Translation

COF
CR 2003/23 (translation)
CR 2003/23 (traduction)
Tuesday 29 April 2003 at 12.15 p.m.
Mardi 29 avril 2003 à 12 h 15
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Le PRESIDENT : Veuillez vous asseoir. La séance est ouverte et je donne maintenant la
parole à S.Exc. M. Ronny Abraham, l’agent de la République française.
Mr. ABRAHAM: Mr. President, Members of the Court, I have the feeling at this stage of
the debate that the Court has by now been amply enlightened on the sole issue which presently
concerns it ¾ whether the conditions required for the indication for provisional measures are
satisfied in the present case and at the present time. The preceding discussion has adequately
demonstrated that in fact none of those conditions is satisfied. It was for the Applicant, which is
claiming provisional measures, to show that the conditions necessary for such measures are
fulfilled. And you cannot fail to see that no such demonstration has been forthcoming. There is
neither risk of irreparable harm to the rights of the Congolese State nor, a fortiori, any situation of
urgency which might justify one measure or another aimed at preventing the imminent occurrence
of any such irreparable damage.
This morning, it is true, counsel for the Congo attempted to flesh out somewhat their
arguments on the subject. But it is all too apparent that on the one hand they have still largely
argued the merits of the case, that is to say, argued on ground which is irrelevant at the present
stage of the proceedings that are before you, and on the other ¾ to the extent that they have sought
to establish the existence of a serious and imminent danger to the rights of the Congo ¾ they have
done so in a highly speculative and hypothetical manner.
We heard a lot more phrases this morning such as “perhaps”, “it is not out of the question
that”, “it might be that”: nothing terribly objective, precise, rigorous, stringent. A lot of
speculation, a great deal of supposition about what might possibly transpire in the future. One of
Congo’s counsel, I think it was Professor Decocq, having admitted that French law and the
jurisprudence of the highest French courts, the Court of Cassation, confer upon foreign Heads of
State absolute immunity in terms of criminal proceedings, felt that he needed to add that, this
notwithstanding, it was not impossible that a French court, that a first, première instance, court,
might not respect the law, because that has happened in the past. But once again this is purely in
the realms of hypothesis and speculation.
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Until the present moment it has not been challenged, and it is certainly not seriously
challengeable, that all the steps taken by the French courts in this particular case have been strictly
in conformity with French law. They have respected the limits of their jurisdiction and have
respected the immunities enshrined in French law in conformity with international law. Can it be
supposed that in the future our courts would move away from respecting the law they are required
to apply? And on what basis? It would be a bad trial. Furthermore, let us recall that if a court
hands down a decision which wrongly applies the law, which can happen in France of course ¾
judges are not infallible ¾ there are means of redress. The French legal system offers ample
means of redress to overturn or reverse any errors that may have been made. And here, of course, I
am using the conditional, because we have no examples of such errors in the particular case before
us.
Frankly, Mr. President, distinguished Members of the Court, I do not think it is with
arguments of this nature that anyone can usefully appear before your Court and request the
indication of provisional measures whose exceptional character we have already underscored, and
thus the need to base that request on objective and verifiable arguments. Similarly, we have heard
vague and at the same time dramatic language about risks of destabilization to the Congolese State,
attempts of a back-door coup d’état via the judicial system, a risk of civil law, disorder, etc. But
how can it be argued that just because we have judicial proceedings under way in France, at the
very early stage of judicial investigation, concerning only one single person ¾ that is
General Dabira, who apparently does not have any particular first-rank functions today in the
Congolese State ¾ this can affect the international situation of the Congo, the domestic situation of
the Congo? I believe this again is speculative fear and anxiety, excessively so, and scarcely
confirmed by the realities of the situation. Now I could stop there, Mr. President, but nonetheless I
should like to respond precisely to a number of points which were raised this morning by counsel
for the opposing Party, in order to redress certain errors and tendentious claims and presentations
that were made.
Firstly, Professor Zorgbibe stressed that the Congolese Minister of the Interior was called
upon frequently to make foreign trips. As a consequence of that the restrictions that might be
imposed on his freedom of movement would affect the proper functioning of the Congolese
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Government and justify your indicating provisional measures. But let me just say that no measure
of prosecution has been undertaken in the French proceedings against the Interior Minister of the
Congo. And let me recall that this cannot be otherwise, given that under French law the
jurisdiction of the French courts in a case of our kind is conditional on the prior presence on French
territory of the suspect. So here, once again, we are in the presence of pure speculation. And
furthermore such an argument, let us recall, conflicts directly with the Order which you handed
down with respect to the request for the indication of provisional measures in the Yerodia case, that
is, the COBE case, because in order to refuse the indication of provisional measures requested of
you, you refer in paragraph 72 of your Order to the fact that subsequent to the ministerial reshuffle,
Mr. Yerodia was no longer Foreign Minister and had become Minister of National Education and
thus far less exposed to the need for foreign travel (than, it was to be understood, the Foreign
Minister), and that, as a consequence of that, it was not established that irreparable prejudice might
be caused in the immediate future ¾ immediate future ¾ to the rights of the Congo.
