An important step in the case of the disappeared at the Beach
|Publisher||International Federation for Human Rights|
|Publication Date||27 September 2004|
|Cite as||International Federation for Human Rights, An important step in the case of the disappeared at the Beach, 27 September 2004, available at: http://www.refworld.org/docid/482c5bcfc.html [accessed 26 May 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Next Monday 27 September will be held a crucial hearing before the Première chambre de l'instruction de la Cour d'appel de Paris (First Examining Chamber of the Court of Appeal of Paris), on the proceedings related to the arrest, hearing, indictment, and imprisonment of the Congolese national police director, Jean-François Ndengue.
He is, with other officials of the Congolese regime, sued in France in criminal proceedings triggered by the International Federation for Human Rights (FIDH), the French League for Human rights (LDH) and the Congolese Observatory for Human rights (OCDH) for the crimes of torture and crimes against humanity perpetrated at the Brazzaville "Beach" in 1999.
Mr. Ndengue, as the general Director of the national police force, was then in charge of security in the Beach river port. For this reason, he was in permanent contact with elements of the presidential Guard patrolling the Beach.
Moreover, he received and carried out official instructions during the massacres and his presence at the Beach at the time of the arrests and the kidnappings is evidenced.
While the Public prosecutor's office asserts that the acts taken against Ndengue are null because he was carrying out an "official mission" and for this reason benefited from a diplomatic immunity, the International Federation for Human Rights (FIDH), the French League for Human rights (LDH) and the Congolese Observatory for Human rights (OCDH) question those arguments in their memorial presented before the Examining Chamber.
According to the FIDH, the LDH and the OCDH, at the origin of the claim filed in December 2001, all the factual elements show that Ndengue was in France for private reasons and not in any official mission. Consequently, he cannot benefit from any diplomatic immunity derived from conventional or customary international law.
The FIDH, the LDH and the OCDH sincerely hope that the Examining Chamber will not be taken in by the subterfuge which consisted in trying to disguise, very clumsily and a posteriori, a purely private visit as a special mission in order to allow Mr. Ndengue to elude French justice. Indeed, it is necessary to remember that the day after Ndengue's release, granted in the middle of the night, the Public prosecutor's department of the Court of Appeal in Paris declared that it was "urgent to put an end to this arbitrary decision" (source AFP 6/04/04).
Additionally, the FIDH, the LDH and the OCDH pinpoint that the decision to be taken by the Examining Chamber could impact more generally on the implementation of the universal jurisdiction principle by French courts.
Indeed, the Public prosecutor's office invokes the incompetence of the examining magistrate to investigate against any person but General Norbert Dabira, who has been indicted and was the only one among the alleged persons responsible to be present in France when the initial claim was filed. Thus, the Public prosecutor's office challenges the fundamental principle of the in rem referral (meaning that the examining magistrate can carry out any act related to the facts submitted to him/her), which is a cornerstone of the French criminal procedure.
Renouncing the "in rem" jurisdiction principle would be all the more paradoxical in a case where the prosecution and trial of the gravest crimes is at stake. The extraterritorial jurisdiction mechanism on the contrary aims at reinforcing the legal means to repress those crimes that most seriously prejudice victims and the international community, as clearly enshrined in the Convention against torture, adopted in New York on December 10, 1984. Welcoming the reasoning of the Public prosecutor's office would restrict the implementation of the extraterritorial jurisdiction principle, which France has adhered to by several international conventions.
In a case where political interference attempts have been constant continuous, only law must prevail and the work of justice must be concluded, in accordance with the legitimate expectations of the victims and their families.
According to the FIDH, the LDH and the OCDH, the specious argument of the examining judge's, derived from an so-called "in personam" referral, as well as the immunity alibi, must be rejected by the Examining chamber in order to respect the victims' fundamental right to an effective remedy before independent and fair courts.