[ad_1]
On the invalidity of the procedure and the immediate release of Khalifa Ababacar and others. [19659004] Whereas by written conclusions dated July 11, 2018, master Francis Sarr, consulting Ababacar Khalifa Sall seized this Court a request for the annulment of the procedure and the immediate release of his client to whom the Court of Justice of the Economic Community of States of West Africa which will be called ECOWAS issued a decision in the proceedings initiated against him by the State of Senegal and of which is as follows: [19659005] "Finds that the right to counsel, the right to the presumption of innocence and the right to a fair trial of the applicants have been violated
also said that the detention of Khalifa Sall between Ababacar da proclaiming to you the results of parliamentary elections by the Constitutional Council, that is to say 14 August 2017 and the lifting of his parliamentary immunity, ie November 25, 2017 is arbitrary;
said that the responsibility State of Senegal, through its police and judicial authorities committed;.
condemns the defendant to pay the applicants the sum of thirty-five million (35,000,000) CFA francs in compensation [19659005] Dismisses the applicants surplus of their claims
Met the costs borne by the State of Senegal. "
On the form
Considering that during deliberations, Master Francis Sarr Khalifa board Ababacar forwarded to the Court, by correspondence dated 16 July 2018, around the ruling on June 29 2018 by the ECOWAS Court of Justice on the basis of which the parties have based their additional scriptures regularly admitted;
Considering however that by writings dated July 17, 2018, master Francis Sarr took again the Court a match in which he requested the reopening of the debate on the pretext that there prosecutor general has changed his submissions requesting dismissal of the release request Khalifa Ababacar;
Whereas the Court has found to have elements appreciation sufficient since July 11, 2018, date of the adjourned for deliberation of the case it is not necessary to fold its deliberations to simply discuss e the question of whether the change in position of the prosecution if indeed there can be considered a "new application";
Whereas it is, holding other elements developed by master in his Sarr correspondence of 17 July 2018, saying there is no reason to reopen the debate;
What masters Kassim Toure and Youssoufa CAMARA for their part, and following advice Ababacar Khalifa Sall, respectively pleaded the same requests for on behalf of Mbaye Toure and Yaya BODIAN;
Whereas the advice of Khalifa Ababacar SALL have in their subsequent pleadings, point out in support of their application for annulment and immediate release of the decision of the court of justice ECOWAS is binding, final and binding, under Articles 6 and 15 of the revised ECOWAS Treaty and the Protocol referenced 19 a / P1 / 7/91 and that this decision s' requires the Tribunal's appeals court for all that was considered by the ECOWAS Court of Justice;
They add, moreover, that the findings that established the violation of his rights to benefit a fair trial, of counsel and failure to respect the immunity of Ababacar Khalifa SALL can not be, according to them, questioned by the judges of the court of appeal; [19659005] them consider that any judgment rendered in breach of these rights mentioned above is definitely irregular and unfair and as such should be canceled;
that these irregularities and violations that can not be regularized ex post, they seek the annulment the procedure and the immediate release of Khalifa Sall result of these procedural irregularities;
What masters Khassime TOURE and Youssoufa CAMARA pleaded the same means and requests for respective account Mbaye Toure and Yaya BODIAN;
Considering that the lawyers of the State of Senegal concluded however the rejection of said request, arguing that the ECOWAS Court of Justice dismissed the applicants' request immediate release and immediate cessation of proceedings and can not request the benefit of such measures on the basis of the judgment of the Community court which has not ordered; they argue that the Community Court noted that the immunity was lifted Khalifa Sall, contrary to the applicants, since it founded the arbitrary detention of the above-named sequentially in the period between the announcement of the results and the actual lifting of his immunity
They argue that the demands are even more unjustified as the Community court has not ordered the release of office Khalifa Sall and his co-defendants, while in other cases where the situation warrants like the Tandjan proceedings against Niger State, that court has to order the State of Niger to release the above named;
Whereas the advice of the State of Senegal have also noted that in law there is no mechanism to implement the Court's decision and cancel the proceedings on the basis of the judgment all Egue of the court of justice, especially as the Community Court is not an appellate court and it is not intended to review the decisions of the courts of Member States;
Whether finally pleaded that the release sought by the defendants tips can be appreciated in terms of the provisions of Articles 140 and following of the CCP;
