Information Note on the Court’s case-law No. 117
March 2009
Ould Dah v. France - 13113/03
Decision 17.3.2009 [Section V]
Article 7
Article 7-1
Nullum crimen sine lege
Universal jurisdiction of Contracting State to prosecute torture and barbaric acts despite amnesty law in State where such acts had been committed: inadmissible
The applicant is a Mauritanian national. In 1990 and 1991, while an intelligence officer in the Mauritanian army, he committed acts of torture and barbarity against servicemen accused of mounting a coup d’état. In 1993 an amnesty Act was passed in favour of members of the armed forces and the security forces who had committed offences between 1989 and 1992, relating to events involving armed actions and acts of violence. Because of that law the applicant was not prosecuted for acts committed on prisoners. In 1999 the International Federation for Human Rights (FIDH) and the French Human Rights League (LDH) lodged a criminal complaint against the applicant, with an application to join the proceedings as civil parties. He was arrested and charged with acts of torture or barbarity and remanded in custody, then subsequently released on bail. He absconded and a warrant was issued for his arrest. The Indictments Division of the Court of Appeal ordered the applicant to be committed for trial before the Assize Court. An appeal lodged by the applicant was dismissed. In 2005, after hearing his lawyers, the Assize Court convicted the applicant, whose whereabouts were unknown, to ten years’ imprisonment for having wilfully subjected certain people to acts of torture and barbarity and for causing such acts to be committed against other prisoners, by abuse of authority of by issuing instructions to the servicemen who had committed them.
Inadmissible: The applicant did not challenge the jurisdiction of the French courts, but he complained that they had applied French rather than Mauritanian law, in a manner incompatible with Article 7. In certain cases the French courts had universal jurisdiction. The instant case was one such case. There was no doubt that for a State on whose territory an offence had been committed to set aside legislation in favour of special decisions or laws passed in order to protect its own nationals or, where applicable, under the direct or indirect influence of the perpetrators, would effectively paralyse the whole principle of universal jurisdiction. Like the United Nations Committee of Human Rights and the International Criminal Tribunal for former Yugoslavia, the Court considered that an amnesty law was generally incompatible with the States’ duty to investigate acts of torture or barbarity. In the present case there was no denying that the Mauritanian amnesty Act had been passed not after the applicant had been tried and convicted, but precisely to prevent any criminal proceedings being brought against him. However, in view of the prominent place the prohibition of torture occupied in all the international human rights protection instruments, the obligation to prosecute the perpetrators of such acts must not be undermined by the passing of amnesty laws that left them unpunished and could be considered contrary to international law. The Court noted that international law did not rule out the possibility of another State trying a person who had been amnestied before being tried in his country of origin, as can be seen, for example, in Article 17 of the Statute of the International Criminal Court. Lastly, in the light of Articles 4 and 7 of the Convention against Torture, read together, it was reasonable to assume not only that the French courts had had jurisdiction but also that French law had been applicable. The Mauritanian amnesty Act was not capable in itself of preventing the application of French law by the French courts that had dealt with the case by virtue of universal jurisdiction.
That being so, the question of the accessibility and foreseeability of French law as applied to the applicant had to be examined. At the time of the events acts of torture and barbarity had been expressly provided for in the Criminal Code. The argument that at the time they had constituted not separate offences but aggravating circumstances was not decisive, as they could be held against any person who had committed a crime or an offence and constituted additional factors, separate from the main offence and covered by a special law, which increased the penalty applicable to the main offence. Consequently, at the time they had been committed, the applicant’s actions had been offences defined in a sufficiently accessible and foreseeable manner under French and international law and the applicant could reasonably have foreseen, if necessary with the help of informed legal advice, that there was a risk that he would be prosecuted for the acts of torture he had committed in 1990 and 1991: manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy