mahmoudi v republic of tunisia application no 0072012 2012 afchpr 4 26 june 2012

( AFRICAN UNION UNION AFRICAJNE UNIAO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES IN THE MATTER OF BAGHDADI All MAHMOUDI v. THE REPUBLIC OF TUNISIA. APPLICATION 007/2012 DECISION The Court composed of: Gerard NIYUNGEKO, President; Sophia A.B. AKUFFO, Vice-President; Jean MUTSINZI , Bernard M. NGOEPE, Modibo T. GUINDO, Fatsah OUGUERGOUZ, Augustine S.L. RAMADHANI , Duncan TAMBALA, Elsie N. THOMPSON and Sylvain ORE- Judges; and Robert ENO - Registrar, In the matter of BAGHDADI All MAHMOUD! v. THE REPUBLIC OF TUNISIA. After deliberations, makes the following decision: 1. By a letter dated 31 May 2012, Mr. Baghdadi Ali Mahmoudi (hereinafter referred to as "the Applicant"), through his lawyer, informed the Registry of the Court of his intention to submit an Application before the Court with a request for interim measures, against the Republic of Tunisia (hereinafter referred to as "the Respondent"). 2. On 1 June 2012, the Registry of the Court received the Applicant's Application, together with the request for interim measures. 3. Pursuant to the provisions of Rule 34(1) of the Rules of Court, the Registrar, by a letter dated 7 June 2012, acknowledged receipt of the Application and registered the same. In the same letter, the Registrar requested the Applicant to satisfy the Court that the Application meets 2 the requirements under Rule 34 of the Rules of Court, in particular, the exhaustion of local remedies. 4. By a letter dated 12 June 2012, the Applicant responded to the Registrar's letter of 7 June 2012, and submitted copies of judgments from the Court of Appeal of Tunis as proof of exhaustion of local remedies. 5. By a letter of 14 June 2012, the Applicant submitted additional information relating to the exhaustion of local remedies. 6. The Court first observes that in terms of Article 5(3) of the Protocol, it "may entitle relevant Non-Governmental organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol". 7. The Court further notes that Article 34(6) of the Protocol provides that "At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5(3) of this Protocol. The Court shall not receive any petition under article 5(3) involving a State Party which has not made such a declaration". 8. By a letter dated 18 June 2012, the Registrar inquired from the Legal Counsel of the African Union Commission if the Republic of Tunisia has made the Declaration required under Article 34(6) of the Protocol. 9. By an email dated 19 June 2012, the Legal Counsel of the African Union Commission informed the Registry of the Court that the Republic of Tunisia had not made such a declaration. 10. The Court observes that the Republic of Tunisia has not made the declaration under Article 34(6). 3 11 . In view of Articles 5(3) and 34(6) of the Protocol, it is evident that the Court manifestly lacks jurisdiction to receive the Application submitted by Mr. Baghdadi Ali Mahmoudi, against the Republic of Tunisia. 12. For the Court to make an order for interim measures, it has to satisfy itself that it has prima facie jurisdiction, which as indicated in paragraph 11 above, it does not have. 13. For these reasons, THE COURT, Unanimously: 1. Decides that pursuant to Articles 5(3) and 34(6) of the Protocol, it manifestly lacks jurisdiction to receive the Application submitted by Mr. Baghdadi Ali Mahmoudi, against the Republic of Tunisia; 11. Decides that in view of paragraph (i) above, it cannot grant the Applicant's request for provisional measures. Done at Arusha, this twenty-sixth day of June, Two Thousand and Twelve, in English and French, the French text being authoritative. Signed: In conformity with Article 28 (7) of the Protocol and Rule 60 (5) of the Rules of Court, Judge Fatsah OUGUERGOUZ appended a separate opin ion to the present decision . 