Supplementary observations of France

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
11744
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING CERTAIN CRIMINAL PROCEEDINGS IN FRANCE
(REPUBLIC OF THE CONGO v. FRANCE)
FRANCE
SUPPLEMENTARY OBSERVATIONS
17 May 2010
[Translation by the Registry]
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING CERTAIN CRIMINAL PROCEEDINGS IN FRANCE
(REPUBLIC OF THE CONGO V. FRANCE)
Supplementary Observations
of the French Republic
1. Acting in accordance with the Court’s Order of 23 November 2009 and within the
time-limit given, the Republic of the Congo filed an additional pleading on 16 February 2010. By
that same Order, the French Republic was authorized to file its supplementary observations within
a time-limit expiring on 17 May 2010. The present observations are submitted in accordance with
that decision.
2. In its supplementary observations, the Republic of the Congo has treated two separate
legal issues: the purported subordination of the French court’s jurisdiction to that of the Congolese
court and the authority to be accorded by the French court to the 17 August 2005 judgment of the
Criminal Division of the Brazzaville Court of Appeal. The two questions are not clearly
distinguished from each other and they lead to a submission asking 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”1.
3. France is of the view not only that a clear distinction must be drawn between these two
issues of law, but that the second does not fall within the scope of the dispute over which France
has consented to the Court’s jurisdiction. The submission in the supplementary observations would
therefore appear to be a new claim and, as such, not within the Court’s jurisdiction. For
convenience, this issue will be referred to subsequently herein as the “non bis in idem issue”, since
the effect claimed for the judgment of the Brazzaville Court of Appeal is that described by this
familiar maxim.
4. The French Republic’s supplementary observations will be confined to responding to the
arguments set out in the Republic of the Congo’s observations of 16 February 2010. In the first
part of these observations France will aim to show that the non bis in idem issue is not within the
scope of the Court’s jurisdiction as consented to by France (§1). The second part of these
observations will set out arguments made very much in the alternative concerning the difficulties
encountered by the French judge in assessing application of the non bis in idem rule (§2).
§1. The non bis in idem issue does not fall within the scope of the dispute over which France
has consented to the Court’s jurisdiction
5. The non bis in idem issue does not fall within the scope of the dispute over which France
has consented to the Court’s jurisdiction for two reasons. The first is that the dispute concerns
solely the jurisdiction of the French court and respect for international immunities (1.1). The
1Supplementary Observations of the Republic of the Congo, 16 Feb. 2010, p. 7, para. 13.
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second is that the dispute concerns the Republic of the Congo’s own rights under international law,
independent of any claim based on diplomatic protection (1.2).
1.1. The dispute concerns solely the jurisdiction of the French court and respect for
international immunities
6. It is important first to recall to mind that the Court’s jurisdiction in the present case is
founded on a specific form of forum prorogatum provided for in Article 38, paragraph 5, of the
Rules of Court. It derives from the combination of two separate instruments: the Application filed
by the Republic of the Congo on 9 December 2002; and France’s consent to the Court’s
jurisdiction under the conditions set out in its letter of 8 April 2003. Accordingly, these two
instruments must be examined very carefully2.
7. The Application of 9 December 2002 begins with a statement of the legal grounds relied
upon by the Republic of the Congo in support of its claim. The Application thereby meets the
requirements of Article 38, paragraph 2, of the Rules of Court, which requires a description of the
“legal grounds upon which the jurisdiction of the Court is said to be based”. In the second section,
entitled “Nature of the Claim”, the Application specifies the remedies sought, namely, the
annulment of the measures of investigation and prosecution, while also containing a summary
description of certain facts in respect of the proceedings in progress in France. It returns in more
detail to the facts in the third section and to the legal grounds in the fourth. The fifth section is
devoted to admissibility.
8. This format, which follows the structure of Article 38, paragraph 2, of the Rules of Court,
makes it easy to identify the subject of the dispute and the claim, as those terms are used by the
International Court of Justice. The subject of the dispute is circumscribed by the legal grounds
relied upon ⎯ certain alleged violations of international law ⎯ in their relation to certain facts ⎯
the criminal proceedings brought in France upon the complaint of 7 December 2001. As for the
claim, it consists of requesting that the Court rule on the alleged violations and define the ensuing
legal consequences.
9. France subsequently accepted the jurisdiction of the Court but only “for the dispute which
is the subject-matter of the Application and strictly within the limits of the claims formulated by the
Republic of the Congo”3. The supplementary observations submitted by the Republic of the Congo
on 16 February 2010 do however make significant additions in respect of both legal and factual
elements of the dispute. These additions alter the subject of the dispute and the nature of the claim,
and substantially exceed the limits of the consent given by France to the Court’s jurisdiction in the
present case.
10. The legal elements of the dispute were defined in the Application through the statement
of the legal grounds on which the claim was based. The Application reads as follows:
“1. Violation of the principle that a State may not, in breach of the principle of
sovereign equality among all Members of the United Nations, as laid down in
Article 2, paragraph 1, of the Charter of the United Nations, exercise its authority
on the territory of another State,
2See Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J.
Reports 2008, p. 230-206, paras. 60-65 and p. 211, para. 87.
3Letter of 8 Apr. 2003, third paragraph.
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by unilaterally attributing to itself universal jurisdiction in criminal matters
and by arrogating to itself the power to prosecute and try the Minister of the
Interior of a foreign State for crimes allegedly committed in connection with the
exercise of his powers for the maintenance of public order in his country;
2. Violation of the criminal immunity of a foreign Head of State ⎯ an international
customary rule recognized by the jurisprudence of the Court.”
