Jean Pierre Fabre v Togolese Republic (ECW/CCJ/APP/29/23; ECW/CCJ/JUD/19/25) [2025] ECOWASCJ 20 (9 April 2025)

COMMUNITY COURT OF JUSTICE, ECOWAS COUR DE JUSTICE DE LA COMMUNAUTE, CEDEAO TRIBUNAL DE JUSTICA DA COMMUNIDADE, CEDEAO IN THE COMMUNITY COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN ST ATES (ECOW AS) In the Matter of MR. JEAN PIERRE FABRE V TOGOLESE REPUBLIC Application No: ECWICCJIAPP/29/23 Judgment No: ECW/CCJIJUD/ 19/25 JUDGMENT ABUJA 9 April 2025 Plot 1164 Joseph Gomwalk Street, Gudu District, Abuja Nigeria. www.courtecowas.org MR. JEAN PIERRE FABRE -APPLICANT V. TOGOLESE REPUBLIC -RESPONDENT COMPOSITION OF THE COURT: Hon. Justice Ricardo Claudio Monteiro GON<";AL VES Hon. Justice Sengu Mohamed Koroma Hon. Justice Dupe A TOKI - Presiding -Member -Member/Judge Rapporteur ASSISTED BY: Dr. Y aouza OURO-SAMA - Chief Registrar REPRESENTATION OF PARTIES: Me Ferdinand E. AMAZOHOUN - Counsel for the Applicant Me Tchitchao TCHALIM - Counsel for the Respondent I. JUDGMENT 1. This is the judgment of the Community Couii of Justice, ECO WAS (hereinafter referred to as "the Court") delivered in open court. II. DESCRIPTION OF THE PARTIES 2. The Applicant is Mr. Jean Pien-e Fabre, a citizen of the Togolese Republic and President of the National Alliance for Change (ANC), a Togolese political party. He resides in Lome. 3. The Respondent is the Togolese Republic, a Member State of the Economic Community of West African States (ECOWAS). III. INTRODUCTION 4. This case is premised on the allegations by the Applicant of the violation of his rights guaranteed under Articles 5, 7 (1) ( d), 9 (2) and 11 of the African Charter on Human and Peoples' Rights; the actions of a law enforcement officer of the Togolese Republic who prevented him from proceeding to a place of worship, threw a grenade at his car and hit him in the back with a baton form the basis of the allegation. Furthermore, despite a report to Togolese authorities, his complaint was not investigated or heard by Togolese courts. IV. PROCEDURE BEFORE THE COURT 5. The matter commenced with the filing of an Initiating Application on 28 July 2023 which was served on the Respondent on 0 1 August 2023. 6. On 25 August 2023, the Respondent filed a Request for extension of time to file the response of the Togolese Republic. This was served on the Applicant on 13 September 2023. 7. The Applicant filed a Response to the Respondent's Application for Extension ofTime on 14 September 2023 . This was served on the Respondent on the same day. 8. The Respondent filed its Statement of Defence on 26 September 2023 which was served on the Applicant on the same date. 9. The Applicant filed a Reply to the Statement of Defence on 13 October 2023 which was served on the Respondent on 18 October 2023. IO. The Respondent filed a Rejoinder on 19 December 2023. This was served on the Applicant on 08 January 2024. ~ t ~ 11. The Applicant sent a letter to the Registry of the Court on 26 January 2024 indicating that he does not intend to respond to the Respondent's last filed process and therefore requests the opening of the oral phase. 12. On 27 January 2025, the Court held a virtual hearing in the case. Both parties were represented in Court by Counsel. The Parties urged the Court to take note of their briefs already filed before the Court. The case was heard on its merits, and the Comi granted both Parties the opportunity to make oral submissions. The case was then adjourned for Judgment. V. APPLICANT'S CASE a. Summary of Facts 13. The Applicant's case is that on his way to church at the Salem Methodist Temple in Lome, on Wednesday 1st September 2010, at about 1 p.m. for the weekly prayer session organized by the Collective of Democratic Opposition Parties, he was confronted with a team of policemen who barricaded the road and prevented him from accessing the place of worship. 14. He alleges that a certain Captain Kondo, who was the Officer in charge of the security officers, then threw grenades at his car. In addition, while he was trying to leave the church premises, Captain Kondo hit him violently in the back with a baton. This caused the Applicant injuries to his right parascapular region. 15. The same Captain Kondo had earlier on 2 8 August 2010 fired grenades at his vehicle. 16. Consequently, he filed a complaint with the Public Prosecutor at the Court of Appeal of Lome asking for Captain Kondo to be tried under the said provisions of the Penal Code. 17 . According to the Applicant, by virtue of Article 44 7 of the Criminal Procedure Code in force in Togo, complaints against judicial police officers must be brought before the Public Prosecutor at the Court of Appeal who addresses them to the Minister of Justice, who must in turn appoint an investigating magistrate. 