UNION AFRICAINE
AFRICAN UNION
�J-<,., .lb...a""'jl
African Commission on Human & Peoples' Rights
UNlAO AFRICANA
@
Commission Africaine des Droits de /'Homme & des Peuples
31 Bijilo Annex Layout, Kombo North District,
Western Region,P. 0.
Box 673, Banjul,
TheGambia
Tel: (220) 4410505/ 4410506; Fax: (220) 4410504
E-mail: au-baniulf"africa-union.orn· Web www.achpr.ora
Communication 670/17
Fadhl Al Mawla H u s n i Ahmed Ismail and 1 9 Ors
(represented by Freedom and Justice Party of
Egypt)
v
Arab Republic of Egypt
Adopted by the
African Commission on Human and Peoples' Rights
during the 65'1'0rdinary Session
Banjul, The Gambia
heldfrom 21 October
to 10 N
ovember 2019
Admissibility Decision of the African Commission on Human and Peoples' Rights
Communication 670/17 - Fadhl Al Mawla Husni Ahmed Ismail and 19 Ors
(represented by Freedom and Justice Party of Egypt) v. 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 21 November 2017 from the Freedom and Justice
Party of Egypt (the Complainant), on behalf of Fadhl Al Maw a Husni Ahmed Ismail and
nineteen Others (the Victims}.'
2.
The Complaint is submitted against the Arab Republic of Egypt (Respondent State), a
State Party to the African Charter on Human and Peoples' Rights (the African Charter)."
3.
The
Complainant
submits
that the
twenty
Victims
were
sentenced
to
death
in five
different cases before the Egyptian Courts. The Complainant alleges that the Victims have
no further right of appeal and that four of these Victims were tried in absentia. According
to the Complainant, the sixteen Victims who are in custody face imminent execution, and
the lives and well-being of the Victims, their families and their lawyers are at imminent
risk due to the proceedings in Egypt.
4.
The first case relates to the upholding on 07 June 2017 by the Court of Cassation, the
highest appellate court in Egypt, of the death sentence verdict of six of the Victims who
were.accu ed of murdering Sergeant Abdullah Metwally (the Metwally case), a house
guard of one of the judges on the panel of former President Mohamed Morsi's trial. The
death sentence was originally imposed on the six Victims by the Criminal Court on 07
September 2015 for establishing and joining a terrorist group, providing the group with
weapons and money and murdering Sergeant Metwally.
5.
The Complainant alleges that the six Victims were disappeared for periods ranging from
three days to three months, were denied legal representation, access to their families and
1
Alexandria
protest killing case:
Fadhl Al
Mawla
Husni Ahmed
Ismail;
Kafr Al
Sheikh bombing case: Ahmed Abd Al
Hadi
Mohammed Al Sehimy; Sameh Abdullah Mohammed Yousif; Lutfi Ibrahim Ismail Khalil; Ahmed Abd Al Mon'em Salama Ali
Salama; Ahmad Al Sayed Abd Al Hamid Mansour; Fakih Abd Al Latif Radwan Al Agmi; Sa mah Ahmed Mohammed Abu Shaer;
Metwally case: Ahmed Waleed Meshaly; Mahmoud Mamdouh Wah bah; Bassem Mohsen Al Khereby; Ibrahim Yahya Azzab;
Abdalrahman Attiya;
Mohammed Adel
Kahled
Hamed
Raf at Gad Askar; Qatar espionage case:
Keilani;
Rabaa
Ahmed Ali Abdo Afifi; Ahmed
Ismail Thabet Ismail;
Dispersal case: Waleed Al Sayed Habeeb; Vasser Al Asasir Abd Al Mon'em Ismail;
�:·--�.
Vasser Abd Al Samad Mohammed Abd Al Fattah Shukur.
h�/J11.011MVMt\41,01)
/
2
Egypt ratified the African Charter on Human and Peoples' Rights on 20 March
y}
">
l
tCRflA.r.,l,.
'
Coo
·,
'
,
. , -,
ti t
(r.ivi\
oi·
\:"
�
198
AU-Uf.
8 "
,
�
c�+4PP,,cll,1Nt.ef;,�y_.':>
\
\
·-....�_ETOE?-�
r
ti
1
were tortured during interrogations in order to obtain confessions. The Complainant
further alleges that the torture included anal rape with a wooden stick, electric shocks,
burning with cigarette butts, suspension in stress positions for days and threats that their
mothers and sisters would be raped. The Complainant states that the six Victims later
retracted their confessions on the basis that it was obtained under torture and that this
led to further torture by the National Security Agency (NSA).
6.
The Complainant avers that there were also flaws in the manner in which the trial was
conducted, including the validity of the evidence produced in Court and the testimony
of alleged eyewitnesses. In this regard, the case rested primarily on the Victims' recanted
confessions, the Court ignored forensic evidence related to the alleged torture, the rifle
produced by the prosecution as the murder weapon did not match the bullets found in
the victim, there were a number of discrepancies between the evidence produced and the
witness' testimonies, and the main defendant provided evidence that at the'time he had
undergone surgery which rendered him completely unable to hold a gun.
7.
The Complaint further avers
that the Court applied
appeal system which gives it the discretion not to he
abolishes a previous two-stage ap
could refer cases back
recent legal amendments
to the
r any defence witnesses and which
ea! process, through which the Court of Cessation
to the Criminal Court. or retrial. The abolition means that all
judgements of the Court of Cassation are final and l:iinding, and the Complainant alleges
that
this
makes
it
easier
for
the
Court
to
impose
death
sentences
without effective
challenge. Given these amendments, the Complainant avers that it is unlikely that the
appeal submitted by the six Victims on 15 June 2017 on the basis of procedural flaws in
the trial will be granted. The Victims are allegedly still detained at various locations, held
in appalling conditions and
8.
enied medical care and family visits.
The second case relates to the upholding on 19 June 2017 by the Supreme Military Court
of Appeals, the highest military court of appeal, of the death sentence verdict of seven
Victims
(of which
three were sentenced in absentia)
implicated in the Kafr Al Sheikh
stadium bombing which took place in April 2015 in which a room next to the stadium
exploded,
leaving
seven
dead
and
three
injured
(the
Kafr
Al
Sheikh
case).
