Kodjo Alain Victor v Republic of Cote d'Ivoire (ECW/CCJ/APP/01/21; ECW/CCJ/JUD/09/21) [2021] ECOWASCJ 27 (29 April 2021)

CO~I \IUNITY l'OIJRT OF JL'STIC[. 1-:COW.\S C()L R l>F J l . STJC[ DI- I ,1 CO \ 1~1 U<.\TE. Ct-:DF.'\O rR !BL \ .-\L Df . ILSTI( ·\ D \ l I.) \ 1\1 : \: ff' \DI:. "ALAA.\ I CRl:SCENT t~e~J~iJb.i ·H,T. l'i\.l R 5(, 0 GARI<- !. A RFJ,\ rt L: 2":.~~9-?~ :~ i::01 In the Matter of KODJO ALAIJ'i VICTOR CLALDE V REPUBLIC 01• COTE D'IVOIRE Application No.· ECW/CCJ/APP/01/2 I Judgment NO. ECPV/ CCJ/JUD/ 09/2 I JUDGil'1ENT ABUJA 26 APRJL 202 1 KODJO ALAIN VICTOR CLAUDE APPLICANT V. REPUBLIC OF COTE D'IVOIRE RESPONDENT COMPOSITION OF THE COURT: Hon. Justice Gberi-Be OUATTAR. A - Presiding Hon. Justice Dupe ATOK1 - \llcmber/Judgc Rapporteur Hon. Justice Janua1ia T. Silva lvforeira COSTA - l'vfember ASSISTED BY: ivfr. Tony ANENE- .l'v1AJDOH - Chief Registrar REPRESENTATION Of PARTIES: SCPA ORE- DIALLO - Counsel for Applicant Cabinet d'Avocat ESSJS - Counsel for the Respondent L JUDGMEN T: I. This is the judgment of the Court delivered virtually in open court pursuant to Article 8( I) of the Practice Directions on Electronic Case l\llanagement and Virtual Court Sessions, 2020. II. DESCRIP110N OF THE PARTIES: 2. T he Applicant, Jvfr Kodjo Alain Victor C laude who is an l vorian and a Community citizen (hereinatler referred to as the "Applicant''), is cu1Tently in pretrial detention at the Abidjan Prison and Correctional Centre pursuant to a detention order of28 June 2018. 3. The Application is broughL against the Republic of Cote d'Ivo ire, a .tvlember State of the ECO\VAS and signatory to the ECO\V AS Treaty (hereinafter referred to as the "Respondent"). Ill. INTROD UCTION 4. The subject matte r o f the Application arises from the Applicant's allegation that the Respondent violated his right to liberty and security of persons and his right robe presumed innocent until proven guilty, contrary to Articles 6 and 7( 1) (b) of the African Charter on Human and Peoples' Rights and l\rticle 9( I ) of the In ternational Covenant on Civil and Political Rights. TV. PROCEDURE BEFORE 11/E COURT 5. 111c Applicant fi led the Initiating Application accompanied by an Application for expedited procedure on 2 1 Jan uary 202 1 and these processes were served on the Respondent on 28 January 202 1. 6. T he Comt heard the Pa1ties on 9 March 202 1 and thereafter granted the App licant's App lication for expedited procedure. The Coult fu1ther directed the Respondent to file its defense to the Application before 18 l\l!arch 2021 , which was the next date of adjournment. 7. The Respondent filed its defense to the Application on 11 J\,1arch 2021 and this was served on the Applicant. 8. On 18 March 2021, after hearing the Paities' oral submission to the substantive Application, the Cou1t adjourned the case to 23 Apri l 2021 for judgment. V. APPLICANT'S CASE a) Summary of facts 9. The Applicant, a financial analyst and director of a company was charged w ith being complicit in fraudulent activities and on 29 June 2018 the tri al judge of the Court of First Instance issued a pretrial detention order against him in accordance with the provisions o f Article 166( l) of the Criminal Code Procedure of Cote d'Ivoire, which provides for pretrial detention for a s ix months' duration. He was then placed in detention at the Abidjan Prison and Correctional Centre. l 0. At the expiration of the six mon ths' duration, the detention order was then extended tw ice by six months each in accordance with Article 166(2) and (3) of the Criminal Code Procedure (CCP), w hich p rovides, "in correctional matters, preventive detention cannot exceed six months. However. the trial judge may decide to extend pre-trial deteniionfhr a period which may not exceed six months by means ofa reasoned order issued after an adversarial debate during which 1he puhlic prosecutor and the accused or his lawyer are heard Exceptionally, when the investigations of the trial judge must be continued and the preventivi detention ofthe accused remainsjustJ/ied in the lighl o/the conditions of Arlicle /63, the Trial Chamber. seised by motion o/ihe trial.fudge. may ex.lend !he prevenlive de1enrionfor a period not exceeding six months. The tria/judge can on~v apply to the Trial Chamber once. The application of rhe trialjudge must include the reasons justifying the continuation of the investigation. it is not necessary fbr the application to indicate the nature of the investigations envisaged 1.,;here such an indication m;ght hinder their completion. At the end of the qforemenrioned deadlines, the accused is in unjust/fied detenlion and mvst be released automatically ... 11. Based on the abovementioncd prov1s1on of the CCP, the Applicant was detained for a total of eighteen months, w hich is the legal limit for such detention. The reafter, the J nvestigating Chamber of the Court of Appeal took over the appeal of the case, and in view of the fact that the Applicant's de tention had continued beyond the statutory period, the Judge ordered the Office of the Public Prosecutor's Ollice lo re lease the Applicant with immediate effect. 12. However, the Office of the Public P rosecutor disregarded the release ord er and continues to detain the Applica nt on the ground that the time limit for appeal and ongoing appeal suspends the order of the Court in accordance with Article 605 of the CCP. The Applicant states that the Office of the Public Prosecutor fai led to carry out its legal obligation to execute without de lay any decision handed down by the Trial Chamber regarding pretrial detention and bail. 13. He states that the Respondent has kept him in detention for over the legal limit of eighteen (18) months and he remains in detention till date. He submi ts that his detention is illegal a nd a vio lation of his right to liberty and securi ty and his right to be presumed innocent until proven guilty in a criminal matter. b) Pleas in law 14. The Applicant re lied on the fo llowing laws: Article 6 of the African C harter on Human and Peo ples' R ights (African