Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) - The Court finds that France, by not giving Djibouti the reasons for its refusal to execute the letter rogatory present

INTERNATIONAL COURT OF JUSTICE

Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org

Press Release
Unofficial

No. 2008/14
4 June 2008

Certain Questions of Mutual Assistance in Criminal Matters
(Djibouti v. France)

The Court finds that France, by not giving Djibouti the reasons for its refusal to execute the

letter rogatory presented by the latter on 3 November 2004, failed to comply with its
international obligation under Article 17 of the 1986 Convention on Mutual
Assistance in Criminal Matters and that the finding of this
violation constitutes appropriate satisfaction; it
rejects all other claims by Djibouti

THE HAGUE, 4 June 2008. The International Court of Justice (ICJ), principal judicial
organ of the United Nations, today rendered its Judgment in the case concerning Certain Questions

of Mutual Assistance in Criminal Matters (Djibouti v. France).

In its Judgment, which is final, binding and without appeal, the Court,

(1) As regards its jurisdiction,

⎯ finds unanimously that it has jurisdiction to adjudicate upon the dispute concerning the
execution of the letter rogatory addressed by th e Republic of Djibouti to the French Republic
on 3 November 2004;

⎯ finds by fifteen votes to one that it has jurisdiction to adjudicate upon the dispute concerning
the summons as witness addressed to the Pr esident of the Republic of Djibouti on
17 May 2005, and the summonses as “témoins assistés” (legally assisted witnesses) addressed
to two senior Djiboutian officials on 3 and 4 November 2004 and 17 June 2005;

⎯ finds by twelve votes to four that it has juri sdiction to adjudicate upon the dispute concerning
the summons as witness addressed to the Pr esident of the Republic of Djibouti on
14 February 2007;

⎯ finds by thirteen votes to three that it has no jurisdiction to adjudicate upon the dispute

concerning the arrest warrants issued ag ainst two senior Djiboutian officials on
27 September 2006; - 2 -

(2) As regards the final submissions of the Republic of Djibouti on the merits,

⎯ finds unanimously that the French Republic, by not giving the Republic of Djibouti the reasons
for its refusal to execute the letter rogatory presented by the latter on 3 November 2004, failed
to comply with its international obligati on under Article17 of the Convention on Mutual
Assistance in Criminal Ma tters between the two Parties, signed in Djibouti on

27 September 1986, and that its finding of this violation constitutes appropriate satisfaction;

⎯ rejects by fifteen votes to one all other final submissions presented by the Republic of Djibouti.

Reasoning of the Court

In its Judgment the Court begins by observing that “[t]he Parties concur that it is not for the
Court to determine the facts and establish responsibilities in the Borrel case, and in particular, the

circumstances in which Mr.Borrel met his death” . It adds that the Parties agree “that the
dispute . . . does however originate in that case, as a result of the opening of a number of judicial
proceedings, in France and in Djibouti, and the r esort to bilateral treaty mechanisms for mutual
assistance between the Parties”.

⎯ Jurisdiction

The Court notes that Djibouti sought to found the Court’s jurisdiction on Article38,

paragraph5, of the Rules of Court. It furthe r observes that, by letter of 25July2006, France
consented to the Court’s jurisdiction “pursuant to and solely on the basis of said Article38,
paragraph5”, specifying that this consent “is va lid only for the purposes of the case... i.e., in
respect of the dispute forming the subject of the Application and strictly within the limits of the

claims formulated therein”.

The Court points out that “this is the first time it falls to the Court to decide on the merits of
a dispute brought before it by an application b ased on Article38, paragraph5, of the Rules of

Court”. It explains that this provision was introduced by the Court into its Rules in 1978, in order
“to allow a State which proposes to found the ju risdiction of the Court to entertain a case upon a
consent thereto yet to be given or manifested by a nother State to file an application setting out its

claims and inviting the latter to consent to the Court dealing with them, without prejudice to the
rules governing the sound administration of justice”. The deferred and ad hoc nature of the
Respondent’s consent makes the procedure a means of establishing forum prorogatum . While
France expressly agreed to the Court’s jurisdiction under Article38, paragraph5, of the Rules of

Court in its letter of acceptance dated 25July2 006, its expression of consent “must, however, be
read together with Djibouti’s Application to discern properly the extent of the consent given by the
Parties to the Court’s jurisdiction, and thereby to arrive at that which is common in their
expressions of consent”.

