Note: This translation has been prepared by the Registry for internal purposes and has no official
character
11687
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING CERTAIN CRIMINAL PROCEEDINGS IN FRANCE
(REPUBLIC OF THE CONGO v. FRANCE)
REPUBLIC OF THE CONGO
SUPPLEMENTARY OBSERVATIONS
[Translation by the Registry]
INTERNATIONAL COURT OF JUSTICE
Case concerning Certain Criminal Proceedings in France
(Republic of the Congo v. France)
Supplementary Observations
For: The Republic of the Congo,
having as its Agent His Excellency Mr. Roger Menga, Ambassador Extraordinary and
Plenipotentiary of the Republic of the Congo to the European Union, to His Majesty the King of
the Belgians, to Her Majesty the Queen of the Netherlands and to His Royal Highness the
Grand Duke of Luxembourg,
residing at 16 avenue Franklin Roosevelt, 1050 Brussels,
Against: The French Republic
As authorized to do so by the Court in its Order of 16 November 2009, the Republic of the
Congo hereby submits the following supplementary observations.
Statement of facts occurring subsequent to the Reply
1. By judgment of 10 January 2007, the Criminal Division of the Cour de cassation quashed
in its entirety the 22 November 2004 judgment of the Chambre de l’instruction of the Paris Court
of Appeal cited in the Reply and referred the case and the parties to the Chambre de l’instruction of
the Versailles Court of Appeal.
Referring first to Articles 689, 689-1 and 689-2 of the Code of Criminal Procedure, the
judgment stated that, pursuant to them,
“a person guilty of committing torture within the meaning of Article 1 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted in New York on 10 December 1984, outside the territory of the
Republic may be prosecuted and tried by French courts if that person is present in
France”.
The Criminal Division next cited Articles 40, 41 and 80 of the Code of Criminal Procedure
and stated:
“whereas on the basis of the second three above-mentioned articles, the Procureur de
la République has the right to apply for an investigation to be opened in the light of
any information sent to him and whereas the application for a judicial investigation
may only be annulled if it does not formally comply with the essential conditions of its
legal existence”.
It considered that the judgment under appeal had breached these principles in annulling the
application in question, even though: first, the application was in proper form and referred to the
reports from the preliminary enquiry appended thereto; secondly, the individuals suspected of
having committed the reported acts were named in the “complaint”; and, finally, there was
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sufficient evidence when the proceedings were initiated that at least one of those individuals,
General Dabira, was in France, where he has his habitual residence and has settled with his family.
Strictly for reasons of domestic law, the Chambre de l’instruction of the Versailles Court of
Appeal held that it was without jurisdiction to entertain any further proceedings and deferred to the
investigating judge in Meaux.
2. In the meantime a signal event occurred which the Cour de cassation could not take into
consideration because that court determines the legality of decisions appealed to it as of the date on
which they were handed down: the proceedings underway in the Congo since 29 August 2000 in
respect of the same matters being investigated in Meaux since 23 January 2002 culminated in a trial
on the merits in the Criminal Division of the Brazzaville Court of Appeal. The trial was held from
19 July to 17 August 2005 and resulted in a judgment on the latter date acquitting all defendants.
Among these were all the individuals who are the subjects of the denunciations which led to the
opening of the present investigation. General N’Dengue, not one of those individuals, was also
acquitted.
That judgment has become final.
Yet there has been no reaction from the investigating judge in Meaux, who has been
informed by General Dabira’s counsel of this judgment. The case is still before him but he has
taken no procedural steps.
Discussion
3. It follows from the above-cited judgment of the Criminal Division of the Cour de
cassation that the Division found Articles 689-1 and 689-2 of the Code of Criminal Procedure to be
the sole possible bases for the French courts’ jurisdiction over the acts in question. Implicitly, and
in accordance with the pre-existing case law, the judgment rules out any universal jurisdiction in
respect of crimes against humanity possibly arising out of the purported international custom
alleged to exist by the civil parties.
Articles 689-1 and 689-2 of the Code of Criminal Procedure are part of Chapter I,
“Jurisdiction of the French Courts”, of Title IX of the Code, “Offences Committed outside the
Territory of the Republic”.
Article 689-1 provides that, pursuant to the international conventions referred to in the
articles to follow, a person who is guilty of having committed any of the offences enumerated in
those articles outside the territory of the Republic may be prosecuted and tried by French courts if
that person is present in France.
Article 689-2 applies the principle thus laid down to those guilty of torture within the
meaning of Article 1 of the Convention adopted at New York on 10 December 1984.