Charter); JI. Article 7 (I) (b) of the African Charter: 111 . Article 9 (1) of the International Covenant on Civi l and Poli tical Rights (ICCPR); iv. Article 166 ( 1-3) of the Criminal Code Procedure of Cote d'Ivoire. c) Reliefs sought 15.lhe Applicant's prayers are as follows : A declaration 1. u. that the Responden t violated tis right to I iberly and security; that the Respondent violated h:s right to be presumed innocent; An Order 111. that the Respondent puts an end to these violations by effecting his immediate re lease; 1v. that the Respondent pay him the sum of one bi llion ( l ,000,000,000) FCFA as compensation for the damages he suffered; v. that the Respondent comply with the Cou1t's j udgment within thirty (30) days from the date of noti fication of the judgment and submit a report stating the measures taken to comply with same at the end of the 30-day period . VJ. RESPOl\lDE1VT'S CASE a) S ummary of facts 16. The Respondent in its response denies that the ri ght to liberty of the Applicant was violated on the Qround that the detention was done in accordance with ~ laid down laws of the Respondent. That while the Applicant re lied on the provision of Article 166 of the Crimina l Procedure Code, the Office of the Prosecutor relied on the provis ion of Artic le 605 of the Criminal Procedure Code, which provides, "During the period of appeal at the Court of Cassation, and if there was appeal bejbre the pronouncement by the Court of Cassation, the enforcement of the judgment which forms the subject matter of the appeal shall be suspended, except for convictions or sentences in civil matters. " 17. The Respondent contends that the subject matter of the appeal is the order for release of the Applicant from detention. As a result of this, the appeal shall s uspend the Order of the Investigating Chamber of the Court of Appeal, until it is heard. 18. The Respondent argues that the detention of the Applicant is justified under the international human rights e eaties that the Respondent has ratified. Fwthermore, the UN Council for I-Tuman Rights in its definition of arbitrary deten tion stated that the following must be present; l) the absence of legal grounds, 2) the deprivation of liberty is as a result of a trial or a sentence relating to the exercise of civi l and political rights, 3) the serious disregard for international norms, in respect to the right to fair hearing. 19. The Respondent concludes that since none of these criteria applies to the case of the Applicant, the Application lacks substance and should be dismissed. b) Picas in law 20. The Responde nt re lies on Article 605 of the Criminal Code Procedure of the Republic of Cote d'Ivoire. c) Reliefs soug ht 2 1. T he Respondent's prayers are as Collows: A declaration: 1. that the depri vation of liberty of Mr. Kodjo Alain Victor C laude is legal a nd in accordance with Article 605 of the Criminal Procedure Code; 11. 111. that the detention is justified; that the detention is not characterized under the conditions of arbitrary detention as defined by the United Nations Human Rights Council; An Order 1v. v. striking out the Application oftl1e Applicant dism issing the sum of one bi llion (l ,000,000,000) FCF A, claimed by the Appl icant as compensation same not been j usti lied Vil. JURISDICTION 22. The Court holds that it has jurisdi~tion to adjudicate on this Appli.cation in accordance with Article 9( 4) of the Supplementary Protocol AiSP. 1 iO !i05 Amending the Protocol (A/Pl 17/91 ) Relati ng to the Court (Supplementary Protocol), which provides, "The Court hasjurisdicrion to determine cases of violation of human rights that occur in any 1\1ember State." Viii. AD1l1JSSJBJLTTY 23. The Court holds that the Application is admissible in accordance with Article 10 (d) (i) and (ii) of the Supplementary ProtocoL which provides, "Access to the Court is open to ... individuals on application .fhr relief/or the violation of their human rights; the submission of the application ./hr which shall: i) not be anonymous: nor ii) be made whist the same matter has been instiluted before another International Court .fhr adjudication. " rx APPLICATION FOR EXPEDITED PROCEDURE 24. The Applicant filed an Application for expedited procedure of the Application before the Court in accordance with Article 59 of the Rules of Court, on the ground of his failing health clue to the poor living conditions of the prisons where he has been detained since 29 June 2018. The Respondent made no submission in response to the application for expedited procedure 25. D uring its hearing on 9 ;\-1arch 2021, the Court granted the Applicant's request for an expedited hearing of the Application. X. ;ll/ERITS 26. The Applicant's claim hinges on the vio lation of the fol lowing ri ghts: 1. The right to liberty and security of persons- Article 6 of the African Charter and Article 9(1) of the ICCPR; 11. The right to be presumed innocent in' a criminal matter - A1ticle 7( l ) (b) of the African Charter. ~7. The Court wil l proceed to aclcress the heads of the alleged violations separate ly. a) Alleged violation of the right to liberty and security of persons 28 .ft is the submission of the Applicant that the Public Prosecutor disregarded the order of the Inves ti gating Chamber of the Court of Appeal for his immediate re lease and continues lo detain him over the eighteen (18) months limit under the Criminal Procedure Code. The legal limit for preventive detention in correctional matters is a total of eighteen ( 18) months. However, he has been held in detention since 29 June 20 18 till date, which is more than 18 mon ths. 29. He contends that the detention is unj ustified and that under no cin.:-umstance should the time limiL for appeal, suspend the requirement of the law under Article 166 of the Criminal Code Procedure. That the grounds for his continuous detention based on the suspensive effect of an appeal before the Court of Cassation, under Alticle 605 of the Crim inal Code Procedure, is incompatible with international treaties ratified by the Respondent. 