Considering that the Attorney General required to respect the rejection of applications the grounds that the requests of the defendants are based only on the ECOWAS decision which however never ordered the release of the accused or declared the invalidity of the proceeding taken,
Considering that the lawyers of the City of Dakar were not specific developments on the said requests;
on this, the Court
the scope of the judgment of the ECOWAS Court of Justice
Whereas This court hears first of all noted that the Community legal order ECOWAS is characterized by a competent judicial monism among others, to know first and last resort for matters of interpretation and unification of Community law , preliminary rulings that may be made by the institutions of the Member States and lashings by nationals of Member States on the violations of human rights;
that the Court of Justice and makes in the areas of its jurisdiction, pursuant to the provisions of Article 15-4 of the revised Treaty, binding judgments against Member States, institutions of the community, natural and legal persons;
Whether the binding force of decisions Community justice was forcefully affirmed in the case against Jerry Ugokwe Federal Republic of Nigeria, decided on 7 Octob re 2005, when the Court held that the obligation to execute decisions rests with national courts of Member States built an integrated community order without imply the existence of a vertical relationship between the Community Court and national courts Member States
Considering, however, should be noted that the binding and enforceable attached to the judgments of the Court of Justice, essential to the penetration of Community law in the national legal systems, does not allow for much the Community court to substitute for national courts or to compete on their own ground, which is that the interpretation of national legislation as has been asserted relevance in an obiter dictum;
that it is therefore undeniable that the judgment of 29 June 2018 in the dispute between Khalifa and other Ababacar against Sta temen t Senegal, clothed with the authority of res judicata, pursuant to the provisions of the Revised Treaty and the Protocol on the Court of Justice because finding human rights violations to the detriment of its beneficiaries, produces binding effects accordance with the provisions of Article 15-4 of the revised Treaty of ECOWAS;
Considering that in addition to its mandatory nature, the judgment of 29 June 2018 that it includes the payment of money Khalifa Ababacar and others for a total of thirty five million (35 000 O00 fCFA) that the Court has judged to be fair compensation for the damage caused to them, is immediately enforceable by the State of Senegal, party to the dispute pursuant to Article 24 of the Protocol, in that it has the responsibility of succumbing pecuniary obligation;
Considering that it is under this prism that we must read the decision of the Court of ECOWAS Justice, in addition to monetary obligations, challenges the State of Senegal, party to the dispute on the need to raise its legislation in the relevant international instruments whose violation is found but not self-executing by Judge national criminal;
Considering that this position is consistent with the clearly expressed by the Community Court in Baldino Saliou case against Burkina Faso, ECW / CCJ / JUD / 13/12 of 31 October 2012, p. 59, during which she said that "when examining a matter that relates to a judicial proceeding in a Member State, its decisions are not intended to interfere with the decisions of the national courts would called on to take. The Court may order measures whose implementation would weaken or destroy the authority and independence of the national judge in the conduct of business before it ";
That is because the Court Community is not a Supreme Court with a power of cassation, reformation or cancellation of decisions of national courts;
that this constant position of the Community Court was also recalled in the business Moussa Keita and others against the Republic of Mali of 22 March 2007, Abdoulaye Balde and others against Republic of Senegal on 22 February 2013 and El Hadji Hammami against Federal Republic of Nigeria on 28 June 2017, [19659005] it follows from the above that this Court has sole jurisdiction, pursuant to the rules on judicial organization and the Senegalese criminal proceedings to examine the g riefs brought against the decision of 30 March 2018 and assess the merits of freedom solicited on behalf of Khalifa Ababacar, Mbaye Toure and Yaya Bodian;
On the invalidity of the procedure and the immediate release or freedom of office as a result of the judgment of 29 June 2018 the Court of Justice of ECOWAS pleaded by Khalifa Sall and others
Whereas it should be recalled that the judgments of the Court of Justice of ECOWAS impacting no pending proceedings before the national courts of the Member States as was amply demonstrated above, it is necessary to reject invalid applications and immediate release or statutory release made by the defendants; (Source: IGFM) [19659043] (function (d, s, id) {
var js, fjs = d.getElementsByTagName (s) [0];
if (d.getElementById (id)) return;
js = d.createElement (s); js.id = id;
js.src = "http://connect.facebook.net/en_US/sdk.js#xfbml=1&version=v2.4";
fjs.parentNode.insertBefore (js, fjs);
} (document, 'script', 'facebook-jssdk'));
[ad_2]
Source link
