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Human Rights Committee Eightieth session 15 March-2 April 2004 (Communication No. 1159/2003)
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Human Rights Committee
Eightieth session
15 March-2 April 2004
Decision
* All persons handling this document are requested to respect and observe its confidential nature.
Communication No. 1159/2003
Submitted by: Mariam Sankara et al. (represented by counsels, Mr. Vincent Valai and Mr. Milton James Fernandes, from the Collectif Juridique International Justice pour Sankara)
Alleged victims: Mariam, Philippe, Auguste and Thomas Sankara
State party: Burkina Faso
Date of communication: 12 October 2002 (initial submission)
Document references: Special Rapporteur’s rule 91 decision, transmitted to the State party on 6 February 2003 (not issued in document form)
Date of adoption of decision: 9 March 2004
The Human Rights Committee, acting through its Working Group pursuant to rule 87, paragraph 2, of the Committee’s rules of procedure, adopts the following decision on admissibility.
Decision on admissibility
1.1 The authors, Ms. Mariam Sankara (born on 26 March 1953 and residing in Canada) and her sons Philippe (born on 10 August 1980 and residing in Canada) and Auguste Sankara (born on 21 September 1982 and residing in Canada) are, respectively, the wife and children of Mr. Thomas Sankara, former President of Burkina Faso, who died on 15 October 1987. The authors state that they are acting on behalf of Mr. Thomas Sankara and as victims themselves. They allege violations
by Burkina Faso of: article 6, paragraph 1, of the Covenant in connection with Thomas Sankara; articles 2, paragraphs 1 and 3 (a) and (b), 14, paragraph 1, 17, 23, paragraph 1, and 26 of the Covenant in connection with Ms. Sankara and her children; and also article 16 of the Covenant in the case of Auguste Sankara. The authors are represented by counsels, Mr. Vincent Valai and Mr. Milton James Fernandes, from the Collectif Juridique International Justice pour Sankara.
1.2 The Covenant and the Optional Protocol thereto entered into force for Burkina Faso on 4 April 1999.
Facts as submitted by the author
2.1 On 15 October 1987, Thomas Sankara, President of Burkina Faso, was assassinated during a coup d’état in Ouagadougou.
2.2 From 1987 to 1997, the authorities did not, in the authors’ opinion, conduct any inquiry into this assassination. Moreover, on 17 January 1988, a death certificate was issued, falsely stating that Thomas Sankara had died of natural causes.
2.3 On 29 September 1997, within the 10-year period of prescription, Ms. Mariam Sankara, in her capacity as spouse and on behalf of her two minor children, lodged a complaint with the senior examining judge in the Ouagadougou Tribunal de Grande Instance against a person or persons unknown for the assassination of Mr. Thomas Sankara and also for the falsification of administrative documents.1 On 9 October 1997, the authors paid a deposit of 1 million CFA francs,2 in accordance with the Code of Criminal Procedure.3
2.4 On 25 January 1998, the Procureur Général du Faso issued a direction not to commence a judicial investigation, challenging the jurisdiction of the ordinary courts on the grounds that the alleged events occurred in a military establishment among members of the armed forces and non-combatant personnel and that the death certificate had been issued by the armed forces health service and signed by a physician with the rank of commander, and hence a member of the armed forces.
2.5 On 23 March 1998, in order No. 06/98, the examining judge decided, on the contrary, that the Ouagadougou Tribunal de Grande Instance was the ordinary court competent to examine the case.4
2.6 On 2 April 1998, the Procureur du Faso appealed against this decision.5
2.7 On 10 December 1999, in the absence of a decision by the Court of Appeal’s indictment division, the counsels for the authors formally requested the Minister of Justice and the Supreme Council of Justice to take all necessary measures in order to ensure the impartiality of justice.
2.8 On 26 January 2000, by decision No. 14, the Ouagadougou Court of Appeal overruled order No. 06/98 of 23 March 1998 and declared the ordinary courts incompetent.
2.9 In the authors’ opinion, despite Court of Appeal decision No. 14 and their own application of 27 January 2000, the Procureur du Faso refused or omitted to report the case to the Minister of Defence so that the latter could issue a prosecution order.
2.10 On 27 January 2000, the counsels contested the above-mentioned decision No. 14 by lodging an appeal with the judicial division of the Supreme Court.
