Secretary
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 November 2005
Dear Sir,
Introduction of
complaint: Metwalli Ibrahim Metwalli v. Egypt
Pursuant to Article 55 and 56 of the African Charter on Human and People’s
Rights (the Charter) read with Rule 102 of the Rules of Procedure of the
African Commission on Human and People’s Rights (the Commission), this
letter is submitted as an introduction of a communication, on behalf of Mr.
Metwalli Ibrahim Metwalli (the Applicant). The Applicant requests that the
Commission recognise this as the initiation of a complaint for the purpose
of seizure, and notes that a full communication will be submitted shortly.
The Applicant is a citizen of Egypt born on 1 January 1954. Prior to his
arrest and detention, he lived at 1 Mohamed Shafai Street, Ard El-Liwa in
Cairo, Egypt. By profession, the Applicant is an engineer and Muslim
scholar.
The Applicant is represented by:
A.
Hossam Baghat
Egyptian Initiative for
Personal Rights
2 Howd El-Laban Street
Garden City, App. 11
Cairo
Egypt
Tel/fax: + 202 795
0582- 796 2682
Email:
Hossam@eipr.org
B.
Andrea
Coomber
International Centre
for the Legal Protection of Human Rights (INTERIGHTS)
Lancaster House
33 Islington High
Street
London N19LH
United Kingdom
Tel: + 44 20 7278 3230
Fax: + 44 20 7278 4334
Email:
acoomber@interights.org
The communication is filed against the state of Egypt (the Respondent
State), which ratified the African Charter on 20 March 1984.
The Applicant confirms that pursuant to Article 56(7) of the Charter, he has
not submitted this complaint to any other procedure of international
investigation or settlement.
Statement of Facts
The Applicant received his religious training at Al-Azhar University in
Cairo—the oldest and highest religious authority in Sunni Islam—where he
obtained two bachelor degrees in Islamic Law and Arabic.
The Applicant finished his religious studies in 2001, and between 1999 and
May 2003 he distributed copies of his unpublished religious research
widely. Among others, he sent copies to the President Hosni Mubarak, the
then Crown Prince of Saudi Arabia, the Secretary General of the League of
Arab States, the then Iraqi President, and President Mubarak’s political
adviser Ossama Al Baz. He also sent copies to different universities and
religious scholars in Egypt. The Applicant’s study focuses on the idea of
“coercion in Islam”, which he believes has been falsely construed. The
study relies on his training in linguistics and fiqh (Islamic
jurisprudence) to refute two opinions often held among mainstream Muslim
scholars, namely that it is the religious duty of Muslims to kill converts
from Islam to other religions and that there is prohibition on Muslim women
marrying non-Muslim men.
In
March 2003, the Applicant was summoned for questioning at State Security
Intelligence (SSI) headquarters in Giza several times. During these sessions
officers discussed with the Applicant the ideas that he had expressed in his
research and brought religious scholars from Al Azhar University to debate
these ideas and to refute them.
On
18 May 2003, the Applicant was arrested at his home in Cairo by the SSI. He
was given no reasons for his arrest. Following his arrest, the Applicant
spent 10 days in unlawful incommunicado detention at SSI headquarters in
Giza and then in Istiqbal Tora Prison, where he remained until November
2003.
On
28 May 2005, the
Interior Ministry issued an administrative detention order against him
pursuant to Article 3 of Law 162/1958 on the State of Emergency (the
Emergency Law). The Respondent State has been in an official State of
Emergency since 1981. The relevant part of Article 3
allows
the President, or the Minister for the Interior to order, orally or in
writing, the arrest and detention of those who “pose a threat to public
security”.
Article 3 of Law 50/1982 on Amending the Emergency Law stipulates that
detainees or their representatives may appeal their arrest or detention
orders when 30 days lapse after the orders are issued. These appeals are
considered by the Supreme State Security Emergency Court (the Emergency
Court). If the Emergency Court finds in favour of the detainee the Ministry
of the Interior has a window of 15 days to appeal the Court's decision,
which is then considered final. A detainee has the right to file a new
appeal against his/her detention order one month after the rejection of the
previous appeal.
