transferring and/or removing the judges trying the
case, namely the chief examining magistrate and the
President of the Indictment Division, the State party
reminds the Committee that the President of the
Indictment Division is primus inter pares in a threeperson court and is thus in no position to impose his
or her views. The other two members of the
Indictment Division were not affected by the
reassignment of judges, which in any case was an
across-the-board measure.
treaty, by the other party”, and that the Convention
cannot be applied as long as Senegal has not taken
prior legislative measures. The Court adds that
ratification of the Convention obliges each State
party to take such measures as may be necessary to
establish its jurisdiction over the offences referred to
in article 4, or to extradite perpetrators of torture.
7.11 Proceedings were brought against Hissène
Habré. However, since the Convention against
Torture is not self-executing, Senegal, in order to
comply with its commitments, promulgated Act
N° 96-16 of 28 August 1996 enacting article 295 of
the Criminal Code. The principle aut dedere aut
judicare comprises the obligation to prosecute or to
extradite in an efficient and fair manner. In this
regard, Senegalese legislators have endorsed the
argument of Professor Bassiouni, according to whom
“[t]he obligation to prosecute or extradite must, in
the absence of a specific convention stipulating such
an obligation, and in spite of specialists’ arguments
to this effect, be proved to be part of customary
international law”.
7.5 It is also important to bear in mind that any
country is free to organize its institutions as it sees
fit in order to ensure their proper functioning.
7.6 The independence of the judiciary is
guaranteed by the Constitution and the law. One
such guarantee is oversight of the profession and
rules of conduct of the judiciary by the Higher
Council of the Judiciary, whose members are judges,
some of them elected and others appointed. Appeals
may be lodged when the appointing authority is
accused of having violated the principle of the
independence of the judiciary.
7.12 Pursuant to article 4 of the Convention, torture
is classified in the Senegalese Criminal Code as an
international crime arising from jus cogens. It should
be noted that Senegal is aware of the need to amend
its legislation; however, under the Convention a
State party is not bound to meet its obligations
within a specific time frame.
7.7 A basic element of judicial independence is
that judges may appeal against decisions affecting
them, and that the executive is duty-bound not to
interfere in the work of the courts. Judges’ right of
appeal is not merely theoretical.
7.8 The Council of State did indeed revoke a
number of judges’ appointments on 13 September
2001, considering that they failed to apply a basic
safeguard designed to protect trial judges and
thereby ensure their independence, namely the
obligation to obtain people’s prior consent before
assigning them to new positions, even by means of
promotion.
On the violation of article 7 of the Convention
7.13 Since the Convention is not self-executing, in
order to establish universal jurisdiction over acts of
torture it is necessary to pass a law establishing the
relevant procedure and substantive rules.
7.14 While the Committee has stressed the need for
States parties to take appropriate legislative
measures to ensure universal jurisdiction over crimes
of torture, the manner in which this procedure is
accomplished cannot be dictated. Senegal is engaged
in a very complex process that must take account of
its status as a developing State and the ability of its
judicial system to apply the rule of law.
7.9 It must be acknowledged that the Senegalese
judiciary is genuinely independent. Criminal
proceedings necessarily culminate in decisions
which, unfortunately, cannot satisfy all the parties.
The judicial investigation is a component of criminal
procedure and, by its very nature, is subject to all the
safeguards provided for in international instruments.
In the present case, the parties benefited from
conditions recognized as ensuring fair dispensation
of justice. Where no legal provision exists,
proceedings cannot be pursued without violating the
principle of legality; that was confirmed by the
Court of Cassation in its ruling of 20 March 2001.
7.15 The State party points out that the difficulty of
ensuring the absolute application of universal
jurisdiction is commonly acknowledged. It is
therefore normal to provide for different stages of its
application.
the
absence
of
domestic
7.16 However,
codification of universal jurisdiction has not allowed
Hissène Habré complete impunity. Senegal applies
the principle aut dedere aut judicare. Any request
for judicial assistance or cooperation is considered
benignly and granted in so far as the law permits,
particularly when the request relates to the
implementation of an international treaty obligation.
On the violation of article 5, paragraph 2, of the
Convention
7.10 In its ruling on the Hissène Habré case, the
Court of Cassation considered that “duly ratified
treaties or agreements have, once they are published,
an authority higher than that of laws, subject to
implementation, in the case of each agreement or
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