2.11 On 19 June 2001, by decision No. 46, the Supreme Court declared the appeal inadmissible on the grounds that a deposit had not been paid.6
2.12 On the same day, the counsels requested the Prosecutor-General in the Supreme Court to report the case to the Minister of Defence so that he could issue the prosecution order.7
2.13 On 19 June 2001, during an interview focusing largely on the Sankara case, the President of Burkina Faso stated on Radio France Internationale that the Minister of Defence should not be dealing with sub judice cases.8
2.14 On 25 June 2001, a further application9 was addressed to the Procureur du Faso. On the same date, the counsels requested the Minister of Defence to issue the prosecution order, anticipating a complaint from the prosecuting authorities.
2.15 On 23 July 2001, the Procureur du Faso replied to the counsels, stating that their request related to acts categorized as offences committed on 15 October 1987, in other words, over 13 years and 8 months previously, and that, in its decision of 26 January 2000, the Court of Appeal had declared itself incompetent and had instructed the parties to take proceedings in the proper court.
2.16 On 25 July 2001, disputing the Procureur du Faso’s reply,10 the counsels once again requested that, in accordance with article 71 (3) of the Code of Military Justice, the case should be brought before the military courts, a remedy that cannot be exercised by the claimant for criminal indemnification. To date, no reply from the prosecutor, and hence no referral to the Minister of Defence, have been reported.
The complaint
3.1 The authors consider that the absence of a public inquiry and legal proceedings to determine the identity and civil and criminal responsibilities of Thomas Sankara’s assassins, and also the failure to rectify his death certificate, constitute a serious denial of justice in terms of their protection as members of the Sankara family, in breach of articles 17 and 23, paragraph 1, of the Covenant. They consider, moreover, that the failure to conduct an inquiry, and therefore the absence of guarantees relating to equality before the law, and also the prosecutor’s refusal to refer the case to the Minister of Defence, thus preventing their complaint from being resolved, are attributable to their political opinions, in breach of articles 2, paragraph 1, and 26 of the Covenant.
3.2 The authors maintain that the State party has failed to comply with its obligations (a) to provide them with an effective remedy for the violations they suffered, in accordance with article 2, paragraph 3 (a) and (b), of the Covenant, and (b) to guarantee the impartiality of justice as required under article 14, paragraph 1, of the Covenant. In this regard, the authors explain that the aim of the decision, at first instance to establish the competence of the military courts and to charge an abnormally high deposit (1 million CFA francs) was to obstruct the examination of their complaint and, consequently, constituted a violation of the “equality of arms” principle. Similarly, the fact that their counsels were obliged to make a formal request to the Court of Appeal to issue a decision falls into the above category of violations. They consider that this also applied to the procedure before the Supreme Court, in particular because the President of that Court is a supporter of both the party and the serving President, and because the decision of inadmissibility on the ground that no deposit was paid was in fact a pretext for not ruling on the merits of the case.
3.3 The authors consider that, as a minor, Auguste Sankara should have been exempted from payment of the deposit under the legislation in force. However, by its decision of 19 June 2001, the Supreme Court refused to recognize him as a minor, in breach of article 16 of the Covenant.11
3.4 Lastly, the authors maintain that the authorities’ refusal to rectify Thomas Sankara’s death certificate constitutes a continuing violation of article 6, paragraph 1, of the Covenant.
Observations of the State party on the admissibility of the communication
4.1 In its observations of 7 April 2003, the State party contests the admissibility of the communication.
4.2 The State party reviews the background, which it calls historical, focusing primarily on the conditions under which Captain Thomas Sankara acceded to power on 4 August 1983 and its consequences in terms of human rights violations. The State party describes what it calls a process of democratization and national reconciliation under way since 1991. It also describes the remedies available in Burkina Faso.
4.3 The State party considers that the authors have abused the procedure afforded by the Optional Protocol. In this regard, it asserts that, on 30 September 2002, the authors lodged a complaint against a person or persons unknown with the senior examining judge in the Ouagadougou Tribunal de Grande Instance, with an application as a civil party claiming damages for failure to produce the corpse. On 16 October 2002, without awaiting the results of this request, the authors submitted a complaint to the Committee. On 16 January 2003, the Procureur du Faso issued a direction not to commence a judicial examination, invoking the previous complaint by the claimant concerning the death of Thomas Sankara. On 3 February 2003, the examining judge in the Ouagadougou Tribunal de Grande Instance issued an order declaring the complaint unfounded, given that the same claimant had, in September 1997, lodged a complaint concerning the assassination of the same person and the facts confirm that person’s death. In the State party’s opinion, therefore, the authors have brought the matter before the Committee even though proceedings were pending in the national courts.
4.4 The State party also considers the authors’ complaint inadmissible on the grounds that the events in question occurred prior to Burkina Faso’s accession to the Covenant and the Optional Protocol, namely, 15 years ago. Furthermore, the State party is of the view that the authors cannot claim a denial of justice in connection with these events, given that there has been no such denial.