11. The two alleged violations are the grounds in law upon which “the jurisdiction of the
Court is said to be based”4 and in respect of which there is a conflict of legal views between the
Parties. The statement of grounds obviously enables the scope of the dispute to be determined, just
as does the statement of facts. In defining the scope of its jurisdiction in a case similar to this one
in terms of the basis of jurisdiction, the International Court of Justice did moreover make reference
to the legal grounds relating to the claim5. Consideration must therefore be given to these two
legal grounds.
12. The “authority” referred to in the first legal ground is the State’s judicial authority in
criminal matters, that is to say, the jurisdiction of the French judicial authorities over the facts of
the case. Confirmation is found later in the Application that the jurisdiction of the French courts is
indeed the subject of the dispute as defined in this first ground6. As for the second ground, it
concerns an alleged violation of the rules of international law governing Head-of-State immunity.
No other legal question is mentioned.
13. Neither of the two grounds referred to above includes any invocation of the maxim non
bis in idem or of any res judicata authority of foreign judgments. Indeed, the claim concerns
neither the jurisdiction of the French courts under international law nor the assertion of
international immunity; it is a procedural objection going to the merits of the case being heard in
criminal proceedings in the French courts7. Accordingly, the Congo’s claim is a new one.
14. Incidentally, the Republic of the Congo’s observations clearly show that this is new,
because the last paragraph is a submission drafted in the terms of a prayer for relief additional to
those set out in the Application. It is also to be seen from this paragraph that the non bis in idem
issue has nothing to do with either the jurisdiction of the French courts under international law or
respect for international immunities, because the request made therein to put an end to the domestic
proceedings is based on their “inadmissibility”8.
15. Moreover, the supplementary observations show that the inadmissibility asserted by the
Republic of the Congo in its new claim is not based on a violation of a rule of international law.
French law alone, specifically Article 692 of the Code of Criminal Procedure (“CCP”), is cited as
the cause of inadmissibility9. It should be kept in mind in this connection that, under Article 38 of
4Rules of Court, Art. 38, para. 2.
5Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J.
Reports 2008, p. 213, para. 93.
6See Application, Sec. IV.
7See para. 2 of the present response.
8Supplementary Observations of the Republic of the Congo, 16 Feb. 2010, end of p. 7.
9Ibid., pp. 3-4, para. 4.
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the Statute of the Court, the function of the International Court of Justice is to decide disputes
under international law, not to take the place of a State’s courts in interpreting and applying the
domestic law of the State.
16. In its Memorial, the Republic of the Congo already alluded to the non bis in idem
principle10. France took care to respond to that allusion in order to dispel any risk of confusion
with the issue of subordination of jurisdiction, the only issue in the present case. The relevant
passage in France’s Counter-Memorial is indeed entitled: “The rule non bis in idem has no
relevance in the present case”11. As well, France explained in the Rejoinder that it was for the
French courts to rule on any objection based on res judicata, citing that same passage from its
Counter-Memorial12. There can be no clearer way of expressing the refusal to accept inclusion
within the scope of the dispute of a question that manifestly lies outside it.
17. And on top of this there is a change in the factual elements of the dispute. The fact cited
in the Republic of the Congo’s supplementary observations in support of its new claim, i.e., the
17 August 2005 judgment of the Brazzaville Court of Appeal and the force of res judicata which is
said to have attached to it definitively under Congolese law13, came into existence after the date on
which the Congo filed its Application. This fact is obviously not referred to in the Application,
which predates it by two and a half years. At the same time as a problem of jurisdiction ratione
materiae, this raises a problem of jurisdiction ratione temporis.
18. In accordance with the Court’s case law in this area, and this being a dispute in which the
Court’s jurisdiction is based on forum prorogatum, the applicable test is neither the continuity nor
connexity of the fact with the facts set out in the Application, but rather what France “has expressly
accepted”14. And in no way has France accepted the jurisdiction of the Court to determine the
legal effects which a new legal decision, one not referred to in the Application, should be deemed
to have. This is particularly clear in that the present case involves a legal decision by the courts of
the applicant State, and that the question of any effects it may have in a foreign legal system ⎯
here, that of the respondent State ⎯ is a legal question completely separate from those addressed in
the Application.
1.2. The dispute concerns the Congo’s own rights under international law, independent of
any claim based on diplomatic protection
19. The French Republic will point out another reason why jurisdiction is lacking, one
relating to the nature of the Congolese nationals’ rights whose violation is now alleged by the
Republic of the Congo. In the Application, the claims concerned alleged violations of international
law relating exclusively to inter-State relations: violation of the principle of sovereign equality on
account of the jurisdiction of the French courts and violation of international immunities. The
Congo submitted the Application on its own behalf and at no time claimed to be acting in the
interest of one or more of its nationals. The supplementary observations, in particular their
conclusion, significantly alter this aspect of the dispute.
10Memorial of the Republic of the Congo (MC), 4 Dec. 2003, para. 28.
11Counter-Memorial of the French Republic (CMF), 11 May 2004, pp. 59-63, paras. 2.94-2.105.
12Rejoinder of the French Republic (RF), 11 Aug. 2008, para. 9.
13Supplementary Observations of the Republic of the Congo, 16 Feb. 2010, p. 2, para. 2.
14Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J.
Reports 2008, p. 212, para. 88.
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20. The 17 August 2005 judgment of the Brazzaville Court of Appeal is mentioned for the
first time in paragraph 2 of the Congo’s observations, where it is described as a “signal event”15.
The judgment does not concern the question of jurisdiction but the merits of a case alleged to
coincide, as to the facts and the persons involved, with the matter which is the subject of criminal
proceedings in France. The Republic of the Congo asserts in its supplementary observations that
General Dabira’s counsel informed the French investigating judge of that judgment and finds it
regrettable that the judge has not reacted16. What is at issue is therefore the defence of an
individual, General Dabira, in the proceedings now in progress in the French courts.