On
3 July 2003, the Applicant was transferred to the State Security
Prosecutor's office where he was charged with "contempt of the Islamic
religion" under article 98 (f) of the Penal Code. This section provides
fines or imprisonment for any person who “exploits religion in order to
promote or advocate extremist ideologies by word of mouth, in writing or in
any other manner with a view to stirring up sedition, disparaging or
contempt of any divinely-revealed religion or its adherents, or prejudicing
national unity or social harmony.”
The Applicant’s case was registered as number 1086/2003 (Supreme State
Security). On 29 October 2003, the State Security Prosecutor's office
ordered the Applicant’s release pending investigation. To this day, no
action on the investigation has been taken although the Applicant
understands that the case file is still open.
Despite the order for his release, the Applicant was kept in detention until
a new administrative detention decree was issued under Article 3 on 8
November 2003. He was transferred to Wadi Al-Natroun Prison.
The Applicant has filed seven appeals before the Emergency Court challenging
the legality of his detention. In each of these cases the Court has held in
his favour and ordered his immediate release (in orders dated 19 August
2003,
25
January 2004, 11 April 2004, 13 May 2004, 1 November 2004, 24 July 2005,
3 October
2005). However none of these court judgments has ever been implemented.
Each time the Emergency Court has ordered the Applicant’s release the
Minister for the Interior, Mr. Habib El-Adli has issued a new administrative
detention decree under Article 3 of the Emergency Law. The most recent
release order was issued on 3 October 2005 in response to appeal number
21618/2005.
Until June 2005, the Applicant was held in Wadi Al-Natroun Prison. While in
prison, he was routinely harassed and abused by other prisoners and prison
guards on account of alleged disrespect of Islam. Rumours were spread among
detainees from the Al Gamaa Al Islameya and Al Jihad groups that he was an
apostate, he was called “Satan” and “Pig” routinely and he was attacked on
numerous occasions. In his complaint to authorities dated 20 January 2003,
for example, the Applicant reports that while at Istiqbal Tora Prison
another detainee by the name of Youssri Mohammed Fahmi had advocated his
murder, amid rumours that he was an “infidel” who denied the Prophet’s
legacy. Shortly after, Fahmi and another detainee called Mohamed Abdalla
assaulted the Applicant causing facial swelling and bleeding.
On 19
June 2004, the Applicant complained to the authorities about their lack of
response to his beating at the hands of Fahmi and Abdalla, stating that the
failure to investigate had escalated assaults against him. The Applicant
asked to be referred to the forensic medical authorities so his injuries
could be documented, but no action was taken. His request to appear before
the public prosecutor to file a complaint against the other detainees was
denied by the authorities.
On
many other occasions, the Applicant lodged official complaints concerning
his treatment
(specifically on 29 October 2003; 20 January 2004; 10 March 2004; 14 April
2004; 19 April 2004; 27 April 2004; 14 May 2004; 1 June 2004; 20 June 2004;
28 August 2004; 29 August 2004; 20 September 2004),
requesting protection and investigation, but no action was taken. In
October 2003, his request for special protection in view of fears for his
life resulted in the Applicant being moved to a cell in solitary
confinement. His cell had no sunlight, no electricity and was infested with
mosquitoes.
The failure of the authorities to take his ill-treatment seriously resulted
in the Applicant embarking upon a number of hunger strikes in 2004 and in
June 2005.
On
30 June 2005, the Applicant was transferred to the remote Al-Wadi Al-Gadid
Prison, apparently to punish him for staging the hunger strike. Initially,
he was subjected to harassment and occasional violence by Islamist inmates
because of his religious beliefs. Despite reports, the administration did
nothing to protect him. He now stays in the hospital ward of the prison,
where he is kept away from the mainstream prison population.
In
addition to the abovementioned complaints, the Applicant has submitted a
number of complaints to both the State Security Prosecutor's Office and to
the National Council for Human Rights, drawing attention to the circumstance
of his detention. He has not received any response to any of these
complaints.
Despite the repeated release orders of the Emergency Court, the Applicant
remains detained at Al-Wadi Al-Gadid Prison to this day.
