AFRICAN UNION

(fi)>UNION AFRICAINE

African Commissionon Human & Peoples' Rights

UNIAO AFRICANA

Commission Africaine des Droits de I'Homme & des Peuples

31 Bijilo Annex Layout, Kombo North District, Western Region,P. O. Box 673, Banjul, TheGambiaTel: (220) 4410505/4410506; Fax: (220) 4410504

E-mail: au-banjul(8)africa-union orp: Web www.achpr.org

Communication 563/15

Mohammed Bakri Mohammed Harun & 7 Others

The Arab Republic of Egypt

Done by theAfrican Commission on Human andPeoples' RightsApril 2015Banjul, The Gambia

Hon, Commissioner KAYTFESI

Chairperson ofthe African Commission

on Human and Peoples' Rights

Dr. Mary MaborekeSecretary to Hie African Commission onHuman and Peoples' Rights

Communication 563/15 - Mohammed Bakri Mohammed Harun & 7 Others v. TheArab Republic of Egypt

56th Ordinary Session:

Summary of the Complaint:

1. This Complaint was received by the Secretariat of the African Commission onHuman and Peoples' Rights (the Secretariat) on 07 April 2015. It is filed byAhmed Mefreh Al-Saidy (hereinafter the Complainant) on behalfof MohammedBakri Mohammed Harun & 7 Others (hereinafter the Victims), against the ArabRepublic of Egypt (hereinafter, Egypt or the Respondent State)1. Additionalinformation was provided to the Secretariat on 11 April, 2015.

2. The Complainant alleges that on 21 October 2014, the Military Criminal Court inthe Haykstep area in Cairo, in the Respondent State issued its verdict in a case2:

(a) sentencing to death six (6) Egyptian civilians namely: (i) MohammedBakri Mohammed Harun; (ii) Hani Mustafa Amin Amer; (iii)Muhammad Ali Afifi Badawi; (iv) Abdel Rahman Sayed Rizk AbuSrei'; (v) Khalid Farag Mohammed Mohammed Ali; and (vi) IslamSayed Ahmed Ibrahim; and

(b) sentencing to life imprisonment two (2) Egyptian civilians namely: (i)Ahmed Abu Srei' Mohamed Hassanein; and (ii) Hossam Hosny Abdel

3. He avers that the above-named eight accused persons who are the Victims inthis Complaint are civilians who faced a military trial before an unnatural judge[sic], under the spread of military trials for civilians which has been prevalent inEgypt since the military coup of the 3rd ofJuly 2013.

4. The Complainant submits that the Victims had been accused by the militaryprosecutor with bombing Mostorod checkpoint and Al-Amireya checkpoint, andkilling soldiers, on 19 March 2014. Also, in the press statement by the InteriorMinister of the Respondent State, announcing their arrest, they were allegedlydescribed as "seven of the most prominent cadres of Ansar Bayt al-Maqdisorganization", and accused of being "involved in most of the assassinations andbombings in the country, especially the attempted assassination of the InteriorMinister, the assassination of General Mohammed Al-Saeed, the bombing of theDepartments ofSecurity in Cairo and Dakahleya, and targeting vital and militaryinstallations."

1The Republic of Egypt ratified the African Charter on Human and Peoples' Rights on1984.

2Case No.43for the year 2014 for militarycrimesNorth of Cairo.tGRET*Rto/-

5. He further avers that the death sentences passed on the Victims by the MilitaryCriminal Court have been reviewed by the Grand Mufti of Egypt, whoseauthority lies in interpreting Islamic Sharia in the country, and whose feedback(i.e. on religious opinion) to the judges is considered unbinding and confidential.It is alleged that in this case, he has approved the death sentence.

6. Further, the Complainant submits that the Military Criminal Court which triedthe accused (the Military Court) had not been responsive with regard to therequests of the defense attorneys during the trial proceedings, which isconsidered a clear violation of the defence rights during trial. In this regard, thedefense attorneys have allegedly submitted a number of requests that wouldhave had a major repercussion on changing the course of the trial and the chargessubmitted by the public prosecution; ones which relied exclusively oninvestigations of the security and intelligence apparatuses.

7. He alleges that the key requests that had been submitted to the Military Courtincluded re-interrogation of the accused persons, because all confessions madeby them had been extracted under physical and psychological coercion duringthe period of their enforced disappearance within the El-Azouli MilitaryPrison.They claim that the accused faced a military prosecutor, were interrogatedin the absence of lawyers and without guarantees to ensure sound interrogation,and that moreover that the confessions were extracted from them under torture.

8. Furthermore, the Complainant alleges that the accused were not able to sign apetition to appeal the Court's verdict, as the authorities in El-Aqrab Prison in theTora prisons region did not enable them, especially that the military tribunals'law requires the accused to sign the petition to appeal by themselves, and theappeal lawyer cannot do so on their behalf. Allegedly, only the defendant AbdelRahman Sayed Rizk Abu Srei' presented an appeal due to his young age, as a 19year-old, and his mother appealed the decision on his behalf.

9. He claims however that this appeal was rejected by the military appeals court on24 March 2015, thus making the death sentence verdict against him and othersfinal after he had exhausted all routes of appeal. He submits that this verdict willtherefore be implemented as the steps that will be taken after the current verdictof the military appeals court, in accordance with the law of the military courts, isthat the President of the Republic will be signing the death sentence and theverdict will thereafter be executed.

