Chronology of relevant facts

A partial chronology of the campaign, derived from ICJS trials and relevant facts, is summarized as follows:

1987

On 15 October 1987, Thomas Sankara, President of Burkina Faso, was assassinated in a coup d'état in Ouagadougou along with a dozen of his colleagues. On October 15, 1987 Blaise Compaoré, then Minister of Justice of Burkina Faso, failed to fulfil his duty by not ordering judicial proceedings in relation to the assassination of Thomas Sankara even though he was aware that President Sankara did not die of natural causes. This omission has meant that it is still not possible to determine those responsible for the murder and bring them to justice.

All state authorities in Burkina Faso have also failed to undertake judicial, civil or military proceedings to identify, judge and punish those responsible for the death of Thomas Sankara. This is despite the fact that authorities were aware that Sankara did not die of natural causes.

Since Sankara's assassination in 1987, Blaise Compaoré became President of Burkina Faso. Since his appointment, he has not taken any legal action, whether civil, criminal or military, to establish the circumstances surrounding Thomas Sankara's death.

1987-1997

From 1987 to 1997, the authorities did not undertake any investigation into the assassination. In addition, on 17 January 1988, a death certificate was issued which falsely stated that Thomas Sankara died of natural causes.

On May 17, 1984 – An Ombudsman of Faso was established

1997

On September 29, 1997, before the expiry of the ten-year statute of limitations, Ms Mariam Sankara lodged a complaint as his wife and on behalf of their two children against X for the assassination of President Sankara and for the willful forgery of an administrative document[1] at the Ouagadougou High Court.

On October 9, 1997, the CIJS lawyers deposited 1 million CFA francs[2], in accordance with the Code of Criminal Procedure[3].

1998

On 25 January 1998, the public prosecutor of Faso submitted a request to contest the jurisdiction of the ordinary courts on the ground that the alleged events had taken place within the confines of a military establishment between members of the armed forces and persons of equivalent status, and that the death certificate had been issued by the health services of the national armed forces and signed by a commanding physician, who was therefore a member of the armed forces.

On 23 March 1998, by order No. 06/98, the investigating judge Alexis Kambire decided, on the contrary, that the Tribunal de grande instance de Ouagadougou was the competent investigating court under ordinary law[4]. The judge ordered that there was reason to proceed.

On 2 April 1998, the public prosecutor appealed this decision[5].

1999

On March 12 in an Appeal report, the investigating judge wrongly refused the requests of the judiciary as stated Dramane Yameogo, the procureur of Faso.

On 1 June 1999, the Collège des Sages was established.

On 10 December 1999, due to the absence of a decision by the Indictment Chamber of the Court of Appeal, the ICJS lawyers asked the Minister of Justice and the Superior Council of the Magistracy to take all necessary measures to ensure the impartiality of the proceedings and a fair trial.

2000

On 26 January 2000, by judgment No. 14, the Court of Appeal of Ouagadougou - Indictment Division under the presidency of Georges Sanou - overturned order No. 06/98 of 23 March 1998 and declared the ordinary courts without jurisdiction to treat the matter.

On 27 January 2000, counsel challenged the above-mentioned judgment No. 14 by lodging an appeal with the judicial chamber of the Supreme Court.

According to counsel for CIJS, despite judgment No. 14 of the Court of Appeal and a request from them on 27 January 2000, the Procureur du Faso refused or failed to report the case to the Minister of Defence so that the latter could order the prosecution.

2001

On 19 June 2001, by judgment No. 46, the Supreme Court - Judicial Chamber - declared this appeal inadmissible for failure to pay the deposit[6]. However, the regulation exempts minors from the deposit of a fine of 5,000 CFA francs.

On 19 June, a request from our counsel was sent to the Attorney General at the Supreme Court so that he would denounce the case to the Minister of Defence so that the latter would give the order to prosecute[7].

On 19 June 2001, during an interview that included the Sankara case, the President of Burkina Faso stated on Radio France Internationale (RFI) that the Minister of Defence had no business dealing with matters of justice[8].

On 25 June 2001, a new request[9] was sent to the Prosecutor of Faso. On the same date, counsel asked the Minister of Defence to issue the prosecution order, expecting a forthcoming denunciation by the Public Prosecutor's Office of all offences committed in the assassination of Thomas Sankara.