The
Complainant states that this case falls under the jurisdiction of the military courts since
the passing of a new law which expands the jurisdiction of military courts to all electricity
networks,
road
and
bridge networks
property, amongst others.
9.
as
well
as
other
buildings,
utilities
and
public
denied
access
to
lawyers.
The
torture
allegedly
included
assault,
suspension
by
the
wrists, electric shocks and threats of rape to their female relatives. The Complainant avers
that the records of the National Security Reports for the arrest of two of the Victims who
were arrested on 19 and 20 April 2015 respectively, were post-dated by two months in
order to cover up the prolonged periods of secret detention. The Complainant states that
complaints filed by families of the Victims with the Public Prosecutor's Office following
their forced disappearances and torture were not acted upon and the cases closed.
10. The Complainant alleges that the sentence in this case was based solely on the statements
obtained under torture and the testimonies of state security officers. The Complainant
alleges that the Court failed to consider an expert report on the manner of detonation of
the explosives and also ignored eyewitness testimonies which confirmed that the Victims
were not present at the scene when the crime took place, as well as the admission by the
military investigators that the CCTV'footage could not accurately identify the culprits.
11. The third case relates to the upholding on 03 July 2017 by the Court of Cassation of the
death sentence verdict of three of the Victims who took part in a sit-in at Rabaa
Adawiya,
which
was
violently
dispersed
by
the
Dispersal case). The Complainant alleges that the
Egyptian
security
forces
Al
(Rabaa
Victims were arrested and forcibly
disappeared, and while in detention, were subjected to severe beatings and electrocution.
The Complainant further
reliance
by
the
Court
prosecutors
and
failure
alleges
on
by
that the
information
the
trial
in
Court to
was
case
allow
rife with
papers
the
irregularities,
which
Victims
to
had
been
including
Jost
present their
by
the
defence
witness-es.
12. The fourth case relates to the upholding on 24 April 2017 by the Court of Cassation ofthe
death sentence verdict of one of the Victims for allegedly killing a Coptic man during a
protest
in
Alexandria
on
15
August
a
key
eyewitness
Complainant
avers
that
incident,
these
contradictions
and
were
2013
(Alexandria
gave
five
protest
different
not addressed
killing
accounts
case).
The
of
the
same
in the judgement,
the
Court
disregarded stark differences between the account of the arrest told by the defence and
the criminal investigation agent and the Court also disregarded an official statement from
his employer that the Victim was in fact at work when the crime was committed. The
Complainant further avers that the Victim was tortured by the NSA in a failed attempt to
get him to confess and that the Court relied solely on the testimony of one witness who
was pressured into testifying by an NSA officer.
13. The fifth and final case relates to the upholding on 16 September 2017 by the Court of
charged with unlawfully communicating with a foreign country with the intention of
damaging the country's military, political and diplomatic status and its national interest
in exchange for receiving money from
the State of Qatar (Qatar espionage case). The
accusations also allegedly included the possession of reports and documents relevant to
issues of national security and membership of an unlawful group.
14. The
Complainant avers
that the
evidence
relied
on
by
the Court was
mainly
secret
investigations by national security, eyewitness testimony which lacked any supporting
evidence, and the confessions of some of the Victims, which they later withdrew on the
basis that they were obtained under torture. The Complainant alleges that this torture
included
submersion
for
long
periods
in freezing cold
water,
electric
shocks,
being
chained to a metal bedframe upside down and chained in restrictive positions for long
periods and whipping. The Complainant alleges that as a result of the t
rture some of the
Victims had fractured ribs and damaged nerves. The Complainant fur
er avers that the
Victims' lawyers were not giv.en a chance to present their defence, and that ·the Court
added new charges which had not been investigated by the prosecutors and on which
the Victims were never interrogated.
15. The Complainant submits
that
there
is no
further right of appeal from the Court of
Cassation or the Supreme Military Court of Appeals.
Articles alleged to have been violated
16. The Complainant alleges violation of Articles 4, 6 and 7 of the African Charter.
Prayers
17. The Complainant requests the African Commission on Human and Peoples' Rights (the
African Commission) to:
(a)
Issue provisional
measures
to direct the Egyptian authorities to suspend the
death sentences while the proceedings before the Commission are being held,
also
that
such
directions
should
be
extended
to
the
four
who
have
been
sentenced in absentia, on the basis that they may be produced;
(b) Make a finding that Egypt has violated Articles 4, 6, and 7 of the African Charter
in its conduct of the trials and the imposition of the death penalty against the 20
defendants;
(c)
Procedure
Make a decision for the Respondent State to set aside the death sentences and
18. The Secretariat received the Complaint on 21 November 2017 and acknowledged receipt
of the same on 23 November 2017.
19. The Commission decided to be seized of the Communication in the inter-session on 29
November 2017 and granted provisional measures in accordance with Rule 98(4) of its
Rules
of Procedure.
informed
of
this
By
letter
decision
and
and
Note
the
Verbale
of
Complainant
the
was
same
date,
requested
the
to
Parties
submit
were
on
the
admissibility of the Communication within two (2) months.
20. The Respondent State in a Note Verbale of 18 December 2017 indicated that they cannot
implement
the
request
for
provisional
measures,
as
not
enough
information
was
provided in the request. In addition, the State raised challenges as to the locus standi of
the Complainant.
21. In
a
Jetter
of
02
January
2018
the
Complainant informed
the
Commission
that
the
Respondent State had breached tlie request for provisional measures by executing four
Victims named in this Communication.t The Secretariat by letter dated 18 January 2018
indicated that this matter would be brought to the attention of the Commission.
22. On
25
January
2018
the
Gomplainant
requested
for
an
extension
to
submit
on
the
admissibility of the Communication, and the Complainant was informed by Jetter of 01
February 2018 that the Communic
tion would be tabled before the Commission at its
next Session. Bx Note Verbale of 07 Rebruary 2018 the Respondent State was informed
that-the matters raised in its Note Verbale of 18 December 2018 would be tabled before
the Commission for consideration.
23. The Complainant's submissions on admissibility were received at the Secretariat on 30
January 2018.
