12294
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
AHMADOU SADIO DIALLO
(REPUBLIC OF GUINEA v. DEMOCRATIC REPUBLIC OF THE CONGO)
COUNTER-MEMORIAL OF THE DEMOCRATIC REPUBLIC OF THE CONGO
(QUESTION OF COMPENSATION OWED TO GUINEA BY THE DRC)
PART I (TEXT) AND PART II (ANNEXES)
21 February 2012
[Translation by the Registry] T ABLE OF C ONTENTS
Page
P ART I ⎯ T EXT OF THE C OUNTER -M EMORIAL
INTRODUCTION ........................................................................
........................................................ 1
SECTION I. T HE NON PECUNIARY DAMAGE SUFFERED BY M R. DIALLO ....................................... 3
I The basis for the non-pecuniary damage.................................................................... 4
II Fixing the amount of compensation to make reparation for the
non-pecuniary damage suffered by Mr. Diallo........................................................... 4
A. The Inter-American Court of Human Rights......................................................... 5
B. The European Court of Human Rights ............................................................... 6
ofas. A. and Others v. United Kingdom.................................................. 6
ofas. M.S.S. v. Belgium and Greece........................................................ 7
ofas. Assanidze v. Georgia ..................................................................... 8
ofas. Ilaşcu and Others v. Moldova and Russia ..................................... 9
C. The amount of compensation owed to Guinea to make good the
non-pecuniary damage suffered by Mr. Diallo................................................. 11
SECTION II. THE MATERIAL DAMAGE SUFFERED BY M R . IALLO ................................................. 12
I The loss of professional income ........................................................................
......... 13
A. The loss of US$80,000 in professional income................................................ 13
B. The loss of US$6,430,148 in earnings.............................................................
. 15
II The loss of assets (including bank assets) .................................................................. 19
III The potential loss of earnings........................................................................
............. 21
SECTION III. HE COSTS OF THE PROCEEDINGS ........................................................................
....... 24
SECTION IV. PAYMENT OF STATUTORY DEFAULT INTEREST ........................................................... 27
SECTION V. S UBMISSIONS ........................................................................
...................................... 28
PART II ⎯ ANNEXES TO THE C OUNTER -MEMORIAL
A NNEX I
A NNEX II
A NNEX III
A NNEX IV
___________ PART I
TEXT OF THC OUNTER-MEMORIAL INTRODUCTION
1 01. Under the terms of its Judgment of 30 November 2010 on the merits of the present
dispute, the International Court of Justice ordered the Democratic Republic of the Congo
(hereinafter “the DRC”) to pay compensation to the Republic of Guinea (hereinafter “Guinea”) as
reparation for the injury suffered by the l1tter becau se of the wrongful detentions and expulsion of
Mr. Ahmadou Sadio Diallo in 1995-1996 .
02. In this connection, the Court found as follows:
“Having concluded that the Democratic Republic of the Congo has breached its
obligations under Articles9 and 13 of th e International Covenant on Civil and
Political Rights, Articles6 and 12 of the African Charter on Human and Peoples’
Rights, and Article 36, paragraph 1 (b), of the Vienna Convention on Consular
Relations..., it is for the Court now to determine, in light of Guinea’s final
submissions, what consequences flow from these internationally wrongful acts giving
rise to the DRC’s international responsibility.
The Court recalls that ‘reparation must, as far as possible, wipe out all the
consequences of the illegal act and reestab lish the situation which would, in all
probability, have existed if that act had not been committed’ ( Factory at Chorzów,
Merits, Judgment No.13, 1928, P.C.I.J., SeriesA, No.17, p.47). Where this is not
possible, reparation may take ‘the form of compensation or satisfaction, or even both’
(Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010,
para. 273). In the light of the circumstances of the case, in particular the fundamental
2 character of the human rights obligations breached and Guinea’s claim for reparation
in the form of compensation, the Court is of the opinion that, in addition to a judicial
finding of the violations, reparation due to Guinea for the injury suffered by
Mr. Diallo must take the form of compensation.
In this respect, Guinea requested in its final submissions that the Court defer its
Judgment on the amount of compensation, in order for the Parties to reach an agreed
settlement on that matter. Should the Parti es be unable to do so ‘within a period of
six months following [the] delivery of the [present] Judgment’, Guinea also requested
the Court to authorize it to submit an assessment of the amount of compensation due
to it, in order for the Court to decide on this issue ‘in a subsequent phase of the
proceedings’.
The Court is of the opinion that the Pa rties should indeed engage in negotiation
in order to agree on the amount of compensation to be paid by the DRC to Guinea for
the injury flowing from the wrongful deten tions and expulsion of Mr.Diallo in
1995-1996, including the resulting loss of his personal belongings.”
03. In the operative part of its Judgment, the Court unanimously : 2
“Finds that, in respect of the circumstances in which Mr.Diallo was expelled
from Congolese territory on 31January1996, the Democratic Republic of the Congo
violated Article13 of the International Covenant on Civil and Political Rights and
Article 12, paragraph 4, of the African Charter on Human and Peoples’ Rights;
Case concerning Ahmadou Sadio Diallo, Judgment of 30 November 2010, paras. 160-163.
2
ICJ, Judgment of 30 November 2010, para. 165 (2), (3), (7) and (8). - 2 -
Finds that, in respect of the circumstances in which Mr. Diallo was arrested and
3 detained in 1995-1996 with a view to his expulsion, the Democratic Republic of the
Congo violated Article9, paragraphs1 and2, of the International Covenant on Civil
and Political Rights and Article6 of th e African Charter on Human and Peoples’
Rights;
[. . .]
Finds that the Democratic Republic of the Congo is under obligation to make
appropriate reparation, in the form of comp ensation, to the Republic of Guinea for the
injurious consequences of the violations of international obligations referred to in
subparagraphs (2) and (3) above;
Decides that, failing agreement betwee n the Parties on this matter within
sixmonths from the date of this Judgment, the question of compensation due to the
Republic of Guinea shall be settled by the Court, and reserves for this purpose the
subsequent procedure in the case.”
04. It is therefore clear, according to the Judgment of the Court, that the compensation which
the DRC must pay to Guinea concerns repara tion for the injury flowing from the wrongful
detentions and expulsion of Mr.Diallo in 1995- 1996, including the resulting loss of his personal
belongings.
05. Since the two Parties had not succeeded, within the six-month time-limit fixed by the
Court, in reaching an agreement on the amount of compensation owed by the DRC to Guinea, the
President of the Court invited them to meet hi m in The Hague on 14September2011 in order to
hear their views on the subsequent procedure. During that meeting, the DRC expressed its firm
willingness to pay compensation to Guinea, in comp liance with the Judgment of the Court. It
nonetheless regretted that the difficulties of communication between the two governments and
reasons of domestic policy had prevented the necessary contacts from being made in order to reach
an agreement on the amount of compensation within the time-limit fixed by the Court.
4 06. To demonstrate its good faith, the DRC proposed to Guinea at that same meeting, chaired
by the President of the Court, that negotiati ons should be opened in Brussels as from Tuesday
20 September 2011 with a view to reaching an agreement on compensation and thereby saving the
Court from devoting valuable time to ruling on such a straightforward matter, which could easily
be settled through diplomatic channels.
07. Responding to the DRC’s proposal, the President of the Court pointed out to the Parties
that the fixing of time-limits for the filing of a Memorial by Guinea and a Counter-Memorial by the
DRC under the relevant terms of its Judgment of 30 November 2010, which was the object of the
meeting with the Parties, in no way hindered the diplomatic negotiations between them aimed at
reaching an agreement on the amount of compensation. If the Parties arrived at such an agreement
before the end of the procedure, he added, the Court would not fail to take account of it.
08. In Brussels, the Embassy of the DRC contacted that of Guinea to ascertain its position on
the opening of negotiations, following the proposal made at the meeting held in The Hague with
the President of the Court. The reply was that the Guinean Embassy w as obliged to await the
instructions of the Government of Guinea before embarking on the proposed negotiations. - 3 -
09. While it was waiting for Guinea’s response to its proposal for negotiations between the
two States through their embassies in Brussels, the DRC received instead Guinea’s Memorial, filed
on 6December 2011 pursuant to the Court’s Order of 20September 2011. The DRC therefore
presumed that the instructions awaited from C onakry on the opening of negotiations between the
two States in Brussels had not been given by the competent Guinean authorities.
0.10. It takes at least two to negotiate, and one needs a discussion partner across the table.
5 However, Guinea did not accept the hand extended to it by the DRC, as described above, and
evidently preferred to leave to the Court the possibility of fixing the amount of compensation. In
these circumstances, the Respondent is therefore ob liged to submit this Counter-Memorial to the
Court, in order to rebut the claims put forw ard by the Applicant regarding the amount of
compensation owed to it under the terms of the Court’s Judgment of 30 November 2010.
0.11. In its Memorial of 6 December 2011 , Guinea claims from the DRC the payment of
precise sums of money as reparation for very spec ific injuries said to have been suffered by
Mr. Diallo. The sums which Guinea is claiming fro m the DRC are set out as follows: (1) the sum
of US$250,000 as reparation for the mental harm and moral damage resulting from the wrongful
3
detentions and expulsion of Mr. Diallo in 1995-1996 ; (2) the sum of US$6,430,148 as reparation
for the injury resulting from the loss of Mr. Diallo’s professional income during his detention for
72 days and after his expulsion from the DRC ; (3) the sum of US$550,000 as reparation for other
material damage, corresponding to the value of the assets lost by Mr.Diallo, including his bank
assets ; (4) the sum of US$4,360,000 as reparation for the injury caused to Mr. Diallo in respect of
potential loss of earnings ; and (5)the sum of US$500,000 to reimburse the costs incurred by
7
Guinea in connection with this dispute brought before the Court . It should be added that Guinea is
claiming payment of statutory interest on the above-mentioned sums.
