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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 17 May 2006,
Having concluded its consideration of communication No. 181/2001, submitted
to the Committee against Torture by Suleymane Guengueng et al. under article
22 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
Having taken into account all the information made available to it by the
complainants and the State party,
Adopts the following:
Decision of the Committee Against Torture Under Article 22 of the Convention
[FN1]
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[FN1] In accordance with rule 103 of the Committee's rules of procedure, Mr.
Guibril Camara did not take part in the Committee's deliberations on this
case.
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1.1 The complainants are Suleymane Guengueng, Zakaria Fadoul Khidir, Issac
Haroun, Younous Mahadjir, Valentin Neatobet Bidi, Ramadane Souleymane and
Samuel Togoto Lamaye (hereinafter "the complainants"), all of Chadian
nationality and living in Chad. They claim to be victims of a violation by
Senegal of article 5, paragraph 2, and article 7 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(hereinafter "the Convention").
1.2 Senegal ratified the Convention on 21 August 1986 and made the
declaration under article 22 of the Convention on 16 October 1996.
1.3 In accordance with article 22, paragraph 3, of the Convention, the
Committee brought the communication to the attention of the State party on
20 April 2001. At the same time, the Committee, acting under article 108,
paragraph 9, of its rules of procedure, requested the State party, as an
interim measure, not to expel Hiss�ne Habr� and to take all necessary
measures to prevent him from leaving the territory other than under an
extradition procedure. The State party acceded to this request.
The Facts as Submitted by the Complainants
2.1 Between 1982 and 1990, during which period Hiss�ne Habr� was President
of Chad, the complainants were purportedly tortured by agents of the Chadian
State answerable directly to President Hiss�ne Habr�. The acts of torture
committed during this period formed the subject of a report by the National
Commission of Inquiry established by the Chadian Ministry of Justice;
according to that report 40,000 political murders and systematic acts of
torture were committed by the Habr� regime.
2.2 The complainants have submitted to the Committee a detailed description
of the torture and other forms of ill-treatment that they claim to have
suffered. Moreover, relatives of two of them, Valentin Neatobet Bidi and
Ramadane Souleymane, have disappeared: on the basis of developments in
international law and the case law of various international bodies, the
complainants consider this equivalent to torture and other inhuman and
degrading treatment, both for the disappeared persons and, in particular,
for their relations.
2.3 After being ousted by the current President of Chad, Idriss D�by, in
December 1990, Hiss�ne Habr� took refuge in Senegal, where he has since
resided. In January 2000, the complainants lodged a complaint against him
with an examining magistrate in Dakar. On 3 February 2000, the examining
magistrate charged Hiss�ne Habr� with being an accomplice to acts of
torture, placed him under house arrest and opened an inquiry against a
person or persons unknown for crimes against humanity.
2.4 On 18 February 2000, Hiss�ne Habr� applied to the Indictment Division of
the Dakar Court of Appeal for the charge against him to be dismissed. The
complainants consider that, thereafter, political pressure was brought to
bear to influence the course of the proceedings. They allege in particular
that, following this application, the examining magistrate who had indicted
Hiss�ne Habr� was transferred from his position by the Supreme Council of
Justice and that the President of the Indictment Division before which the
appeal of Hiss�ne Habr� was pending was transferred to the Council of State.
2.5 On 4 July 2000, the Indictment Division dismissed the charge against
Hiss�ne Habr� and the related proceedings on the grounds of lack of
jurisdiction, affirming that "Senegalese courts cannot take cognizance of
acts of torture committed by a foreigner outside Senegalese territory,
regardless of the nationality of the victims: the wording of article 669 of
the Code of Criminal Procedure excludes any such jurisdiction." Following
this ruling, the Special Rapporteurs on the question of torture and on the
independence of judges and lawyers of the United Nations Commission on Human
Rights expressed their concerns in a press release dated 2 August 2000.[FN2]
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[FN2] According to the press release, "[t]he Special Rapporteur on the
independence of judges and lawyers, Mr. Dato Param Cumaraswamy, and the
Special Rapporteur on the question of torture, Sir Nigel Rodley, have
expressed their concern to the Government of Senegal over the circumstances
surrounding the recent dismissal of charges against Hiss�ne Habr�, the
former President of Chad. [...] The Special Rapporteurs reminded the
Government of Senegal of its obligations under the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to
which it is party. They also draw its attention to the resolution adopted
this year by the Commission on Human Rights on the question of torture
(resolution 2000/43), in which the Commission stressed the general
responsibility of all States to examine all allegations of torture and to
ensure that those who encourage, order, tolerate or perpetrate such acts be
held responsible and severely punished".
