The ECOWAS Court's ruling is problematic

The fact is that Senegalese are fond of what is called "palaver" in the country of Baoulés and other Betes. These are debates where clash of experts, political propaganda and discussions of '' fountain terminal '' or '' wax sa xalaat ''. With its lot of verbal excesses and invectives, no warning or warning of goodwill or religious figures, seems to slow down, let alone reverse the trend. The Sheikh and famous lecturer Moustapha Sylla of the village of Taïba, commune of Marsassoum, in the department of Sédhiou, was indignant to note that it is only when a public personality (political, religious or financial) is implicated by the justice that we hear clamor, as if it never worked before.

The decision of the ECOWAS Court of Justice in the case of Khalifa Sall et al. C / The State of Senegal occupies the forefront of the news as if it were a first that Senegal as almost all the member countries of this community are dragged before this jurisdiction and even sentenced. Despite the abundance of case law from the Community Courts in Africa, Europe and all over the world, this decision is subject to extraordinary media coverage and unreasonable exaggeration of its real significance. This is due to a misunderstanding of the scope of the Court's jurisdiction which it is useful to raise, before reviewing the points of my "dissenting opinion", to use a term used in the International Court of Justice. Justice (ICJ) of the Hague

THE CONTENTIOUS COMPETENCE OF THE COURT

In its decision on the Khalifa Sall et al. Case, the Court emphasized with reference to the Community texts and its settled case-law, its incompetence to review the decisions of the national courts, claiming neither a Court of Appeal nor a Court of Cassation of national jurisdictions. However, and this deserves to be welcomed, the Court rejected the argument of the State of Senegal to dismiss its jurisdiction on the grounds that the Indictment Division ruled that the minutes of hearings of the judicial police officers elaborated without the presence of the councils of the mis en cause in the case of the cash advance of the mayor of Dakar. The Court rightly pointed out that it does not consider the decision of the indictments division validating the said PV, but that it rules on human rights, and in this case, on the right to advice at the first inquiry and throughout the proceedings, which is in keeping with its status.

THE POINTS WHICH POSE PROBLEM IN THE JUDGMENT

– The arbitrary character of the detention of Mr. Khalifa Sall in the period between the proclamation by the Constitutional Council the results of the parliamentary elections and the lifting of its parliamentary immunity. The reading of the Court's reasons has reinforced my conviction of a wrong assessment of the rights attached to this immunity. In fact, the Court referred to Article 51 of the Organic Law on the Rules of Procedure of the National Assembly of Senegal, limiting itself to its second sentence, according to which "The Member is covered by parliamentary immunity from beginning of his mandate which takes effect from the proclamation of the results of the legislative election by the Constitutional Council. "And completely forgetting the continuation which is relative to the case of crime or crime which concerns precisely Mr Khalifa Sall. The Court confused two situations: that of the Member in the performance of his duties and that of the Member who committed a crime or an offense. The simple questions the court should ask are: how is the MP immune? In which situations and against what measures (coercive) the deputy is exempted?

The answers are in this article 51 which textually repeats Article 61 of the Constitution that the Court of ECOWAS mentions between parentheses: paragraph 2 states, "No member of parliament may, during the sessions, be arrested or prosecuted in criminal or tortious matters, with the permission of the National Assembly". I have explained elsewhere, the arrest and prosecution are the only two (not detention) that are inapplicable to the deputy in case of crime or offense except waiver of immunity. This (serious) omission necessarily distorts one's judgment.

– On the right to counsel: the Indictment Division ruled the verdicts valid because the new article 55 of the Code of Criminal Procedure (CPP) of Senegal does not make the presence obligatory of the lawyer in case of prolongation of the custody. Khalifa Sall has never been in this situation. The ECOWAS Court did not have jurisdiction to assess the indictment division's judgment, and considers that the police hearing of Khalifa without the presence of a lawyer constitutes a violation of this right and beyond, to a fair trial. Strangely the Court quotes this new article 55 of the CPP in its provisions on this presence of the lawyer and the obligatory mention in the PV under penalty of its nullity while silent those relating to the stage of the investigation where this presence is imperative. 19659002]
– On the presumption of innocence: the Court bases the violation of this right on the statements of the Public Prosecutor at a press briefing, retaining that "the remarks of the Public Prosecutor tend simply to make the public believe that there has been removal of public funds using false documents while no court decision attests yet ". This reasoning seems to me to be erroneous for the following reasons:

o the presumption of innocence consists in not imputing (declaring an offender) a delict to someone until a final judicial decision attests. However, the Prosecutor has only recounted the facts (emphasis added) of the case that the Court reports "… there is subtraction of public funds with false documents ..", and that "the case of the cash advance is nothing else (no political basis) that the justification of a '' amount of one billion eight hundred million that we took the funds of the mayor of Dakar on the basis false documents "(IV-30).