5 AFRICAN UNION UNION AFRICAINE UNIAO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES IN THE MATIER BAGHDADI All MAHMOUD! V. REPUBLIC OF TUNISIA (Application No 007/2012) SEPARATE OPINION OF JUDGE FATSAH OUGUERGOUZ 1. I am of the opinion that the application filed by Mr. Baghdadi Ali Mahmoudi against the Republic of Tunisia, together with his request for provisional measures, must be rejected. However, the lack of jurisdiction ratione personae of the Court being manifest, the application and the request should not have been dealt with by a decision of the Court; rather, they should have been rejected de plano by a simple letter of the Registrar (see my reasoning on this matter in my separate opinions appended to the decisions in the cases of Michelot Yogogombaye v. Republic of Senegal, Effoua Mbozo Samuel v. Pan African Parliament, National Convention of Teachers'Trade Union (CONASYSED) v. Republic of Gabon, Delta International Investments S.A & Mr and Mrs de AGL de Lang v. Republic of South Africa, Emmanuel Joseph Uko and others v. Republic of South Africa, Amir Adam Timan v. Republic of Sudan, as well as in my dissenting opinion appended to the decision rendered in the matter Ekollo Moundi Alexandre v. Republic of Cameroon and Federal Republic of Nigeria. 2. Indeed, I am not in favour of the judicial consideration of an application filed against a State Party to the Protocol which has not made the declaration accepting the compulsory jurisdiction of the Court to receive applications from individuals and non-governmental organizations, or against any African State which is not party to the Protocol or which is not a member of the African Union, as was the case in several applications already dealt with by the Court. 3. By proceeding with the judicial consideration of the present application lodged against Tunisia, the Court failed to take into account the interpretation, in my view correct, which it initially gave of Article 34(6) of the Protocol in paragraph 39 of its very first judgment in the case concerning Michelot Yogogombaye v. Republic of Senegal. In that judgment, the Court indeed stated what follows : "the second sentence of Article 34 (6) of the Protocol provides that [the Court] "shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration" (emphasis added). The word "receive" should not however be understood in its literal meaning as referring to "physically receiving" nor in its technical sense as referring to "admissibility". It should instead be interpreted in light of the letter and spirit of Article 34 (6) taken in its entirety and , in particular, in relation to the expression "declaration accepting the competence of the Court to receive applications [emanating from individuals or NGOs]" contained in the first sentence of th is provision. It is evident from th is reading that the objective of the aforementioned Article 34 (6) is to prescribe the conditions under which the Court could hear such cases; that is to say, the requirement that a special declaration should be deposited by the concerned State Party, and to set forth the consequences of the absence of such a deposit by the State concerned". 4 . It is evident that by giving a judicial treatment to an application and delivering a decision on the said application, the Court actually "received" the application in the sense that it interpreted the verb "receive" in the abovementioned paragraph 39, that is that the Court has actually examined 1 the application even though it concluded that it does not have jurisdiction to entertain it; however, according to its interpretation of Article 34 (6), the Court should not examine an application if the State Party concerned has not made the optional declaration. 5. It should further be observed that the Court gave a judicial cons ideration to the application filed by Mr. Baghdadi Ali Mahmoudi without transmiting it to Tunisia, nor even informing this State that an application had been lodged against it. The adoption by the Court of a judicial decision under such 1 The French text of the last sentence of paragraph 39 of the Yogogombaye Judgment, which is the authoritative one, refers to the examination of the applications («pour que Ia Cour puisse conna\'tre de telles requetes») and not to the «hearing of the cases» as it is mentioned in the English text («conditions under which the Court could hear such cases»). circumstances amounts to a violation of the adversarial principle (Audiatur et altera pars), which principle must apply at any stage of the proceedings. 6. Failure to transmit the application to Tunisia also deprived that State of the possibility to accept the jurisdiction of the Court by way of forum prorogatum (on this question, see my separate opinion in the case concerning Miche/ot Yogogombaye v. Republic of Senegal) . \Tatk~ ;;§e&';j~= Judge Fatsah Ouguergouz Robert Eno Registrar