30. He submits that his continuous de tentio n despite the expiry of the legal period of detention and the order for his re lease on 29 January 2020, is arbitrary, illegal and a violation of his ri ght to liberty and security of persons. 3 l .lhe Respondent State on the other hand argues that the continuous de tention of the Applicant is justified under Article 605 or the Criminal Code Procedure, which provides that an appeal before the Court ofCassation shall suspend the execution of an Order of the Court wh ich is the subject matter or the appeal. They contend that the detention of the Applicant is compatible with the provisions of the TCCPR and other relevant international human rights instTumenis ratified by the Respondent. Amtlysis of the Court *** 32. The Applicant in the instant case allege that his detention beyond the prescribed 18 months is illegal and arbitrary same being a violation of his ri ght to liberty and security of persons. The Respondent's defonce is that the continuous detention was not arbitrary as it was in accordance with Art 605 of Criminal Code Procedure (CCP) thus is in accordance with the law. 33. The app licable provision of the law relating to the right to liberty cited by the parties include, Alticle 6 o r the African Charter, whic h provides, "Eve,y individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except/hr reasons and conditions previously laid down by law. in particular, no one may he arbitrarily arrested or detained. " 34. Atticle 9 ( l) of the TCCPR which provides, ··Everyone has the right to liberty and security o/person. 1Vo one shall be subjected to arbitrary arrest or detention. No one shall be de1·ived 1 12 ~ ~,/ '-.) o/ his liberty except on .rnch grounds and in accordance with such procedure as are established by law . .. 35 .rrom the above articles, it is clear that the first rule of the thumb is tha t tbc right to liberty of any individual is guaranteed. However it can be interfered w ith if it is in accordance with rhe law as this protection is not absolu te. 36. In its simplest defin ition, right to iiberty is the right to be free, that is,freedom Ji·om restraint and the ability to do as one pleases as long as it is lawfi.d and does no/ affect the right of01hers. See Koimmle 0/uniyan: Corruption and llwnan Rights in r1/rica page 2 I J. However the s implicity of th is defin ition collapses in rhe face of the all the international instruments on the right to libe1ty which condemns any "arbitrary" detention. 37. Thc dynamics or Lhe word "Arbitrary" in relation to the right to liberty is so composite that a detention which is not in compliance with the law therefore unlawful, may not necessarily be arbitrary. On the other hand, a detention in compl iance with the law thus lawfu l may neve1t heless be arbitrary if it falls short o f the fundamenta ls for the protection of the right lO libe1t y. This complexity in de.fining arbitrary detentio n will be further e labo rated later but suffice at this point to say that a common understanding amongst Lhc various in ternational human rights institutions is to the effect that a lawt\.tl detention may very well be arbitrary since a higher international standard is imposed on the content of domestic law as it s ubjects that "law" to compliance with the fundamenta ls of human right pro tection. 38. Below are jurisprudence from some international human right institutions on their understanding of arbitrariness in respect to the right to liberty. 39 . .. The established internationai human riKhts jurisprudence sets three criteria to determine whether or not a particular deprivation of liberty is arbitrm:v, namely . !he lm,fulnes, of the deprivation; ihe existence of clear and reasonable grounds: and ihe availahility of procedural safeguards against arbitrariness. These are cumulative conditions and non-compliance with one makes the deprivation of liberty arbitrary. " ONYACHI ;\ND NJOKA V TA1'iZANI!\ (MERITS) (20 I 7) 2 AFRICA'-! COL: RT LAW REPORT 65 PAGE 93. PARAGR.t\PI-1 I JI. 40. ··The Commission observes that r.ot alt actions that constrain an individual's physical freedom can amouni to c deprivation o,f liberty in terms of Article 6 of ihe Charter. However, a deprivation of liberty that falls outside the strict confines of the law, or for reasons that are not acceptable or simply arbitrary, ivill amount to a violation o.fArtic!e 6 of the Charter. •· AFRICA.'-i CO:'vfMISSION ON HlJ.vlAI\ AND PEOPLES' RIGHTS COMMCNICA TI OI\ 3 79/09 MOI\IM ELGAK, OSlvlAN 1-llJ.v!MEIDA AND A.'vl!R Sl!Lliv!AN (RE PR F. SENTED BY FIDII A~D O.vfCT) V SCDAN, MARCIi JO 20 15. 4 1 . .. The right 10 liberty ofperson is r.ot absolute. An arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The notion of ··arbitrariness" is not to be equaled with "against the law··, bui must be interpreted more broadly to include elements of inappropriateness, injustice, lack of' predicwbility and due process cf law, as well as elements of reasonableness. necessily and proportionali1y' · HUtvCAN RIGHTS COMMITTEE - GENERAL COMME'ff ON ARTICLE 9 JCCPR. 42. The European Court of Human Rights found a violation of the right to liberty where the appl icant continued to be detained over the maximum period of deten tion set by law at six months. His detention after that date ceased to be lawfu l as a matter of domestic law. MUKHITDINOV v. RUSSIA ECHR APPIJCATION NO. 20999/14 JUDGrv!ENT OF 21 MAY 20 I 5. 43. Similarly, an applicant who had been held in detention for more than three years a fter his acq uittal by the Supreme Court of Georgia was held to have been arbitrarily detained and the Georgian State ordered had to secure his release at the earliest possible date. TENG JZ i\SSA!\IDZE V. GEORGIA l::CHR APPTICAT!Ol\' NO. 7 1503/01 JUDGMi-,NT OF 8 APRIL 2004. 