21. The acquittal handed down in the 17 August 2005 judgment of the Brazzaville Court of
Appeal is next mentioned in paragraph 13 of the supplementary observations. It is said to give rise
to a right “for General Dabira’s benefit” barring the proceedings in progress in the French courts.
This effect should moreover extend to “any person not named in the originating application, even
if any such individual were to be found in French territory”17. General N’Dengue, who, it is noted
in paragraph 2, was also acquitted18, must certainly be included among those persons. However
this may be, it is clear that the Republic of the Congo is thus acting in defence of certain natural
persons who are identified either by name, like General Dabira, or by the fact that they were
acquitted in the 17 August 2005 judgment.
22. In addition, the function of notions such as non bis in idem and res judicata in criminal
law is to give rise to personal rights under the terms laid down in each legal system. France has
already made this point in its Counter-Memorial19. Thus, the only rights which can be at issue in
this connection are rights of individuals, not the State’s own rights. Further, the Republic of the
Congo cites no violation of international law in support of its new claim, only a violation of
Article 692 of the French CCP20. Here again, it must be kept in mind that the function of the
International Court of Justice is not to take the place of State courts in interpreting and applying
domestic law.
23. Thus, whether we consider the legal case made by the Republic of the Congo in its
supplementary observations or the nature itself of the maxim non bis in idem and of its potential
effects in the context of domestic criminal proceedings, everything goes to show that the only
rights in question are personal rights, not the Congo’s own rights.
24. It is therefore important to stress that the Court’s jurisprudence draws a clear distinction
between claims which are matters of the protection granted by a State to one or more of its
nationals and those which are direct matters of relations between States. Thus, in the case
concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
which at first concerned the jurisdiction of the Belgian courts and international immunities, and
later immunities alone, the Court pointed out that the Democratic Republic of the Congo had
“never sought to invoke before it . . . personal rights” before rejecting Belgium’s fourth
15Supplementary Observations of the Republic of the Congo, 16 Feb. 2010, p. 2.
16Ibid., p. 5, para. 6.
17Ibid., p. 7.
18Ibid., p. 2.
19CMF, 11 May 2004, pp. 59-60, paras. 2.95-2.98.
20Supplementary Observations of the Republic of the Congo, 16 Feb. 2010, pp. 3-4, para. 4.
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objection21. Nor in the present case did the Republic of the Congo initially seek to assert personal
rights, but an attempt to do so is clearly to be seen now in its supplementary observations,
particularly in their conclusion. Accordingly, the claim must be dismissed for being radically
different from the claims which were asserted in the Application and in respect of which France
consented to the Court’s jurisdiction.
25. In any event, were the Court nevertheless to find jurisdiction in respect of the non bis in
idem issue, it could not but hold that the claim under the heading of diplomatic protection put
forward by the Republic of the Congo in its supplementary observations is inadmissible, owing to
the failure by those concerned to exhaust local remedies.
*
26. To conclude, the Court cannot allow a dispute before it to be transformed into a different
dispute by means of a change made in the submissions of one of the parties22. It has consistently
drawn attention in its decisions to the risk that such a practice would have repercussions on the
jurisdiction of the Court and on the rights of third States23. The first such reason is all the more
cogent in the present case since the Court’s jurisdiction is based on a forum prorogatum established
in accordance with Article 38, paragraph 5, of the Rules of Court.
27. Consequently, France requests the Court to find that it is without jurisdiction over the
non bis in idem issue because it lies outside the subject of the dispute and the strict limits of the
claims asserted in the Application, as accepted by France. In the unlikely event that the Court were
to find that it has jurisdiction over this question ⎯ quod non ⎯, it should hold that the claim on
this point is inadmissible owing to the failure to exhaust local remedies by the individuals for
whose benefit the Applicant is seeking to exercise its diplomatic protection.
§2. Application of the non bis in idem principle requires an assessment of the legal and factual
aspects of the case by the judge now seised of it
28. The French Government is briefly making the following points very much in the
alternative, should the Court decide to adjudicate the non bis in idem issue.
29. In its supplementary observations of 16 February 2010, the Republic of the Congo bases
its argument on the existence of a decision to acquit handed down by the Criminal Division of the
Brazzaville Court of Appeal on 17 August 2005. It relies exclusively on the application of French
law, specifically Article 692 of the French CCP, which 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
21Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J.
Reports 2002, p. 18, para. 40.
22Société Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173; Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1984, p. 427, para. 80; Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 264-267, paras. 69-70; Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 17, para. 36.
23Ibid.
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served or barred by the passage of time.” Application of this provision, which is founded on the
non bis in idem rule, pursuant to which “no one may be tried twice for the same crime”,
presupposes that the French judge has jurisdiction in the case (2.1). Moreover, for this rule to be
capable of leading to the discharge of the case [non-lieu], the French investigating judge, alone, is
at present the sole authority in a position to ascertain, in the light of the facts of the case, whether
the legal requirements governing application of the rule have been met (2.2).
2.1. Application of the non bis in idem rule presupposes jurisdiction on the part of the French
judge
30. It is worth noting that the supplementary observations of the Republic of the Congo
assert exactly the opposite position to that taken in its earlier pleadings. In its Memorial of
4 December 2003, the Republic of the Congo maintained that “[t]he French investigating judge was
wrong when . . . he considered himself to have jurisdiction” to hear this case, concerning both
crimes against humanity24 and torture25. Contradicting that statement, the Republic of the Congo
in its supplementary observations recognizes the jurisdiction of the French judge since it argues for
application of Article 692 of the CCP26.
