013/2017 - Sébastien Germain Ajavon v. Benin (Order for provisional maesures)

AFRICAN UNION UNION AFRICAINE , , \ , ~J~l .l6..i":fl UNIAO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES THE MATTER OF SEBASTIEN GERMAIN AJAVON V. REPUBLIC OF BENIN APPLICATION No. 013/2017 ORDER FOR PROVISIONAL MEASURES 7 DECEMBER 2018 The Courtcomposed of: Sylvain ORE, President; Ben KIOKO, Vice-President; Gerard v, NIYUNGEKO, EI Hadji GUISSE, Rafaa BEN ACHOUR, Angelo MATUSSE, Suzanne MENGUE, M-Therese MUKAMULlSA, Tujilane R, CHIZUMILA, Chafika BENSAOULA, Judges; and Robert ENO, Registrar, In the matterof: Sebastien Germain AJAVON represented by: i. Advocate Marc BENSIMHON, Barrister at the Bar of Paris; ii, Advocate Yaya POGNON, Barrister at the Bar ofCotonou; and iii. Advocate Issiaka MOUSTAPHA, Barrister at the Bar ofCotonou; versus REPUBLIC OF BENIN represented by: i. Advocate Cyrille DJIKUI, Barrister at the Bar of Cotonou, former President ofthe Bar; ii. Advocate Elie Vlavonou KPONOU, Barrister at the Bar ofCotonou; and iii, Advocate Charles BADOU, Barrister at the Bar ofCotonou; after deliberation issues the following Order: I. THE PARTIES 1, The Applicant is Mr, Sebastien Germain AJAVON (herein-after referred to as "the Applicant"), a businessman and politician ofthe Republic ofBenin, 1 2. The Respondent State is the Republic of Benin (hereinafter referred to as "the Respondent State") which became a party to the African Charter on Human and Peoples' Rights (hereinafter referred to as "the Charter") on 21 October 1986 and to the Protocol to the African Charter on Human and Peoples' Rights (hereinafter referred to as "the Protocol") on 22 August 2014. The Respondent State also deposited on 8 February 2016 the declaration prescribed under Article 34(6) of the Protocol accepting the jurisdiction of the Court to receive cases directly from individuals and Non Governmental Organisations. II. SUBJECT OF THE APPLICATION 3. The Court was seized of the Application on 27 February 2017. The Applicant submits that, between 26 and 27 October2016, the gendarmerie of the Autonomous Port of Cotonou and the Benin Customs authorities were alerted to the presence of a large quantity of cocaine in a container aboard the ship "MSC Sophie" transporting frozen goods. 4. Based on the information given by the Intelligence and Documentation Department of the Office of the President of the Republic of Benin, the Public Prosecutor's Office and the Benin Customs, as of 28 October 2016, initiated legal proceedings against the Applicant and his three employees for trafficking eighteen (18) kilograms of pure cocaine found in a container of frozen goods imported by Societe Comptoir Mondial de Negoce (COMON SA) of which he is the Chief Executive Officer. 5. On 4 November 2016, the Criminal Chamber of Cotonou First Class Court of First Instance Court, by Judgment No. 262/1FD-16, acquitted the Applicant and one of his employees for lack of evidence and for benefit of the doubt. The other two employees were released without charge. 6. The Applicant alleges that, in the process, the Customs Administration suspended the container terminal of the Transit and Consignment Brokerage Company (SOCOTRAC) and withdrew its customs brokerage 2 license. The High Authority for the Audiovisual and Communication (HAAC), by two decisions both dated 28 November2016, disconnected the signals of the radio station SOLEIL FM and the TV channel SIKKA TV. The Applicant alleges that he is the majorityshareholderin all these companies. 7. In his application of 27 February 2017, the Applicant indicated that he brought the matter before this Court in the belief that the international drug trafficking case and the subsequent proceedings were part ofa conspiracy orchestrated against him and violated his human rights guaranteed and protected by international human rights instruments. 8. Moreover, in October 2018, the Applicant reported the creation by the Respondent State, in July 2018, ofa special court to try him once again for the same case of drug trafficking, and actually sentenced him to twenty years in prison. 9. The Applicant argued that the sentences passed against him by CRIET on 18 October 2018 violate the international conventions ratified by the Respondent State and place him in a precarious and extremely serious situation. He also argued that the Respondent State basically violated his right to afairtrial in several respects, citing the following violations: the right to be notified of the charges levelled against him; the right of access to the record of proceedings; the right to have his cause heard by the competent national courts; the right to respect for the principle of reasonable time; the right to respect for the principle of the independence of the judiciary; the right to assistance by Counsel; the right to respect for the principle of non bis in idem and the right to respect for the principle of two-tierjurisdiction. III. SUMMARY OF PROCEDURE BEFORE THE COURT 10.The Request was received at the Registry on 27 February 2017 and was served on the Respondent State on 31 March 2017. By a letter dated 29 May 2017 received at the Registry on 1 June 2017, the Respondent State filed its brief on preliminary objections. 3 11.ln a letterdated 17July 2017 received by the Registry on 19July 2017, the Applicant filed his rejoinder to the preliminary objections raised by the Respondent State; and on 29 August 2017, the Respondent State submitted its rejoinder on the preliminary objections. 