Outline of violations
of the Charter
The
Applicant submits that his rights have been violated under Articles 2, 5, 6,
7 (1)(d), 8, and 9(2) of the Charter. The nature of these violations is set
out briefly below. The full application will provide a more comprehensive
review of the Commission’s case law, along with relevant international and
comparative jurisprudence.
As a
preliminary matter, the Applicant notes that the violations of his rights
outlined below have been made possible by the Respondent State’s Emergency
Law. On a number of occasions, this Commission has had the opportunity to
consider the possibility of derogation from Charter rights during times of
emergency. By reference to Article 1 of the Charter, the Applicant notes
that the Commission has repeatedly emphasised that the Charter does not
permit states to derogate from their responsibilities during states of
emergency, and that this is “an expression of the principle that the
restriction of human rights is not a solution to national difficulties”
Amnesty International/Sudan, 48/90, paragraph 79; see also paragraph 42;
see also Media Rights Agenda/Nigeria, 224/98, paragraph 73;
Commission Nationale des Droits de l’Homme et des Libertes/Chad, 74/92,
paragraph 21.
The
Applicant respectfully urges the Commission to confirm that the fact that
the Respondent State maintains a 24-year long State of Emergency cannot
justify violations of his human rights in contravention of the Charter.
Article 2
The
Applicant submits that he has been discriminated against in his enjoyment of
Charter rights on the basis of his religious beliefs.
This Commission has
confirmed that Article 2 “abjures discrimination on the basis of any of the
grounds set out”, noting that “[t]he right to equality is very important.”
Legal Resources Foundation/Zambia No. 211/98, paragraph 63.
Similarly, it has emphasized that Article 2 of the Charter “lays down a
principle that is essential to the spirit of this Convention, one of whose
goals is the elimination of all forms of discrimination and to ensure
equality among all human beings” Association Mauritanienne des Droits de
l’Homme/Mauritania No. 210/98, paragraph 131.
It is
submitted that central to the Applicant’s treatment by the authorities and
his continued detention is the fact that he holds particular religious
views. The discrimination is based not on the Applicant’s religion per
se, namely Islam, but his understanding of his religion. His approach
to the religion has singled him out for discriminatory treatment in
violation of Article 2. This is evidenced by the fact that his initial
detention was a direct response to the distribution of his religious study,
his interrogation about his beliefs at SSI headquarters in Giza and that he
was originally charged with the offence of “contempt of the religion of
Islam”. The Applicant is being treated differently from other scholars
purely on the basis of his religious beliefs, and this distinction is not
reasonably justified. Accordingly, his rights under Article 2 have been
violated.
Article 5
The
Applicant submits that the conditions of his detention from May 2003 until
June 2005 were inhuman in violation of Article 5. First, the Applicant
notes that while in detention he endured prison conditions undermining of
human dignity. As noted in the facts above, the Applicant was subjected to
harassment and beatings, was held in solitary confinement and inhuman
conditions.
The full application
will go into greater detail about specific incidents and the conditions of
detention.
It is
submitted that this ill-treatment reaches the necessary threshold for
inhuman treatment under Article 5 of the Charter.
Second,
the Applicant submits that the Respondent State failed in its positive
obligation to prevent ill-treatment, and its procedural obligation to
effectively investigate the ill-treatment. This Commission has recognised
that Article 1 of the Charter requires that States not only recognise
rights, but requires that they “shall undertake… measure to give effect to
them”. Legal Resources Foundation/Zambia, 211/98, paragraph 62. When
read with Article 5, it is submitted that this gives rise to positive
obligations of States to take measures to protect against ill-treatment, and
to effectively investigate allegations of ill-treatment when they occur.