It seems to me that what you said with respect to a Minister of Education surely would also
apply to a Minister of the Interior. His functions and duties are essentially domestic in nature,
obviously, and he is far less exposed to the need for foreign travel than a Foreign Minister. Public
life though being as it is today, anybody with a ministerial portfolio may have at one time or
another to go abroad. But that is not the real problem, it is not the question. Moreover, if you
followed this argument which the other Party has put before you logically through to the end, given
the circumstances of public office today, the conclusion would be that absolutely all the members
of a government, all the senior officials of government, should henceforth benefit from immunities
under international law. But that is not what your Judgment ¾ on the merits ¾ in the Democratic
Republic of the Congo v. Belgium case suggests. I do not want to go into that because it concerns
the merits and we are at the stage of provisional measures. I will say no more.
There is a second element on which I would like to clarify matters somewhat:
Professor Decocq said that the application requesting a criminal investigation to be opened which
was made by the Meaux prosecutor who seised the investigating judge seised the judge in rem, that
is, seised him of the facts which had been complained of to the prosecutor, in such a way that this
seisin enabled the investigating judge to place under formal investigation, charge, or even detain
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any person whom that judge might feel was implicated in the facts. And we have been told that
consequently the investigating judge could perfectly well accomplish such steps with respect to
President Sassou Nguesso ¾ why not? ¾ or with respect to the Minister of the Interior or any
Congolese dignitary, and that nothing limited the judge’s powers once he had been seised by an
application relating to certain facts and not restricting his jurisdiction in respect of the persons who
might be implicated. Now, I feel that in that presentation there is some truth ¾ certainly as regards
the competence of Professor Decocq ¾ but also some confusion. It is true that the prosecutor’s
application seises the judge of certain facts and that, within the limits of those facts, first of all the
investigating judge has to establish their truth with precision, and then identify the people who are
likely to have committed offences within the material framework defined by the seisin. That is
true. But the investigating judge can only carry out investigatory steps, exercise his functions,
within the limits of the jurisdiction of the French courts and the immunities which French law, in
conformity with international law, recognize as attaching to foreign dignitaries. In other words, in
seising the judge, the prosecutor certainly does not empower him to overstep the jurisdiction of the
French courts as defined by the Code of Criminal Procedure, or to disregard the immunities which
are accorded by French law to certain persons and especially foreign dignitaries. Otherwise, the
conclusion would be that the mere seisin of an investigating judge by a prosecutor would enable the
judge to place under formal investigation, to prosecute, foreign diplomats accredited to France.
That would be absurd. That is obviously not the scope of the prosecutor’s originating application.
The application delimits the facts, it gives the investigating judge authority to investigate those
facts, establish who is responsible for them, but quite obviously within the framework and the
limits both of the rules of jurisdiction and the rules of immunity laid down by French law.
Let me recall rapidly what these limits are for this particular case. Firstly, the French judge
has no jurisdiction over acts committed on foreign territory by foreign nationals against foreign
victims unless the suspect is present on French territory at the moment proceedings are begun, i.e.,
on the date of the prosecutor’s application, and no later, because otherwise you would need a new
application from the prosecutor, as we explained yesterday. Secondly, as regards immunities
French law is very clear about the absolute immunity which attaches to the person of a foreign
Head of State, and it is certainly not the prosecutor’s application which permits the investigating
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judge to disregard that immunity. Furthermore, so far, all the steps taken in our case by the
investigating judges have, it is clear, scrupulously respected the limits that I have just indicated.
Only General Dabira has been the subject of a step which might be treated as prosecution given
that he was the sole person to actually be present on French territory when proceedings were
begun, and no coercive step has been taken against President Sassou Nguesso because no such step
could have been taken legally. In other words, our investigating judges have scrupulously
respected applicable law and we have heard that maybe they might do something different in the
future on the pretext that the prosecutor might, in his application, entitle investigating judges to
exceed the limits imposed on them. This cannot be serious. And it is certainly not the idea behind
an application requesting a criminal investigation to be opened.