0.12 The DRC will demonstrate in the following sections that the various sums of money
claimed by Guinea as compensation owed by the DRC in respect of reparation for the
6 non-pecuniary damage (SectionI) and the variou s material damage alleged by Mr.Diallo
(SectionII), as well as for the reimbursement of costs (SectionIII), are either excessive and
disproportionate or unfounded in relation to the injuries purportedly suffered. The same will apply
to Guinea’s claim regarding the payment of statut ory default interest, which lacks any legal basis
(Section IV).
S ECTION I
THE NON PECUNIARY DAMAGE SUFFERED BY M R . DIALLO
1.01. In this Counter-Memorial, the Res pondent will use the concept of “non-pecuniary
damage” , which is rather more explicit by contrast with material damage, instead of the term
“mental and moral damage” used by the Applicant in its Memorial. According to the doctrine of
the international responsibility of the State, non-pec uniary (or moral) damage can reside either in a
violation of the right of a State or in an injury to its dignity, honour or prestige. It can also reside in
3
See the Memorial of Guinea (MG), p. 12, para. 28.
4Ibid., p. 16, para. 48.
5Ibid., p. 19, para. 57.
6
Ibid., p. 20, para. 65.
7
Ibid., p. 22, para. 69.
8This footnote does not concern the English text. - 4 -
an injury to the reputation, feelings or esteem of a person on whose behalf diplomatic protection or
9
a jurisdictional remedy is being exercised .
1.02. In its Memorial of 6December 2011, the Applicant asserts that Mr.Diallo suffered
moral and mental harm, including emotional pain, suffering and shock, as well as the loss of his
position in society and injury to his reputation as a result of his arrests, detentions and expulsion by
the DRC . As reparation for this non-pecuniary injury, Guinea is claiming from the DRC the
payment of a lump sum of US$250,000 by way of compensation . 11
7 1.03. The DRC will first comment on the basi s for the non-pecuniary damage alleged by
Guinea (I), before turning to the question of fixi ng the amount of compensation to make reparation
for the said damage.
I. The basis for the non-pecuniary damage
1.04. It is an established fact that the C ourt, in its Judgment of 30 November 2010 on the
merits of this dispute, found that the DRC had breached its international obligations under
Article9, paragraphs1 and2, of the Interna tional Covenant on Civil and Political Rights and
Article 6 of the African Charter on Human and Pe oples’ Rights, following the wrongful detentions
and expulsion of Mr. Diallo in 1995-1996. As a result of this finding, the Court ordered the DRC
to pay compensation to Guinea in reparation for th e injury caused to Mr. Diallo as a consequence
of these internationally wrongful acts.
1.05. The DRC respects this decision of the Court. It recognizes that the wrongful detentions
and expulsion of Mr.Diallo in 1995-1996 certainly caused him non-pecuniary damage which
deserves a suitable form of reparation. It therefore agrees to make “appropriate reparation” ⎯ in
the words of the Court ⎯ to Guinea in respect of the non-pec uniary injury caused to Mr.Diallo
and, as a result, to Guinea itself.
1.06. The question here, therefore, is that of determining the amount of compensation to be
paid to Guinea by the DRC in reparation for the non-pecuniary damage suffered by Mr. Diallo.
II. Fixing the amount of compensation to make reparation for the
non-pecuniary damage suffered by Mr. Diallo
1.07 As the DRC has noted above, the Applicant is claiming payment of a sum of
US$250,000 in compensation to make reparation for the non-pecuniary damage suffered by
8 Mr.Diallo. The Respondent contests and rejects this amount, which is manifestly excessive and
disproportionate in relation to the injury actually suffered. The consistent practice of certain
regional international courts whic h rule regularly on this type of damage shows that the sums
awarded to compensate the victims of wrongful de tentions or expulsions are markedly lower than
the amount claimed by Guinea in the present case. In this context, the DRC will refer to the
practice of the Inter-American Court of Human Ri ghts (A) and that of the European Court of
Human Rights (hereinafter “the ECHR”) (B), tw o regional systems of human rights protection
which are the oldest and best developed in the world and which have abundant practice in fixing
See Dictionnaire de droit international public, Brussels, Bruylant, 2001, p. 361.
10
See MG, p. 8, para. 24.
11
Ibid., para. 28. - 5 -
compensation to make good the non-pecuniary damage resulting from wrongful and prolonged
detentions of physical persons by certain States. In the light of the jurisprudence of these two
international courts, the Respondent will submit its own proposal to the Court regarding the amount
of compensation which it considers reasonable a nd proportionate in relation to the non-pecuniary
damage suffered by Mr. Diallo (C).
A. The Inter-American Court of Human Rights
1.08. In the context of the Inter-American Court of Human Rights, the Respondent would
cite the proceedings between Mr. Yvon Neptune, form er President of the Senate and former Prime
Minister of Haiti, and the Republic of Haiti, a cas e which was settled by that court in its Judgment
of 6 May 2008 . 12
1.09. In that case, Mr.Yvon Neptune brought proceedings before the Inter-American Court
of Human Rights against his own country for having been unlawfully and arbitrarily detained in
two Haitian prisons for 25 months (around 760 days) following th e end of his mandate as Prime
Minister, i.e., from 27 June 2004 to 27 July 2006.
9 1.10. Regarding reparation for the non-pec uniary damage which he claimed to have
sustained during this long period of detention, Mr. Neptune asked the Court to take into account the
numerous medical problems he had suffered durin g his detention and hunger strike, such as
hypertension, hypotension, inflammation, arrhythmia and a weak heart. He also asked it to take
account of the medical problems which he continue d to suffer after his release, such as fatigue,
indigestion, dizziness, weakness and reduced musc le mass; and also the psychological trauma
related to the uncertainty about his life and phys ical safety, together with the stigma that he
suffered during the 25 months that his detention lasted, the unfounded charges against him, and the
separation from his family .13
1.11. In its decision, the Court began by finding that Mr. Neptune “was subjected to inhuman
detention conditions, that he was detained unlawfully and arbitrarily, and that he was not provided
with due judicial protection and guarantees, all of which caused him physical and mental
suffering” .4
1.12. As regards the fixing of the amount of compensation owed by Haiti as reparation for
the non-pecuniary damage suffered by the victim, the Court took into account the different aspects
of that damage and fixed the reparation,15ased on the equity principle, as the sum of US$30,000
(thirty thousand United States dollars) .
1.13. As will be seen, this case is representa tive. It involved a former Prime Minister who
had barely left office and who had been detain ed unlawfully and arbitrarily for 25months in
conditions described by the Court as inhumane, i.e., for some 760days. The Court fixed the
amount of compensation to make good the non-pec uniary damage suffered by the victim as
10 US$30,000. That is a long way from the sum of US$250,000 claimed by Guinea as reparation for
1See Inter-American Court of Human Rights, Yvon Neptune v. Haiti (Merits, Reparations and Costs), Judgment
of 6 May 2008.
1Ibid., para. 167.
14
Ibid., para. 168.
1Ibid. - 6 -
non-pecuniary damage resulting from a detention ⎯ certainly unlawful and arbitrary, but of only
72 days ⎯ during which no ill-treatment was inflicted on Mr.Diallo, even if one adds to it the
element of wrongful expulsion.
B. The European Court of Human Rights
1.14. The DRC would cite here a number of decisions rendered by the ECHR on the fixing
of compensation to make good the non-pecuniary damage resulting from wrongful detentions and
expulsions, in breach of the relevant provisions of the European Convention for the Protection of
Human Rights and Fundamental Freedoms.
B.1. Case of A. and Others v. United Kingdom
1.15. On 21January 2005, an application against the United Kingdom was lodged with the
ECHR by eleven non-United Kingdo m nationals who had been arrested and detained on British
territory in connection with the anti-terrorism campaign launched following the terrorist attacks of
11September 2001 against the United States of Ameri ca. The applicants alleged that their long
detention was unlawful and violated several relevant provisions of the European Convention for the
Protection of Human Rights and Fundamental Free doms, in particular the lack of effective
remedies enabling them to have their complaints examined.
The Court found that nine of the eleven app licants had indeed been victims of prolonged
unlawful detention on the part of the British authorities.
1.16. The nine successful applicants had been detained in British prisons for the following
periods of time: (1)the first applicant: fro m 19 December 2001 to 11March 2005, i.e., for
three years and 83 days; (2) the third applicant: from 19 December 2001 to 11 March 2005, i.e.,
11 for three years and 83 days; (3) the fifth applicant: from 19 December 2001 to 22 April 2004 and
under house arrest until 11March 2005, i.e., for three years and 83 days; (4)the sixth applicant:
from 19December2001 to 11March 2005, i.e., for three years and 83 days; (5)the seventh
applicant: from 8 February 2002 to 11 March 2005, i.e., for three years and 33 days; (6) the eighth
applicant: from 23 October 2002 to 11 March 2005, i. e., for two years and 141 days; (7) the ninth
applicant: from 22 April 2002 to 11March 2005, i. e., for two years and 324 days; (8) the tenth
applicant: from 14 January 2003 to 11March 2005, i. e., for two years and 57 days; and (9)the
eleventh applicant: from 2 October 2003 to 11 March 2005, i.e., for one year and 159 days . 16
1.17. As reparation for the non-pecuniary damage which they purportedly suffered during
these long periods of detention, the applicants cl aimed the following sums: the first applicant
claimed compensation of £234,000 for loss of liberty, mental suffering, mental illness and the
suffering experienced by his wife and family as a result of the separation and the negative
publicity; the third applicant claimed compensation of £230,000 for loss of liberty and the
consequent mental suffering, including mental illness, together with the distress caused to his wife
and children; the fifth applicant claimed compensation of £240,000 for the mental suffering,
including mental illness, caused by his imprisonment, together with the distress caused to his wife
and children; the sixth applicant claimed compensation of £217,000 for the mental suffering
resulting from his detention, together with the distress caused to his wife and children; the seventh
applicant claimed compensation of £197,000 for his detention and the consequent mental suffering,
including mental illness; the eighth applicant claimed compensation of £170,000 for loss of liberty
and mental suffering, together with the distress caused to his wife and children; the ninth applicant
16
See ECHR, Case of A. and Others v. United Kingdom, Judgment of 19 February 2009, paras. 236-244. - 7 -
claimed compensation of £215,000 for unlawful detention and the consequent mental suffering,
including mental illness, together with the distr ess caused to his wife and children; the tenth
12 applicant claimed compensation of £144,000 for loss of liberty and the consequent mental
suffering, including mental illness; and the eleventh applicant claimed compensation of £95,000
17
for unlawful detention and the consequent mental suffering .
