Mkandawire v Republic of Malawi (Application No. 003/2011) [2014] AfCHPR 48 (28 March 2014)

AFRICAN UNION J l/i\ jk îü t UNION AFRICAINE UNIÂO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS COUR AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES Application 003/2011 In the matter of URBAN MKANDAWIRE APPLICANT THE REPUBLIC OF MALAWI RESPONDENT RULING The Court composed of: Sophia A. B. AKUFFO, President; Bernard M NGOEPE, Vice-President; Gérard NIYUNGEKO; Fatsah OUGUERGOUZ; Augustino S. L. RAMADHANI Elsie N. THOMPSON; Sylvain ORÉ; El Hadji GUISSE and Ben KIOKO, Judges: and Robert ENO, Registrar In accordance with Article 22 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (the Protocol) and Rule 8(2) of the Rules of the Court (the Rules), Judge Duncan Tambala, Member of the Court and a National of Malawi did not hear the application. In accordance with Rule 66(4) of the Rules Judge Kimelabalou Aba did not hear the application. In chambers, after deliberation, delivered the following ruling; I. THE NATURE OF THE MATTER 1. The Court handed down its judgment on 21 June 2013 in an Application which had been brought by the Applicant against the Respondent. By a letter dated 16 August, 2013, the Applicant made an application to the Court containing two requests: for the review of the Court’s judgment and also for the interpretation of the judgment. The application was purportedly brought in terms of Rules 67 and 66, respectively, of the Rules. In this Application, the Applicant is self­ represented. 2. The Registrar served the application on the Respondent on 28 August, 2013, requiring him to respond within thirty (30) days of the receipt of the notification. That time was extended by fifteen (15) days, that is, up 3. In his application, as stated earlier, the Applicant submitted two requests; the Court has dealt with the request for interpretation first. II. REQUEST FOR INTERPRETATION IN TERMS OF RULE 66 4. The request for interpretation contains the following eight ‘points’ seeking the so called interpretation: a) Paragraph 29 of the judgment in terms of Art 15 of the African Charter on Human and Peoples’ Rights (the Charter): The Applicant complains that his exhibits “UM Potani" and ‘‘UM HC Appeal” were not referred to in the judgment. b) Paragraph 29 of the judgment in terms of Art 7 of the Charter: The Applicant wants the Court to interpret that paragraph and determine whether or not the Industrial Relations Court of Malawi violated Art 7 of the Charter and whether or not that Court violated some provisions of the Constitution of Malawi when it overruled the High Court of Malawi. c) Paragraphs 34-40 of the judgment in terms of Art 56(5) of the Charter: The Court decided that the Applicant had not exhausted local remedies while the African Commission of Human and Peoples’ Rights (the Commission) in its 46lh Ordinary Session found that he had done so. So, the Applicant wants the Court to interpret paragraph 38.2 of the judgment to determine whether or not he had exhausted local remedies. d) Paragraph 41 of the judgment in terms of Art 56(7) of the Charter: The Applicant wants the Court to determine whether or not it is still open to him to re-file this case with the Commission since the Court did not “settle" his case in terms of Art 56(7) of the Charter. e) Paragraphs 19 and 29 of the Judgment in terms of Art 26 of the Charter: The Applicant points out that the Court rejected his legitimate complaint of the existence of a blood relationship between Justice Tembo of the Supreme Court of Appeal of Malawi an the student called Tembo who was one of the complainants against the Applicant. So, the Applicant wants to know whether or not the Court resorted to Rule 44 D4 of the Rules of the European Court of Human Rights in making that determination. f) Interpretation of the date of the judgment in terms of Art 28(1) of the Protocol and Rule 59(2) of the Rules of Court: The two cited provisions require the Court to give judgment within ninety (90) days after deliberation. The Applicant wants to know whether it was within the province of the Court to deliver the judgment on 21 June, 2013, instead of 10 June, 2013. g) Interpretation of the date of judgment in terms of Art 15(2) of the Rules of Procedure of the IACHR: The Applicant points out that whereas nine judges heard the case in Mauritius the judgment indicates that it is by a majority of seven to three, that is, a total of ten judges. h) Interpretation of the judgment in terms of Art 30(3) of the Rules of Procedure of the IACHR and Rule 36 of the Rules: In paragraph 29 of the judgment the Court made a finding that the Applicant had not refuted the Respondent’s submission regarding the relationship of Justice Tembo and student Tembo contained in documents “Malawi 1” and "Malawi 2” which were sent to him on 30 November, 2012. He asks “How can one respond to a document that I don’t know the content?” 