neglect to amend charges and to call prosecution
testimonies
of the civilian witness for technical grounds,
where only the prosecutor
witnesses, neglect of
and choices not to appeal
could.
237. In the upshot, the Commission
considered
that the composition
and jurisdiction of the
Military Courts, and the offences tried were not military-related
and could be tried in
civilian courts, the Commission
agrees with the Complainants
did not satisfy the requirement
of impartiality
and independence,
subject to various
among others, and therefore, in the absence of
legal formulations
by the Commission
proper guarantees,
it finds the state in violation of Article 26.
Violation
Law.
that the Egyptian Court
of Article 3: The Right to Equality Before the Law and Equal Protection
of the
238. Articles 3(1) and (2) of the African Charter provide that "Every individual shall be equal
before the law and that even) individual shall be entitled to equal protection of the law."
239. The Complainants
submitted
that their rights to equality before the law and equal
protection of the law were violated, thereby offending Article 3 of the African Charter.
240. Conceptualizing
the parameters
of the right to equality before the law and the equal
protection of the law, the Commission recall its position in Zimbabwe Lawyers for Human
Rights and Institute for Human Rights and Development in Africa (on behalfof Andrew Barclay
Meldrum) v. Zimbabwe 200 (also cited by the Complainants) and remains guided thereon,
that the right to equality before the law does not refer to the content of legislation, but
rather exclusively to its enforcemerit.
It means that judges and administrative
may not act arbitrarily in enforcing laws Further, on the equal protection
officials
of the law,
that no person or ~iass of persons shall be denied the same protection of the laws which
is enjoyed by other persons and that -it simply means that similarly situated persons
must receive similar treatment under the law.
241. The Complainants
submitted
acts of discrimination,
that while in military detention,
torture and other ill-treatment
that is neither impartial nor independent,
to other citizens and the Respondent
200 Comm.
201
they were subjected to
and were tried by an institution
hence, they did not enjoy -the rights available
State has violated their rights under Article 3(1).201
No. 294/04, para. 96
Complainant Submission on Merits, Para, 199
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242. Now, the Commission considers it pertinent to consider two issues along with the tests
of unequal treatments and unequal protection, namely, (i) whether the victims did not
receive the same treatment as other male and female married detainees who were
arrested in the same events; and (ii) whether the victims did not receive the same
treatment accorded to other individuals being tried by a civilian court.
243. Regarding the first test, the complainants'
averred being subjected to verbal and
physical sexual violence in detention as affirmed in the analysis of Articles 2 and 18
above, also violates Article 3.
244. While as to the second test, the complainants submitted that they did not receive the same
treatment accorded to other individuals being tried by a civilian court. They submitted further
that if they had been subjected to the same abuses by an individual who was not a
member of the military, they would have had access to a legal system by the ordinary
courts, which apply the law and procedure that guarantee more rights, including the
right to request an appropriate remedy, to join the case as a civil party, to appeal
conviction or acquittal, and to have the case heard before an independent and impartial
court. Because the alleged perpetrator happened to be a member of the military, the
Complainants were forced to seek a remedy through a military justice system which
lack impartiality and independence and were therefore deprived of their right to equal
protection of the law.202
245. Considering this submission, the Commission echoes its position in The Egtjptian
Initiative for Personal Rights & INTERIGHTS vs Egypt (cited above), (that equality before
the law also entails equality in the administration of justice) and the findings in violation
of article 26 (above), in particular, the aspect associated with the use of Military Justice
System with active military officers, is holding that all individuals should have been
subject to the same criminal and investigative procedures in the same manner by law
enforcement and the courts. The failure by the state to ensure this falls short of the test,
and it is equally a violation of Article 3(2) of the Charter.
246. In the upshot, the Commission agrees that the Respondent state has violated the right
to equal protection of the law under Article 3(2).
Violation of Article 9(2): Right to Freedom of Expression and Opin ion; and Article 11: The
Right to Freedom of Assembly
202
See, Paragraph 203 of the Complainant Submission on Merit
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Hurnan and Peoples' Rights
247. Article 9(2)of the Charter provides that: Even) individual shall have the right to express and
disseminate his opinion within the law.
248. Article 11, on the other hand, stipulates that [E] every individual shall have the right to
assemble freely with others. The exercise of this right shall be subject only to necessan)
restrictions provided for by law, in particular, those enacted in the interest of national securitu,
the safehj, health, ethics, and rights and freedoms of others.
