Communication 323/06: Egyptian Initiative for Personal Rights and
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INTERIGHTS v Egypt
Summary of the Complaint:
1.
This Communication is brought by the Egyptian Initiative for Personal
Rights (EIPR) and INTERIGHTS (the Complainants) on behalf of Nawal
'Ali Mohamed Ahmed (the First Victim), 'Abir Al-'Askari (the Second
Victim), Shaimaa Abou Al-Kheir (the Third Victim) and Iman Taha Kamel
(the Fourth Victim).
2.
The Respondent State is the Arab Republic of Egypt (Egypt); a State
Party to the African Charter on Human and Peoples‟ Rights (the African
Charter).1
3.
The Complainants submit that on 25 May 2005, the Egyptian Movement
for Change (Kefaya) organized a demonstration in front of Saad Zaghloul
Mausoleum with respect to the referendum aimed at amending Article 76
of the Egyptian Constitution, allowing multi-candidate presidential
elections. They submit that Riot police surrounded the small number of
protesters (around fifty) and several journalists reporting the events, and
at about 12:00 noon, while public buses were transporting young
1
Egypt ratified the African Charter on Human and Peoples‟ Rights on 20 March 1984, and
is therefore a State Party.
1
supporters of President Mubarak and his party called the National
Democratic Party (NDP), violence broke out as NDP supporters attacked
the supporters of Kefaya. The Complainants allege that Riot police
reportedly did not intervene.
4.
According to the Complainants, the protesters and the journalists
covering the demonstration reconvened in front of the Press Syndicate at
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around 2:00 PM where they were met by a large group of Riot police and
NDP supporters. They allege that further incidents of insults, violence,
intimidation and sexual harassment occurred in the presence of high
ranking officers of the Ministry of Interior (MoI) and the Riot police.
5.
The Complainants state that the First Victim is a female journalist
previously employed at Al Gil Newspaper, in Cairo. They state that she
was not reporting on the events in question or attending the protest
action, but was rather proceeding to the Press Syndicate in order to attend
an English course. The Complainants allege that she was however,
attacked by a group of youth supporters of President Mubarak and the
NDP in response to an order from a police officer on the scene.
6.
The Complainants allege that, the First Victim was pushed to the
ground, her clothes torn, her private parts fondled, and her bag and
documents seized from her. According to the Complainants, she
recognised members of the NDP as her assailants. They allege that the
police officers on the scene failed to intervene, assist or prevent the
assaults from taking place.
2
7.
The Complainants further state that, she was then ordered by the Chief
of the MoI Greater Cairo Intelligence Unit, Ismai‟l Al-Sha‟ir, to leave the
scene, and that she was unable to reclaim her alleged stolen belongings.
8.
The Complainants state that the First Victim was attended to at the
Monira Hospital on 25 May 2005, where a medical report indicated one
large (10cm) scar, several smaller bruises on her chest, and visible
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scratches on her legs and feet. It is further submitted by the Complainants
that investigators refused to record the statements made by eyewitness
when she reported the incident on the same day. They also state that the
incident has left her emotionally traumatised as a result of the sexual
violations and assaults she incurred.
9.
The Complainants also allege that the First Victim received threats from
the State Security Intelligence (SSI) officers to withdraw her complaint.
They allege that her refusal to do so led to her dismissal from her job at Al
Gil Newspaper and divorce from her husband.
10.
The Complainants state that the Second Victim, a female journalist at Al
Doustour Newspaper, in Cairo, was covering the events in her capacity as
a journalist. They allege that she was hit in the face and stomach during
the demonstration whilst attempting to take photographs on the scene.
11.
The Complainants allege that when the Second Victim tried to escape
the scene, by getting into a taxi with the Third Victim, the Chief of the
Intelligence Unit of the Boulaq Abou Al-'Ela Police Station stopped the
taxi and an identified SSI officer forcefully dragged her out of the taxi,
whilst hitting and kicking her. The Second Victim claims, according to the
Complainants, that the SSI officer ordered a group of female supporters of
3
the NDP to tear off her clothes and hit her. She also alleges that she was
later dragged to the main street (Ramsis Street) where security and police
officers continued to hit, sexually assault, insult, and slap her face.
According to the Complainants, the Second Victim was also allegedly
called abusive names such as „whore‟ and „slut‟.
12.
The Complainants state that, as a result of the above mentioned assaults,
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the Second Victim was attended at the Hilal Hospital on 31 May 2005 and
a medical report confirmed bruises on her left shoulder, left arm and back.
They also submit that she is emotionally traumatised as a result of the
sexual violations and assaults on her person.
13.
The Complainants allege that the Second Victim lodged a Complaint
with the Public Prosecution Office (PPO) but investigators refused to take
statements from eyewitnesses. They allege that she received anonymous
and indirect threats from neighbours and unidentified men to withdraw
her complaint.
14.
The Complainants further submit that the Third Victim, a female
journalist at Al Doustour Newspaper, in Cairo, went to the Press Syndicate
in both her capacity as a journalist covering the events and as a citizen
exercising her right to protest. They allege that, she tried to escape the
scene by getting into a taxi with the Second Victim when the Chief of the
Intelligence Unit of the Boulaq Abou Al-'Ela Police Station assaulted her
and ordered a group of female supporters of the NDP to physically attack
and expose her body.
15.
It is alleged by the Complainants that the Third Victim was beaten,
bitten, her hair pulled and her clothes torn, and was later rescued by
4
people emerging from the Press Syndicate building who took her inside
for protection.
They add that she is emotionally traumatised and
depressed from the assaults.
16.
It is also alleged by the Complainants that the Third Victim lodged a
Complaint where statements of eyewitnesses were ignored and that she
received threatening calls at home and at work to withdraw the
17.
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complaint.
The Complainants allege that the Fourth Victim, a female journalist at
Nahdat Misr Newspaper, in Cairo, and a member of the Kefaya movement,
was also attending the demonstration. They allege that she was attacked
by a group of unidentified men who pushed her against the wall and hit
her in her lower abdomen several times until she collapsed on the ground.
They also allege that she was kicked on her pubic area by one of the men,
while the others continued to beat, and tried to tear off her clothes.
18.
It is alleged by the Complainants that while the above mentioned
assaults were taking place, law enforcement officers on the scene refused
to come to her assistance, allow her seek medical assistance, or have access
to the Press Syndicate building for protection.
19.
The Complainants allege that, the Fourth Victim stayed for two days in
the Marg Hospital undergoing treatment for bruises on her right hip, right
knee and upper pelvic area, and that a medical report was issued on 31
May 2005. They further allege that she is traumatized by the assaults that
have had a detrimental effect on her mental health.
5
20.
The Complainants also submit that the Fourth Victim lodged a
complaint on 5 June 2005 at the Qasr Al-Nil PPO and received threats
from a group of unidentified men to withdraw the complaint.
21.
According to the Complainants, the Victims‟ cases were classified as
misdemeanors in violation of Article 242 of the Penal Code. They submit
that an investigation was instituted on 25 May 2005, and was completed
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on 27 December 2005 when the PPO announced that a decision not to
prosecute had been taken due to the inability to identify the perpetrators.
22.
The Complainants submit that the Victims appealed the decision of the
PPO not to prosecute to the Appeal Misdemeanors Chamber of the First
Instance Court of Southern Cairo (the Appeal Chamber). However, on 1
April 2006, the Appeal Chamber dismissed the case. They state that
though the Appeal Chamber‟s decision found that the assaults had taken
place on the Victims, it was impossible to identify the perpetrators.
Articles alleged to have been violated
23.
The Complainants state that the aforementioned acts and omissions
constitute a violation of Articles 1, 2, 3, 5, 7(1)(a), 9(2), 16, 18(3) and 26 of
the African Charter by the Respondent State.
Prayers:
24.
The Complainants state that, in requesting the African Commission on
Human and Peoples‟ Rights (the African Commission ) to examine their
case, the Victims seek:
6
a.
Recognition by the African Commission of violations of these
Articles of the African Charter;
b.
Renewed investigations and effective protection and punishment
of the perpetrators of the violations;
c.
Paying compensation to the Victims: In amount of EP57,000 for
each Victim.
d.
Enactment of legislation aimed at effecting the state's positive
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responsibility in defending and protecting human rights;
e.
Amendment of Police Law 109 of 1971 to impose penalties on law
enforcement officers for violating human rights and for failing to
prevent human rights violations occurring in their presence upon
the establishment of malicious intent; and
f.
Amendment to Article 268 of the Egyptian Penal Code to
expressly exclude intention as a requirement of offence of assault
on honour.
Procedure:
25.
The present Communication was received by the Secretariat of the
African Commission on Human and Peoples‟ Rights (the Secretariat) on
18 May 2006.
26.
The Secretariat acknowledged receipt of the Communication to the
Complainant by letter of 20 May 2006, and informed them that the
Communication has been registered as Communication 323/2006 Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt.
7
27.
At its 39th Ordinary Session, held from 11 to 25 May 2006 in Banjul, The
Gambia, the African Commission considered the Communication and
decided to be seized thereof.
28.
On 14 August 2006, the Secretariat received the arguments on
Admissibility from both parties.
By Note Verbale, dated 16 August 2006, the Secretariat forwarded the
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29.
Complainants‟ submissions on Admissibility to the Respondent State and
sent the latter‟s submissions in Arabic for translation.
30.
At the African Commission‟s 40th Ordinary Session, held from 15 to 29
November 2006, in Banjul, The Gambia, both parties made oral
submissions on Admissibility.
31.
At the 40th Ordinary Session of the African Commission, held from 15 to
29 November 2006, in Banjul, The Gambia, the African Commission
declared the Communication Admissible, and both parties were informed
accordingly.
32.
By letter dated 15 February 2007, the Complainants requested an
extension of time to submit on the Merits of the Communication, and the
request was granted.
33.
By Note Verbale dated 15 March 2007, the Embassy of Egypt also
requested an extension of time to submit on the Merits of the
Communication. The request was granted by Note Verbale dated 19
March 2007.
8
34.
On 16 March 2007, the Complainants transmitted their submission on
the Merits of the Communication to the Secretariat, and by letter dated 22
March 2007, the Secretariat acknowledged receipt.
35.
By Note Verbale, dated 22 March 2007, the Secretariat forwarded the
Respondent State‟s submissions on the Merits to the Complainants.
By letter, dated 16 July 2007, a copy of the additional submissions on the
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36.
Merits of the Respondent State was forwarded to the Complainants.
37.
During
the
African
Commission‟s
42nd
Ordinary
Session,
the
Respondent State submitted another version of their arguments on the
Merits, with the reason that the former had translation flaws. A copy of
the revised submission was forwarded to the Complainants.
38.
During the African Commission‟s 44th Ordinary Session, the Respondent
State made additional submissions on the Merits, and by Note Verbale,
dated 11 December 2008, forwarded them to the Complainants.
39.
On 19 March 2009, the Secretariat received additional submissions from
the Complainants, and by letter, dated 25 March 2009, forwarded the
submissions to the Respondent State.
40.
On 22 April 2009, the Secretariat received additional submissions from
the Respondent State in Arabic, and by Note Verbale, dated 27 April 2009,
forwarded the submissions to the Complainants.
9
41.
The decision on the Merits of the Communication was deferred during
the 45th, 46th, 47th, 48th, 49th, and 50th Ordinary Sessions of the African
Commission respectively for various reasons, including time constraints.
42.
During its 10th Extra-Ordinary Session, the African Commission took a
decision on the Merits of the Communication and the Parties were
accordingly notified.
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The law on Admissibility
The Complainants’ Submissions on Admissibility
43.
The Complainants submit that all the criteria of Article 56 of the African
Charter are satisfied and that the Communication is Admissible.
44.
The Complainants submit that they have complied with Article 56 (1) of
the African Charter because the Victims in the Communication have been
identified and their relevant details have been provided to the African
Commission, along with the details of those individuals and organisations
representing them.
45.
The Complainants also submit that they comply with Article 56 (2) of the
African Charter because the Communication is compatible with the
Constitutive Act of the African Union (AU) and with the African Charter.
46.
Concerning Article 56 (3) of the African Charter, the Complainants
submit that the Communication is presented in polite and respectful
language.
10
47.
The Complainants submit further that the Communication complies
with Article 56 (4) of the African Charter because it is based on
information provided by the Victims and not by media reports.
48.