5. The Applicant has correctly referred to Rule 66 of the Rules but the authority for that Rule is Article 28(4) of the Protocol which reads: “4. The Court may interpret its own decision". For if----- -* 0,,l~ ------1~- 2. The Application shall state clearly the point or points in judgment on which the operative provisions of interpretation is required”. the 6. Interpretation of a judgment can be sought from the Court “for the purpose of executing” the judgment. In the present case the judgment dismissed the Application on the grounds that local remedies had not been exhausted; it imposes no positive obligation capable of being executed. Therefore, there cannot be an application for interpretation of the judgment in terms of Art 28(4) of the Protocol as read together with Rule 66 of the Rules because there is no execution that is possible under the judgment of the Court. 7. Moreover, the Application does not comply with Rule 66(2) in that it does not “state clearly the point or points in the operative provisions of the judgment on which interpretation is required”. On the contrary, the Application is generally incoherent and incomprehensible. The eight ‘points’ posed by the Applicant can never be points for interpretation as they do not relate to the operative paragraphs of the judgment. On a number of issues the Applicant asks for the Court’s opinion, such as whether he can go back to the Commission. 8. However, there are two points which, for the avoidance of confusion, need to be explained. One, the Applicant asked whether it was within the province of the Court to deliver judgment on 21 June, 2013, instead of 10 June, 2013. The Applicant does not tell us from where he came up with the date of 10 June, 2013. In any case, it is not important for the Court to determine that request, since it has already cited what Art 28(1) of the Protocol and Rule 59(2) of the Rules provide. To clear the mind of the Applicant of anv confusion, the President when closina the delivery, parties will be notified by the Registrar, and, therefore, this matter is adjourned sine die." It should be noted that when deliberations are concluded is an internal matter of the Court. 9. The second point is that the Applicant recollects, and rightly so, that he appeared before nine judges in Mauritius but the judgment states that seven judges voted for the decision and three judges voted against it. He points out that it is six judges, not seven, who voted for the judgment. The Court concedes that there is a typographical error and the record should have read six and three judges instead of seven and three and a corrigendum has been issued. Nevertheless, this is not a point for interpretation. 10. The request for the interpretation of the judgment satisfies the requirements of Rule 66(1) with regard to the time limit of 12 months within which to file an application for interpretation of a judgment. However, it fails to satisfy the requirements of Article 28(4) of the Protocol, and of Rule 66(2) of the Rules. In view of the foregoing, the Application for interpretation of the judgment cannot be entertained. III. APPLICANT’S REQUEST FOR REVIEW IN TERMS OF RULE 67 11. The Court has power provided by Art 28 of the Protocol to review its decision: “2. The judgment of the Court decided by the majority shall be final and not subject to appeal. 3. Without prejudice to sub-Article 2 above, the Court may review its decision in the light of new evidence under conditions set out in the Rules of Procedure”. Rule 67 (1) of the Rules reads: “Pursuant to Article 28 (3) of the Protocol, a party may apply to the Court to review its judgment in the event of the discovery of evidence, which was not within the knowledge of the party at the time the judgment was delivered. Such application shall be filed within six (6) months after the party acquired knowledge of the evidence so discovered". 12. An Applicant must therefore show in the Application “the discovery of evidence, which was not within the knowledge of the party at the time the judgment was delivered”. 13. In his application, the Applicant purports to quote two portions of the Court’s judgment, which he claims constitute, as he puts it, “new piece of information”. 13.1. Firstly, he claims that the first “piece of information” is “presented" judgment, which he inaccurately quotes as follows: in paragraph 27 of the “In Malawi there is a law or custom which precluded a litigant who is not a licensed practitioner or a lawyer to address the Court from the Bar and when I appealed in the High Court against the decision of the Industrial Relations Court, I reneged (sic) to ague (sic) my appeal from anywhere else but decided to filed (sic) by appeal to the Supreme Court against the decision of the Industrial Relations Court". 