2.6 On 2 April 1998, the Procurator of Faso appealed against this decision.2 2.7 On 10 December 1999, in the absence of a decision by the Court of Appeal’s indictment division, counsel for the authors formally requested the Minister of Justice and the Higher Council of the Judiciary to take all necessary measures in order to ensure the impartiality of justice. 2.8 On 26 January 2000, by decision No. 14, the Ouagadougou Court of Appeal set aside order No. 06/98 of 23 March 1998 and declared the ordinary courts incompetent. 2.9 According to the authors, despite Court of Appeal decision No. 14 and their own application of 27 January 2000, the Procurator of Faso refused or omitted to report the case to the Minister of Defence so that the Minister could institute proceedings. 2.10 On 27 January 2000, counsel challenged decision No. 14 by lodging an appeal with the judicial division of the Supreme Court. 2.11 On 19 June 2001, by decision No. 46, the Supreme Court declared the appeal inadmissible on the grounds that no bond had been deposited.3 offence; that, moreover, it is a general principle of law that the accessory follows the principal […]; that it follows that the military status of the person responsible for the false document could not serve as legal justification for the referral of the perpetrator or perpetrators of the principal offence, namely premeditated murder, to the military courts […].” 2 “[…] it is no secret that the events on which the complaint is based took place on the evening of 15 October 1987 in the Conseil de l’Entente barracks. In other words, the acts in question were perpetrated not only in a military establishment, but also by persons with military status. In no respect does this involve an ordinary offence. The false document mentioned in the complaint is an accessory following the principal, the outcome of which is linked to the principal action. Therefore: The indictment division is requested to declare the examining judge incompetent, in accordance with article 34 of the Code of Military Justice […]”. Article 34 of the Code of Military Justice: “The military courts are competent to examine and pass judgement on ordinary offences committed by members of the armed forces, or equivalent non-combatant personnel in service, in military establishments or where they are accommodated, as well as the military offences established under this Code in accordance with the rules of procedure which apply thereto […]”. 3 It emerges from the Supreme Court decision that the authors stated in the Court that, at the time they lodged their complaint on 9 October 1997, pursuant to article 85 of the Code of Criminal Procedure, they had paid to the examining judge a bond of 1 million CFA francs, and that, furthermore, they had not paid the security to the Supreme Court registrar as the latter had omitted to read out the provisions of article 110 of order No. 91-0051/PRES of 26 121 121 2.12 On the same day, counsel requested the Prosecutor-General attached to the Supreme Court to report the case to the Minister of Defence so that the Minister could institute proceedings. 4 Also on the same day, in anticipation of a notification from the Procurator’s Office, counsel requested the Minister of Defence to issue an order to initiate proceedings. 2.13 On 19 June 2001, during an interview on Radio France Internationale focusing largely on the Sankara case, the President of Burkina Faso stated August 1991 relating to the composition, organization and functioning of the Supreme Court (“the plaintiff is required, on pain of inadmissibility, to pay a sum of 5,000 francs as security before the end of the month following his or her notice of intent to appeal. The security is payable either directly to the chief registrar of the Supreme Court or by a money order addressed to the chief registrar. The registrar receiving the notice of intent shall read out to the plaintiffs the provisions of the foregoing two paragraphs and mention this formality in the record”). The Supreme Court considered that the deposits of security provided for under article 85 of the Code of Criminal Procedure and article 110 of the abovementioned order were separate, and that the payment of the security provided for in the first provision did not obviate payment of that required under the second provision. The Supreme Court also considered that in failing to inform the plaintiffs of the obligation to pay security the registrar was not, in law, liable to any procedural penalty, and that the authors could not, therefore, be exempted from this obligation as a result of the aforesaid omission. 4 Arguing that Court of Appeal decision No. 14 had become final as a result of Supreme Court decision No. 46 and that consequently the ordinary courts were incompetent, the authors, on the strength of article 71 (3) of the Code of Military Justice, asked the ProsecutorGeneral to report the criminal act to the Minister of Defence, who would then be required to issue a prosecution order (article 71: “If the case involves an offence within the competence of the military courts, the Minister of Defence shall determine whether or not it is necessary to refer the case to the military justice system. No proceedings may take place, on pain of invalidity, without a prosecution order issued by the Minister of Defence. In all cases where the offence has been reported by a civilian examining judge, a Procurator of Faso or a Procurator-General, the Minister of Defence is required to issue the prosecution order. The said prosecution order cannot be appealed; it must make specific reference to the acts to which the proceedings will relate, characterize them and indicate the applicable legislation”). The authors recalled that, on 27 January 2000, they had also, unsuccessfully, addressed such a request to the Procurator of Faso. However, according to the authors, in a similar case (Public Prosecutor v. Kafando Marcel et al., which was the subject of referral order No. 005/TMO/CCI of 17 July 2000), the Procurator of Faso in the Ouagadougou Tribunal de Grande Instance had, in communication No. 744/99, reported to the Government Commissioner to the Military Court acts categorized as serious and ordinary offences that appeared to have been committed on Conseil de l’Entente premises. Moreover, according to the authors, the Minister of Defence, after a preliminary inquiry, had issued a prosecution order.