1.18. Exercising its discretion, and having re gard to all the circumstances of the case,
including the nature of the violations found as well as the particular context of the case, the Court
decided to award the sum of €3,900 to the first, third and fifth applicants (instead of the £234,000,
£230,000 and £240,000 which they had respectively claimed); €3,400 to the sixth applicant
(instead of the £217,000 which he had claimed); €3,800 to the seventh applicant (instead of the
£197,000 which he had claimed); €2,800 to the eighth applicant (instead of the £170,000 which he
had claimed); €3,400 to the ninth applicant (instead of the £215,000 which he had claimed);
€2,500 to the tenth applicant (instead of the £144,000 which he had claimed); and €1,700 to the
eleventh applicant (instead of the £95,000 which he had claimed) . 18
1.19. The DRC observes here, given the sums awarded to the victims by the ECHR in
relation to their monetary claims and the damaging effects of their detention, that none of them
received so much as 2 per cent of the amount claimed in compensation, even though they suffered a
longer and harsher detention than that of Mr. Di allo, who is claiming the sum of US$250,000 for a
detention which lasted 72 days.
B.2. Case of M.S.S. v. Belgium and Greece
1.20. This case originated in an application against Belgium and Greece lodged with the
ECHR on 11June 2009 by M.S.S., an Afghan as ylum-seeker, alleging that he had suffered
violation of certain provisions of the European Convention for the Protection of Human Rights and
Fundamental Freedoms.
1.21. In his application, the applicant claimed that his expulsion by the Belgian authorities to
13
Greece had violated Articles 2 and 3 of the Convention, and that he had been subjected in Greece
to treatment prohibited by Article 3. He also comp lained of the lack of a remedy under Article 13
of the Convention that would enable him to have these complaints examined . 19
1.22. Regarding the responsibility of Belgium, the applicant claimed pa yment from the latter
of compensation of €24,900 as reparation for the non-pecuniary damage he had suffered because of
the decision of the Belgian authorities to transfer him to Greece.
1.23. In its Judgment, the Court considered that the applicant had experienced certain
distress and, having regard to the nature of the violations found, awarded him the sum of €24,900
as reparation for the non-pecuniary damage he had suffered . 20
1Ibid.
1Ibid., paras. 250-253.
19
See ECHR, Case of M.S.S. v. Belgium and Greece, Judgment of 21 January 2011, para. 3.
2Ibid., paras. 406 and 411. - 8 -
1.24. As regards the responsibility of Gree ce, the applicant claimed payment from that
country of the sum of €1,000 as compensation to make good the non-pecuniary damage sustained
during his detention.
1.25. The Court, after finding that the applicant’s conditions of detention violated the
provisions of Article 3 of the Convention, consider ed that he had experienced certain distress and
21
awarded him the sum of €1,000 as reparation for the non-pecuniary damage he had suffered .
B.3. Case of Assanidze v. Georgia
1.26. In this case, Mr.Assanidze brought a complaint against Georgia alleging prolonged
illegal and arbitrary detention in breach of the provisions of the European Convention for the
14 Protection of Human Rights and Fundamental Free doms, and of Georgian domestic law. Having
been arrested and detained on 11 December 1999, the applicant was acquitted on 29 January 2001
by a decision of the Supreme Court of Georgia, which at the same time ordered his immediate
release. However, following and in spite of his acquittal and the decision of the Supreme Court of
Georgia of 29 January 2001 ordering his immediate release, the applicant remained in custody for
more than three years. This detention for22n indefinite and unforeseeable period was therefore not
based on any law or judicial decision .
1.27. The central Georgian State itself repeated ly pointed out that there was no basis for the
detention of Mr.Assanidze. But the Ajarian pr ovincial authorities which were holding him in
23
custody refused to release him .
1.28. Given this state of affairs, the Cour t began by observing, firstly, that “it is
inconceivable that in a State subject to the rule of law a person should contin ue to be deprived of
his liberty despite the existence of a court order for his release” and, secondly, that “to detain a
person for an indefinite and unforeseeable period, without such detention being based on a specific
statutory provision or judicial decision, is incompa tible with the principle of legal certainty . . . and
arbitrary, and runs counter to the fundamental aspects of the rule of law” . 24
1.29. In justifying and fixing the amount of compensation to make good the non-pecuniary
damage suffered by Mr. Assanidze, the Court began by declaring that
“as regards the non-pecuniary damage already sustained, the Court finds that the
violation of the Convention has indisputably caused the applicant substantial damage.
Held arbitrarily in breach of the founding principles of the rule of law, the applicant is
in a frustrating position that he is powerless to rectify. He has had to contend with
both the Ajarian authorities’ refusal to comply with the judgment acquitting him
15
handed down some three years ago and the failure of t25 central government’s
attempts to compel those authorities to comply.”
21Ibid., paras. 404 and 406.
22See ECHR, Case of Assanidze v. Georgia, Judgment of 8 April 2004, para. 172.
23
Ibid., para. 174.
24
Ibid., paras. 173 and 175.
25Ibid., para. 199. - 9 -
1.30. In these circumstances, and in view of the seriousness of the applicant’s continuing
situation in detention, the Court awarded him the sum of €150,000 in compensation to make good
all the damages he had sustained, whereas the applicant had claimed the amount of €3,000,000 as
compensation for non-pecuniary damage alone . 26
B.4. Case of Ilaşcu and Others v. Moldova and Russia
1.31. The applicants brought proceedings before the ECHR against Moldova and Russia,
complaining of their conditions of detention and of the treatment that had been inflicted on them
while they were detained.
Ia.3.. şcu complained in particular of his conditions of detention for eight years while
under threat o27execution, from his sentencing to death on 9December1993 until his release on
5 May 2001 . During his long detention, Mr.Ila şcu was savagely beaten by the warders at
Tiraspol Prison, who threatened to kill him, and denied food and light by way of punishment; he
was subject to mock executions and kept in strict isolation, without contact with other prisoners or
any news from the outside; he had no right to contact his lawyer or receive visits from his family,
and was held in a cell that was unheated, even in winter, and had no natural light or ventilation. He
could take showers only rarely, often at intervals of several months.
1.33. The Court concluded that the death sen tence imposed on the applicant by an illegal
16 court, the conditions he was living in during this long period of detention and the treatment he
suffered were particularly serious and cruel and must accordingly be considered acts of torture . 28
1.34. Regarding Mr.Ivan ţoc, the Court established that during his detention the applicant
had received a large number of blows, persecution and other ill-treatment. He was denied food and
medical assistance and not permitted to see a lawyer. He was detained in an unheated, badly
ventilated cell without natural light. In the Court’s opinion, such treatment was such as to engender
pain or suffering, both physical and mental, which could only be exacerbated by the applicant’s
total isolation and were calculated to arouse in him feelings of fear, anxiety and vulnerability likely
to humiliate and debase him and break his resistance and will.
1.35. The Court concluded that, taken as a whole and regard being had to its seriousness, its
repetitive nature and its purpose, the treatment inflicted on Mr. Ivan ţoc had caused severe pain and
suffering and was particularly serious and cruel. It added that all these acts must be considered acts
29
of torture .
1.36. As regards Mr.Le şco and Mr.Petrov-Popa, the Court considered that they had
experienced extremely harsh conditions of detention: visits and parcels from their families were
subject to the discretionary authorization of the pr ison administration; at times they were denied
food, or given food unfit for cons umption, and most of the time they were denied all forms of
appropriate medical assistance despite their stat e of health, which had been weakened by these
26Ibid., paras. 196 and 201.
27See ECHR, Case of Ilaşcu and Others v. Moldova and Russia, Judgment of 8 July 2004, para. 419.
28
Ibid., paras. 435-441.
29Ibid., paras. 443-447. - 10 -
conditions of detention; andthey were not given the dietetically appropriate meals prescribed by
their doctors.
17 1.37. The Court also established that Mr. Petr ov-Popa had been held in solitary confinement
since 1993, having no contact with other prisoners or access to newspapers in his own language.
The two applicants were denied access to a lawyer until June 2003.
1.38. In view of the foregoing, the Court cons idered that such treatment was such as to
engender pain or suffering, both physical and mental. Taken as a whole and regard being had to its
seriousness, the treatment inflicted on Mr.Le şco and Mr.Petrov-Popa could be qualified as
30
inhuman and degrading treatment .
1.39. Regarding the amount of compensation to make good the non-pecuniary damage they
had sustained because of their long unlawful detent ion and the ill-treatment they had suffered, the
four victims claimed payment of the following sums from Moldova and Russia: Mr.Ila şcu,
€7,395,000; MrI.van ţoc, €7,842,000; MrP . etrov-Popa, €7,441,000; and MrL . e şco,
€7,830,000 . They claimed these very large sums taking into account the seriousness of the
violations complained of, the circumstances of the case, the attitude of the respondent
Governments, the lasting effects on their health and the trauma they had suffered during their long
unlawful detention.