13.2. Secondly, he says that the next “new piece of information" is “presented" in paragraph 37 of the judgment, which, he agai inaccurately quotes as follows: “I was the one who curtailed the itinerary of the recourse my case to the national courts in Malawi by submitting five copies out of seven copies of various judgments of the courts in Malawi relied upon by the African Court in its judgment dated June 21, 2013”. 14. . It should be noted, from the outset, that Article 28 (3) requires that the process of review must be without prejudice to Article 28 (2); in other words, such a process may not be used to undermine the principle of finality of judgments enshrined in Article 28 (2), which states that there shall be no appeal. It is against this background that the Applicant’s application for review must be considered. 14.1 The Applicant inaccurately cites the Court’s judgment in respect of both paragraphs of its judgments. Paragraph 27 of the judgment reads: that court “The Applicant appealed against the above judgment to the High Court as he was not satisfied with it. When the Applicant, who is neither a licensed practitioner nor a lawyer, appeared before the High Court, he wanted to address licensed practitioners would do. This was denied to him in terms of the practice before the courts in that country; he was, however, free to argue his case from where people who were not practitioners would do. He however decided not to argue from anywhere else; instead, he decided to appeal to the Supreme Court of Appeal, for the third time”. the Bar where from As far as paragraph 37 of the Judgment is concerned, the contents thereof are not anywhere near what Applicant claims it contains; what he presents as paragraph 37 cannot be located in the judgment. Therefore, while what inaccurately presents as paragraph 27 of the judgment at least captures the paragraph’s substance, what he presents as paragraph 37 is incomprehensible an is not part of the judgment. the Applicant 14.2 Furthermore, what the Applicant presents as “new piece of information" is in fact neither new, nor “evidence" at all as contemplated in Article 28 of the Protocol, or Rule 67 (1) of the Rules, as it purports to be the findings of the Court, contained in its judgment. The new evidence contemplated by the Article and the Rules is evidence, which was not previously known by the party the Applicant’s submissions constitutes any “evidence” which was not known to the party at the time the Court handed down its judgment. concerned. Nothing contained in 15. The request for review satisfies the requirements of Rule 67(1) with regard to the time limit of six (6) months within which to file an application for review of the judgment. However, it fails to comply with the requirements of Article 28 (3) of the Protocol, as well as Rule 67 (1) and (2) of the Rules. 16. Although the Respondent has not filed a reply to the Application, this does not cure the defects in the Application, or add to it. For all the reasons given above, the Court decides as follows: 1. The Applicant has complied with Rule 66(1) with regard to the time for file an application to limit of 12 months within which interpretation of a judgment; 2. The application for interpretation of the judgment fails and is struck out; 3. The Applicant has complied with Rule 67(1) with regard to the time limit of six (6) months within which to file an application for review of a judgment from alleged date of discovery of new facts; 4. The request contained in the Application for the review of the Court’s judgment of June 2013 is inadmissible and is struck oi The Court will not therefore go into the merits of the request. Signed: Sophia A. B. AKUFFO, President Bernard M. NGOEPE, Vice- President Gérard NIYUNGEKO, Judge Fatsah OUGUERGOUZ, Judge Augustino S. L. RAMADHANI, Judge Elsie N. THOMPSON, Judge Sylvain ORE, Judge Ben KIOKO, Judge; and Robert ENO, Registrar Done in Arusha, this Twenty-Eighth day of the month of March in the year Two Thousand and Fourteen, in English and French, the English text being authoritative. Pursuant to Article 28(7) of the Protocol and Rule Court, the individual opinions of Judges Niyungeko annexed to this Ruling. 