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2.6 On 7 July 2000, the complainants filed an appeal with Senegal's Court of
Cassation against the ruling of the Indictment Division, calling for the
proceedings against Hiss�ne Habr� to be reopened. They maintained that the
ruling of the Indictment Division was contrary to the Convention against
Torture and that a domestic law could not be invoked to justify failure to
apply the Convention.
2.7 On 20 March 2001, the Senegalese Court of Cassation confirmed the ruling
of the Indictment Division, stating inter alia that "no procedural text
confers on Senegalese courts a universal jurisdiction to prosecute and
judge, if they are found on the territory of the Republic, presumed
perpetrators of or accomplices in acts [of torture] ... when these acts have
been committed outside Senegal by foreigners; the presence in Senegal of
Hiss�ne Habr� cannot in itself justify the proceedings brought against him".
2.8 On 19 September 2005, after four years of investigation, a Belgian judge
issued an international arrest warrant against Hiss�ne Habr�, charging him
with genocide, crimes against humanity, war crimes, torture and other
serious violations of international humanitarian law. On the same date,
Belgium made an extradition request to Senegal, citing, inter alia, the
Convention against Torture.
2.9 In response to the extradition request, the Senegalese authorities
arrested Hiss�ne Habr� on 15 November 2005.
2.10 On 25 November 2005, the Indictment Division of the Dakar Court of
Appeal stated that it lacked jurisdiction to rule on the extradition
request. Nevertheless, on 26 November, the Senegalese Minister of the
Interior placed Hiss�ne Habr� "at the disposal of the President of the
African Union" and announced that Hiss�ne Habr� would be expelled to Nigeria
within 48 hours. On 27 November, the Senegalese Minister for Foreign Affairs
stated that Hiss�ne Habr� would remain in Senegal and that, following a
discussion between the Presidents of Senegal and Nigeria, it had been agreed
that the case would be brought to the attention of the next Summit of Heads
of State and Government of the African Union, which would be held in
Khartoum on 23 and 24 January 2006.
2.11 At its Sixth Ordinary Session, held on 24 January 2006, the Assembly of
the African Union decided to set up a committee of eminent African jurists,
who would be appointed by the Chairman of the African Union in consultation
with the Chairman of the African Union Commission, to consider all aspects
and implications of the Hiss�ne Habr� case and the possible options for his
trial, and report to the African Union at its next ordinary session in June
2006.
The Complaint
3.1 The complainants allege a violation by Senegal of article 5, paragraph
2, and article 7 of the Convention and seek in this regard various forms of
compensation.
Violation of Article 5, Paragraph 2, of the Convention
3.2 The complainants point out that, in its ruling of 20 March 2001, the
Court of Cassation stated that "article 79 of the Constitution [which
stipulates that international treaties are directly applicable within the
Senegalese legal order and can accordingly be invoked directly before
Senegalese courts] cannot apply when compliance with the Convention requires
prior legislative measures to be taken by Senegal" and "article 669 of the
Code of Criminal Procedure [which enumerates the cases in which proceedings
can be brought against foreigners in Senegal for acts committed abroad] has
not been amended". They also note that, while the State party has adopted
legislation to include the crime of torture in its Criminal Code in
accordance with article 4 of the Convention, it has not adopted any
legislation relating to article 5, paragraph 2, despite the fact that this
provision is the "cornerstone" of the Convention, referring in this
connection to the travaux pr�paratoires.
3.3 Moreover, the complainants point out, whereas the Court of Cassation
states that "the presence in Senegal of Hiss�ne Habr� cannot in itself
justify the proceedings", it is precisely the presence of the offender in
Senegalese territory, that constitutes the basis under article 5 of the
Convention for establishing the jurisdiction of the country concerned.
3.4 The complainants consider that the ruling of the Court of Cassation is
contrary to the main purpose of the Convention and to the assurance given by
the State party to the Committee against Torture, that no internal legal
provision in any way hinders the prosecution of torture offences committed
abroad. [FN3]
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[FN3] See the second periodic report of Senegal to the Committee against
Torture, CAT/C/17/Add.14, para. 42.
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3.5 The complainants note that, irrespective of article 79 of the
Constitution, under which the Convention is directly an integral part of
internal Senegalese legislation, it was incumbent on the authorities of the
State party to take any additional legislative measures necessary to prevent
all ambiguities such as those pointed out by the Court of Cassation.