Meaningful protection under Article 5 requires that States take measures to
ensure that individuals within their jurisdiction are not subjected to
inhuman treatment. This may include taking steps to protect individuals
from harm from third parties, where the authorities knew or ought to have
known that the individual was at risk (see European Court of Human Rights in
Z. v. U.K., judgment of 10 May 2001, paragraph 73; and Pantea v.
Romania, judgment of 3 June 2003, paragraph 118). On numerous occasions
(specifically on 29 March 2003; 29 October 2003; 20 January 2004; 10 March
2004; 19 April 2004; 26 April 2004; 14 May 2004; 1 June 2004; 20 June 2004;
28 August 2004; 29 August 2004; 25 September 2004), the Applicant wrote to
the authorities reporting the abuse and requesting they intervene to stop
him being mistreated by other prisoners. However no effective protective
measures were taken and the Applicant continued to suffer abuse while in
detention. The Applicant’s situation has only improved because he is now
separated from other prisoners in a hospital block.
The
Applicant also submits that the State failed in its procedural obligations
to effectively investigate his allegations of ill-treatment, as required to
ensure meaningful protection under Article 5. Such an investigation should
be capable of identifying and bringing to justice those responsible for such
abuse (See
McCann and Others v.
the United Kingdom
judgment of 27 September 1995, paragraph 161).
Despite numerous
official complaints over a long period of time, no efforts have been taken
to investigate the repeated allegations made by the Applicant, nor to bring
those responsible to account. Accordingly, the Applicant submits that the
State has failed in its procedural obligation under Article 5.
Article 6
and 7
As noted
by this Commission, those rights enshrined in Article 6 and Article 7 rights
are “mutually dependant, and where the right to be heard is infringed, other
violations may occur, such as detentions being rendered arbitrary”.
Amnesty International/Sudan, 48/90, paragraph 62. It is submitted that
in this case, denials of process under Article 7 have led to arbitrary
arrest and detention in violation of Article 6. Accordingly, the articles
will be considered together.
The
Applicant notes that his arrest was arbitrary in that he was not given any
reasons for his arrest, and has been detained subsequently without charge,
trial, conviction or sentence by a court of law. See paragraph 2(b),
Resolution 4(XI)92 on the Right to Recourse and Fair Trial (1992) Media
Rights Agenda/Nigeria, 224/98, paragraph 44 and paragraph 74.
The
Applicant recalls the importance that this Commission has placed on
effective remedies with respect to arbitrary detention
(Article C (c)(4) Fair
Trial Guidelines). While the
Applicant has been able to challenge his detention before the
Emergency
Court on seven occasions and seven orders have been made for his release, he
remains detained. The Applicant submits that the execution of judgments
given by the Emergency Court must be regarded as an integral part of his
right to due process under Article 7. The Respondent State’s domestic legal
system has repeatedly allowed the final, binding judicial order of the
authorised Emergency Court to be circumvented by a new administrative decree
each time his release is ordered. In the Applicant’s case, each of these
administrative decrees under Article 3 of the Emergency Law has been made on
precisely the same basis as the previous decrees that the Emergency Court
has deemed unlawful. The Applicant argues that in his case the guarantees
afforded by Article 7 are rendered illusory by the continued application of
the Emergency Law.
Further,
with respect to Article 7(1)(d), the Applicant submits that his detention
pursuant to the Emergency Law has denied him the right to be heard within a
reasonable time. He has been held without trial since May 2003. By this
Commission’s own case law, a delay of over two years amounts to unreasonable
delay and a violation of Article 7(1)(d). Annette Pagnoulle (on behalf of
Abdoulaye Mazou)/Cameroon,
39/90, paragraph 19.
Finally,
it should be noted that this Commission has found that to detain someone on
account of their political beliefs, especially where no charges are brought
against them, renders the deprivation of liberty arbitrary per se.
Constitutional Rights Project, Civil Liberties Organisation and Media
Rights Agenda/Nigeria, 140/94, 141/94, 145/95, paragraph 51. The
Applicant submits that the same is true, mutatis mutandis, with
respect to detention based on religious beliefs.
Article 8
The
Applicant submits that his right to profess his religion has been violated.
At the heart of this case, is the Applicant’s understanding of Islam – a
religion to which he has dedicated his personal and work life. An integral
aspect of freedom of religion is the ability of individuals to express
religious beliefs and ideas. The Respondent State has severely interfered
with the Applicant’s freedom of religion by detaining him, and this
interference cannot be objectively justified.
