Association SOS Attentats and de Boery v. France (dec.) [GC]

Information Note on the Court’s case-law No. 90

October 2006

Association SOS Attentats and de Boery v. France (dec.) [GC] - 76642/01

Decision 4.10.2006 [GC]

Article 37

Article 37-1-c

Continued examination not justified

Set of circumstances justifying the striking out of the application: struck out

The first applicant is an association whose members are victims of terrorist acts. The sister of the second applicant was one of the 170 victims, who included many French nationals, killed in the terrorist attack in 1989 against an aircraft, operated by the French company UTA, which exploded in flight above the Tenere desert. In the context of proceedings brought in France, six Libyan nationals, belonging to or linked with the Libyan secret service, were committed for trial in the Paris Assize Court, sitting in a special composition, and were sentenced in absentia to life imprisonment and ordered to pay compensation to the victims’ families. The second applicant and her family received certain sums as a result. In 1999 the applicants lodged a civil-party complaint (plainte avec constitution de partie civile) against Colonel Gaddafi for complicity in murder and destruction of property by use of an explosive substance which caused loss of life in furtherance of a conspiracy calculated to disturb public order through intimidation or terror. The investigating judge ruled that there was a case to answer. On an application by the public prosecutor’s office, the Indictment Division of the Paris Court of Appeal, while drawing attention to the existence of the immunity from prosecution of foreign heads of State, considered that, having regard to the development of international law, this immunity was no longer absolute and could not cover the crimes complained of in the instant case. In 2001 the Court of Cassation quashed that judgment and declared it void, without remitting the case, holding that under international law as it stood those crimes were not covered by the exceptions to the principle of immunity from jurisdiction for foreign heads of State in office and that there was therefore no case to answer with regard to the applicants’ complaint. In 2004 the association Les familles du DC 10 UTA en colère! (The UTA DC 10 families in angry mood!) and the applicant association, representing the victims’ families, signed an agreement with the “Gaddafi International Foundation for Charity Associations”. Under this agreement, the families of the 170 victims would each receive one million US dollars in exchange for “waiving the right to bring any kind of civil or criminal proceedings before any French or international court based on the explosion on board the aircraft”. The second applicant had to date not agreed to any such waiver. The first applicant had undertaken “not to conduct any hostile action or dispute against Libya, Libyan nationals or Libyan legal entities relating to the explosion on board the aircraft”.

Inadmissible under Article 37(1) (c) – The signing of the 2004 agreement had been brought to the Court’s attention after the application was lodged. It was therefore necessary to determine whether this new fact was such as to lead it to decide to strike the application out of its list of cases in application of Article 37 of the Convention. The agreement did not refer to proceedings, such as those before the Court, which were directed against France. There could therefore be no question of striking the application out of the list of cases in application of Article 37 (1) (a), especially as the applicants had expressly indicated that they wished to pursue it. Furthermore, the agreement in question had been concluded subsequent to the judgment of 2001 which, in the applicants’ view, had violated their right of access to a court. In any event, the agreement was not intended to enable the applicants to have access to the French courts. Accordingly, the key aspect of the applicants’ direct complaint persisted, which was sufficient for the Court to conclude that the dispute had not been “resolved” within the meaning of Article 37 (1) (b). As to the application of Article 37 (1) (c), the conclusion of the 2004 agreement had been due in large part to France’s diplomatic intervention and was unquestionably in line with the interests of the family members of the attack’s victims, a view that was supported by the fact that the associations representing those interests – including the applicant association – were signatories to it. In that connection, it was to be noted that the agreement provided for the payment of substantial sums to the families of the victims. Although the second applicant had to date refused to sign the waiver on which payment was dependent, it appeared from the statements made by her counsel at the hearing before the Court that the amount payable to her under the agreement remained available at the Bank for Official Deposits and that she would take her final decision in the light of the Court’s conclusions in the instant case. In addition, there was a certain contradiction in the attitude of the applicant association, which, despite having undertaken in the agreement not to bring any proceedings against Libya or Libyan citizens based on the explosion on board the aircraft, still wished the Court to pursue the examination of complaints based on the impossibility for the victims’ relatives to have access to such proceedings. Finally, in 1999 the French courts had sentenced six Libyan officials in absentia to life imprisonment and ordered them to pay compensation for non-pecuniary damage to the victims’ families, civil parties to those proceedings. At the hearing before the Court the applicants’ counsel stated for the first time that various sums had indeed been paid in this connection to the civil parties, including to the second applicant and her family. In sum, the conclusion of the 2004 agreement, the latter’s terms and the fact that the second applicant had obtained a judgment on the question of the responsibility of six Libyan officials were circumstances which, taken together, led the Court to consider that it was no longer justified to continue the examination of the application within the meaning of Article 37 (1) (c) of the Convention. As no other element regarding respect for human rights as guaranteed by the Convention required that this application be examined further, the Court decided, unanimously, to strike the application out of the list.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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