18 . However, since filing the complaint on 26 November 2010, the case has not been investigated or heard by the Togolese courts, as an investigating magistrate has not been appointed by the Minister of Justice. 19. The Applicant therefore allege that the violent actions of Captain Kondo violate the relevant provisions of A1iicles 46, 4 7-b, 149 and 150 of the Penal Code in force at the time in Togo. b. Pleas in Law 20. The Applicant relies on the following legal provisions: 1. Articles 5, 7 (1) ( d), 9 (2) and 11 of the African Charter on Human and Peoples' Rights; A1iicles 5, 19 and 20 (1) of the Universal Declaration of Human Rights; 11. 111. Articles 7, 19 and 21 of the International Covenant on Civil and Political Rights; 1v. Article 16 of the Convention againstT01iure and Other Cruel, Inhuman or v. Degrading Treatment or Punishment of 10th December 1984, Articles 19, 21, 25 and 30 of the Togolese Constitution of October 14, 1992. c. Reliefs Sought 21. The Applicant seeks the following reliefs from the Court: a. To DECLARE AND ADJUDGE: 1. That the actions of Captain KONDO towards the Applicant constitute inhuman and degrading acts in flagrant and manifest violation of Article 21 of the Togolese Constitution, Atiicle 5 of the African Charter of Human and Peoples' Rights, A1iicle 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights and Article 16 of the Convention against Torture and Other Punishments or cruel, inhuman or degrading treatment taken in spirit and letter; 11. That the installation of the gendarmes at the entrance to the Salem Methodist Temple which prevented the Applicant from accessing the prayer session organized by members of the FRAC collective, without its necessity being demonstrated, constitutes a restriction on the freedom of expression and opinion and freedom of assembly in flagrant and manifest violation of the provisions of A1iicles 25 and 30 of the Togolese Constitution, Article 9 paragraph 2 and Article 11 of the African Charter on Human and Peoples' Rights, Article 19 and Article ~$~ 20 of the Universal Declaration of Human Rights and the provisions of Articles 19 and 21 of the International Covenant on Civil and Political Rights; 111. That the omission of the Minister of Justice to take into consideration the complaint filed by the Applicant and the absence to date of a judgment on the part of the Togolese courts contravenes the right to be judged within a reasonable time in flagrant violation and manifesto of Article 19 of the Togolese Constitution and Article 7 paragraph 1/d of the African Charter on Human and Peoples' Rights. b. To ORDER the Togolese Republic to take all measures to investigate the complaint filed by the Applicant relating to the incriminated actions; c. To ORDER the Togolese Republic to pay the Applicant a sum of One Hundred and Fifty Million (150,000,000) CFA Francs as damages / reparation for the harm suffered; d. To ORDER the Togolese Republic to bear all costs; e. To ORDER AND ADJUDGE that the ensuing judgment will be executed within three (3) months of its delivery and that an execution report will be rendered to the Com1. VJ. RESPONDENT'S CASE a. Summary of Facts 22. The Respondent denies the Applicant's allegations of human rights violations and argue that no credible or reliable proof has been provided to support the allegations. 23. With regards to the complaint submitted by the Applicant to the Public Prosecutor of the Court of Appeal, the Respondent submits that the Attorney General who received the Applicant's complaint has the discretion to prosecute or not, based on the facts of the case. Moreover, since filing the complaint, the Applicant has failed to follow-up, and the actions he complained of are now statute-barred under Togolese law. a. Pleas in Law 24. The Respondent does not cite any pleas in law. b. Reliefs Sought 25. The Respondent seeks the following reliefs reproduced below as prayed: a. As to formal presentation: 1. On the main argument, the State of Togo relies on the wisdom of the Coui1 to examine the Application; 11. On the subsidiary argument, and if the Court declared itself competent, it will declare the application as inadmissible, for manifest lack of status as a victim of a violation of rights. b. On the very subsidiary argument, and as to merit: 1. To declare and adjudge that the State of Togo has in no way violated any article of the texts cited by the Applicant; 11. To declare and adjudge that the Applicant has not provided any evidence of the acts of violence and violation of his rights, of the prejudices suffered, and even less of his assessment. c. Consequently: 1. To reject all claims, purposes and conclusions contained in the Initiating Application as unfounded due to the total lack of evidence; 11. To award to the State of Togo the full benefit of its present defense m response to the initiating Application; iii. To order the Applicant to bear all costs. VII. APPLICANT'S REPLY 26. The Applicant avers to carry out investigations into his allegations, cannot simply deny them, as the facts were public and reported by several publications deemed credible. that the Respondent having failed 27. An example of such publications is that by www.letogolais.com, a news and general information site on Togo, which published on 07 September 20 10, the article "FRAC-TOGO press conference 7th September 20 10: Introductory statement by Jean Pierre FABRE". This article made reference to other cases of violations of human rights of opposition politicians, including the O 1 September assault of the Applicant. 