On 30 June 2001, following the decision of the Supreme Court of Burkina Faso of 19 June 2001, the President of Burkina Faso, Blaise Compaoré, participated in an interview with Radio France Internationale. In response to a question as to why the Minister of Defence had not initiated proceedings before the military courts following the Supreme Court decision, Blaise Compaoré stated the following:

"It is all very well to always focus on the Sankara case, on this or that aspect of this case. But we must not forget that justice certainly has many files. The Minister of Defence is not there to deal with justice issues, he certainly has other concerns. But I can assure you that there will be no obstacles to a case following its course from beginning to end in our country. This is the rule of law that we have chosen and we intend to assume our responsibilities in this matter.

This presidential statement, made by the Head of State of Burkina Faso in the context of his official duties, must be understood by the Committee in relation to article 71(1) and (3) of the Code of Military Justice of Burkina Faso, which provides for the exclusive competence of the Minister of Defence to institute criminal proceedings before military courts, as follows.

ARTICLE 71: - In the case of an offence falling within the jurisdiction of the military courts, the Minister of Defence shall assess whether or not there are grounds to bring the case before the military courts.

On 23 July 2001, the Prosecutor of Faso replied to counsel that, firstly, their request related to acts classified as crimes committed on 15 October 1987, i.e. more than 13 years and 8 months previously, and secondly, the Court of Appeal's judgment of 26 January 2000 had declared itself without jurisdiction and had sent the parties back for further proceedings.

On 25 July 2001, contesting the Prosecutor's reply[10], counsel again requested that, in accordance with Article 71(3) of the Code of Military Justice, the case be referred to the military courts, as the civil party could not appeal. To date, no response from the Prosecutor and therefore no referral to the Minister of Defence have been reported.

Official comments by the Minister of Defence, published in the newspaper Le Pays, No 2493, on 24 October 2001, deny having received the formal request dated 19 June 2001 (received and registered on 20 June 2001, by the Minister of Defence under correspondence No 2757).

2002

On 15 October 2002, after being bounced from court to court in Burkina, Mariam Sankara and her children, represented by the lawyers of the Collectif Juridique de la Campagne Internationale Justice pour Sankara, took the case to the UN Human Rights Committee.

2003

On 31 March 2003, the information was provided by the observations on admissibility by the State party in the ICJ communication:

On 31 March 2003, Burkina Faso acknowledged for the first time that Thomas Sankara did not die of a natural death on October 15, 1987.

On 31 October 2003, Burkina Faso also acknowledged that certain officials on October 15th had precise knowledge of the circumstances of Thomas Sankara's death on 15 October 1987.

a) Reconsideration of Article 6(1) and other rights protected by the Covenant for Thomas Sankara by the Committee based on the new elements and the official recognition of previous violations by the State Party.

2004

At its 80th session in New York in April 2004, the UN Human Rights Committee found the communication against Burkina Faso admissible.

On 27 September 2004, the Burkina Faso regime challenged the jurisdiction of the UN Committee, and attempted to provide a distration from its responsibility for the assassination of Thomas Sankara and his comrades, arguing that the Sankara widow and her supporters were seeking revenge and to discredit the state. Burkina Faso presented its reasons as follows:

"...] at the time of the entry into force of the Covenant and the Optional Protocol for Burkina Faso in April 1999, the State could no longer legally initiate an investigation into the death of Thomas Sankara. Any legal action in relation to this case had been time-barred since 15 October 1997...".

In reality, the ICJS lawyers filed a complaint before the end of the ten-year statute of limitations, i.e. on 29 September 1997. The use of the statute of limitations as an obstacle to the continuation of the proceedings follows the same reasoning as that employed by the Procureur du Faso, who refused to act on 23 July 2001, despite the powers vested in him and which were nevertheless deployed in the violation of David OUEDRAOGO's right to life[13].

The Working Group has previously noted the said statute of limitations as an obstacle cited by the Prosecutor of Faso and unequivocally rejected the arguments in question[14] stating:

"...] the Committee notes that the grounds for refusal put forward by the Prosecutor on 23 July 2001 are manifestly unfounded since, on the one hand, as explained above, the statute of limitations could not be upheld (and indeed had not been upheld by the various authorities throughout the proceedings), and on the other hand, the ICJS lawyers could not themselves refer the case to the military courts ...'.

This binding declaration by the State Party is certainly not without consequences.