44. Deprivation of liberty is regarded as "arbitrary" in the following cases: a. \\1'hen it is clearly impossible to invoke any legal basis _justifying the de privation of libe1ty (as when a person is kept in detention a fl:er the completion of his or her sentence, or despite an amnesty law applicable to the detainee, or a person detained as a prisoner of war is kept in detention a fter the cessation o f effective hostilities); b. \\'l1en the deprivation of liberty res ults from the exercise of the rights or freedoms 4 guaranteed by a rticles 7, 13, 14, 18, 19, 20 and 2 1 of the Universal Declaration of lbman Ri gh ts and, insofar as S ta tes parties are concen1ed, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant o n Civil and Political Rights; c. \Vhen the total or partial non-observance of the international norms relating to the right to a fa ir trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the State concerned, is of such gravity as to give the deprivation of liberty an arbitrary character; d. \Vhen asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of admi nistrative or judicial review or remedy; or, (e) \Vhen the deprivation of libetty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion: economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or car. result in ignoring the equality of human rights. Sec BASIC PRINCIP!. FS AND GUIDELINES ON Rfav!EDIES AND PROCEDUR!:.'.'I' O:V THE RIGHT OF ANYONF. DEf'RfllED OF JJJS OR HER LIBFRTY BY ARREST OR DETEN1ION TO BRING PROCEEDINGS BF. FORE COURT. 45. " .. . an arbitrary detention is any ji.>rm of curtailment (~/' individual liberty that occurs without a legitimate or reasonable grouncl, and is in violation c>f' the conditions sei out under the /a.v. One or all of these indices shall be said to be missing, if the detention, which is, at the beginning, not arbitra,y, but is too prolonged. ii thus leads to an abusive detemion". BODJO"Ji\ i\ KOUSSOULELOl.: PASCAL V. THE REPCBLIC OF TOGO JUDG\•IENT ECWiCCJ!JUDi06/I 5 PAGE 12 46. Arbitrary de1ention is a detention not in conformity wi1h 1he national or internalionaf law and which occurs withow a lef?itimate or reasonable ground REN SON OLGA OKOi\!IR,.c\ V REPL;RI ,IC OF OENl>i F. CWiCCJ/JlJOiOS/17 PACiE 16. 47. Thc sum total of above jurisprudence is to the effect that arbitrariness is tied lo compliances with the law which as earlier stated is subjected to intern ational standards. Tn the instant case, in examining the allegations of the Applicant that his detention is unlawful. arbitrary a nd thus a v io lation of his right to libertv and securitv, lhe Court intends to analvse the two laws ., ., ..... ., . invoked, that is, Articles 166 and 605 of the CCP. 48. Ahead of this examination, the Court hastens to state that as a rule, it does not have the jurisdiction to examine the laws of tv1ember States, nor jurisdiction to act as an appellate Coun in regards to decisions of Member States. However, where human rights vio lations are raised in the laws or judgment ofa cou1t ofa J\llember State, it will exercise jurisdiction over same. This stand has been expressed by the Court in several cases, o ne of which states as follows; "The Courtfurther reiterates !hat it is nm an appellate courl and will only admit cases from national courts where human rights viola/ions were alleged in the course o/the proceedings. " See I-US LO ROSIIIP Jl iSTICE PAUL UUTER DERRY & 2 ORS v. THE REPlJRL!C OF GHANA JUDGMENT '-10 ECW/CC.l!JUDil7/ l9, PAGE. 28 BAKI\RY SARRE & 28 ORS V. R. EPUB I . IC OF MA U ECW!CCJ!JUD/03il 1 PAGE 13. 49. Since the subject-matter of this case hinges on the appl ication of a national law, which is alleged to violate a human right on one hand and same was ~' " .bW -:r-r4..,__--..... I o v raised LO justify the a lleged vio lation on the other, the Court is therefore seized with the jurisdiction to make a dete m1ination of the alleged violation premised on the said laws. SO. Having clarified the jurisdiction to examine the laws or the Respondent, we shall now proceed as earlier staced lo review the facts presented by both pa rties viz a v iz the said laws to detem1ine the alleged vio lation or otherwise. i) Article 166 of the Criminal Code Procedure: 51. The summary of the Applicant's case is that he was detained from 29 June 2018 to 29 January 2020 a period of 19 months contrary to Article 166 o[the CCP that limits detention pendi:ig investigation to 18 months. Thus the detention is unlawful. For purposes of recollection the said Article 166 is reproduced hereunder: "in correctional ,natters. preventive detention cannot exceed six months. However, the /rial judge may decide to extend pre-trial detentionji.,r a period 1-vhich may not exceed six months by means ofa reasoned order issued afle;- an adversarial debate during which the public prosecutor and the accused or his lawyer are heard. Exceptionally, when the investigations of the 1rial judge must be continued and the preventive detention of"the accused remainsjustified in the light of the conditions o/Anicle 163, the Trial Chamber, seised by motion of the trial judge, may exrend ihe preventive detention.fc,r a period not exceeding six months. The trial j udge can only apply to rhe Trial Chamber once. The application of the trial judge mus/ include rhe reasons justifying the continuation of rhe investigarion. It is not necessa,y for. 1he application to indicate the nature cl the investigations envisaged where such an indication might hinder their completion. Al the end of 1he afhrementioned deadlines, the accused is m wyustij1ed detention and n:11st be released automatically". 52. The maximum period of detentio n lawfully permitted under the abovemen tioned law is 18 months. The App licant was detained on 29 June 20 l 8. having spent nineteen months in detention, on 29 January 2020 the Investigating Cham ber of the Court of Appeal realizing th is itTegularity, declared as unjust ified the continuous detention of the Applicant and ordered che Office of the Public Prosecutor to effect his immediate release. This order was however disregarded. 