4.5 In the State party’s opinion, the condition of having exhausted domestic remedies has not been met.
4.6 The State party explains that, following the Supreme Court’s inadmissibility decision of 19 June 2001 on the grounds of non-payment of the deposit, the authors refrained from using the non-contentious remedies and consequently cannot claim that the system for the protection of human rights in Burkina Faso is inadequate or that their constitutional right of access to the courts has been violated. The State party asserts, in this regard, that no appeals have been made to:
– The Médiateur du Faso (ombudsman): as the allegations were linked to the operation of the machinery of the State, the complainant could, under articles 11 and 14 (combined) of Act No. 22/94/ADP of 17 May 1994 instituting the office of ombudsman, have brought the case before him for the purposes of State mediation;
– The Collège des sages: the complainant could, like victims of the events of 15 October 1987, have brought the case before this Collège, which was established on 1 June 1999;
– The National Reconciliation Commission: having taken over from the Collège des sages, the Commission had competence to identify the economic crimes and crimes of violence committed in Burkina Faso since its accession to independence in 1960, with a view to proposing recommendations conducive to national reconciliation;
– The Compensation Fund for Victims of Political Violence: despite the fact that the death of Thomas Sankara was attributed to a situation of political violence, the complainant did not approach the Fund, unlike victims of the events of 15 October 1987.
4.7 Similarly, in the State party’s view, not all contentious remedies have been exhausted. In respect of complaints of denial of justice, provision is made for a remedy for any person who considers that he is a victim of such a violation under article 4 of the Civil Code,12 article 166 of the Penal Code13 and article 281 of order No. 91-51 of 26 August 1991 relating to the organization and functioning of the Supreme Court. However, Ms. Sankara has not made use of these remedies. As to the complaint about the President of the Supreme Court, in conformity with articles 648-658 of the Code of Criminal Procedure and articles 291 and 292 of order No. 91-51, any party to proceedings who harbours legitimate suspicions about a judge who will be called upon to rule on his interests may apply for recusation. The author has not in fact used this remedy. Similarly, she has not made use of articles 283 and 284 of order No. 91-51 providing for penalties in the event of denial of justice.
4.8 In the opinion of the State party, the author has also committed, through negligence or ignorance, procedural errors which prevented her application from being examined on the merits. The State party refers to the tardy lodging of the complaint, namely on 29 September 1997, prescription entering into effect as from 15 October 1997, i.e. 10 years after the alleged events. The author was thus running the risk of her complaint being time-barred in the event of referral to an incompetent court. In the State party’s view, referral to the Tribunal de Grande Instance, in lieu of the military court, constitutes a procedural error attributable to the author. Given the victim’s status (Thomas Sankara was a captain in the regular army of Burkina Faso) and the location where the events occurred (the premises of the Conseil de l’Entente, classed as a military zone during the revolutionary period), the author should quite naturally, in accordance with the law, have brought the matter before the military courts. In the opinion of the State party, the prescription of legal proceedings, related to the tardy referral to the courts, and the procedural error have invalidated any proceedings before the military judge. Consequently, the author cannot blame the public prosecutor for having refused to refer the case to the Minister of Defence, in conformity with the provisions of the Code of Military Justice. Furthermore, in its view, the dismissal of the appeal to the Supreme Court for non-payment of the deposit cannot be invoked by the author as a ground for denial of justice, since it was incumbent on her to conform to the procedures provided for by law.
4.9 Lastly, the State party claims substantive inadmissibility related to the political character of the complaint. In its view, the late referral of the death of her husband to the national courts denotes the author’s manifest lack of interest in the manifestation of the truth in terms of law. The State party considers that the facts of the case are fundamentally political since they occurred in a particularly troubled national context linked, first, to the aberrations of the revolutionary regime and the risks of instability throughout the country, and secondly to the military coup rendered necessary by circumstances. Lastly, the justice sought by the author is fundamentally political and constitutes an abuse of law. In the State party’s view, the author has set herself the target of avenging her dead husband. Since her decision to go into exile immediately after the events in question, she has persisted in taking numerous initiatives aimed at damaging the country’s image. In its opinion, despite the steps taken to facilitate her return to the country, the author has stubbornly remained abroad, where she has political-refugee status. Her complaint, therefore, does not fall within the competence of the Committee.