10. With regard to the circumstances surrounding the arrest of the Victims sentencedto death, the Complainant alleges that Mohammed Bakri Mohammed Harun wasarrested on November 28th, 2013 as he was walking in a neighbourhood with hiswife and children, and that he was sent to an unknown location, while his wifeand children were held in the Zagazig Security Department for 10 days.Thereafter, his wife and children were thrown into the street after every]

wife had was stolen. He further claims that the family was thereafter surprised tofind out that Muhammed's name was added to the case of the alleged bombingswhich took place respectively a month and four months after his abduction. Hehad allegedly remained in detention in El-Azouly Prison until 21 March 2014,while his name was added in the bombing of the Security Department ofDakahleya on 24 January 2014, and to the bombings of Mostorod and ArabsSharkas checkpoints which took place in March 2014.

11. Hani Mustafa Amin Amer was allegedly arrested on September 16th, 2013 in theadministrative building of the Third District in Ismailia, where uniformedpersonnel arrested him and deported him to El-Azouli Military Prison. No oneknew anything about him until 27 January 2014, when he was presented to theState Security Prosecutor without the presence of a lawyer. Hani had allegedlybeen subjected to severe torture, and was transferred to El-Aqrab prison in lateMarch 2014. Therefore, on 10 May 2014, it came as a surprise to his family and hislawyer that his name was added to a military case, although he was abductedbefore the events of the case occurred.

12. Furthermore, the Complainant states that Mohamed Ali Afifi Badawi, wasarrested on November 19th, 2013, together with his wife, when security forcesattacked his apartment. His wife and children were locked in a room in the samebuilding for 15 days, and beaten up. Thereafter, his wife was sent to the ChiefInvestigator in Kaha, robbed, and then released, while her husband was taken toan unknown location. In April 2014, she discovered that her husband was in El-Aqrab prison and that visiting him was not allowed.

13. On his part, Abdel Rahman Sayed Rizk Abu Srei' was allegedly arrested onMarch 16th, 2014, from a travel agency in Cairo, and was detained in the StateSecurity headquarters in Lazoughli for about a week, until he was transferred toEl-Aqrab Prison after his second hearing in the case, when his name wasincluded in the Arab Sharkas military case.

14. Khalid Farag Mohammed Mohammed Ali and Islam Sayed Ahmed Ibrahim arealso alleged to have been arrested together on March 16th, 2014 from a travelagency in Cairo. They were allegedly transferred to El-Azouli Prison, whereKhalid was subjected to the worst kinds of torture in retaliation for his priorescape from them, including the smashing of his knee. It is also stated thatKhalid's father reported his abduction by way of petition to the AttorneyGeneral3.

15. The Complainant contends that the acts alleged above violate many provisions ofthe African Charter and are also inconsistent with other regional andinternational human rights standards as follows:

3 No. 9157/2014

(a) The death sentence against the 6 Victims violates many provisions of theAfrican Charter, including Articles 4, 6, and 7(1);

(b) The trial of civilians before military courts is in violation of the right to fairtrial as recognised by the African Commission and other similar bodies;

(c) Non-Compliance by the Military Court with all rights concerning fairtrials amounts to arbitrary deprivation of life as recognised by the AfricanCommission and other similar bodies;

(d) Non-exclusion of evidence extracted as a result of torture or other coercivemeans from the judicial proceedings by the Military Court amounts to aviolation of the suspects' human rights, contrary to international humanrights standards; and

(e) The enforced disappearances of the defendants inside a military prison arein violation of Articles 7 & 10 of the International Covenant on Civil and

Political Rights and other regional and international human rightsstandards.

16 As regards exhaustion of domestic remedies, the Complainant avers that withregard to the death sentence local remedies have been exhausted as defenseattorneys of one of the suspects - Rahman Sayed Rizk Abu Srei'- had challengedthe death sentence before the Court of Cassation, which on March 24th, 2015, hadupheld the same4; and that, as the litigation system in Egypt is a two-level(degree) system, upholding a verdict on the second degree (in this case, by theCassation Court) represents a final exhaustion of the local remedies and makesthe sentence against Abu Srei' and others final and unchallengeable in localcourts.

17 He therefore submits that at this point, the execution of the death sentence isexpected to take place at any time, and that he understands that the Governmentof the Respondent State has set a date for the execution; thus warranting theimmediate intervention of the Commission. He did not however specify theproposed date of execution.

18 On the basis of the above, he also claims that the Communication is exempt fromthe requirement to exhaust domestic remedies in line with the jurisprudence ofthe Commission, on account that there is no access to justice at this point in time,due to the serious and massive violations of human rights in the RespondentState and the obvious ineffectiveness of the process of appeal. He also submitsthat there are no local remedies which are available, effective or sufficient, asrequired for purposes of exhaustion of domestic remedies.

Articles alleged to have been violated

19 On the basis on the facts presented, the Complainant alleges the violation ofArticles 1,4, 6, and 7 of the African Charter

4See paragraph 9 above.

Prayers:

20 From the submissions before the Commission, the Complainant prays the AfricanCommission:

(a) To grant provisional measures to prevent the execution of the Victims thatwere sentenced to death; and

(b) To find the violations of human rights by the Respondent State as alleged.

Procedure

21 The Complaint was received at the Secretariat of the Commission on 07 April2015, and receipt was acknowledged on 13 April 2015.

Analysis of the African Commission on Seizure

22 The African Commission is of the view that the Complaint contains all theinformation required under Rule 93(2) of its Rules of Procedure.

23 The African Commission also finds that the Complaint reveals prima facieviolations of the African Charter.

24 The African Commission is also of the view that the request for provisionalmeasures meets the criteria provided under Rule 98 (1) of the Rules of Procedureof the Commission.

Decision of the African Commission on Seizure

25 Based on the above analysis, the African Commission decides:(a) To be seized of this Communication; and(b) To grant the request for Provisional Measures.

26 The African Commission calls on the Complainant to present evidence andarguments on Admissibility within two (2) months in accordance with Rule105(1) of its Rules of Procedure.

Done in Banjul, The GambiaApril 2015