OULD DAH v. FRANCE
Inadmissible
The applicant, Mr Ely Ould Dah, is a Mauritanian national, who was born in 1962. He was represented before the Court by Mrs C. Waquet, a member of the Conseil d’Etat and Court of Cassation Bar. The facts of the case, as submitted by the parties, may be summarised as follows. Between November 1990 and March 1991 clashes occurred between Mauritanians of Arab-Berber origin and others belonging to black African ethnic groups. Some servicemen from these ethnic groups, accused of mounting a coup d’état, were taken prisoner. Some of them were subjected to acts of torture or barbarity by their guards, among whom was the applicant, an intelligence officer at the Nouakchott army headquarters in Mauritania, holding the rank of lieutenant. On 14 June 1993 an amnesty law was passed in favour of members of the armed forces and the security forces who had committed offences between 1 January 1989 and 18 April 1992 in connection with the events giving rise to armed conflict and acts of violence. By virtue of that law, no proceedings were brought against the applicant for offences committed against prisoners. In August 1998 the applicant, who was by then captain of the Mauritanian army, arrived in France for a training course at the Montpellier Infantry Academy. On 8 June 1999 the International Federation for Human Rights (Féderation Internationale des Ligues des Droits de l’Homme) and the Human Rights League (Ligue des Droits de l’Homme) lodged a criminal complaint against the applicant, together with an application to join the proceedings as civil parties, for acts of torture allegedly committed by him in Mauritania in 1990 and 1991. These criminal proceedings were based on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “the United Nations Convention against Torture”), adopted by the General Assembly of the United Nations on 10 December 1984, which was ratified by France and came into force on 26 June 1987. The applicant was arrested on 1 July 1999. On 2 July 1999 an investigation was begun and the applicant was charged with committing acts of torture or barbarity. He was placed in pre-trial detention until 28 September 1999, before being released on bail. The applicant absconded on an unknown date. A warrant was issued for his arrest in April 2000. On 25 May 2001 the investigating judge committed the applicant for trial on charges of committing, and aiding and abetting acts of torture and barbarity. The judge based the indictment on the witness evidence of nine former servicemen and the widow of a tenth serviceman. Two of the witnesses, who had taken refuge in France, had been confronted with the applicant during the investigation, while the others had provided written statements. The applicant appealed against the committal order. In a judgment of 8 November 2001, the Investigation Division of the Montpellier Court of Appeal declared the applicant’s appeal inadmissible on the ground that it had been lodged too late. The applicant appealed on points of law. On 6 March 2002 the Court of Cassation quashed the Investigation Division’s judgment and remitted the case to the Nîmes Court of Appeal. In a judgment of 8 July 2002, the Investigation Division of the Nîmes Court of Appeal upheld the order of the investigating judge and committed the applicant for trial before the Gard Assize Court. It found that the condition provided for in Article 1 of the United Nations Convention against Torture was satisfied, as the acts in question had been carried out in the context of an “ethnic purge” and a massive campaign of repression conducted by the Mauritanian government in power at the time, and that the applicant had acknowledged having acted in an official capacity, within the meaning of the Convention provisions, as an intelligence officer and member of the investigating committee. The Investigation Division also considered that the provisions of Articles 689, 689-1 and 689-2 of the Code of Criminal Procedure and Article 7 § 2 of the United Nations Convention against Torture vested jurisdiction in the French courts to try the case, apply French law and override an amnesty law passed by a foreign State where application of that law would result in a breach of France’s international obligations and render the principle of universal jurisdiction totally ineffective. As the principle of lawfulness did not preclude an offence from being defined in a treaty or an international agreement, the latter prevailing over the law, it held that while “acts of torture” had, since the new Criminal Code, been classified as a “separate crime” defined and punishable under Articles 222-1 et seq. of the Criminal Code, such acts had previously constituted an aggravating circumstance in respect of certain offences, and particularly the crime of aggravated assault provided for in Articles 303 and 309 of the Criminal Code, now repealed, which was a crime punishable by “five to ten years’ imprisonment”. The Investigation Division concluded that the offence with which the applicant was charged – which constituted a crime – was not time-barred and that the only limit in terms of punishment was that only those penalties applicable at the relevant time could be imposed, unless a more lenient criminal law had since been passed. In a judgment of 23 October 2002, the Court of Cassation dismissed an appeal on points of law lodged by the applicant, finding that the Investigation Division had justified its decision in respect of all the points raised by the applicant. As the applicant had absconded, a summons to appear before the Assize Court was served at the public prosecutor’s office on 13 May 2005. On 30 June 2005 the trial was held before the Gard Assize Court. Counsel for the accused was heard in the latter’s absence. On 1 July 2005 the Assize Court delivered two judgments. In the first one it sentenced the applicant to ten years’ imprisonment for intentionally subjecting certain persons to acts of torture and barbarity and, in addition, causing such acts to be committed against other detainees by abuse of his official position or by giving instructions to servicemen to commit such acts. The Assize Court referred, inter alia, to Articles 303 and 309 of the former Criminal Code, Article 222-1 of the Criminal Code, and to the United Nations Convention against Torture. In the second judgment it awarded damages to the various civil parties. “Any criminals, irrespective of the type of offence they have committed, who use torture or commit acts of barbarity in the execution of their crime shall be punished as being guilty of murder. Anyone who, in perpetrating their offence, uses torture or commits acts of barbarity shall be punished by five to ten years’ imprisonment.” “Anyone who has intentionally wounded another or committed violence or assault resulting in sickness or total unfitness for work for more than eight days shall be liable to between two months’ and two years’ imprisonment and to a fine of between 500 and 20,000 francs or to one of those penalties alone. ...” “Anyone who subjects another to torture or to acts of barbarity shall be liable to fifteen years’ imprisonment. The first two paragraphs of Article 132-23 relating to the minimum term of imprisonment shall apply to the offence provided for in the present Article.” The circular of 14 May 1993, which contains commentaries on the new Criminal Code and the provisions of the Law of 16 December 1992, specifies as follows: “[t]he expression torture and acts of barbarity shall retain the meaning currently ascribed to it in the case-law where such acts are referred to as an aggravating circumstance.” Both the crime instituted by the law and the former aggravating circumstance of torture or acts of barbarity presuppose the establishment of an actus reus, consisting of the commission of one or more acts of exceptional