3.6 The complainants observe that members of the Committee regularly
emphasize the need for States parties to take appropriate legislative
measures to establish universal jurisdiction in cases of torture. During its
consideration of the second periodic report submitted by the State party
under article 19 of the Convention, the Committee underlined the importance
of article 79 of the Senegalese Constitution, stressing that it should be
implemented unreservedly. FN4 The State party had, moreover, expressly
affirmed in its final statement that it "intended to honour its commitments,
in the light of the Committee's conclusions and in view of the primacy of
international law over internal law". [FN5]
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[FN4] See the concluding observations of the Committee against Torture,
A/51/44, para. 117.
[FN5] CAT/C/SR.249, para. 44.
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3.7 The complainants therefore consider that the State party's failure to
make its legislation comply with article 5, paragraph 2, of the Convention
constitutes a violation of this provision.
Violation of Article 7 of the Convention
3.8 On the basis of several concordant opinions expressed by members of the
British House of Lords in the Pinochet case, the complainants argue that the
essential aim of the Convention is to ensure that no one suspected of
torture can evade justice simply by moving to another country and that
article 7 is precisely the expression of the principle aut dedere aut punire,
which not only allows but obliges any State party to the Convention to
declare it has jurisdiction over torture, wherever committed. Similarly, the
complainants refer to Cherif Bassiouni and Edward Wise, who maintain that
article 7 expresses the principle aut dedere aut judicare. [FN6] They also
cite a legal opinion according to which "the Convention's main
jurisdictional feature is thus that it does not impose a solely legislative
and territorial obligation, in the manner of previous human rights
conventions, drawing as it does on the models of collective security of
Tokyo and The Hague, dominated by the principle of jurisdictional freedom,
aut dedere aut prosequi, as well as by the obligation to prosecute". [FN7]
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[FN6] Cherif Bassiouni and Edward Wise, Aut Dedere Aut Judicare: The Duty to
Extradite or Prosecute in International Law, Martinus Nijhoff Publishers,
1997, p. 159.
[FN7] Marc Henzelin, Le principe de l'universalit� en droit p�nal
international. Droits et obligations pour les Etats de poursuivre et de
juger selon le principe de l'universalit�, Helbing & Lichtenhahn, ed.
Bruylant, Basel-Brussels, 2000, p. 349.
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3.9 The complainants stress that the Committee itself, when considering the
third periodic report of the United Kingdom concerning the Pinochet case,
recommended "initiating criminal proceedings in England, in the event that
the decision is made not to extradite him. This would satisfy the State
party's obligations under articles 4 to 7 of the Convention and article 27
of the Vienna Convention on the Law of Treaties of 1969".[FN8]
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[FN8] Concluding observations of the Committee against Torture, 17 November
1998, A/54/44, para. 77 (f).
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3.10 While in its second periodic report to the Committee it described in
detail the mechanism for implementing article 7 in its territory, the State
party has neither prosecuted nor extradited Hiss�ne Habr�, and this the
complainants consequently regard as a violation of article 7 of the
Convention.
Compensation
3.11 The complainants state that they have been working for over 10 years to
prepare a case against Hiss�ne Habr� and that the latter's presence in the
State party together with the existence of international commitments binding
upon Senegal have been decisive factors in the institution of proceedings
against him. The decision by the authorities of the State party to drop
these proceedings has therefore caused great injury to the complainants, for
which they are entitled to seek compensation.
3.12 In particular, the complainants request the Committee to find that:
- By discontinuing the proceedings against Hiss�ne Habr�, the State party
has violated article 5, paragraph 2, and article 7 of the Convention;
- The State party should take all necessary steps to ensure that Senegalese
legislation complies with the obligations deriving from the above-mentioned
provisions. The complainants note in this connection that, while the
findings of the Committee are only declaratory in character and do not
affect the decisions of the competent national authorities, they also carry
with them "a responsibility on the part of the State to find solutions that
will enable it to take all necessary measures to comply with the
Convention", [FN9] measures that may be political or legislative;
- The State party should either extradite Hiss�ne Habr� or submit the case
to the competent authorities for the institution of criminal proceedings;
- If the State party neither tries nor extradites Hiss�ne Habr�, it should
compensate the complainants for the injury suffered, by virtue inter alia of
article 14 of the Convention. The complainants also consider that, if
necessary, the State party should itself pay this compensation in lieu of
Hiss�ne Habr�, following the principle established by the European Court of
Human Rights in the case of Osman v. the United Kingdom; [FN10]
- The State party should compensate the complainants for the costs they have
incurred in the proceedings in Senegal; and
- Pursuant to article 111, paragraph 5, of the Committee's rules of
procedure, the State party should inform the Committee within 90 days of the
action it has taken in response to the Committee's views.
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[FN9] Communication No. 34/1995 Seid Mortesa v. Switzerland,
CAT/C/18/D/34/1995, para. 11.