31. The Republic of the Congo’s position is thus self-contradictory. While originally it
asked the French Republic to “cause to be annulled the measures of investigation and prosecution
taken by the Procureur de la République . . .”27 and then “cause to be cancelled the application
requesting the opening of an investigation submitted by the Procureur de la République”28 by
virtue of the fact that, inter alia, the French courts lacked jurisdiction, it is now asking it to
“cause to be terminated the criminal proceedings being pursued before the
investigating judge . . . 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”29.
Under the terms of the Republic of the Congo’s own reasoning therefore, the French investigating
judge must necessarily have jurisdiction in the present case since that jurisdiction is indispensable
to application of the non bis in idem rule.
32. Under Article 692 of the CCP, on which the Republic of the Congo relies, the existence
of a final foreign judgment can be invoked to put an end to a prosecution being brought in France.
But, before ordering a discharge [non-lieu] and closing the investigation, the French judge must
examine the merits of the case to ascertain whether the requirements laid down by that Article have
in fact been met in the case. Such an examination necessarily presupposes that the French judge
has jurisdiction in the case.
24MC, 4 Dec. 2003, p. 25, para. 20.
25Ibid., p. 30, para. 24.
26Supplementary Observations of the Republic of the Congo, 16 Feb. 2010, p. 3, para. 4.
27Application instituting proceedings, filed in the Court Registry on 9 Dec. 2002, p. 2; emphasis added.
28MC, 4 Dec. 2003, p. 39; emphasis added.
29Supplementary Observations of the Republic of the Congo, 16 Feb. 2010, p. 7, para. 13; emphasis added.
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2.2. Application of the non bis in idem rule entails exclusively the application by the French
judge of the legal requirements under French law in the light of an analysis of the facts of
the case
33. Although the non bis in idem rule has been recognized in public international law, it is
not appropriate in the present case to apply it with the meaning it is given in either treaty-based or
customary international law. As pointed out in the French Republic’s Counter-Memorial,
Article 14 (7) of the International Covenant on Civil and Political Rights applies only to courts of a
given State and not between courts of different States30. Accordingly, French law alone is relevant
in determining the conditions for the rule to operate in the present case and only the investigating
judge hearing the case is at this juncture empowered to decide whether, in the light of the legal
requirements under French law, the non bis in idem rule applies to the facts being investigated and
therefore necessitates an order closing the investigation on the ground that there is no case to
answer [non-lieu]. The judge’s decision can be appealed to the Chambre de l’instruction and, as
the case may be, to the Cour de cassation.
34. The legal requirements for the non bis in idem rule to apply in the context of a foreign
judgment are, as indicated above31, laid down in Article 692 of the CCP. This Article stipulates, on
the one hand, that there must be a final judgment abroad and, on the other, that the persons and
facts in question must be the same. Only the judge seised of the matter on the merits is in a
position to ascertain whether, in this case, the persons to whom the Brazzaville Court of Appeal
judgment relates are the same as those who are the subject of the investigation, and whether the
persons acquitted by the Brazzaville Court of Appeal were acquitted in respect of the same acts as
those under judicial investigation in France.
35. At the current stage of proceedings, it is for the French investigating judge hearing the
matter, and him alone, to determine whether the non bis in idem rule applies to the case32. And it is
important to point out how difficult it is for the judge to ascertain whether the conditions are met
for Article 692 of the CCP to operate in the present case.
A final judgment abroad
36. As already explained by the French Republic in its Counter-Memorial33, the foreign
judgment must be final. In the present case, the Republic of the Congo adduces a judgment handed
down on 17 August 2005 by the Criminal Division of the Brazzaville Court of Appeal, under which
the fifteen defendants34 were acquitted.
37. An acquittal, in contrast to a decision to discharge [non-lieu] or a discontinuance of
proceedings [classement sans suite], may satisfy this requirement of a final judgment, provided it is
indeed a final decision which has not been appealed and is not open to any appeal on a point of law
[pourvoi en cassation]. The Republic of the Congo, in its supplementary observations, states that
30CMF, 11 May 2004, p. 60, para. 2.98.
31Para. 29.
32RF, 11 Aug. 2008, p. 3, para. 9.
33CMF, 11 May 2004, p. 63, para. 2.103.
34The fifteen defendants: Nobert Dabira, Blaise Adoua, Jean François Ndengue, Guy Pierre Garcia,
Marcel Ntourou, Jean Aïve Allakoua, Jean Pierre Essouebe, Emmanuel Avoukou, Edouard Dinga Oba, Gabriel Ondonda,
Rigobert Mobede, Vincent Vital Bakana, Samuel Mbouassa, Yvon Dieudonné Sita Bantsiri and Guy Edouard Taty.
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“[t]hat judgment has become final”35, but does not elaborate further. It would appear, however,
that the civil parties lodged an appeal against that decision, to the Supreme Court of the Republic of
the Congo. In a ruling of 4 May 2007, the Criminal Division of the Supreme Court apparently
quashed in part the Court of Appeal’s judgment of 17 August 2005. A number of aspects,
therefore, warrant further explanation. Without that information, it will be extremely difficult for
the French investigating judge to rule on whether the non bis in idem rule applies to the case before
him.
The same facts and the same persons
38. The non bis in idem rule only applies if the French proceedings and the foreign
proceedings relate to the same facts. It is accordingly for the investigating judge, in the course of
the French judicial investigation, to establish any similarities between the facts concerned in the
judgment of the Criminal Division of the Brazzaville Court of Appeal and those he is investigating
and, if appropriate, to apply the provisions of the Code of Criminal Procedure.