The Court observes that, although paragraph 2 of Djibouti’s Application, entitled “Subject of
the Dispute”, relates solely to the transmission of the Borrel case file to Djibouti, the Application,
taken as a whole, has a wider scope which include s the summons sent to the Djiboutian President

on 17May 2005 and those sent to two senior Djiboutian officials on 3 and 4November2004 and
17June2005. The Court also notes that “when France, which had full knowledge of the claims
formulated by Djibouti in its Application, sent its letter of 25 July 2006 to the Court, it did not seek
to exclude certain aspects of the dispute forming the subject of the Application from its

jurisdiction”. The Court accordingly finds that “the claims concerning both subject-matters
referred to in Djibouti’s Application, namely, France’s refusal to comply with Djibouti’s letter
rogatory and the summonses to a ppear sent by the French judiciary, on the one hand to the
President of Djibouti dated 17 May 2005, and on the other hand to two senior Djiboutian officials

dated 3 and 4 November 2004 and 17 June 2005, are within the Court’s jurisdiction”. - 3 -

The Court further observes that Djibouti al so seeks to bring before the Court events
occurring subsequent to the filing of the App lication, namely, the summons addressed to the

President of Djibouti on 14 February 2007 and the arrest warrants made out against the two senior
officials on 27September2006. It first consider s that “[a]lthough the arrest warrants could be
perceived as a method of enforcing the summonses [of 3 and 4 November 2004 and 17 June 2005],
they represent new legal acts in respect of whic h France cannot be considered as having implicitly

accepted the Court’s jurisdiction”. The Court finds the situation to be different in respect of the
summons addressed to the President of Djibouti on 14February2007, since it “was in relation to
the same case” and “to the same legal question” as the summons dated 17May2005. It was
therefore “but a repetition of the preceding one, even though it had been corrected as to form”. The

Court thus reaches the conclusion that the Parties accepted its jurisdiction to deal with the
summons of 14 February 2007.

⎯ Court’s response to Djibouti’s final submissions on the merits

Having established the precise scope of its jurisdiction in the case, the Court considers the
claims made on the merits by the Republic of Djibouti.

It turns first to the alleged violation by France of the Treaty of Friendship and Co-operation
between France and Djibouti of 27 June 1977. While pointing out that the provisions of the Treaty
are relevant rules of international law having “a certain bearing” on relations between the Parties,
the Court states that “the fields of co-operation envisaged in the Treaty do not include co-operation

in the judicial field” and that the relevant rul es referred to above impose no concrete obligation in
the case.

The Court next considers the Convention on Mu tual Assistance in Criminal Matters of

27September1986 between the Parties. Djibouti cl aimed in the first place that Article1 of the
Convention places France under an obligation to execute the international letter rogatory. It added
in the second place that France undertook to carry th is out in January2005 and that it failed to
perform this undertaking. Lastly, Djibouti cont ended, as a subsidiary argument, that France

breached the obligation in question when it gave D jibouti notice of its refusal to execute the letter
rogatory. The Court examines these three points in turn.

The Court first addresses arguments relating to reciprocity in the implementation of the

Convention that were raised by Djibouti.

Article 1 of the Convention provides that: “The two States undertake to afford each other, in
accordance with the provisions of this Conventio n, the widest measure of mutual assistance in

proceedings in respect of offences the punishment of which, at the time of the request for
assistance, falls within the jurisdiction of the judicial authorities of the requesting State.”