[FN10] ECHR/87/1997/871/1083, 28 October 1998.
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The State Party's Observations on Admissibility
4. On 19 June 2001, the State party transmitted to the Committee its
observations on the admissibility of the communication. It maintains that
the communication could be considered by the Committee only if the
complainants were subject to the jurisdiction of Senegal. The torture
referred to by the complainants was suffered by nationals of Chad and is
presumed to have been committed in Chad by a Chadian. The complainants are
not, therefore, subject to the jurisdiction of the State party within the
meaning of article 22, paragraph 1, of the Convention since, under
Senegalese law, in particular article 699 of the Code of Criminal Procedure,
a complaint lodged in Senegal against such acts cannot be dealt with by the
Senegalese courts, whatever the nationality of the victims. The State party
is consequently of the opinion that the communication should be declared
inadmissible.
The Complainants' Comments
5.1 In a letter dated 19 July 2001, the complainants first stress that,
contrary to what is indicated by the State party, the substance of the
alleged violation by Senegal is not the torture they underwent in Chad but
the refusal of the Senegalese courts to act upon the complaint lodged
against Hiss�ne Habr�. The incidents of torture were presented to the
Committee solely for the purpose of describing the background to the
complaints lodged in Senegal.
5.2 The complainants go on to observe that the State party's interpretation
of the expression "subject to its jurisdiction", appearing in article 22 of
the Convention would effectively render any appeal to the Committee on
Torture meaningless.
5.3 In this connection, the complainants point out that article 1 of the
Optional Protocol to the International Covenant on Civil and Political
Rights is drafted in the same terms as article 22 of the Convention and has
on several occasions been discussed by the Human Rights Committee, which has
interpreted the clause in an objective, functional manner: an individual
should be considered subject to the jurisdiction of a State if the alleged
violations result from an action by that State. It matters little whether
the author of the communication is, for example, a national of that State or
resides in its territory. [FN11] In the Ibrahima Gueye et al. v. France
case, the complainants, of Senegalese nationality and living in Senegal,
were found by the Human Rights Committee to be subject to French
jurisdiction in the matter of pensions payable to retired soldiers of
Senegalese nationality who had served in the French army prior to the
independence of Senegal, although the authors were not generally subject to
French jurisdiction. [FN12] The fact of being subject to the jurisdiction of
a State within the meaning of article 22 of the Convention must be
determined solely on the basis of consideration of the facts alleged in the
complaint. [FN13]
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[FN11] See Primo Jose Essono Mika Miha v. Equatorial Guinea, communication
No. 414/1990 submitted to the Human Rights Committee, A/49/40, vol. II
(1994), annex IX, part O (pp. 96-100). The complainants also point out that
the nationality of the author of a communication is not sufficient to
establish that the author is subject to that State's jurisdiction (see H. v.
d. P. v. the Netherlands, communication No. 217/1986, A/42/40 (1987), annex
IX, part C (pp. 185-186), para. 3.2.
[FN12] Communication No. 196/1985, A/44/40 (1989), annex X, part B (pp.
189-195).
[FN13] See Sophie Vidal Martins v. Uruguay, communication No. 57/1979,
A/37/40 (1982), annex XIII (pp. 157-160).
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5.4 It follows, in the present case, that the complainants should be
considered subject to the jurisdiction of the State party inasmuch as the
facts alleged against Senegal under the Convention concern judicial
proceedings before the Senegalese courts. Thus, contrary to the contention
of the State party, it matters little that the torture occurred in another
country or that the victims are not Senegalese nationals. To establish that
the complainants are subject to Senegalese jurisdiction in the present
instance, one has only to establish that the communication concerns acts
that fell under Senegal's jurisdiction, since as only Senegal can decide
whether to continue with the legal proceedings instituted by the
complainants in Senegal. By instituting proceedings in the Senegalese
courts, the complainants came under the jurisdiction of the State party for
the purposes of those proceedings.
5.5 The complainants also make the subordinate point that, under Senegalese
law, foreigners instituting judicial proceedings in the State party must
accept Senegalese jurisdiction. This shows that, even if Senegal's
restrictive interpretation is accepted, the complainants do indeed come
under the State party's jurisdiction.