In fact and in law, the adoption of this manifestly unfounded argument to justify the State Party's refusal to act on 27 September 2004 must be interpreted as an unequivocal and frank act and assertion by which Burkina Faso reveals its past violations of the rights it has ratified to the Covenant.

Furthermore, the Working Group's preliminary determination of the refusal based on the statute of limitations, as noted by the Procureur du Faso on 23 July 2001, was corroborated by the existence of article 7 of the Code of Criminal Procedure, which states:

"In matters of crime, the public action is prescribed by ten years from the day the crime was committed, if in the meantime no investigation or prosecution has been carried out.

If there has been one in the meantime, it is not time-barred until ten years have elapsed since the last act. This shall also apply from the date of the last act. This shall also apply to persons who were not the subject of the investigation or prosecution.

The last act of investigation in relation to the death of Thomas Sankara (and the falsification of his death certificate) was on 29 September 1997; according to the very terms of Article 7 of the Code of Criminal Procedure, the statute of limitations had not yet been reached and the Burkinabe authorities retained the power to continue[15] or to initiate criminal proceedings accordingly.

Considering the refusal to initiate appropriate judicial proceedings in relation to the wrongful death of Thomas Sankara, as well as the false or manifestly unfounded statements made by the President[16], the Minister of Defence[17], the Supreme Court[18] and the Prosecutor General[19] and falling within their prerogatives; and taking into account all of the facts and the implications thereof, the Committee can now declare that the State Party violated Thomas Sankara's rights under article 6(1) and other rights protected by the Covenant.

Failure to undertake criminal judicial proceedings to investigate any credible allegations in relation to Thomas Sankara's death will result in continuing and further violations of the Covenant.

Article 6(1) obliges Burkina Faso to investigate and criminally prosecute those responsible for violations of Thomas Sankara's right to life, and to respect and ensure Thomas Sankara's right to life.

Article 6(1) imposes an obligation to prevent arbitrary deaths. The authorities must also thoroughly investigate known or suspected violations of the right to life. Similarly, the State must initiate criminal proceedings against those responsible for such violations. The Committee has reaffirmed this duty in cases of attempted assassinations [20] as well as in cases of suspected state involvement in extra-judicial killings [21].

Furthermore, in Coronel et al, v. Colombia, the Committee recognized the duties to investigate and prosecute on behalf of victims over and above the state's obligations to ensure and guarantee the right to life of its citizens.

2005

Interim measures to the UN Human Rights Committee.

Final observation by Burkina Faso at the UN Human Rights Committee.

Burkina Faso's final submission to the UN Human Rights Committee.

2006

On 28 March 2006, the Human Rights Committee recognized the ICJS rights against the State party:

"Para. 6.5

With regard to the exhaustion of domestic remedies, in view of the State party's argument of inadmissibility based on the failure to use non-litigious remedies, 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 some extent on the nature of the violation complained of. In the present case, the alleged violation concerns the right to life, and is linked primarily to the alleged failure to investigate and prosecute the perpetrators, and secondarily to the alleged failure to certify the victim's death certificate, and to the failure of the perpetrators to pursue remedies to remedy this. In this situation, the Committee considers that the non-litigious remedies invoked by the State party in its submission cannot be considered "effective" for the purposes of article 5(2)(b) of the Optional Protocol

Para. 12.2

(...) the refusal to conduct an investigation into the death of Thomas Sankara, the failure to officially recognize the place of his remains, and the failure to certify the death certificate constitute inhuman treatment of Ms. Sankara and her sons, contrary to article 7 of the Covenant

Para. 12.2

The family of Thomas Sankara has the right to know the circumstances of his death (...) The Committee considers that the refusal to conduct an enquiry into the death of Thomas Sankara, the failure to officially recognize the place of his remains, and the failure to certify the death certificate constitute inhuman treatment of Ms. Sankara and her sons, contrary to article 7 of the Covenant

Para. 12.6

The Committee notes that, following Supreme Court decision No. 46 of 19 June, which made final the Court of Appeal's decision No. 14 declaring the ordinary courts incompetent, the relevant authorities refused or omitted to refer the case to the Minister of Defence for prosecution before the military courts, as provided for in article 71(1) and (3) of the Code of Military Justice. The Committee also refers to its deliberations on admissibility and its conclusions that the prosecutor wrongly halted the proceedings initiated by the authors and, moreover, did not respond to their appeal of 25 July 2001. Finally, the Committee notes that since the ordinary courts were declared incompetent, nearly five years have passed without any legal proceedings being brought by the Minister of Defence. The State party has not been able to explain the delays in question, and on this point the Committee considers that, contrary to the State party's arguments, no statute of limitations can render the action before the military judge null and void, and therefore the failure to report the case to the Minister of Defence is a matter for the prosecutor, who alone is entitled to do so...