39. The judgment delivered on 17 August 2005 by the Brazzaville Court of Appeal lacks
detail as to the facts which were the subject of the proceedings in the Republic of the Congo. The
information discernible from the decision is fragmentary. It is therefore not enough merely to
forward the judgment itself to the French judge; he must also be given the judgment committing
the defendants to the Criminal Division of the Brazzaville Court of Appeal, the only decision
capable of enabling him to make a thorough assessment of whether the requirements for the non bis
in idem rule to apply are met, by carrying out a comprehensive comparative analysis of the foreign
proceedings and those currently underway in France.
40. It also needs pointing out that this requirement as to identity of facts is not defined in the
French Code of Criminal Procedure, and the courts are particularly strict in assessing whether it is
met. To find that a foreign judgment has the force of res judicata, therefore, the investigating
judge must take into account not only identity of material elements36, but also of the mens rea of
the offence prosecuted, and of its legal characterization37.
41. It being kept in mind that this falls very much within the exclusive jurisdiction of the
French judge, it seems possible to say already that the required identity of facts, which is one of the
conditions for Article 692 of the CCP to operate, does not appear to be present in this case. It
emerges, from a comparison between the judgments of the Criminal Division of the Brazzaville
Court of Appeal and the judgment of the Chambre de l’instruction of the Paris Court of Appeal,
that the French investigating judge is seised of 200 cases of disappearances reported on
14 May 1999, whereas the proceedings before the Congolese court concerned only 61 victims.
35Supplementary Observations of the Republic of the Congo, 16 Feb. 2010, p. 2, para. 2.
36Van Esbroeck, C-436/04, ECJ judgment of 9 March 2006, para. 36: “identity of the material acts, understood in
the sense of the existence of a set of concrete circumstances which are inextricably linked together” (emphasis added);
Zolotukhin v. Russia, ECHR judgment of 10 February 2009, para. 84: on the definition of an offence in Article 4 of
Protocol No. 7, the Court held that it arose from identical facts, which it described as those “facts which constitute a set
of concrete factual circumstances involving the same defendant and inextricably linked together in time and space”
(emphasis added).
37Cass., Crim., 22 November 1973, Bull. No 434; Cass., Crim., 3 June 1991, Bull. No. 233, D. 1992, p. 228, Note,
Pannier. See also L. Desessard, “Les compétences criminelles concurrentes nationales et internationales et le principe
non bis in idem”, Revue internationale de droit pénal, 2002, Vol. 73, p. 925.
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Procedural guarantees
42. According to the Republic of the Congo, “There is no need to add that the New York
Convention [against Torture, of 10 December 1984] does not provide for any substantive review by
a court of any State whatsoever of judicial decisions taken in other States.”38
43. A distinction needs to be drawn here. While it is true that the French courts cannot
review the decisions of Congolese courts, France is without doubt entitled to satisfy itself that
internationally recognized fundamental procedural rights are upheld when it comes to
implementing a foreign decision in its own legal system. In the present case, for the reasons set
forth above, this assessment falls to the investigating judge before whom the individuals concerned
invoke the judgment of the Brazzaville Court.
*
44. To conclude, there is no doubt whatsoever that application of the non bis in idem rule, at
this stage in the proceedings, is a matter exclusively for the jurisdiction of the French investigating
judge. That judge alone is capable of analysing whether the legal conditions laid down by French
law are satisfied in the light of the facts in issue in the case. Furthermore, it is by no means certain
that the French investigating judge is in a position, at present, to carry out such an assessment.
*
* *
Conclusions
45. The French Republic maintains in their entirety the grounds it set out in its
Counter-Memorial and its Rejoinder. For the reasons set out in these supplementary observations,
it requests the International Court of Justice to find that it is without jurisdiction to hear the non bis
in idem issue, and, in the alternative, were the Court nevertheless to hold that it has jurisdiction
over that point, to find that the new claim advanced by the Republic of the Congo in its
observations of 16 February 2010 is inadmissible. Further in the alternative, should the Court
decide to adjudicate the non bis in idem issue, the French Republic requests the Court to find that
the French judge alone has jurisdiction to rule on the application of that rule in the present case.
Paris, 17 May 2010.
(Signed) Edwige BELLIARD,
Agent of the French Republic.
___________
38Supplementary Observations of the Republic of the Congo, 16 Feb. 2010, p. 6, para. 7.
ANNEX
Judgment of the Criminal Division of the French
Cour de cassation of 9 April 2008
JUDGMENT OF THE CRIMINAL DIVISION OF THE FRENCH
COUR DE CASSATION OF 9 APRIL 2008
The Cour de cassation, Criminal Division, at a public hearing held at the Palais de justice in
Paris, has delivered the following Judgment:
Ruling on the appeals brought by:
⎯ Norbert Dabira, person under formal investigation;
⎯ Madeleine Bikindou, married name Touanga;
⎯ The “Survie” Association;
⎯ The “Disappeared of the Brazzaville Beach” Association;
⎯ Marcel Touanga;
⎯ Ghislain Matembele;
⎯ Linot Bardin Duval Tsieno;
⎯ Mouele, Blanchard;
⎯ Aubin Gautier Mackaya;
⎯ Pascal Miena Youlou;
⎯ the International Federation for Human Rights (FIDH);
⎯ the French League for Human Rights (LDH);
⎯ the Congolese Observatory for Human Rights (OCDH).