1.40. Fixing in turn the amount of the compensation sought by the complainants, the Court
began by reiterating that Mr. Ila şcu and Mr. Ivan ţoc had been subjected to acts of torture, that the
other two applicants had been subjected to inhuman and degrading treatment, that all the applicants
had been detained arbitrarily, and that Mr. Ivanţoc, Mr. Leşco and Mr. Petrov-Popa were still being
detained in breach of the European Conven tion for the Protection of Human Rights and
Fundamental Freedoms. It then took the view that as a result of the violations found the applicants
had undeniably suffered non-pecuniary damage. Fi nally, the Court awarded each of the applicants
18 the sum of €180,000 for pecuniary and non-pecuniary dama ge arising from the violations of
Articles 3 and 5 of the Convention (acts of tortur e, inhuman and degrading treatment and unlawful
detention), and each applicant the sum of €10,000 for non-pecuniary damag32arising from the
breach of Article34 by Russia and Moldova (lack of individual remedy) . As will be seen, the
sums awarded to the victims by the Court in this case represent less than 1percent of the sums
claimed by the victims as reparation for the non-pecuniary damage they had suffered.
1.41. It may therefore be concluded from all the judicial decisions described above,
concerning the amounts of compensation to make good non-pecuniary damage resulting from an
unlawful and arbitrary detention or a wrongful expulsion, that the sums awarded by the
international courts dealing with such matters are often reasonabl e and modest in relation to the
initial claims made by the victims, which tend to exaggerate these amounts.
1.42. The only cases in which the compensation awarded to make good non-pecuniary
damage is quite substantial are where the dete ntions are not only found to be unlawful and
particularly long, but are accompanied by acts of torture or cruel, inhuman and degrading
treatment. The courts in question have then ordered the States held responsible for the
30Ibid., paras. 450-452.
31
Ibid., para. 485.
32
Ibid., para. 489. - 11 -
internationally wrongful acts to pay what might be called “punitive or exemplary” damages to the
victims of those acts.
1.43. In the light of these details, the DRC will set out below its views on the amount of
compensation that would be reasonable and appropriate to make reparation for the non-pecuniary
damage suffered by Mr. Diallo.
C. The amount of compensation owed to Guinea to make good the non-pecuniary damage
19 suffered by Mr. Diallo
1.44. There is no question that Mr.Diallo suffered non-pecuniary damage as a result of his
unlawful 72days of detention and expulsion in 1995-1996. It is clear that he suffered a
psychological and emotional shock following his removal from the DRC, where he had spent
32 years of his life. This non-pecuniary damage thus merits compensation by the DRC.
1.45. There is equally no doubt that, during his brief detention, Mr. Diallo did not suffer any
mistreatment at the hands of the Congolese authorities. On that subject, the Court stated in its
Judgment of 30 November 2010 on the merits of this dispute that
“Guinea has failed to demonstrate convincingly that Mr. Diallo was subjected to
[inhuman and degrading] treatment during his detention. There is no evidence to
substantiate the allegation that he received d eath threats. It seems that Mr. Diallo was
able to communicate with his relatives and his lawyers without any great difficulty
and, even if this had not been the case, such constraints would not per se have
constituted [inhuman and degrading] treatment prohibited by Article10, paragraph1,
of the Covenant and by general international law. . . Finally, that Mr. Diallo was fed
thanks to the provisions his relatives brought to his place of detention— which the
DRC does not contest — is insufficient in itself to prove mistreatment, since access by
the relatives to the individual deprived of his liberty was not hindered... In
conclusion, the Court finds that it has not been demonstrated that Mr. Diallo was
subjected to [inhuman and degrading treatment].” 33
1.46. In view of the above, the DRC draws the Court’s attention to the fact that the present
20 case is markedly different to some of those men tioned earlier, in which the victims were illegally
detained for more than 10years and subjected to acts of torture and cruel, inhuman or degrading
treatment. In the case under consideration, Mr.Diallo was detained for only 72days— a period
which was broken up by several days’ release on the orders of the President of the Republic—,
during which time he suffered no cruel, inhuman or degrading treatment at the hands of the
Congolese authorities. It should also be added that his detention was ordered with a view to his
expulsion from Congolese territory, and not as part of regular judicial proceedings. This explains
the disregard shown by the Congolese authorities for the legal time-limit of eight days, which was
exceeded in this case. The failure to respect that time-limit was not the consequence of a deliberate
determination to punish the indivi dual concerned, but rather of the difficulties of arranging the
flight to his country of origin.
1.47. In the light of the foregoing, the DRC requests that the Court take into account the
specific circumstances of this case, the brevity of the detention complained of, the absence of any
33
See ICJ, case concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) ,
Judgment of 30 November 2010, paras. 88-89. - 12 -
mistreatment of Mr.Diallo, the fact that Mr.Di allo was expelled to his country of origin, with
which he had been able to maintain ongoing and hi gh-level contacts throughout his lengthy stay in
the Congo — and not to a country where he was going to suffer mistreatment — as is confirmed by
the present diplomatic protection proceedings initia ted on his behalf by the Guinean Government,
as well as the practice of other international courts which regularly deliver judicial decisions on the
matter of compensation for non-pecuniary damage su ffered by individuals at the hands of States,
even though the Court is not bound by those decisions.
1.48. The Respondent recalls that the purpose of compensation for the non-pecuniary
damage suffered by Mr.Diallo is neither to enrich him, enabling him to invest in commercial
activities in Guinea, nor to enrich Guinea. Rather, it is a form of financial relief, intended to
21 compensate the said injury. It is important not to lose sight of the fact that Guinea has already
obtained satisfaction simply from the Court’s ju dicial finding that the DRC had violated
international law. Guinea will thus have received twofold satisfaction in this case.
1.49. In view of this, the DRC considers that the amount of US$250,000, claimed by Guinea
as compensation for the non-pecuniary damage suffered by Mr.Diallo, is excessive and
disproportionate to the non-pecuniary damage suffe red by the latter as a result of his unlawful
detentions and expulsion in 1995-1996. It is simply a lump sum amount, with no objective or
credible basis. Guinea does not make reference to any precedent in international judicial or arbitral
jurisprudence in arriving at that amount. Moreove r, it is the constant practice of Mr.Diallo and
Guinea to exaggerate the amounts they claim fr om the DRC— as, for example, the sum of
US$36 billion claimed in respect of debts owed to Africom-Zaire and Africontainers-Zaire.
1.50. Since the Parties have not asked the Court to determine ex aequo et bono , pursuant to
Article 38, paragraph 2, of the Statute of the Court, the amount of compensation in the present case,
the DRC believes that a global amount of between US$25,000 and US$30,000, and no higher, is
reasonable and proportionate to the non-pecuniary damage suffered by Mr.Diallo. The DRC is
therefore willing to pay such an amount to Guinea.
1.51. To conclude, the DRC asks that the Court award Guinea a sum between a minimum of
US$25,000 and a maximum of US$30,000, as reparation for the non-pecuniary damage suffered by
Mr. Diallo as a result of his unlawful detentions and expulsion in 1995-1996.
1.52. In the following section, the DRC will consider the question of compensation for the
material damage alleged by Guinea.
SECTION II
22
T HE MATERIAL DAMAGE SUFFERED BY M R. DIALLO
2.01. Material damage is defined by doctrin e as an “infringement of an economic or
34
proprietary interest, that is to say, an interest which can be measured directly in monetary terms”
2.02. In its pleadings, Guinea claims that Mr. Diallo has suffered several forms of material
damage, which it sets out as follows: (1) the loss of professional income since his expulsion from
34
See the Dictionnaire de droit international public, op. cit., p. 361. - 13 -
35 36
the DRC ; (2)the loss of the value of assets, including his bank assets ; and (3)the loss of
potential earnings . The matter of the reimbursement of costs of the proceedings will be examined
later, in Section III of this Counter-Memorial.
2.03. For the sake of clarity, the Respondent will address each of Guinea’s claims for
material damage in turn and in the following order: the loss of professional income (I); the loss of
the value of assets, including bank assets (II); the loss of potential earnings (III).
I. The loss of professional income
2.04. In its Memorial of 6 December 2011, Guinea states that, prior to his expulsion from the
DRC, MrD . iallo’s monthly salary, in his capacity as gérant of Africom-Zaire and
Africontainers-Zaire, was equivalent to US$25,000, amounting to US$10,000 for the first company
and US$15,000 for the second. The Ap plicant adds that, taking account of inflation — the rate of
which it fails to indicate —, it estimates at US$80,000 the immediate loss suffered by Mr. Diallo as
38
a result of the non-receipt of his professional income during the 72 days of his detention .
23 2.05. Furthermore, the Applicant contends that, taking account of the period which has
elapsed since his expulsion and of inflation, the rate of which it once again fails to indicate, the
total loss suffered by Mr. Diallo as a result of th e loss of his professional income over that period
39
can be assessed at US$6,430,148 .
2.06. The DRC will consider below the clai m for US$80,000 relating to the direct and
immediate material loss (A) and for US$6,430,148 relating to the loss of earnings(B) which are
said to have been suffered by Mr. Diallo in connection with the loss of his professional income.
A. The loss of US$80,000 in professional income
2.07. As stated in paragraph2.04 above, Guinea is requesting that the DRC pay a sum of
US$80,000, which represents the i mmediate material loss suffered by Mr. Diallo as a result of the
non-receipt of his professional income during the 72 days of his detention.
2.08. In the following paragraphs, the DRC will show that this request is unfounded, and that
this is so for several reasons.
2.09. It should first be noted that, in th e Judgment of 30November2010 delivered by the
Court in this case, the latter recalled its establishe d jurisprudence on evidence, stating that “[a]s a
general rule, it is for the party which alleges a fact in support of its claims to prove the existence of
that fact” .0
35See MG, p. 16, para. 48.
36Ibid., p. 19, para. 57.
37
Ibid., p. 20, para. 65.
38
See MG, paras. 34 and 35.
39Ibid., para. 48.