28. Another news site, Collectif Verite des Urnes TOGO DIASPORA, published an article written by Mr. Kassi Tino on 11 September 20 I 0, titled: "The reign of immorality in Togo", which also referenced the assault by Captain Kondo on the Applicant. 29. The Applicant further asserts that he filed a complaint with the national courts, but several years later, although the complaint was received by the Secretariat of the Public Prosecutor's office of the Court of Appeal of Lome and transmitted to the Togolese Republic's Minister of Justice and Keeper of the Seals, the Minister has failed to designate an investigating magistrate to investigate the Applicant's allegations. VIII. RESPONDENT'S REJOINDER 30. The Respondent maintains that the actions that the Applicant complains of as being violations of his rights are now statute barred under Togolese law. 31. In response to the Applicant's assertion that the assault on him was public and reported by several credible publications, the Respondent avers that the newspapers merely published statements made by the Applicant. Furthermore, the Respondent states that these newspaper publications are biased and partisan and as such cannot be relied on. 32. The Respondent also avers that the Applicant's submission of a civil party complaint to the Public Prosecutor at the Lome Court of Appeal does not comply with the provisions of A1iicle 68 paragraph 1 of the Togolese Code of Criminal Procedure, which provides that "any person who claims to have been harmed by a crime or offence may bring a civil action before the investigating judge". 33. In addition to this defect in the complaint, the Respondent submits that the Applicant has failed to follow-up and has no proof of the violations he alleges. IX JURISDICTION 34. The jurisdiction of the Comi in human rights matters is governed by A1iicle 9( 4) of the Court's Protocol (A/P.l/7/91), as amended by the 2005 Supplementary ri ~~ ~ Protocol (A/SP.1/01/05) which provides that the Court has jurisdiction to determine case of violation of human rights that occur in any Member State. 3 5. Mere allegations of human rights violation are sufficient to invoke the Court's human rights mandate. See THE REGISTERED TRUSTEES OF THE SOCIO ECONOMIC & ACCOUNTABILITY PROJECT (SERAP) V. FEDERAL REPUBLIC OF NIGERIA ECW/ CCJ/JUD/ 12/22 @ para 29. 36. In this case, the Applicant alleges the violation of his rights under the provisions of A1iicles 5, 7 (1) (d), 9 (2) and 11 of the African Charter on Human and Peoples' Rights and other international human rights instruments to which Nigeria is a State Pmiy. 3 7. Since this case concerns allegations of violations of human rights in the territory of a Member State, the Court declares it has jurisdiction to hear and determine the case. ADMISSIBILITY X 38. The Respondent argues m its Statement of Defence that this case is not admissible as the Applicant has not proved his victim status before the Court. This, according to the Respondent, is because the pieces of evidence supplied by the Applicant are weak and do not prove the allegations of human rights violations. 39. In response, the Applicant submits that the violations for which he is before this Court were well reported in the media, further proving the veracity of the facts he alleges. Thus, he submits that the evidence he has supplied proves that he has been a victim of human rights violations by the Togolese Republic. Analysis of the Court 40. Article 10 (d) of the Protocol of the ECOWAS Couii A/P.1/7/91 as amended by Supplementary Protocol A/SP.1/01/05 provides for access to the Court for " [i]ndividuals on application for relief for violation of their human rights; the submission of application for which shall: (i.) Not be anonymous; nor (ii.) Be made whilst the same matter has been instituted before another International Court for adjudication" . 41. Thus, three conditions must be cumulatively met before the case can be held admissible, i.e. the Applicant's status as "victim" must be established, the Applicant must not be anonymous, and the case must not have been submitted before another international court or tribunal. See DANIEL AGADA OKOH & 42 ORS V FEDERAL REPUBLIC OF NIGER ECW/CCJ/JUD/04/21 @ pg 16 Para 3 7. 