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– a main petition to request the condemnation of the State of Senegal for violations of rights to:
the assistance of a lawyer from the time of the interpellation,
– the presumption of innocence
– to the fair trial
– and for arbitrary detention
At the same time, the defense filed: [19659002] – a motion to apply for a judgment in an emergency procedure;
– and lastly, a request for the indication of provisional measures to stay the applicants' current trial and their immediate release, pending the intervention of a final decision on the main application;
The Court found that there was not sufficient urgency, because the case began in March 2017 while its referral occurred in December 2017. That is almost nine months later.
In view of the absence of urgency, the Court rejected the request for examination of the application for the accelerated procedure and the request for the indication of the provisional measures sought.
The Court therefore remitted the applicants to await its final decision.
It finally fell on June 29, 2018, and condemned the State of Senegal for the violation of the rights mentioned above and to pay 35 million to the 6 applicants.
What are the legal consequences?
The judgment of the Court leads to 03 consequences of law for Senegal:
1 – the obligation for the State to pay the sum of 35 million CFA francs to the six applicants. This obligation rests with the executive, not the judiciary.
And it's not done yet.
2 – the obligation to terminate the internationally wrongful acts identified by the Court;
However, the unfairness of the trial and the legal effects of the absence of counsel from the time of the interpellation, to mention only these two breaches of international instruments, do not cease with the payment of pecuniary compensation.
They can only cease by the consequences of law that the Court will have drawn from it, in the re-examination of the case namely the annulment of the vitiated acts.
In this case by the annulment of the entire proceedings.
Accordingly, it follows that the judgment does indeed affect the proceedings in progress.
To affirm the opposite is to support a denial of justice.
3- the obligation to avoid repetition of the unlawful.
It is the responsibility of the state authorities, namely the Minister of Justice, the First President of the Supreme Court, the Attorneys General and the Republic, to instruct magistrates and investigators to avoid, in the future , the failings for which the State of Senegal has been condemned.
Viola the three cumulative obligations that the execution of the judgment imposes on Senegal.
Finally, it should be recalled that the ECOWAS Court generally applies the doctrine of the national margin of appreciation.
In other words, his principle is to let the internal organs of the state condemned, to implement his decision.
The court indicates a decision most often only exceptionally.
Especially when there is urgency, that is to say when the absence of a decision on his part is likely to entail an irreparable consequence.
It was so during the arrest of President Tandja Mamadou of Niger, where the court ordered his immediate release.
Indeed, it was difficult or impossible to find a prosecutor or a judge, in the internal order, to release a president overthrown by a coup d'etat.
Already it is impossible to find to free a Mayor, in a civil regime supposed to be a state of law, like that of Senegal.
The court also takes individual measures that is to say grants to victims, pecuniary reparations, when the internal system, is not able to repair their injury.
In the case before us, the criminal judge is not in a position to condemn the State to make reparation for the unlawful acts identified by the court and for which the accused-victims have suffered.
In view of what has been said, there is a high risk of the occurrence of miscarriage of justice and the perpetuation of the illicit, in the so-called advance case of the city of Dakar.
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