Wakilii

Ismael and Others v Arab Republic of Egypt (Communication 467-14)

African Commission on Human and Peoples' Rights · [2015] ACHPR 6 · 2015 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission alleging violations of the African Charter arising from mass death sentences imposed by Egyptian courts
Decision
Communication declared inadmissible; matter remains pending before Egyptian national courts for retrial

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission declared the Communication inadmissible for failure to exhaust local remedies under Article 56(5) of the African Charter. The Commission found that appeal procedures existed in Egyptian law, were accessible, and had been utilised, with the Cassation Court having overturned the lower court's judgment and ordered a retrial. The Commission rejected arguments that the violations were serious and massive enough to justify bypassing local remedies, noting that the matter involved identifiable individuals with available appellate remedies.

Outcome

Communication declared inadmissible; matter remains pending before Egyptian national courts for retrial

Facts

On 24 March 2014, a Criminal Court in Minya, Egypt, sentenced 529 defendants to death following a hearing that lasted less than one hour. The defendants were accused of various crimes including murder of a policeman, damaging public property, and membership of the Muslim Brotherhood. Only 69 defendants were present in court; 291 were tried in absentia. On 28 April 2014, the court confirmed death sentences for 37 defendants and imposed life sentences on 492 others. The Freedom and Justice Party of Egypt filed a communication with the African Commission alleging violations of the right to life, fair trial, and due process. The Commission granted provisional measures. Subsequently, both the Public Prosecutor and some defendants appealed to the Egyptian Court of Cassation, which on 26 January 2015 accepted the appeals, voided the judgment of 28 April 2014, and ordered a retrial.

Issues

  1. Whether the Communication satisfied the admissibility requirements under Article 56 of the African Charter, particularly the requirement to exhaust local remedies under Article 56(5).
  2. Whether the Communication was based exclusively on news disseminated through the mass media contrary to Article 56(4).
  3. Whether the Communication contained disparaging or insulting language contrary to Article 56(3).
  4. Whether the alleged violations constituted serious and massive violations justifying an exception to the exhaustion of local remedies requirement.
  5. Whether the Respondent State complied with the provisional measures ordered by the Commission.

Orders

  • Communication declared inadmissible for lack of compliance with Article 56(5) of the African Charter.
  • Parties notified of the decision in accordance with Rule 107(3) of the Commission's Rules of Procedure.
  • Respondent State urged to take all necessary measures to implement Resolution ACHPR/Res.136 (XXXX1111)08 urging States to observe a moratorium on the death penalty.
  • Respondent State urged to continue to uphold its Constitution and ensure that the retrial observes all standards of fair trial and due process.

Rules and key headnotes

Admissibility of Communications — Exhaustion of Local Remedies — Article 56(5) African Charter
A communication cannot be declared admissible where domestic appeal procedures remain available, accessible, and effective, even where the lower court proceedings are alleged to have been fundamentally flawed, as appeal procedures exist precisely to correct grave errors by lower courts.
Admissibility — Effectiveness of Remedies — Test for Effectiveness
The test for effectiveness of a remedy is not whether the appeal procedure will give the appellant the results they want or guarantee a successful result, but whether the system itself operates in a manner that would enable an effective, impartial adjudication of the matter.
Admissibility — Serious and Massive Violations Exception — Scale and Nature
For violations to be considered serious and massive so as to justify an exception to the exhaustion of local remedies requirement, they must satisfy both scale (a significant number of people targeted) and nature (a consistent and predetermined action impacting on Charter rights). Where violations involve identifiable individuals with available appellate remedies, it is not impracticable or undesirable to require exhaustion of local remedies.
Admissibility — Communications Not Based Exclusively on Mass Media — Article 56(4)
Article 56(4) of the African Charter does not prevent complainants from relying on any material drawn from the mass media but operates to exclude communications which are drawn solely from the mass media. Where a communication cites multiple sources including international human rights organisations, decisions of international bodies, and evidence from lawyers, it is not based exclusively on mass media.
Admissibility — Disparaging or Insulting Language — Article 56(3) — Objective Test
Determining what constitutes insulting or disparaging language under Article 56(3) is an objective test to be made on a case-by-case basis. A complainant has a right to make allegations in order to be exempted from exhausting local remedies, and casting aspersions on judicial procedures does not constitute disparaging or insulting language where the complainant raises legitimate concerns about procedural provisions.
Admissibility — Burden of Proof — Exhaustion of Local Remedies
A complainant cannot simply make allegations without just cause and expect the onus to fall on the respondent state to disprove the allegation. The onus falls on the respondent state to rebut an argument which the Commission would reasonably rely on if it remained unopposed. Mere allegations that lower courts breached standards of fair trial do not presume the incapacity of appeal courts to operate differently.
Death Penalty — Automatic Review and Appeal — Egyptian Criminal Procedure
Under Egyptian law, where a court issues a death sentence, the case papers are sent automatically to the Court of Cassation for review, and the convicted person may also appeal within 30 days. The Public Prosecution and the accused have the right to appeal against decisions of criminal courts on grounds including breach of law, mistake in application or interpretation of law, or fundamental error in procedures or assessment of evidence.

Legislation cited (19)

  • African Charter on Human and Peoples' Rights Article 4
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 56(1)
  • African Charter on Human and Peoples' Rights Article 56(2)
  • African Charter on Human and Peoples' Rights Article 56(3)
  • African Charter on Human and Peoples' Rights Article 56(4)
  • African Charter on Human and Peoples' Rights Article 56(5)
  • African Charter on Human and Peoples' Rights Article 56(6)
  • African Charter on Human and Peoples' Rights Article 56(7)
  • Egyptian Code of Criminal Procedure Article 224
  • Egyptian Code of Criminal Procedure Article 237(1)
  • Egyptian Code of Criminal Procedure Article 249(A)
  • Egyptian Code of Criminal Procedure Article 381
  • Egyptian Code of Criminal Procedure Article 395
  • Egyptian Code of Criminal Procedure Article 470
  • Egyptian Constitution Articles 184-190
  • Egyptian Constitution Article 93
  • International Covenant on Civil and Political Rights Article 6

Cases cited (13)

  • Sir Dawda Jawara v The Gambia (Communications 147/95 and 149/96)
  • Alfred B Cudjoe v Ghana (Communication 221/98)
  • Akdivar and Others v Turkey (Application No 21893/93)
  • SERAC and CESR v Nigeria (Communication 55/96)
  • Kevin Mgwanga Gunme et al v Cameroon (Communication 266/03)
  • Bakweri Land Claims Committee v Cameroon (Communication 260/02)
  • Constitutional Rights Project v Nigeria (Communication 148/96)
  • Curtis Francis Doebbler v Sudan (Communication 235/00)
  • Amnesty International and Others v Sudan (Communications 48/90, 50/91, 52/91, 89/93)
  • Tsatsu Tsikata v Ghana (Communication 322/06)
  • Free Legal Assistance Group and Others v Zaire (Communications 25/89, 47/90, 56/91, 100/93)
  • Sudan Human Rights Organisation and Another v Sudan (Communication 279/03)
  • Aksoy v Turkey (Application No 21987/93)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ismael and Others v Arab Republic of Egypt (Communication 467-14) [2015] ACHPR 6 (8 August 2015)
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.