Concerning Article 56 (5) of the African Charter, the Complainants
submit that investigations were not properly undertaken by the police
which led to a decision not to prosecute from the Cairo PPO on 17
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December 2005. The Complainants aver that the Victims reported the
alleged incidences to the police after the alleged assault on the 25 May
2005, but the police was unwilling to interview potential witnesses, take
down statements, or assist them in any way.2
49.
The Complainants submit that three of the four Victims appealed to the
Cairo PPO to prosecute the perpetrators, but the Appeals Court rejected
the appeals on 1 February 2006. They also submit that the Fourth Victim
lost her right of appeal for failing to lodge it within 10 days due to
pressure and threats that she allegedly received. They state that all the
Victims have been left with no further effective or available remedy.
50.
The Complainants submit that available remedies in Egyptian Law are
criminal or civil. They aver that none of the Victims pursued solely civil
remedies, and two of them asked for temporary civil compensation as part
of their criminal proceedings. They also submit that pursuing separate
civil action is not necessary and that criminal remedy is the most
appropriate for sexual violations and physical assaults allegations.
2
Complainants submission on the Admissibility brief, para 18.
11
51.
The Complainants refer to Sir Dawda K Jawara v. The Gambia, (the
Jawara Case)3 to sustain that the rationale behind Article 56(5) of the
African Charter is to provide the State concerned with an opportunity to
remedy alleged violations through its domestic legal system, and that in
the current case the Respondent State has been given an opportunity to
investigate, prosecute and remedy the alleged violations.
They also refer to Amnesty International and Others v. Sudan4 to argue
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52.
that in cases where it is “impractical or undesirable” for the Complainants
or Victims to seize the domestic courts, the requirement of local remedies
should not be applied literally, and that domestic remedies must be
effective and not subordinated to the discretionary power of public
authorities.
53.
Furthermore, the Complainants refer to similar requirements of
exhaustion of local remedies in the context of the European Court of
Human Rights (the European Court), where the exhaustion of all possible
remedies within the criminal system does not require making another
attempt to obtain redress by a civil action for damages.5
The Respondent State’s Submissions on Admissibility
54.
In its submission, the Respondent State argues that the Communication
is inadmissible before the African Commission for two reasons. Firstly,
3
Communications 147/95 and 149/96- Sir Dawda K. Jawara v. The Gambia (2000) ACHPR.
4
Communication 48/90, 50/91, 89/93- Amnesty International, Comité Loosli Bachelard,
Lawyers' Committee for Human Rights, Association of Members of the Episcopal Conference of East
Africa v. Sudan(1999) ACHPR.
5
The Complainants refer to the judgement of the European Court of Human Rights, Assenov
and Others v. Bulgaria, (1998), para 86.
12
that the Complainants have not exhausted local remedies, and secondly,
that there has been no violation of the provisions of the African Charter.
55.
With regards to the exhaustion of local remedies, the Respondent State
submits that the PPO issued a decision on 25 December 2005 ordering the
police to stop the inquiry because there was no ground for criminal
proceedings. It argues that this decision was justified by three reasons:
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firstly, the culprits had not been identified, secondly, the police officers
accused of beating the alleged victims were not on the scene at the time,
and thirdly the medical reports submitted by the victims were
contradictory and could not lead to the identification of the culprits.
56.
The Respondent State argues that the decision by the PPO was
temporary and that the case could be re-opened if new evidences emerge
to the effect that the culprits have been identified and the police would be
asked to continue with their inquiry. The Respondent State submits that
procedures could still be pursued and criminal proceedings could be
initiated if new evidences arise.
57.
The Respondent State submits that:
Investigations were carried following the complaints
lodged on 25 May 2005;
Witnesses as well as police officers were interrogated;
Videotapes and CDs submitted by the Complainants
were viewed; and
Submitted medical reports were examined.
13
58.
The Respondent State submits that the investigations have not
established an act of negligence, inaction or incitement from security
officers in the present matter.
59.
The Respondent State explains that the PPO decided that, in reference to
the alleged sexual assaults, there was no ground for the crime of violation
of honour, but that evidence of severe beating, in accordance with the
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Penal Code, was established.
The African Commission’s Analysis on Admissibility
60.
The only legal issue at stake in the present case is the exhaustion of local
remedies. With respect to the Respondent State‟s submission that there
was no violation of provisions of the African Charter, the African
Commission notes that those arguments cannot be examined at the
Admissibility stage. Determination of violation(s) to the African Charter is
made during the Merits stage of a Communication once that
Communication
has
been
declared
Admissible
by
the
African
Commission.
61.
The African Commission will therefore only examine Article 56(5) in
relation to the present Communication.
62.
Article 56(5) of the African Charter requires that Communications
should be sent to the African Commission after exhausting local remedies,
if any, unless it is obvious that this procedure is unduly prolonged. A
Complaint pending before the local courts means remedies have not been
exhausted. In the present case, the Complainants argue that they have
exhausted all the local courts and their case is not pending before them.
14
However, according to the Respondent State, police inquiries have been
temporarily stopped and could be reopened when there is new
information and evidences.
63.
The African Commission has inferred that the initial onus to demonstrate
that local remedies have been exhausted is on a Complainant. Once a
Complainant shows that there are no local remedies available in the
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Respondent State, the burden then falls on the Respondent State to prove
that an effective remedy is available and has not been exhausted.
64.
In Rencontre Africaine pour la Défense des Droits de l’Homme v.
Zambia, the African Commission examined the respective obligation of
the parties in terms of exhaustion of local remedies and declared: “When
the Zambian Government argues that the Communication must be
declared Inadmissible because the local remedies have not been
exhausted, the Government then has the burden of demonstrating the
existence of such remedies.”6 Therefore, in the present case, the
Respondent State must prove to the African Commission that judicial
procedures to remedy the violations are still being pursued, otherwise its
submission could be considered a mere statement.
65.
The African Commission notes that, pursuing exhaustion of local
remedy requires the availability of effective remedies. In the instant
matter, the decision of the PPO not to prosecute, as well as the
confirmation of that decision following the Victims‟ appeal, is sufficient
evidence that the conditions for the exhaustion of local remedies have
6
Communication 71/92- Rencontre Africaine pour la Défense des Droits de l’Homme v.
Zambia(2003) ACHPR, para. 13.
15
been met. The Victims were left with no other remedy because the inquiry
procedures have been stopped.
66.
It is the African Commission‟s view that the Respondent State‟s
submission on the temporary halt of inquiry procedures cannot justify the
reason why Victims should be left without any recourse until a potential
reopening of a matter, following new evidence. The African Commission
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notes that eighteen (18) months have passed since the alleged violations
occurred and probabilities for the inquiry to be re-opened are slim since
evidence has already been gathered and examined. The Respondent State,
also did not supply the African Commission with any evidence that it has
instituted actions to find „the new evidence.‟
67.
In view of the above, the African Commission declares the
Communication Admissible.
The Merits
The Complainants’ Submissions on the Merits
68.
The Complainants state that the Respondent State has violated the rights
enshrined in the African Charter in several ways. They submit that the
Respondent State failed in its obligation to protect the Victims from sexual
violence.
Alleged violation of Article 1
69.
The Complainants state that the positive obligations imposed under
Article 1 of the African Charter are manifested in two ways, including, the
16
duty to prevent others from violating the rights protected, and the duty to
protect. They argue that the duty to protect has been elaborated in detail
by the European Court, which found that States must not only respect the
rights and freedoms that the European Convention on Human Rights (the
European Convention) embodies, but that “In order to secure the
enjoyment of those rights and freedoms, those authorities must prevent or
70.
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remedy any breach at subordinate levels.”7
The Complainants submit that, in line with the consistent approach of
other regional human rights bodies, the African Commission has found
that positive obligations arise not only in respect of violations by state
actors, but also by private individuals. They refer to Social and Economic
Rights Action Centre (SERAC) and Another v. Nigeria (the SERAC
case)8 where it was held that, governments have a duty to protect their
citizens,
not
only
through
appropriate
legislation
and
effective
enforcement, but also by protecting them from damaging acts that may be
perpetrated by private parties. This duty calls for positive action on the
part of governments in fulfilling their obligations under international
human rights instruments.
71.
The Complainants submit that the second positive duty is to investigate
when a violation has occurred. They argue that the Respondent State has
an obligation to effectively investigate every situation involving the
violation of rights. They refer to the Inter-American Court on Human
Rights (the Inter-American Court) which held that if the State apparatus
7
HJ Steiner & P Alston (2000) ‘International Human Rights in Context Law, Politics, Morals’
(2nd Edition Oxford University Press) at 797.
8
Communication 155/96- Social and Economic Rights Action Centre and Another v. Nigeria
(SERAC Case) (2001) ACHPR.
17
acts in such a way that the violation goes unpunished and the victim‟s full
enjoyment of such right is not restored as soon as possible, the State has
failed to comply with its duty to ensure the free and full exercise of those
rights to the persons within its jurisdiction.
72.
According to the Complainants, the same is true when the state allows
private persons or groups to act freely and with impunity to the detriment
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of the rights recognised by the African Charter. The Complainants argue
that where serious violations have taken place, it is the obligation of the
state to ensure that criminal investigations are undertaken and effective
prosecutions pursued. The Complainants further note that the European
Court in M.C. v. Bulgaria held that the investigation must be
independent, thorough and effective, and that access to a judicial remedy
must be available and the state may be obliged to provide compensation.9
73.
The Complainants aver that, a state‟s compliance to its positive
obligations towards its citizens is assessed by the due diligence test. They
again make reference to the SERAC case where the African Commission
recognised due diligence standard as a test for determining compliance by
states in protecting the rights of citizens from being violated.
74.
The Complainants submit that the Respondent State failed in its positive
obligations to prevent and investigate the violations, which is a violation
of Article 1 of the African Charter. They cite the African Commission‟s
decision in the Legal Resource Foundation v Zambia,10 where it held that
“Article 1 of the African Charter requires that the State not only recognize
9
MC v Bulgaria [2003] ECHR.
10
Communication 211/98-Legal Resources Foundation v. Zambia (2001) ACHPR.
18
rights, but requires that they shall undertake… measures to give effect to
them.”
Alleged violation of Articles 2 and 3
75.
The Complainants argue that, according to the Victims, they were
discriminated against in the enjoyment of their rights in violation of the
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African Charter on the basis of their sex and political opinion. They note
that the African Commission in Legal Resource Foundation v Zambia
noted that, „the right to equality‟ is very important.11
76.
They submit further that, in Association Mauritanienne des droits de
l’homme v Mauritania,12 the African Commission emphasized that
“Article 2 of the African Charter lays down principles that is essential to
the spirit of this Convention, one of whose goals is the elimination of all
forms of discrimination and to ensure equality among all human
beings.”13
77.
The Complainants further allege that, the main reason why the Victims
were assaulted by the authorities is due to the fact that they hold
particular political views, are women and journalists. According to the
Complainants, this is evidenced by the sexual nature of the violations.
11
Ibid para 63.
12
Communication 210/98- Association Mauritanienne des droits de l’homme v Mauritania
(2000) ACHPR.
13
Ibid para 131
19
Alleged violation of Article 5
78.
The Complainants state that the treatment received by the Victims on 25
May 2005 amounted to a violation of their dignity and to inhuman and
degrading treatment and that the assaults were severe and gravely
humiliating in violation of Article 5 of the African Charter. They cite the
case of Purohit and Moore v. The Gambia ,14 where the African
79.
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Commission ascertained the test for violation of human dignity.
They also refer to a Canadian Supreme Court (CSC) judgement in R v.
Ewanchuk,15 where a link was made between the right to dignity and the
right to equality. The CSC established that violence against women is as
much a matter of equality as it is an offence against human dignity and a
violation of human rights. The CSC further stated that, sexual assault is an
assault upon human dignity and constitutes a denial of any concept of
equality for women.16
80.
The Complainants argue that the test for defining inhuman and
degrading treatment in international, regional and national human rights
instruments is whether the treatment complained of is very severe. They
aver that inhuman and degrading treatment, as extensively elaborated by
the European Court, involves treatment resulting in physical or
psychological injuries. They submit that, degrading treatment more
specifically is a treatment that grossly humiliates a person, and that,
14
Communication 241/01- Purohit and Moore v. The Gambia (2003) ACHPR.
15
R v Ewanchuk [1999] 1 S.C.R. 330.
16
Ibid.
