Wakilii

El Sharkawi (represented by EIPR and OSJI) v Republic of Egypt (Communication 396-11)

African Commission on Human and Peoples' Rights · [2021] ACHPR 521 (20 October 2021) · 2021 Communication Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication before the African Commission on Human and Peoples' Rights alleging violations of the African Charter arising from prolonged arbitrary detention and torture
Decision
Communication upheld; Respondent State found in violation of multiple Charter provisions; compensation, apology, investigation, and legislative reforms ordered

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission found Egypt violated multiple provisions of the African Charter by detaining the Victim for over 15 years without charge or trial under the Emergency Law, subjecting him to torture and other ill-treatment, failing to investigate torture allegations, ignoring at least 15 court release orders, denying access to counsel and medical care, and restricting family contact and religious practice. The Commission ordered Egypt to pay compensation of 1 million Egyptian Pounds, acknowledge the violations, issue a public apology, investigate through an independent commission, and reform its Emergency Law and torture-related legislation to comply with international standards.

Outcome

Communication upheld; Respondent State found in violation of multiple Charter provisions; compensation, apology, investigation, and legislative reforms ordered

Facts

Mohammed Abderrahim El Sharkawi, a Pakistani national of Egyptian origin, was arrested by Pakistani officials in July 1994 and transferred to Egypt in May 1995. In November 1996, the Public Prosecutor ordered his release, but the Ministry of Interior placed him in administrative detention under the Emergency Law. Over the next 15 years, the Victim obtained at least 15 court orders for his release, all of which were ignored by the Ministry of Interior, which repeatedly issued new detention orders. While detained, the Victim was transferred between multiple prisons, subjected to torture including beatings, electroshocks, and suspension, held in incommunicado detention, denied adequate medical care, and imprisoned under harsh conditions. He was denied access to counsel during his administrative detention and had severely restricted family contact. The Victim was released on 17 March 2011 following the change of government in Egypt. After his release, he was informed that his complaints about torture had been lost during the 2011 revolution.

Issues

  1. Whether the Victim's detention without charge or trial for over 15 years violated his right to liberty under Article 6 of the African Charter.
  2. Whether the Victim was subjected to torture and other cruel, inhuman or degrading treatment in violation of Article 5 of the African Charter.
  3. Whether the Respondent State failed to conduct prompt, impartial and effective investigations into allegations of torture.
  4. Whether the Respondent State's legal framework on torture complies with international standards under the UN Convention Against Torture.
  5. Whether the Victim's right to fair trial under Article 7 of the African Charter was violated by prolonged detention without trial and denial of access to counsel.
  6. Whether the failure to enforce court release orders violated the independence of the judiciary under Article 26 of the African Charter.
  7. Whether the Victim's right to practice his religion under Article 8 was unlawfully restricted.
  8. Whether the Respondent State violated the Victim's right to health under Article 16 by denying adequate medical care.
  9. Whether the Victim's right to family life under Article 18 was violated by restrictions on family visits and prolonged separation from his children.

Orders

  • Finds the Respondent State in violation of Articles 1, 5, 6, 7(1)(a), 7(1)(b), 7(1)(c), 7(1)(d), 8, 16, 18(1), and 26 of the African Charter.
  • Requests the Respondent State to take all necessary measures to put in place preventive safeguards to avoid recurrence of similar violations.
  • Requests the Respondent State to ensure that Emergency Law No. 162 of 1958, Articles 126 and 129 of the Egyptian Penal Code, and the Egyptian Criminal Procedure Code are brought into conformity with the African Charter, UNCAT, the Robben Island Guidelines, the Principles and Guidelines on the Right to Fair Trial, the Luanda Guidelines, and General Comment No. 4.
  • Requests the Respondent State to acknowledge the violations suffered by the Victim, accept responsibility, and issue a public apology.
  • Requests the Respondent State to pay adequate compensation to the Victim in the amount of 1 million Egyptian Pounds (approximately USD 140,000 at the time of filing).
  • Urges the Respondent State to investigate the violations through an independent commission of inquiry and prosecute those responsible.
  • Requests the Parties to inform the Commission within 180 days of measures taken to implement the decision.
  • Avails its good offices to facilitate implementation of the decision.