42. In this case, the Applicant is well identified and not anonymous. There is no indication that this case has been submitted to another international court or tribunal. The Court will thus consider whether the victim requirement has been met in this case. 43. A victim is the person who suffered, directly or indirectly, any damage or pain (physical or mental injury), emotional suffering (for loss of family member or relative), economic loss (loss of properly) or any other damage that can be classified as a violation of human rights. See MATCH! DAOUDOU AND SOCIETE COMMERCIAL POLIVANTE (SCP) SARL-U v. STATE OF THE TOGOLESE REPUBLIC ECW/CCJ/JUD/38/22 @ para 169. 44. Thus, an applicant would meet the victim requirement if he/she canprimafacie establish that he suffered a human rights violation for which the Respondent is responsible. This is without prejudice to the proof of the alleged violations which is to be considered if the case is held admissible. 45. In this case, the Applicant claims to have suffered violation of his rights to freedom from inhuman and degrading treatment, freedom of expression and opinion, freedom of assembly, and fair hearing. These allegations make him a prima facie victim. 46. The Court therefore finds that this Application satisfies the admissibility criteria as provide in Article 10( d) of the Supplementary Protocol, and is therefore held admissible. XI. MERIT 4 7. The Applicant alleges violations of his rights to freedom from inhuman and degrading treatment, freedom of expression and opinion, freedom of assembly, and fair hearing. The Court will proceed to examine the alleged violations seriatim, to determine if they are es t:blished to the s~ o~ . a. Alleged violation of the right to freedom from inhuman and degrading treatment 48. The Applicant alleges that while leaving the Salem Methodist Temple in Lome, on Wednesday 1st September 2010, at about 1 p.m., a certain Captain Kondo hit him violently in the back with a baton. This caused the Applicant injuries to his right parascapular region. 49. The Applicant submits that this action violates his right to freedom from inhuman and degrading treatment under the provisions of Article 5 of the African Charter on Human and Peoples' Rights, Article 7 of the International Covenant on Civil and Political Rights (ICCPR), and Article 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 50. In response, the Respondent states that the Applicant has not proved that he suffered inhuman and degrading treatment. The Respondent argues that the medical certificate submitted by the Applicant does not prove that he was beaten by a law enforcement officer. Analysis of the Court 51. Article 5 of the African Charter on Human and Peoples' Rights provides that "Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited." 52. The prohibition on inhuman and degrading treatment is also provided for in Article 7 of the ICCPR and Article 16 of the CAT. 5 3. The Applicant's case is that he was beaten with a baton by one Captain Kondo - the lead team of policemen- and that amounts to an infliction of a cruel, inhuman and degrading treatment on him contrary to Article 5 of the African Charter. 54. In explaining the meaning of cruel, inhuman and degrading treatment, the Court has held that a treatment is inhuman if it is meted out to inteptionally inflict 11 M t ~ mental sufferings or great physical pains on the sufferer; such a treatment is cruel if it connotes a disregard for the fragility of the human person, and greatly hits human conscience; it is degrading, if it is meted out with a view to humiliate, debase or to touch negatively the human dignity of the person to whom it is inflicted. See BALDINI SALFO v. BURKINA FASO ECW/CCJ/JUD/13/12 repmied in (2012) CCJELR @ pg. 294 para 38. 55. In coming to a conclusion of this allegation, the Applicant bears the burden of proving that he suffered inhuman and degrading treatment by being beaten with a baton by a law enforcement officer. See HEIRS OF LATE CHEIKH TIDIANE DIOP V REPUBLIC OF SENEGAL ECW/CCJ/JUD/24/20 @ pg. 42 56. In this vein, the Applicant has submitted a medical certificate issued by Dr. M. K. Fiadjoe, Chief Doctor at the BIASA Clinic, on 01 September 2010. In the medical certificate, it is stated that Mr. Jean Pierre Fabre, 58 years old has repo11ed to the Clinic and told the Doctor that he has been beaten by a law enforcement officer. Dr. Fiadjoe notes inter alia that there are visible marks and lesions on Mr. Fabre's right parascapular region consistent with being beaten with a hard object like a baton or club. He states that Mr. Fabre is estimated to be partially incapacitated for 15 days. 57. The Applicant also submits in evidence a letter of complaint to the Public Prosecutor at the Court of Appeal of Lome. In the letter, the Applicant detailed how Captain Kondo threw grenades at his car and violently hit him in the back with a baton, causing him injury. 