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t;"'~),ACH PR ,i} African Commission on \1 I Human and Peoples' Rights "mu Human Collective Rights our Responsibility the combined Greek Cases174 by the European Commission, the Commission considers that the notion of inhuman degrading treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which in the particular situation, is unjustifiable, and that for an act to be degrading, there must be some form of' gross humiliation.' 208. In the Overall, the Commission echoes the positions respectively adopted by itself and the European Court on Human Rights in John K. Modise v Botswana175 and Campbell and Cosans v UK176 (also cited by the complainants) that the acts of inhuman and degrading treatment "not only cause serious physical or psychological suffering but also humiliate the individual while exposes them to personal suffering and indignity and can be interpreted to extend to the widest possible protection against abuses, whether physical or mental." 209. Now, interrogating the circumstances of the case at hand to establish cruel, inhuman and degrading treatment (ill-treatment) and torture, the Commission recalls the facts in paragraphs 69 to 75 (above), facts also capture in Paragraphs 3 to 11 on the summary of the complaint and several annexes. The Commission finds that the treatment against the Victims amounts to physical and emotional trauma. It is the Commission's view that the acts were cruel, inhuman and degrading treatment (ill-treatment) in the scope of Article 5 of the African Charter. 210. As to the question of forced genital examination or virginity test, as distinct torture, the Commission finds a crux of the matter in the definition of rape to be constituted by more than just sexual penetration by a male sexual organ into a female organ, the vagina. 211. The Commission drives inspiration from the holding in the cases of the Prosecutor vAnta Furundiija177 and MigueZ Castro-Castro Prison 7.) Peru178 respectively (also cited by the Complainants), that rape is constituted not only by sexual penetration, however slight of Consists of Denmark vs. Greece, Norway vs. Greece, Sweden vs. Greece, Netherlands vs. Greece (1969) Yearbook: Eur.Conv, 174 on HR 12 page 186 175 Communication 176 (1982) 97/93 Para 71 ECHR, para 28. IT95-17j1-T, Trial Chamber Judgment of 16 November 1998, para.185. IACtHR, Case of the Miguel Castro-Castro Prison v Peru, Judgment of 25 November 2006 ( and Costs), Series C No 160, para.310 (Castro-Castro Prison Case ") 177 178 491 P '!:" c Afncan Union '

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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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