4. Article 692 of the Code of Criminal Procedure, the first article in Chapter II (“Conduct of
Prosecution and Court with Territorial Jurisdiction”) of Title IX, provides:
“In the cases described in the preceding chapter, no prosecution may be
conducted against a person who proves that he has been finally tried abroad for the
same matters and, in the case of conviction, that the sentence has been served or
barred by the passage of time.”
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The jurisdiction conferred by Articles 689-1 and 689-2 is therefore subject to these
requirements on the conduct of prosecutions. The jurisdiction thereby established is subordinate to
that of the State having territorial jurisdiction if that State has exercised its own jurisdiction and has
finally tried the party in question and, in case of conviction, if the sentence has been served.
French courts are plainly bound by the provisions of Article 692 and are powerless to review
the substance of a competent foreign court’s ruling on any grounds whatsoever. The bases of
jurisdiction established by Article 689-1 of the Code of Criminal Procedure are exceptions to the
general rules of law and therefore not open to expansive interpretation. Moreover, they are strictly
dependent on the terms of the international conventions to which they give effect.
5. Under the Convention referred to in Article 689-2, the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted at New York on
10 December 1984 and published by way of Decree No. 87-916 of 9 November 1987 (Journal
Officiel of 14 November 1987, p. 13,267), the jurisdiction recognized to the State where the arrest
is made is merely secondary.
Everything goes to show this.
First, Article 5, paragraph 1, of the Convention provides that each State Party shall take such
measures as may be necessary to establish its jurisdiction over offences characterized as acts of
torture under its criminal law (these offences are referred to in Article 4, the underlying acts having
been defined as offences in pursuance of Article 1) in three cases: when the offences have been
committed in its territory (a); when the alleged offender is a national of the State (b); and when
the victim is a national of the State if the State considers it appropriate.
Paragraph 2 of that Article provides:
“Each State Party shall likewise take such measures as may be necessary to
establish its jurisdiction over such offences in cases where the alleged offender is
present in any territory under its jurisdiction and it does not extradite him pursuant to
article 8 to any of the States mentioned in paragraph 1 of this article.”
The use of the adverb “likewise” and the reference to extradition to a State having jurisdiction
under paragraph 1 necessarily mean that the State where the arrest is made has secondary
jurisdiction.
Secondly, Article 6 of the Convention, governing the powers in respect of custody
(paragraph 1) and preliminary inquiry (paragraph 2) of the State in whose territory a person alleged
to have committed any of the relevant offences is present, adds in paragraph 4:
“When a State, pursuant to this article, has taken a person into custody, it shall
immediately notify the States referred to in article 5, paragraph 1, of the fact that such
person is in custody and of the circumstances which warrant his detention. The State
which makes the preliminary inquiry contemplated in paragraph 2 of this article shall
promptly report its findings to the said States and shall indicate whether it intends to
exercise jurisdiction.”
These provisions corroborate that jurisdiction under Article 5, paragraph 2, is secondary.
They must be understood as reflecting a determination to give the State having jurisdiction the
opportunity under paragraph 1 of Article 5 to seek the suspect’s extradition with a view to
exercising such territorial or personal jurisdiction.
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Moreover, in placing the head of jurisdiction established in Article 689-2 of the Code of
Criminal Procedure in the same class as those to which Article 692 applies, the French legislature
made it abundantly clear that it recognized the secondary nature of that jurisdiction in the
Convention of 10 December 1984.
6. It bears keeping in mind in this connection not only that the Procureur de la République in
Meaux has failed to cause the Government to perform the obligations under the above-quoted
Article 6, paragraph 4, but also that he has ignored a letter sent to him by the Procureur de la
République in Brazzaville.
As already set out in the Republic of the Congo’s first Memorial, the Procureur de la
République at the Brazzaville Tribunal de grande instance sent a detailed letter on
9 September 2002 to the Procureur de la République at the Meaux Tribunal de grande instance
stating that he had learned of the proceedings underway in the Meaux court against General Dabira
and informing the Procureur in Meaux that one of the organizations having submitted a
denunciation, the Organisation congolaise des droits de l’homme (OCDH), had made the same
accusations in the Congo in 2000, as a result of which the Minister of Justice of the Congo had
ordered an enquiry.
He added:
“Following that enquiry, the Minister of Justice, considering that the statements
of certain persons interviewed could describe acts capable of being characterized as
offences under the criminal laws of the Republic, requested the Procureur de la
République to apply for the opening of a judicial investigation against persons
unknown on account of abductions and disappearances of persons. By an originating
application of 29 August 2000, the Procureur de la République thus requested the
opening of a judicial investigation on the above grounds. The senior investigating
judge at the Brazzaville Tribunal de grande instance was thus seised of the facts and
has already carried out a number of acts of investigation.”