53. On the examination of the facts and Article 166, the Court finds that the detention of the Applicant beyond 18 months being in contravention of this Article is unlawful same not been in accordance with the law. This position has been re iterated in many decisions of the Court including in the case of PTE ALltvll; AKEE:vl V. REPUBLIC OF NIGF. RIA EC WiCCJiJLOiOl/l 4 PAGE 11, where the Court held that "Since the Applicant has served his sentence beyond the number of'years imposed on him, and the authority charged with confirming or reversing the sentence of the Court martial has not delivered its judgment, the said detention is arbitra,y and violates Article 6 fif the African Charter on Human and Peoples ' Rights.,. See BENSOI'< OLl'A OKOMBA V REPT;BLIC OF BENl}I ECW/CCJiJUDi05/ I 7, PAGE l 6. See also HADIJ ATOU MANI KORAOU V. REP UBLIC OF J\i lOER CCJELR (2008) 7 54. Indeed the last sentence of Article I 66 tha t sets out the time limit of 18 months for detention says it all when it provided that "At the end of the aforementioned deadlines, the accused is in unjustified detention and must be released automatically " Based on the above, the Court finds that an unlawful detention is well accommodated within the provis ions of right to liberty so long as it was carried o·.1t outsides the confines of the law. 55. The legal effect ofan unlawful action is to render same void and in the instant case wi ll result m liability against the offend ing party, which is the Respondent. 56. The Cou1t therefore holds that the continuous detention of the Applicant by the Respondent in contra vemion of A1ticle 166 of the CCP is unlawful and a violation of the right to liberty of the Applicant same being contrary to A.1ticle 6 of the African Chatter and Article 9(1) of the ICCPR. 57. Though this holding is sufficient to term inate this Application and resu lt in the award of appropriate damages, However. in view of the fact that Respondent sought to justify the continuous detention by virtue of another law, the Court will neverthe less prJceed to examine the said law to detem1inc the justification or otherwise of the continuous detention of the Applicant. ii) Article 605 l?/'the Criminal Procedure Code: 58. It is the case of the Applicant that h is continuous detention is unjust ified under Anicle 605, and that under no circumstance can the time limit J-or appeal suspend the requirement of the law under Article 166 of the Criminal Code Procedure. Further that the grounds for his continuous detention ased l on the suspensive effect of an appeal before the Court of Cassation, under Article 605 of the Criminal Code Procedure, is incompatible with international treaties ratified by the Respondent. 59. The Respondent Stare on Lhe other hand argues that the cominuous detention of the Applicant is justified under i-\.rticle 605 of the Criminal Code Procedure and that the detention of the Applicam is compati ble with the provisions of the IC CPR and other relevant international human rights instruments ratified by the Respondent. 60. For ease of recall, Article 605 Criminal Code Procedure 1s hereunder reproduced: ''During the period of appeal at the Court of Cassation, and if there was appeal befhre the pror.ouncement by the Court of Cassa/ion, the enfhrcement of the judgment which forms the subject matter of the appeal shall be suspended, except for convictions or sentences in civil malters. " 61. A narrow interpretation of this A.rt.icle wil I inevitably lead the Court to the conclusion that the continuo us detention under this law is permissible thus lawthl same being in accordance with the laiv. T he gnawing question to ask is whether a lawful detention can be arbitrary. The simple and forthright answer is that once the detention is in accordance with the la,v, it is legal and cannot ordinarily be said to be arbitrary and th us a violation of the right to libe1ty. The danger that this interpretation poses to the protection of the libert)' of individuals is grave anc has enoaoed serious analy·sis bv experts ., · b O ._. and institutions of human right protection seeking a globally acceptable definition of arbitrariness. This concern is etrectivcly captured below; .. The central issue in the interpre1ation c>J the word "arbitra,y'' is whether it simply introduces a qualification of lawfit!ness. or whether it imposes a higher international standard upon the content of domestic laws. If the word ''arbitratJ," simply means "unlawful," then the prohibition in Articles 9 and 9( I j of the JCCPR and Article 6 o.f the African Charter and other similar laws would not apo!y to any lawjitl governmental ac1ion. regardless of how oppressive the action, if ii conformed to domestic law. Such an approach would essentially allow each state. through ifs own domestic law. to determine the scope of an individual's righi to fi·eedom .from arrest or detention" LACRF. NT MARCOUX, JR .. PROTFCTION FRO. VI ARRITRARY ARRFST AJ\"D DETENTIOJ\ UNDER l:--ITERNA T!Ot-iA r. LAW. 5 B. C. INT'L&CO:vtP. L. RF. V .345( 1982),HTTP:/!LA WDIOITA I . COMMO~. S. B C. EDU!TCLRiVOLS/ISS?/3 (;\CCESSED ON 12 APRIL 202 1, .-'IT 11.4 1AM) .. 62. The danger of conslruing arbitrary detention within the ambit of compl iance with the law is further captured below; ·'The more a law allows, or provides for, the deprivation of the right lo personal liberty, the more arbi1rary that law becomes .. . One measures the "arbitrariness " of a law in reference to the degree to which it impinges on the Ji1r.damen1al right to personal liberty. As the degree of impingement increases. the slate's burden to just(fy the law, and to demonstrate its non-arbitrariness becomes greater. "Li\l:RENT MARCOUX, JR., PROTEC-:'ION FROM ARBlTRARY ARR. EST J\l\'l) DE JTNflO!\ IJNDER INTERl\'A l'lONAI. LAW, 5 B. C. INT'L & CO:V!P. L. REV.345( 1982),HTTP:/iLA WDIGJT1\LCOMMO:-IS. BC. EDUilCLR/VOL5/JSS 2/3 (ACC'ESSF. D 0:-1 12 APRJL 202 1, /\T 11.41 A~~). 63. The global consensus is not to concentrate on compliance with the national law alone to prove arbitrariness or otherwise, but to throw a search light on the essence of this law as it relates to the protection of the right of liberty. Thus the phrase in accordance with the law or other similar expressions which is a limitation on human rights needs to be forther subjected lo certain limitations to ensure the realisation of human rights protection. 