Para. 15

Bearing in mind that, by becoming a party to the Optional Protocol, a State party recognizes the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Optional Protocol, the State party undertakes to ensure to everyone within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days of the submission of the present Views, information about the measures taken to give effect to those Views."

2007

Death threats against the ICJS coordinator.

Sankara caravan and first visit of Mariam Sankara to Ouagadougou.

2008

The Human Rights Committee did not expressly retain the right of enquiry and only demanded compensation and recognition of the burial site. Paradoxically, Burkina Faso did not provide any evidence to justify the burial site.

The sum offered in compensation to the family totalled 43,445,000 CFA francs, or 66,231.475 Euros, or $65,000 USD. Some of the experts felt that this sum was more generous (i.e. $650,000 - 434,450,000 CFA Francs) and that the State Party was making a great effort by crossing out the word "natural" from the odious death certificate, which claimed that he had died of natural causes. Despite the correction of the figure by ICJS lawyers (the extra 0) and the evidence that the Sankarists' pilgrimage to the cemetery in front of the alleged graves could not be used as evidence, the Human Rights Committee declared in April 2008 that it was satisfied "for the purpose of follow-up to its Views and - that it does not intend to consider this matter further under the follow-up procedure".

2009

On 14 October, an application was made on behalf of Mariam Sankara and her children to the President of the Tribunal de Grande Instance in Ouagadougou for an interim injunction to exhume the grave and carry out DNA tests on the remains.

On 25 August 2009, Charles Taylor was cross-examined at the Criminal Court in The Hague. On page 27,602, he denied this, alleging that he was under arrest in Ghana at the time, but misrepresented Compaoré's guilt in his questioning, before retracting his statement: "I was still locked up in jail when Blaise Compaoré killed all - during the killing of Thomas Sankara, because I can't say he killed, but he didn't do it himself. I was in prison in Ghana...".

In a RAI documentary, 'Ombre Africane', another Liberian, General Momo Jiba, who was Compaoré's bodyguard, concurs with Tarnue and Johnson in shedding new light on the Sankara assassination and claiming, in front of a hidden camera, that Compaoré personally fired the gun and that the coup d'état was an international conspiracy that even had the support of the CIA. Another journalist, Keith Harmon Snow, in an interview with Norbert Zongo, his colleague since murdered by the Compaoré regime, had also reported the involvement of Mossad and the CIA in this assassination.

All these witnesses say they fear for their lives and refuse to give any more details about the case.

On 15 October 2009, the ICJS Legal Collective filed a motion for a writ of summons and an order for a DNA sample to be taken from the presumed body of the burial site, erected by the government of Burkina Faso, to be compared with those taken from the two Sankara children.

2010

Collection of DNA from the Sankara children and request for exhumation and comparative expertise. The ICJS also requested the appointment of an expert or an independent laboratory of recognized standing to carry out DNA identification. The case was registered under No. RM 211/2010 and a procedural schedule was drawn up on 9 February 2011.

2011

The first desecration took place on 26 July 2011. According to the prosecutor, Placide Nikiéma, the desecrator was Zaksongo R. Jean Jacob, a man who was not mentally fit and from whom pieces of the tomb were later found. An unidentified liquid had also been spilled. This posed a problem, since the ICJS lawyers, on 9 February 2011, taking the UN decision on the burial site at face value, asked the Tribunal to order the State of Faso to identify the body in the designated tomb of Thomas SANKARA that it had erected.

On 11 March 2011, the State of Burkina Faso raised the lack of jurisdiction of the Tribunal de Grande Instance of Ouagadougou, the inadmissibility of the claim, the nullity of the summons and concluded to dismiss the claim.

2012

In a hearing on 26 April 2012, in Ouagadougou, the complaint for the alleged sequestration of Thomas Sankara was postponed to 24 May 2012 by the judge on the grounds that the rapporteur general would be absent and on mission.

The complaint filed in 2002 by Me Dieudonnée Nkounkou remained pending in the Burkina courts and was defended.

