Access to Public Information, Freedom of Association and Assembly / Protests, Press Freedom
Kaneko v. Japan
Closed Expands Expression
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The African Commission on Human and Peoples’ Rights (“ACmHPR” or the “Commission”) held Egypt responsible for the violation of Articles 1, 2, 3, 5, 9, 16, 18, and 26 of the African Charter on Human and Peoples’ Rights (“the Charter”). The present case concerned protests that occurred on 25 May 2005 at the Saad Zaghloul Mausoleum and the Press Syndicate. Supporters of the Egyptian Movement for Change, who were promoting a constitutional amendment to allow multi-candidate presidential elections in Egypt, were assaulted by riot police and followers of the National Democratic Party (“NDP”), the ruling party in Egypt at the time of the events. The victims were targeted due to their female gender, profession as journalists, and political opinions. In this respect, the Commission held that the right to freedom of expression is one of the cornerstones of democratic governance; therefore, public officials are expected to tolerate a higher degree of criticism in their capacity as public figures. The Commission also ruled that freedom of expression can only be restricted pursuant to the Charter when the restriction serves a legitimate purpose and is proportionate and necessary in a democratic society. Taking account of the fact that the victims were journalists, most of whom attended the demonstration to disseminate their views on the constitutional amendments and record the event, the Commission concluded that by facilitating the victim’s assault, the Respondent State infringed their right to freedom of expression under Article 9 of the Charter.
The authors of the communication were the Egyptian Initiative for Personal Rights (EIPR) and INTERIGHTS, two human rights organizations acting on behalf of Nawal Ali Mohamed Ahmed, Abir Al-‘Askari, Shaimaa Abou Al-Kheir, and Iman Taha Kamel. The application concerned the protests that occurred on 25 May 2005 at the Saad Zaghloul Mausoleum, in which supporters of the Egyptian Movement for Change promoted a referendum intending to amend Article 76 of the Egyptian Constitution to allow multiple candidates to participate in the presidential elections of 2005.
As per the facts submitted by the parties, on 25 May 2005, followers of the Egyptian Movement for Change also planned demonstrations at the Press Syndicate where the victims were sexually assaulted, beaten, and insulted by non-state actors and government officials in front of the police. The police did not intervene nor provided assistance to the victims. Furthermore, it emerged from the evidence provided by the Applicants that during the protest, the victims were subjected to inhuman and degrading treatment perpetrated by Riot Police officers and followers of the National Democratic Party (“NDP”), the ruling party in Egypt at the time of the events. All such attacks were committed against the victims due to their gender, careers as journalists, and political opinions.
Given the preceding, the Applicants in the present case submitted the following facts:
A) With regards to the first victim: Nawal Ali Mohamed Ahmed
On 25 May 2005, Nawal Ali Mohamed Ahmed walked in front of the Press Syndicate to attend an English class. Even though she was a journalist, she encountered the protests with no intention to participate. Nonetheless, she was assaulted by supporters of the NDP acting under the agency of the Riot Police. She was later taken to the Monira Hospital on the same day, where she was diagnosed with “…one large (10cm) scar, several smaller bruises on her chest, and visible scratches on her legs and feet” [para. 8].
On the same day, the victim complained to the police but faced many difficulties, such as the police’s refusal to record her testimony and the declarations of witnesses of the assault. The victim also received threats from government officials aimed at forcing her to withdraw her complaint.
B) With regards to the second victim: Shaimaa Abou Al-Kheir
Shaimaa Abou Al-Kheir attended the protest to cover the events on behalf of the Al Doustour Newspaper. The victim was also assaulted by agents of the State Security Intelligence (SSI) while trying to photograph the demonstration and the attacks perpetrated towards members of the Egyptian Movement for Change.
As a result of the attack, Shaimaa Abou Al-Kheir “….was attended at the Hilal Hospital on 31 May 2005, and a medical report confirmed bruises on her left shoulder, left arm, and back” [para.12]. The second victim submitted a complaint before the Public Prosecution Office (PPO), who refused to record the declarations of witnesses. She also received threats aimed at forcing her to withdraw her complaint.
C) With regards to the third victim: Shaimaa Abou Al-Kheir
The third victim, a journalist for the Al Doustour Newspaper, attended the demonstration to support the referendum and cover the event. Later on, she was also assaulted by police officers and followers of the NDP, who exposed her body and beat her. Shaimaa Abou Al-Kheir lodged a complaint, but yet again, the police refused to record eye-witnesses’ declarations. The third victim also received threats to withdraw her complaint.
D) With regards to the fourth victim: Iman Taha Kamel
Iman Taha Kamel attended the event as a journalist and supporter of the referendum. She was assaulted by “…a group of unidentified men who pushed her against the wall and hit her in her lower abdomen several times until she collapsed on the ground. They also allege that she was kicked on her pubic area by one of the men, while the others continued to beat and tried to tear off her clothes” [para.17].
As a result of the attack, the fourth victim had to remain at the Marg Hospital for two days, where she was provided with medical care for bruises, according to the medical report of 31 May 2005. On 5 June 2005, Iman Taha Kamel submitted a complaint to the Qasr Al-Nil PPO and was threatened to withdraw her allegations.