Rules and key headnotes

Torture — Definition and Elements — Cumulative Requirements under UNCAT Article 1
For an act to constitute torture under the UN Convention Against Torture, four cumulative elements must be present: severe mental or physical suffering must be inflicted; the act or omission must be inflicted intentionally; the infliction must be for a specific purpose; and the act or omission must be by a public official or with the consent or acquiescence of a public official.
Torture — State Obligation to Investigate — Duty Arises from Notice Not Formal Complaint
Even in the absence of an express complaint, a State is under an obligation to initiate a prompt, impartial and effective investigation into allegations of torture if there are indications that torture or ill-treatment might have occurred. The formal lodging of a complaint is not necessary; it is sufficient for the victim to bring the facts to the attention of the authorities.
Torture — Domestic Legislation — Definition Must Comply with UNCAT Standards
States must ensure that their domestic definition of torture captures at a minimum all the elements enshrined under Article 1 of the UN Convention Against Torture. Serious discrepancies between the UNCAT definition and that incorporated into domestic law create actual or potential loopholes for impunity.
Arbitrary Detention — Exhaustion of Local Remedies — Futility Where Court Orders Ignored
Where a detainee has obtained multiple court orders for release which have been systematically ignored by the executive, local remedies are neither effective nor sufficient, and the requirement to exhaust local remedies is satisfied. A government's refusal to respect court decisions demonstrates the futility of seeking further domestic remedies.
Arbitrary Detention — Judicial Control — Executive Power to Circumvent Release Orders
Detention is not under the effective control of a judicial authority where the executive can circumvent court release orders by issuing successive detention orders. Where a Minister can order detention and override judicial decisions, the detention is arbitrary and violates the right to liberty.
Emergency Powers — Limitations on Derogation — State of Emergency Cannot Become the Norm
A state of emergency almost continuously in force for more than 50 years is not a state of exceptionality but has become the norm, which must never be the purpose of a state of emergency. Emergency laws must be clear, accessible, precise, and consistent with international standards, and detention must always be an exceptional measure of last resort.
Independence of Judiciary — State Obligation — Failure to Enforce Court Orders Undermines Independence
By refusing to comply with court orders, a State undermines the independence of the courts in violation of Article 26 of the African Charter. The credibility of courts must not be weakened by the perception that courts can be influenced by external pressure. A State has an obligation to ensure that any remedy granted by a court is enforced by competent authorities.

Legislation cited (8)

  • African Charter on Human and Peoples' Rights Articles 1, 5, 6, 7, 8, 16, 18, 26
  • Emergency Law No. 162 of 1958 (Egypt) Article 3(1)
  • Egyptian Penal Code Article 126
  • Egyptian Penal Code Article 129
  • Egyptian Penal Code Article 282
  • Egyptian Criminal Procedure Code Articles 63, 210, 232(2)
  • UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Article 1
  • International Covenant on Civil and Political Rights Article 9

Cases cited (15)

  • Media Rights Agenda and Others v Nigeria (Communications 105/93, 128/94, 130/94 and 152/96)
  • Dawda Jawara v The Gambia (Communications 147/95 and 149/96)
  • Social and Economic Rights Action Centre (SERAC) v Nigeria (Communication 155/96)
  • Civil Liberties Organisation and Others v Nigeria (Communication 218/98)
  • Organisation mondiale contre la torture et al v Rwanda (Communications 27/89, 46/91, 49/91 and 99/93)
  • Law Office of Ghazi Suleiman v Sudan (Communications 222/98 and 229/99)
  • Krischna Achuthan and Amnesty International v Malawi (Communications 64/92, 68/92 and 78/92)
  • Article 19 v Eritrea (Communication 275/03)
  • Egyptian Initiative for Personal Rights (EIPR) and Interights v Egypt (Communication 334/06)
  • Abdel Hadi, Ali Radi and Others v Sudan (Communication 368/09)
  • Gabriel Shumba v Zimbabwe (Communication 288/04)
  • Monim Elgak, Osman Hummeida and Amir Suliman v Sudan (Communication 379/09)
  • Thomas Kwoyelo v Uganda (Communication 431/12)
  • Patrick Okiring and Agupio Samson v Uganda (Communication 339/2007)
  • Zimbabwe Lawyers for Human Rights and IHRDA v Zimbabwe (Communication 294/04)

Full judgment

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El Sharkawi (represented by EIPR and OSJI) v Republic of Egypt (Communication 396-11) [2021] ACHPR 521 (20 October 2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.