He went on to state that the opening of a judicial investigation by the Prosecutor’s Office in
Meaux in respect of the same facts raised “a serious problem of conflict of jurisdiction between two
courts belonging to two sovereign States” and that the Congolese courts alone should have
jurisdiction, for three reasons which he then expounded in his letter.
The first reason was that every State’s jurisdiction to try cases involving offences committed
in its territory is an attribute of sovereignty and a principle of international ordre public.
The second was that, even if there were a basis for the jurisdiction of the French courts,
which was hardly the case, the conflict of jurisdiction should be resolved in favour of the
Congolese courts: first, because the alleged acts cited by those filing the denunciations purportedly
took place in the Congo; second, because the perpetrators and victims of the alleged crimes were
Congolese; and finally because, in contradistinction to the French courts, the Congolese courts
were in a position to investigate effectively, since the alleged perpetrators, the victims and the
witnesses were in the Congo.
The third reason was that the jurisdiction established by Article 689-1 of the French Code of
Criminal Procedure was necessarily subordinate to the jurisdiction of the State in whose territory
the alleged crimes were committed.
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The Brazzaville Procureur de la République concluded as follows:
“The proceedings undertaken by the investigating judge of the Meaux Tribunal
de grande instance thus lack any serious legal basis. It is for this reason that the
termination of those proceedings by the French court, for lack of jurisdiction, would
appropriately bring to an end this regrettable dispute, which could constitute a serious
impediment to the proper administration of international criminal justice.”
The Procureur de la République in Meaux has not deigned to respond to the letter from his
counterpart in Brazzaville, which raises the inference that he has not even informed the Minister of
Justice and Keeper of the Seals, through the Procureur général at the Paris Court of Appeal, of the
Congolese démarche.
7. There is no need to add that the New York Convention does not provide for any
substantive review by a court of any State whatsoever of judicial decisions taken in other States.
True, the convention establishing the Statute of the International Criminal Court, adopted at
Rome on 17 July 1998, in Article 17, paragraphs 1 (a) and (b) and 2, does open the way for such a
review by that court, in those situations that are exhaustively and strictly defined; however, what
is permissible for a United Nations institution speaking for the international community is not
permitted to a judicial organ of a Member State, which is simply on a par with all other States.
Article 17 itself is enough to show this. The situations therein described (the State which normally
has jurisdiction is unwilling or unable to carry out the procedure; the decision was made for the
purpose of shielding the person concerned from justice; an unjustified delay or a lack of
independence or impartiality on the part of the judges is inconsistent with an intent to bring the
person concerned to justice) presuppose either that State’s powerlessness or its collusion with the
individual subject to criminal proceedings ⎯ in any event, a value judgment on the action taken
by that State. No court of any State may however arrogate to itself the power to make such a
judgment about another sovereign State.
It must be added that, shocking per se as any such pretension in violation of the sovereignty
of all States may be, it would offend even more if the State whose courts would presume to review
the substance of judgments handed down in another State were the former colonial Power having
ruled over that other State.
[13]. Thus, General Dabira’s acquittal by the Congolese criminal court must be a bar to the
pursuance of the proceedings being taken against him in France. It must also bar any proceedings
against any person not named in the originating application, even if any such individual were to be
found in French territory.
The French judge now in charge of the case need of course only apply Article 692 of the
Code of Criminal Procedure for the French Republic’s international obligations to be fulfilled.
But he is not doing so and, whatever the reason may be for his inertia (carelessness or
recalcitrance) for more than three years now, it gives cause to fear that this unacceptable situation
will persist indefinitely.
The French Government can put an end to this, as Article 30 of the Code of Criminal
Procedure empowers the Minister of Justice to “direct [the procureur général], by means of
written instructions to be added to the record, . . . to seise the relevant court of such written orders
as the Minister considers to be appropriate”. There is an imperative need for such instructions, as
this is a matter of ensuring that a State organ complies with the international obligations of the
French Republic.
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In conclusion, the Republic of the Congo requests the Court to declare that the French
Republic shall, by appropriate legal processes under its domestic law, cause to be terminated the
criminal proceedings being pursued before the investigating judge at the Meaux Tribunal de
grande instance, on the ground that the action is inadmissible by virtue of the res judicata authority
attaching to the final judgment of 17 August 2005 handed down by the Criminal Court of
Brazzaville.
(Signed) Roger-Julien MENGA,
Ambassador Extraordinary
and Plenipotentiary.
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Supplementary observations of the Republic of the Congo