Freedom of Association and Assembly / Protests, Political Expression
Tatár v. Hungary
Closed Expands Expression
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The Court of Administrative Judiciary in Egypt held that the decision of conducting a compulsory medical examination, in particular a virginity test on girls detained by the military forces during public protests, is illegitimate as it violates the Egyptian Constitution and the criminal law. It ruled that the military’s administrative decision to submit female detainees to compulsory virginity tests was suspended and revoked. The case was brought by two plaintiffs who had participated in a demonstration in Al-Tahrir Square when one of them was arrested and subjected to a compulsory examination of her virginity. The defendant asked the Court to dismiss the case for lack of an administrative decision and because it was filed by parties with no interest in the dispute.
In or about March 2011, the two plaintiffs, Samira Mahmoud and Maha Abdullah, were exercising their freedom of expression by taking part in a demonstration in Al-Tahrir Square during which one of them was detained by military forces and subjected to a compulsory virginity test. The plaintiffs reported the incident to the military prosecutor’s office.
On July 17, 2011, the plaintiffs brought the case before the Court of Administrative Judiciary against the head of Supreme Council of Armed Forces (SCAF), the Minister of Defense, the Military General Attorney, and the Leader of Military Central Area, seeking an urgent suspension of the military’s decision to carry out a compulsory virginity test on girls detained by the military forces.
The plaintiffs argued that the decision was void as it contradicted 1) the constitutional declaration issued on 30.03.2011; 2) the international conventions to which Egypt is a party, and 3) the Criminal Procedures Code, and the law of prisons.
The defendant asked the Court to 1) dismiss the whole lawsuit for the lack of an administrative decision; and 2) dismiss the case as it was filed by parties with no interest in the disputed issue.
The Court upheld the plaintiffs’ demands, ruling that the military’s administrative decision of subjecting female detainees to compulsory virginity tests be suspended and revoked. The Court affirmed that the decision was contrary to the Egyptian Constitution and the law, and did not align with international human rights conventions as it constituted a violation of the sanctity of women’s bodies and an assault on their human dignity, and a deliberate humiliation to the women participating in the demonstrations.
The ruling was issued by the first chamber of the Egyptian Administrative Court. The Court addressed two main issues. First, whether to dismiss the whole lawsuit for the lack of an administrative decision. Second, whether to suspend and revoke the military forces’ administrative decision of conducting a compulsory virginity test on female detainees.
In light of the first issue, the Court rejected the defendant’s argument that the Supreme Council of the Armed Forces (SCAF) did not issue an administrative decision to conduct such virginity tests. The Court found its decision on the fact that the reports issued from “Amnesty International” on 27/6/2011 had mentioned that general Abdel Fatah El Sisi had discussed the issue of compulsory virginity testing with the Secretary General of Amnesty International and said that “The reason behind the virginity tests conducted in March was to protect the army from any potential rape allegation”. The Court added that the head of military intelligence had promised Amnesty International that the army would suspend the tests. Accordingly, the Court said that since the defendant did not deny what was mentioned in the Amnesty report, the virginity tests were conducted on the basis of an administrative decision. In these circumstances the Court said that the defendant’s argument was not legally justified and therefore dismissed.
In relation to the second issue, the Court noted that according to the constitutional declaration of 30.03.2011 and criminal procedural law, “personal freedom is a natural, inviolable right that should not be restricted except under the conditions and procedures provided by law” and that “every citizen, who is arrested, imprisoned, or whose freedom has been restricted, must be treated in a way that maintains his human dignity and should not be subject to any form of harm either physically or mentally. The constitutional declaration also asserted that it is not allowed to detain or imprison any person in places not regulated by the law of prisons.”
The Court also underlined that, based on Art (180) of the Military law No. (25) of the year 1966, “the execution of penalties against civilians takes place in civilian prisons”, and that “neither the law nor the prisons regulation specified any provision that allows at any point any authority to subject female prisoners to virginity testing”.
Moreover, the Court referred to a well-established 1996 ruling of the Egyptian Supreme Constitutional Court (SCC) no 33 of judicial year 16 in which the SCC reiterated the importance of reinforcing human dignity, stating that “A criminal sanction shall not be repugnant or cumbersome. And it will be so if it is barbaric, torturous, oppressive, or if it ignores the standards, which civilized nations had committed to, in their treatment of mankind”.
Additionally, the Court noted that international human rights conventions, which Egypt is part of and bound by, particularly Articles 7 and 10 of the International Covenant on Civil and Political Rights, emphasise that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, and that all persons deprived of their liberty shall receive humane treatment that respects their inherent human dignity.”
The Court went further, mentioning that International Humanitarian Law sets forth robust guarantees with regard to the treatment of war prisoners. The Court underscored that the third Geneva Convention states clearly that “War prisoners shall be treated in a way that maintains their human dignity”, and that Article 14 of the Convention stipulates that “female war prisoners shall be treated with all the regard due to their sex”.
Finally, the Court stated that “the virginity testing conducted by the armed forces lacked any judicial tincture and lay outside the jurisdiction of both military judicial officers and the military prosecution set out in the 1966 Military law No. 25.” Added to that, the Court noted that “the armed forces’ claim that the virginity tests were conducted merely to protect their military personnel against any probable rape allegations is perverse”. This is because “legitimate aims shall only be pursued through legitimate means” and the virginity tests violated the law and the Constitution and, as such, were not legitimate.
In summary, the Court held that the contested virginity testing administrative decision had no legal basis and was in violation of human rights conventions, the Egyptian Constitution and the law. Consequently, the Court suspended the decision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression by censoring the arrest and virginity testing of women taking part in a demonstration.
The judgment is the first in which a report from an international NGO was admitted as proof of the existence of an administrative decision based on which the military forces conducted compulsory virginity testing.
Finally, the judgment is considered a landmark decision because it addressed the role of military forces during civil unrest and during the absence of civic police, and stressed the obligation of military forces – while doing civic tasks – to respect the laws and constitution and not to exceed the limits the law imposes.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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