60(5) of the Rules of and AFRICAN UNION ¿¡Ji\ j k î î l UNION AFRICAINE UNIÂO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS COUR AFRICAINE DES DROITS DE L’HOMME ET DES PEUPLES if • / Urban Mkandawire v. Republic of Malawi (Application No. 003/2011) Application for interpretation and review of the judgment of 21 June Separate Opinion of Judge Gérard Niyungeko 1. In its judgment of 28 March 2014 in the matter of Urban Mkandawire v. The Republic of Malawi, Application for interpretation and review of the judgment of 21 June 2013, the Court concluded that the request for review was inadmissible, in the absence of new evidence which was not known to the Applicant when the first judgment of the Court was rendered (Article 28(3) of the Protocol establishing the Court) (herein after the Protocol) and Rule 67 of the Rules of Court (herein after, the Rules)) (paragraphs 16 and 15). It also concludes that the application for interpretation fails and is struck out, notably on the ground that the points raised are not related to the operative provisions of the judgment in question(Article 28(4) of the Protocol and Rule 66 of the Rules) (paragraphs 16 and 7). 2. I agree with the conclusions reached by the Court on both issues; I however differ with it on the fact that, with regard to the application for interpretation, in spite of its principled position stated above, it decided to interpret Article 28(1) of the Protocol and Rule 59(2) of the Rules, and to consider the Applicant’s grievance on the composition of the Court which rendered the judgment of 21 June 2013 mentioned above. I. Interpretation of Article 28(1) of the Protocol and Rule 59(2) of the Rules 3. Article 28(1) of the Protocol provides that «[t]he Court shall render its judgment within ninety (90) days of having completed its deliberations»1. Rule 59(2) of the Rules, which is aligned to the English version of Article 28(1) of the Protocol, provides that « [t]he decision of the Court shall be rendered by the Court within ninety (90) days from the date of completion of the deliberations ». 4. In his application, the Applicant requested for the interpretation of the date of the judgment rendered on 21 June 2013 in terms of these two provisions, and asked the Court whether it was ‘‘within the province of Article 28(1) of the Protocol and Rule 59 (2) of the Rules of the Court for the Court to deliver its judgment on 21/6/2013; 11 days after the due date of 10/6/2013 had elapsed”. 5. In its judgment of 28 March 2014, the Court considered this matter and responded in substance that the deadline of ninety days starts running from the end of deliberations and that the final date is an internal matter of the Court (paragraph 8). 6. In my view, the Court did not have to respond to such a question. In fact, first of all, this question is not related to the operative provisions of the judgment to be interpreted. In terms of Rule 66(2) of the Rules, the application for interpretation of a judgment must « state clearly the point or points in the operative provisions of the judgment on which interpretation is required ». This means that the application for interpretation can only concern the operative provisions (which excludes notably, the part of the judgment dealing with reasons), 'in its French version, this provision provides for a different rule ; « La Cour rend son arrêt dans les quatre-vingt-dix (90) jours qui suivent la clôture de l'instruction de l ’affaire" (italics added) and that in the same manner, therefore, the Court can only interpret a point which is part of the operative provisions of the judgment in question. The operative provisions of the judgment of 21 June 2013 provides as follows: « The Court declares this application inadmissible in terms of Article 6(2) of the Protocol, read with Article 56 (5) of the C harter» (paragraph 41). The Applicant’s request for the interpretation of Article 28(1) of the Protocol and Rule 59(2) of the Rules mentioned above is in no way related to these operative provisions which have to do with the inadmissibility of the application for failure to exhaust local remedies. It is even strictly unrelated to the reasons of the judgment. It concerns an issue which is outside the scope of the judgment. Besides, the Court itself had just admitted this in one of the preceding paragraphs of its judgment where it declared that « [l]he eight ‘points’ posed by the Applicant can never be points for interpretation as they do not relate to the operative paragraphs of the judgment» (paragraph 7). 7. The Court justifies its decision to consider this point in spite of the affirmation it just made, in saying that there was a need to remove any doubt on the issue. This justification is however not convincing. The same need to remove any doubt could also be felt in relation to the six other points raised by the Applicant in his application for interpretation which the Court however decided to ignore; and the Court also failed to explain why the interpretation of Article 28(1) and Rule 59(2) had to be treated differently from the other points. The selection of points which the Court did not have to interpret, but which it nevertheless interpreted, necessarily appears to be arbitrary. 