5.6 Lastly, the authors argue that the State party cannot invoke domestic
law to claim that they are not subject to its jurisdiction since that would
be tantamount to taking advantage of its failure to comply with article 5,
paragraph 2, of the Convention, under which States parties are obliged to
take such measures as may be necessary to establish their jurisdiction over
the offences referred to in article 4 of the Convention. In invoking this
argument, the State party is disregarding both customary law and
international law. The principle of nemo auditur propriam turpitudinem
allegans is applied in most legal systems and prevents anyone asserting a
right acquired by fraud. Moreover, under article 27 of the Vienna Convention
on the Law of Treaties, "a party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty". The
complainants point out that the Vienna Convention thus reaffirms the
principle that, regardless of the arrangements under internal law for the
implementation of a treaty at the national level, such arrangements cannot
detract from the State's obligation at an international level to ensure the
implementation of and assume international responsibility for the treaty.
The Committee's Decision on Admissibility
6.1 At its twenty-seventh session, the Committee considered the
admissibility of the complaint. It ascertained that the matter had not been
and was not being examined under another procedure of international
investigation or settlement, and considered that the communication did not
constitute an abuse of the right to submit such communications and was not
incompatible with the provisions of the Convention.
6.2 The Committee took note of the State party's argument that the
communication should be found inadmissible since the complainants are not
subject to Senegal's jurisdiction within the meaning of article 22 of the
Convention.
6.3 To establish whether a complainant is effectively subject to the
jurisdiction of the State party against which a communication has been
submitted within the meaning of article 22, the Committee must take into
account various factors that are not confined to the author's nationality.
The Committee observes that the alleged violations of the Convention concern
the refusal of the Senegalese authorities to prosecute Hiss�ne Habr� despite
their obligation to establish universal jurisdiction in accordance with
article 5, paragraph 2, and article 7 of the Convention. The Committee also
observes that the State party does not dispute that the authors were the
plaintiffs in the proceedings brought against Hiss�ne Habr� in Senegal.
Moreover, the Committee notes, the complainants in this case accepted
Senegalese jurisdiction in order to pursue the proceedings against Hiss�ne
Habr� which they instituted. On the basis of these elements, the Committee
is of the opinion that the authors are indeed subject to the jurisdiction of
Senegal in the dispute to which this communication refers.
6.4 The Committee also considers that the principle of universal
jurisdiction enunciated in article 5, paragraph 2, and article 7 of the
Convention implies that the jurisdiction of States parties must extend to
potential complainants in circumstances similar to the complainants'.
6.5 Accordingly, the Committee against Torture declared the communication
admissible on 13 November 2001.
The State Party's Observations on the Merits
7.1 The State party transmitted its observations on the merits by note
verbale dated 31 March 2002.
7.2 The State party points out that, in accordance with the rules of
criminal procedure, judicial proceedings in Senegal opened on 27 January
2000 with an application from the public prosecutor's office in Dakar for
criminal proceedings to be brought against Hiss�ne Habr� as an accessory to
torture and acts of barbarism and against a person or persons unknown for
torture, acts of barbarism and crimes against humanity. Hiss�ne Habr� was
charged on both counts on 3 February 2000 and placed under house arrest. On
18 February 2000, Hiss�ne Habr� submitted an application for the proceedings
to be dismissed on the grounds that the Senegalese courts were not
competent, that the charges had no basis in law, and that the alleged
offences were time-barred.
7.3 On 4 July 2000, the Indictment Division of the Court of Appeal dismissed
the proceedings. On 20 March 2001, the Court of Cassation rejected the
appeal lodged by the complainants (plaintiffs). That ruling, handed down by
the highest court in Senegal, thus brought the proceedings to an end.
7.4 Regarding the allegations that the executive put pressure on the
judiciary, in particular by transferring and/or removing the judges trying
the case, namely the chief examining magistrate and the President of the
Indictment Division, the State party reminds the Committee that the
President of the Indictment Division is primus inter pares in a three-person
court and is thus in no position to impose his or her views. The other two
members of the Indictment Division were not affected by the reassignment of
judges, which in any case was an across-the-board measure.
7.5 It is also important to bear in mind that any country is free to
organize its institutions as it sees fit in order to ensure their proper
functioning.
7.6 The independence of the judiciary is guaranteed by the Constitution and
the law. One such guarantee is oversight of the profession and rules of
conduct of the judiciary by the Higher Council of the Judiciary, whose
members are judges, some of them elected and others appointed. Appeals may
be lodged when the appointing authority is accused of having violated the
principle of the independence of the judiciary.
7.7 A basic element of judicial independence is that judges may appeal
against decisions affecting them, and that the executive is duty-bound not
to interfere in the work of the courts. Judges' right of appeal is not
merely theoretical.
7.8 The Council of State did indeed revoke a number of judges' appointments
on 13 September 2001, considering that they failed to apply a basic
safeguard designed to protect trial judges and thereby ensure their
independence, namely the obligation to obtain people's prior consent before
assigning them to new positions, even by means of promotion.