civil parties,
against the Judgment of the Chambre de l’instruction of the Versailles Court of Appeal of
20 June 2007, which, in respect of the investigation being conducted as part of the proceedings
brought by them for crimes against humanity, torture, acts of barbarity and abductions, the case
being referred to it after the previous judgment was overturned, ruled on an application to annul
certain procedural documents;
The Court, ruling after deliberations in the public hearing of 12 March 2008 at which were
present: Mr. Cotte, President, Ms Chanet, rapporteur, Mr. Le Gall, Mr. Pelletier, Ms Ponroy,
Mr. Arnould, Ms Koering-Joulin, Mr. Corneloup, Mr. Pometan, Ms Canivet-Beuzit, Mr. Finidori,
divisional judges, Ms Caron, Ms Lazerges, auxiliary judges;
Advocate General: Mr. Boccon-Gibod;
Registrar: Mr. Souchon;
On the report of Ms Chanet, rapporteur, the observations made by Mr. Bouthors and the
civil-law professional partnership Piwnica and Molinié, lawyers in the Court, and the opinion of
Mr. Boccon-Gibod, Advocate General, the parties’ lawyers being the last to speak;
Having regard to the order of the President of the Criminal Division, dated
21 September 2007, joining the appeals because they are related and ordering them to be examined
immediately;
I ⎯ On the admissibility of the appeal brought by the “Disappeared of the Beach”
Association on 27 June 2007:
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Whereas the applicant, having exercised its right to appeal against the judgment concerned
by lodging an appeal on 26 June 2007, was not entitled to appeal again against the same decision;
whereas only the appeal lodged on 26 June 2007 is admissible;
II ⎯ On the other appeals:
Having regard to Article 575 (2), sub-paragraphs 4 and 7, of the Code of Criminal
Procedure;
Having regard to the written statements submitted by both the applicants and the
respondents;
Whereas on 7 December 2001, the International Federation for Human Rights (FIDH), the
French League for Human Rights (LDH) and the Congolese Observatory for Human Rights
(OCDH) filed a complaint against Denis Sassou N’Guesso, President of the Republic of the Congo,
Pierre Oba, Minister of the Interior, Norbert Dabira, Inspector-General of the Congolese Armed
Forces, and Blaise Adoua, Commander of the Republican Guard, for arbitrary arrests, torture, acts
of barbarity and abductions, which took place from May to July 1999 and concerned displaced
persons returning to the Congo through the river port of Brazzaville known as “the Beach”,
following the conclusion of an agreement under the auspices of the United Nations High
Commissioner for Refugees establishing a humanitarian corridor;
Whereas, the complaint having been referred to him, the State Prosecutor in Meaux, who had
territorial jurisdiction by virtue of the fact that Norbert Dabira was known to have a permanent
residence in Villeparisis, requested the opening of an investigation on the grounds of crimes against
humanity, torture, acts of barbarity and abductions; whereas the investigating judge assigned took
several procedural steps, inter alia by issuing warrants, with regard to the individuals referred to in
the complaint; whereas Jean-François N’Dengue, Director-General of the Congolese Police, who
was residing in Meaux, was arrested, remanded in police custody, had his testimony taken and was
then released on the basis that he enjoyed diplomatic immunity; whereas Norbert Dabira had his
testimony taken as a legally represented witness then declined to respond to the summons from the
investigating judge, who thereupon issued an arrest warrant against him; whereas a number of
natural and legal persons have filed civil-party complaints; whereas on 5 April 2004 the State
Prosecutor made an application to annul the measures taken in respect of Jean-François N’Dengue,
Pierre Oba and Blaise Adoua, on the grounds that the application for a judicial investigation, which
had been incorrectly made against an unidentified person, could actually only refer to
Norbert Dabira, the only person likely to have been involved in the reported offences and to have
been established to have a permanent residence on national territory; whereas by judgment of
22 November 2004, the Chambre de l’instruction of the Paris Court of Appeal annulled not only
the documents referred to in the Public Prosecutor’s Department’s application but also the
application for a judicial investigation and all the subsequent proceedings; whereas, the civil
parties’ appeal against this judgment being referred to it, the Criminal Division overturned this
Judgment on 10 January 2007 and transferred the case and the parties to the Chambre de
l’instruction of the Versailles Court of Appeal; whereas this Court, by the Judgment challenged,
granted the application of the Public Prosecutor’s Department by ordering all the procedural
documents concerning Jean-François N’Dengue to be declared null and void and the proceedings to
be referred back to the investigating judge in Paris;
This being so,
On the sole ground for appeal, put forward by the civil-law professional partnership
Piwnica and Molinié on behalf of the civil parties, based on the infringement of Articles 3, 6 and 13
of the European Convention for the Protection of Human Rights and Fundamental Freedoms,
Articles 1, 2 and 29 to 37 of the Vienna Convention on Diplomatic Relations of 18 April 1961,
Articles 1, 5, 6 and 7 of the Convention against Torture, adopted in New York on
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10 December 1984, all the general principles of international law, Article 113-1 of the Penal Code,
Articles 609-1, 689-1, 689-2, 591 and 593 of the Code of Criminal Procedure, inadequate reasons,
faulty or insufficient reasons;
“In that the judgment in question annulled the record of
Jean-François N’Dengue’s hearing in custody and the subsequent proceedings;
“On the basis that when he was remanded in custody on 1 April 2004 at
12.30 p.m. Jean-François N’Dengue said that he was in France on an official mission
and that he had a diplomatic passport and a mission order from
President Sassou N’Guesso dated 19 April 2004; that, according to the procedural
documents, when the Ministry of Foreign Affairs was consulted it replied verbally at
4.30 p.m. that Jean-François N’Dengue did not have diplomatic accreditation and
that a written reply would be made to the investigators (D236); that a written reply
was provided at 6 p.m. by the Ministry of Foreign Affairs, which forwarded to the
investigators a statement by Mr. Henri Lopes, Ambassador of the Republic of the
Congo to France, who had been asked in particular about the date on the mission
order; that he certified that the date of 19 April 2004 indicated on the mission order