249. Being two different articles and provisions, the Commission considers its decision in
International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights
(on behalfofKen Saro-Wiwa Jnr) v Nigeria,203 for the underlined close relationship between
the rights protected in article 9(2) and 11 to warrant a joint examination. The
Commission also echoes its decision in Law Offices of Ghazi Suleiman v Sudan204 that the
rights protected in Article 9(2) and Article 11 complement each other in the promotion
of democracy on the continent.
250. In particular, the Commission reiterates its position iJ;l 'th~ Constitutional Rights Project,
Civil Liberties Organisation and Media Rights Agenda v Nigeria205 supported by the
provisions of UN Human Rights Committee, General Comment No.34, Article 19: Freedoms
of opinion and expression206 that freedom of expression is a basic human right, vital to an
individual's personal development and political consciousness, and to their
participation in the conduct of public affairs in their country, including the right to
receive information and to express one's opinion in the African Charter.
251. Although the exercise of the rights in Articles 9(2) and 11 permits justifiable limitations
in the law, as to the permissible restrictions, the Commission recalls its position in the
case of Amnesty International, Comiie Loosli BacheLard, La'wyers' Committee for Human
Rights, Association of Members of the Episcopal Conference of East Africa vs Sudan207 that the
-Charter contains no derogation clause, which can be an expression of the principle
that the restriction of human rights is not a solution to national difficulties.
203
Communications 137/94-154/96-161/97,
204
Communication 228/99, para. 53
205
Communications 140/94-141/94-145/95,
206
CCPR/C/GC/34,
207
Communications 48/90-50/91-52/91-89/93,
para.101
para.36
12 September 2011, Para.23
para.79
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252. The Commission, concerning the limitation of Article 9, considers its Resolution on the
Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002)208
and holds that any restrictions on freedom of expression shall be provided by law, serve
a legitimate interest and be necessary for a democratic society.
253. Associating these principles with the facts, the Complainants submitted that the Victims
were merely participating in a political demonstration/ sit-in at Tahrir Square, not a full
month after mass demonstrations led to the removal of Egypt's long-time ruling
president Hosni Mubarak. The demonstration the Complainants took part in called for
specific political objectives, such as creating a new post-revolution constitution and the
removal of Prime Minister Ahmed Shafik, who was appointed to his post by Mubarak,
only to be destructed on 9 March 2011, by the Egyptian military tanks and soldiers,
together with individuals dressed in civilian clothes, who marched onto Tahrir Square,
burned tents belonging to individuals who participated in the sit-in and arrested 18
female protesters, victims inclusive.P?
254. In the end, the Crux of the matter is whether the activities in which the Complainants
expressed their political opinions fell within the recognised scope of limitation of the
freedom of expression, assembly and freedom of opinion. The Commission finds it
negative. It hence remains guided by its decision in Kevin Mgwanga Gunme et al vs
Cameroono» that invocation of restrictions to the rights enshrined in Articles 9 (2) and 11
does not absolve the State from its duty to guarantee these rights. Preventing
individuals from peacefully expressing their (political) opinion in public and from
participating in peaceful protest through arrests, detention, and abuse, as in the present
case, cannot be justified, as such disproportionate conduct amounts to a blanket
restriction and hence a violation of the freedoms guaranteed in Articles 9 and 11.
255. The Commission holds that the arrest, detention, and subsequent ill-treatment and
torture of the Victims were in response to the Complainants' exercise of their freedom
of expression and assembly. As is evident from the context of the violations that took
place, the nature of the questions put to the Victims and the accusations levelled against
208 African Commission, Resolution on the Adoption of the Declaration of Principles on Freedom of
Expression in Africa (2002)" Res.62(XXXII)02, at
http://www.achpr.org/files/sessions/32nd/
resolu tions / 621ach
(Last accessed on 14u, April 2023)
209 See, Paragraph 215
210
Communication 266/03, para.137
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them, A reasonable inference suggests that the authorities' measures were designed to
punish, intimidate, and discourage the Victims from exercising their freedom of
expression and assembly, The measures were unnecessary to preserve national security,
disproportionate, and therefore amounted to a violation of Articles 9(2) and 11.
Violation of Article 1: Obligations of Member States
256. The Complainants allege that the Respondent State has violated Article 1 of the African
Charter. Article 1 of the African Charter provides that, "The Member States of the
Organization of African Unihj parties to the present Charter shall recognize the rights, duties
and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures
to give effect to them.
