'AFRICAN UNION
UNION AFRICAINE
UNIAO AFRICANA
Afn"can Commission on Human & Peoples· Rights
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-ban ·uI africa-union.or, • Web www.ach or,
Communication 592/15
Hesham Hamid Elshenna (represented by Prof. Mostafa Metwaly)
V
Arab Republic of Egypt
.Adopted by the
African Commission on Human and Peoples· Rights
during the 23"' Exira-Ordinary Session, from 13,. to 22"" FebtuaT)' 2018
Banjul, The Gambia
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I
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, Dr. Mary Maboreke
Secretary to the Aftican Comnrission on
Human and Peoples• Rights
Communication 592/15 - He sham Hamid Elshenna (represented by Prof. Mostafa
Metwaly) 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 15 December 2015 from Prof. Mostafa
Metwaly (the Complainant) on behalf of Mr. Hesham Hamid Hamia Elshenna
(the Victim) against the Arab Republic of Egypt (the Respondent State). 1
2. The Complainant submits that he has been a thorized by the Victim's wife to
represent the Victim in the case.
3. The Complainant avers that on 03 July 2013, a discriminatory militacy coup took
place in the Respondent State which violated all human rights, and sought to
eliminate a specific sector of the Egyptian society, being the sector that opposed
the coup against the government that was fairly and freely elected by the peoples
of Egypt. It alleges that the coup leaders (hereafter, the Authorities) who
subsequently assumed leadership of the Respondent State committed
discriminatory segregation of a s~tor of Egyptians through killing, enforced
disappearances, and torture of prisoners and inmates, including violating the
rights of women, children and minors in detention. He further avers that the
victims of these alleged acts were denied their right to defense due to the arrests
and falsification of allegations against lawyers who represented them in order to
pressurize them to discontinue their relevant legal services.
4. The (:omplainant also claims that the Authorities deprived people of their
nationalities, violated freedom of thinking, especially that of university lecturers
and generally turned Egypt into a large prison to terrify the Egyptian people,
through lawlessness and in blatant breach of international human rights law.
5. More specifically{ the Complainant alleges that the family of the Victim is one of
several families that suffered at the hands of the Authorities after the coup. He
avers that the Victim is an Egyptian national born in 1973 in Dakhalia City,
Egypt, and is married with four sons.
6. The Complainant alleges that the Authorities fabricated charges against the
Victim which led to his subsequent arrest on 23 January 2015 even though he had
committed no offence.
7. He avers that the Public Prosecutor claimed that the Victim had committed arson
on a property belonging to one Mr. El Sayed Hassan Omar Abu Zaid Saleh, and
even though Mr El Sayed testified otherwise and even signed an official
document to the contrary, the Public Prosecutor still insisted on the continued
detention of the Victim.
8. The Complainant further alleges that the Public Prosecutor later fabricated
another charge against the Victim and referred him to the Military Judiciary
where Case No. 1793 of year 2015 was filed against him.
9. The Complainant alleges that while in detention at the Mazalah prison, the
Victim was tortured with the others arreste with hi,m and was subjected to
inhumane treatment, including: putting hi a d others in a tiny, poorly
ventilated cell; denial of visitation rights; denial of access to medication and clean
water; denial of access to newspapers and writing materials; and prevention
from carrying money. Also, the Victim was denied the urgent medical attention
which he needed for his right eye, as he was suffering from a severe illness and
had previously undergone surgery on the retina of his right eye.
10. The Complainant avers that all the pleas made by the brother of the Victim2 on
his behalf to the Attorney. General, the Prim.e Minister, the Ministry of Police and
Head of the Human Rights sector ent unnoticed.
11. The Complaix)ant names the general authorities at the helm of affairs and who
are responsible for committing the alleged violations as being: (i) the current
President and coup leader, Abdul Fattah Elsisi; (ii) the former president, Adly
Manso~; (iii) the former Interior Minister, Mohamed Ibrahim; (iv) the current
Minister of Defense, Sidqi Sobhy; (v) the former Prime Minister, Hazem Beblawi;
and (vi) the current Prime Minister, Ibrahim Mahlab.
12. Additionally, the Complainant submits that this Complaint has never been
presented before any other international dispute settlement forum for settlement
or adjudication and that the Complaint has been filed within a reasonable time in
accordance with Article 56(6) of the Charter, after awaiting the
outcome/judgements of the Egyptian courts on the issues placed before them so
that they could know whether the courts could deliver qualitative judgment or
not, which they later realized was impossible.
13. Regarding the need to exhaust domestic remedies, the Complainant submits that
the exhaustion of domestic remedies after the coup is totally impossible, because
following the coup which upstaged the democratically elected government of the
2
Mr. Mohammed Hamed Hamed Elshehna.
people, all those who opposed the coup were arrested, detained and punished
for exercising their rights, and harsh sentences including mass death penalties
were passed on dissidents. The Complainant however noted that former
President Mubarak was released and cleared of any charges.