58. Additionally, in his Reply to the Statement of Defence, the Applicant annexes two newspaper reports which refer to the alleged assault on his person. The first is an article by www.letogolais.com, a news and general information site on Togo, which published on 07 September 2010, the article "FRAC-TOGO Press Conference 7th September 2010: Introductory statement by Jean Pierre FABRE". The article inter alia mentions that Jean Pierre Fabre was beaten w ith a baton by Captain Kondo in the afternoon of O 1 September 2010 while Mr. Fabre was leaving the Salem Methodist Temple. 59. The second newspaper article titled "The reign of immorality in Togo" which was written by Mr. Kossi Tino and published on Collectif V erite des Urnes TOGO DIASPORA on 11 September 2010, also referenced the assault by Captain Kondo on the Applicant. 60. The Couti notes that the Respondent does not categorically or expressly deny the Applicant's allegation of being beaten by a Togolese law enforcement officer. The Respondent rather argues that the Applicant has not proved the allegations of inhuman and degrading treatment as the medical certificate he presented is not legible and establishes no link with the allegations. 61. However, the Court is able to clearly read the medical certificate tendered and is persuaded of its authenticity and probative value, particularly in the absence of any persuasive evidence that impeaches or undermines its credibility. 62. The Court is of the opinion that the medical certificate strongly suppo1is the allegation that he was beaten with a baton. In the medical ce1iificate, Dr. Fiadjoe, Chief Doctor at the BIASA Clinic states that Mr. Jean Pierre Fabre, the Applicant, has visible marks and lesions on his right parascapular region consistent with being beaten with a hard object like a baton or club. The doctor also states that Mr. Fabre is likely to be incapacitated for fifteen days. It is equally instructive that Dr. Fiadjoe made these observations at 13 .40 Hours on 01 September 2010, less than an hour after the alleged assault on the Applicant. 63. The Court also notes that the newspaper statements of the 07 September 2010 on the assault on the Applicant by the police which was published six days after the alleged assault, as well as the article by Mr. Kosi Tino on 11 September 2010 are consistent with the allegation that the Applicant was beaten and wounded by Captain Kondo. 64. The Court considers that the totality of the evidence, especially in light of the contemporaneity of the medical certificate and the newspaper reports, support the conclusion that the Applicant was beaten with a baton which caused severe pain and injury. 65. Thus, the Court finds that the Applicant was subjected to cruel inhuman and degrading treatment by the law enforcement agents of the Respondent 66. This inhuman and degrading treatment of the Applicant by a Togolese law enforcement officer is attributable to the Togolese Republic. This is in view of the fact that under international law, a State is responsible for the acts and omissions of their agents, institutions or organs acting in their official capacity, even if such acts were committed outside of the scope of their official authority or in violation of domestic laws. Thus, where agents of a state violate the rights of an individual(s) these violations will be imputable to the State whether it was sanctioned by it or not, thereby establishing its international responsibility for the acts or omissions. AIRCRAFTWOMAN BEAUTY IGBOBIE UZEZI v. THE FEDERAL REPUBLIC OF NIGERIA ECW/CCJ/RUL/01/21 @ pg.19 para 41; REGISTERED TRUSTEES OF FACULTY OF PEACE ORGANISATION & 3 ORS V FEDERAL REPUBLIC OF NIGERIA ECW/CCJ/JUD/06/22 @ pg. 15 para 41. 67. The Togolese Republic is therefore liable for the acts of its law enforcement officer that has breached the right of the Applicant as held. 68. The Court therefore holds that the Applicant's right to freedom from inhuman and degrading treatment has been violated by the Respondent. b. Alleged violation of the right to freedom of expression 69. The Applicant alleges that he was prevented from entering the Salem Methodist Temple to attend a prayer session organised by the Collective of Opposition Democratic Parties on O 1 September 20 10. He claims that this denial of entry constitutes a violation of his right to freedom of expression as provided for in Articles 9(2) of the African Charter on Human and Peoples' Rights, Article 19 of the ICCPR and Article 19 of the Universal Declaration of Human Rights (UDHR). 