o the Court, failing to report the words explicitly accusing (I underline) Khalifa Sall et al., Was obviously content to replace the "on" of the prosecutor by the name of Khalifa Sall in arguing that "the Public Prosecutor implicitly implied to the public that Mr. Khalifa Sall was guilty". In doing so, the Court has made a purely subjective demonstration (of public understanding), a trial of intent to the Prosecutor, whereas this will was explicitly declined during the press conference as a demonstration that the facts of the case prosecution was not of a political nature.

o It is up to the Prosecutor to establish the facts of the case (the false invoices and their use to obtain public funds) and to prove at the hearing. The court decision is in the accountability of these facts to the mis en cause. It must be recognized here that the defense on this point, posed by the lawyers of the State of Senegal (right to information of the citizens) is really light.

– On the right to a fair trial: the Court found that it had been infringed on the basis of the following findings: violation of the right to counsel, the presumption of innocence and the investigating judge's failure to comply with the time limit for appeal against his orders, one on the rejection of Khalifa Sall's bail offer and the other on the refusal of the request for a hearing of witnesses and the use of an expert. What seems strange here is that the Court considers that "the actions of the investigating judge constitute a serious infringement of the rights of the defense and of the right to a fair trial" by reconsidering his rejection of the two requests of the applicants, whereas it has already held that it "does not constitute, in itself, a violation of their rights in this respect" (IV-40). In all cases, these violations are "catch-up" in the appeal trial, which is a resumption of the trial that all parties considered unsatisfactory.

This leads us to examine the implementation by the State Senegal, of this decision which imposes itself on him

THE EXECUTION OF THE DECISION OF THE COURT

The ECOWAS Court of Justice decides in the first and last resort, the cases of violation of the human rights which it are submitted by the states and citizens of the member countries of the subregional organization. Its case law confirms compliance with the principle of subsidiarity shared by all Community jurisdictions, in particular the European Court of Human Rights (ECHR) in Strasbourg, to which it often refers. Each of them regularly reaffirms its commitment to this principle according to which it "can not be a substitute for the competent national authorities" (ECHR-Austin judgment), that it does not constitute a Court of Appeal or a Court of Cassation for the national courts. This is to say that their decisions are by no means binding on the national courts. The French Court of Cassation had specified that "a judgment of conviction of the European Court if it allows the one who claims to ask for compensation, does not affect the validity of proceedings under domestic law" 5 Crim.3 February 1993, Kemmache).

It is in the same sense that the Court of ECOWAS seems to be inscribing itself when it "estimates that the amount of thirty-five million (35,000,000) CFA francs would be a fair compensation for damages. undergone; "The doctrine goes in the same direction, considering that the decisions of these jurisdictions are only declaratory and leave the State free to execute them. Three modalities are noted in the practice of the Member States:

– Adapting their legislation to the new reading made by the Community Court in a decision in application of the Community texts and other international instruments of human rights. 'man. It is the primary role of these jurisdictions to pave the way for the progress of Community texts and practices in the protection of human rights, because it is recognized that the judge goes faster than the legislator in this field. . In this regard, the new article 55 of the Senegalese CPP which introduced the right to the assistance of a lawyer but at the stage of the extension of the custody can lead the legislator to modify it to do as in France, with the law of April 14, 2011, which prescribes the presence of the lawyer at the beginning of police custody.

– To repair the prejudice suffered by the applicant. The State of Senegal must pay the sum awarded to the claimants in compensation for all damages resulting from the violation of the rights retained.

It is in this sense that the words of the Prosecutor General Lansana Diaby must be understood when he says that the State of Senegal can not ignore the decisions of the Court. The appeal judge, contrary to many comments, is not bound by this decision. However, he may:

– take into account certain aspects of the decision, inter alia, to provide the applicants with a fair trial this time.

– rule on certain irregularities, namely the validity of police reports and the rejection of the request for the hearing of a witness and an expert report. My opinion expressed above goes in the direction of the validity of the PV. If the opinion of the Court of Appeal has another opinion, the minutes can be annulled but since they have only information value at the hearing, their cancellation will have no impact on the conduct of the trial. . As to the rejection of the requests for hearings and expert appraisals, the Court will certainly find that the ECOWAS Court has already held that this rejection was not "unreasonable".

The justice of our country is far from being the worst of the continent. Our magistrates have, since our accession to independence, proved their expertise and their probity on the international level. I end by paraphrasing Judge Teliko, president of the UMS, known for his commitment to strengthening the independence of the judiciary, quoting Balzac, warned citizens against the mistrust of justice of the Republic, sole guarantor of our freedoms to all. She needs serenity to say the right. Inopportune press conferences on cases pending before the courts are unwelcome because they only disturb the mind of ordinary citizens.