Djibouti maintains that this Article imposes on the two Parties an obligation of reciprocity in

implementing the Convention. Pointing out that the French judicial authorities have benefited from
its assistance and co-operation on a number of occasions since 1996, it argues that it was entitled to
expect reciprocity from France when it submitte d its own internationa l letter rogatory on
3 November 2004. The Court observes “that the Convention nowhere provides that the granting of

assistance by one State in respect of one matter imposes on the other State the obligation to do
likewise when assistance is requested of it in turn ”. It accordingly considers that Djibouti “cannot
rely on the principle of reciprocity in seeking execution of the international letter rogatory it

submitted to the French judicial authorities”.

The Court next examines the obligation to execute the international letter rogatory set out in
Article 1 of the Convention and, acco rding to Djibouti, elaborated in Article 3, paragraph 1, of the

Convention, which provides: “The requested Stat e shall execute in accord ance with its law any
letters rogatory relating to a criminal matter and addressed to it by the ju dicial authorities of the - 4 -

requesting State for the purpose of procuring evidence or transmitting articles to be produced in
evidence, records or documents.”

The Court observes “that the obligation to execute international letters rogatory laid down in
Article3 of the 1986Convention is to be realized in accordance with the procedural law of the
requested State”. However, while that State must of course “ensure that the procedure is put in

motion”, it does not thereby guarantee the outcome, “in the sense of the transmission of the file
requested in the letter rogatory”. The Court acco rdingly considers that France was not under an
obligation pursuant to Article 3 to transmit the Borrel file.

The Court then turns to France’s alleged unde rtaking to execute the international letter
rogatory transmitted by Djibouti. It first notes th at the terms of the letter of 27January2005, in
which the Principal Private Secretary to the Fr ench Minister of Justice informed Djibouti’s
Ambassador in Paris that he had “asked for all steps to be taken to ensure that a copy of the

[Borrel] record... is transmitted to the Minister of Justice and Penal and Muslim Affairs of the
Republic of Djibouti before the end of Fe bruary2005” and had asked the procureur in Paris “to
ensure that there is no undue delay in dealing with this matter”, “entail no formal undertaking by
[France] to transmit the Borrel file”. The Court po ints out in particular that the Principal Private

Secretary was not empowered to give a definitiv e commitment, since in France the authority to
execute letters rogatory lies exclusively with investigating judges.

Lastly, the Court examines Djibouti’s claim that France breached the obligation to execute

the international letter rogatory by violati ng the provisions of Articles2 and 17 of the
1986 Convention.

Under Article 2 (c) of the Convention, a requested State may refuse to execute a letter

rogatory if it considers that execution is likely to prejudice its sovereignty, its security, its ordre
public or other of its essential interests. The Court recalls that the 8 February 2005 soit-transmis of
Judge Clément, the investigating judge, states th e grounds for her decision to refuse the request for
mutual assistance, explaining why transmission of th e file was considered to be “contrary to the

essential interests of France”, in that the file contained declassified “defence secret” documents,
together with information and witness statements in respect of another case in progress. The Court
finds that the reasons given by JudgeClém ent fall within the scope of Article2(c) of the
Convention.

The Court then addresses Djibouti’s claim that France violated Article 17 of the Convention,
providing that “[r]easons shall be given for any refusal of mutual assistance”. It recalls that France
informed Djibouti of its refusal to comply with the request for assistance by letter dated

6June2005. The Court concludes that, as no reasons were given in that letter, France failed to
comply with its obligation under Article17 of th e Convention. It observes however that that
failure did not preclude France from relying upon Article 2 (c).

On the other hand, the Court does not uphold any of the other final submissions presented by
Djibouti at the conclusion of the hearings. In particular, the Court finds: that the summons
addressed to the President of Djibouti by the Fren ch investigating judge on 17 May 2005 “was not
associated with the measures of constraint provided for by... the French Code of Criminal

