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(~~)ACHPR "i' African Commission on 'J'Hl,ll)-. Human and Peoples' Rinhts Human Rights our Collective Responsibility Principles of Fair Trail, (for example Principle No.A.5(a»; and the European Court on Human Rights tests to determine impartiality in the case of Incal v. Turkey.l09 124. The complainants cited the Commission on Law Office oJGhazi Suleiman v. Sudan,11o that the composition of [such] military court alone is evidence of impartiality. Civilians appearing before and being tried by a military court presided over by active military officers who are still under military regulations violate the fundamental principles of fair trial. 125. The Complainants submitted that the impartiality of courts is important both for civilians being tried, as well as for the protection of other human rights, and for the State's fulfilment of its duty to investigate, prosecute and punish. They added that the Commission's Fair Trial Principles (referred to above) are therefore applicable both for violations of Article 7 and Article 26. 126. Citing Amnesty International and Others v. Sudan, 111 in which the Commission reacting on the law providing for the composition of the courts, created an impression of a lack of impartiality, and violation of Article 7(1)(d) of the Charter, the Complainants submitted that the government must provide the structures necessary for the exercise of this right since failing to guarantee the impartiality of Courts in the settings, blatantly violate Article 26. 127. The Complainants submitted that the Egyptian military justice system is not independent or impartial. In regards, they cited structural and systemic defects; Incidents that show the, lack of independence and impartiality; and the effects of its Expansive Jurisdiction that violates Article 26. 128. Submitting on Structural and Systemic Defects of the Egyptian Military Justice System, the Complainants submitted that the military justice system in Egypt, including military prosecutors and judges, lacks independence and impartiality for they are active military personnel. The Complainant submitted an example during the trial of Dr EIMogy's (the complainant's assailant) that all judges were active members of the military.tt109 Incal v. 110 Turkey, para 65 Communication Nos. 222/98 and 229/99, para.64. African Commission, Amnesty International (and others) v, Sudan, Communication 89/93, para 68. 112 See, Paragraph 171 of the Complainants Submission 111 https.rachpr.au.tnt/O 0 Q

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Communication 424/12 - Samira Ibrahim Mohamed Mahmoud and Rasha Ali Abdel-Rahman (Represented by the Egyptian Initiative for Personal Rights and Interights) v. The Arabic Republic of Egypt

ACHPR Decision

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Type of Document

Decision

Keywords

Cruel and Degrading Treatment
Equality
Equality Before the Law
Freedom of Expression / Digital Rights
Sexual and Gender Based Violence
Sexual Offences
Torture and Ill Treatment
Women's Rights

Case Head Notes: The complainants were arrested after they participated in a sit-in protest. Along with other detainees they were then transported to a military prison where they were subjected to beatings, abuse, electrocution, forced genital examination, and other forms of humiliating treatment. The Commission found a violation of Article 2, and cited the sexual nature of the violations against the complainants, noting that the victims were exclusively women, and that the violations were perpetrated on the women because of their gender. Specifically, they stated that the "virginity test", can only be directed at women, and stated that the accusations of prostitution, and other verbal slurs further demonstrated gender-based discrimination. Consequently, the Commission also found a violation of 18(3) because the violence was gender-specific and discriminatory. The Commission also found a violation of Article 5, and stated that the genital examination the Complainants were subjected to amounted to torture, and that the virginity testing was humiliating, degrading and torturous treatment. The Commission also affirmed that sexual violence and rape are a distinct form of torture. The Commission found a violation of Article 26 because the Egyptian military courts, where the complainants were tried, did not satisfy the requirements of impartiality and independence. The Commission found a violation of Article 3 because they observed that the Complainants were treated differently than people who were tried at a civilian court, and therefore they did not benefit from the equal protection of the law. The Commission found violations of Articles 9 and 11, stating that a reasonable inference would suggest that the authorities measures (arrest, detention, and subsequent ill-treatment), were designed to punish, intimidate and discourage the victims from exercising their freedom of expression and assembly. The Commission states that these measures were unnecessary to preserve national security, and disproportionate, and, therefore, a violation of Articles 9 and 11. On account of the existence of other violations of the African Charter, the Commission also found that Article 1 had been violated. The Commission urged the Respondent State to prosecute the perpetrators of the sexual violations, to reform the military prison procedures, and to ensure that the civil courts have exclusive jurisdiction to investigate and adjudicate allegations of violations by military personnel against civilians. They also requested the state to financially compensate the victims and urged the state to report on the measures taken to implement the decision.

Country

Egypt

Outcome: Decided on Merits

Year Decided: May 23, 2023

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 9: Right to Receive Information and Free Expression
ACHPR 1: General Obligations
ACHPR 11: Right to Freedom of Assembly
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 18.3: Protection of Rights of Women and Children
ACHPR 2: Freedom from Discrimination
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 9.2: Right to Express and Disseminate Opinions Within the law

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 1: General Obligations
ACHPR 11: Right to Freedom of Assembly
ACHPR 18.3: Protection of Rights of Women and Children
ACHPR 2: Freedom from Discrimination
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 9.2: Right to Express and Disseminate Opinions Within the law

Duration of Procedure

Sep 11, 2012 ~ May 23, 2023

Country Geolocation

Latitude: 26.820553

Longitude: 30.802498

Country Geolocation (linked ACHPR Decision): Egypt

Primary Documents

Samira Ibrahim Mahmoud and Rasha Ali.pdf
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African Human Rights CLA 2.0

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Communication 424/12 - Samira Ibrahim Mohamed Mahmoud and Rasha Ali Abdel-Rahman (Represented by the Egyptian Initiative for Personal Rights and Interights) v. The Arabic Republic of Egypt

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