24. The Commission considered the challenge raised by the Respondent State during its 23rd
Extraordinary Session, held from 13 to 22 February 2018, and decided to request both
Parties to submit on locus stnndi in their admissibility submissions. This decision was
transmitted to the Parties on 14 March 2018, in which the Commission also granted the
Complainant an additional thirty (30) days within which to submit on admissibility. The
same
correspondences
justification
for
the
also
informed
the
non-implementation
Parties
of
that
the
the
Respondent State
provisional
measures,
had
and
no
the
' T h e Victims who were executed were Ahmed Abd Al Hadi Mohammed,;���Abdullah Mohammed Yousif,
Lutfi Ibrahim Ismail Khalil and Ahmed Abd Al Mon'em Salama Ali Salam'\�l�;
l
e
"
.
·
;
�
;
,
'\\\
v�
l'f �
I
i
\
�
,
,
.
5
AU·Ut.
_t
t/
$1.
''�:�;�
Commission reiterated the request for provisional measures in relation to the remaining
Victims.
25. By
letter
dated
22
May
2018,
the
Complainant
proffered
additional
submissions
in
relation to its locus standi, as requested by the Commission.
26. By letter and Note Verbale of 07 June 2018 the Secretariat acknowledged receipt of the
submissions
of 30
January
and
2018
May
22
2018
and
forwarded
the
same
to
the
Respondent State, requesting the State to submit on admissibility within two (2) months.
27. The Respondent State on 20 June 2018 indicated thaf the Commission had not addressed
its previous concerns in relation to the Complainant's locus standi, and reiterating these
concerns. The Secretariat acknowledged receipt on 31 August 2018.
28. By letter and Note Verbale of i6 November 2018, the Commission informed the Parties
that the Respondent State had been granted an addition thirty (30) da,rs within which to
submit on
admissibility,
and
had
been
advised
that its
challenges
in relation
to
the
Complainant's locus standi is best addressed within the context of the said submissions.
29. By Note Verbale of 19 December 2018, the Respondent State replied, again reiterating its
initial concerns in relation to the locus stnndi of the Complainant
avowing that its initial
concerns " . . . leave no doubt about the failure of compliance of the Communication with
the ACHPR
Rules of
Government
of the
Procedure,
Arab
and hence,
Republic
of
Egypt
the
Embassy
wishes
to indicate that the
refuses to engage in any
further
dealings
related to the Communication at hand for the above mentioned reasons."
30. By
letter
and
Note
Verbale
of
08
March
2019,
the
Parties
were
informed
Commission had considered the Respondent State's Note Verbale of 19
that
December
the
2018
during its 25th Extraordinary Session and decided to proceed to make a determination on
the Admissibility of the Communication, based on the information before it.
1h
31. During its 26
and
decided
African
Extraordinary
Session the Commission considered
that it would consider the matter of locus standi under
the
Communication
Article
56
(1)
of the
Charter, and not as a preliminary issue.
,., ,,,,,,. ,., '�
Admissibility
�
--;,
�
The
l
Complainant's Submissions on Admissibili
t
\;i
;J
•
{j
�
"'"�
%
'; '
;-)
8 " '
':!;
�
"'
o
Au-u,.
'J(!
J
cy'
11>,.'t"'"ll1C11111r-o¢
,,,..,,fl
:,
Uf ET Ot��$':::'
6
32. The
Complainant submits
that this
Communication
is
admissible
under
the
African
Charter, noting that the conditions under Article 56 are cumulative. The Complainant
submits that this Communication clearly indicates that it is submitted by the Freedom
and Justice Party of Egypt, in respect of the Victims sentenced to death. It states that the
Communication includes full contact details for both the Complainant and its lawyers
and that no question of anonymity arises.
33. The Complainant further states that the Communication is compatible with the African
Charter because the facts contained within it are sufficient to demonstrate prima [acie
violations of Articles 4, 5, 6 and 7 of the Charter. The Complainant submits that the
Respondent State has been a Party to the African Charter since 1981 and that the matters
addressed in the Communication occurred after the Charter became applicable in the
territory of the Respondent State.
34. The Complainant submits that it is competent to bring the Communication, as there is
nothing in the Charter to limit tlie definition of Complainant to persons who are victims
of the alleged violations, and that the Commission has previously held in Maria Baes v
Zaire' that the Complainant need not be a national of a State Party to the Charter to submit
a Communication.
35. The Complainant respectfully submits that there-is nothing disparaging or insulting in
the present Communication and that it records factua1 events.
36. In
elation to the requirement that Communications shall be considered if they are not
base
exclusively
on
news
disseminated
through
the
mass
media,
the Complainant
submits that in the jurisprudence of the Commission this requirement does not prevent
Complainants from relying on any material drawn from the mass media, rather that it
should not be exclusively based on mass media.> The Complainant submits that in the
present case it does not have free access to the proceedings, and that even defense lawyers
were barred from accessing the proceedings. Furthermore, the Complainant submits that
it has had trouble communicating with lawyers and human rights activists in Egypt.
37. The Complainant, however, submits that the Communication is not exclusively based on
news
disseminated
internationally
Watch
4
5
and
through
recognized
Amnesty
the
mass
media,
non-governmental
International;
and
also
organizations,
statements
of
the
draws
such
United
on
as
reports
Human
Nations
and
from
Rights
other
Communication 31/89 - Maria Baes v Zaire (1995) A C H P R .
Communication 147 /95-149/96 - Sir Dowda K. Jawara v The Gambia (2000) ACHPR para 24.
7
international organizations in response to the situation in Egypt; and evidence relating to
the
investigations
disseminated
by
and
faulty
defense
trial
lawyers
proceedings
of
the
obtained
individuals
by
the
sentenced
Complainant,
to
death
and
imprisonment.
38.
In relation to the requirement that Communications shall be considered if they are sent
after exhausting local remedies, if any, unless it is obvious that this procedure is unduly
prolonged, the Complainant submits that both itself and the Victims have exhausted all
local remedies.
In this regard, the Complainant states that the death penalties handed
down have all been declared final, given that they have bee� upheld by the Court of
Cassation, the highest court in Egypt.
In additio� it is submitted
that no presidential
pardons were granted in respect of these cases.
39. The Complainant refers to the test for the exhaustion of domestic remedies
the Commission in Jawara v The G111nbi116 , as well as clarification in Alfre
s set out by
B.
