Senegal’s jurisdiction, since as only Senegal can
decide whether to continue with the legal
proceedings instituted by the complainants in
Senegal. By instituting proceedings in the
Senegalese courts, the complainants came under the
jurisdiction of the State party for the purposes of
those proceedings.
party against which a communication has been
submitted within the meaning of article 22, the
Committee must take into account various factors
that are not confined to the author’s nationality. The
Committee observes that the alleged violations of the
Convention concern the refusal of the Senegalese
authorities to prosecute Hissène Habré despite their
obligation to establish universal jurisdiction in
accordance with article 5, paragraph 2, and article 7
of the Convention. The Committee also observes
that the State party does not dispute that the authors
were the plaintiffs in the proceedings brought against
Hissène Habré in Senegal. Moreover, the Committee
notes, the complainants in this case accepted
Senegalese jurisdiction in order to pursue the
proceedings against Hissène Habré which they
instituted. On the basis of these elements, the
Committee is of the opinion that the authors are
indeed subject to the jurisdiction of Senegal in the
dispute to which this communication refers.
5.5 The complainants also make the subordinate
point that, under Senegalese law, foreigners
instituting judicial proceedings in the State party
must accept Senegalese jurisdiction. This shows that,
even if Senegal’s restrictive interpretation is
accepted, the complainants do indeed come under
the State party’s jurisdiction.
5.6 Lastly, the authors argue that the State party
cannot invoke domestic law to claim that they are
not subject to its jurisdiction since that would be
tantamount to taking advantage of its failure to
comply with article 5, paragraph 2, of the
Convention, under which States parties are obliged
to take such measures as may be necessary to
establish their jurisdiction over the offences referred
to in article 4 of the Convention. In invoking this
argument, the State party is disregarding both
customary law and international law. The principle
of nemo auditur propriam turpitudinem allegans is
applied in most legal systems and prevents anyone
asserting a right acquired by fraud. Moreover, under
article 27 of the Vienna Convention on the Law of
Treaties, “a party may not invoke the provisions of
its internal law as justification for its failure to
perform a treaty”. The complainants point out that
the Vienna Convention thus reaffirms the principle
that, regardless of the arrangements under internal
law for the implementation of a treaty at the national
level, such arrangements cannot detract from the
State’s obligation at an international level to ensure
the implementation of and assume international
responsibility for the treaty.
6.4 The Committee also considers that the
principle of universal jurisdiction enunciated in
article 5, paragraph 2, and article 7 of the
Convention implies that the jurisdiction of States
parties must extend to potential complainants in
circumstances similar to the complainants’.
6.5 Accordingly, the Committee against Torture
declared the communication admissible on 13
November 2001.
The State party’s merits observations
7.1 The State party transmitted its observations on
the merits by note verbale dated 31 March 2002.
7.2 The State party points out that, in accordance
with the rules of criminal procedure, judicial
proceedings in Senegal opened on 27 January 2000
with an application from the public prosecutor’s
office in Dakar for criminal proceedings to be
brought against Hissène Habré as an accessory to
torture and acts of barbarism and against a person or
persons unknown for torture, acts of barbarism and
crimes against humanity. Hissène Habré was
charged on both counts on 3 February 2000 and
placed under house arrest. On 18 February 2000,
Hissène Habré submitted an application for the
proceedings to be dismissed on the grounds that the
Senegalese courts were not competent, that the
charges had no basis in law, and that the alleged
offences were time-barred.
The Committee’s admissibility decision
6.1 At its twenty-seventh session, the Committee
considered the admissibility of the complaint. It
ascertained that the matter had not been and was not
being examined under another procedure of
international investigation or settlement, and
considered that the communication did not constitute
an abuse of the right to submit such communications
and was not incompatible with the provisions of the
Convention.
7.3 On 4 July 2000, the Indictment Division of the
Court of Appeal dismissed the proceedings. On 20
March 2001, the Court of Cassation rejected the
appeal lodged by the complainants (plaintiffs). That
ruling, handed down by the highest court in Senegal,
thus brought the proceedings to an end.
6.2 The Committee took note of the State party’s
argument that the communication should be found
inadmissible since the complainants are not subject
to Senegal’s jurisdiction within the meaning of
article 22 of the Convention.
6.3 To establish whether a complainant is
effectively subject to the jurisdiction of the State
7.4 Regarding the allegations that the executive
put pressure on the judiciary, in particular by
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