8. Further, parts of the judgment in which the Court gives its interpretation of Article 28(1) of the Protocol and Rule 59(2) of the Rules do not even constitute obiter dicta. It is generally acknowledged that a judge may include obiter dicta in his judgment. Obiter dictum is a Latin expression which means ‘said in passing’ and which « qualifies an argument which does not fall within the ambit of ratio decidendi, which is not invoked to make a decision»2. It is an argument which is not strictly necessary to justify the decision of the judge. In the instant case however, these parts want to express a decisive and compulsory interpretation of the Article and Rule concerned. 9. Furthermore, in any case, the Court does not have to, without cause, exercise legal instruments. its mandate of interpreting human rights incidentally is charged with The Court legal instruments both in contentious matters (article 3 of the Protocol) and in advisory matters (Article 4 of the Protocol). interpretation of human rights the It is a mandate which it has to carry out primarily and autonomously within the framework of its dual jurisdiction and in respect of laid down procedure, not just in passing, and not at the sidelines of the interpretation of the operative provisions of a judgment. It is also a mandate which it has to discharge in a proper manner, that is, by applying notably, the rules of interpretation of international treaties, as provided under Articles 31 to 33 of the Vienna Convention on the Law of Treaties of 23 May 1969. In the instant case, by giving a hasty and incidental interpretation of Article 28(1) of the Protocol, the Court took the risk of giving an incomplete interpretation of this article, without paying adequate attention to the above- mentioned provisions of the Vienna Convention on the Law of Treaties. 10. Lastly, if it was the intention o f the Court to provide an advisory opinion, it is evident, under Article 4 of the Protocol, that it does not have the jurisdiction to do so when the request is made by an individual. 2 Lexique des termes juridiques 2014, Serge GUINCHARD et al. ed. , 21® ed., 2013, p. 635. According to Black's Law D ictionary, obiter dictum, is « [a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive)" (Bryan A. GARNER, ed., 9th ed , 2009, p. 1177). It is important to underscore this, because the Court seems to understand the Applicant’s requests as requests for the “Court’s opinion” “on a number of issues" (paragraph 7). 11. For all these reasons, the Court ought to have abstained from responding to the application for interpretation of Article 28(1) of the Protocol and Rule 59(2) of the Rules, in its judgment of 28 March 2014. 11. Consideration of the Applicant’s grievance on the composition of the Court which rendered the judgment of 21 June 2013 mentioned above. 12. In his application for interpretation of the Judgment of 21 June 2013, the Applicant also requested for the interpretation of « the date of the Judgment dated June 21, 2013 in terms of Article 15 (2) of the Rules of Procedure of the IAHRC » [sic], in pointing out that whereas in the public hearing he appeared before nine judges, the judgment states that it was rendered by ten judges. 13. In its 28 March 2014 judgment, the Court took time to respond in the following words: « The Court concedes that there is a typographical error and the record should have read six and three judges instead of seven and three and a corrigendum has been issued. Nevertheless, this is not a point for interpretation» (paragraph 9). it 14. In my view, the Court did not have to deal with this issue in its is not a matter for judgment. Firstly, as admitted by the Court, interpretation (this thus places it outside the jurisdiction of the Court in the interpretation of judgments). Secondly, the Court does not have to correct simple typographical errors in a judgment on the interpretation of an earlier decision. In its practice, the Court corrects such errors through an erratum attached to the judgment in question. This approach would have been sufficient to solve the problem. In my view, a judicial decision of the Court does not seem to be the right place to deal with such issues. Judge Gérard Niyungeko AFRICAN UNION J j i \ M S UNION AFRICAINE UNIÀO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES Urban M kand aw ire v. The Republic o f Malawi (A p plication No. 001/2013) Separate Opinion of Judge Fatsah Ouguergouz inadm iss ibility o f the applica tion s for 1. Even though I subsc ribe to the conclu s io ns r ea ch cd by the Court co n cer n in g the interpretation and r ev iew o f its j u d g m e n t o f 21 J une 2013, filed by