Thirdly, Professor Decocq questioned whether Article 656 of the French Code of Criminal
Procedure which we quoted would apply to a witness deposition by a foreign Head of State:
according to him, it only applies to diplomats. Now I do not think this is absolutely correct. In
fact, I know it is not correct. Let me simply quote Article 656 which does not refer to diplomats at
all: “The written deposition of a representative of a foreign power is requested via the Foreign
Ministry”. If the request is accepted the deposition is received by the first president of the court of
appeal. The text refers to the notion of a representative of a foreign power, which is much wider
than that of an accredited diplomat. And in this particular case, it is on the basis of this very text
and within the framework of these proceedings ¾ as I said ¾ that the investigating judges wish to
take the written testimony of President Sassou Nguesso. And contrary to what the other side said
yesterday, there was no warrant issued by the judge to the police to go and question the President
of the Congolese Republic. There was a request, as yet not transmitted, on the basis of Article 656
inviting the Congolese Head of State if he wishes ¾ because Article 656, I would remind you,
presupposes the free agreement of the foreign Head of State ¾ to make a deposition regarding the
facts on which the judges might have questions to put to him. Here again there is no violation, no
appearance of any violation, no risk of violation of the immunity attaching to a foreign Head of
State.
Fourthly, this morning much was made of the fact that there were pending proceedings with
respect to the same facts in the Congo before the Congolese courts. And the Congo said yesterday
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and reiterated today, maintained that, because there were pending proceedings in the Congo, the
conduct of the criminal proceedings begun in France on the same facts constituted an infringement
first of the sovereignty of the Congo but also of the non bis in idem principle. And this morning
Congolese counsel underscored the principle of subsidiarity, which they considered had been
flouted by the simultaneity or concomitance of these two sets of proceedings on the same facts in
two different States. Now, my first point is that this in any event is a substantive argument on the
merits and we cannot see any clear link having been made between this discussion of the non bis in
idem principle, or the principle of subsidiarity, and the question of provisional measures. But
nevertheless, even though it is off-limits, I think I need to set the record straight, because I thought
it was a rather approximative illustration, somewhat tendentious in other words. I am not going to
talk about the existence and scope in international law of any subsidiarity principle of the kind
touched upon in rather vague terms by our opponents. One may have doubts, but that would be a
debate on the merits and we do not need to have that here today. Possibly we shall come to it later.
On the other hand, the non bis in idem principle is well-known in domestic law and
well-known under international law too, because it appears in a number of international
instruments. But it is not permissible to distort it as Counsel for the Congolese State did this
morning.
The principle of non bis in idem: what does it mean and what is its scope? It is clearly
defined, for example, in the United Nations International Covenant on Civil and Political Rights. I
quote Article 14, paragraph 7: “No one shall be liable to be tried or punished again for an offence
for which he has already been finally convicted or acquitted in accordance with the law and penal
procedure of each country.” That is very much what we have in our Code of Criminal Procedure in
Article 692, which provides for the situation where French courts have jurisdiction on the basis of
what is called universal jurisdiction, thus in respect of acts committed abroad. In such a case, says
Article 692, no proceedings can be brought against a person who proves that he has been finally
tried abroad on the same acts, and either acquitted or convicted. So, finally tried abroad on the
same acts and, if convicted, that his punishment has been served or ordered. In other words ¾ I
thought until just now that this was so well-known, I did not think it was worth making it explicit,
but I am going to do so because it seems necessary ¾ the principle of non bis in idem does not per
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se conflict with the simultaneous conduct of two sets of proceedings with respect to the same facts
before two different courts. This can easily happen: two different domestic courts in different
States may well have jurisdiction to investigate the same facts, to prosecute individuals on the basis
of the same facts. That can well happen, and the fact that the two sets of proceedings are
simultaneous is in no way contrary to the non bis in idem principle.
What would conflict with the non bis in idem principle would be where someone was tried
who had been tried previously and finally before another Court on the same facts. What would
conflict with the non bis in idem principle under French law would be where someone accused of
acts of which French investigating judges were at that time seised was made the subject of a
procedural step and a fortiori of a sentence if that person had previously been finally tried on the
same facts by another court, a foreign court, and in particular the Congolese judicial authorities.
Now that is precisely the meaning of the letter from the Minister of Justice which Maître Vergès
read out to us just now. The French Minister of Justice in no way implied that the fact that the
current criminal proceedings were pending in France was contrary to the non bis in idem principle
on the ground that proceedings were pending before the Congolese judicial authorities. He simply
wrote as follows ¾ I quote from memory because I have not got the letter before me, but
Maître Vergès gave us the ending ¾ “I would like to draw the attention of the competent
procureur de la République, that of Meaux, to the existence of proceedings which are pending in
the Congo, so that, should the case arise, he may make any such application as is necessary to
ensure that the non bis in idem principle is respected”. In other words, should the proceedings
opened in the Congo result in a final judicial decision, either conviction or acquittal, in respect of
persons prosecuted in France on the basis of the same facts, then in that case it would obviously be
for both the procureur de la République and the investigating judge to act accordingly, that is to
say, to immediately suspend the proceedings brought in France against those persons. That is
strictly required by Article 692 of the French Code of Criminal Procedure without there being any
need to see whether any requirement of international law is involved ¾ I reserve that issue, which
is perhaps not absolutely clear, but in any event French law is perfectly clear ¾ Article 692: “there
shall not and may not be any prosecution and a fortiori any trial if the person has been tried finally
on the same facts in another State” and in particular in the case with which we are concerned, under
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the Congolese legal system. Consequently, there is no risk of the non bis in idem principle being
infringed in the present case.