64. In further elaboration of above the European Court or Ilu.man Rights in JAMES Vs UN ITED KfNGL>OM F. CHR.2 1986 8 tHRR 123 held, "ft has consistently held that the term ·faw · or 'lawful' in lhe Convenlion [do} not mere/;; refer back to the domestic law but also relates to !he quality of the :aw, requiring it to be compcuible wilh the rule of law. " 65. This was equally confirmed the when this Court held that: ''ft is not sujficieni.for un act on the basis qfwhich a state limited the eryoyment ofpossession 10 he a formal legal source within the meaning of domestic laws, but it mustfi,nhermore co111ain certain qualitative characteristics and afford appropriate procedural sqfeguards as to ensure protection against ar.':litrary action and conjhrmity with the rule of/aw. See J3EDIR SARL VS l>i/Gt. R Ju DGMENT >JO. ECWiCCJ/JlJD/1 1!20 PAGE24 66. A concise conclusion was also reached by The United Nations Study of' the Right of Eve1:vone to be Free ./i'om Arbitra1y Arrest. Detention and Exile, whi le recognizing that human rights are ''subject only to such limitations as are deiermined by lmv, however. !he law itself must be "solef,v fcJr the purpose of' securing due recognition and respect.for the rights andfi·eedoms of others and of meeting thejust requirements of morality, public order and ihe J;eneral welfare in a democratic society.". See 34 U. N. ESCOR Supp. (No.8) at 8. UN Doc. E/ CN.41826/Rev. J (/964). 67.ln essence, such limiting lav..- must pass the test of compatibility with democratic principles. The Court espoused this principle when it held thus; "Even when the interference is in accordance with the law it must in addilion be necessa,:y in a democratic society jbr any of the.following purposes: public safety. economic well-being of the counrry. protection of health and morality and 1he prevention of disorder or crime. The nature of the democra1ic necessity is such that mere expediency is not sufficien1. The inte,ference must be justified by a ·pressing social need" relating to one or more of the legitimate aims above. in CNDD V COTF. D. !VO/RF. (2009j. CC:JE!. R PAR. A././. PG. 325 the Court relied on the Europea.'1, Court ofHuman Rights decision in OPEN DOOR ,1NT> DUBLIN WOM4N VS. IRE/AND. (1992i which affirmed that: ,;it had to examine if1he disputed legal measure was in response lO an urgent social need and particulw·ly if' it was proportiona/e to the legitimate goal pursued by Ireland; and the court had to monitor closely ils compatibility with the principles of a democratic society. "" HIS LOR. DSIIIP JUSTICE PAUL r;t:TER DERRY & 2 ORS V THF. REPUf3LIC OF GHANA JUDGMEJ\'T NO ECW!CCJ!JUD! l 7il 9 PAGE 26 PARAGRAPH 74. 68. The import of above is twofold, . I) While interference with a guaranteed right if done in accordance with the law is lawful, it may nevertheless be arbitrary. A caution in this regards is that arbitrariness is not be seen as synonymous with against the law but as held by the African Commission, the otherwise legal law must he inte1preted more broadly to include elements cJl inappropriateness, injustice, lack olpredictability and due process ol law. ARTICLE 19 Vs ERITREA COMML'N!CATION 275103. 2) Following from (I) above, the broad criteria for interpreting the said law that interferes with a guaranteed right is that it must be necessary in a democratic society. This necessity must be for any of the following purposes: public safety, economic well-being of the country, protection of health and morality and the prevention of disorder or crime. Any pressing need to interfere with a given right must be in relation to any of the above. 69.\Ve will now subject Article 605 to these safeguards to determine if it meets the criteria of necess ity in a democ~atic society. The said law seeks to suspend the app lication of Article 166 (1-3) which limits the maximum detention period without trial to 18 months whilst an appeal is in process. The Court takes judic ial notice of the s low criminal j ustice delivery system in the ECOW AS region noting that an appeal period is indete rminable and can go on for years o n end. In this regard, can a detention based on such fluidity of time be considered to be "solely/hr the purpose ofsecuring due recognition and respect for the rights and freedoms of others and <:Jf meeting the jus1 requirements l?{ morality, public order and the general welfare in a democratic society "? In other words, does this detention support a pressing need lo safeguard the public safety, economic well-being of lhe country, protection of health and moralitJ, and the prevemion of disorder or crime? The answer is clearly in the negative. Flowing from above, what then is the import of the continuous detention of the Applicant after a judicial order of his release has been made? \Vhat j ustification has been canvassed by the Respondent in support oflhis action? 70. Thc legitimate aims in a democratic society listed above are; public safety, economic well-being of the count,y, protection of health and morality and the prevention ofdisorder or crime. The most relevant in the instant case will be the prevention of"disorder or crime. J\ continuous detention of a suspect as a pressing need to prevent disorder or crime mus t be based on the criteria of necessity and proportionality, whic h includes the following considerations 1) whether the suspect wil I abscond and evade justice if released on bail pending ttial; 2) the possibility of the suspect committing another offence and 3) the possibility of the suspect obstrncting the investigations of the prosecuti ng authority. All of these must however be determined by a competent court or tribunal. 71. The Court is of the opinion that the Cou1t of Appeal of the Respondent would have considered these possibilities and is also clearly aware of the provision of Article 605 of the Criminal Procedure Code, but chose to order the release of the Applicant based on Article 166 ( 1-3) of the same law. The Respon ent V therefore cannot submit itself to the jurisdiction of the Court and still decide on its own motion to disregard be order of the Court by arTogating to itself the powers of interpretation and application of the law, a responsibility that is clearly reposed in the Courts. 