Furthermore, the victims’ cases were labeled as misdemeanors according to Article 242 of the Egyptian Penal Code. On 27 December 2005, the Public Prosecution Office (PPO) dismissed the victims’ complaints on the basis of a lack of evidence to identify the perpetrators. Subsequently, the victims appealed against the Public Prosecution Office (PPO)’s decision to the Appeal Misdemeanors Chamber of the First Instance Court of Southern Cairo. However, on 1 April 2006, the court of appeal upheld the Public Prosecution Office (PPO)’s decision not to prosecute.
In light of the lack of domestic judicial remedies, on 18 May 2006, the Applicants filed a complaint before the Commission arguing, inter alia, that the Respondent State had infringed Articles 1, 2, 3, 5, 7(1)(a), 9(2), 16, 18(3), and 26 of the Charter. In November 2006, the Commission declared the complaint admissible at its 40th ordinary session.
In the present case, the central issue for consideration was whether the Respondent State’s breach of its positive obligations towards the victims resulted in a violation of Article 9 of the Charter relative to the right to freedom of expression. In this regard, the Applicant claimed that “…that during the events on 25 May 2005, as journalists, the Victims were only attempting to assert their political opinions and to disseminate these views within the country. (…) the Victims were prevented from exercising their profession and in the process, assaulted and sexually violated contrary to the protection afforded them under Article 9(2) of the African Charter” [para. 241]. The Respondent State provided no contrary element in refutation of the Applicant’s allegations.
According to the Commission, the right to freedom of expression constitutes one of the cornerstones of the democratic society; thus, a violation of the right to freedom of expression often reflects on other human rights enshrined in The Charter. The interconnection between the freedom of expression and other human rights is more tangible in political matters in which public debate and civilian participation would be unattainable without respecting individuals’ right to express and disseminate their opinions. In this regard, the Commission cited its jurisprudence on Amnesty International and Others v. Sudan, where it held that freedom of expression is vital to guarantee political participation, personal development, and political consciousness. This has also been echoed in Article 27(8) of the African Charter on Democracy, Elections and Good Governance, which establishes that: “In order to advance political, economic and social governance, State Parties shall commit themselves to promoting freedom of expression, in particular freedom of the press and fostering a professional media.” Therefore, governmental officials and political leaders are often required to tolerate a higher degree of criticism in view of their capacity as public figures [para.244].
Likewise, the Commission ruled that an infringement of the right to freedom of expression simultaneously engages the public’s right to access information, meaning that “…when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated but also the right of all others to “receive” information and ideas” [para.250]. In the instant case, most of the victims attended the events of 25 May 2005 in their capacity as journalists and supporters of the Egyptian Movement for Change. Therefore, when the Respondent State’s police force assaulted the victims both physically and mentally, restricting their ability to record and share the event, the public’s right to access such information and opinions was also infringed.
In this vein, the Commission noted that freedom of expression is not an absolute prerogative; therefore, it could be limited or restricted pursuant to Article 27 of the Charter when the restriction (i) serves a legitimate aim, (ii) is proportionate to the benefit to be fulfilled, and (iii) necessary in a democratic society. The restriction must also be exercised within the scope of the law, meaning that it has to be respectful of international standards and practices on this matter. However, in the instant case the Commission held that “It is not evident from the evidence presented in this Communication that this restriction falls within the meaning provided by Principle II(2) of the Declaration, that is, ‘provided by law’, ‘serve a legitimate interest’, ‘necessary’, and in a ‘democratic society’. Furthermore, the Respondent State has not provided any information indicating that the Victims, in exercising their right to freedom of expression, were threatening national security or public interest” [para. 255].
In addition, State Parties to the Charter are also charged with positive obligations, according to which States are required not only to refrain from violating human rights but also to undertake adequate measures to guarantee right holders within their jurisdictions the fulfillment and enjoyment of their rights. However, the victims of the present case were prevented from disseminating their opinions and recording the events of 25 May 2005 by using force and violence. During the events of 25 May 2005, the police not only did not intervene while the victims were being brutally assaulted but encouraged and participated in the assaults.
Furthermore, the victims were refused their right to a diligent investigation of their complaints. Thus, it emerged from the facts that the actions executed by the Respondent State did not intend to protect a legitimate interest within the law nor were necessary in a democratic society. Also, the government did not discharge its duty to deploy all available means to guarantee the victims the fulfillment of their Charter rights. Consequently, the Commission was of the view that the facts before it disclosed a violation of Article 9 of the Charter.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the right to freedom of expression by reaffirming the categorical role of freedom of expression in preserving democracy, creating political consciousness, promoting personal development, and encouraging civilians’ participation in the affairs of the State. In this vein, the Commission held that any form of effort to restrict the right to freedom of expression by the State parties that is not necessary for a democracy, does not serve a legitimate purpose, and is not prescribed by law, must be avoided and punished. The Commission also held that since the victims were all journalists, by preventing them from disseminating their opinions on the referendum and the events of 25 May 2005, the Respondent State also violated the public’s right to access such information.
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