The authors’ comments on admissibility
5.1 In their comments of 30 August 2003, the authors contest the State party’s arguments on admissibility.
5.2 In the first place, the authors stress that their complaint must be also viewed from the standpoint of article 7 of the Covenant in that the authorities’ refusal to conduct a proper inquiry and to establish the facts surrounding the death of Thomas Sankara may be regarded as cruel, inhuman and degrading treatment inflicted on them. Thus, the authorities prevented them from finding out the circumstances of the victim’s death and the precise place where his remains were officially buried. Lastly, the unlawful conduct of the State has had the effect of intimidating and punishing the Sankara family, who have been unjustly left in a state of uncertainty and mental distress.14
5.3 The authors consider that the State party’s arguments on inadmissibility of the complaint ratione materiae and its allegedly political character are without legal basis. In their view, the Committee is competent to consider the facts of the present communication which, admittedly, pre-date Burkina Faso’s accession to the Optional Protocol, but represent a continuing violation of the Covenant and produce effects which themselves constitute violations of the Covenant to this day, account being taken of the acts of the Government and decisions of the courts since the Covenant’s entry into force.
5.4 The authors maintain that the communication as a whole is admissible in that Burkina Faso has failed to comply with its obligations under the Covenant. Citing communication No. 612/1995 (Vicente v. Colombia), the authors refer, first, to the fact that the State party did not fulfil its obligation to conduct an inquiry into the death of Thomas Sankara. Secondly, the State party has never denied its failure to fulfil that obligation under the Covenant, that violation having occurred before and after accession to the Optional Protocol. They further note that Thomas Sankara’s death certificate falsely attributed his death to natural causes and that the State party refused or wilfully omitted to rectify it before and after accession to the Optional Protocol. Thirdly, the authors consider that, in its observations, the State party has made a judicial admission, namely that the State authorities were fully aware that Thomas Sankara had not died of natural causes, but did nothing about it.
5.5 The authors emphasize that the wilful acts and omissions on the part of the State party have continued since its accession to the Optional Protocol and have constituted continuing violations of the Covenant. They recall that they initiated judicial proceedings on 29 September 1997, within the limit of the 10-year prescription period, because of the authorities’ refusal to respect their obligations, and draw attention to the attitude of the authorities, who endeavoured to obstruct or delay their appeals.
5.6 The authors consider that the Court of Appeal was tardy, after their counsels’ notice of default, in handing down its decision of 26 January 2000. They recall that following that decision, having declared the ordinary courts incompetent, the authorities concerned refused or omitted to refer the case to the Ministry of Defence in order that proceedings might be brought in the military courts, as provided for in article 71 (1) and (3) of the Code of Military Justice. On 27 January 2000, therefore, the authors lodged an appeal with the Supreme Court in order to contest the validity of the decision of the Court of Appeal.
5.7 According to the authors, on 27 January 2000 when they lodged the appeal with the Supreme Court, the registrar refused or wilfully omitted to give the counsels formal notification of the requirements established by article 110 of order No. 91-0051/PRES of 26 August 1991. He also omitted to ascertain whether article 111 of that order15 applied, in other words to ascertain the age of Auguste Sankara in order to determine whether he was a minor. By its decision of 19 June 2001, the Supreme Court refused or wilfully omitted to remedy the registrar’s violations and, proprio motu, to verify the age of Auguste Sankara, who, having been born on 21 September 1982, was in fact a minor when the appeal was lodged; those facts constituted two separate violations of Auguste Sankara’s rights under article 16 of the Covenant. The authors draw attention, subsidiarily, to the refusal to allow the counsels to pay 5,000 CFA francs when making their application, and the Supreme Court’s refusal to examine the case on the merits on the sole pretext that payment of 5,000 CFA francs16 was required, and hence to permit continuation of the proceedings.
5.8 The authors again refer to the authorities’ wilful failure and omission to act at various stages of the proceedings, namely, the failure to refer the matter to the Minister of Defence in order that proceedings might go ahead before a military court, when in fact such proceedings are required under the above-mentioned article 71 (3).
5.9 As to the exhaustion of domestic remedies, the authors, referring to the Committee’s jurisprudence,17 state that the Covenant requires criminal proceedings to be initiated at the national level in the case of serious violations, and in particular unlawful deaths. The State party having wilfully omitted or refused to initiate any form of inquiry or civil, criminal or military proceedings, the authors explain that they then lodged a complaint against a person or persons unknown in connection with the death of Thomas Sankara and with the rights of his family, insofar as that was the only domestic recourse available in order to remedy the alleged violations. They recall that they were unable to initiate such proceedings before the military courts under article 71 (3) of the Code of Military Justice. On the basis of the Committee’s jurisprudence,18 the authors maintain that none of the remedies mentioned by the State party may be regarded as effective, given their purely disciplinary or administrative nature, and the fact that they are not legally binding on the public authorities (non-contentious remedies) and cannot provide an effective remedy for alleged serious violations (contentious remedies). As to domestic remedies for denial of justice, citing the Committee’s jurisprudence,19 the authors consider that it is incumbent on the Committee to determine whether the Supreme Court violated its obligations of independence and impartiality, and that they could not, at the time of their appeal, know in advance what action the court would take. In their opinion, the application for recusation in respect of the President of the Supreme Court could not constitute an effective recourse in that it would not remedy the irreversible effects of the Court’s decision, which is not appealable. With regard to the appeal of 20 September 2002 concerning the failure to produce the body of Thomas Sankara, the authors state that the purpose of that appeal was to obtain direct evidence concerning the circumstances of the victim’s death, and that the appeal could not remedy the alleged violations vis-à-vis the members of his family. The authors add that the only effective and adequate remedy for the family members was exhausted by the Supreme Court decision of 19 June 2001. Lastly, in conformity with the Committee’s jurisprudence,20 the authors consider that they could not be required to lodge an appeal concerning sequestration.
