257.
To conclude, the Commission finds a violation of Article 5 of the African
Charter due to: the Victim’s abuse, conditions of detention and incommunicado
detention; the Respondent State’s failure to conduct prompt, impartial and
effective investigation into the allegations of torture; and shortcomings in the
legislative framework of the Respondent State including the absence of a definition
of torture that is compliant with UNCAT, appropriate sanctions for acts of illtreatment, and restrictions on the right to redress for victims of torture when the
alleged perpetrator is a public official.
Alleged violation of Article 6
258. The Complainants allege that the detention of the Victim was arbitrary and
unlawful in violation of Article 6 of the African Charter, which states that
“[e]very individual shall have the right to liberty and to the security of his person.
No one may be deprived of his freedom except for reasons and conditions
previously laid down by law. In particular, no one may be arbitrarily arrested or
detained.”
259. The Complainants contend that the Respondent State violated Article 6 of the
African Charter in the following regards:
i.
Detention was not in accordance with law
ii.
Detention was arbitrary
a. Detention not under the control of effective judicial authority
b. Detention was unjust and not based on any predictable legal
regime
i.
Whether the detention was in accordance with law
260. The Complainants submit that since July 1997, the Victim obtained at least 15
court orders for his release, but that he was never actually released. The
Complainants allege that the Victim was instead transferred to a different site
where he was held illegally until a new detention order was issued by the
Minister of Interior. The Respondent State argues that the release orders were
implemented and the Victim was released, but that he was rearrested each time
because of his continued threat to the peace and security of the state.
261. To prove their allegations, the Complainants provide the Commission with
pleadings before the Courts in 2008 and 2009 requesting implementation of the
release orders. The Complainants also highlight reports from the UN Working
Group on Arbitrary Detention and other human rights organisations, as well as
the 2009 Report of the UN Special Rapporteur on the Promotion and Protection
of Human Rights and Fundamental Freedoms while Countering Terrorism (the
UN Special Rapporteur on Human Rights and Countering Terrorism), in which
the Special Rapporteur urged the Government of Egypt to discontinue the
renewal of administrative detention when a person has been granted a release
order by a court.
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