40See ICJ, case concerning Ahmadou Sadio Diallo, Judgment of 30 November 2010, para. 54. - 14 -
2.10. In the present case, Guinea claims th at, prior to his expulsion from the DRC,
Mr. Diallo received a monthly salary of US$25,000 in his capacity as gérant of Africom-Zaire and
24
Africontainers-Zaire. However, the fact is that the Applicant offers no written evidence in support
of that claim. There is also no evidence of payment of taxes on such high earnings by Mr. Diallo to
the Congolese revenue authorities.
2.11. Furthermore, throughout these entire pro ceedings, including the current stage, Guinea
has repeatedly argued that Mr.Diallo was the sole gérant and associé of Africom-Zaire and
Africontainers-Zaire. According to Guinea, and as recalled by the Court in its Judgment of
24May2007 on the Preliminary Objections, “in fact and in law it was virtually impossible to
distinguish Mr. Diallo from his companies” . 41
Further, the Court stated in its own words in its Judgment on the merits that “the only gérant
acting for either of the companies, both at the time of Mr.Diallo’s detentions and after his
expulsion, was Mr. Diallo himself” .42
2.12. In view of this, it is inconceivable that two companies which were purportedly in
operation at the time of the events, and over which Mr. Diallo, as their sole gérant and associé, had
full charge and control, could refuse to pay Mr. Diallo his monthly salary during the 72 days of his
detention. If this were the case then, accord ing to Guinea’s reasoning, it would have been
Mr. Diallo himself who refused to pay his own monthly salary, because only he had the authority to
make a decision which would seriously impair his means of survival while in detention. Under
such circumstances, the DRC cannot, therefore, be held accountable for this purported loss of
professional income.
2.13. Moreover, Mr. Diallo was not simply an employee, bound to these two companies by
25
an employment contract which could be terminat ed following a lengthy detention. He was an
organ and one of the owners — if not, and as Guinea contends, the sole owner — of Africom-Zaire
and Africontainers-Zaire, in his dual capacity as gérant and associé of those two companies. It is
important, therefore, not to confuse Mr.Diallo’s situation with the situation of regular employees
of a commercial company, who might lose their jobs , and therefore their salaries, as a result of a
lengthy period of judicial detention.
2.14. Finally, Guinea has failed to demonstrate that the two companies in question found
themselves suddenly short of financial resources over the two months of Mr.Diallo’s detention;
that they did so because of that detention; and that they were therefore unable to pay Mr. Diallo his
monthly salary.
2.15. In conclusion, the Respondent contends that the Applicant has failed (1) to produce any
evidence to show that Mr. Diallo had a monthly income of US$25,000; (2) to provide evidence of
payment of taxes to the Congolese revenue author ities on those earnings; and (3)to offer any
credible or convincing explanation as to why Mr.Diallo, the sole gérant and associé of the
companies in question, could not pay himself his monthly salary during his two months of
detention, despite having the authority and means to do so. In addition, Guinea has not indicated
either the rate of inflation, or the country of that rate of inflation, relied on in this case in order to
pass from US$50,000 to US$80,000.
41See ICJ, case concerning Ahmadou Sadio Diallo, Judgment of 24 May 2007 (Preliminary Objections), para. 56.
42
See ICJ, case concerning Ahmadou Sadio Diallo, Judgment of 30 November 2010 (Merits), para. 112. - 15 -
2.16. Since Guinea’s claim relating to the payment by the DRC of a total of US$80,000 for
loss of professional income during Mr.Diallo’s 72 days of detention is neither credible nor
justified, it follows that it should be dismissed out of hand by the Court.
B. The loss of US$6,430,148 in earnings
*
26 2.17. Guinea, without expressly using the term manque à gagner , seeks the payment of an
amount of US$6,430,148 in compensation for the mate rial loss alleged to have been suffered by
Mr. Diallo as a result of the loss of his professional income, i.e., his monthly salary, over the period
following his expulsion from the DRC on 31January 1996. In other words, the Applicant is
requesting payment of the earnings lost by Mr.Diallo, because he was unable to receive his
monthly salary of US$25,000 after his expulsion from the DRC, and has been unable to receive it
since.
2.18. In order to justify the alleged loss of professional earnings suffered by Mr. Diallo in the
period following his expulsion from the DRC, the A pplicant states that Mr. Diallo’s expulsion had
the following injurious consequences:
“(i) it was made impossible or, at least, considerably more difficult for him to
perform his functions as managing director and gérant, given that he could
no longer go back;
(ii) in being expelled before he could entrust his functions as gérant to a third
party, in accordance with proper procedures, he was deprived of his usual
professional income, even if he retained the right to appoint a third party to
replace him in performing his functions;
(iii) the expulsion of the sole associé and gérant, redu43ng him to penury, has
driven his companies to the brink of bankruptcy” .
2.19. As the DRC will explain below, the reas oning advanced by Guinea as justification for
the payment to it on account of a purported loss of professional earnings is untenable. Given that
Guinea’s claim for loss of earnings is linked to the loss of Mr.Diallo’s professional income, the
arguments previously set forth by the DRC to refu te that claim of loss of income can also be
applied in respect of the alleged loss of earnings related to that income.
2.20. As stated above, Guinea has failed to produce any documentary evidence that
27
Mr. Diallo was in receipt of a monthly salary of US $25,000. In that regard, the Applicant seeks to
be believed by the Court on the basis of its word alone. Thus, Guinea has also failed to explain
how two companies which belonged to Mr.Diallo, and of which he was the sole gérant and
associé, could refuse to pay him his monthly salary during his two months of detention.
2.21. It follows that, since Mr. Diallo did not suffer a loss of prof essional income during his
detention of 72days, the claim for the loss of that income after his detention and expulsion from
the DRC cannot be sustained, since the two compan ies which owed him that income, and of which
Translator’s note— In its Memorial, Guinea used the term “perte de revenus”. In English, both French terms
would normally be rendered as “loss of earnings”.
43
See MG, para. 47. - 16 -
he was and still is gérant and associé, continued to operate without any interference from the
Congolese authorities.
2.22. On the subject of those companies, the Court stated:
“Africom-Zaire and Africontainers-Zaire have not ceased to exist. In the absence of a
judicial liquidation, the dissolution of a company, according to the 1887 Decree, ‘can
only be decided by a general meeting’.. . Once the dissolution has been decided
upon, the company goes into a process of liquidation. The Court notes that there is
however no evidence before it indicating that a judicial liquidation took place or that a
general meeting of either of the two companies was held for the purposes of their
dissolution or liquidation.”
and that “Mr. Diallo was, both as gérant and associé of the two companies, fully in charge and in
44
control of them” .
2.23. Returning to the three injurious conse quences of the expulsion alleged by Guinea, the
DRC considers these clai ms to be unfounded, and it does so fo r a number of reasons, which are
developed below.
28 2.24. Firstly, contrary to Guinea’s contentions, the fact that Mr.Diallo could not return to
Kinshasa did not make it impossible or considerably more difficult for him to perform his functions
as managing director and gérant of the two companies. Indeed, Guinea had previously raised this
argument during the merits stage of the dispute, observing that “following [Mr. Diallo’s] detention
and expulsion by the [Congolese] authorities, it beca me impossible for him, in practical terms, to
perform the role of ‘gérant’ from Guinea, because he was outside the [Congolese territory]” [Reply
of Guinea, para. 2.22].
2.25. The Court rejected that reasoning in the following terms:
“The Court cannot accept this line of reas oning, and refers in this regard to
Article69 of the 1887Decree, which provides that ‘the gérance may entrust the
day-to-day management of the company and special powers to agents or other proxies,
whether associés or not’. Moreover, with respect to Africontainers-Zaire, the Court
also refers to Article16 of its Articles of Incorporation, which provides that the
‘gérance is entitled to establish administrative bases in the Republic of Zaire and
branches, offices, agencies, depots or trad ing outlets in any location whatsoever,
whether in the Republic of Zaire or abroad ’. While the performance of Mr.Diallo’s
duties as gérant may have been rendered more difficult by his presence outside the
country, Guinea has failed to demonstrate that it was impossible to carry out those
duties. In addition, Guinea has not shown that Mr.Diallo attempted to appoint a
proxy, who could have acted within the DRC on his instructions.
In fact, it is clear from various documents submitted to the Court that, even after
29 Mr. Diallo’s expulsion, representatives of Africontainers-Zaire have continued to act
on behalf of the company in the DRC and to negotiate contractual claims with the
Gécamines company.
44
See ICJ, case concerning Ahmadou Sadio Diallo, Judgment of 30 November 2010 (Merits), paras. 113 and 114. - 17 -
The Court accordingly concludes that Guinea’s claim that the DRC has violated
45
a right of Mr. Diallo to exercise his functions as gérant must fail.”
2.26. In view of that position taken by the Court, which requires no comment, Guinea’s
claim regarding the first injurious consequence of Mr. Diallo’s expulsion must be rejected.
2.27. Secondly, despite what Gu inea alleges, the fact that Mr. Diallo was expelled before he
could entrust his functions to a third party, in accordance with proper procedures, did not deprive
him of his usual professional income.
2.28. In the light of the Court’s position as set out above, Guinea’s claim regarding the
second injurious consequence of Mr. Diallo’s expulsion must, like the first, be rejected. It is in fact
established, as the Court observed, that, in order to guarantee the payment of his professional
income, Mr.Diallo entrusted the day-to-day ma nagement of the two companies following his
expulsion to individuals who continued to act on be half of those companies under his supervision.
It is also interesting to note that the inventor y of Africontainers-Zaire’s property, signed on
12 February 1996, includes the following note (NB) c oncerning certain of the company’s vehicles:
“The Saviem 301 unit KN 1794E, trailer KN 9773K and th e fork-lift truck could be repaired on the
instructions of the Chairman and Chief Executiv e, Mr. Ahmadou Sadio Diallo, and brought back
30 into service.” 46 It can be clearly seen that Mr. Diallo continued to manage his concerns in the DRC
in spite of his expulsion and, therefore, that he was not deprived of his professional income as a
result.