II
257. The Complainants submitted along The Social and Economic Rights Action Center (SERA C)
v. Nigeria211 that compliance with the Charter entails both negative and positive
obligations on the part of the State, stating further that the Charter recognises four levels
of duties for a State to abide by, namely, to respect, protect, promote, and fulfil the rights
of the Charter.
258.Unpacking the obligation to respect, the Complainant submitted that it entails that the
State should refrain from interfering in the enjoyment of all fundamental rights. The
Complainant further cited the Inter-American Court in Velasquez Rodriguez v
Honduraso? that -any exercise of public power that violates the rights recognized by
the Convention is illegal. Whenever a State organ, official or public entity violates one
of those rights, this constitutes a failure of the duty to respect the rights and freedoms
outlined in the Convention.213
259.The Complainants stated that the conclusion is independent of whether the organ or
official has contravened provisions of internal law or overstepped the limits of his
authority and that under international law, a State is responsible for the acts of its agents
undertaken in its official capacity and for their omissions, even when those agents act
outside the sphere of their authority or violate internallaw.214
2llComm. No. 155/96
2121ACtHR, Series C, No.4, Judgment of July 29, 1988, para 169
213ibid
214 Ibid, para 170
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promote and fulfil, the Complainants citing the
International Commission of Jurists, MilitanJ Jurisdiction and International Law,215 submitted
260. As to the obligations
to protect,
that State needs not only to refrain from directly violating the concerned rights but also
to take appropriate
positive steps to ensure the positive framework
address violations. They noted that the significant component
State's duty to investigate
be demanding
providing
of such obligation is the
human rights violations and prosecute the perpetrator(s)
prompt, thorough, impartial and independent
261. The Complainants
to prevent and
also submitted
along the Commission's
that State Parties are under the obligation
readily accessible and fully independent
investigations.
Robben Island Guidelines, 216
to ensure the establishment
mechanisms
to
of
to which all persons can bring
their allegations of torture and ill-treatment.P?
262. Associating
with the facts, the Complainants
submitted
agents were directly responsible
State
in the Charter. As is set out in
breached its duty to give effect to the rights guaranteed
the analysis of the violations regarding
that the Respondent
Articles 2, 3, 5, 9(2), 11, 18(3) and 26 (above), its
for engaging in discrimination
and torture against the
victims, subjecting them to violence, including sexual violence, and failing to undertake
an adequate investigation
the Complainants
the Respondent
into, or prosecution
from accessing an appropriate
of the violations,
therefore preventing
remedy, and that the criminal laws of
State failed to provide sufficient protection
against the crime of rape
committed against the Complainants.st"
263. The Commission
remains guided by its decision in Dauida [auiara v. The Gambia,219 that
a violation of any provision of the Charter automatically
means a violation of Article 1,
hence, if a State Party to the Charter fails to recognise the provisions of the same, there
is no doubt that it VIolates this Article.
DECISION OF THE COMMISSION ON THE MERITS
264. For the foregoing reasons, the Commission: (a)
Finds that the Respondent
State violated Articles 1, 3, 5, 7, 9(2), 11, 18(3) and 26 of
the African Charter;
215 r.33
Adopted in October 2002, Article 17.
Ibid, .Article 19.
218 See, Paragraph 223 of the Complainants written Submission on Merits
210
217
219
Comm. Nos. 147/95 and 149/96, para 46
.
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(b) Finds that the forced genital examination against the Victims was degrading
inhuman and torturous, therefore, requests the Respondent State to desist and
eradicate such practice of examinations;
(c)
Urges that the Respondent State prosecute the perpetrators of the sexual violations
against the Victims in Courts with Competent jurisdiction for such violations;
(d) Urges the Respondent State to reform the military prison procedures code to
include strict guarantees for respecting the bodily integrity. ~nd privacy rights of
prisoners during searches, medical check-ups and during tneir detention, and for
the civil prosecutor and civil courts to have exclusive jurisdiction to investigate and
adjudicate allegations of violations by military personnel against civilians;
(e)
Request the Respondent State to compensate each of the Victims in respect of the
injuries they suffered from as a result of violations of their rights at the sum of
100,000 (one hundred thousand) Egyptian Pounds (at the present rate) as requested
by the Complainant, foqthe phys~cal and emotional damages/traumas they
suffered; and
(f)
Urges the Respondent State to report on the steps it has taken to implement these
decisions under Rule 112 (2) of its 2010 Rules of Procedure, within one hundred and
eighty (180) days.
Done in Banjul, The Gambia during the 75th Ordinary Session of the African
Commission on Human and Peoples' Rights, 3rd to 23rd May 2023.
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