Cudjoe v
Chana' that "the internal remedy to which Article 56(5) refers entails a remedy sought
from courts
of a judicial nature."
available,
must
it
also
be
Th
considered
Complainant argues
whether
it
is
that even if a remedy
effective
and
sufficient.
is
The
Complainant also refers to jurisprudence of the European Court of Human Rights, as
quoted by the African Court on Human and Peoples' Rights related to the meaning of
exhaustion of local remedies. B
40. The Complainant refers to the decision of the European Court of Human Rights inAkdivar
and Others v Turkey, in which it held that situations of "martial law and characterized by
seve e civil strife"
the "risk
and
of reprisals against the applicants
or their lawyers"
provide no prospect of success of a domestic remedy, and thus amount to an exhaustion
of local remedies." The Complainant submits that there are clear impediments to the
availability
of
any
local
judicial
remedies,
especially
in
the
highly
repressive
environment, and these remedies are neither effective nor sufficient. The Complainant
avers that these fundamental impediments show that any local judicial remedy is not
"sufficiently certain not only in theory but in p r ac ti ce ."10
6
Communication 147 /95-149/96 - Sir Dowda K. Jawara v The Gambia (2000) ACHPR para 31.
'Communication 221/98 - Alfred B. Cudjoe v Ghana (1999) ACHPR para 13.
8
African Court on Human and Peoples' Rights, Tanganyika Law Society v Tanzania, Judgement, Application No. 009/2011,
14 June 2013, para 82.
9
European Court of Hum'!)l:
ts;;�kd1var and Others v Turkey, Judgement Application No
//...,,,YJ\,.
paras 73-75
,,
,
,
'*
..,
�·
21893/93, 16 September 1996,
fl,.
��c1<.£T,1.,,,,/' · ...�
0
10
0 ,
"
';,
As above, para 52. �
/�
: . ,
�
...
\
/ii ;
,,
�J'��;�
1'
11�rP.,1i•rr;��j
{�fl
" , . , ,
--,?�'
8
41. The Complainant submits that in particular the risks of reprisals against the accused or
their
defense
lawyers
show
that
there
is
no
prospect
of
successfully
pursuing
any
apparent appellate avenues and that it can, therefore, be concluded that local remedies
have been exhausted.
42. In
relation
to
the
requirement
that Communications
shall
be
considered
if they
are
submitted within a reasonable period from the time when local remedies are exhausted,
the Complainant states that the Charter specifies no time limit in this regard. It refers to
the
time
limit of six
months
after
exhaustion
of local
remedies
provided
for
in the
European Convention on Human Rights and the American Convention on Human Rights
as
relevant in
determining
what constitutes
a reasonable
Complainant states that the Complaint was submitte
period.
In
this
regard
the
on 17 November 2017, whereas
the dates for the final sentencing of the cases were as follows:
a)
Alexandria Protest
Killing on 24 April 2017; b) Metwally case on 7 June 2017; c) Kafr Al Sheikh Bombing on
19 June 2017; d) Rabaa Dispersal on 3 July 2.017; and e) the Qatar Espionage case on 16
September 2017.
43.
In relation to the requirement that Communications should not deal with cases that have
been settled by the State involved, the Complainant submits that the Respondent State
has
not
settled
the
case,
and
that
the
case
has
not
been
submitted
to
any
other
international human rights body.
44. In addition to its submissions on Admissibility, the Complainant further requests the
Commission to find that the Respondent State is in violation of the provisional measures,
which had not,peen implemented to date, and which were breached in relation to the four
individuals
45. The
at were executed.
Complainant
submits
that
of
the
twenty
death
penalties
to
which
this
Communication relates, four-individuals were executed after the Commission issued the
request for provisional
measures,
four
were
sentenced
in absentia,
and
thus
twelve
individuals are facing imminent execution. They request the Commission to refer the
matter to the Assembly of Heads of State and Government pursuant to Article 58 of the
African Charter and Rule 84(1) of the Commission's Rules of Procedure, and
whatever
other
action
deemed
appropriate
to
safeguard
the
rights
of
those
to take
facing
execution.
46. The Complainant in its admissibility submissions submits further evidence in relation to
the individual cases, which it claims shows the various injustices surrounding the trials
and verdicts, and which should be read in conjunction with the original Communica �
��,Z
�
�
stCR
f?r.;r
� /
'" �
th
AU-Ut.
�
�
� 4/!Rh:f\!Nt
-o�.,,\
;:
I
\)�'-�?;
�
·----
47. The Complainant submits that in relation to the Kafr Al Sheikh case, while new evidence
has come to light which shows the true perpetrators of the crime, including an admission
of guilt in a separate case, the military court refused to admit or investigate this evidence,
or to halt the death sentences. The Complainant further avers that it obtained reports
from the National Security Agency related to the official investigation in this case, in
which it is indicated that no evidence was found when the homes of the accused were
searched, to implicate them in the alleged offense, yet they were arrested and detained.
48.
The Complainant further submits that in interviews with family members of the Victims
who were executed, they related that the Victims had been forcibly disappeared and
showed signs of torture. The Complainantavers that several complaints were filed with
the
Attorney
allegations
of
General
following
kidnapping
and
the
disappearance
torture
were
not
of
the
ictirns,
investiga ed
and
but
that
dismissed
these
on
12
December 2015 without any charges. The Complainant also avers that defense witness
testimonies were not mentioned in the final verdict, and that while one Victim took off
his shirt during the trial to show wounds that he had sustained to the judge, the judge
did not acknowledge the visible signs and failed to take any action.
49. In relation to the Alexandria protest case, ilie Complainant submits that the wife and
daughter of one of the Victims indicated in interviews that there was no evidence to link
him to the incident, as he was at his place of work, which is not close to where the incident
took place. In relation to the police guard murder case, the Complainant submits that
media interviews with friends and family of the Victims indicate that they were not
informed about the whereabouts of the Victims after their arrest, and they were held in
inhuman conditions.
50. The Complainant also
submits
"further
evidential background"
which
relates
to the
Respondent State's human rights record in general, which it submits provides further
evidence on the treatment of detainees, those subject to the death penalty and accused of
criminal offences in Egypt.
This evidence is obtained from public
sources, including
reports by Human Rights Watch, Amnesty International and the International Federation
for
Human
Rights.