72. Besides, Guideline l 6 Or THE GUIDELINES ON RE,111EDIES AND PROCEnURJ::S ON THE R!CiHJ' OF ANYONJ:: DFPR!VED OF HIS LIBF. RTY provides that: "When a judicial order of release becomes operative, it mus/ be complied wi;h immediately. as continued deieniion would be considered arbitrary. ·· This guideline gives the judiciary the oversight responsibility to make decisions concerning the detention and release of suspected offenders. This responsibility is not one that is given to or expected to be shared by the executive, which in this case is the Office oflhe Prosecutor. 73. In conclusion, the Court recapitulates the analysis 111 the preceding paragraphs and finds that; a) Article 605 of the CCP suspends the timeline for detention provided in Article I 66 and thus enables an indetem1inahle period of detention which does not find any scat within the tenets of the international nonns for protection of the right to liberty of an individual as such is arbitrary. b) Article 605 conflicts with A1ticle 166 that provides for immediate release ofhe accused after the expiry of the cimel ine for detention. c) Article 605 upon which an order of release by the court was disobeyed is not in accordance with g uideline 16 of the UN Basic Guidelines that provides for an immediate compliance with a judicial order of re lease as continued detention would be considered arbitrary. d) Furthennore, Article 605 has not been established to be necessary in a democratic society to meet the pressing need c/' prevention of disorder and crime. 74.ln that wise, the Court finds that though the detention is lawful same being permitted by A1ticle 605, iL is nevertheless arbitrary for all the reasons herein adduced. The Court therefore holds that the continuous detention of the Applicant by the Respondent atler an order of release by the Court of Appeal is arbitrary and a violation of his ri ght to liberty and security of his person. 75. The Court also finds that Article 605 of the CCP is not in compliance with the tenets of international treaties on the right of l iberty and security of persons as same has the potential to be used as a tool for inordinate detention of accused persons. This is more so that such persons are awaiting tria l. In line with its jurisprudence and the precedent laid thereof; Article 605 ought to be reviewed to include decisions of a court on detention in the exceptions p rovided in the law. See fEDER/\TION OF Al-'R ICAN JO LJRNAUSTS & 4 ORS V. REPUBLIC OF THE GAMBIA ECWiCCJ/JUDi04/1 8 and THE INCORPORATF.]) TRUSTEES Of LAWS AND RI GHTS AWARENESS TNITIATIVE v. THE FEDER. AL REPl.;BLIC OF MGERIA ECW/CCJ!JlJD/ 16/20. 76. The Court therefore holds that Article 605 be repea led from the statutes of Lhe Respondent. Alleged violatio11 of tlte presumption of in11oce11ce 77. The Applicant submits that the fact that he is being held in pre-trial detention beyond the legal limit and on the basis of a law that is incompatible with international human rights treaties, is a ploy to have him punished without a trial. This is a violation of his righ t to presumption of innocence. 78. Thc Respondent on the other hand, argues that the Applicant's detention is in accordance with procedures laid down by the law, specifically, Article 605 of the Criminal Procedure Code of the Respondent and is therefore justified under international human rights law. Thus, it urges the Court to disregard the Applicant's claims. Analysis of the Court **,-": 79. One of the fundamental principles of the right to a fair hearing is the r ight to be presumed innocent until proven gui lty. Article 7 (I) (b) of the African Charter which relates to this right provides thus, '"Every individual shall have the right to have his cause heard. This comprises . ... bj The right to be presumed innocent until proven guilty hy a competent court or tribunal. '' 80. In a criminal matter, in so far as a competent court has not pronounced on the guilt of a suspect, a presunntion of innocence is attributed to thaL CJ individual. The public prosecutor has the burden of proving guill of the accused in order for the accused to be convicted of the crime he is charged with. T he prosecution must in most cases prove that the accused is guilty beyond a reasonable dou bt. This principle is so sacred to the right of the accused that if reasonable doubt remains, the accused must be acquitted. 81 . In recognition of this principle the Coult held a5 follows: "The right to the presumption of innocence resu/1.~ ji·om the principle of criminal law that any person who is prosecuted or even simply suspected of having committed an offense is considered innoceni as long as he has not been declared regularly guilty by a competent court. ft is a fundamental right recognized and guaranteed by all the international legal instruments cited by the applicants. namely the Universal Declaration of Human Rights of JO December 1948. the international Covenant on Civil and Political Rights and the African Charter on Human and Peoples' Riihts •.• See MR. KHALIFA AIIABACAR SALL & 5 ORS V. RE PlJBLIC OF SENEGAL ECW/CCJ/JUD/17il 8 @ PAGE 3 1-32. 82. Futthermore, 111 detem1ining whether the presumption of innocence is applicable in a specific case, the conduct o r public officials and the application of the crimi nal procedure of the State is of utmost importance. Jn elucidating same Court recalls its earl ier holding thus: " ... A state can only be accused of violating the right of presumption rf innocence if it is established thai its officials, through their own acts of commission or omission, made an individual to appear as guilty of the crimes that he is accused, even before a courts judgment". ELLEN K CORKRUM v. THE RE PCBLIC OF LIBERIA . JlJDGtvCENT NO ECWiCCJiJUD/19/19 @ PAGE20. 