20
according to the European Court, a treatment of a sexual nature
diminishes human dignity.
81.
The Complainants refer to the case of Bekos and Koutropoulos v.
Greece17 where the European Court held that, in considering whether
treatment is degrading, it had to consider whether the object of such
treatment is to humiliate and debase the person concerned, and whether it
82.
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adversely affected his or her personality.
The Complainants also submit that the Respondent State failed in its
positive obligations to prevent and investigate the violations, which is a
violation of Article 1 of the African Charter. They cite the Commission‟s
decision in Legal Resource Foundation v Zambia18 where it held that
“Article 1 of the African Charter requires that the State not only recognize
rights, but requires that they shall undertake… measures to give effect to
them.19”
83.
The Complainants further submit that the State authorities failed in their
obligation to protect the Victims from sexual harassment, assault, abuse
and harm from NDP supporters and members of the Riot police. In this
regard, they submit that the Respondent State failed in its positive
obligation to prevent cruel, inhuman and degrading treatment and
investigate the allegations impartially, in violation of Article 5 of the
African Charter.
17
Bekos and Koutropoulos v. Greece (ECHR).
18
n 10 above.
19
Ibid para 62.
21
Alleged violation of Articles 7(1)(a) and 26
84.
The Complainants submit that while it is true that the Victims have
lodged their Complaints and appealed to challenge the violations, the
remedies available would not have been effective. They state that the
Victims did not have a right to an impartial and objective investigation
and appeal process. It is the view of the Complainants that this shows lack
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of independence of the PPO and the Appeal Court.
Alleged violation of Article 9(2)
85.
The Complainants argue that the right of the Victims‟ freedom of
expression has been violated by the Respondent State.20 They argue that
the Second, Third and Fourth Victims were attempting to assert their
political opinions and to disseminate their views during the protest, and
were prevented from doing so through assaults and sexual violence.
Alleged violation of Article 16 and 18(3)
86.
The Complainants allege that the explicit targeting, intimidation and
sexual harassment of the Victims amount to a violation of their rights
under Article 18(3) of the African Charter. They submit that these acts
have resulted in physical and emotional injury, and have detrimentally
affected their physical and mental well-being, contrary to Article 16 of the
African Charter.
20
The Complainants cite Communication 104/94, 141/94/145/95 Constitutional Rights
Project and Others v Nigeria (1988) ACHPR, para 36, and Communication 212/98 Amnesty
International v Zambia, para 79 to support their arguments.
22
87.
The Complainants also allege a violation of Article 18(3) of the African
Charter in the failure of the State to protect the Victims from
discrimination against women. They submit that this case represents a
critical opportunity for the African Commission to confirm that violence
against women can amount to discrimination under the African Charter,
and that States therefore have a legal obligation to prevent it, and take
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measures to thoroughly investigate, prosecute and punish in cases where
it occurs. They also refer to Article 1 of the Protocol to the African Charter
on the Rights of Women in Africa (the Women‟s Protocol),21 and argue
that it strongly underscores violence against women, whether it is
physical, sexual or psychological.
88.
The Complainants make reference to the United Nations (UN)
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), specifically its Articles 6 and 7. They submit that the
CEDAW Committee‟s General Recommendation (GR) No.19 entitled
“Violence against Women,” provides a link between violence against
women and equality. Furthermore, that paragraph 9 of the same GR
specifies that in addition to applying to violence perpetrated by public
authorities “Under general international law and specific human rights
covenants, States may also be responsible for private acts if they fail to act
with due diligence to prevent violations of rights or to investigate and
punish acts of violence and for providing compensation.”
21
The Protocol to the African Charter on the Rights of Women in Africa was adopted on 13
September 2000, and came into force on 25 November 2005.
23
89.
The Complainants submit that, this was also confirmed by the CEDAW
Committee‟s decision in A.T v Hungary,22 while the Committee was citing
a report presented by the UN Special Rapporteur on violence against
women, its causes and consequences on due diligence and the standards
expected of State Parties. In the Report, the Special Rapporteur specified
that “the concept of due diligence provides a yardstick to determine
whether a State has met or failed to meet its obligations in combating
90.
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violence against women.”
According to the Complainants, the sexual abuse endured by the
Victims is gender-specific and amounts to discrimination on the grounds
of sex, which is a violation of Article 18(3) of the African Charter.
The Respondent State’s Submissions on the Merits
91.
The Respondent State submits that the subject matter of the Complaint
does not satisfy the condition of exhaustion of local remedies stipulated in
Article 56 of the African Charter.
92.
The Respondent State argues that there has been no violation of any of
the provisions of the African Charter. It states that the national measures
undertaken and stated in the Complaint are not in violation of the African
Charter and the rights of the Victims were neither prejudiced nor violated.
93.
The Respondent State further provides that investigations carried out by
PPO concluded the existence of the crime of sexual molestation. They
argue however, that the element of criminal intention was not established
22
The United Nations Committee on the Elimination of Discrimination Against Women,
Communication No.: 2/2003 (2005).
24
in this offence as the injuries sustained by the Victims were as a result of
battery and clashes.
94.
The Respondent State alleges that the documents containing a narration
of the occurrences, incidents and statements submitted to the African
Commission by the Complainants are contrary to the statements made
under oath before the PPO by the Victims. It submits that new statements
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were made by the Victims to support their Complaint before the African
Commission. It requests the latter to disregard unsubstantiated statements
and not allow the assumptions of the correctness of the Complaint to lead
to findings contrary to those of the PPO.
95.
The Respondent State submits that the investigations of the PPO
concluded that the perpetrators were unknown and that those who were
accused by the Victims in their testimonies were not present at the scene
of the incident at the time of its occurrence.
The Respondent State’s Additional Submissions on the Merits
96.
The Respondent State submits in its additional submissions that there
exist “Several discrepancies between what the Victims submitted in their
testimonies before the PPO, and what they allege in their application
before the African Commission.”
97.
The Respondent State outlines three instances of such discrepancies
from the three Victims which are summarized as follows:
i.
The Second Victim, in her deposition to the African Commission,
indicated that the wife of Mr. Mohamed El Deeb, a member of the
25
NDP supporter was leading the demonstrations against them; she
did not mention this allegation to the PPO. Furthermore, the Second
Victim said the PPO police officer, Nabil Selim, was the one who
dragged her from the taxi with the Third Victim, meanwhile, the
Third Victim later retracted her submissions to the African
Commission, indicating that she discovered a year later that Nabil
Selim was not the officer who dragged them from the taxi. The
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Second Victim also mentioned in her submissions to the African
Commission that she had been sprayed in her face by an assailant, a
matter which she never mentioned to the PPO;
ii.
The Third Victim also retracted her accusations of Officer Nabil
Selim after one year of the incident, and according to the
Respondent State, the PPO had established beyond any doubt that
he could not have been at the scene at the time of the protest;
iii.
The Fourth Victim alleged to the African Commission that she was
beaten by Mr. Mohammed El Deed from the NDP, and this was
never mentioned to the PPO. She also alleged in her submissions
before the African Commission that when she went to the hospital
the following day, doctors insisted on calling the police, and the
police refused to investigate based on jurisdictional reasons. This
she never mentioned to the PPO.23
98.
On the basis of the above, the Respondent State declares that the Victims‟
former accusations were unfounded and simply made to support their
Complaint. According to the Respondent State, the statements of the
23
See Note Verbale from the Respondent State of 31 October 2008 with attached discrepancies.
26
Victims are conflicting and show inaccuracy in identifying the persons
who allegedly assaulted them.
99.
The Respondent State submits further that inconsistency also existed
between the medical reports evidencing the injuries, but this is not
substantiated.
The Respondent State also refutes the allegations that there was
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100.
discrimination because assaults were inflicted on the Victims because of
the “mere fact of being women.” It argues that the assembly of the two
parties in the riots included men and women other than the Victims.
101.
It submits further that the Egyptian Constitution affirms the principle of
equality between men and women and the law provides many privileges
for women to safeguard their effective participation in the community as a
matter of affirmative action for the benefit of women. It states that
Egyptian society rejects any form of degrading or inhuman treatment.
102.
The Respondent state also outlines the procedures taken by the PPO
during investigation of the alleged violations. It explains that:
i. The PPO heard in detail the testimony of all parties, victims, and
witnesses concerning the incident;
ii. The PPO referred the injured male and female victims to El-Hilal
El-Ahmer Hospital, and attached twelve medical reports to the
investigation reports, after confirming that the reports have been
reviewed;
27
iii. The PPO permitted each person who sustained injuries as a result
of the crime to institute civil proceedings during investigations in
application of Article 199 bis of the Criminal Procedure Law;
iv. On 13 June 2005, the PPO viewed the video tapes and CDs
submitted by the Complainants and it was revealed that none of
the accused were present in front of the Press Syndicate or Saad
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Zaghloul Status, except Mohamed El Deeb;
v. The PPO summoned all the accused whose names were included
in the investigations and interrogated them in detail;
vi. Investigations carried out by the PPO concluded the crime of
sexual molestation (exposing private parts, sexual harassment and
touching the genitals).
The Complainants’ Additional Submissions on the Merits
103.
In response to the Respondent State‟s submissions about the “Existence of
several discrepancies between what the Victims submitted in their
testimonies before the PPO, and what they allege in their application
before the African Commission,” the Complainants argue that the
Respondent State only sets out three discrepancies, while inferring that
there are more discrepancies which it does not substantiate. They submit
that the instances set out by the Respondent State refer to omissions rather
than contradictions.
104.
According to the Complainants, the omissions mentioned above are due
to the conditions under which the statements before the PPO were taken,
28
and that not all the information that they provided was considered or
written down. They further contend that the instances detailed in the
Respondent State‟s submission does not discharge it from its obligation to
investigate human rights violations because the omission is not material
enough to constitute a bar, by the victims, to an effective investigation.
105.
The Complainants submit further that, the Respondent State placed too
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much reliance on the formal statements that the Victims made to the PPO
and failed to have any regard to the context and circumstances within
which the statements were made. The Complainants also attempt to
clarify the discrepancies mentioned by the Respondent State in their
additional submissions on the Merits:24
i. On the discrepancy concerning the Second Victim‟s omission to
mention to the PPO that the wife of Mr. El Deeb led the
demonstrations against them and that she was sprayed in the face
by an Assailant, the Complainants submit that according to the
Second Victim, the PPO did not record all the information provided.
The Complainants indicate further that, according to the Second
Victim, she spent a lot of time waiting for her statement to be taken
by the PPO and that when it was finally taken, they did not make
any record of evidence that she submitted; including CDs
containing pictures and her torn clothes;
24
See generally, the Complainants‟ additional submissions on the Merits, paras 12 to 16, and
the affidavits in the Merits submissions of the Complainants of three of the Victims
contained in Annexure E: para 21, Second Victim, Abir Al-„Askari‟, paras 19-25, Third
Victim, Shaimaa Abou Al-kheir‟s, & Para 17-19, Iman Taha Kamel, Fourth Victim.
29
ii. On the discrepancy concerning the Third Victim who retracted her
accusations against officer Selim when she realised that she had
been mistaken as to his identity, the Complainants state that this
retraction was done in good faith. They explain that the Third
Victim‟s colleagues named one of her attackers as Officer Selim, but
did not know the name of her attacker, although she could recognise
him. The Complainants state that the Third Victim said “I saw the
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same officer at another demonstration almost a year later and I
recognised him. Another officer called out to him, and that is when I
discovered that his name was not Nabil Selim;”
iii. On the discrepancy concerning the Fourth Victim who according to
the Respondent State, failed to mention to the PPO that she had been
assaulted by Mr. El-Deeb and also failed to mention the episode in the
hospital and the police, the Complainants explain that the Victim
mentioned in her affidavit that she was greatly distressed at the time
she was reporting to the PPO. According to the Complainants, the
Fourth Victim indicated that she had difficulties recalling all the
details and events at the time, and that she was only able to identify
Mr. El-Deeb later. Furthermore, according to the Complainants, the
Fourth Victim stated: “I feel like I was having a nervous breakdown at
the time, and could not focus.”25
106.
The Complainants aver that the Respondent State uses the discrepancies
as a basis that hampered its investigations of the alleged violations,
meanwhile, according to them, the statements made by the Victims had no
discrepancies whatsoever, but rather omissions due to the particular
25
Iman Taha Kamel, the Fourth Victim, the submissions of the Complainants on the Merits,
Annexure E, para. 19.
