in conformity with the Committee’s jurisprudence,15
the authors consider that they could not be required
to apply for habeas corpus.
5.10 The authors made further submissions
concerning the merits of the communication. They
point out that, in its observations, the State party
officially admitted that the authorities knew the
death of Thomas Sankara on 15 October 1987 was
not due to natural causes. From that they conclude
that the appeal lodged on 30 [sic] September 2002 is
no longer necessary. They further note that the then
Minister of Justice, now the President of Burkina
Faso, did not institute proceedings despite being
aware that the victim did not die a natural death.
Similarly, the Procurator of Faso and the Minister of
Defence did not ensure that the Supreme Court’s
decision was referred to the military courts. The
authors again refer to the statement made by the
President of Burkina Faso on Radio France
Internationale on 19 June 2001 and consider it to be
in breach of article 71 (1) and (3) of the Code of
Military Justice, which establishes, among the duties
of the Minister of Defence, his exclusive
competence to order proceedings in the military
courts. The authors stress that whenever a violation
has been reported by a civilian examining judge,
Procurator of Faso or Procurator-General, the
Minister of Defence has ordered proceedings to be
brought. According to the authors, who refer to a
statement in Le Pays, 16 the Minister of Defence
personally refused to exercise the powers conferred
on him by article 71 (3) of the Code of Military
Justice. They again stress that all the judicial
authorities, including the Procurator of Faso and the
Procurator-General, have either refused to allow, or
wilfully prevented or omitted to initiate, proceedings
in the military courts.
Decision on admissibility
6.1 At its eightieth session, the Committee
examined the admissibility of the communication.
6.2 The Committee noted the State party’s
arguments concerning the inadmissibility of the
communication ratione temporis. Having also noted
the authors’ arguments, the Committee considered
that a distinction should be drawn between the
15
Communication No. 30/1978, Bleier v. Uruguay, Views
of 29 March 1982.
16
“At this juncture, matters must not be confused. To
date, the Minister of Defence has not been called upon to
intervene as such in the Thomas Sankara case. I have no
judicial document or a document from a claimant calling
on me to act. If one day this problem arises, courageously
and with the President of Burkina Faso as the supreme
chief of the armed forces, we shall ensure that a solution is
found to the problem. Thomas Sankara was in fact one of
our brothers in arms. There is no reason why any problem
raised concerning him cannot be solved.” Le Pays,
No. 2,493, 22 October 2001.
126
126
complaint relating to Mr. Thomas Sankara and the
complaint concerning Ms. Sankara and her children.
The Committee considered that the death of Thomas
Sankara, which may have involved violations of
several articles of the Covenant, occurred on 15
October 1987, hence before the Covenant and the
Optional Protocol entered into force for Burkina
Faso. 17 This part of the communication was
therefore inadmissible ratione temporis. Thomas
Sankara’s death certificate of 17 January 1988,
stating that he died of natural causes—contrary to
the facts, which are public knowledge and confirmed
by the State party (paras. 4.2 and 4.7)—and the
authorities’ failure to correct the certificate during
the period since that time must be considered in the
light of their continuing effect on Ms. Sankara and
her children.
6.3 In conformity with its jurisprudence, 18 the
Committee was of the view that it could not consider
violations which occurred before the entry into force
of the Optional Protocol for the State party unless
those violations continued after the Protocol’s entry
into force. A continuing violation is to be interpreted
as an affirmation, after the entry into force of the
Optional Protocol, by act or by clear implication, of
previous violations by the State party. The
Committee took note of the authors’ arguments
concerning, first, the failure of the authorities to
conduct an inquiry into the death of Thomas Sankara
(which was public knowledge) and to prosecute
those responsible—allegations which are not in fact
challenged by the State party. These constitute
violations of their rights and of the obligations of
States under the Covenant.19 Secondly, it was clear
that in order to remedy this situation, the authors
initiated judicial proceedings on 29 September 1997,
i.e., within the limits of the 10-year statute of
limitations, and these proceedings continued after
the Covenant and the Optional Protocol entered into
force for Burkina Faso. Contrary to the arguments of
the State party, the Committee considered that the
proceedings were prolonged, not because of a
procedural error on the part of the authors, but
because of a conflict of competence between
authorities. Consequently, in so far as, according to
the information provided by the authors, the alleged
violations resulting from the failure to conduct an
inquiry and prosecute the guilty parties have affected
17
Communication No. 345/1998, R.A.V.N. et al. v.
Argentina, decision of 26 March 1990 on inadmissibility.
18
Communications Nos. 24/1997, S. Lovelace v. Canada,
Views of 30 July 1981, 196/1985, I. Gueye v. France,
Views of 3 April 1989, 516/1992, J. Simunek et al. v.
Czech Republic, Views of 19 July 1995, 520/1992, E. and
A.K. v. Hungary, decision of 7 April 1994 on
inadmissibility, and 566/1993, Ivan Somers v. Hungary,
Views of 23 July 1996.
19
Communication No. 612/1995, Vicente v. Colombia,
Views of 29 July 1997.
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