In
this
regard
they
refer
to
statistics
of
documented
forced
disappearances, similar cases where individuals were executed following flawed trials,
as well as indications of mistreatment in prisons, arbitrary detentions, systemic summary
executions of those held in detention and detention without trial. The Complainant states
that al�
,
,-;;;-:- 1;:fficial figures are available, at least 1700 people face death penalty in
1
(}�wl
E gyp
_
1,
.
:,i:C;;fr-'1!.>1
.
'\::.,>',
''"ll'
·o.,
(/;
\
· , \
(( \ �
) �,'�t')
'!). -, AU.�t._,,;,
( lb
.,, '-�
...,;:;
J
/
'Yq...,./t'P.,'l.:�1·ir c��<;)'� . {!'
��\l'-":'•
10
51. The
Complainant
submits
that
"the
unjust
trial
practices
are
symptomatic
of
the
repressive actions against all legitimate opposition in Egypt; conduct which is in violation
of the African Charter and international human rights law." The Complainant further
submits
that
freedom
of
speech
and
assembly
have
been
heavily
restricted
and
organizations opposed to the military regime, primarily the Muslim Brotherhood, was
banned
and
labelled
a
'terrorist'
organization
in
December
2013.
The
Complainant
submits that several of the individual named in this Communication have been, or were
thought to be members of the Muslim Brotherhood.
52. The Complainant states that the systemic violations have facilitated and aided the courts
to conduct proceedings which ignore all basic fair trial considerations and serve as a
means of sentencing opponents of the State to death or long terms in the absence of
evidence. The Complainants submits that this should all be taken into account when
making a determination on the admissibility and merits of this Communication.
Submissions by the Respondent State on locus standi
53. The Respondent State in a Note Verbale of 18 December 2017 raised challenges as to the
locus standi of the Complainant, stating that it does not have any eligible status to present
a Communication to the Commission for the following reasons:
Justice
Party
(the
Complainant)
has
Administrative Court on 8/4/2014
1977
regulatin
the
operation
of
been
dissolved
by
a
(1) the Freedom and
sentence
of
the
Supreme
ue to its violation of Article 4 of Rule 40 issued in
p o i ical
parties
in
the
Respondent
State;
(2)
the
Complainant is a political entity established{>y the Muslim Brotherhood, which had been
declared
a terrorist
organization
by, a ruling
of the
North
Cairo Criminal Court on
1/ 6/2017; and (3) the Communication is brought by a political party, whereas political
parties are not included in the Rules of the Procedure of the Commission under Rule 63
(1) which lists the institutions which may request for a matter to be included in the agenda
of the Ordinary Session of the Commission. The Respondent State further elected against
submitting on Admissibility on the basis that the Complainant lacks locus standi.
Additional submissions by the Complainant on the submissions by the Respondent State
54. Following
the
challenge
raised
by
the
Respondent
State
on
the
locus
standi
of
the
Complainant, set out in paragraph 20 above, the Commission requested the Complainant
to submit arguments in this regard.
55. In response to the submission by the Respondent State that the Complainant has been
dissolved by the Supreme Administrative Court and is a political entity establish��
1.i.P.1�,
.
q
�
"'
.,
':.,c?:£
�
· fo:� •
r®\
l
)
,
,
. ;\
t
\:f;J
'\
'il'
-1'
,o
AU·Uf,
l's "'
!"
c,
'v
�'Yo:t41'Rl\.'II.I� f
f
:.
$';
;,_,
�
���
I
the Muslim Brotherhood, which has been classified as a terrorist organization by the
North Cairo Criminal Court, the Complainant submits that the Freedom and Justice Party
itself
is
not a
terrorist
Respondent State
has
organization.
classified
the
In
addition,
Muslim
the
Complainant
Brotherhood
as
a
submits
that the
terrorist organization
despite it being the country's largest opposition movement, according to a report by
Human Rights Watch.
56.
The
Complainant
persecuting
all
submits
those
Brotherhood, and
that
the
considered
to
Respondent
be
State
dissidents
is
deliberately
and/or
members
targeting
of
the
and
Muslim
that their remarks in this regard is not relevant for the purpose of
establishing the admissibility of this Communication. The Complainant states that the
African Charter in Article 56 provides
that 'Communications relating to human and
peoples' rights referred to in Article 55 received oy the Commission, s
all be considered'
if it meets the admissibility criteria.
57. In relation to the admissibility criteria, the Complainant submits
at both the African
Charter and the Rules of Procedure are silent as to who may submit a Communication.
In this regard they state that Article 56 (1) only requires a Communication to indicate its
author, but does not state who the author may be. In addition, the Complainant refers the
Commission to its submission on Article 56 (1) in paragrap
33 above, in which it states
that there is nothing in the Charter to limit the definition of Complainant to persons who
are victims of the alleged violations and'refers to jurisprudence of the Commission which
held the Complainant need not be a national of a State Party to the Charter to submit a
Communication.
58. In relation to the third challenge by the State that political parties are not included in the
Rules of the Procedure of the Commission under Rule 63 (1) which lists the institutions
which may request for a matter to be included in the agenda of the Ordinary Session of
the Commission, the Complainant submits that the Respondent State has misunderstood
the Commission's Rules of Procedure. The Complainant states that this rule refers to the
ability
of State Parties
or
other
specific
organizations
to
request
the
Commission
to
discuss a human rights issues as part of its Provisional Agenda at an Ordinary Session of
the Commission, in accordance with Rule 32 (2). In contrast, the Complainant submits
that it had requested the Commission to adopt provisional measures in accordance with
Rule 98 of the Rules of Procedure. The Complainant submits that under Rule 98, the
Commission can adopt provisional measures on its own initiative or at the request of a
Party to the Communication and thus there is nothing which prevents the Commissi
from issuing provisional measures irrespective of the Complainant's Communica
-�
0'10,;--"
�;;;,'..�
''.�
"
�
\\
,
��)
-·��-
�l
\
\i
\\
l�l
't
'"',:r,.
,f '/
�u-U�
-v
�
"'
� "-0N.r,�-e.ict..·f'�
'];y
·
j
«.f.7
' � fl : �
59. In addition, the Complainant quotes the provisions of Articles 32 (2) and 55 (1), stating
that Communications
may
be
submitted
to
the Commission
to
be
considered
at its
Sessions, by entities other than State Parties, and that there is no further elaboration in
the Charter or the Rules as to which types of organizations may submit Communications.