30
circumstances of the case. They argue that the omissions have no material
bearing on the present Communication.
107.
They reiterate that the Respondent State failed in its obligations, in
particular in its procedural obligation to investigate. This is because,
according to the Complainants, when the Respondent State received the
complaints, it failed to institute investigations that could have led to the
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identification of the perpetrators or established criminal wrongdoing.
Rather, it expected the Victims to provide them with the identities of the
perpetrators.
108.
The Complainants submit that when the PPO provided reasons for its
failure to prosecute, they stated that the crime of „assault on honour‟ could
not be prosecuted because the perpetrators, whoever they are, lacked the
requisite intent for committing the crime. In this regard, the Complainants
aver that the Respondent State‟s submission that it failed to investigate,
prosecute and punish the perpetrators because of the omitted information
by the Victims is incorrect. They argue that the Victims submitted
sufficient information to enable an investigation to take place.
The Respondent State’s Additional Submissions on the Merits
109.
In its additional submissions,
the Respondent State disputes the
allegation that the investigation undertaken from the Complaints filed by
the
Victims, before the PPO
as well as the decision by the Appeal
Chamber upholding the decision of the PPO,
lacked impartiality,
objectivity or integrity.
31
110.
The Respondent State maintains that the PPO duly investigated the
incident. It emphasizes that the investigations carried out have all the
specified safeguards for criminal investigation according to the Egyptian
legal regime, particularly the impartiality and confidentiality of the
investigations, the presence of all opposing parties and their respective
defense counsels, who were also informed about the developments of the
111.
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investigations.
It submits further that the security agencies have also taken all necessary
security measures, whether in terms of securing the demonstrations, or
disengaging the demonstrators in accordance with the specified rules and
providing the Victims with the necessary level of protection. It adds that
the police also exercised their duties in receiving Complaints from
demonstrators, filing the necessary reports, and immediately referring the
case to the PPO.
112.
The Respondent State argues that failure to supply the PPO with the
information required coupled with the inconsistencies in the account
given by the Victims on the incidents that took place during the
demonstrations, cannot be a reason for their inability to identify the
perpetrators of the misdemeanor of beating them up. According to the
Respondent State, this only indicates that “The circumstances surrounding
the incident characterized by a large crowd and the psychological and
physical conditions of the female journalists did not permit them to
precisely recollect the sequence of events, which in turn did not help the
investigation authority to identify the perpetrators.” The Respondent State
submits that notwithstanding the above, the PPO and the police took
necessary measures to investigate the incident.
32
113.
Furthermore, according to the the Respondent State, the disparities make
it evidently clear that the decision reached by the PPO, after its detailed
and scrupulous investigations which showed that there were no grounds
for initiating criminal proceedings "temporarily" due to the inability to
identify the perpetrators was logical and sound. More so, the perpetrators
could not be identified and all those accused by the Complainants,
including the police and the others, were not present at the scene of the
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incident at the material time.
The African Commission’s Analysis on the Merits
114.
In this Communication, the African Commission is called upon to
determine whether the Respondent‟s State failure to protect the Victims
from the alleged acts or omissions is a violation of their rights under the
African Charter; specifically Articles 1, 2, 3, 5, 7(1) (a), 9(2), 16, 18(3) and
26.
115.
Articles 2 and 18(3) will be considered together, given that both have an
element of discrimination.
116.
Article 1 of the African Charter will be dealt with after all the other
Articles have been analyzed, since a violation of Article 1 can only be
established if other Articles in the Charter have been violated.
Alleged violation of Article 2-Right against non-discrimination, and Article
18(3)-Right of Non-discrimination Against Women
117.
Article 2 of the African Charter provides that: “Every individual shall be
entitled to the enjoyment of the rights and freedoms recognised and
guaranteed in the present Charter without distinction of any kind such as
33
race, ethnic group, colour, sex, language, religion, political or any other
opinion, national or social origin, fortune, birth or other status.”
118.
Article 18(3) of the African Charter provides that “The State shall ensure
the elimination of every discrimination against women and also ensure
the protection of the rights of the woman and the child as stipulated in
119.
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international declarations and conventions.”
The non-discrimination principle generally ensures equal treatment of an
individual or group of persons irrespective of their particular
characteristics, and the non-discrimination principle within the context of
Article 2 and 18(3) of the African Charter ensures the protection from
discrimination against women by States Parties to the African Charter.
120.
Before the African Commission proceeds to determine whether Articles 2
and 18(3) of the African Charter have been violated in this
Communication, it finds it imperative to define discrimination and its
relationship
with
gender-based
violence
as
alleged
in
this
Communication.
121.
The Women‟s Protocol defines discrimination against women as “Any
distinction, exclusion or restriction or any differential treatment based on
sex and whose objectives or effects compromise or destroy the
recognition, enjoyment or the exercise by women […] of human rights and
fundamental freedoms in all spheres of life.”26 The same Protocol defines
violence against women as ”All acts perpetrated against women which
cause or could cause them physical, sexual, psychological, and economic
26
n 21 above Article 1 (f) .
34
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…”27
122.
Discrimination as defined by Article 1 of CEDAW is:
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[A]ny distinction, exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment or exercise
by women, irrespective of their 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.28
123.
Furthermore, in its General Recommendation No. 19, the CEDAW
Committee established the correlation between discrimination against
women and gender-based violence by 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. It includes acts that inflict physical, mental or sexual harm or
suffering, threats of such acts, coercion and other deprivations of liberty. Genderbased violence may breach specific provisions of the Convention [CEDAW],
regardless of whether those provisions expressly mention violence.29
124.
The Complainants argue that, in violation of Article 2 of the African
Charter, the Victims were discriminated against in the enjoyment of their
27
Ibid. Article 1 (j).
28
CEDAW Article 1.
29
The United Nations Committee on the Elimination of Discrimination against Women, General
Recommendation No. 19 (1992), para. 6.
35
rights in violation of the African Charter on the basis of their sex and
political opinion. They further allege that, there was differential treatment
between men and women during the riot and that the main reason why
the Victims were assaulted by the authorities is basically because they are
women and journalists. According to the Complainants, this is evidenced
by the sexual nature of the violations.
At this point, the African Commission would like to refer to the
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125.
Complainants initial submissions in this Communication explaining the
incident that took place on 25 May 2005.30
126.
In response to the claims made by the Complainants, the Respondent State
refutes the allegations submitting that, the assembly of the two parties in
the riots included men and women other than the Victims. It contends that
there was no discrimination and that assaults were not inflicted on the
Victims because they were women.
127.
The Respondent State submits further that the Egyptian Constitution
affirms the principle of equality between men and women and that the
law provides many privileges for women to safeguard their effective
participation in the community as a matter of affirmative action for the
benefit of women.
128.
Since the Respondent State is contesting the allegations of the
Complainants, the African Commission is called upon to analyze the
arguments of both parties and establish whether the assaults endured by
the Victims as alleged, is discriminatory based on sex and political view in
violation of Article 2 of the African Charter.
30
See paragraph 3 of this Communication.
36
129.
At this point in time, the African Commission would like to pose the
following questions: Whether the women and male protesters had similar
treatment; and 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.
In finding answers to these questions, paragraphs 3 to 20 of this
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130.
Communication under „summary of facts‟ is crucial to the sexual nature of
the violations as purported by the Complainants.
131.
The First Victim alleges that she was threatened to be beaten if she insists
to enter the Press Syndicate by a police officer. She alleges further that she
was harassed by the NDP supporters, stating: “Their hands were fondling
my breasts and molesting all the sensitive areas in my body. They
assaulted me with their hands and tore off my clothes and jewellery 31… I
ended up almost naked as a result.”32
132.
The Second Victim on her part alleges that, while she was taking pictures
of the demonstrations she was attacked by an identified NDP supporter.
She states; “He slapped me across the face and called me abusive names,
like „slut‟ and „whore‟.”33 She further describes incidences which took
place while she was trying to leave the Press Syndicate. She states:
31
n 24 above, (Nawal‟s Affidavit) para. 5
32
Ibid, para. 6.
33
Ibid, para. 9.
37
Someone dragged me by my hair and pulled me outside…. An identified police
officer at the scene told me, ‘I’ll show you not to go down to the streets again.’ He
called me abusive names, like ‘whore’ and ‘slut.’ He also told me ‘we’ll take your
picture and distribute it’.34 … The officer who was holding me from the back then
put his hand up my blouse from the back, as if he was trying to tear off my
clothes. His other arm was around me and he fondled my breasts. I tried to stop
him but couldn’t. The two officers in front of me tried to pull off my jeans but
133.
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they couldn’t… The officer behind me started tearing my undershirt and bra.35
The Second Victim also alleges that she was intimidated after filing the
Complaint at the PPO and pressured to withdraw the same. As a result,
she suffered physical injuries, was emotionally traumatized, faced
pressure from her family to quit her job and to cease political
participation. She states: “My feelings of personal security have
deteriorated…I change my clothes in the dark… scared to see myself
naked. I felt like their fingerprints were marked on my body.”36 She also
allegedly lost her relationship with her partner after her refusal to
withdraw the complaint which was perceived as a “scandal” given the
public and sexual nature of the violations she endured.
134.
The Third Victim alleges that when she was trying to leave the Press
Syndicate she was subject to several assaults. She states: “One of the
women pulled my hair and brought me to the ground. The next thing I
knew I was being beaten… All of the clothes on the upper half of my body
were torn off and I ended up with only a bra.”37 According to the Third
34
Ibid, para. 14.
35
Ibid. para. 15 & 16.
36
Ibid. ( Abir‟s Affidavit) para. 29.
37
Ibid. (Shaimaa‟s Affidavit) para. 13
38
Victim, she also suffered from intimidation after filing the Complaint at
the PPO, to the extent that she was threatened and led to her being framed
with prostitution accusations.
135.
The Fourth Victim on her part alleges that, while she was participating in
the demonstration, she was attacked by thugs who beat her up and tried
to tear off her clothes. She alleges that she had men following her and also
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calling her names such as „slut‟ and „whore.‟ As a result of the incidents,
the Fourth Victim alleges that she was severely traumatized to the extent
that she had to be on anti-depressants, and suffered from physical injuries
for three months.38
136.
It is further alleged by the Fourth Victim that while the above mentioned
assaults were taking place, law enforcement officers on the scene refused
to come to her assistance.
137.
Three clear conclusions are obvious from the submissions of the
statements made by the Victims;
a. The Victims were exclusively women;
b. The Victims were not protected from the perpetrators and other
unidentified actors during the demonstrations; and
c. The violations were perpetrated on the Victims because of their
gender.
38
Ibid ( Iman‟s affidavit).
39
138.
Having said this, the onus probandi therefore shifts on the Respondent
State to prove that the Victims were in effect protected by the law and that
there was no differential treatment given to both male and female
protesters on the scene. However, there is no evidence in the submissions
of the Respondent State showing that male protesters in the scene were
also stripped naked and sexually harassed as the women were.
In the absence of any evidence to the contrary by the Respondent State,
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139.
the Commission finds a violation of Article 2 of the African Charter.
140.
In claiming a violation of Article 18(3 of the African Charter, the
Complainants submit that the sexual abuse that the Victims endured were
gender-specific, amounting to discrimination on the grounds of sex.
141.
The Complainants further allege that the State failed to protect the Victims
from discrimination, by not taking any measures to thoroughly
investigate, prosecute and punish the perpetrators in cases where it
occurs. .
142.
In order for the African Commission to establish that Article 18(3) has
been violated by the Respondent State, it is going to analyse „some of the
elements‟ of the testimonies provided by the Complainants (discussed in
paragraphs 131 to 136) above to establish whether the allegations were
indeed gender-specific, and discriminatory on the primary basis of
gender. This is because the characteristics of violence commonly
committed against women and men differ, and it is only by analyzing the
nature of the violence that the African Commission can effectively draw
its conclusions.
40
143.
Firstly, when looking at the verbal assaults used against the Victims, such
as „slut‟ and „whore,‟ it is the opinion of the African Commission that
these words are not usually used against persons of the male gender, and
are generally meant to degrade and rip off the integrity of women who
refuse to abide by traditional religious, and even social norms.
144.
Secondly, the physical assaults described above are gender-specific in the
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sense that the Victims were subjected to acts of sexual harassment and
physical violence that can only be directed to women. For instance, breasts
fondling and touching or attempting to touch „private and sensitive parts‟.