5.10 The authors make further submissions concerning the merits of the communication. They show that, in its observations, the State party officially admitted that the authorities knew that the death of Thomas Sankara on 15 October 1987 was not due to natural causes. From that they conclude that the appeal of 30 September 2002 is no longer required. They further note that the then Minister of Justice, and current President of Burkina Faso, did not initiate a judicial remedy despite his awareness of the non-natural death of the victim. Similarly, the Procureur du Faso and the Minister of Defence did not ensure that the Supreme Court’s decision was referred to the military courts. The authors again refer to the statement made by the President of Burkina Faso on Radio France Internationale on 19 June 2001 and consider it to be in breach of article 71 (1) and (3) of the Code of Military Justice, which establishes, among the duties of the Minister of Defence, his exclusive competence to order proceedings in the military courts. The authors stress that whenever a violation has been reported by an examining judge, public prosecutor or prosecutor-general, the Minister of Defence has ordered proceedings to be brought. According to the authors, who refer to a statement in Le Pays,21 the Minister of Defence personally refused to exercise the powers conferred by article 71 (3) of the Code of Military Justice. They again stress that all the judicial authorities, such as the public prosecutor and the prosecutor-general, have either refused to allow, or wilfully prevented or omitted to initiate, proceedings in the military courts.
Issues and proceedings before the Committee concerning admissibility
6.1 Before considering any complaint submitted in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.
6.2 The Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement for the purposes of article 5, paragraph 2 (a), of the Optional Protocol.
6.3 The Committee notes the State party’s arguments concerning the inadmissibility of the communication ratione temporis. Having also noted the authors’ arguments, the Committee considers that a distinction should be drawn between the complaint relating to Mr. Thomas Sankara, on the one hand, and the complaint concerning Ms. Sankara and her children, on the other. The Committee further considers that the death of Thomas Sankara, which could have entailed violations of several articles of the Covenant, occurred on 15 October 1987, and hence before the entry into force of the Covenant and the Optional Protocol for Burkina Faso.22 This part of the communication is therefore inadmissible ratione temporis. Thomas Sankara’s death certificate of 17 January 1988, stating that he died of natural causes — contrary to the facts, which are public knowledge and attested by the State party (paras. 4.2 and 4.7) — and the authorities’ failure to rectify the certificate during the period since that time must be considered in the light of its continuing effect on Ms. Sankara and her children.23
6.4 In this context, in conformity with its jurisprudence,24 the Committee is of the view that it cannot consider violations which occurred before the entry into force of the Optional Protocol for the State party unless those violations continue after the Protocol’s entry into force. A continuing violation is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of previous violations of the State party. The Committee has taken note of the authors’ arguments concerning, first, the absence of an inquiry by the authorities into the death (which was public knowledge) of Thomas Sankara and of proceedings against the guilty parties — allegations which are not in fact challenged by the State party. These constitute violations of their rights and of the obligations of States under the Covenant.25 Secondly, in order to remedy this situation, the authors initiated judicial proceedings on 29 September 1997, i.e. within the limits of the 10-year period of prescription, and these proceedings continued after the entry into force of the Covenant and the Optional Protocol for Burkina Faso. Contrary to the arguments of the State party, the Committee considers that the proceedings have been prolonged, not because of a procedural error on the part of the authors, but because of a conflict of competence between authorities. Given that, according to the information provided by the authors, the alleged violations resulting from the failure to conduct an inquiry and initiate proceedings against the guilty parties have affected them since the entry into force of the Covenant and the Optional Protocol because of the failure of the proceedings to date, the Committee considers that this part of the communication is admissible ratione temporis.