The Complainant refers to the jurisprudence of the Commission, which held that groups
and
organizations
conditions
can
submit Communications
of admissibility
in Article
56
are
for
met.U
consideration,
provided
that the
Furthermore,
it submits
that
the
Commission has also accepted Communications from organizations on behalf of other
organiza tions.P
Commission's Analysis on Admissibility
60. The Commission recalls that Article 56 of the African Charter sets out seven requirements
that a Communication brought under Article 55 of the African Charter must satisfy in
order to be admissible, which a
61. Despite
the
fact
that
the
ply conjunctively and cumulatively.P
Commission
requested
the
Respondent State
arguments and evidence on admissibility in accordance with Rule 105
to
submit its
(2), as well as
granting an extension in this regard, the Government of the Arab Republic of Egypt
indicated that it will not engage in any further dealings related to this Communication,
and submitted arguments only in relation to the locus standi of the Complainant. For this
reason, the Co�mission decided t o p oceed based on the information before it.14
62. In
relation
to
Article
56
submitted by the Freedom
to death.
It states
(1),
the
Complainant
submits
that
this
Communication
is
and Justice Party of Egypt, in respect of the Victims sentenced
that the Communication
includes
full contact details
for both
the
Complainant and its lawyers and that no question of anonymity arises. It further states
that the Freedom and Justice Party is not a terrorist organization, and that Article 56 (1)
does not stat
wl:10 the author of a Communication may be.
63. The Respondent State submits that (1) the Freedom and Justice Party (the Complainant)
has been dissolved by a sentence of the Supreme Administrative Court on 8/ 4/2014; (2)
11
Communication 284/03 =Zimbabwe Lawyers for Human Rights & Associated Newspapers o
f Zimbabwe v The
Government o
f Zimbabwe (2009) ACHPR.
12
Communication 225/98 - Huri-Laws v Nigeria, where the Communication was submitted by Huri-Laws, an NGO
registered in Nigeria, on behalf of the Civil Liberties Organization, another NGO based in Nigeria (2000) ACHPR.
1l
See Communication 304/2005 - FIDH & Others v. Senegal (2006) ACHPR, para 38.
14
See Communication 25/89, 47/90, 5 6 / 9 1 ,
100/93 - Free Legal Assistance Group, Lawyers' Committee for Human Rights,
Union Interafricaine des Droits de l'Homme, les Temoins de Jehovah v. Democratic Republic of the Congo ( 1 9 9 5 ) A
H
para 40. See also Communication 60/91, Communication
4:i.�,.:,,.,v;,�.;__.,
15 9 / 199 6 , Communication 276/03 and Communication 2
2
!>
")'
I ,��
-3
�I
,.
,
�\"
l '-'
,u.ut,
"' ".!-,.,
'c •
-ve....'\"
·t�t.ll1.P.1i7
s
'<-
·(· \•
®
""
"
·
�
\;
,_.,
\�
�
"
'
,,,
•
I
j /
,p ,,;,'!
,:,._<��,v 4FRK:'-l�·,.,1:;#/
'����
the Complainant is a political entity established by the Muslim Brotherhood, which had
been declared a terrorist organization by a ruling of the North Cairo Criminal Court on
1/6/2017; and (3) the Communication is brought by a political party, whereas political
parties are not included in the Rules of the Procedure of the Commission under Rule 63
(1) which lists the institutions which may request for a matter to be included in the agenda
of the Ordinary Session of the Commission.
64. The Commission has on previous occasions dealt with the matter of locus standi and has
established
principles
DITSHWANELO
5
case)1
(on
in this
regard.
In
behalf of Lehlohonolo
Commufiication
277/2003
Bernard
v.
Kobedi)
- Spilg and
Botswana
Mack
&
(DITSHWANELO
the Commission confirmed that neither the African Charter nor the Commission's
Rules of Procedure contain specific provisions on locus standi. It therefore held that the
only possible applicable provision is Article 56 (1), which "simply
requires
that
the
Communication indicate its author(s), even if they would like to remain aponymous.
This provision
does
not
specify,
which
parties
Commission."16 The Commission has thus ado
have
standing
before
the
African
tea an exceptionally wide approach to
locus standi, which according to the DJTSHWANELO case:17
places no restriction as
the
conditions
under
standing before it,
to
who can bring a Communication before
Article
56
of
the
African
Charter
are met by
has
been
As long as
the
person
the African Commission will entertain the Communication. The
rationale for the Commission's comparative broader approach
standi
it.
associated
with
the
peculiarity
to
the
issue
of locus
of the African situation, and the
perceived generous intent of the African Charter.
65. Finally, the Commission determined that "the
through
not
be
a
66. Despite
its
jurisprudence
national
this
or
that
the
be
registered
permissive
approach,
person
in
the
there
African
or
NGO
Commission has
filing
it
clear
the Communication
need
territory
of
are
limitations
still
made
the Respondent State" .1s
to
who
may
bring
Communications before the Commission. One implicit requirement under Article 65 (1)
is that th e " author" must be a person, in order to have standing. Thus a Complaint may
be brought by either a natural person or a juridical person19.
In the present case the
15
Communication 277 /2003 - Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana
(2013) ACHPR.
16
Communication 277/2003 - Spilg and Mack & DITSHWANELO (on behalf o
f Lehlohonolo Bernard Kobedi) v. Botswana
(2013) ACHPR paras 73-74.
17
As above, para 81.
18
As above, para 79.
r;.1<"Vtl�•�u:i[
19
Also known as artificial person, juridical entity, juridic person, juristic person, or legal per�'
-�f e'f�
i
,,\
\ \;;,
� '4. -,
'\_
.
....�
�u-M·
I
:';II
�
ff
(;)
,.,
,.,
'<""
<, {SJc�4�.,;,-:,.1:f:¢..$'./
',.1:_o,� rt ��� �
14
Complainant is purported to be the Freedom and Justice Party, which would be a juridical
person, as it was a political party with separate legal existence from the natural persons
who established it. However, as is clear from the submissions of the Respondent State,
the
Freedom
and
Justice
Party
was
dissolved
by
a
sentence
of
the
Supreme
Administrative Court in 2014. It is trite law that duties and rights only accrue to juridical
persons
if
they
are
recognized
by
law.