2.29. Thirdly, Guinea contends that the expulsion of the sole associé and gérant, reducing
him to penury, has driven his companies to the brink of bankruptcy. This claim by Guinea as to the
third injurious consequence of Mr.Diallo’s expulsion must also be rejected, since it falls outside
the scope of the Judgment of 30 November 2010.
2.30. In fact, had Mr.Diallo’s expulsion driven the two companies to the brink of
bankruptcy, any possible damage would be to the companies as legal entities, and not to Mr. Diallo
personally. However, the present proceedings concern the fixing of the amount of compensation to
be paid to Guinea for the injury caused to Mr.Diallo personally and not as an associé of the
companies in question.
2.31. In that connection, the Court stated th at the “47ghts and assets of a company must be
distinguished from the rights and assets of an associé” and that “[s]o long as the company is in
existence the shareholder [or associé] has no right to the corporate assets” 48.
It is worth recalling here that Guinea’s clai ms concerning the rights and debts of the two
companies were declared inadmissible by the Court.
45See ICJ, case concerning Ahmadou Sadio Diallo, Judgment of 30 November 2010 (Merits), paras. 135-137.
46See Ann. I, p. 3 of the inventory.
47
See ICJ, case concerning Ahmadou Sadio Diallo, Judgment of 30 November 2010 (Merits), para. 155.
48See ICJ, case concerning Ahmadou Sadio Diallo, Judgment of 24 May 2007, ICJ Reports 2007, para. 63. - 18 -
2.32. With respect to Mr. Diallo’s purported penury, said to be the result of his expulsion, the
DRC points out that he was issued, at his own request, with certificate of lack of means
31 No. 01/DUAS/B.2./0974/95 of 12 July 1995, drawn up by the Social Affairs Urban Division of the
city of Kinshasa. That certificate, which was dr afted several months prior to his detentions and
expulsion from the DRC, states that “Mr.Diallo. .. is... temporarily destitute, insolvent and
lacking any means of subsistence, after examination of his file” . The certificate was produced by
Guinea itsel50as Annex22 to its Observations on the Preliminary Objections of the DRC of
7 July 2003 . It is clear therefore that, by his own admission, Mr.Diallo had considerable
financial problems well before his detentions and expulsion from the DRC in 1995-1996.
Furthermore, the DRC draws the Court’s atten tion to the fact that, since 1991, more than
four years prior to his detentions and expulsi on from Congolese territory, Mr.Diallo lacked the
funds to pay the monthly rent on the apartment he oc cupied in Kinshasa. It was in reaction to that
situation that PLZ, the company which owned the apartment, terminated the lease on 30 April 1992
and brought proceedings before the Congolese courts to force Mr. Diallo to vacate the premises and
51
to pay the accrued rent, which amounted to US$32,964 as at 19 November 1992 . That situation
is further proof that Mr. Diallo had major financial problems, to the point that he was unable to pay
the monthly rent on the apartment he occupied, causing the lessor to bring proceedings before the
Congolese courts to secure his eviction and payment of the outstanding rent, and that he had these
problems several years prior to his expulsion from the DRC.
32 Thus, there has been no credible or convincing evidence produced before the Court in
support of Mr.Diallo’s alleged state of penury, said to have resulted from his expulsion from the
DRC.
In view of the above, the DRC submits that Mr.Diallo was in very serious financial
difficulty long before his detentions and expulsi on from the Congolese territory in 1995-1996, and
that the Respondent is in no way responsible for that difficulty.
2.33. To conclude on this point, the DRC se eks assistance from the Court’s jurisprudence in
the Corfu Channel case concerning t52 assessment of the amount of compensation owed by
Albania to the United Kingdom . In that case, the United Kingdom claimed from Albania an
amount of £50,048 in compensation for the deaths and injuries of British naval personnel. That
sum represented the cost of pensions and other gr ants made by the United Kingdom to the victims
or their dependants, and the costs of administration, medical treatment, etc.
2.34. The Court awarded the said sum to the United Kingdom, stating:
“Texpsenditure has been proved to the satisfaction of the Court by the
53
documents produced by the United Kingdom Government as Annexes12 and13 to
4See Ann. II to this Counter-Memorial.
50
See Observations of the Republic of Guinea on the Prelim inary Objections of the De mocratic Republic of the
Congo, Vol. II (Annexes), 7 July 2003, Ann. 22.
51
See the details of that case, Preliminary Objections of the DRC, 1 October 2002, Vol. I, p. 36.
5See ICJ, case concerning the Corfu Channel (assessment of the amount of compensation owed by the People’s
Republic of Albania to the United Kingdom of Great Britain and Northern Ireland), Judgment of 15December1949,
I.C.J. Reports 1949, p. 244.
5Emphasis added. - 19 -
its Memorial, and by the supplementary info rmation and corrections made thereto in
Appendices I, II and III of that Government’s Observations of July 28th, 1949.” 54
33 2.35. It is thus clear that the Court awar ded the United Kingdom the sum it claimed because
the United Kingdom produced probative documents substantiating the costs it had incurred.
However, in the present case, Gu inea has failed to produce any evid ence attesting to the existence
of Mr.Diallo’s alleged professional income or to his loss of earnings in respect of that income.
The Applicant has also omitted to explain how Mr. Diallo could have been deprived of his monthly
salaries when he was the sole gérant and associé of the two companies which paid those salaries
prior to his detentions and expulsion.
2.36. Aware that its claims are not based on any documents of irrefutable evidential value,
the Applicant leaves it to the Court to find, in its place, the evidence to support its allegations, even
including Mr. Diallo’s own monthly salary statement . In that regard, the DRC points out that the
Applicant must either produce documentary evidence in support of its financial claims or withdraw
those claims for lack of evidence. And if it lacks the evidence, the Court can but note that
deficiency and draw from it the necessary legal consequences in this type of situation.
2.37. In conclusion, and in view of all of the foregoing, the Respondent requests that the
Court reject Guinea’s claim concerning payments of US$80,000 and US$6,430,148 to compensate,
respectively, Mr.Diallo’s alleged loss of professional income during his 72days of detention and
his purported loss of earnings in respect of that income in the period following his expulsion from
Congolese territory.
II. The loss of assets (including bank assets)
2.38. The Applicant alleges that, following th e expulsion of Mr.Diallo from the DRC, he
34 lost all of the movable property which had been in the apartment where he was living in Kinshasa.
The DRC would point out in this connection that this was an apartment rented for Mr. Diallo from
PLZ by Africom-Zaire.
Guinea explains that the inventory of Mr.Diallo’s personal belongings drawn up after his
expulsion is incomplete and does not reflect the true situation, in that certain objects are claimed to
have been fraudulently removed betw een the date of his expulsion and the date of the inventory,
because the Congolese State failed to take appropriate st eps to protect his property. In this regard,
Guinea cites certain valuable objects which are not listed in the inventory, such as jewellery, a
Cartier watch with 16 small diamonds, 50 gold ballpoint pens as gifts for visitors, etc.
2.39. Guinea further cites the loss of movable property of Africontainers-Zaire, of which the
inventory, drawn up on 12 February 1996, is also alleged to be incomplete. The DRC would point
out in this regard that this reference to the alle ged loss of property of Africontainers is misplaced,
since the Court has already held that all claims by Guinea relating to the rights of that company are
inadmissible.
5Ibid., pp. 249-250.
55
See MG, pp. 16-17, para. 49. - 20 -
2.40. As compensation for the material da mage resulting from the loss of Mr.Diallo’s
personal property, Guinea is claiming from the DRC payment of a lump 56m of US$550,000,
representing the value of the lost assets, including his bank assets .
2.41. The DRC will explain to the Court that this claim by Guinea is not based on any
serious and credible evidence, and should be dism issed for a number of reasons, which will be set
out below.
2.42. As has been noted earlier, it is true that the Court clearly stated in its Judgment on the
merits of the dispute that the DRC must pay co mpensation to Guinea for the injury flowing from
35 the wrongful detentions and expulsion of Mr.Diallo in 1995-1996, including the resulting loss of
his personal belongings . The Respondent considers that this is simply a statement of principle by
the Court regarding the possible loss of Mr.Diallo’s personal belongings. It is thus now for
Guinea, at the present stage of the proceedings, to provide the Court with evidence under three
heads: (1)credible and convincing evidence of the genuine, rather than imaginary, existence of
Mr.Diallo’s personal belongings; (2)evidence of the real, rather than hypot hetical, loss of those
belongings following his expulsion; and (3) credible and irrefutable proof of their financial value.
2.43. As regards the existence of Mr.Di allo’s personal belongings, Guinea cites the
inventory of those belongings drawn up on 12Febr uary 1996, namely 12days after his expulsion
on 31 January 1996 . Examination of this document s hows that it was also drawn up on the
instructions, and under the supervision, of the Embassy of Guinea in Kinshasa by two
representatives of Mr.Diallo, including a member of his fam59y, Mr.IbrahimDiallo. The same
applies to the inventory of the property of Africontainers-Zaire .
2.44. It is this inventory of the personal belongings of Mr.Diallo at his residence in
Kinshasa, drawn up under the supervision of Guinea itself, which alone constitutes the sole credible
and serious evidence of the existence of those belongings. It is thus no longer open to Guinea to
claim that there existed other personal belongings of Mr.Diallo that were not included in the
inventory which it had itself caused to be drawn up in tempore non suspecto.
2.45. As regards the loss of Mr.Diallo’s personal belongings, the DRC would begin by
pointing out to the Court that he was living in an apartment with his domestic servants, who were
responsible for its care. Moreover, the DRC did not order Mr. Diallo’s eviction from the apartment
36 containing his personal belongings, and thus had no control over the apartment. It is accordingly
for Guinea, which had a detailed inventory prep ared of Mr.Diallo’s personal belongings, to
indicate to the Court the steps taken by it to protect those belongings. It is apparent from the terms
of the inventory that Mr. Diallo’s personal belonging s could not have been lost, since they were in
the possession of Guinea, and of his friends and clos e relatives. In any event, no responsibility can
be attributed to the DRC for the alleged loss of the said belongings, since these were in Guinea’s
own possession, and Guinea had had them properly inventoried in due time.