7.9 It must be acknowledged that the Senegalese judiciary is genuinely
independent. Criminal proceedings necessarily culminate in decisions which,
unfortunately, cannot satisfy all the parties. The judicial investigation is
a component of criminal procedure and, by its very nature, is subject to all
the safeguards provided for in international instruments. In the present
case, the parties benefited from conditions recognized as ensuring fair
dispensation of justice. Where no legal provision exists, proceedings cannot
be pursued without violating the principle of legality; that was confirmed
by the Court of Cassation in its ruling of 20 March 2001.
On the Violation of Article 5, Paragraph 2, of the Convention
7.10 In its ruling on the Hiss�ne Habr� case, the Court of Cassation
considered that "duly ratified treaties or agreements have, once they are
published, an authority higher than that of laws, subject to implementation,
in the case of each agreement or treaty, by the other party", and that the
Convention cannot be applied as long as Senegal has not taken prior
legislative measures. The Court adds that ratification of the Convention
obliges each State party to take such measures as may be necessary to
establish its jurisdiction over the offences referred to in article 4, or to
extradite perpetrators of torture.
7.11 Proceedings were brought against Hiss�ne Habr�. However, since the
Convention against Torture is not self-executing, Senegal, in order to
comply with its commitments, promulgated Act No. 96-16 of 28 August 1996
enacting article 295 of the Criminal Code. The principle aut dedere aut
judicare comprises the obligation to prosecute or to extradite in an
efficient and fair manner. In this regard, Senegalese legislators have
endorsed the argument of Professor Bassiouni, according to whom "[t]he
obligation to prosecute or extradite must, in the absence of a specific
convention stipulating such an obligation, and in spite of specialists'
arguments to this effect, be proved to be part of customary international
law".
7.12 Pursuant to article 4 of the Convention, torture is classified in the
Senegalese Criminal Code as an international crime arising from jus cogens.
It should be noted that Senegal is aware of the need to amend its
legislation; however, under the Convention a State party is not bound to
meet its obligations within a specific time frame.
On the Violation of Article 7 of the Convention
7.13 Since the Convention is not self-executing, in order to establish
universal jurisdiction over acts of torture it is necessary to pass a law
establishing the relevant procedure and substantive rules.
7.14 While the Committee has stressed the need for States parties to take
appropriate legislative measures to ensure universal jurisdiction over
crimes of torture, the manner in which this procedure is accomplished cannot
be dictated. Senegal is engaged in a very complex process that must take
account of its status as a developing State and the ability of its judicial
system to apply the rule of law.
7.15 The State party points out that the difficulty of ensuring the absolute
application of universal jurisdiction is commonly acknowledged. It is
therefore normal to provide for different stages of its application.
7.16 However, the absence of domestic codification of universal jurisdiction
has not allowed Hiss�ne Habr� complete impunity. Senegal applies the
principle aut dedere aut judicare. Any request for judicial assistance or
cooperation is considered benignly and granted insofar as the law permits,
particularly when the request relates to the implementation of an
international treaty obligation.
7.17 In the case of Hiss�ne Habr�, Senegal is applying article 7 of the
Convention. The obligation to extradite, unless raised at another level, has
never posed any difficulties. Consequently, if a request is made for
application of the other option under the principle aut dedere aut judicare,
there is no doubt that Senegal will fulfil its obligations.
On the Request for Financial Compensation
7.18 In violation of the principle Electa una via non datur recursus ad
alteram (once a course of action is chosen, there is no recourse to
another), the complainants have also instituted proceedings against Hiss�ne
Habr� in the Belgian courts. The State party believes that, in the
circumstances, to ask Senegal to consider financial compensation would be a
complete injustice.
7.19 The Belgian Act of 16 June 1993 (as amended by the Act of 23 April
2003) relating to the suppression of serious violations of international
humanitarian law introduces significant departures from Belgian criminal law
in both procedure and substance. A Belgian examining magistrate has been
assigned, and pretrial measures have been requested, just as they had been
in Senegal. The State party maintains that it is advisable to let these
proceedings follow their course before considering compensation of any kind.
Observation of the Complainants on the Merits
8.1 In a letter dated 1 July 2002, the complainants submitted their
observations on the merits.
On the Violation of Article 5, Paragraph 2, of the Convention
8.2 With regard to the State party's argument that there is no specific time
frame for complying with its obligations under the Convention, the
complainants' principal contention is that the State party was bound by the
Convention from the date of its ratification.