2013

In June 2013, at the initiative of opposition parties, there were waves of demonstrations to reject the amendment of the constitution that would allow Blaise Compaoré to stand again in the 2015 presidential elections.

On 18 November 2013 in Ouagadougou, a new desecration of the presumed tomb of Thomas Sankara. Me B. Sankara requested a bailiff for this second act of vandalism of the president's grave while liquids were spilled. We are requesting samples of the contaminated soil to determine whether the liquid has a degrading corrosive potential.

2014

On 30 April 2014, the Tribunal de Grande Instance of Ouagadougou deliberated on the request for a summons and DNA expertise to confirm the grave of Thomas Sankara. The wording of the minutes of the hearing reads:

"The court ruling publicly, contradictorily, in civil matters and at first instance, Having regard to Articles 21 of Law No. 10-93 ADP of 17 May 1993 on the organisation of the judiciary in Burkina Faso, 192, 193 and 194 of the code of civil procedure,

Declares itself incompetent.

Refers the parties to take action as they see fit.

Orders the costs to be borne by the applicants.

1 November 2014 - Fall of Blaise Compaoré. Flight and exfiltration by his françafrique allies in Côte d'Ivoire.

2015

On 24 March 2015, the ICJS had confirmation that the Thomas Sankara case falls to an investigating office within the military court.

That same year, Burkina Faso's military justice system issued a dozen international arrest warrants against Blaise Compaoré.

On 25 May 2015, the exhumation of two of the tombs of the martyrs of 15 October 1987, including the presumed tomb of Thomas Sankara, which is currently under seal, began at the Dagnoën cemetery under heavy security and with many onlookers and sympathizers kept at a distance. The work of locating and exhuming is tedious and two of the 13 graves have already revealed evidence and forensic data. They are under the responsibility of the investigating judge and Prof. Robert Soudré and Dr Norbert Ramdé, experts at the Ouagadougou Court of Appeal, and Prof. Alain Miras, a forensic expert working at the Bordeaux Court of Appeal in France. Sankara's alleged grave, which had been desecrated with impunity twice in the past under President Compaoré's regime, was next to a rubbish dump.

On 16 June 2015, Mariame Sankara asks French MPs to assist her in declassifying documents on the Sankara case.

December 2015 - Negative results of DNA tests on the presumed remains of Thomas Sankara.

2016

January 2016 - The ICJS is surprised to find that the genetic material taken from the remains of a dozen victims of 15 October 1987 is degraded to the point that it is not even identifiable. Forensic investigation in Burkina is technically limited and seems to offer little recourse.

We had asked to film the exhumation. For the visual recognition of recognizable things and the conditions of the exhumation and the clear identification of the biological remains, (bones, dentition, implants, if possible hair) existing are they complete, or in what proportion and in what quality of conservation.

We wished to have the completeness of the first biological result. We recall that we had suggested an independent and accredited international laboratory, which was not retained by the authorities who chose one, then favoured another.

We also asked for a second opinion, again recommending an independent international laboratory. The judge chose a third laboratory in Spain. Was another sample taken or were the same samples from the first time used?

In both cases we do not know which technique was used or the technical biological result and are definitely waiting for both biological opinions. There are several techniques. At this stage, the identification of degraded DNA and the so-called negative result cannot harm the investigation. However, to remove any doubt and to better reassure the family, it is still possible to :

- compare results with ante-mortem dental X-rays ;

- compare with other physical singular features with skeletal radiographs, or any existing implants;

- use other forms of analysis and corroborate with DNA from children already sampled.

For example, the finer analysis of microsatellites, of degraded DNA, can remedy our situation. Single nucleotide polymorphisms (SNPs) and sex chromosome microsatellites (X and Y) are more appropriate when the DNA to be analysed is highly degraded. Nucleotide polymorphism (SNP) is the variation of a single base pair of the genome between individuals of the same species, or numerous variations of the order of around one base pair in two thousand in humans. Recent advances in analysis allow the identification of nucleotide variation on large sequences. Molecular tagging by SNP identifies the differences in each DNA sequence. This involves hybridizing a control containing a fluorescent molecule (the fluorophore) onto the target DNA. Elongation is carried out by the action of TAG polymerase PCR which will reveal the oligonucleotides present in the reaction medium and release the fluorophores arranged on the controls. When visualised, individuals A and B do not fluoresce in the same way, so they have a polymorphism at a nucleotide level. This technology has the potential to be much more automated than previous technologies. SNP or Snip labelling allows accurate results that discriminate between alleles.

http://aboutforensics.co.uk/cgi-sys/suspendedpage.cgi

13 October 2015 - The investigating judge informs us that there is sufficient forensic and ballistic evidence, however, to corroborate that Sankara's remains are his and attest that he was shot.

