Human Rights our
Collective Responsibility
were no military laws that allow for the practice of forced genital examination and
virginity testing in the first place.
28. The Complainants submitted that following this decision, there were no further
remedies to exhaust, given that the decision of the Supreme Military Court which
acquitted Dr EI-Mogy of all charges could only be appealed before the Supreme Court
of Military Appeals, which only receive and entertain appeals by the military prosecutor
or the convicted person, but not the victims.
29. The Complainants further submitted that an appeal needed to be made within 60 days
of the ratification of the decision of the Supreme Military Court. The Complainants
point out that the decision of the Supreme Military Court in the First Victim's case was
ratified by General al-Rowaini on 1 April 2012 and that the military prosecutor choose
not to appeal the decision of the supreme military Court.
30. The Complainants contended that Article 49 of the Code of Military Justice prohibited
Complainants from advancing civil claims before military courts or attaching civil
claims to cases being considered by military courts. The Complainants further stated
that the code also prohibits Complainants from filing claims before an ordinary court
with criminal proceeding~ being considered by the military court until the military
court has issued its decision on the criminal aspect of the claim. They contended that
since the military court acquitted Dr El-Mogy (their alleged assailant) of all charges,
neither the First ;Victim nor any other victim could bring any civil claim before any
court, military or ordinary.
31. The Complainants, therefore, concluded that all available local remedies were
exhausted in respect of the First Victim.
32. Concerning the Second Victim, the Complainants aver that local remedies have been
unduly prolonged on one hand and unavailable, ineffective and insufficient on the
other. The Complainants explained that the Second Victim filed a claim with the
ordinary public prosecutor on 4 July 2011, in which she described the abuses she
suffered in the military prison. In compliance with the provisions of the Code of Military
Justice which vests exclusive jurisdiction over complaints against members of the
military on the military justice system, the ordinary prosecutor transferred the matter
to the military prosecutor on 5 September 2011.
33.
The African Commission
on