12.On 9 October 2017, the Applicant responded to the rejoinder; and on 14 November 2017, the Respondent State submitted its response to the Applicant's observations on its rejoinder. 13.On 27 November 2017, the Registry notified the parties that the written procedure in lhe case was closed. 14. In a letter dated 6 November 2017 received at the Registry on 11 December 2017, the Applicant alleged further attacks against his person, the use of new methods by the Respondent State to stifle his businesses and, for that reason, solicited a public hearing. He reiterated this prayer on 26 March 2018. 15.On g May 2018, lhe Court held its public hearing, placed the matter under deliberation and allowed the Respondent State leave to file its response to the Applicant's new observations within thirty (30) days. The response was submitted at the Registry on 13 May 2018. 16.ln a letter dated 15 October 2018 received on 16 October 2018, the Applicant brought new allegations on lhe matter before lhe Court, arguing in his written pleadings that while the Court's decision was being awaited by the parties, the State of Benin, by a law dated 2 July 2018, created a special court named "Anti-Economic Crimes and Terrorism Court (hereinafter referred to as "CRIET") to once again hear the case of international drug trafficking in which he was involved. Alleging that this new procedure involves further violations of his rights, the Applicant requested that the Court issue an order requesting the Respondent State to stay its proceedings before CRIET. 17.On 24 October 2018, the Registry notified the Respondent State of the Applicant's new allegations. 18.On 26 October 2018, the Applicant filed another letter in which he referred to the CRIET judgment No. 007/3C.COR of 18 October 2018 convicting him, and prayed the Court to issue, as an interim measure, an order for a stay of execution of the said judgment. This letter was registered in the Registry on 31 October 2018. 19.On 31 October2018, the Registry received from the Applicant aletterdated the same day bywhich the Applicant tendered the record of proceedings of the General Assembly of Cotonou Magistrates highlighting the illegality of CRIET, and requested the Courttotake all appropriate measures, including a stay of execution of the judgment delivered by CRIET until examination of the cassation appeal. 20. On 5November2018, the Applicant addressed to the Court a corrigendum to the letterdated 31 October2018, requesting the Court to consider a stay of execution of the judgment of CRIET until its decision and not until consideration of the cassation appeal. The said letter was received at the Registryon 20 November2018and served on the Respondent Stateon the same day. 21.On 7 November 2018, the Registry notified the Respondent State of the Ap'plicant's letters dated 26 and 31 October 2018, respectively. 22.On 12 November 2018, the Applicant reiterated his request for a stay of execution of CRIET judgment in a letter received at the Registry on 19 November 2018 and served on the Respondent State on 20 November 2018. 23.On 13 November 2018, the Respondent State submitted its observations on admissibility of the new allegations filed by the Applicant. The 5 Respondent State's submissions were received on 14 November 2018 at the Registry, which served the same on the Applicant on the same day. 24.On 20 November 2018, the Registry received the Respondent State's observations as contained in its letterof 19 November 2018, regarding the stay of execution of CRIET judgment. The Registry transmitted the said observations to the Applicant on the same day. 25.On 21 November 2018, the Applicant tendered before the Court a set of documents in support of the allegations of violation of his rights, consisting of a study report conducted by the Benin Bar Association on CRIET, the transcript of the statement of the President of the National Union of Benin Magistrates and a copy of the judgment delivered by CRIET. The said documents were forwarded to the Respondent State on the same day. 26.On 5 December 2018, the Court issued an interim order to set aside the deliberation and reopen the written proceedings. It also admitted the new evidence filed by the parties afterthe matterwas placed underdeliberation. VI. ON PRIMA FACIEJURISDICTION 27. In dealing with any Application filed before ii, the Court has to ascertain that it has jurisdiction pursuant to Rule 39 of its Rules and Articles 3 and 5(3) of the Protocol. 28.However, in examining a request for provisional measures, the Court need not establish that it has jurisdiction on the merits of the case, but simply satisfy itselfthat it has prima facie1jurisdiction. I Application No. 002/2013. Orderof15/3/2013for Provisional Measures,African Commission on Human and Peoples'Rights v. Libya (herein-after referred to as African Commission on Human andPeoples'Rights v. Libya, Orderfor Provisional Measures") §. 10 ;Application No, 024/2016. Order of 3/6/2016 for Provisional Measures,AminiJumov.UnitedRepublicofTanzania(herein-after referredto as "AminiJumavUnitedRepublic 0/Tanzania, OrderforProvisionalMeasuresH §8. ) 29.Article 3(1) of the Protocol stipulates that: "The jurisdiction of the Court shall extend to all cases and disputes submitted to itconcerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instruments ratified by the Statesconcerned." 30. In terms of Article 5(3) of the Protocol, "The Court may entitle relevant Non Governmental organizations(NGOs)with observerstatusbeforethe Commission, and individuals to institutecases directly before it, in accordance with article 34(6) ofthis Protocol." 