was a clerical error and that it should read ‘19 March 2004’ (D236); that the
statement read as follows: ‘I (. . .) certify that Mr. Jean-François N’Dengue,
Director-General of the Congolese Police, is indeed in France on an official mission,
bearing a mission order signed by the Congolese Head of State. Having spoken to
him, I formally confirm that a clerical error was made in the date of issue indicated on
that mission order. It should read 19 March 2004 instead of 19 April 2004 (. . .)’;
that, in addition, on 1 April 2004 at 9.31 p.m. the Director of the Private Office of the
Minister for Foreign Affairs sent a note from the Protocol Service to the State
Prosecutor in Meaux worded as follows: ‘The Ministry of Foreign Affairs confirms
that the Ambassador of the Republic of the Congo to France has certified that
Jean-François N’Dengue, bearer of a document signed by the President of the
Republic of the Congo, has been in France on an official mission since
19 March 2004, that this being the case, and under customary international law, he
enjoys immunity from jurisdiction and execution’; that this note was appended to the
application made by the State Prosecutor on 1 April at 10.55 p.m. to have
Jean-François N’Dengue released from custody (D24); that it was not for the
Chambre de l’instruction to enquire into the nature of the business transacted during
the official mission, as the civil parties invited it to in their submissions, given that the
authenticity of the document had been confirmed; that the note from the Protocol
Service of the Ministry of Foreign Affairs was unequivocal about
Jean-François N’Dengue’s immunity, notwithstanding France’s failure to ratify the
Convention on Special Missions adopted in New York on 8 December 1969; that the
waivers provided for in the Statute of the International Criminal Court and relied on
by the civil parties would not have been applicable in that Court; that, in the light of
the foregoing, there was reason to consider that when Jean-François N’Dengue was
remanded in custody he enjoyed immunity from jurisdiction and execution; that this
applied regardless of the nature of the offences and therefore precluded any coercive
measure against him; that there were therefore grounds for granting in part the
application to annul the procedural measures concerning Jean-François N’Dengue as
specified in the operative provisions of the judgment;
“1) Whereas, when the Cour de cassation overturns a judgment of a Chambre
de l’instruction, the jurisdiction of the Chambre de l’instruction to which the case is
referred is confined to resolving the issue that caused the case to be referred to it;
whereas the issue that caused the case to be referred to the Versailles Court of Appeal
was confined to determining the validity of the application for a judicial investigation;
whereas the Chambre de l’instruction of the Versailles Court of Appeal, the court to
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which the case was referred, was not therefore entitled to rule on whether or not
Jean-François N’Dengue enjoyed diplomatic immunity, as has been claimed;
“2) Whereas diplomatic immunity may only apply to heads of diplomatic
missions, members of diplomatic staff, administrative and technical staff attached to
missions and members of their service staff, as well as to Heads of State and serving
ministers for foreign affairs; whereas it was established that
Jean-François N’Dengue, Director-General of the Congolese Police, did not meet any
of these conditions; whereas therefore he could not enjoy diplomatic immunity;
“3) Whereas even if a director-general of police could enjoy such immunity,
this would imply that he had been put in charge of a diplomatic mission and
accredited in that capacity; whereas the Chambre de l’instruction could not therefore
have concluded that Jean-François N’Dengue enjoyed diplomatic immunity without
enquiring into the nature of the mission that he headed and establishing whether he
enjoyed an accreditation granting him a status that would qualify him for immunity;
“4) Whereas, in any case, the immunity that a director-general of a foreign
police force could enjoy on an official mission in France would be valid only for the
period that he held that position; whereas the Chambre de l’instruction could not
therefore have concluded that Jean-François N’Dengue enjoyed diplomatic immunity
by virtue of a mission in France in 2004 in respect of acts committed in the Congo in
1999;
“5) Whereas diplomatic immunity is no impediment to the universal jurisdiction
of the French courts in cases of torture;”
Whereas the Chambre de l’instruction annulled all the procedural documents concerning
Jean-François N’Dengue for the reasons reproduced in the ground for the appeal;
Whereas this being the case, disregarding subsidiary grounds relating to the immunity
pleaded, the judgment is not liable to censure;
Whereas, on the one hand, the judges, to whom an overturned judgment was referred, a
judgment which ruled on procedural nullities pursuant to Articles 173 and 174 of the Code of
Criminal Procedure, were required to rule on the application which had already been submitted to
the Chambre de l’instruction whose judgment was overturned in full;
Whereas, on the other hand, Jean-François N’Dengue, who is not mentioned in either the
complaint or any application, cannot be prosecuted in the French criminal courts on the basis of
universal jurisdiction, as provided for by Article 689-2 of the Code of Criminal Procedure;
The ground is not therefore admissible;
On the first ground for appeal, put forward by Mr. Bouthors on behalf of Norbert Dabira,
based on the infringement of Articles 6, 13 and 14 of the European Convention on Human Rights,
Articles 1 to 7 of the Convention against Torture, adopted in New York on 10 December 1984, the
Preliminary Article and Articles 6, 81, 82-3, 171, 173, 206, 591, 593, 689, 689-1, 689-2 and 692 of
the Code of Criminal Procedure;
“In that the Court declared the pleas to have the criminal proceedings
terminated on the grounds of res judicata inadmissible;
“On the basis that there were grounds for declaring the plea entered by
Jean-François N’Dengue and Norbert Dabira seeking a decision to terminate the
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criminal proceedings on the grounds of res judicata inadmissible, as this defence is not
provided for in Articles 171 and 173 of the Code of Criminal Procedure (Judgment
p. 22 in fine and p. 23, paragraph 1);
“Whereas when a case is referred to a French court in accordance with a
universal jurisdiction clause, the court has to ensure that the fact that a final decision
has already been handed down by a foreign court is not an impediment to proceedings
