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