There is no doubt that the Victims were targeted in this manner due to
their gender.
145.
Thirdly, the alleged threats against some of the Victims who were accused
of practicing prostitution when they refused to withdraw their
Complaints can also be classified as being gender-specific.
146.
The standard for determining whether discrimination has taken place was
canvassed by the Inter -American Court when it made its Advisory
Opinion on the proposed Amendments to the Naturalization Provisions
of the Constitution of Costa Rica. The Court stated that “…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….”39 This was also reflected by the
UN Human Rights Committee when it held that “Not every
differentiation of treatment will constitute discrimination, if the criteria for
39
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.
41
such differentiation are reasonable and objective and if the aim is to
achieve a purpose which is legitimate under the Covenant.”40
147.
Can the differentiation of treatment of the Victims in the present
Communication be classified as reasonable and legitimate as expressed by
the UN Human Rights Committee?
It follows that, the principle of equality or non-discrimination does not
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148.
mean that all differential treatments and distinctions are forbidden
because some distinctions are necessary when they are legitimate and
justifiable.
149.
Looking at the arguments of the parties in this Communication, the
African Commission is of the opinion that the treatment was neither
legitimate, nor justifiable because there is no reasonable cause behind the
discrimination that was inflicted upon the Victims.
150.
Furthermore, in addition to the statements made by the Victims, a
statement made by a woman named Rabab al-Mahdy41 in the
Complainants‟ submissions corroborated the sexual harassment inflicted
on them. She stated: “The thugs started beating and assaulting me. They
put their hands up my clothes, and fondled all my sensitive areas under
the eyes of the officers. “42
40
Human Rights Committee, General Comment 18, Non-discrimination (Thirty-seventh session,
1989), Compilation of General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994). Para 13.
41
Aida Seif el-Dawla was also participating in the demonstrations.
42
Annexure “G”, “Translations of extracts of witnesses’ statements made to the prosecutors and to
Al-Nadim Center”- Statement of Rabab al-Mahdy to Al-Nadeem Cente.
42
151.
The experience of another woman, Aida Seif el-Dawla,43 who was also at
scene, supports the arguments of the Complainants about the genderspecific nature of the violations. Aida Seif el-Dawla alleges that when she
was being assaulted, she tried to ask for help from the police officers, who
instead hit her and retorted; “This is so that you stop coming to the areas
belonging to men!”44
It is clear that the incidents alleged took place in a form of a systematic
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152.
sexual violence targeted at the women participating or present in the
scene of the demonstration. Furthermore, perpetrators of the assaults
seemed to be aware of the context of the 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
means of punishing and silencing them from expressing their political
opinions.
153.
In view of the fact that the Respondent State did not refute the allegations
made by the Complainants in the framework of the actual acts of violence
that were committed against the Victims, and also following the analysis
of the statements from the Victims, the African Commission concurs with
the
Complainants
that
the
type
of
violence
used
during
the
demonstrations was perpetrated based solely on the sex of the persons
present in the scene of the demonstration. In other words, the violence
was gender-specific and discriminatory by extension.
43
Dr Aida Seif el-Dawla is an Egyptian psychiatrist and a prominent human rights activist.
44
n 42 above, Statement of Aida Seif el-Dawla to Al-Nadeem Center.
43
154.
Furthermore, if the Respondent State failed to protect the Victims from the
violations that they incurred, and did not show any evidence of whether
the differential treatment was legitimate, it goes without saying that the
State has fallen short of its obligations under 18(3) of the African Charter.
155.
The Complainants also allege that the Respondent State failed to
investigate the sexual assaults that were perpetrated against the Victims.
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This Commission notes that the concept of human rights is based on a
typical recognition that every human being is equal and also recognizes
the inherent dignity and worth of every human being. Accordingly, when
women are targeted due to their political opinion for the mere fact of
being women, and are not assured the necessary level of protection by the
State in the face of that violence, a range of their fundamental human
rights are at stake, including their right to sexual equality. The State
therefore has an obligation to investigate such acts of violence against
women, whether committed by state or non-state actors.
156.
The African Commission also notes that a State may be in violation of the
African Charter, for acts of non-state actors, if it complicit in the violations
alleged, has sufficient control over those actors, or fails to investigate
those violations. The jurisprudence of the African Commission has
reaffirmed this position in Commission Nationale des Droits de
l’Homme et des Libertés v. Chad.45 In that Communication, the African
Commission stated that, “If a state neglects to ensure the rights in the
African Charter, this can constitute a violation, even if the State or its
agents are not the immediate cause of the violation.”46
45
Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertés v. Chad
(ACHPR).
46
Ibid., para. 20
44
157.
Furthermore, in the SERAC case47 the African Commission stated that:
“Governments have a duty to protect their citizens, not only through
appropriate legislation and effective enforcement but also by protecting
them from damaging acts that may be perpetrated by private parties.”
The Inter-American Commission, in Maria da Penha and Maia Fernandes
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158.
v. Brazil, also warned from impunity concerning acts of violence and
underlined that, failure to fulfil the obligation to prevent, protect, and
prosecute creates a climate that is conducive to such acts.48
159.
In the present Communication, the Victims allege that the perpetrators of
the sexual assaults they were subject to were police officers, while other
identified and unidentified persons were also acting upon orders from the
police officers. According to the Complainants, the State failed in its legal
obligation to protect against discrimination and take measures to
thoroughly investigate, prosecute and punish in cases where it occurs by
leaving the perpetrators unpunished.
160.
The Complainants assert that when the Respondent State received the
Complaints, it failed to institute investigations that could have led to the
identification of the perpetrators or established criminal wrongdoing.
Rather, it expected the victims to provide them with the identities of the
perpetrators.
The
Respondent
however
claims
that
there
were
discrepancies and contradictions between what the Victims submitted in
47
n 8 above. Para 57
48
Maria da Penha v. Brazil (2001) IACHR para.56
45
their testimonies before the PPO, and what they alleged in their
application before the African Commission, which hampered the
investigation of the violations. 49
161.
The Complainants argue that the omissions made by the Victims which
the State describes as „discrepancies‟ are due to the conditions under
which the statements before the PPO were taken, and that not all the
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information that they provided was considered or written down. They
further contend that the instances50 detailed in the Respondent State‟s
submission does not discharge it from its obligation to investigate human
rights violations because the omission is not material enough to constitute
a bar, by the Victims, to an effective investigation.
162.
Even though the Respondent State maintains that failure to supply the
PPO with the information required, coupled with the inconsistencies in
the account given by the Victims on the incidents that took place during
the demonstrations hampered the investigations, they seem to agree with
the Complainants that the Victims made omissions due to the
circumstances in which they found themselves. This is seen in the
Respondent State‟s submissions that, “The circumstances surrounding the
incident characterized by a large crowd and the psychological and
physical conditions of the female journalists, did not permit them to
precisely recollect the sequence of events, which in turn did not help the
investigation authority to identify the perpetrators.”
163.
Based on the above, it is the African Commission‟s opinion that the
Respondent State failed to investigate and prosecute the perpetrators who
49
See paragraph 96 above outlining the discrepancies.
50
The Complainants clarify these discrepancies in paragraph 104 above.
46
committed gender-specific violations against the Victims. Failure to
investigate effectively, with an outcome that will bring the perpetrators to
justice, shows lack of commitment to take appropriate action by the State,
especially when this lack of commitment is buttressed by excuses such as
lack of sufficient information to carry out a proper investigation.
Furthermore, failure to investigate compromises an international
responsibility on the part of the Respondent State, both in the case of
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crimes committed by agents of the State and those committed by private
individuals.
164.
The effects of the violations perpetrated on the Victims were palpable
physically, and even from the medical records. The State did not therefore
need further information to proceed with the necessary investigation that
will bring the perpetrators to justice. As the Inter-American Commission
said in Maria da Penha and Maia Fernandes v. Brazil, and this
Commission agrees, that “Ineffective judicial action, impunity, and the
inability of victims to obtain compensation provide an example of the lack
of commitment to take appropriate action…”51
165.
The African Commission also holds the same view with the CEDAW
which held that, violence against women affects, compromises or destroys
the enjoyment and exercise by women of their fundamental and human
rights in different spheres of life.52 In this regard, the African Commission
considers violence against women as a form of discrimination against
them.
51
n 49 above, para. 57
52
The United Nations Committee on Civil and Political Rights
47
166.
To sum up, it is clear that the sexual assaults against the Victims which
occurred on 25 May 2005 were acts of gender-based violence, perpetrated
by state actors, and non-state actors under the control of state actors, that
went unpunished. The violations were designed to silence women who
were participating in the demonstration and deter their activism in the
political affairs of the Respondent State which in turn, failed in its
167.
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inescapable responsibility to take action against the perpetrators.
For these reasons, based on the above analysis, the African Commission
finds the Respondent State in violation of Articles 2 and Article 18 (3) of
the African Charter.
Article 3- Right to Equality before the Law and Equal Protection of the Law
168.
Articles 3(1) and (2) of the African Charter on the other hand provide that,
“Every individual shall be equal before the law and that every individual
shall be entitled to equal protection of the law.”
169.
The Complainants argue that the Victims were subjected to all the
violations alleged basically because the Respondent State did not protect
them from the perpetrators.
170.
The Respondent State contends that the security agencies have also taken
all necessary security measures, whether in terms of securing the
demonstrations, or disengaging the demonstrators in accordance with the
specified rules, and providing the Victims with the necessary level of
protection.
48
171.
The African Commission will at this point explain the principle of equality
that underpin equality before the law and equal protection of the law
according to its jurisprudence.
172.
The African Commission has affirmed the principle of equality before the
law and equal protection of the law by explaining the scope of these rights
in Zimbabwe Lawyers for Human Rights and the Institute for Human
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Rights and Development (on behalf of Andrew Barclay Meldrum) v
Republic of Zimbabwe.53
173.
With respect to „equality before the law‟ under Article 3(1) of the African
Charter, the African Commission stated in the aforesaid Communication
that:
The most fundamental meaning of equality before the law under Article 3(1) of
the Charter is the right by all to equal treatment under similar conditions. The
right to equality before the law means that individuals legally within the
jurisdiction of a State should expect to be treated fairly and justly within the
legal system and be assured of equal treatment before the law and equal
enjoyment of the rights available to all other citizens... The principle that all
persons are equal before the law means that existing laws must be applied in the
same manner to those subject to them.54
174.
With regard to „equal protection of the law‟ under Article 3(2) of the
African Charter, the African Commission also held in the same
Communication above that “Equal protection of the law means that no
53
54
Communication 294/2004- Zimbabwe Lawyers for human Rights and the Institute for Human
Rights and Development (on behalf of Andrew Barclay Meldrum) v Republic of
Zimbabwe(ACHPR)
Ibid, para 96.
49
person or class of persons shall be denied the same protection of the laws
which is enjoyed by other persons or class of persons in like circumstances
in their lives, liberty, property and in their pursuit of happiness.”55
175.
Equality and non-discrimination are core principles in international
human rights law. Consequently, the premise under Article 3 of the
African Charter is that the law shall prohibit any form of discrimination
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and guarantee to all individuals equal and effective protection against
discrimination on any ground, regardless of race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth
or other status. In this respect, the State has an affirmative duty to prohibit
discrimination and ensure that all persons are protected by the law and
are equal before the law.
176.
The principle of „equal protection‟ therefore places all men and women on
an equal footing before the law. Furthermore, it indicates that all men and
women are entitled to equal protection against any discrimination and
against any incitement to such discrimination. The African Commission
notes that, parties can only establish that they have not been treated
equally by the law, if it is proved that the treatment received was
discriminatory, or selective. If a party claims selective protection of the
law, then the burden is on the party to show that the laws had
discriminatory effects and purposes.
177.
This Commission further asserts that equality before the law also entails
equality in the administration of justice. In this regard, all individuals
should be subject to the same criminal and investigative procedures in the
same manner by law enforcement and the courts. On the other hand, for
55
Ibid, para 99.
50
all individuals to have equal protection of the law, the dignity of every
individual, whether male or female should be fair, equally safeguarded by
the law and this should also be the case when applying or enforcing the
law.
178.