As
there
is
no
evidence
provided
by
the
Complainants that the Freedom and Justice Party was subsequently registered in another
jurisdiction, the Commission finds that legally it does not exist, and is thus not able to
bring a Complaint before the Commission.
67. It should be noted, however, that the situation would have been dealt with differently if
the Complainant had been dissolved following the submission of a Complaint against the
Respondent State. In the present case three (3) years passed from its dissolution to the
submission of the Complaint. However, the decision reached by the Commission in the
present
Communication
would
not
have
applied
if
its
dissolution
followed
on
the
submission of the Complaint, as that would lead to a situation where States may dissolve
any nationally registered juridical persons which brought a case against it.
68. Having found that the Complainant does not have locus standi, the Commission will not
analyze the other arguments of the RespondentState in this regard. The Commission thus
finds that the requirements under Article 56 (1) have not been met.
69. In relation to Article 56 (2) the Complainant states that the Communication is compatible
with
the
African
Charter
demonstrate prima [aoie
Respo
because
violations
the
facts
of Articles
contained
4,
5,
6
within
and
it
7 of the
are
sufficient
Charter,
to
that the
dent State has been a Party to the African Charter since 1981 and that the matters
addressed in the Communication occurred after the Charter became applicable in the
territory
of the
Respondent State.
The Commission
notes
that
the
Respondent State
ratified the Africa Charter in 1984 and the alleged violations occurred in 2017 thus after
ratification.
Furthermore,
the
alleged
facts
as
set
out
in
paragraphs
3
to
14
above
demonstrate prima facie violations. The Commission thus finds that the Complainant has
satisfied the requirements under Article 56 (2) of the African Charter.
70. In relation to the requirement in Article 56 (3) the Complainant submits that there is
nothing disparaging or insulting in the present Communication and that it records factual
events. The Commission has in reading the Complaint not come across anything which
would amount to disparaging or insulting
language.
�-�mmission therefore finds
\111,\;,!.�\lft[l�
,
that the requirements of Article 56 (3) have been me ,•'\,,«"'" ,,, e ·�
1,1_�-0 ...,'(,
,r
r�;
rrt
;�1
1
\\" '4,
\
"'
'1
""'
Is
�
p_\j-lJ �
r.,,,
"'
S,t.Yli.;c"i' f:(:5
/i
..;·,
,1,i·,
"' ;;2'.·� ·�t�_:t;,:;.-;,-
I
15
71. In
relation
to
Article
56
(4)
of
the
Charter
the
Complainant
submits
that
the
Communication is not exclusively based on news disseminated through the mass media.
It submits that the jurisprudence of the Commission does not prevent Complainants from
relying on material drawn from the mass media, rather that it should not be exclusively
based
on
mass
media.
The Complainant provides reasons why in this case it partly
depends on mass media, including that it does not have free access to the proceedings,
that even defense lawyers were barred from accessing the proceedings, and that it has
had trouble communicating with lawyers and human rights activists in the Respondent
State. However, it states that in addition it also draws on reports from internationally
recognized
Human
non-governmental
Rights
Watch;
organizations
in
investigations
and
organizations,
statements
response
faulty
to
trial
the
of
the
including
United
situation
in
proceedings
Amnesty
Nations
Egypt;
and
disseminated
and
International
other
evidence
by
defense
and
international
relating
to
the
lawyers
of
the
Victims.
72. The Commission has held in its jurisprudence that "while it will be dangerous to rely
exclusively
on
news
disseminated
through
damaging if the
African Commission were
aspects of it are
based
e
mass
media,
it
ould
be
equally
to reject a Communication because some
on news disseminated
through
the mass
media."20 Thus it is
appropriate to have media sources, as long as they are not relied on exclusively.» The
Commission
has
held
that
documents
of
international
human
rights
organizations,
including reports and press releases, are sufficient additional information to ensure that
allegations are not based exclusively on mass media.V The Commission has also accepted
sources
of
information
from
NGOs
such
as
Human
Rights
Watch
and
Amnesty
International to be compatible with the requirements in Article 56(4).23 Some evidence
has also been disseminated by defense lawyers of the Victims. The Commission thus finds
that the Complaint is not based exclusively on news disseminated through the mass
media and meets the requirements in Article 56(4).
73. On the question of exhaustion of local remedies under Article 56 (5) the Complainant
submits that local remedies have been exhausted as the death penalties handed down are
final, given that they have been upheld by the Court of Cassation, the highest court in
Egypt. In addition, it is submitted that no presidential pardons were granted in respect
20
Communication 277 /2003 -Spilg and Mack & 0/TSHWANELO (on behalf o
f Lehlohonolo Bernard Kobedi) v. Botswana (2011)
ACHPR para 106. See also C o m m u n i c a t i o n 149/96 - Sir Dawda K Jawara v. G a m b i a .
21
Communication 259/2002 - Groupe de Travail sur ies Dossiers Judiciaires strateqiques v. Democratic Republic of Congo
(2015) ACHPR para 40. See also Communication 277/2003 - S p i l g and Mack & DITSHWANELO (on behalf of lehlohonolo
Bernard Kobedi) v. Botswana, para 106.
22
Communication 279/03-296/05 - Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v
Sudan (2009) ACHPR para 92.
cc-,
k ?:l ll�olA� .
�
23
Communication 467 /14 -Ahmed Ismael and 528 Others v. the Arab Republic of Egypt (2016) ACHPR para 1.
:
,,
s'\,cs,,.,,,,;,,;�,
s
\\
\
,� �
i1
frr�t}
/f
ii .
--=---i.G
"
i
\
\;i;J
..
� ·;
�
">,;,--.!:'::}:;;/js
, -, c ly
0.
1'4r:R11.;�1:,'f i
'
f
r
°' \..
,;,.
�
'/
- :,,l?tncts'i't.lfi.,.
-.-/
of these cases.
The Complainant refers
to
the jurisprudence
of the Commission and
argues that even if a remedy is available, it must also be considered whether it is effective
and
sufficient.
The
Complainant
also
notes
that
according
to
the
Commission's
jurisprudence it is only judicial domestic remedies that have to be exhausted.