15 October 2015 - The ICJS reiterated to the investigating judge François Yameogo our request for access to official and unofficial documents to be declassified emanating from the French authorities and relating to the Sankara case. This includes any document that may be related to the Sankara case and that is part of the bilateral, diplomatic, commercial, military and intelligence relations between France and Burkina Faso since 1984, or that is part of France's internal affairs. We trust that diplomatic notes, intelligence notes, directives from the Quai d'Orsay, Matignon and the Élysée, those of the French army, or any other document or testimony likely to shed light on the attack of 15 October 1987, will be disclosed, taking into account the typology and genealogy of the authorized services.

2017

June 19, 2017 - The Luis Concheiro Institute of Forensic Sciences in Santiago de Compostela requested by the judge states that it could not sufficiently identify the DNA remains.

Commission rogatoire in France.

The French Ministry of Foreign Affairs and International Development, by note 2017-320 284 of 09/09/2017 (received by the judge on 21/07/2017), addresses the investigating judge.

28 November 2017 - The declassification we have always demanded is promised by President Macron in Ouagadougou.

2018

Request for documents to the examining magistrate by the lawyers of Thomas SANKARA's heirs reiterating their request for access to official and unofficial documents to be declassified emanating from the French authorities and relating to the Sankara case.

9 November 2018 - Arrival of the archives of the French Ministries of Foreign Affairs and Defence transmitted, through diplomatic channels, to the judge.

 

2019

The investigating judge indicts 22 people.

2021

July 2021 - A third batch of declassified documents arrives just after the conclusion of the investigating judge's case.

11 October 2021 - Opening of the trial announced at the military court

1 Complaint regarding the death certificate.

2 Or approximately 1,538 euros according to CIJS’ lawyers

3 It appears from the file that on October 8, 1997, the senior examining magistrate of the Tribunal de Grande Instance of Ouagadougou issued an order setting the amount of the civil party’s deposit at
to 1 million CFA francs.

4 The investigating judge considered that, in accordance with article 51 of the Code of Criminal Procedure, the investigating court of the Tribunal de Grande Instance of Ouagadougou had jurisdiction with regard to the place of commission and the fact that the crime was not time-barred. ” [… Whereas in the present case, it has not been reported that the crime of assassination in question was committed in a military establishment; even if this were the case, it should be noted that the lawyers of the CIJS of this crime have remained unknown to this day; that it is moreover the reason why the complaint was formulated against “X”; that it follows that in the current stage it would be very random without having previously identified the lawyers of the CIJS, to conclude to their quality of military; that even admitting the military status of the author of the forgery in administrative writing, it should be noted that this second offence is subsidiarily linked to the first, which is the assassination, so that its existence depends on that of the first, which is the principal offence; that, moreover, it is a general principle of law that the accessory follows the principal [… It follows that the military status of the perpetrator of the forgery cannot legally justify the referral of the perpetrator(s) of the principal offence of murder to military jurisdiction….] ”   

5 […] it is no secret that the facts for which the complaint was filed took place on the evening of October 15, 1997 in the barracks of the Council of the Agreement. That is to say that these facts were committed not only in a military establishment, but also by persons who had the quality of military. In all points of view, it is not even a question of common law offence. As for the forgery referred to in the complaint, it is an accessory that follows the principal and whose fate is linked to the main action. For these reasons: Requests that the Indictment Division be pleased to declare the investigating judge incompetent pursuant to Article 34 of the Code of Military Justice […]”. Article 34 of the Code of Military Justice: “The military courts are competent to investigate and judge ordinary law offences committed by military personnel or assimilated persons in the service or in military establishments or at the guest’s home, as well as military offences provided for by the present code in accordance with the rules of procedure applicable before them […]”.