Although the Respondent State submitted, that the security agencies have
“taken all necessary security measures…. providing the Victims with the
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necessary level of protection,” the Respondent State does not mention
whether the „necessary level of protection‟ was effective or satisfactory to
the Victims, or whether the level of protection was the same that was
accorded to the men in the scene. It is not sufficient to say that necessary
measures were taken when the results of those measures are not palpable.
179.
It is the African Commission‟s view that no logical explanation can be
derived from the fact that the Victims were subjected to all the assaultsphysical and emotional, they claim, if the State indeed protected them
from the assaults. It is also the African Commission‟s view that inequality
based on the ground of sex is an analogous ground for discrimination.
Irrefutably therefore, this Commission underscores that freedom from
discrimination is also an aspect of the principles of equality before the
law and equal protection of the law under Article 3 of the African Charter
because both present a legal and material status of equality and non
discrimination.
180.
Based on the above, the African Commission concludes that there has
been a violation of Article 3 by the Respondent State.
51
Alleged violation of Article 5 (Prohibition of Torture and Cruel, Inhuman and
Degrading Treatment)
181.
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 slavery, slave trade, torture, cruel and
182.
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inhuman or degrading punishment and treatment shall be prohibited.
The Complainants argue that the treatment received by the Victims on 25
May 2005 amounted to a violation of their dignity and to inhuman and
degrading treatment. They sustain that the Victims were physically and
verbally assaulted, sexually assaulted and abused during the protest,
adding that there was a violation of their dignity because the assaults
were severe and gravely humiliating, in violation of Article 5 of the
African Charter.
183.
The Complainants further submit that since the State authorities failed in
their obligation to protect the Victims from sexual harassment, assault,
abuse and harm from NDP supporters and members of the Riot police, it
failed in its positive obligation to prevent cruel, inhuman and degrading
treatment and investigate the allegations impartially.
184.
The Respondent State does not provide any substantial arguments to
contend the allegations of the Complainants that the treatment subjected
by the Victims was inhuman and degrading. It only submits that “The
Egyptian society rejects any form of degrading or inhuman treatment.”
Concerning failure to investigate, the Respondent State argues that
investigations were carried out by the PPO after the incident which
52
concluded the existence of the crime of sexual molestation, which includes
exposing private parts, sexual harassment and touching the genitals.
185.
They argue that the element of criminal intention was not established in
this offence as the injuries sustained by the Victims were as a result of
battery and clashes, adding that the PPO investigations concluded that the
perpetrators were unknown.
Before the African Commission determines whether the acts inflicted on
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186.
the Victims amounted to inhuman and degrading treatment, and whether
there was pain and suffering, it will first of all attempt to define the term
„inhuman and degrading treatment.‟
187.
The African Commission‟s jurisprudence has established the scope of
inhuman and degrading treatment, which does not only include physical
and psychological suffering. In International Pen and Others v. Nigeria,
for instance, the African Commission held that:
Article 5 of the African Charter prohibits not only torture, but also cruel,
inhuman or degrading treatment. This includes not only actions which cause
serious physical or psychological suffering, but which humiliate the individual or
force him or her to act against his will or conscience.56
188.
The African Commission has also noted that violations under Article 5 of
the African Charter should also be established based on the circumstances
of each case. In Curtis Doebbler v Sudan, the African Commission ruled
that:
56
Communications 137/94, 139/94, 154/96 & 161/97- International Pen, Constitutional Rights
Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v.
Nigeria(ACHPR). para. 79
53
While ultimately whether an act constitutes inhuman degrading treatment or
punishment depends on the circumstances of the case. The African Commission
has stated 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.57
189.
Similarly, in Media Rights Agenda v Nigeria, the African Commission
held that the term “Cruel, inhuman or degrading punishment and
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treatment' is to be interpreted so as to extend to the widest possible
protection against abuses, whether physical or mental.”58
190.
Furthermore, since inhuman and degrading treatment also impacts on the
dignity of a person, the African Commission held in Purohit and Moore
v. The Gambia cited by the Complainants that:
Human dignity is an inherent basic right to which all human beings, regardless
of their mental capabilities or disabilities as the case may be, are entitled to
without discrimination. It is therefore an inherent right which every human
being is obliged to respect by all means possible and on the other hand it confers a
duty on every human being to respect this right.59
57
Communication 236/2000, Curtis Doebbler v Sudan, para 37. 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.
58
Communication 224/98-Media Rights Agenda v. Nigeria, (2000) ACHPR.para 71.
59
n 14 above para 57.
54
191.
Further, Article 16(1) of the UN Convention Against Torture, calls on
States to:
Undertake to prevent in any territory under its jurisdiction other acts of cruel,
inhuman or degrading treatment or punishment which do not amount to torture
as defined in article I, when such acts are committed by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an
192.
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official capacity…
Article 16(2) of the same Convention adds that “The provisions of this
Convention are without prejudice to the provisions of any other
international instrument or national law which prohibits cruel, inhuman
or degrading treatment or punishment…” Accordingly, the spirit of the
UN Convention Against Torture shall apply even in the context of the
African Charter, as authorised by Article 61 of the same.
193.
Under the European Human Rights System, the European Court has also
underscored the determining factor to qualify an act as „ill-treatment,‟
which is that; the act must “attain a minimum level of severity”. On this
ground, the Court has outlined four main criterion:
194.
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
This test was substantiated in Ireland v UK, where the Court held that:
As was emphasised by the Commission, ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3 (art. 3). The assessment
of this minimum is, in the nature of things, relative; it depends on all the
55
circumstances of the case, such as the duration of the treatment, its physical or
mental effects and, in some cases, the sex, age and state of health of the victim,
etc.60
195.
Furthermore, in the combined Cases of Denmark v. Greece,61 Norway v.
Greece,62 Sweden v. Greece,63 and Netherlands v. Greece,64 popularly
referred to as the Greek Case, the European Commission held that …”
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The notion of inhuman treatment covers at least such treatment as
deliberately causes severe suffering, mental or physical which in the
particular situation, is unjustifiable…”65 In the same case, the European
Commission also considered that, for an act to be degrading there must be
some form of „gross humiliation.‟66
196.
Having discussed the principle of inhuman and degrading treatment and
indignity, the African Commission will rely on the criterion provided by
its jurisprudence that: “Acts of inhuman and degrading treatment “Not
only cause serious physical or psychological suffering, but also humiliate
the individual…’ and ‘Can be interpreted to extend to the widest possible
protection against abuses, whether physical or mental.‟
60
Ireland v UK (1978) ECHR (Series A) para 162.
61
Denmark vs. Greece.
62
Norway vs. Greece.
63
Sweden vs. Greece.
64
Netherlands vs. Greece.
65
The Greek Case (1969) Yearbook: Eur.Conv. on HR 12 page 186.
66
Ibid
56
197.
In their submissions, the Complainants give instances of inhuman and
degrading treatment that the Victims were subjected to, and which this
Commission has analysed above.67
198.
The Respondent State has not denied the allegations presented by the
Complainants. It only states that “the Egyptian society rejects any form of
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degrading or inhuman treatment.” In addition, it argues that the
investigation carried out by the PPO concluded the existence of „sexual
molestation.‟ This raises the question whether sexual molestation is not
„inhuman and degrading‟ to qualify as a violation under Article 5 of the
African Charter. Is it not tantamount to sexual humiliation, especially with
the use of degrading references such as whore and slut?
199.
In John K. Modise v Botswana, the African Commission held that the acts
suffered by the Victim “Exposed him to personal suffering and indignity
in violation of the right to freedom from cruel, inhuman or degrading
treatment guaranteed under Article 5 of the Charter.”68 Even though the
acts in this Communication cannot be compared to the acts in John K.
Modise v Botswana there is an aspect of indignity.
200.
In Campbell and Cosans v UK, the European Court stated that,
“‟treatment‟ itself will not be „degrading‟ unless the person concerned has
undergone - either in the eyes of others or in his own eyes - humiliation or
67
68
See generally, the Commission‟s analysis under Articles 2, 3, and 18(3) of the African
Charter, and specifically paragraphs 131 to 136 outlining the testimonies of the Victims.
Communication 97/93-John K. Modise v. Botswana (2000) ACHPR,para 91
57
debasement attaining a minimum level of severity. That level has to be
assessed with regard to the circumstances of the case.”69
201.
In the present Communication, the African Commission finds that the
treatment against the Victims amount to physical and emotional trauma.
The treatment also has physical and mental consequences obvious from
202.
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the injuries sustained.
Furthermore, the level of suffering occasioned by the acts perpetrated on
the Victims which amount to inhuman and degrading treatment cannot be
overlooked. It is the Commission‟s view that the acts were debasing and
humiliating, sufficiently severe to fall within the ambit of the test
provided by John K. Modise v Botswana and the European Court to
establish inhuman and degrading treatment, and consequently, the scope
of Article 5 of the African Charter. It is also the Commission‟s view that
the Respondent State has conceded that the Victims were subject to
inhuman and degrading treatment by admitting sexual molestation.
203.
On the issue of investigation, the African Commission will like to make
reference to its “Guidelines and Measures for the Prohibition of Torture,
Inhuman and Degrading Treatment or Punishment in Africa (the Robben
Island Guidelines).”70 Article 17 of the Robben Island Guidelines provides
that States should “Ensure the establishment of readily accessible and
fully independent mechanisms to which all persons can bring their
allegations of torture and ill-treatment,” while Article 19 provides that
“Investigations into all allegations of torture or ill-treatment, shall be
conducted promptly, impartially and effectively, guided by the UN
69
Campbell and Cosans v UK(1982) ECHR, para 28.
70
Adopted by the African Commission during its 32 nd Ordinary Session in 2002.
58
Manual on the Effective Investigation and Documentation of Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment (The
Istanbul Protocol).”
204.
Furthermore, Article 4(c) of the Declaration on the Elimination of
Violence against Women, adopted by the General Assembly provides that
States should, “Exercise due diligence to prevent, investigate and, in
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accordance with national legislation, punish acts of violence against
women, whether those acts are perpetrated by the State or by private
persons.‟71
205.
The African Commission notes the Inter-American Court‟s decision in
Velasquez Rodriguez v. Honduras ,which held that:
An illegal act which violates human rights and which is initially not directly
imputable to a State (for example, because it is the act of a private person or
because the person responsible has not been identified) can lead to international
responsibility of the State, not because of the act itself, but because of the lack of
due diligence to prevent the violation or to respond to it as required by the
Convention (…). What is decisive is… whether the State has allowed the act to
take place without taking measures to prevent it or to punish those
responsible…72
206.
The acts in the present Communication were illegal and unjustifiable. The
African Commission will not belabour on analysing the responsibility of
the State under this Article since its reasoning will be the same as Article
71
Declaration on the Elimination of Violence against Women, General Assembly resolution
48/104 of 20 December 1993, UN Doc. A/RES/48/104, 23 February 1994.
72
Velasquez Rodriguez v. Honduras (1988) IACtHR, para. 173
59
18(3) discussed above. Suffice to say that the Respondent State has failed
to conduct an effective investigation into the alleged acts of inhuman and
degrading treatment and no diligent attempts have been made to hold
anyone accountable.
207.
The African Commission would also like to accentuate the fact that, being
a party to the African Charter, the Respondent State has an obligation to
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prohibit inhuman and degrading treatment under Article 5 of the Charter.
Furthermore, since the Respondent State has acceded to the Convention
against Torture,73
it has formally accepted the Convention and is
therefore bound by it. Even though Article 13 of the Convention Against
Torture does not specifically mention inhuman and degrading treatment,
it provides that “…... Steps shall be taken to ensure that the complainant
and witnesses are protected against all ill-treatment or intimidation as a
consequence of his complaint or any evidence given.”
208.
The African Commission notes that the Respondent State is also a party to
the ICCPR,74 whose Article 7 provides that, “No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.” The
Victims in the present Communication were not only subjected to illtreatment, but intimidated to withdraw their Complaints. The Respondent
State therefore owed an obligation to the Victims to effectively investigate
the acts of ill-treatment that impacted on their dignity and punish the
perpetrators accordingly. Failing to do so only amounted to an
infringement of the rights of the Victims under Article 5 of the Africa
73
The Respondent State Acceded to the Convention on 25 June 1986.
74
The Respondent State Egypt ratified the ICCPR on 14 January 1982.
60
Charter and other international instruments that the Respondent State is a
party to.
209.
From the foregoing, the African Commission concludes a violation of
Article 5 of the African Charter by the Respondent State because the acts
committed amounted to inhuman treatment and investigations were not
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conducted.
