Omari Holaki
Officer in Charge
African Commission on Human and Peoples’ Rights
Kairaba Avenue
P.O. Box 673
Banjul
The Gambia
Fax: + 220 4392 962
Email: achpr@achpr.org
16 February 2006
Dear Sir,
Communication 312/2005 –
INTERIGHTS and the Egyptian Initiative for Personal Rights (on behalf of
Metwalli Ibrahim Metwalli) v. Egypt
We refer to your letter dated
19 December 2005, confirming that the African Commission on Human and
Peoples’ Rights (the Commission) has decided to be seized of this matter.
As detailed in the introductory letter dated 16 November 2005, this
communication concerns the arbitrary detention of the Mr. Metwalli (the
applicant) following his expression of particular religious beliefs. The
applicant
submits that his
rights have been violated under Articles 2, 5, 6, 7 (1)(d), 8, and 9(2) of
the African Charter on Human and Peoples’ Rights (the Charter).
Further to your request, the
following are the applicant’s submissions on admissibility.
Article 56 of the Charter which
sets out the admissibility criteria for complaints provides:
Communication
relating to Human and Peoples' Rights referred to in Article 55 received by
the Commission, shall be considered if they:
1. indicate their authors even if the latter request anonymity,
2. are compatible with the Charter of the Organisation of African Unity or
with the present Charter.
3. are not written in disparaging or insulting language directed against the
State concerned and its institutions or to the Organisation of African
Unity.
4. are not based exclusively on news disseminated through the mass media,
5. are sent after exhausting local remedies, if any unless it is obvious
that this procedure is unduly prolonged,
6. are submitted within a reasonable period from the time local remedies are
exhausted, or form the date the Commission is seized with the matter, and
7 do not deal with cases which have been settled by these states involved in
accordance with the principles of the Charter of the United Nations, or the
Charter of the Organisation of African Unity or the provisions of the
present Charter.
The applicant
submits that all of these criteria are satisfied, and that the only
criterion requiring explanation to the Commission is the exhaustion of
domestic remedies in the case.
The other criteria
have been met incontrovertibly. In brief, the applicant in this
communication has been identified and his relevant details provided to the
Commission, along with the details of those individuals and organisations
representing him. The communication is plainly compatible with the
Constitutive Act of the African Union and with the Charter. The
communication is presented in polite and respectful language, and is based
on information provided by the applicant and on court documents, not on
media reports. The
applicant confirms that he has not submitted this complaint to any other
procedure of international investigation or settlement.
Exhaustion of
domestic remedies
In its
jurisprudence the Commission has noted the exhaustion of domestic remedies
under Article 56(5) to be one of the most important conditions for the
admissibility of communications, as it gives the State concerned the
opportunity to remedy the alleged violation through its domestic legal
system (Jawara/The Gambia, 147/95, paragraphs 30 and 31).
In this case, the
applicant submits that domestic remedies do exist in the Respondent State
which would allow for his effective release. These remedies have been
exhausted and indeed resolved in the applicant’s favour, but the court
orders have not been respected by the Interior Ministry. The State Security
Emergency Court (the Emergency Court) is the only domestic court charged
with overseeing detention under
Law 162/1958 on the State of
Emergency (the Emergency Law). As noted in the letter introducing this
communication, the applicant was arrested on 18 May 2003. Since then, the
applicant has applied to the Emergency Court for his release on eight
occasions, and each time this Court has ordered his release, most recently
in January 2006.
In consecutive
order, these release orders have been -
1. Appeal No.
21045/2003, pronounced on 19 August 2003
2. Appeal No.
40334/2003, pronounced on 25 January 2004
3. Appeal
No. 7865/2004, pronounced on 11 April 2004
4. Appeal
No. 15402/2004, pronounced on 13 May 2004
5. Appeal
No32471/2004, pronounced on 1 November 2004
6. Appeal
No.15506/2005, pronounced on 24 July 2005
7. Appeal No.
21618/2005, pronounced on 3 October 2005
8. Appeal No.
29398/2005, pronounced on 19 January 2006
None of these
eight rulings have been implemented, and following each release order the
Interior Ministry has issued a new administrative detention order under the
same provision of the Emergency Law. As a result, the applicant has been
continuously detained for 33 months. Through this process, the Government
has been given numerous opportunities to remedy the violations of the
Charter alleged by the applicant, as required by the Commission (Amnesty
International and Others/Sudan,
48/90, paragraph 32). It has simply chosen not to implement the judgments
of its own Emergency Court.
In
this regard, the applicant draws the Commission’s attention to the European
Court of Human Rights case of Assanidze v. Georgia (judgment dated 8
April 2004), which similarly concerned the detention of a person whose final
release had been ordered by a competent court. In considering the
admissibility of the case, the European Court noted that where a final
release order was made, “the
principle of legal certainty – one of the fundamental aspects of the rule of
law – precluded any attempt by a non-judicial authority to call that
judgment into question or to prevent its execution” (paragraph 131).
Accordingly, the European Court
found that domestic remedies had been exhausted.
In this case, the
Interior Ministry has repeatedly prevented the execution of the Emergency
Court’s orders for the applicant’s release, and there is no other court or
body to which he can appeal.
In an effort to
seek implementation of the Court’s orders, the applicant has also submitted
five complaints to the State Security Prosecutor's office and ten complaints
to the National Council for Human Rights. He has not received any responses
to these complaints. On 29 December 2004 the Egyptian Initiative for
Personal Rights raised the applicant’s case in a complaint submitted to the
General Prosecutor's Office (Number 18323/2004). The complaint requested the
applicant’s immediate release, and asked for an investigation to be
conducted in order to identify and hold accountable those responsible for
his continued unlawful detention. No reply has been received.
As a result of
the above, the applicant has gone further than required to exhaust all
available domestic remedies
for the purpose of
Article 56(5). He has also submitted
the
communication within a reasonable time of exhaustion of domestic remedies
pursuant to Article 56(6). As noted above, the violations alleged are
ongoing in that the applicant has not been released. The communication was
submitted within two months of the seventh final order for the applicant’s
release.
Official copies
of the eight Emergency Court release orders, as well as Copies of the
complaints to the State Security Prosecutor, the National Council for Human
Rights and the General Prosecutor’s Office were sent to the Commission via
post.
Yours sincerely,
Hossam
Baghat Andrea
Coomber
Director
Legal Officer
Egyptian Initiative for
Personal Rights INTERIGHTS