6 It is clear from the Supreme Court’s decision that the lawyers for the CIJS claimed before this court, on the one hand, that they had paid a deposit of one million francs on 9 October 1997 to the investigating judge when they filed their complaint, and on the other hand, that they had not paid the deposit of one million francs when they filed their complaint, not having paid the fine deposit to the Clerk of the Supreme Court insofar as the latter had omitted to read out the provisions of Article 110 of Ordinance No. 91-0051/PRES of 26 August 1991 on the composition, organization and functioning of the Supreme Court (“the applicant is required, under penalty of inadmissibility, to deposit before the expiry of the month following his declaration of appeal, the sum of five thousand francs as a fine deposit. The deposit of the fine shall be made either by payment into the hands of the Chief Clerk of the Supreme Court, or by a money order addressed to the latter. The clerk who receives the declaration of appeal must read out to the declarants the provisions of the two preceding paragraphs and mention this formality in the act.) The Supreme Court held that the deposits provided for in Article 85 of the Code of Criminal Procedure and Article 110 of the aforementioned ordinance were distinct and that payment of the deposit provided for in the first provision did not exempt the payment of the deposit provided for in the second provision. The Supreme Court also held that the failure of the clerk of the court to inform the plaintiffs of the obligation to pay a deposit was not legally subject to any procedural sanction, and that the lawyers of the CIJS could not be exempted from this obligation as a result of the omission thus noted. 

7 Arguing that judgment No. 14 of the Court of Appeal had become final due to judgment No. 46 of the Supreme Court, and that the ordinary courts therefore lacked jurisdiction, the lawyers of the CIJS, relying on article 71 (3) of the Code of Military Justice (Article 71: “If the offence is one that falls within the jurisdiction of the military courts, the Minister of Defence shall determine whether or not there are grounds for bringing the case before the military courts. No prosecution may take place, under penalty of nullity, except on the basis of a prosecution order issued by the Minister of Defense. Whenever the offence has been reported by a civil investigating judge, a public prosecutor or a public prosecutor, the Minister of Defence is obliged to issue the order for prosecution. The order of prosecution is final; it must mention exactly the facts to be prosecuted, qualify them and indicate the applicable laws”), asked the Public Prosecutor to denounce the criminal act to the Minister of Defense, who will then be required to issue the order of prosecution. The lawyers of the ICJS also recalled that on January 27, 2000, they had sent such a request, without success, to the Procureur du Faso. However, according to ICSJ’s lawyers, in a similar case (Case of the Public Prosecutor v. Marcel Kafando et al., subject of referral judgment N°005/TMO/CCI of 17 July 2000), the Prosecutor of Faso of the Tribunal de Grande Instance of Ouagadougou, had, by correspondence N°744/99, denounced to the Government Prosecutor at the Military Court facts qualified as crimes and misdemeanors that appeared to have been committed on the premises of the Conseil de l’Entente. Moreover, according to the lawyers of the CIJS, the Minister of Defense, after a preliminary investigation, had issued a prosecution order.

8 “It is all very well to always rely on the Sankara case, on this or that aspect of this case. But we must not forget that the justice system certainly has many files. The Minister of Defense is not there to deal with justice issues, he certainly has other concerns. But the fact remains that for all judicial matters, I can assure you that there will be no obstacles to a case following its course from beginning to end in our country. We have chosen the rule of law and we intend to fulfill our responsibilities in this regard.

9 See footnote 6 and para. 2.9.

10 Counsel for the ICJS argue, first, that the statute of limitations was interrupted (neither the order to inform nor the judgment of the Court of Appeal called into question the admissibility of the complaint. Similarly, the predecessor of the present Procureur du Faso had not invoked the statute of limitations, but article 34 of the Code of Military Justice. Finally, the Supreme Court’s ruling of inadmissibility concerns only the absence of a deposit and not the statute of limitations). Secondly, the lawyers of the CIJS argue that the judgment of the Court of Appeal referred the parties, namely the civil party but also the Public Prosecutor’s Office, to appeal. In accordance with this judgment, the lawyers of the CIJS explain that they cannot, under the provisions of the Code of Military Justice, refer the matter directly to the Minister of Defense (the only person authorized to give orders for the prosecution of offenses falling within the jurisdiction of military courts), and that they must therefore refer the matter to the Public Prosecutor in accordance with article 71 (3) of the Code of Military Justice. Reference is again made to the case of Ministère public v. Kafando Marcel et al.

11 Communications N°24/1977 (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).

12 Communication N°612/1995 (José Vicente et al. v. Colombia).

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