Mr. U r b a n M k a n d a w ire , I do not entirely share the rea so n in g ad o p ted to arrive at these co n clu s io n s and w ould like to explain why. I - Con cerning the application for interpretation 2. In p a r agra ph 6 o f the pr esent j u d g m e n t , the Co urt notes, and rightly so, that in term s o f Rule 66 (1) o f the Rules, any party m a y request the C o u r t to give an interpretation “ for the p u r p o s e o f ex ecu tin g a j u d g m e n t ” , and that, in the instant case, the j u d g m e n t for wh ich interpretation is sought, has declared that the local r em ed ie s by the application Applicant. The C o u r t then points out that the j u d g m e n t in questio n im po se sno obligation ca p a b le o f bei ng e x ecu ted and c o n clu d es that the application for interpretation is not pos sible in terms o f the relevant pro visions o f the Protocol and the Rules. In m y op inion, that is w h a t w o u ld hav e b e e n e n o u g h to say on the matter. inad missible for failure o f exhaus tio n is 3. The C o u r t h o w e v e r d e e m e d it ne ce ssa ry to co n s id e r w h e th e r a second condition u n d e r Rule 66 o f the Ru les was met, that is to say that the application the op erati ve pro vis ions o f the in shall “ state clearly j u d g m e n t on w h ic h interpretation is r e quir ed” . the point or points that regard, the contrary, 4 . In “ gener ally that the nine “ p oin ts ” m en ti o n e d by the A pplicant can nev er be points for interpre tation.'in is, on thatthe application i n c o m p r e h e n s i b l e ” , and co n c lu d e s the Co urt notes inco he ren t and 1 1 would like to underline here that one o f the nine «points» referred to his application relates to paragraph 41 o f the 21 June 2013 judgm ent, operative part (see paragraph 4 (d) o f the present judgment); it is Commission and not for the African Court to respond to such a question. m y view , the C o u r t ought to ha v e en d ed its an alysis on this con clus ion and p r o c e e d e d to c o n s id e r the application for review. that, the C o u r t do es not only 5. In spite o f this neg ative con cl usio n, the Co ur t h o w e v e r dec ided that there were two “ p o i n t s ” whic h n eed ed clarificatiorTf or the a v o id a n c e o f d o u b t ” . By the application for doi ng interpretation filed by the Applicant, but doe s so without ex plaining w h y it focuses on these tw o “ p oints ” in particular. Equally uncl ea r is the assertion m a d e in P ar ag rap h 8 o f the j u d g m e n t that “ it is not im po rtant for the Court to d e t e r m in e the request, since it has alr ea dy cited wh at Article 28 ( I ) o f the Protocol and Rule 59 (2) o f the Rules p r o v id e ” . implicitly accept 6. T h e Co urt fu rth e r ga v e clarification on the 90 da ys Rule co n tain ed in Article 28 (1) o f the Proto co l by noting that “ w h e n del iberations are co n clu d ed is an internal m atter o f the C o u r f ’and adm i tte d that there w as a typo graph ical error in the the publicatio n o f a corrigendum. J u ne 2013 which j u d g m e n t o f 21 resulted in 7. I a m o f the vie w that the d e v e lo p m e n ts in P ar ag ra phs 8 and 9 o f this j u d g m e n t are ta n ta m o u n t to “just if ic a ti o n s ” which s hou ld not have been given, especially with regard to th e application o f the 90 days rule, the m e a n i n g o f which remains up th er efore a v o id e d such developm ents. to n o w a m b i g u o u s . 2 T h e Co urt should have 8. To s u m m a r i z e , the Court, in the instant case, could sim ply hav e rejected the application w ith o u t g o in g into all the different co ns id e ra ti ons co nta ined in the e x a m i n a ti o n o f similar par a g ra p h s 7, 8 and 9 o f the j u d g m e n t . applications, w h i c h are man ife stly u n f o unded, the Court could in the future dr aw inspiration fro m Rule 80 (3) o f the Rules o f the E u r o p e a n Co urt o f H u m an Rights w h ic h p ro v id e s that “the original C h a m b e r m a y decide o f its o w n motion to refuse the request on the groun d that there is no reason to wa rra nt considering In it” . II - C o n c e r n in g the application for review 9. 1 do not sh are the interpretation o f p a ragra phs 2 and 3 o f Article 28 o f the Protocol m ad e by the Co urt in par ag ra ph 14 o f the present j u d g m e n t. The ex pr ession “ w ith o u t pr eju d ic e” used in p a r agra ph 3 o f this Article should, in my 2 It should indeed be noted that there is a discrepancy between the English and French versions o f this provision: the English version refers to the completion o f the «deliberations» o f the Court while the French version refers to the completion o f the «instruction» o f the case, that is to say all the procedural steps (filing o f written and oral arguments by the parties) before the matter can actually be decided by the Court. op inion, s im ply be c o n c e i v e d as prov id in g for an exce ption to the princ iple o f the “ final” c h a r a c t e r o f the j u d g m e n t s o f the Court enshrine d in the pr ec ed ing paragraph. 