being initiated in France; whereas this is a compulsory exercise determining whether
or not the criminal proceedings are lawful and has to be carried out in the
preparatory phase of the criminal proceedings in France; whereas in the absence of
such an assessment, if the Chambre de l’instruction itself carries out such an exercise,
the parties concerned are entitled to appeal as appropriate on any grounds that might
constitute an impediment to criminal proceedings being initiated; whereas in
declaring the defence of res judicata inadmissible, the Court infringed the
above-mentioned provisions and principles;
Whereas, in dismissing the ground based on the defence of res judicata, the appeal court
judges stated that this defence is not provided for in Articles 171 and 173 of the Code of Criminal
Procedure;
Whereas in so deciding, the Chambre de l’instruction justified its decision;
The ground cannot therefore be accepted;
On the second ground for appeal, put forward by Mr. Bouthors on behalf of Norbert Dabira,
based on the infringement of Articles 6, 13 and 14 of the European Convention on Human Rights,
Articles 1 to 7 of the Convention against Torture, adopted in New York on 10 December 1984,
Articles 31 et seq. of the Vienna Convention on the Law of Treaties of 1969 and the Preliminary
Article and Articles 52, 382, 591, 593, 689, 689-1, 689-2 and 693 of the Code of Criminal
Procedure;
“In that the Chambre de l’instruction recognized the jurisdiction of the French
courts to entertain the proceedings in question against the applicant;
“On the basis that, on the one hand, in accordance with Articles 689, 689-1 and
689-2 of the Code of Criminal Procedure, 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 and who happens to be in France may be
prosecuted and tried by French courts; that, on the other hand, the State Prosecutor
in Meaux, the recipient of the complaint of 7 December 2001, filed on behalf of the
International Federation for Human Rights (FIDH), the French League for Human
Rights (LDH) and the Congolese Observatory for Human Rights (OCDH) against
Denis Sassou N’Guesso, President of the Republic of the Congo, Pierre Oba, Minister
of the Interior, Norbert Dabira, Inspector-General of the Congolese Armed Forces,
Blaise Adoua, Commander of the Republican Guard, and any others for arbitrary
arrests, acts of torture and forced disappearances, which took place from May to
July 1999 and concerned displaced persons returning to the Congo through the river
port of Brazzaville known as ‘the Beach’, following the conclusion of an agreement
under the auspices of the United Nations High Commissioner for Refugees
establishing a humanitarian corridor, and the recipient of the reports from the
preliminary enquiry (D16), from which it emerged that at least one of the individuals
referred to in the complaint was in France, and more specifically in the area of
jurisdiction of the Meaux Tribunal de grande instance, the individual concerned being
Norbert Dabira, who possessed a permanent residence in Villeparisis (77270), 5 Allée
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des Tilleuls, had a vehicle registered at that address and had had administrative
documents delivered there, applied for a judicial investigation to be opened against an
unidentified person for ‘crimes against humanity: massive and systematic practice of
abduction of persons followed by their disappearance, torture or inhuman acts, on
ideological grounds and in pursuit of a concerted plan against a group of the civil
population’ having regard to Article 212-1 of the Penal Code and Article 689-1 of the
Code of Criminal Procedure; that therefore, having regard to the combined
provisions of Articles 80, 689, 689-1 and 689-2 of the Code of Criminal Procedure,
the investigating judge of the Meaux Tribunal de grande instance was entitled to
investigate the acts reported in the complaint, and in particular those with which
Norbert Dabira was likely to be charged, but also those with which
Jean-François N’Dengue was likely to be charged, who, incidentally, possessed an
apartment in Meaux where he resided for part of the year and where he was
apprehended (Judgment, pp. 23 and 24);
“1) Whereas, firstly, in implementing a universal jurisdiction clause a State
must abide by the mandatory conditions for exercising that jurisdiction, as set out in
the relevant international convention; whereas neither the internal law nor the
Chambre de l’instruction was entitled to extend the scope of the ‘forum de
prehensionis’ criterion, solely provided for by the Convention against Torture;
“2) Whereas, secondly, the universal jurisdiction clause, which is based on the
presumed perpetrator of an offence that is likely to fall within the scope of the
Convention against Torture of 10 December 1984 being in France, is mandatory law
and may not be extended to cases where the person concerned has a permanent
residence or abode in France when the condition that the latter has to be physically
present in the country when the proceedings are initiated is not met;
“3) Whereas, finally, the universal jurisdiction clause provided for by the
Convention against Torture, on the basis that the person alleged to have committed an
offence is in France, has to be implemented in conjunction with the principle of ‘aut
dedere aut judicare’ provided for by Articles 5 and 7 of that Convention, according to
which a State that does not extradite a person who is alleged to have committed an
offence is obliged to prosecute them itself; whereas therefore the Chambre de
l’instruction extended the scope of the French court’s universal jurisdiction to a
situation in which the Convention against Torture did not permit it to exercise it;”
Whereas, in recognizing the jurisdiction of the French courts to rule on the proceedings
initiated against Norbert Dabira, the appeal court judges gave the reasons reproduced in the ground
for the appeal;
Whereas this being the case, the Chambre de l’instruction justified its decision both in
respect of the conventions referred to in the ground for the appeal and in respect of Article 689-1 of
the Code of Criminal Procedure;
The ground shall therefore be dismissed;
And whereas the judgment meets the necessary formal requirements;
I ⎯ On the appeal brought by the “Disappeared of the Beach” Association on 27 June 2007:
Declares it to be inadmissible;
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II ⎯ On the other appeals:
Dismisses them;
Judgment thus done and decided by the Cour de cassation, Criminal Division, and delivered
by the President on the ninth of April, two thousand and eight;
In witness whereof, the present judgment has been signed by the President, the rapporteur
and the Registrar.
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