ensure protection from torture.18 In the instant Communication, the Respondent
State, even after the change of government in 2011, failed to initiate the kind of
investigation required to respond to allegations of torture, in line with the
Robben Island Guidelines, and other regional and international standards.
68. The competent authorities in the Respondent State had ample notice of the
violations against the Victim. There were 15 court orders for his release during
his almost 16 years of detention and he had also filed complaints with the public
prosecutor concerning his torture and poor conditions of detention. Furthermore,
bodies such as the UN Working Group on Arbitrary Detention, Amnesty
International as well as the International Federation for Human Rights (FIDH)
had featured the Victims’ arbitrary detention in their reports and urged his
immediate release.19 A petition for his release was also brought before the United
Kingdom (UK) House of Commons in July 2010, and the Secretary of State for
Foreign and Commonwealth Affairs stated the commitment of the UK
Government to ensure the release of Mr El Sharkawi, as well as other arbitrarily
detained individuals.20 In light of the above, it is possible to deduce that the
Respondent State had ample notice of the violations, but failed to act. In El Hadj
Boubacar Diawara v. Benin, a Communication concerning the detention and torture
of the complainant for more than seven years without charge or trial, the
Commission held that in such circumstances it is clear that the state has had
ample notice of the violations and should have taken steps to remedy them.21
69. Similarly, in Article 19 v. Eritrea, the Commission stated that in cases where the
state is properly informed, but fails to act, it means that domestic remedies are
either not available or if they are, not effective or sufficient to redress the
violations alleged.22
70. Although the Commission appreciates the release of the Victim from detention
following the fall of the Hosni Mubarak regime, it however does not absolve the
current regime from liability for human rights violations perpetrated by its
predecessors.23 In Achutan and another v. Malawi, the Commission stated that ‘a
See Vienna Convention on the Law of Treaties adopted on 23 May 1969, Article 53; ABI-SAAB
Georges, “The 1977 Additional Protocols and General International Law: Preliminary Reflexions”,
in Humanitarian Law of Armed Conflict Challenges Ahead, Essays in Honour of Frits Kalshoven,
Dordrecht, M. Nijhoff, 1991, pp. 115-126; KASTO Jalil, “Jus Cogens and Humanitarian Law”, in
International Law Series, Vol. 2, Kingston, Kall Kwik, 1994, 95 pp 23-26.
19
See, UN Working Group on Arbitrary Detention, Opinion No. 3/2007, U.N. Doc.
A/HRC/7/4/Add. 1 at 59 (2007); Amnesty International, Egypt – Systematic Abuses in the Name
of Security (2007) 16; and FIDH, Egypt: Counter-terrorism Against the Background of an Endless
State of Emergency (2010) 25 – 26.
20
Foreign and Commonwealth Office Observations “Petitions: Mohammed El Sharkawi” 1 July 2010
<http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100701/petntext/100701p
0001.htm> (accessed on 27 June 2013).
21
Communication 18/88 – El Hadj Boubacar Diawara v. Benin [Comité Culturel pour la Democratie au
Benin and Others v. Benin] (1994) ACHPR. See also, Article 19 v. Eritrea (n 11 above), para 78,
footnote 21.
22
Article 19 v. Eritrea (n 11 above), 77.
23
In Law Office of Ghazi Suleiman v Sudan, the Commission held that although it took note of the
changes introduced by the Respondent State for the better protection of human rights, the changes
18
10