83 . T hc Court recognizes that the Respondent has not provided any legitimate reason to justify the continuous detention of the A pp licant for o ver e ig hteen months even a fter a lawful order of release by a Court of law. Therefore the conduct of the Prosecuting Authority is indicative of a presum ption of guilt of the Applicant without a Coun having found him guilty of the alleged cnme. 84. Jn light of this analysis, the Court holds that the Respondent violated the Applicant's right to be presumed innocent until proven gui lty by a competent court or tribunal contrary lo of the Article 7 (I) (b) African Charter. 85. The Applicant in his su bmission for reparations states that he is a business manager and financia l analyst who undertook vario us p rofitable business activ ities before his arrest and detention. H is businesses have been adversely affected because of his conti nued detention. He claims that his detention has caused him enonno us loss i.ncluding moral damages, for which repa rations should be awarded to him. He therefo re seeks an order of the Court for the Respondent lo pay him the s um of one billion ( 1,000,000,000) FCFA, as compensation fo r the violation of his rights and the damages suffered by him. 86. The Respondent on its part states that the c laims of the Applicant in seeking damages of one bil lion CFA Francs is unjustified a nd sho uld be struck out. Analysis of the Court 87. Reparations for a wrongful act is an impottant principle of international law, which requires a Stale which has been found liable for a human rights violation, to restore the victim to t:te status he would have been had his rights not been violated. This is done by g ivi ng effective remedies, including compensation and restitution to the victim. The Court recalls its earlier decision when it held that, ''A State must make.full reparation for any inJwy caused by an illegal act for which it is internationally responsible. Reparation consists of full restitution of the original situation ifpossible or compensation where :hat is not possible or satisfactory that is, acknowledgement of or an apology for 1he breach, may contribute immensely to resolving wounds Ji·om the violation . . 'v10UKHTAR IBRAlIIM V. GOVER"IMENT OF . J IGAWA STA. TE & 2 ORS EC W/CCJ/JL' D/ 12!14. PAGE 40. See also HA'vt:vL,\ HIYA & ANOR V REPu BI ,IC or MALI Jl.,'1)(;\fENT l\O. EC WiCCJ/JUD/05!2 I PARAGRAPII 64. 88. Furthermore, concerning arbitrary detention, the Basic Principles on the Right to Liberty provides that, "Anyone arbitraril_v or un!crnfully detained is guaranteed access to effective remedies and reparations, capable l>fproviding restitwion, compensation, rehabilitation, satisfaction and guarantees of non repetition. Reparations should be adequate, effective and prompt". 89. The Applicant as a financial analyst and a company director claimed the sum of one billion ( 1.000,000,000) FCfA for damages suffered though without any documentary evidence to suppmt same. It is not in doubt that the Applicant would have suffered psychological harm arising from the arbitrary detention for a period beyond the orescribed limit without been found g uilty by a competent court 90. In the instant case, Lhe Court having found the Respondent liable for international wrongs - Lhe violation of the Applicant's right to libe1ty and the right to be presumed innocent before a competent court or tribunal is under an obligation to make reparations to the Applicant for the moral harm he has suffered. This was captured by the Court when it held that: "The Court having determined that the arrest and det£'11tion of the Plaintiff were unlawful hereby awards the plaintiff' damages ./hr all the pain and siiffering, humiliation, embarrassment and inconvenience he suffered because of his arrest and detention." MR. GODSWILL TOl'vl:VIY uDOII V FEDF. RAL REPUBLIC OF NIGF. RJA JUDG:'v1ENT NO. ECW/CCJ1JUD/26/J 6 PAGF. 22. 91. While moral damages cannot be q·.1antified, reparations for same wil I be on a case by case basis. In view of the fact that the Applicant did not give derails of the damages he claims and havirg not provided evidence of his profession and earn ings, The Court awards the app licam 1hc sum of 14,000,000 FCFA as moral damages fo r the arbitrary deprivation of his libe1ty. Xi. COSTS 92. Article 66 (J) of the Rules provides, "A decision as to costs shall be xiven in the final judgment or in the order. which closes the proceedings." 93. Tbe Court notes that none of the Parties made submissions regardi ng c-osts of the proceedi ngs. In light of the provision of Article 66 (I 1) of the Rules, which provides, "if'costs are not daimed, the parties sh.all bear their own costs ... " the Court orders both Parties to bear their own costs. )(fl. OPERATIVE CLAUSE For the reasons stated above, the Court sitting in public after hearing both parties: As to juris diction: 1. Declares that it has jurisdiction. As to admissibility: 11 . Declares the app lication admissible. As to merits: 111. Declares that the Respondent v:olated the Applicant's right to li berty contrary to Article 6 ofthc African Charter; 1v. Declares that the Responden L v:olated the Applicant 's right to be presumed innocent by the Responde nt contrary to Article 7 (I) (b) of the African Charter. As to reparation: Orders v. The Respondent to take measu res to immediately release the Applicant from dete ntion; v1. The Respondent to repeal Article 605 of the Criminal Code Procedure from its statutes. v11. The Respondent to pay the Applicant the sum of fourteen million ( 14.,000,000) FCF A as compensation for moral prejudice caused to him. As to compliance and reporting v 111. Orders the Respondent State to submit to the Court within one ( l ) month of the date of the notification of this judgment, a reporl on the measures taken to implement the orders set-forth herein. Hon. Justice Gberi-Be OUATT ARA Hon. Justice Dupe ATOKI -Judge Rapporte ur Hon. Justice Januaria T . Si lva i\.1oreira COSTA IV1r. Tony ANENE- IV(AlDOH - Chief Registrar Done in Abuja, this 26th Day of Apri l 2021 in English and translated into French and Portuguese. 36