seriousness which go beyond mere violence and cause the victim severe pain or suffering, and mens rea, consisting of the intention to deny a person their human dignity (Indictment Division of the Lyons Court of Appeal, judgment of 19 January 1996, commentary in Recueil Dalloz, 1996, p. 258, and cited in Article 222-1 of Code pénal (“Criminal Code”), ed. Litec). According to the case-law of the Court of Cassation, the new provisions relating to torture and acts of barbarity ensure continuity of the definition of the offence as expressed in the former Criminal Code (Bull. crim. 11 May 2005, Bull. no. 146, appeal no. 05-81331: a court which commits an accused for trial before the Assize Court on the ground that Article 222-3 § 2 of the new Criminal Code – making it a crime to commit torture or acts of barbarity concurrently with a sexual offence – ensures continuity of the offence provided for in former Article 333-1, introduced by the Law of 23 December 1980 and making it an offence to commit indecent assault accompanied by torture or acts of barbarity, makes a proper application of successive criminal laws). The circular of 14 May 1993 also specifies that the provisions of the new Criminal Code are of much broader application than those of the United Nations Convention against Torture, the latter applying only to acts perpetrated by public officials for specific motives. It also indicates that the new definition remedies substantial loopholes in the punishment of the crime by allowing not only the degree of injury suffered by the victim to be taken into account, but also the seriousness of the violent act in question, irrespective of its consequences. In particular, it remedies the disadvantages arising from the inability to punish attempted wilful assault under the former system. “An accused who fails to attend the opening of his or her trial without a valid excuse shall be tried in absentia in accordance with the provisions of the present chapter. The same shall apply where the accused is recorded absent during the proceedings and it is not possible to stay the proceedings pending his or her return. ...” “An accused who is convicted in absentia cannot appeal.” “Perpetrators of or accomplices to offences committed outside the territory of the Republic may be prosecuted and tried by the French courts either where French law is applicable under the provisions of Book I of the Criminal Code or another statute, or where an international convention confers jurisdiction on the French courts to deal with the offence.” “Under the international conventions referred to in the following Articles, anyone who is guilty of having committed any of the offences listed in these provisions outside the territory of the Republic and is present in France may be prosecuted and tried by the French courts. The provisions of the present Article shall apply to attempts to commit these offences, whenever an attempt is punishable.” “For the implementation of the [United Nations] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10 December 1984, anyone guilty of committing torture within the meaning of Article 1 of the Convention may be prosecuted and tried in accordance with the provisions of Article 689-1.” Article 1 “1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This Article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.” Article 2 “1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.” Article 4 “1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.” Article 5 “1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 4 in the following cases: (a) when the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) when the alleged offender is a national of that State; (c) when the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.” Article 6 “1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in Article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted. 2. Such State shall immediately make a preliminary inquiry into the facts. 3. Any person in custody pursuant to paragraph 1 of this Article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides. 4. When a State, pursuant to this Article, has taken a person into custody, it shall immediately notify the States referred to in Article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this Article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.” Article 7 “1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall in the cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. 2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in Article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in Article 5, paragraph 1. 3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in Article 4 shall be guaranteed fair treatment at all stages of the proceedings.” Article 5 “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 3 [common to the four Geneva Conventions] “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: 1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; ... (c) outrages upon personal dignity, in particular humiliating and degrading treatment; ...” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” The United Nations Human Rights Committee stated in 1992 in its General Comment No. 20 on Article 7 of the International Covenant that it had noted that some States had granted amnesty in respect of acts of torture, while stating that “amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible” (Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 (1994), p. 30). “1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.” Article 4 “... 2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever: (a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; ...” “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment, shall be prohibited.” “1. Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible where: (a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) the person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under Article 20, paragraph 3; (d) the case is not of sufficient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognised by international law, whether one or more of the following exist, as applicable: (a) the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5; (b) there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” In a judgment of 14 February 2002 (Case concerning the Arrest Warrant of 11 April 2000, Democratic Republic of the Congo v. Belgium), the International Court of Justice observed that the Democratic Republic of the Congo was no longer invoking the matter of Belgium’s claim to exercise universal jurisdiction and decided to confine its examination to the issue of respect for the immunities which the Congolese Minister for Foreign Affairs enjoyed in the exercise of his functions. The question of the Belgian judge’s powers and, accordingly, the exercise of universal jurisdiction was nonetheless addressed by certain judges in separate opinions annexed to the judgment (particularly, in the above-mentioned case, with regard to the universal jurisdiction by default thus exercised by Belgium). In the case of Prosecutor v. Anto Furundzija (judgment of 10 December 1998 (IT-95-17/1-T)), the International Criminal Tribunal for the former Yugoslavia held as follows: “153. Because of the importance of the values it protects, this principle [the principle of the prohibition against torture] has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force. 154. Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate. 155. ... It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators ... 156. Furthermore, at the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. ...” Similar findings can be found in the judgments Prosecutor v. Mucić and Others (16 November 1998, IT-96-21-T, § 454) and Prosecutor v. Kunarac (22 February 2001, IT-96-23-T and IT-96-23/1, § 466).