8.3 According to article 16 of the Vienna Convention on the Law of Treaties
(hereinafter "the Vienna Convention"), "unless the treaty otherwise
provides, instruments of ratification, acceptance, approval or accession
establish the consent of a State to be bound by a treaty upon: [...] (b)
their deposit with the depositary [...]". The travaux pr�paratoires relating
to this provision confirm that the State party is immediately bound by the
obligations arising from the treaty, from the moment the instrument of
ratification is deposited.
8.4 According to the complainants, the State party's arguments call into
question the very meaning of the act of ratification and would lead to a
situation in which no State would have to answer for a failure to comply
with its treaty obligations.
8.5 With regard to the specific legislative measures that a State must take
in order to meet its treaty obligations, the complainants maintain that the
manner in which the State in question fulfils its obligations is of little
importance from the standpoint of international law. Moreover, they believe
that international law is moving towards the elimination of the formalities
of national law relating to ratification, on the principle that the norms of
international law should be considered binding in the internal and
international legal order as soon as a treaty has entered into force. The
complainants add that the State party could have taken the opportunity to
amend its national legislation even before it ratified the Convention.
8.6 Finally, the complainants recall that article 27 of the Vienna
Convention prohibits the State party from invoking the provisions of its
internal law as a justification for its failure to perform its treaty
obligations. This provision has been interpreted by the Committee on
Economic, Social and Cultural Rights as an obligation for States to "modify
the domestic legal order as necessary in order to give effect to their
treaty obligations". [FN14]
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[FN14] General comment No. 9, 3 December 1998, E/C.12/1998/24, para. 3.
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8.7 As a subsidiary argument, the complainants maintain that, even if one
considers that the State party was not bound by its obligations from the
moment the treaty was ratified, it has committed a violation of article 5 by
not adopting appropriate legislation to comply with the Convention within a
reasonable time frame.
8.8 Article 26 of the Vienna Convention establishes the obligation of
parties to perform their obligations under international treaties in good
faith; the complainants point out that, since it ratified the Convention
Against Torture on 21 August 1986, the State party had 15 years before the
submission of the present communication to implement the Convention, but did
not do so.
8.9 In this regard, the Committee, in its concluding observations on the
second periodic report of Senegal, had already recommended that "the State
party should, during its current legislative reform, consider introducing
explicitly in national legislation the following provisions: (a) The
definition of torture set forth in article 1 of the Convention and the
classification of torture as a general offence, in accordance with article 4
of the Convention, which would, inter alia, permit the State party to
exercise universal jurisdiction as provided in articles 5 et seq. of the
Convention; [...]". [FN15] The State party has not followed up this
recommendation and has unreasonably delayed adoption of the legislation
necessary for implementing the Convention.
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[FN15] See A/51/44, para. 114.
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On the Violation of Article 7 of the Convention
8.10 With regard to the argument that article 7 has not been violated
because the State was prepared, if necessary, to extradite Hiss�ne Habr�,
the complainants maintain that the obligation under article 7 to prosecute
Hiss�ne Habr� is not linked to the existence of an extradition request.
8.11 The complainants appreciate the fact that Senegal was prepared to
extradite Hiss�ne Habr� and in this connection point out that on 27
September 2001 President Wade had stated that "if a country capable of
holding a fair trial - we are talking about Belgium - wishes to do so, I do
not see anything to prevent it". Nevertheless, this suggestion was purely
hypothetical at the time of the present observations since no extradition
request had yet been made.
8.12 On the basis of a detailed examination of the travaux pr�paratoires,
the complainants refute the argument that the State party appears to be
propounding, namely that there would be an obligation to prosecute under
article 7 only after an extradition request had been made and refused. They
also condense long passages from an academic work [FN16] to demonstrate that
the State's obligation to prosecute a perpetrator of torture under article 7
does not depend on the existence of an extradition request.
---------------------------------------------------------------------------------------------------------------------
[FN16] Mark Henzelin, Le Principe d'universalit� en Droit p�nal
international. Droit et obligation pour les Etats de poursuivre et juger
selon le principe de l'universalit�, Bruylant, Bruxelles, 2000.
---------------------------------------------------------------------------------------------------------------------
On the Request for Financial Compensation
8.13 The complainants reject the State party's claim that they have
instituted proceedings in Belgian courts. It is, in fact, other former
victims of Hiss�ne Habr� who have applied to the Belgian courts. The
complainants are not parties to those proceedings.
8.14 The complainants also maintain that there is no risk of double
compensation because Hiss�ne Habr� can be tried only in one place.
The Committee's Considerations on the Merits
9.1 The Committee notes, first of all, that its consideration on the merits
has been delayed at the explicit wish of the parties because of judicial
proceedings pending in Belgium for the extradition of Hiss�ne Habr�.