70. The Respondent submits in response that the allegations are unfounded as the Applicant has supplied no proof that he was prevented from entering the place of worship. Analysis of the Court 71. Article 9(2) of the African Charter on Human and Peoples' Rights provides that " [ e ]very individual shall have the right to express and disseminate his opinions within the law". This is similar to provisions in Article 19 of the ICCPR and Article 19 of the UDHR. 121 ~ < ~ ~-f v VJ~ ~ 72. The right to freedom of expression protects the ability to express one's ideas or opinions freely through the various forms of communication. See NNAMDI KANU v. FEDERAL REPUBLIC OF NIGERIA& 2 ORS, ECW/CCJ/JUD/34/19 @ Pg. 23. 73. Thus, to establish a violation of the right to freedom of expression, the Applicant must show that he was prevented from expressing his ideas freely, or that he faced restrictions related to the free expression of his ideas. 7 4. However, in this case, the Applicant has not submitted any of evidence to support this allegation that he was prevented from entering the place of worship. Mere allegation cannot avail the Applicant in the instant case as the Court has reiterated severally that the burden of prooflies with the party asserting the fact, and this party will fail if the evidence offered is not sufficient to convince the Court of the veracity of the alleged fact. ADAMA VANDI v. STATE OF SIERRA LEONE ECW/ CCJ/JUD/32/22 @pg. 13 Para 48. 75.lt is the considered opinion of the Court that the Applicant has failed to prove the allegation against the Respondent and has not discharge the burden required of him by law. 76. The Applicant's claim in this regard fails for lack of proof and is therefore dismissed. c. Allegation of violation of the freedom of assembly 77. The Applicant submits that the establishment of the Gendarmerie system which prevented him from meeting with the collective of opposition political parties for a peaceful prayer session at the Salem Methodist Temple on 0 1 September 2010 is a violation of his freedom of assembly, as provided for in Article 11 of the African Charter on Human and Peoples' Rights, Article 21 of the ICCPR and Article 20 of the UDHR. 78. In response, the Respondent submits that the Applicant has supplied no proof of the allegation and as such, the Court should reject the allegation as unfounded. Analysis of the Court 79. Article 11 of the African Chaiier on Human and Peoples' Rights provides inter alia that "[e]very individual shall have the right to assemble freely with others". 80. The African Commission on Human and Peoples' Rights defines assembly as "an act of intentionally gathering, in private or in public, for an expressive purpose and for an extended duration. The right to assembly may be exercised in a number of ways, including through demonstrations, protests, meetings, processions, rallies, sit-ins, and funerals, through the use of online platforms, or in any other way people choose". See GUIDELINES ON FREEDOM OF ASSOCIATION AND ASSEMBLY IN AFRICA, para 3. 81. For the Applicant to establish a violation of his right to freedom of assembly, he has to demonstrate that inordinate restrictions have been placed on his right to freely assemble with others. 82. In this case, the Applicant has not placed any evidence before the Court to establish that he was denied the right to freely assemble with others at the Salem Methodist Temple on O 1 September 2010 83. It is the Applicant's responsibility to allege facts constituting a violation of the claimed human right, as well as to demonstrate such facts by offering evidence that creates in the Court a conviction of their veracity. SOCIETE CISSE TECHNOLOGIE v. STATE OF MALI ECW/CCJ/JUD/23/2021 @ Pg.37 para 126 84. It is imperative that the Applicant must sufficiently discharge the burden of proving an allegation in order to persuade the Court of the veracity of such evidence. Otherwise, where the burden of proof is not discharged, the Court will consider the claim as having failed. 85. Consequently, having found that that the Applicant failed to substantiate his claim the Court hold it lacks basis and is therefore dismissed. d. Allegation of violation of the right to be tried within a reasonable time by an impartial court 86. The Applicant alleges that on 26 November 2010, he wrote a letter of complaint to the Public Prosecutor of the Court of Appeal of Lome, indicating that a certain Captain Kondo, an officer of the Gendarmerie threw grenades at his car and hit him in the back with a baton causing him injury. The letter indicated that 16 ~ ~ the violent actions of Captain Kondo violate the relevant provisions of Atiicles 46, 47-b, 149 and 150 of the Penal Code in force at the time in Togo. 87. The Applicant submits that by vi1iue of Article 447 of the Criminal Procedure Code in force in Togo, complaints against judicial police officers must be brought before the Prosecutor General at the Court of Appeal who addresses them to the Minister of Justice, who must in turn appoint an investigating magistrate 88. However, since the complaint was received by the Public Prosecutor on 29 November 2010, no investigations have been carried out, and an investigating judge has not been appointed. 