5Ibid., pp. 17-19, paras. 50-61.
5Emphasis added.
58
See Ann. III to this Counter-Memorial.
5See Ann. I to this Counter-Memorial. - 21 -
2.46. Regarding the specific case of the loss of Mr. Diallo’s bank assets alleged by Guinea,
the DRC is surprised, and has great difficulty in understanding how he could have lost his bank
assets after being expelled. If there is one place in the world where a person’s financial assets are
secure, it is in a bank. The DRC would also point out to the Court that it is surprising to see that
the Applicant gives no indication in its plead ings either of the Congolese banks which held
Mr. Diallo’s assets or of the amount of those assets.
2.47. In any event, Guinea fails to explain how Mr.Diallo could have lost his bank assets
after his expulsion from the DRC, since he must surely have evidence of these, as well as knowing
the banks concerned, enabling him to recover his assets. Thus Guinea produces no evidence that
Mr.Diallo attempted to recover the assets lodged by him with Congolese banks, or that the
Congolese authorities requested those banks not to hand them over to him.
2.48. In regard to the value of the personal belongings of Mr.Diallo inventoried in his
apartment, Guinea itself explains in its pleadings that these represent a ridiculously small number
of very minor items. However ⎯ paradoxically ⎯ Guinea even manages to accuse the inventory
37 of having concealed certain items of property, wh en it is the Applicant State itself which had the
inventory prepared. Guinea seeks to show that Mr.Diallo’s apartment contained objects of great
value by citing as evidence an article from the magazine Jeune Afrique of 16February1984,
published 12years before his expulsion, where his apartment is described as clean and plain and
60
tastefully furnished .
However, praise from a well-intentioned journa list does not mean to say that the apartment
rented by Diallo contained the non-inventoried objects described in 2011 by Guinea in its
pleadings. Thus, the good journalist of Jeune Afrique could not have imagined that, 12 years later,
the millionaire Diallo would be unable to pay the rent on that apartment and that his landlord would
have to take him to court to have him evicted for non-payment of rent, amounting to a total of
US$32,964.
2.49. The DRC would point out to the Court that the contradictions and inconsistencies of
the Applicant in regard to the loss and value of Mr.Diallo’s personal belongings demonstrate the
utter confusion surrounding its attempts to justify its exaggerated and unreal claims, and in
particular the sum of US$550,000 on account of compensation.
2.50. In the light of the foregoing, the Respondent requests the Court to find, firstly, that
Guinea has failed to show in a sufficient and convincing manner, beyond all reasonable doubt, that
Mr.Diallo possessed personal belongings other than those listed in the inventory and that these
have been lost; and, secondly, that the Applicant h as also failed to justify to the satisfaction of the
Court, through probative documents filed by it, the amount of US$550,000 claimed by it as
compensation to make good the purported other material loss allegedly suffered by its national; and
that, accordingly, no compensation is due under this head of damage.
38 III. The potential loss of earnings
2.51. The Applicant requests the Court to order the Respondent to pay it the sum of
US$4,360,000 as compensation to make good the injury suffered by Mr.Diallo on account of
potential loss of earnings.
60
On this section, see MG, p. 18, paras. 55 and 56. - 22 -
2.52. In its pleadings, Guinea describes the potential loss of earnings suffered by Mr. Diallo
as follows:
“Mr. Diallo was also obstructed in the pursu it of his activities at the head of the two
companies and, in particular, in the assignment of his shares to third parties before
being expelled. As a result of his expulsion and the conditions in which it was carried
out, the fortunes of both companies, and in particular of Africontainers, immediately
went into sharp decline and their assets were dispersed.”
The Applicant explains that:
“[t]he financial consequences of the r esulting ‘potential loss of earnings’ can be
valued at a fraction of the exchange value of the shares making up the entire share
61
capital of the two companies . In case of sale, the value of the two companies, which
had no liabilities, would have taken account of:
⎯ the value of the movable and immovable property which they owned, as
catalogued in the case of Africontainers, in a non-exhaustive inventory; and
⎯ the debts owed to them by their various clients, including the Congolese State
itself in the ‘listing paper’ case.”62
39 2.53. Regarding the method of calculation of the amount of compensation to make good the
potential loss of earnings suffered by Mr.Dia llo, Guinea proceeds as follows: (1)the sum of
US$1,000,000, representing the debt owed to A fricom-Zaire by the Congolese State in connection
with the “listing paper” case; plus (2)the su m of US$5,000,000, representing the cost of the
purchase and development of the first plot of 8,0 00sqm owned by Africom-Zaire; plus (3)the
sum of US$2,000,000, representing the cost of the purchase and development of the second plot of
2,400sqm of Africom-Zaire; plus (4)the sum of US$720,000, representing the value of
600containers, at US$1,200 each, belonging to Africontainers-Zaire; giving a total of
63
US$8,720,000 .
2.54. According to Guinea, the potential earnings of which Mr.Diallo was allegedly
deprived may be evaluated, in view of his cen tral and essential role in the activities of the two
companies, at 50 per cent of the total sum of US$8,720,000 as calculated above, namely the sum of
64
US$4,360,000 .
2.55. The Respondent will show in the following paragraphs that this claim by the Applicant
is neither credible nor justified, and will accordingly request the Court to dismiss it out of hand.
2.56. In this regard, the DRC would begin by pointing out that the assets and debts relied on
by Guinea in order to calculate Mr. Diallo’s alleged potential loss of earnings belong not to him but
to the companies Africom-Zaire and Africontainers-Zaire, which, according to the Court, are still in
existence today. However, according to the Cour t’s well-established jurisprudence, as moreover
6Emphasis added.
62
See MG, p. 20, paras. 63-64.
63
Ibid., p. 21, paras. 66-68.
6Ibid., p. 20, para. 65. - 23 -
recalled above, “[s]o long as the company is in existence the shareholder [or associé] has no right
to the corporate assets”.
Guinea is thus not entitled to calculate the purported potential loss of earnings allegedly
40 suffered by Mr. Diallo on the basis of assets which do not belong to him. It could only do so on the
basis of Mr. Diallo’s own personal activities and assets.
2.57. Moreover, the assets of the two companies relied on by Guinea in order to calculate the
purported potential loss of earnings suffered by Mr. Diallo still exist today. Guinea has provided
no evidence, and has not claimed, that these assets have been lost. The two plots with a value of
US$7,000,000 allegedly belonging to Africom-Zaire have not been expropriated by the Congolese
State. Thus, if Africom-Zaire succeeds in selling these two plots, or in recovering its debt from the
Congolese State, Mr. Diallo, who is the company’s gérant and sole owner, will recover the entire
sale price of those plots, as well as the amount of the debt in respect of the listing paper, namely the
sum of US$8,000,000, sin ce Guinea states that the company has no liabilities 6. The same
reasoning is equally valid as regards any sale of the 600containers belonging to
Africontainers-Zaire. The position would remain th e same as regards Mr.Diallo’s rights in the
event of the two companies being judicially or voluntarily wound up and liquidated.
2.58. The DRC would point out that Guinea is revealing for the first time before the Court
that Africom-Zaire, and hence Mr.Diallo according to the thesis of the Applicant, owns two
important plots of land situated in the centre of Kinshasa, with a total value of US$7,000,000. In
these circumstances, Guinea does not explain why Mr .Diallo has not sold these plots of land in
order to acquire funds and set himself up in busin ess again in Guinea, instead of living, as the
Applicant claims, in a state of poverty and destitution in Conakry.
It follows that Mr. Diallo’s alleged state of poverty and destitution, which is claimed to be an
injurious consequence of his expulsion from the DR C, and which has been referred to a number of
41 times by Guinea in the course of the present dispute, is simply an untruth put forward for purposes
of the case before the Court.
2.59. However, the DRC can also envisage the contrary hypothesis, where Africom-Zaire is
not the owner of the two plots of land in question, since Guinea has failed to file any document of
title in respect of these plots, established by the competent Congolese authorities in the name of
that company.
2.60. The subject of immovable property is governed under Congolese domestic law by the
Real Property Law [loi foncière] of 20July1973, as amended by the Law of 18July1980.
Article 219 of that Law provides as follows:
“In order for a beneficial right to land to be legally established, a certificate of
registration of title granted by the State is required.
Private ownership of a building affixed to land, which is always regarded as
distinct from the land, can be legally est ablished only through registration of the
building on the certificate evidencing the grant of the land. It may be established by a
separate certificate of registration, noted on the certificate evidencing the grant.”6
6Ibid., p. 20, para. 64.
66
See Ann. IV to this Counter-Memorial. - 24 -
Guinea contends that Africom-Zaire is the owner of two plots of land in Kinshasa with a
total value of US$7,000,000. But it fails to produ ce to the Court two certificates of registration —
the only documents of title recognized under Congolese law— in respect of these two plots of
land, in order to prove their existence and the fact that they are owned by that company.
42 2.61. In these circumstances, Guinea’s claim of US$7,000,000 as representing the value of
the two plots owned by Africom-Zaire, without its having filed any evidence of the existence of
those plots, of their legal registration in the name of that company, and of their official valuation, is
based on no serious and credible evidence.
2.62. What is still more ridiculous and contra dictory in Guinea’s claim is that the Applicant
fixes at 50 per cent of the value of the assets of the two companies, calculated at US$8,360,000, the
potential loss of earnings suffered by Mr.Diallo. However, given that, according to Guinea,
Mr.Diallo is the sole associé of the two companies, and hence their sole owner, and that the
companies had no liabilities, the DRC is at a loss to identify those to whom Guinea leaves or gives
the remaining 50 per cent of the total value of the said assets.