9.2 The Committee also notes that, despite its note verbale of 24 November
2005 requesting the State party to update its observations on the merits
before 31 January 2006, the State party has not acceded to that request.
9.3 On the merits, the Committee must determine whether the State party
violated article 5, paragraph 2, and article 7 of the Convention. It finds -
and this has not been challenged - that Hiss�ne Habr� has been in the
territory of the State party since December 1990. In January 2000, the
complainants lodged with an examining magistrate in Dakar a complaint
against Hiss�ne Habr� alleging torture. On 20 March 2001, upon completion of
judicial proceedings, the Court of Cassation of Senegal ruled that "no
procedural text confers on Senegalese courts a universal jurisdiction to
prosecute and judge, if they are found on the territory of the Republic,
presumed perpetrators of or accomplices in acts [of torture] ... when these
acts have been committed outside Senegal by foreigners; the presence in
Senegal of Hiss�ne Habr� cannot in itself justify the proceedings brought
against him". The courts of the State party have not ruled on the merits of
the allegations of torture that the complainants raised in their complaint.
9.4 The Committee also notes that, on 25 November 2005, the Indictment
Division of the Dakar Court of Appeal stated that it lacked jurisdiction to
rule on Belgium's request for the extradition of Hiss�ne Habr�.
9.5 The Committee recalls that, in accordance with article 5, paragraph 2,
of the Convention, "each State Party shall [...] 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 [...]". It notes that, in its observations on the
merits, the State party has not contested the fact that it had not taken
"such measures as may be necessary" in keeping with article 5, paragraph 2,
of the Convention, and observes that the Court of Cassation itself
considered that the State party had not taken such measures. It also
considers that the reasonable time frame within which the State party should
have complied with this obligation has been considerably exceeded.
9.6 The Committee is consequently of the opinion that the State party has
not fulfilled its obligations under article 5, paragraph 2, of the
Convention.
9.7 The Committee recalls that, under article 7 of the Convention, "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". It notes
that the obligation to prosecute the alleged perpetrator of acts of torture
does not depend on the prior existence of a request for his extradition. The
alternative available to the State party under article 7 of the Convention
exists only when a request for extradition has been made and puts the State
party in the position of having to choose between (a) proceeding with
extradition or (b) submitting the case to its own judicial authorities for
the institution of criminal proceedings, the objective of the provision
being to prevent any act of torture from going unpunished.
9.8 The Committee considers that the State party cannot invoke the
complexity of its judicial proceedings or other reasons stemming from
domestic law to justify its failure to comply with these obligations under
the Convention. It is of the opinion that the State party was obliged to
prosecute Hiss�ne Habr� for alleged acts of torture unless it could show
that there was not sufficient evidence to prosecute, at least at the time
when the complainants submitted their complaint in January 2000. Yet by its
decision of 20 March 2001, which is not subject to appeal, the Court of
Cassation put an end to any possibility of prosecuting Hiss�ne Habr� in
Senegal.
9.9 Consequently and notwithstanding the time that has elapsed since the
initial submission of the communication, the Committee is of the opinion
that the State party has not fulfilled its obligations under article 7 of
the Convention.
9.10 Moreover, the Committee finds that, since 19 September 2005, the State
party has been in another situation covered under article 7, because on that
date Belgium made a formal extradition request. At that time, the State
party had the choice of proceeding with extradition if it decided not to
submit the case to its own judicial authorities for the purpose of
prosecuting Hiss�ne Habr�.
9.11 The Committee considers that, by refusing to comply with the
extradition request, the State party has again failed to perform its
obligations under article 7 of the Convention.
9.12 The Committee against Torture, acting under article 22, paragraph 7, of
the Convention, concludes that the State party has violated article 5,
paragraph 2, and article 7 of the Convention.
10. In accordance with article 5, paragraph 2, of the Convention, the State
party is obliged to adopt the necessary measures, including legislative
measures, to establish its jurisdiction over the acts referred to in the
present communication. Moreover, under article 7 of the Convention, the
State party is obliged to submit the present case to its competent
authorities for the purpose of prosecution or, failing that, since Belgium
has made an extradition request, to comply with that request, or, should the
case arise, with any other extradition request made by another State, in
accordance with the Convention. This decision in no way influences the
possibility of the complainants' obtaining compensation through the domestic
courts for the State party's failure to comply with its obligations under
the Convention.
11. Bearing in mind that, in making the declaration under article 22 of the
Convention, the State party recognized the competence of the Committee to
decide whether or not there has been a violation of the Convention, the
Committee wishes to receive information from the State party within 90 days
on the measures it has taken to give effect to its recommendations.
[Adopted in English, French and Spanish, the French text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
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