89. The Respondent in response submitted that the Public Prosecutor who received the Applicant's complaint has the discretion to prosecute or not, based on the facts of the case. Moreover, since filing the complaint, the Applicant has failed to follow-up, and the actions he complained of are now statute-barred under Togolese law. 90. The Respondent also claims that in submitting his complaint by way of a civil party complaint to the Public Prosecutor at the Lome Court of Appeal, the Applicant did not follow the right procedure spelt out in Article 68 ( 1) of the Togolese Code of Criminal Procedure, which provides that "any person who claims to have been harmed by a crime or offence may bring a civil action before the investigating judge". The Respondent thus submits that the Applicant should have submitted his complaint to an investigation judge rather than to the Public Prosecutor. Analysis of the Court 91. Article 7 (1) of the African Charter on Human and Peoples' Rights provides inter alia that "[e]very individual shall have the right to have his cause heard. This comprises: .... the right to be tried within a reasonable time by an impartial court or tribunal. " 92. The right to a fair trial encapsulated in Article 7(1) of the African Charter encompasses not only the trial proceedings themselves, but also the < investigative phase that precedes the trial. Article 7 ( 1) also emphasizes the importance of procedural fairness, due process and the protection of fundamental rights throughout the legal process, from the investigation to the final decision and res judicata. See GLORY OKOLI£ AND 2 ORS V FEDERAL REPUBLIC OF NIGERIA, ECWICCJIJ UD/38/24 at para 9 7. 93. Thus, the investigative phase must also proceed with reasonable expeditiousness from the moment a complaint is received. 94. The evidence the Applicant has placed before the Court in this case, and admitted by the Respondent, is that the Applicant filed a Civil Party Complaint with the Prosecutor General at the Lome Comi of Appeal on 26 November 20 l 0, and to date has not received any information about the progress of the case. An investigating judge has not been appointed, and the alleged perpetrator has not been brought before the Court. 95. The Court recalls Respondent's defense that the Applicant did not followed-up the complaint. 96. Signatories to international human rights instruments have an obligation to put in place measures to implement the rights enshrined thereof. SEE REGISTERED TRUSTEES OF JAMA' A FOUNDATION & 5 ORS V THE FEDERAL REPUBLIC OF NIGERIA & ANOR ECW/CCJ/APP/26/ 13, ECW/CCJ/JUD/04/20 Para 97 Page 26 97. This duty obliges the Respondent in fulfilment of its obligation to ensure the adherence of the principle of fair hearing and in the instant case the right to be heard. In that regard, a denial of this right implicated the right to access justice. States have a fundamental obligation to ensure access to justice, meaning individuals can seek and obtain remedies through formal or informal institutions for grievances, upholding human rights standards and the rule of law. Nevertheless, States have discretion as to how they structure their domestic legal and judicial system to ensure access to justice. 98. It should be noted that access to justice is not limited to the procedural mechanism for the resolution of disputes but includes other variables like the physical conditions of the premises where justice is dispensed, the quality of the human and material resources available thereat, the quality ~of justice ~ i ~ delivered, the time it takes for the delivery of justice, the moral quality of the dispenser of justice, the observance of the general principles of the rnle of law, the affordability of the cost of seeking justice in terms of time and money, the quality of the legal advisers that assist the litigants, the incorruptibility and impartiality of operators of the system see International Journal of human Rights. https:/ /commonweal th.sas .ac. uklhurnan-ri g,hts. 99. It is the considered opinion of the Com1 that the Respondent cannot invoke any omission or fai lure to follow-up by the Applicant to exonorate it from its own non-performance or breach of obligations incumbent upon it under international law. It is the duty of the State and not that of the complainant to ensure that his case is heard within a reasonable time. 100. In this case, as alleged the Applicant's complaint to the Public Prosecutor at the Lome Comi of Appeal in November 2010 - a period of over 14 years as at the time of this judgment .14 years pending for an investigation which is yet to be completed is well beyond the threshold of margin of appreciation for an obligation to hear a case within a reasonable time. See AZIAGBEDE KOKOU & 33 ORS, ATSOU KOMLAVI & 4 ORS, & TOMEKPE LANDU & 29 ORS V TOGO, ECW/CCJIJUD/07/13, at para 65 -66. 