Not only do the current French proceedings, those begun before the Meaux judges, not
obstruct those pending in the Congo ¾ we are not too sure exactly how far they have got, but that
is not the point; not only is there no impediment to the exercise by the Congo of its judicial
powers, and therefore of its sovereignty, of its right to dispense justice on its territory, but also if
you turn things around, you might say inversely that if final decisions were taken before the
Congolese courts with respect to the same facts, it would be up to the French courts to draw the
correct conclusions and to abstain from further prosecuting the same people on the grounds of the
same facts.
One further comment, this will be the fifth and final one before my summing-up, as to an
expression used by Maître Vergès this morning referring to the representatives of the Republic of
France ¾ of course, he was addressing the Court, but he was referring to what we had said. He
said that he had heard many promises on the part of France, but he then implied that he was pretty
sceptical about us respecting those promises. Now let me say in the clearest possible fashion that
from our side of the Bar we have made no promises whatsoever, in any case we are not here before
the Court to make promises. We have simply stated what French law is; we have promised
nothing, we have said that French law does not allow the prosecution of a foreign Head of State;
that is not a promise, it is a finding of law. And also that French law subordinates the jurisdiction
of the French courts over acts committed abroad to certain conditions. That too is not a promise, it
is a finding of law. At the very most, but it would be somewhat pointless to do so, we might
promise that the French courts will respect French law. But I think this might be taken for granted,
and if some particular judicial decision, of which we have no example right now in our present
case, were to exceed the limits set down by the law there would of course be means of recourse to
remedy any errors which might have been made.
Mr. President, distinguished Members of the Court, to sum up, let me say once again that
there was no demonstration in this case that there would be any imminent risk of irreparable harm
to the rights of the Congolese State at the current state of the proceedings pending before the
French courts, especially taking into account the limits imposed by French law on the way in which
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those proceedings are conducted. Let me also insist on the fact that these judicial proceedings in no
way involve or affect the good relations between France and the Congo. These particular
proceedings are not directed against the Congo as a State, they relate to particular facts, particular
people, and it is certainly not the intention of the judicial authorities, who have no such task, nor
French policy, to in any way call into question the good relations which persist between France and
the Congo. And there is obviously no intention whatsoever on the part of France to infringe or
violate the sovereignty of the Congo and its right freely to exercise its full powers on its own
territory. The best proof that France is in no way acting in a negative fashion with respect to the
Congo is the acceptance, the consent it gave to this Court’s jurisdiction. And that is why we are
here, that is why we have the representatives of France and the Congo ¾ confronting one another
yes, but side by side as well, because we came by common agreement in order to find a judicial
settlement to our dispute in accordance with the law.
The moment has not yet come to settle this dispute on the merits. The time has come for the
Court to rule on the indication of provisional measures, and I should like to say, Mr. President,
distinguished Members of the Court, that on the grounds that we have already set out, we feel that
there is no justification to indicate such provisional measures. Consequently France requests the
Court to dismiss the request for the indication of provisional measures submitted by the Congo.
Thank you for your attention.
Le PRESIDENT : Je vous remercie, Monsieur Abraham. Voilà qui met fin à la présente
série d’audiences.
A ce stade, je rappellerai aux deux Parties que la Cour compte recevoir cet après-midi les
textes et documents qui ne lui ont pas encore été soumis !
A présent il me reste à remercier les représentants des deux Parties pour l’assistance qu’ils
ont fournie à la Cour par leurs exposés oraux tout au long de ces quatre audiences.
Je leur souhaite un bon retour dans leur pays et, comme le veut la pratique, je prierai les
agents de demeurer à la disposition de la Cour. Sous cette réserve, je déclare close la présente
procédure orale.
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La Cour rendra son ordonnance sur la demande en indication de mesure conservatoire dans
les plus brefs délais. La date à laquelle l’ordonnance sera rendue en séance publique sera dûment
communiquée aux agents des Parties.
La Cour n’étant saisie d’aucune autre question aujourd’hui, l’audience est levée.
L’audience est levée à 12 h 50.
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