It is
recognised that in certain circumstances freedom of religion can be
restricted.
Article 27(2) of the
Charter requires rights to be exercised “with due regard to the rights of
others, collective security, morality and common interest”.
The Applicant’s
interpretation of Islam poses no threat to the collective security, morality
or common interest in the
Respondent State; indeed far from “inciting radicalism”, the Applicant
professes a peaceful and tolerant approach to Islam. Even if there were
some justification for interfering with the Applicant’s right to freedom of
religion, the measure of arbitrarily detaining the Applicant would not be a
proportionate response. To allow such an interference with freedom of
religion would erode the right “such that the right itself becomes
illusory”. Mutatis mutandis, Constitutional Rights Project, Civil
Liberties Organisation and Media Rights Agenda/Nigeria, 140/94, 141/94,
145/95, paragraph 42.
Article
9(2)
As
recognised by this Commission, freedom of expression is a basic human right,
vital to an individual’s personal development and political consciousness,
and to the conduct of public affairs and democracy of a state.
Constitutional Rights Project and Others/Nigeria 104/94, 141/94, 145/95
paragraph 36, Amnesty International/Zambia 212/98, paragraph 79; also
recognised in Resolution on Freedom of Expression, ACHPR/Res.54 (XXIX) 01
The
Applicant submits that his right to freedom of expression guaranteed by
Article 9(2) has been violated. The Applicant recalls that the Commission
has noted, specifically with respect to freedom of expression, that there is
no derogation in times of emergency, as “the legitimate exercise of human
rights does not pose dangers to a democratic state governed by the rule of
law”
Amnesty
International/Sudan,
48/90, paragraph 79.
The Charter strictly provides for freedom of expression and dissemination of
opinions ‘within the law.’ This must not, however, be understood as
covering only speech that is lawful under national law, but should be
interpreted in line with international norms of free speech. Amnesty
International/Sudan 48/90, 50/91, 52/91, 89/93, paragraph 79,
101/93 Civil Liberties Organisation/Nigeria, paragraph 15. This
Commission has recognised that an individual’s exercise of freedom of
expression may be legally curtailed through the law of defamation. However
where governments opt to arrest and detain individuals without trial,
Article 9 has plainly been violated. Huri-Laws/Nigeria, 225/98,
paragraph 28.
In
this case, the content of the Applicant’s written work is plainly “within
the law” – in none of his writing has the Applicant promote extremism,
sedition or contempt of Islam, nor does he pose any threat to national unity
or social cohesion in the Respondent State. To the contrary, the
Applicant’s writings advocate greater tolerance within Islam. Accordingly,
there is no objective justification for the violation of the Applicant’s
right to freedom of expression under Article 27(2) of the Charter. The
Applicant’s free expression has in this case been exercised “with due regard
to the rights of others, collective security, morality and common
interest”.
Exhaustion of domestic
remedies
As noted
above, the Applicant has appealed his detention numerous times before the
State Security Emergency Court, the only judicial body designated for that
purpose under the Emergency Law. The Court has issued seven judgments
ordering his release. None of these rulings have been implemented. These
rulings were, in consecutive order -
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 No. 32471/2004, 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
The
Emergency Court is the final court in the Respondent State to adjudicate on
the Emergency Law, and accordingly, the Applicant has exhausted all
available domestic remedies.
In
addition, the Applicant has 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.
Conclusion
The Applicant submits this introductory letter without prejudice to the
later submission of additional facts and legal arguments under the Charter.
In requesting the Commission to examine his case, the Applicant seeks the
following –
1.
recognition
by the Commission of violations of the abovementioned articles of the
Charter;
2.
his immediate
release from detention;
3.
harmonisation
of the
Respondent State’s legislation in line with the Fair Trial Guidelines; and
4.
an order for
compensation.
For the reasons set out above, the Applicant respectfully requests that the
Commission be seized of this matter for the purposes of article 56(6) of the
Charter. A detailed communication will be submitted in due course.
Yours sincerely,
Hossam Baghat
Andrea Coomber
Director
Legal Officer
Egyptian Initiative for
Personal Rights INTERIGHTS