74.
The Complainant refers to a decision of the European Court of Human Rights which held
that situations of "martial law and characterized by severe civil strife" and the "risk of
reprisals against the applicants or their lawyers"
provide no prospect of success of a
domestic remedy, and thus amount to an exhaustion of local remedies. The Complainant
avers
that
several
disappearance
of
complaints
Victims
in
were
the
filed
Kafr
Al
with
the
Sheikh
Attorney
case,
kidnapping and torture were not investigated and
but
General
that
these
following
the
allegations
of
ere dismissed on 12 December 2015
without any charges. The Complainant also makes reference to the refusal by the Military
Court to take into account new evidence, thus denying the reopening of the Kafr Al
Sheikh case.
75. The
Complainant
submits
that
"the
unjust
trial
practices
are
symptomatic
of
the
repressive actions against all legitimate opposition in Egypt," and that freedom of speech
and assembly have been heavily restricted and organizations opposed to the military
regime
have
peen
banne
.
The
Comp1ainant
thus
submits
that
there
are
clear
impediments to the availability of any local judicial remedies in the present case, due to
the highly repressive environment. The Complainant further submits that in particular
the risks of rep isals against the accused or their defense lawyers show that there is no
prospect
of
successfully
pursuing
any
apparent
appellate
avenues
and
that
it
can
therefore be concluded that local remedies have been exhausted.
76. The Complainant in its original submissions further state in paragraph 7 above, that
"recent
egal amendments to the appeal system" abolished a previous two-stage appeal
process, through which the Court of Cessation could refer cases back to the Criminal
Court for retrial, which means that all judgements of the Court of Cassation are final and
binding.
The Complainant further states that it is
therefore "unlikely that the appeal
submitted by the six Victims [in relation to the Metwally case] on 15 June 2017 on the
basis of proceduraUlaws in the trial will be granted."24
77. The Commission confirms that from the submissions in this Communication, in four of
the five cases referenced.> the Court of Cassation, the highest appeal court in Egypt,
upheld
24
25
the
death
penalty
and
that
in
a
fifth
case>
which
was
subject
to
military
Para 7 above.
The Alexandria Protest case, the�� V:.C�J ,I� Qatar espionage case and the Ra baa dispersal case.
26
The Kafr Al Sheikh bombing casei· j�v.i?
s
·t.
�
E
�
�
'.
;
,
�
,
�
,
17
"(
,,.�.,:)'·
�···1,'
s
\\
;
,,
.
'
J
,..
,
ir
s
,v
� "'
':'
I'.$
/j
•U·U'·
,
.,.
.
'�
.
"'�·
'1,
•
. .,
ef"
:v.qAOC�t�
S';
"'°"41£ El tit��
"
jurisdiction, the Supreme Military Court of Appeals, the highest military court of appeal
similarly upheld the death penalty verdict.
78. The Commission finds that based on the facts as submitted by the Complainant that the
Court of Cassation
and
the Supreme
Military
Court are
the highest Courts
and
their
decisions cannot be appealed, the Victims do not have a further right to appeal the death
sentences. The Complainant provides evidence of two other judicial avenues that some
of
the
Victims
pursued,
first,
bringing
a
request
for
review
based
on
procedural
irregularities, which it stated would not succeed based on the new law on the finality of
decisions
of
the
Court
of
Cassation,
and
second
bringing
a
separate
case
before
the
Attorney General based on the alleged torture and forced disappearances, which has not
been investigated. The Commission is of the view that the domestic remedies have been
exhausted. The Commission thus finds that the requirements under-Article 56 (5) have
been met.
79. In
relation
to
the
reasonable
time
period
requirement
Complainant refers to the lack of specific time l imi ts
the
six-months'
Human
Rights.
time
limit
provided
The
Complainant
in
the
states
the
56
Article
the
(6)
ecified in the African Charter and
European and
that
under
American
Complaint
was
Conventions
submitted
on
on
17
November 2017, whereas the dates for the final sentencing of the cases were as follows:
(a) Alexandria Protest Killing on 24 April 2017; (b) Police Guard Murder on 7 June 2017;
(c) Kafr Al Sheikh Bombing on 19 June 2017; (d) Rabaa Dispersal on 3 July 2017; and (e)
the
Qatar
Espionage
case
on
16
September
2017.
Therefore,
the
timeline
between
exhaustion of local remedies and the submission of the Complaint before the Commission
ranges from about seven months to two months. The Commission is of the view that this
is
a reasona
le
period
and
that the Complainant has
complied
with
the
requirement
under Article 56 (6).
80. TI1e Complainant indicates that in compliance with Article 56 (7), the Respondent State
has
not
settled
the
case,
and
that
the
case
has
not
been
submitted
to
any
other
international human rights body. The Commission thus finds that the requirement under
Article 56 (7) has been complied with.
81. For the reasons set out above, the Commission finds that Article 56 (2), (3), (4), (5), (6) and
(7) have been met, but that the Complainant has failed to meet the criteria for Article 56
(1).
Decision of the African Commission on Admissibility
�
1
0
'.
�
1.
In view of the above, the African Commission on Human and Peoples;·: ,;r's;''''�
({�11
/1\{
"
.
�
1
>
� '.
�
�
\ \
�
,.u.u,.
.
«»
�o
\ 'It, ¥4.cR1"Mtlt'-l)t
01.,�E" El
I
$J �
'�
)'
::.s.�
i.
Declares the Communication inadmissible for failure to comply with Article 56 (1)
of the African Charter;
ii.
and
Notifies its decision to the Parties in accordance with Rule 107 (3) of its Rules of
Procedure.
1h
Done in Banjul, The Gambia, during the 65
Ordinary Session of the African Comm·
on Human and Peoples' Right from 21 October to 10 November 2019
ion
·",,,.,•,��',��
,>F
o·
,,
''"
'0,
...
e
!
�
'
I
z!s
�...
'f.
'
;t
�
\•
ll �-
I .
1 1 " "
,
�
,:e,
· .,. \
..,
,u.u,.
�
ti
•
,
II
Jc
�
<ci
�
\,<,r,,o:i,"t-P.1<;61t.'f.{)t":> .,f?,-/1
�,,,,,t�p3}_�.,..
19