101. the The Court finds that the failure of the Respondent to investigate Applicant's complaint for over 14 years constitutes an unreasonable and un excusable delay. 102. The Court notes that the Respondent also argumed that the complaint was not submitted through the right procedure. However, this does not excuse the failure to communicate same to the Applicant since his complaint in November 2010. 103. The Court therefore holds that the Respondent has violated the Applicant's right to be tried within reasonable time contrary to Article 7 of the African Charier. XII. REPARATIONS I 04. Any violation of an international obligation that has produced damage entails the obligation to make reparations. HEMBADOON CHIA & 7 ORS V FEDERAL REPUBLIC OF NIGERIA & ANOR ECW/CCJ/JUD/21/ 18@pg. 33. I 05. Thus, having found in this case the violations of the right to freedom from inhuman and degrading treatment, as well as the right to trial within a reasonable time, the Court must award reparations that remedy these right violations. I 06. The Applicant in this case, in addition to declaratory reliefs seeking for the Court to adjudge that the Respondent has violated his rights, also seeks the following reliefs: • To ORDER the Togolese Republic to take all measures to investigate the complaint filed by the applicant relating to the incriminated actions; • To ORDER the Togolese Republic to pay the applicant a sum of One Hundred and Fifty Million (I 50,000,000) CFA Francs as damages / reparation for the harm suffered; • To ORDER the Togolese Republic to bear all costs; • ORDER AND ADJUDGE that the ensuing judgment will be executed within three (3) months of its delivery and that an execution report will be rendered to the Court. 107. The Court considers that the kind of reparation to be granted depends on the circumstances of each case. The Court, in making an order for reparation would have to consider the case of the Applicant and the nature of the reliefs sought by him or her. WOMEN AGAINST VIOLENCE EXPLOITATION IN SOCIETY (WAVES) v. SIERRA LEONE, ECW/ CCJ/JUD/37/ 19 @ pg. 29. I 08. In this case, having held that the Respondent has violated the Applicant's right to freedom from inhuman and degrading treatment, the Court considers that financial reparation is essential to restore the Applicant to the position he would have been had the violations not occurred. See KODJO ALAIN VICTOR CLAUDE v. REPUBLIC OF COTE D'IVOIRE ECW/ CCJIJUD/09/21 @ pg. 32 para 8 7. 109. The Court also finds it expedient to remedy the violation of the right to a trial within a reasonable time by ordering the Respondent to take all necessary steps to investigate the Applicant's complaint at the Lome Com1 of Appeal with expedition. XIII. COSTS 110. The Court recalls Article 66( 1) of its Rules of Procedure, which provides that: "A decision as to costs shall be given in the final judgment or in the order, which closes the proceeding". 111. Fm1hermore, Article 66(2) of the Rules of Procedure provides that "The unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party's pleadings" 112. The Applicant having applied for cost in this proceeding, the Court in line with the provision of the Rule orders the Respondent to pay the costs of the instant case. XIV. OPERATIVE CLAUSE 113. For the reasons stated above, the Court sitting in public after hearing both parties: As to jurisdiction: 1. Declares that it has jurisdiction to determine this case. As to admissibility 11. Declares the application admissible. As to merits of the case: n1. 1v. Declares that the Respondent has violated the Applicant's right to freedom from inhuman and degrading treatment. Declare that the Respondent has violated the Applicant's right to a fair trial within a reasonable time. 2 1 As to reparation: v. v1. Orders the Respondent to pay to the Applicant damages in the sum of CFA 6.5 million Orders the Respondent to take all necessary measures to investigate the Applicant's complaint at the Lome Court of Appeal As to compliance and reporting: v11. Orders the Respondent State to submit to the Court within six months from the date of the notification of this judgment a report on the measures taken to implement the orders set forth herein. As to Costs: vu 1. The costs of the action shall be assessed by the Registry and shall be borne by the Respondent. Hon. Justice Ricardo Claudio Monteiro GON<;AL YES-Presiding Hon. Justice Sengu Mohamed Koroma-Member Hon. Justice Dupe A TOKI -Judge Rapporteur ..... .. ~ .. ASSISTED BY: Dr. Yaouza OURO-SAMA- Chief Registrar Done in Abuja, this 9th April 2025 m Portuguese. into French and 22