31.As specified in paragraph 2 of this Order, the Respondent State is a party to the Charter and to the Protocol, and also has deposited the declaration accepting the jurisdiction of the Court to receive applications from individuals and non-governmental organizations as perArticle 34(6) of the Protocol read togetherwith Article 5(3) thereof. 32.ln the instant case, the rights of which the Applicant alleges violation are protected bythe provisions ofArticles 3(2), 5, 6, 7, 14and 26 ofthe Charter. 33.ln light of the foregoing, the Court concludes that it has prima facie jurisdiction to hearthe Application. V. ON THE PROVISIONAL MEASURES REQUESTED 34.TheApplicant prays the Court to orderastayofexecution ofthe 18October 2018 Judgment No. 007/3C.COR rendered by CRIET. 35. Hecontends that, notwithstanding hisappeal before the Court ofCassation, the Respondent State can at any time proceed with execution of the judgmentof CRIET; adding that CRIETdecisions are not subject to appeal and that the appeal before the Court of Cassation is an extraordinary remedy. 7 36.The Applicant submits further that execution ofjudgment No. 0071 3C.COR of 18 October 2018 rendered by CRIET, would have unforeseeable consequences for him, and prays the Court take the decision for a stay of execution of the said judgment, as a matterof urgency. 37.The Respondent State submits that the Applicant cannot ask the Court for a stay of execution of a judgment of a Benin court under Benin's positive lawand the lawsdeclared bythe Constitutional Courtas being in conformity with Benin's Constitution. 38. Itfurthersubmits that it is establishedjurisprudencethat community courts do not have jurisdiction to issue injunctions to Member States in respect of their domestic laws and procedures; adding that to admit such injunctions would lead to the obliteration of domestic court decisions. The Respondent State also refers to the Applicant's cassation appeal, describing the same as premature and unfounded. 39.Finally, the Respondent State prays the Court to dismiss the Applicant's claims as premature and baseless. .** 40.The Court notes that Article 27(2) of the Protocol provides that: "In cases ofextreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measuresas itdeems necessary". 41.Further, Rule 51(1) of the Rules provides that the Court may: "[ajt the request of a party, the Commission or on its own accord, prescribe to the parties anyinterim measure which itdeems necessary to adopt in the interestofthe parties orofjustice." 42.The Court notes that it lies with it to decide for each case, whether in light of the particular circumstances of the matter, it should exercise the jurisdiction conferred on it by the aforementioned provisions. 43.The Courtnotes that, although in terms ofArticle 19paragraph 2ofthe Law establishing CRIET, its judgments are subject to cassation appeal2, Article 594 ofthe Benin Code of Criminal Procedure declares invalid the appeal of convicted persons who are not in detention orhave notobtained exemption from execution of the sentence.3 44.In the circumstances of the instant case, wherein the Applicant is not in detention and has not obtained exemption from execution of the sentence, the Court holds that there is still the risk that the prison sentence would be executed notwithstanding possible cassation appeal. 45. In view of the foregoing, the Courl finds that the circumstances of this case highlight a situation of extreme gravity and presents a risk of irreparable harm to the Applicant if the CRIET's decision of 18 October 2018 were to be enforced prior to this Court's decision in the matter pending before it. 46.The Court therefore holds in conclusion that the said circumstances require it to order Provisional Measures, in accordance with Article 27(2) of the Protocol and Rule 51 of its Rules, so as to preserve the status quo. 47.The Court specifies that this Order is necessarily provisional and does not in any way prejudge the findings the Court might make as regards its jurisdiction, admissibility of the Application and Ihe merits of this malter. 2"ThejudgmentsoftheEconomicCrimesandTerrorismCourtshallbejustified.Theyshall bedeliveredinopen Court and shall be subject tocassation appeal bytheconvicted person, the PublicProsecutor'sOfficeand the civil parties." J"Personssubjecttocustodialsentencewithorwithoutbailshallbedeclaredincompetenttofileanyappeal. In orderforhisApplicationtobeadmitted,ItissufficientfortheApplicanttopresenthim/herselfbeforetheOffice ofthe Prosecutortoundergothedetention." 9 VI. OPERATIVE PART 48, For these reasons, The Court, unanimously Orders the Respondent State to: i, stayexecution of Judgment No, 007/3C,COR of 18 October 2018 delivered by the Economic Crimes and Terrorism Court established by Law No, 2018/13 of 2 July 2018, pending this Court's final decision in the instant Application; ii. report to this Court within fifteen (15) days of receipt of this Order on the measures taken to implement the same, Signed: Sylvain ORE, President; Ben KIOKO, Vice President; Gerard NIYUNGEKO, Judg EI Hadji GUISSE, Judge Rafaa BEN ACHOUR, Judge v, Angelo MATUSSE, Judge ~~ Suzanne MENGUE, Judge 10 ~~/.' ~ M-Therese MUKAMULlSA, Judge ~'~ ~ Tujilane R. CHIZUMILA, Judge N ""'" Chafika BENSAOULA, JUdger9:::---:z--= ~ 00' Robort ENO, Rogi,'rn" Done at Tunis, this Seventh DayofDecember in the Year 2018, in English and French, the French version being authoritative. 11