In other words, the DRC cannot understand why Guinea does not claim the entire amount of
the value of the assets of the two companies on behalf of Mr. Diallo, instead of confining itself to
50 per cent thereof.
2.63. This all serves to demonstrate the A pplicant’s improper judicial strategy, which
consists in presenting to the Court a number of heads of damages and claim, even at the cost of all
intellectual rigour, so as to multiply the possibilities of securing money for Mr. Diallo.
2.64. In the light of the foregoing, the DRC is bound to conclude that Guinea has not
justified to the satisfaction of the Court, through probative documents filed by it, the amount of the
compensation of US$4,360,000 claimed by it in order to make good the purported potential loss of
earnings allegedly suffered by Mr.Diallo. For th is reason, the Respondent requests the Court to
find that no compensation is due to Guinea under this head of claim.
43 2.65. In the following section, the DRC will address the issue of the reimbursement of the
costs of the proceedings, as claimed by the Applicant in its pleadings.
S ECTION III
THE COSTS OF THE PROCEEDINGS
3.01. The Applicant contends that it has been forced to institute the present proceedings, in
the course of which it has incurred costs which it should not be required to bear. It accordingly
asks the Court to order the DRC to pay it the sum of US$500,000, as reimbursement in respect of
the costs which it has thus had to incur in order to assert its rights .
3.02. The DRC will explain to the Court in the following paragraphs that this claim by
Guinea is unfounded, and should accordingly be dismissed.
67
Ibid., p. 22, para. 69. - 25 -
3.03. The DRC would begin by referring to the practice of the European Court of Human
Rights on the question of the reimbursement of legal costs. The European Court of Human Rights
regularly hands down judicial decisions on claims by parties for the reimbursement of the alleged
costs of proceedings. In its abundant practice on the subject, an established general principle can
be identified, governing claims for reimbursement of the costs of proceedings.
3.04. Thus, in Oçalan v. Turkey, where the applicant claimed reimbursement from Turkey of
the legal costs incurred by him in the course of the proceedings, the ECHR recalled its established
case law in the matter in the following terms:
“According to the Court’s established case-law, costs and expenses will not be
awarded under Article41 [of the Convention] unless it is established that they were
actually incurred, were necessarily incurred and are also reasonable as to quantum.
44
Furthermore, legal costs are only recoverable in so far as they relate to the violation
found.” 68
3.05. Applying this principle to the case before it, the Court, ruling on an equitable basis,
awarded Mr. Oçalan the sum of €120,000.
3I06. Mooren v. Germany, the ECHR again recalled its established jurisprudence, stating
that:
“costs and expenses will not be awarded under Article 41 [of the Convention] unless it
is established that they were actually and necessarily incurred, and were reasonable as
to quantum. Furthermor69 legal costs are onl y recoverable in so far as they related to
the violation found.”
3.07. The ECHR restated and applied this same principle in M.S.S. v. Belgium and Greece,
where it dismissed the part of the claim for reimbursement of costs which was not accompanied by
supporting documents . 70
3.08. In the present case, Guinea has asked that the DRC be ordered to pay it the sum of
US$500,000 a71reimbursement of the costs and expenses which it claims to have incurred during
the present proceedings.
3.09. This claim by Guinea raises two basic qu estions, to which there is no answer in the
45 Applicant’s pleadings. First, does the sum clai med relate solely to the present phase of the
proceedings, regarding determination of the amount of compensation, or to all three of the case’s
phases? Secondly, does there, or does there not, exist any evidence of the costs and expenses
incurred by Guinea?
3.10. The DRC considers that Guinea lost the case on the essential part of its claim for
payment of debts of US$36billion owed to Africo m-Zaire and Africontainers-Zaire. It was this
6See ECHR, Oçalan v. Turkey, Judgment of 12 May 2005, para. 215.
6See ECHR, Mooren v. Germany, Judgment of 9 July 2009, para. 134.
70
See ECHR, M.S.S. v. Belgium and Greece, Judgment of 21 January 2011, paras. 418 and 422.
7Emphasis added. - 26 -
principal claim which represented the raison d’être of its proceedings for diplomatic protection
instituted before the Court in December1998. The Court itself found in its Judgment on the
preliminary objections that:
“the greater part of Guinea’s Application concerns the disputes between
Africom-Zaire and Africontainers-Zaire. .. and their public and private business
partners... Specifically, Guinea devotes a lengthy part of its Application to
describing the debts allegedly owed to the companies and Mr.Diallo, as well as to
expounding the legal grounds on which the DRC is alleged to be liable for all these
debts.”
The Court further adds that: “[i]n its Memo rial on the merits, Guinea continues to devote
considerable attention to the issue of de bts allegedly owed to Africom-Zaire and
72
Africontainers-Zaire and to Mr. Diallo” .
3.11. In other words, the major part of Guin ea’s activities before the Court related to this
essential aspect of its claim. Having lost the case on its principal head of claim, Guinea cannot be
entitled to any reimbursement in respect of th e costs and expenses incurred by it on account of
work carried out on that part of the case.
3.12. Moreover, Guinea also lost the case on the issue of Mr. Diallo’s direct rights as associé
46 in Africontainers-Zaire and Africom-Zaire. As a result, and just as has been stated in the preceding
paragraph, Guinea is not entitled to claim any reimbursement of the funds and expenses in respect
of the work relating to this head of claim.
3.13. There remains the matter of Guinea’s su ccess on the secondary issue of the violation,
as found by the Court, of Mr.Diallo’s individua l rights, namely, his wrongful detentions and
expulsion in 1995-1996. On this point, the DRC cannot accept that the costs and expenses incurred
by Guinea on account of work limited to this head of claim can be evaluated at US$500,000.
3.14. The DRC readily accepts that Guinea has indeed incurred expenses in the course of this
case, but Guinea has provided the Court with no evidence of the expenditure actually incurred, or
of whether it was necessary, and reasonable as to quantum. It therefore follows that the amount of
US$500,000 claimed by the Applicant represents an arbitrary, lump-sum determination,
unsupported by any serious and credible evidence.
3.15. The DRC has, like Guinea, also expended large sums of money in defending itself
before the Court, and has won on several heads of claim. It would therefore be inequitable for it to
be ordered by the Court to reimburse the costs incurred by Guinea, while obtaining no
reimbursement at all from the latter. Given that, in the present case, each State has won on certain
heads of claim and lost on others, the just solution would be for each State to bear its own costs and
to claim nothing from the other.
3.16. On this point, the DRC would refer to the practice of the International Centre for
Settlement of Investment Disputes between States and Nationals of Other States (“ICSID”) as
regards the question of reimbursement of costs.
72
See ICJ, case concerning Ahmadou Sadio Diallo, Judgment of 24 May 2007 (Prelim inary Objections), ICJ
Reports 2007, paras. 27 and 29. - 27 -
47 3.17. Thus in Patrick Mitchell v. DRC, the ICSID Ad Hoc Committee held, in its decision of 73
1 November 2006, that “each Party shall bear its own defence costs, including counsel’s fees” .
3.18. Again, in African Holding Company of America and Société Africaine de
Construction v. DRC, the ICSID Arbitral Tribunal held that “each Party shall settle its own legal
costs and expenses” .74
3.19. It is true that the Court is bound neither by the decisions of ICSID nor by those of the
ECHR as regards the reimbursement of costs incurred by the Parties. But the practice of those
bodies provides helpful guidance on the way issues of this kind are settled.
3.20. In the present case, the DRC requests th e Court, for the reasons set out above, to
dismiss the request for the reimbursement of co sts submitted by Guinea and to leave each State to
bear its own costs of the proceedings, including the costs of its counsel, advocates and others.
S ECTION IV
PAYMENT OF STATUTORY DEFAULT INTEREST
3.21. In its pleadings, the Applicant asks the Court to order the Respondent to pay it
statutory default interest75 on the amount of US$11,590,148 76, which is the total of all the sums
48 claimed by Guinea from the DRC.
3.22. The DRC would observe to the Court that Guinea fails to indicate in its pleadings what
law requires the payment of statutory default inte rest in the present case. Is it Guinean law,
Congolese law, or some rule of positive international law applicable to both States?
3.23. Furthermore, the DRC notes that the Applicant nowhere indicates the rate of interest
applicable here. Nor does it specify the internati onal legal instrument where we might find such a
rate of default interest which would be binding on both Parties to the present dispute.
3.24. In the light of what has just been sai d, the Respondent requests the Court to dismiss
Guinea’s claim for payment of statutory default interest on any sums that it might award it in
respect of compensation.
73
See ICSID, Patrick Mitchell v. DRC , (case No.ARB/99/7), Annulment Proceedings regarding the Award
Rendered on 9 February2004, Decision on the Applicatifor Annulment of the Arbitral Award, 1November2006,
para. 67.
74
See ICSID, case No. ARB/05/21, Award of 29 July 2008, para. 125.
75
Emphasis added.
76See MG, p. 21, para. 69. - 28 -
SECTION V
SUBMISSIONS
3.25. Having regard to all of the argumentsof fact and law set out above, the Democratic
Republic of the Congo asks the Court to adjudge and declare that:
(1) compensation in an amount of US$30,000 is due to Guinea to make good the non-pecuniary
injury suffered by Mr. Diallo as a result of his wrongful detentions and expulsion in 1995-1996;
(2) no default interest is due on the amount of compensation as fixed above;
(3) the DRC shall have a time-limit of six months from the date of the Court’s judgment in which
to pay to Guinea the above amount of compensation;
49 (4) no compensation is due in respect of the other material damage claimed by Guinea;
(5) each Party shall bear its own costs of the pr oceedings, including costs and fees of its counsel,
advocates, advisers, assistants and others.
21 February 2012
Professor Tshibangu KALALA ,
Co-Agent of the Democratic Republic of the Congo.
___________
Counter-memorial of the Democratic Republic of the Congo - Compensation due to Guinea