Alleged violation of Article 7(1) (a) and 26 of the African Charter (Right to Fair
Trial and Independence of the courts)
210.
The Complainants allege a violation of Article 7(1) (a) and 26 of the
African Charter respectively.
211.
Article 7(1) (a) states that; “Every individual has a right to have his cause
heard which comprises the right to appeal to competent national organs
against acts violating his fundamental rights.”
212.
Article 26 on its part 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 appropriate national
institutions entrusted with the promotion and protection of the rights and
freedoms guaranteed by the present Charter”.
213.
With respect to the alleged violation of Article 7(1) (a) of the African
Charter, the Complainants aver that the Victims did not have a right to an
impartial and objective investigation, as well as an appeal process, which
in their view shows lack of independence of the PPO and the Appeal
Chamber.
61
214.
The Complainants submit that the Victims lodged their Complaints to the
PPO but the remedies available were not effective. The Complainants
submit that the Victims appealed to the PPO to review their decision not
to prosecute and their appeal was rejected. Subsequently, they appealed
the decision of the PPO to the Appeal Chamber which dismissed their
appeal on the basis that the assaults had taken place but that it was
215.
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impossible to identify the perpetrators.
The Respondent State agrees with the Complainants‟ submissions that the
PPO refused to prosecute the perpetrators and argues that the decision not
to prosecute was based on three reasons.75 According to the Respondent
State, the PPO and the Appeal Chamber were impartial and independent
in their procedures as opposed to the Complainants‟ submissions.
216.
The right to fair trial, protected by Article 7 of the African Charter and
complemented by Article 26 of the same Charter is a stronghold for the
principle of judicial independence and appropriate justice in the African
Human Rights System. In this regard, the African Commission provided
an insight to Article 7(1) (a) in Kenneth Good v Republic of Botswana
where it held that “The right to be heard requires that the Complainant
has unfettered access to a tribunal of competent jurisdiction to hear his
case. It also requires that the matter be brought before a tribunal with the
competent jurisdiction to hear the case.”76
75
See paragraphs 55 to 56 above.
76
Communication 313/05 – Kenneth Good v Republic of Botswana(ACHPR) para 169.
62
217.
Similarly, the African Commission noted in Zimbabwe Human Rights
NGO Forum v Zimbabwe77, that “The protection afforded by Article 7 is
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not limited to the protection of the rights of arrested and detained persons
but encompasses the right of every individual to access the relevant
judicial bodies competent to have their causes heard and be granted
adequate relief.”
218.
To strengthen the spirit of Articles 7 and 26 of the African Charter, the
African Commission adopted the Principles and Guidelines on the Right
to Fair Trial and Legal Assistance in Africa (the Principles and Guidelines
on the Right to Fair Trial),78 to assist States Parties to the African Charter
in their guarantee of the right to fair trial as enshrined in the African
Charter. One of the essential elements of a fair hearing under the
Principles include; “An entitlement to an appeal to a higher judicial
body.”79 It also provides that, “The right to appeal should provide a
77
78
79
Communication 245/2002 - Zimbabwe Human Rights NGO Forum v Zimbabwe.
See also the Recommendation on the Respect and Strengthening of the Independence of
the Judiciary adopted by the African Commission during its 19th Session, which took place
in Ouagadougou, Burkina Faso in 1996. This Recommendation calls upon States Parties to
the African Charter, to meet certain minimum standards to guarantee the independence of
judiciaries in the region, including inter alia; the recognition of universal principles of
judicial independence; and urging governments to eliminate any legislation affecting
judicial independence.
Ibid Section 2(j).
63
genuine and timely review of the case, including the facts and the
law….”80
219.
The African Commission notes that the concerns, needs and interests of
victims can only be addressed in judicial proceedings when these
proceedings are impartial, taking into consideration facts and appropriate
laws. The primary concern should therefore be to ensure that victims of
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human rights violations are redressed accordingly by given them an
opportunity to appeal decisions from other judicial bodies.
220.
Particularly, the appeal mechanism must be premised on the recognition
that the right to appeal is a fundamental right under international law in
which all victims are entitled to. Failing to allow victims appeal decisions
in the opinion of the African Commission, is contrary to the guiding
principles and spirit of the African Charter and other international and
regional instruments.
221.
In the present Communication, after the Victims appealed to the PPO and
were not satisfied with the result, they appealed to the Appeal Chamber
which dismissed their appeal and upheld the decision taken by the PPO
not to prosecute the perpetrators. Thus, in effect, the Victims had an
opportunity to be heard by the Appeal Chamber, and therefore cannot
claim that their right to appeal under Article 7 of the African Charter was
violated. Furthermore, their appeal was also entertained by the PPO even
though the result was not satisfactory to them.
80
Ibid Section N(10)(a)(i).
64
222.
The issue of the appeal process being impartial or independent in itself,
and as a result, showing the lack of impartiality and independence of the
Appeal Chamber and the PPO does not fall within the ambit of Article 7
and 26 of the African Charter.
223.
According to the Principles and Guidelines of the Right to Fair Trial,
impartial and independent tribunals shall amongst other things:
be
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established by law to have adjudicative functions to determine matters
within their competence on the basis of the rule of law and in accordance
with proceedings conducted in the prescribed manner;81 not have any
inappropriate or unwarranted interference with the judicial process nor
shall decisions be subject to revision except through judicial review;82
independent from the Executive branch;83 and the Government shall
respect that independence;84 base its decision only on objective evidence,
arguments and facts presented before it.
224.
In the facts before the African Commission however, apart from alleging
that the process of Appeal in the Appeal Chamber and the PPO lacked
impartiality and independence due to the reasons provided, the
Complainants have not substantiated the extent to which it did so, or
given enough reasons to support the allegations that both Institutions
were not impartial and independent according to the criteria provided by
the Principles and Guidelines of the Right to Fair Trial.
Thus in the
absence of any information, substantiated by relevant evidences to
81
Principles and Guidelines on Fair Trial, Section A 4(b)
82
Ibid Section A 4(f).
83
Ibid Section A(4)(g).
84
Ibid Section A(4)(a).
65
support the allegations, the African Commission sees no basis to conclude
that the both Institutions lacked impartiality and independence.
225.
The Complainants also allege that the Victims did not have an impartial
and objective investigation. They aver that the Victims reported the
alleged incidences to the police after the alleged assault, but the police was
unwilling to interview potential witnesses, take down statements, or assist
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them in any way. They also submit that the PPO‟s decision to halt the
investigations due to amongst other reasons, discrepancies in the Victims‟
Statements is immaterial because according to them, these discrepancies
were mere omissions which have no material bearing on the present
Communication.
226.
According to the Respondent State, the investigations carried out by the
PPO have all the specified safeguards for criminal investigation according
to the Egyptian legal regime, particularly the impartiality and
confidentiality of the investigations.85 Furthermore, according to the
Respondent State, the decision reached by the PPO, after its detailed and
scrupulous investigations which showed that there were no grounds for
initiating criminal proceedings "temporarily" due to the inability to
identify the perpetrators was logical and sound.
227.
The UN Human Rights Committee has shown that complaints must be
investigated promptly and impartially so as to make the remedy effective.
In its General Comment No. 20, the Committee provides that:
85
It explains the investigative procedures carried out by the PPO in paragraph 101 of this
Communication.
66
“Complaints must be investigated promptly and impartially by competent
authorities so as to make the remedy effective.”86
228.
The European Court has also expressed the importance of carrying out
thorough investigations that are capable of leading to the identification
and punishment of those responsible for any ill-treatment.87 Moreover,
when examining whether an investigation is effective, the European Court
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applied the following test in some of its cases: whether the authorities
reacted effectively to the complaints at the relevant time;88 the length of
time it takes for the investigation to commence;89 and whether there were
delays in taking statements from the victims.90
229.
In Assenov & Others v. Bulgaria, the European Court clearly addressed
the notion of effective investigation that is not impartial and independent.
In deciding on the alleged police misconduct against the Complainant, the
Court noted that “It was necessary to take evidence from independent
witnesses,” adding that …”the examination of two further witnesses, one
of whom had only a vague recollection of the incidents in question, was
not sufficient to rectify the deficiencies in the investigation up to that
point.”91 The Court concluded that the lack of a thorough and effective
86
Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992),
Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 30 (1994). para 14.
87
See Ilhan v. Turkey (2000) ECHR. para 92
88
Labita v Italy (2000) ECHR. para. 131
89
Timurtas v. Turkey (2001) 33 E.H.R.R. 6 ECHR. para.89.
90
Assenov & Others v. Bulgaria (1998) ECHR. para 105
91
Ibid Para 105
67
investigation into the applicant‟s arguable claim that he had been beaten
by police officers violates Article 3 of the Convention.92
230.
Accordingly, borrowing from the European Court, it follows that where
Victims raise arguable claims to have been ill-treated in breach of
violations in the African Charter, the investigation carried out must be
prompt and impartial to be effective. An impartial investigation should
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involve a thorough or scrupulous procedure which leads to results that
identify the perpetrators and punishes those responsible for the illtreatment and other violations alleged.
231.
The African Commission has noted the arguments presented by the
parties to this Communication and concurs with the submissions made by
the Complainants that the investigation carried out by the PPO was not
impartial, which jeopardised the Victims‟ right to an effective remedy.
Even though the Respondent State describes the steps taken by the PPO
during the investigation and concludes that the PPO did not prosecute
due to lack of sufficient information from the Victims, and discrepancies
in their Statements and medical reports, the African Commission finds
that the PPO lacked sufficient evidence on which to decide whether or not
the violations took place.
232.
Additionally, apart from outlining the discrepancies which are described
as omissions by the Complainants, and which the Commission agrees do
not have any material bearing on the investigation of the complaints put
forward by the Victims, this Commission notes that the Respondent State
failed to substantiate its arguments about the discrepancies in the medical
reports.
92
Ibid Para 106
68
233.
In order to be impartial, it would have been of paramount relevance in the
investigative processes for the PPO to obtain, if necessary proprio motu
additional evidence from other sources by giving room for more witnesses
in the scene to make illustrative statements that could corroborate the
statements made by the Victims. Instead, the PPO gave undue attention to
the „discrepancies‟ made by the Victims which made it arrive at the
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tenuous conclusion that it could not proceed with the investigations
because the perpetrators could not be identified, creating an appearance of
an actual lack of impartiality.
234.
According to this Commission, based on the evidence before it, there were
procedural deficiencies that affected the final decision that was taken by
the PPO in this Communication. This obliges the Commission to conclude
that the Victims were indeed deprived of an effective and impartial
investigation from the PPO. Having said this however, the African
Commission is of the opinion that the impartiality of the investigative
process should be separated from the allegations related to Article 7(1) (a)
and 26 of the African Charter. This is because even though
lack of
impartiality of the investigations amount to a violation of the Victims‟
right to effective remedies, it cannot be classified as a violation of the
Victims‟ rights under Articles 7(1)(a) and 26 of the African Charter which
form the basis of this analysis.
235.
The above notwithstanding, the second arm of Article 26 of the African
Charter also provides that, States should “allow the establishment and
improvement of appropriate national institutions entrusted with the
promotion and protection of the rights and freedoms guaranteed by the
69
present Charter”. It reads from this provision that “The establishment of
national institutions” translate to establishing courts to protect individuals
from abuse from the State. However, it could also be interpreted to mean
establishing institutions which also have the mandate to create
mechanisms for protection. Essentially therefore, the Respondent State
has a duty to provide the structures and mechanisms necessary for the
236.
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exercise of the right to fair trial.
This obligation is alluded to, by the Principles of the African Commission
in its Principles.93 The Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power94
also provides that judicial and
administrative mechanisms should be established and strengthened
where necessary to enable victims to obtain redress…”95
237.
The Complainants submit that sexual violations and physical assaults are
most effectively dealt with by the criminal process and that the State has
an obligation to ensure that there is an efficient criminal law remedy
available for vulnerable individuals subjected to violations of a physical
and sexual nature. The Respondent State‟s submissions are only in respect
of the reasons why the perpetrators could not be prosecuted, it does not
provide any information about mechanisms that were put in place after
the incidences to afford protection and redress to the Victims, and even to
prevent future occurrences of such violations.
93
Section A(4)(u.)
94
Adopted by General Assembly resolution 40/34 of 29 November 1985.
95
Para 5.
70
238.