6.5 As to the exhaustion of domestic remedies, and the State party’s argument of inadmissibility based on failure to make use of non-contentious remedies,26 the Committee recalls that domestic remedies must be not only available but also effective, and that the term “domestic remedies” must be understood as referring primarily to judicial remedies. The effectiveness of a remedy also depends, to a certain extent, on the nature of the alleged violation.27
In the present case, the alleged violation concerns the right to life, and is linked primarily to the allegation of the failure to conduct an inquiry and to initiate proceedings against the guilty parties, and secondarily to the allegation of the non-rectification of the victim’s death certificate and the failure of the appeals initiated by the authors in order to remedy the situation. In these circumstances, the Committee considers that the non-contentious remedies mentioned by the State party in its submission cannot be considered as effective for the purposes of article 5 (2) (b) of the optional protocol.28
6.6 With regard to the State party’s claims relating to the non-use of certain contentious remedies concerning the denial of justice, the Committee considers that the State party has confined itself to a mere recital of remedies available under Burkina Faso law, without providing any information on the relevance of those remedies in the specific circumstances of the case or demonstrating that they would have constituted effective and available remedies. With particular regard to the application for recusation in respect of the President of the Supreme Court, the Committee considers that the authors could not know the Court’s decision in advance, and that it will be for the Committee to determine, in the examination of the merits, whether the President’s decision was arbitrary or constituted a denial of justice.
6.7 On the question of the State party’s claim of inadmissibility on the ground that the authors lodged a complaint with the Committee when proceedings were pending before the national courts, the Committee cannot accept this argument in that the additional remedy introduced by the authors in connection with the complaint of 30 September 2002 against a person or persons unknown was exhausted at the time of the present examination of the communication.
6.8 As to the State party’s claim concerning prescription relating to the tardy and procedurally incorrect referral of the case to the courts, the Committee considers it unfounded as set out above (cf. para. 6.4). Moreover, the Committee cannot accept this argument in support of the State party’s assertion that the prosecutor could not be blamed for having refused to refer the case to the Minister of Defence. In this connection, the Committee finds that the grounds for refusal adduced by the prosecutor on 23 July 2001 are manifestly unfounded since (a), as set forth above, prescription could not be applied (and had not in fact been applied by the various authorities throughout the proceedings), and (b) the authors could not themselves bring the case before the military courts (the only competent jurisdiction, the Court of Appeal’s decision No. 14 having become final following decision No. 46 by the Supreme Court). The order to initiate proceedings could be issued, on pain of invalidity, only by the Minister of Defence after referral by the prosecutor in particular. Consequently, the latter, wrongly, halted the proceedings initiated by the authors and, furthermore, did not respond to their appeal of 25 July 2001, a fact which has not been commented on by the State party.
6.9 Lastly, the Committee considers that the authors have exhausted domestic remedies in conformity with article 5, paragraph 2 (b), of the Optional Protocol.
6.10 As to the State party’s argument about the allegedly political character of the complaint, the Committee considers that this in no way affects the admissibility of the communication and, in fact, falls within the scope of the examination of the communication on the merits.
6.11 Regarding the complaints of violations of articles 17 and 23 of the Covenant, the Committee considers that the authors’ allegations concerning the consequences of the failure to conduct an inquiry into the death of Thomas Sankara and to identify those responsible, in particular for their protection, do not fall within the scope of the articles mentioned but do raise issues with respect to article 729 and article 9, paragraph 1,30 of the Covenant.
6.12 Concerning the complaint of a violation of article 16 of the Covenant, the Committee considers that the authors’ allegations do not fall within the scope of this article, but may raise issues with regard to article 14, paragraph 1.
6.13 On the question of the complaints under article 14, paragraph 1, and article 26 of the Covenant (cf. para. 3.1), the Committee considers that these allegations have been sufficiently substantiated for purposes of admissibility.
7. The Human Rights Committee therefore decides:
(a) That the communication is admissible under articles 7, 9, paragraph 1, 14, paragraph 1, and 26 of the Covenant;
(b) That, in conformity with article 4, paragraph 2, of the Optional Protocol, the State party shall be requested to submit to the Committee, within six months of the date of transmittal to it of this decision, written explanations or statements clarifying the matter and the measures, if any, that it may have taken;
(c) That any explanations or statements received from the State party shall be communicated to the authors under rule 93, paragraph 3, of the Committee’s rules of procedure, with the request that any comments they may wish to make thereon should reach the Human Rights Committee, in care of the Office of the United Nations High Commissioner for Human Rights, within six weeks of the date of transmittal; and
(d) That this decision shall be communicated to the State party and the authors of the communication.
[Adopted in English, French and Spanish, the French text being the original version.]