14. In view of the foregoing, the Complainant submits that under the current regime,
exhaustion of domestic remedies is impossible, as the military is ruling the
country, and that any judge who shows any independence from the military
would be punished by being sacked or removed. Lawyers and attorneys are also
not left out of such punishments as the judiciary in Egypt has collapsed by
subduing itself to the military rules an . 'court sentences have become
politicized'.
15. In view of the foregoing, the Complainant alleges that the crimes committed by
the Authorities against the Victim and his family include the following: (i)
discriminatory segregation; (ii elimination of indigenous people; (iii) crime of
torturing of detainees; (iv) violation f detainees' right in ·the course of trial
resulting in denial of justice; and (v) denia of prisoners' rights.
_..._
Articles alleged to have been violated
16. The Complainant alleges that the Respondent State has violated Articles 1, 2, 3, 4,
5, 6, 7, 8, 14, 15, 19, 60 and 61 of the African Charter on Human and Peoples'
Ri hts.
Procedure
17. The Seqetariat receivecl tlie Gompla'int on 15 December 2015 and acknowledged
receipt on 01 February 2016.
~
18. The African Commission on Human and Peoples' Rights (the Commission) was
seized of the Communication during the 19th Extra-Ordinary Session of the
Commission, held from 16 to 25 February 2016.
19. By letter and note verbale dated 07 March 2016 the Complainant and the
Respondent State were informed of the decision to be seized and the
Complainant was requested to present evidence and arguments on admissibility
within two (2) months.
20. By letter and note verbale dated 04 May 2016 the Complainant and the
Respondent State were informed that the Communication was deferred during
the 58 th Ordinary Session, pending receipt of the Complainant's submissions on
admissibility.
21. By letter dated 22 November 2016 the Complainant was informed that they
should submit their submissions within one month, failing which it would be
struck out for lack of diligent prosecution. By note verbale on the same date the
State was informed that the Communication was deferred.
22. By letter and note verbale dated 11 July 2017 the ~ecretariat informed the Parties
that the Communication was deferred during1he 60th Ordinary Session.
23. By note verbale dated 08 August 2017 and received at the Secretariat on 14
August 2017, the Respondent State indicated that they have-not yet received the
Complainant's submissions on admissibility and requested that the
Communication be struck out.
24. By letter and note verbale dated 20 September 2017 the Secretariat informed the
Parties that the Complainant had been granted an additional thirty (30) days
within which to submit on admissibility, failing which the Communication
would be struck out for lack of d' ·gent prosecution.
25. In a note verbale dated 27 October 2017 received at the Secretariat on 24
November 2017, the Respondent State indicated that the additional time had
expired and thus requested the Com ·ssion to strike out the Communication.
Analysis of the Commission to strike out
26. Rule 10~(1) of the Commission's Rules of Procedure establishes that when the
Commissiqn has decided to be seized of a Communication, it shall request the
Complainant to present arguments on Admissibility within two (2) months.
27. Rule 113 provicl._es that when a deadline is fixed for a particular submission,
either party may apply to the Commission for extension of the period stipulated.
The Commission may grant an extension of time for a period not longer than one
(1) month.
28. In this case, the Complainant was requested to present evidence and arguments
on the admissibility of the Communication within two (2) months from the date
of notification of the seizure decision, which had expired on 07 May 2016.
However, the Complainant did not present any evidence and arguments within
the stipulated time. The said period was extended by the Commission for a
period of 30 calendar days and same had expired on the 22 December 2016.
29. During its 22nd Extraordinary Session which took place from 29 July to 07
August 2017, in Dakar, Republic of Senegal, the Commission decided, because it
was not satisfied that the Complainant has received the earlier correspondences
based on the evidence on record, to granted the Complainant a further period of
30 calendar days from the date of notification to submit evidence and arguments
on the admissibility of the above mentione Communication.
30. More than three (3) months have lapsed since the expiry of the last extended
period and no evidence and arguments have been submitted by the Complainant
on the admissibility of the Communication. There is also evidence on record that
the Complainant has recei ed the letter granting further extension of time to
submit on admissibility.
31. In light of the above, the Commission therefore finds that the Complainant has
shown no interest in prosecuting this Communication.
32. The Commission takes note of its jurisprudence, including Communication
59y.t5: Mohammed Ramadan Mahmoud Fayad Allah v. the Arab Republic of
Egypt, Communication 612/16: Ahmed Mohammed Ali Subaie v. the Arab
ReP,ublic of Egypt, Communication 412/12L Journal Echos du Nord v. Gabon
and Communication 387/10: Kofi Yamagnane v. The Republic of Togo, which
were similarly struck out for wantof diligent prosecution.
Decision of the Commission
33. In view of the above, the Commission decides to strike out the Communication
for lack of diligent prosecution.
Done at the 23rd Extra-Ordinary Session of the Commission held in Banjul, The
Gambia from 13 to 22 February 2018