Based on the above, the African Commission concludes that there is a
violation of Article 26 of the African Charter by the Respondent State.
However, there is no violation of Article 7(1) (a) of the African Charter for
the mere reason that the Victims had an opportunity to appeal their claims
in the Appeal Chamber.
239.
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Alleged violation of Article 9(2)- Right to Freedom of Expression and Opinion
The Complainants submit that there is a violation of Article 9(2) of the
African Charter.
240.
Article 9(2) of the African Charter provides that; “Every individual shall
have a right to express and disseminate his opinions within the law.”
241.
The Complainants argue that during the events on 25 May 2005, as
journalists, the Victims were only attempting to assert their political
opinions and to disseminate these views within the country. They submit
that the Victims were prevented from exercising their profession and in
the process, assaulted and sexually violated contrary to the protection
afforded them under Article 9(2) of the African Charter.
242.
The Respondent State did not dispute the Complainants allegations under
Article 9(2) of the African Charter. This notwithstanding, based on the
evidence before it, the African Commission will still proceed to determine
whether this right has been violated by the Respondent State.
71
243.
Freedom of expression under Article 9, read together with Article 27(2),96
of the African Charter is the cornerstone of a democratic country, and any
violation of the right to freedom of expression impacts on the full
realization of other rights and freedoms enshrined in the African Charter
and other international instruments.
244.
The right to freedom of expression has also been recognized as a
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fundamental human right under other international human rights
instruments, such as the UDHR,97 and the ICCPR.98 At the Regional level,
the African Charter on Democracy, Elections and Good Governance 99
provides in its Article 27(8) that, “In order to advance political, economic
and social governance, State Parties shall commit themselves to promoting
freedom of expression, in particular freedom of the press and fostering a
professional media.”
245.
The Declaration of Principles on Freedom of Expression in Africa (the
Declaration)100 which supplements the provisions of Article 9 of the
African Charter underscores respect for freedom of expression by
providing that “No one shall be subject to arbitrary interference with his
96
Article 27(2) provides that “The rights and freedoms of each individual shall be exercised
with due regard to the rights of others, collective security, morality and common interest.”
97
Article 19.
98
Article 19 of the ICCPR provides that “[e]veryone shall have the right to hold opinions without
interference" and "everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice."
99
Adopted by the 8th Ordinary Session of the Assembly, held in Addis, Ethiopia, on 30 January
2007.
100
Declaration of Principles on Freedom of Expression in Africa, adopted by the African
Commission during its 32nd Ordinary Session, 17 - 23 October, 2002, Banjul, The Gambia.
72
or her freedom of expression,”101 and “Any restrictions on freedom of
expression shall be provided by law, serve a legitimate interest and be
necessary and in a democratic society.”102
246.
The notion of freedom of expression and its link with political
participation was expressed by the African Commission in Amnesty
International and Others v. Sudan, where it stated that freedom of
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expression is a fundamental human right, essential to an individual
personal development, political consciousness and participation in the
public affairs of a country.103
247.
In view of the fact that political leaders are most often sensitive to
expression of opinions that are related to the political affairs of the State,
the African Commission stated in the Kenneth Good v the Republic of
Botswana that “A higher degree of tolerance is expected when it is a
political speech and an even higher threshold is required when it is
directed towards the government and government officials.”104 The
Declaration also requires public figures “to tolerate a greater degree of
criticism,”105
to promote transparency and accountability as tenets of
good governance.
248.
The African Commission noted in the Kenneth Good v the Republic of
Botswana that freedom of expression is not an absolute right, and can
101
Ibid, Principle II(1).
102
Ibid, Principle II (2).
103
n 4 above. para 54
104
n 76 above. Para. 198
105
Ibid, Principle XII(1).
73
only be restricted for the reasons mentioned under Principles I(1) and II
of the Declaration. That is, if the restrictions serve a legitimate interest and
necessary in a democratic society.106
249.
Freedom of expression can also been limited by the clawback clause under
Article 9(2) in the context of the phrase „within the law.‟ In Malawi
African
Association
and
Others
v.
Mauritania,107
the
African
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Commission stated that “the expression „within the law‟ must be
interpreted in reference to international norms‟ which, among others, can
also provide grounds of limitation on freedom of expression.”108
250.
The African Commission also notes that the right to freedom of expression
also carries with it the right to impart information to others, meaning that
when an individual‟s freedom of expression is unlawfully restricted, it is
not only the right of that individual that is being violated, but also the
right of all others to “receive” information and ideas.
251.
The Inter-American Court upon referral from the Inter-American
Commission
confirmed
and
expanded
on
the
Inter-American
Commission‟s ruling in the case of Claude Reyes et al v Chile109 holding
that, Article 13 of the American Convention, which specifically establishes
the rights to „seek‟ and „receive‟ information, protects the right of all
persons to receive information held by the State. It further asserted that,
106
n 76 above, para. 187.
107
Communication 54/91-61/91-96/93-98/93-164/97_196/97-210/98- Malawi African Association
and Others v. Mauritania (2000) ACHPR. .para 106.
108
Ibid. para. 102.
109
Claude Reyes et al v Chile (2003), IACHR.
74
the information should be provided without a need to demonstrate a
direct interest in obtaining it, or personal harm, except where legitimate
restrictions apply.
252.
Thus, the right to freedom of expression and to receive information is
broadly conceived to include information of all types of knowledge
including in political terms as expressed in this Communication, and the
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Respondent State has an obligation to ensure that this information is
accessible without impediment. Thus, limiting the right of the Victims to
freedom of expression also limits their right to receive information.
253.
The above principle was expressed by the African Commission in the
Jawara Case, where it held that, the politically motivated harassment and
intimidation of journalists not only deprived them “of their rights to freely
express and disseminate their opinions, but also the public, of the right to
information.”110
254.
In the present Communication, the Victims were all journalists, some of
whom were allegedly reporting on the events of the demonstration and
taking photographs and were allegedly assaulted and molested for their
involvement in the protest to amend Article 76 of the Egyptian
Constitution. This restricts their right to freedom of expression and
opinion.
255.
It is not evident from the evidence presented in this Communication that
this restriction falls within the meaning provided by Principle II(2) of the
Declaration, that is, „provided by law‟, „serve a legitimate interest‟,
„necessary‟, and in a „democratic society.‟ Furthermore, the Respondent
110
n 3 above.para 65.
75
State has not provided any information indicating that the Victims, in
exercising their right to freedom of expression, were threatening national
security or public interest.111
256.
On the bases of the above arguments, there is clearly a violation of Article
9(2) of the African Charter by the Respondent State.
257.
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Alleged violation of Article 16- The Right to health
The Complainants allege a violation of Article 16 of the African Charter by
the Respondent State.
258.
Article 16 has two facets to it: Article 16(1) states, “Every individual has a
right to enjoy the best attainable state of physical and mental health;” and
Article 16(2) provides that “States parties to the present Charter shall take
all necessary measures to protect the health of citizens and ensure that
they receive medical attention when they are sick.”
259.
The Complainants submit that the acts perpetrated against the Victims
included the infliction of physical, mental and sexual harm which has
resulted in physical and emotional injury. According to the Complainants,
this has detrimentally affected their physical and mental well-being
contrary to Article 16 of the African Charter.
111
The concept of National Security and Public interest was recognised as justifiable
grounds to limit freedom f expression under the Charter in the Kenneth Good Case.
Para 189.
76
260.
The Respondent State does not address Article 16 of the African Charter.
261.
The right to health operates directly or indirectly as a prerequisite to all
other human rights recognized by the African Charter. This principle was
substantiated by the African Commission in Purohit and Moore v The
Gambia where it stated that, “The enjoyment of the right to health is
crucial to the realization of other fundamental rights and freedoms and
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includes the right of all to health facilities, as well as access to goods and
services, without discrimination of any kind.”112
262.
The right to health has also been recognized by Article 25 of the UDHR
which provides that "Everyone has the right to a standard of living
adequate for the health and wellbeing of himself and his family..."113
263.
In General Comment No.14 on the right to health, the UN Committee on
Economic, Social and Cultural Rights provides that:
…the right to health contains four elements: availability, accessibility,
acceptability and quality, and impose three types of obligations on States – to
respect, fulfil and protect the right. In terms of the duty to protect, the State must
ensure that third parties (non-state actors) do not infringe upon the enjoyment of
the right to health.
264.
This Commission therefore underscores the fact that the right to health is
an entitlement which is derived from specific obligations claimed by
individuals from States, and it is very fundamental to the exercise of other
112
n 14 above. para 80.
113
See also Article 12(1) of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) which also provides that “The States Parties to the present Covenant recognize
the right of everyone to the enjoyment of the highest attainable standard of physical and
mental health.”
77
human rights enshrined in the African Charter. In this regard, States have
a legal obligation to protect the right to health of its citizens, including
inter alia taking concrete and targeted steps towards the full realization of
the right, and adopting legislation or other measures to ensure equal
access to health-related services and health care.
265.
In the present Communication, the facts demonstrate that the Victims
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were physically and emotionally traumatized as a result of sexual violence
and assaults on their person. The trauma and injuries sustained has
affected their physical, psychological and mental health clearly in
violation of Article 16(1) of the African Charter.
266.
With respect to Article 16(2), in the Communication in question, it is
reported that the Victims all received medical attention after they were
assaulted, meaning that the Respondent State fulfilled its obligation under
the sub-Article to ensure that the Victims received medical attention after
the injuries sustained. As a matter of fact, it is through the medical reports
that they were able to confirm the scars, bruises and scratches that were
incurred by the Victims.
267.
In this regard, it is the view of the African Commission that there was no
violation of Article 16(2) of the African Charter.
Alleged violation of Article 1-Obligations of Member States
268.
The Complainants allege that the Respondent State has violated Article 1
of the African Charter.
78
269.
Article 1 of the African Charter provides that, “The Member States of the
Organization of African Unity 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.”
270.
The Complainants submit that the Respondent State violated Article 1 of
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the African Charter when it failed in its positive obligation to protect the
Victims from the violations they incurred. They also raise the issue of noninvestigation by the Respondent State as a violation of Article 1 of the
African Charter.
271.
The Respondent State did not make any submissions directly related to
Article 1 of the African Charter. Its submissions under the other Articles
however touch on the issues of protection and investigation which will
not be replicated here.
272.
The African Commission has held that Article 1 of the African Charter
gives the latter a legally binding character and that a violation of any
provision of the Charter automatically means a violation of Article 1.114
273.
Following the analyses of the other Articles alleged to have been violated
by the Respondent State, it is the view of the African Commission that the
violations that have been committed by the Respondent State against the
Victims have been prompted by the latter‟s failure to protect, promote and
fulfil these rights as required by the African Charter. In addition, the
114
n 3 above. para 46.
79
State‟s failure to thoroughly investigate the violations and institute
mechanisms to protect the Victims from further violations has also
demonstrated the State‟s contravention of Article 1 of the African Charter.
274.
It is the opinion of the Commission that in the present Communication,
the Respondent State had a responsibility to provide a police force to
protect the Victims against violations of their rights during the protest,
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and to put in place normative systems and institutions to maintain a
system of justice that provides remedies for violations and imposes
sanctions on violators. It is also the duty of the Respondent State, to
investigate when violations have occurred and ensure thorough
investigations. Failure to do all the above, is a violation of Article 1 of the
African Charter.
Decision of the African Commission
275.
From the above reasoning, the African Commission;
i. Observes that the Respondent State is in violation of Articles 1,
2, 3, 5, 9(2), 16(1), 18(3) and 26 of the African Charter;
ii. That there was no violation of Articles 7(1)(a) and 16(2) of the
African Charter by the Respondent State;
iii. Request an amendment of laws in the Respondent State, to
bring them in line with the African Charter;
80
iv. Request compensation to each of the Victims in the amount of
EP 57,000, as requested by the Complainant, for the physical
and emotional damages/traumas they suffered;
v. Urges the Respondent State to investigate the violations, and
bring the perpetrators to justice;
vi. Urges the Respondent State to ratify the Women‟s Protocol;
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and
vii. Urges the Respondent State to report on the steps it has taken
to implement these decisions in accordance with Rule 112 (2) of
its Rules of Procedure, within one-hundred and eighty (180)
days.
Done in Banjul, The Gambia during the 10th Extra-Ordinary Session of the
African Commission on Human and Peoples’ Rights, 12 to 16 December
2011.
81