Notes
1 Complaint concerning the death certificate.
2 Equivalent to approximately 1,538 euros, according to the authors.
3 The case file shows that, on 8 October 1997, the senior examining judge in the Ouagadougou Tribunal de Grande Instance issued an order setting the amount of the deposit at 1 million CFA francs.
4 The examining judge considered that, in accordance with article 51 of the Code of Criminal Procedure, the examination division of the Ouagadougou Tribunal de Grande Instance had jurisdiction in the light of the location and the imprescriptibility of the crime. “[…] Whereas, in the present case, it was not reported that the crime of assassination in question had taken place in a military establishment; even if this were true, it should be noted that the perpetrator or perpetrators of this crime have not been identified to date; this, moreover, is the reason why the complaint was lodged against a person or persons unknown; consequently, in the present circumstances, it would be very hazardous, without having previously identified the perpetrators, to conclude that they were members of the armed forces; even if the person responsible for issuing a false administrative document had military status, it should be pointed out that this second offence is subsidiarily linked to the first, namely the assassination, in the sense that its existence depends on the existence of the first, which is the principal offence; moreover, it is a general principle of law that the accessory follows the principal […]; it follows that the military status of the person responsible for the false document would not legally justify the referral of the perpetrator or perpetrators of the principal offence, namely the assassination, to the military courts […].”
5 “[…] it is no secret that the events on which the complaint is based took place on the evening of 15 October 1987 in the Conseil de l’Entente barracks. In other words, the acts in question were perpetrated not only in a military establishment, but also by persons with military status. In no respect does this involve an ordinary offence. The false document mentioned in the complaint is an accessory following the principal, the outcome of which is linked to the principal action. Therefore: The indictment division should declare the examining judge incompetent, in accordance with article 34 of the Code of Military Justice …”. Article 34 of the Code of Military Justice: “The military courts are competent to examine and pass judgement on ordinary offences committed by members of the armed forces, or equivalent non-combatant personnel in service, in military establishments or where they are accommodated, as well as the military offences established under this Code in accordance with the rules of procedure which apply thereto.”
6 It emerges from the Supreme Court decision that the authors stated in the court that, at the time they lodged their complaint on 9 October 1997, pursuant to article 85 of the Code of Criminal Procedure, they had paid to the examining judge a deposit of 1 million CFA francs, and that, furthermore, they had not paid the penalty deposit to the Supreme Court registrar as the latter had omitted to read out the provisions of article 110 of order No. 91-0051/PRES of 26 August 1991 relating to the composition, organization and functioning of the Supreme Court (“the claimant is required, on pain of inadmissibility, to pay a sum of 5,000 francs as a penalty deposit before the end of the month following his or her notice of intent to appeal. The deposit is payable either directly to the chief registrar of the Supreme Court or by a money order addressed to the chief registrar. The registrar receiving the notice of intent shall read out to the claimants the provisions of the foregoing two paragraphs and mention this formality in the record”). The Supreme Court considered that the deposits provided for under article 85 of the Code of Criminal Procedure and article 110 of the above-mentioned order were separate and that the payment of the deposit provided for in the first provision did not obviate payment of that required under the second provision. The Supreme Court also considered that the registrar’s failure to inform the claimants of the obligation to pay a deposit was not, by law, liable to any procedural penalty, and that the authors could not, therefore, be exempted from this obligation as a result of the aforesaid omission.
7 Arguing that Court of Appeal decision No. 14 had become final as a result of Supreme Court decision No. 46 and that consequently the ordinary courts were incompetent, the authors, on the strength of article 71 (3) of the Code of Military Justice, asked the Prosecutor-General to report the criminal act to the Minister of Defence, who would then be required to issue a prosecution order (article 71: “If the case involves an offence within the competence of the military courts, the Minister of Defence shall determine whether or not it is necessary to refer the case to the military justice system. No proceedings may take place, on pain of invalidity, without a prosecution order issued by the Minister of Defence. In all cases where the offence has been reported by a civilian examining judge, a prosecutor or a prosecutor-general, the Minister of Defence is required to issue the prosecution order. The said prosecution order cannot be appealed; it must make specific reference to the acts to which the proceedings will relate, characterize them and indicate the applicable legislation”). The authors recalled that, on 27 January 2000, they had also, unsuccessfully, addressed such a request to the Procureur du Faso. However, according to the authors, in a similar case (Public prosecutor v. Kafando Marcel et al., which was the subject of referral order No. 005/TMO/CCI of 17 July 2000), the Procureur du Faso in the Ouagadougou Tribunal de Grande Instance had, in communication No. 744/99, reported acts categorized as serious and ordinary offences that appeared to have been committed on Conseil de l’Entente premises to the Government Commissioner to the Military Court. Moreover, according to the authors, the Minister of Defence, after a preliminary inquiry, had issued a prosecution order.