Procedure”; that it was “merely an invitation to testify which the Head of State could freely accept
or decline”; and that, consequently, “there was no attack by France on the immunities from
criminal jurisdiction enjoyed by the Head of Stat e”. The Court notes however that Judge Clément

addressed the summons to the Djiboutian President notwithstanding the formal procedures laid
down by Article656 of the French Code of Crim inal Procedure, which deals with the “written
statement of the representative of a foreign Powe r”. The Court nevertheless considers that these
formal defects under French law surrounding the summons of 17May2005 (service by facsimile

transmission of the invitation to testify, short d eadline for appearance, etc. ) “do not in themselves
constitute a violation by France of its interna tional obligations regarding the immunity from - 5 -

criminal jurisdiction and the inviolability of fore ign Heads of State”. The Court further observes
that, “if it had been shown by Djibouti that... confidential information [concerning the witness

summons addressed to its Head of State] had been passed from the offices of the French judiciary
to the media, such an act could have constituted . . . not only a violation of French law, but also a
violation by France of its international obligations [in respect of protecting the honour and dignity
of Heads of State]”. However, the Court recognizes that it does not possess any probative evidence

that would establish that the French judicial au thorities are the source behind the dissemination of
the confidential information in question.

The Court finds that the second summons, dated 14 February 2007, was issued following the

procedure laid down by Article656 of the French Code of Criminal Procedure, and therefore in
accordance with French law. It notes that the con sent of the Head of State was expressly sought in
this request for testimony, which was transmitte d through the intermediary of the competent
authorities and in the form prescribed by law. The Court therefore considers that this measure

cannot have infringed the immunities from jurisdiction enjoyed by the Djiboutian Head of State. In
respect of Djibouti’s claim that the communication to the media, in breach of the confidentiality of
the investigation, of confidential information concerning the second witness summons is to be
regarded as an attack on the honour or dignity of its Head of State, the Court again observes that it

has not been provided with “probative evidence wh ich would establish that the French judicial
authorities were the source behind the dissemination of the confidential information at issue here”.

Finally, in regard to Djibouti’s claim that France infringed the immunities said to be enjoyed

by the procureur de la République and the Head of National Security of Djibouti, the Court notes
first that there are no grounds in international law upon which it could be said that the officials
concerned were entitled to personal immunities, no t being diplomats within the meaning of the
Vienna Convention on Diplomatic Relations of 1961, and the Convention on Special Missions of

1969 not being applicable in this case. The Court also observes that at no stage were the French
courts or the Court “informed by the Government of Djibouti that the acts complained of by France
were its own acts” and that the two officials “w ere its organs, agencies or instrumentalities in

carrying them out”. The Court therefore rejects Djibouti’s claims in this respect.

⎯ Remedies

The Court, having found that the reas ons invoked by France, in good faith, under
Article 2 (c) fall within the provisions of the 1986 Convention, decides not to order the Borrel file
to be transmitted with certain pages removed, as Djibouti requested in the alte rnative. At the same
time, the Court recalls that it has found a violation by France of its obligation under Article 17 of

the 1986Convention to give reasons for its refusa l to execute the letter rogatory. The Court
determines that “its finding of this violation constitutes appropriate satisfaction”.

Composition of the Court

The Court was composed as follows: President Higgins; Vice-President Al-Khasawneh;
JudgesRanjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Keith,
Sepúlveda-Amor, Bennouna, Skotnikov; Judges ad hoc Guillaume, Yusuf; Registrar Couvreur.

Judges Ranjeva, Koroma and Parra-Aranguren append separate opinions to the Judgment of
the Court; Judge Owada appends a declaration to the Judgment of the Court; Judge Tomka
appends a separate opinion to th e Judgment of the Court; Judges Keith and Skotnikov append

declarations to the Judgment of the Court; Judge ad hocGuillaume appends a declaration to the
Judgment of the Court; Judge adhocYusuf appends a separate opinion to the Judgment of the
Court.

___________ - 6 -

A summary of the Judgment appears in the document “Summary No.2008/2”, to which
summaries of the declarations and opinions are a nnexed. In addition, this press release, the

summary and the full text of the Judgment can be found on the Court’s website (www.icj-cij.org)
under “Press Room” and “Cases”.

___________

Information Department:

Mrs. Laurence Blairon, Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Messrs. Boris Heim and Maxime Schouppe, Information Officers (+31 (0)70 302 2337)
Ms Joanne Moore, Assistant Information Officer (+31 (0)70 302 2394)