8 “It’s all very well to keep harping on one particular aspect of the Sankara case. But it should not be forgotten that there are certainly many cases before the courts. The Minister of Defence is not there to deal with justice-related issues; he certainly has other concerns. But I can assure you that, in all matters relating to all legal cases, there will be nothing to prevent cases from proceeding from start to finish in our country. We have chosen the rule of law and we intend to meet our responsibilities in this regard.”
9 Cf. footnote 6 and para. 2.9.
10 The authors claim, first, that the period of prescription was interrupted (Neither the judicial examination order nor the Court of Appeal decision challenged the admissibility of the complaint. Similarly, the predecessor of the current Procureur du Faso had not invoked prescription, but article 34 of the Code of Military Justice. Furthermore, the Supreme Court’s inadmissibility decision applies only to the non-payment of the deposit and not prescription.) Secondly, the authors claim that the Court of Appeal decision instructed the parties, not only the claimant but also the prosecuting authorities, to take proceedings in the proper court. In accordance with this decision, the authors explain that they were unable, under the provisions of the Code of Military Justice, to bring the case directly before the Minister of Defence (the only person with authority to issue the prosecution order in connection with an offence within the jurisdiction of the military courts), and were thus obliged to refer the case to the prosecutor in accordance with article 71 (3) of the Code of Military Justice. Once again, reference is made to the Public prosecutor v. Kafando Marcel et al. case.
11 From the case file it is impossible to establish that the authors raised before the Supreme Court the question of the exemption from payment of a deposit in the case of Auguste Sankara, who was a minor at the time. See also footnote 5.
12 Article 4: “Any judge who, on the pretext of the silence, obscurity or inadequacy of the law, refuses to deliver a judgement may be prosecuted for denial of justice.”
13 Article 166: “Any judge who, on whatever pretext, including silence or obscurity of the law, refuses to render the justice he owes to the parties after being requested to do so, and who persists in his refusal after a warning or order from his superiors, shall be liable to imprisonment for a term of two months to one year and a fine of 50,000 to 300,000 francs. A judge found guilty of this offence may, furthermore, be barred from any judicial function for a period of not more than five years.”
14 Communication No. 886/1999 (Schedko et al. v. Belarus).
15 Article 111 of order No. 91-0051/PRES of 26 August 1991: “The following are nevertheless exempted from payment of a deposit: persons sentenced to correctional imprisonment or light imprisonment; persons in receipt of judicial assistance or having requested such assistance; minors under the age of 18.”
16 Equivalent to approximately 7.6 euros, according to the authors.
17 Communications Nos. 563/1993 (Nydia Bautista de Arellana v. Colombia), 612/1995 (Arhuacos v. Colombia) and 778/1997 (Coronel v. Colombia).
18 Communication No. 612/1995 (Arhuacos v. Colombia).
19 Communication No. 886/1999 (Schedko et al. v. Belarus).
20 Communication No. 30/1978 (Bleier v. Uruguay).
21 “At this juncture, matters must not be confused. To date, the Minister of Defence has not been called upon to intervene as such in the Thomas Sankara case. I have no judicial document or a document from a claimant calling on me to act. If one day this problem arose, courageously and with the President of Burkina Faso as the supreme chief of the armed forces, we shall ensure that a solution is found to the problem. Thomas Sankara was in fact one of our brothers in arms. There is no reason why any problem raised concerning him cannot be solved.” Le Pays, No. 2,493, 22 October 2001.
22 Communication No. 500/1998 (R.A.V.N et al. v. Argentina).
23 Communication No. 717/1996 (Acuña Inostroza et al. v. Chile).
24 Communications Nos. 24/1997 (S. Lovelace v. Canada), 1996/1985 (I. Gueye v. France), 516/1992 (J. Simunek et al. v. Czech Republic), 520/1992 (E. and A.K. v. Hungary), and 566/1993 (Ivan Somers v. Hungary).
25 Communication No. 612/1995 (José Vicente et al. v. Colombia).
26 Médiateur du Faso, Collège des sages, National Reconciliation Commission and Compensation Fund for Victims of Political Violence.
27 Communication No. 612/1995 (José Vicente v. Colombia).
28 Communications Nos. 612/1995 (José Vicente v. Colombia) and 778/1997 (Coronel et al. v. Colombia).
29 Communications Nos. 950/2000 (Sarma v. Sri Lanka) and 886/1999 (Bondarenko et al. v. Belarus).
30 Communication No. 821/1998 (Chongwue v. Zambia).
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