10. 1 a m also o f the view that the Co urt s h o u ld h av e clearly spell out the three cond itions for ad m is sibility o f an application for r ev iew as pr ovid e d for by the Protocol and the Rules, that is to say that the application 1) must contain new e v i d e n c e d ) w h i c h the C o u r t “ o r ” the A p p lic a n t had no k n o w l e d g e o f w h en the jud gm en t was b e i n g ren dered , and 3) to be subm itted within six m onths o f the date the said par ty d isco v e red the n e w evidence. 11. In so doing, the Co ur t could hav e taken a d v a n ta g e o f this oc ca sion to m ak e a useful clarification on s o m e o f the w e a k n e s s e s co ntain ed in the Protocol and the Rules on this issue. 12. T h e d is c r e p a n c y b etw een the English and F r e n c h versions o f pa rag ra ph 3 o f Article 28 o f the Protocol could indeed explain w h y one o f the three co nditions which it poses is not identical to that o f p a r agra ph 1 o f Rule 67 o f the Rules. 13. T h e Fren ch version o f p a r a g r a p h 3 o f Article 28 o f the Protocol m ak es it possible for the Court to r ev iew its j u d g m e n t in the light o f new evide nce “ which w as not w ithin its k n o w l e d g e at the t im e o f its d e c i s io n ” ; for its part, the English version o f this par ag ra ph does not contain such a condition. 14. As for p a r a g r a p h 1 o f Rule 67 o f the Rules, both the E nglis h and French versions prov ide that it is the “ par ty ” which files the application for review, that is not s u p p o se d to have had k n o w l e d g e o f the new ev idence at the time the j u d g m e n t w a s ren dered . 15. In this regard, it is important to point o ut that the instru men ts g o v e r n in g the f unction in g o f o th e r international C ourts and dealing with the issue o f revision or review, r eq u ire that both the Co ur t and the par ty reques ting the r eview must hav e been u n a w a r e o f the new fact; this is for e x a m p l e pr ovided for by Article 25 o f the Protocol es tablish in g the C o u r t o f Ju stice o f the E c o n o m i c C o m m u n i t y o f W es t A f ric a n States,3 Ar tic le 48 (1) o f the Protocol es tablishing the African (1) o f the Statute o f the Court o f J ustice and H u m a n R ights ,4 Article 61 ’ «An application for revision for a decision may be made only when it is based upon the discovery o f some fact o f such a nature as to be a decisive factor, which fact was, when the decision was given, unknown to the Court and also to the party claiming revision, provided always that such ignorance was not due to negligence». 4 «An application for revision o f a judgm ent may be m ade to the Court only when it is based upon discovery o f a new fact o f such nature as to be a decisive factor, which fact was, when the judgm ent was given, unknown to the Court and also to the parly claiming revision, provided that such ignorance was not due to negligence». International C o u r t o f Justice" and Article 80 ( I ) o f the Rules o f the European Court o f H u m a n Rig hts.6 16. W h at is ev en m o r e fu ndam en tal is the fact that these three instru men ts refer to the existe nce o f a n e w “ fa ct” and not to a new “ e v i d e n c e ” , w h ich is quite different; they also pro vid e fo r tw o other important co nd itio ns , that the party ap plying for revision did not negligently ignore the n e w factand that this new fact s ho uld be o f suc h a nature as to be a “ decisiv e factor” on the verdict o f the m att er dec ided b y the disputed j u d g m e n t. 17. In m y view, these ques tio ns relating to the m e a n in g to be given to Article 28 (3) o f the Protoco l and Rule 67 (1) o f the Rule sought to have been given at least as m u ch attention by the Co ur t as the ques tion relating to the m e a n in g to be given to Article 28 (1) o f the Protocol and Rule 59 (2) o f the Rules, relating to the 90 days d e a d l in e in which the Court m u s t ren der its j u d g m e n t s . 18. Lastly, I w o u ld like to under line that in the operative part o f the j u d g m e n t, the Co urt d e c id e d to reject the application for interpretation w h e r e a s in its r ea so ning it m a d e a decision on tw o o f the nine “ po in ts ” co n tain ed in the request o f the Applicant. 5 «An application for revision o f a judgm ent may be made only when il is based upon the discovery o f some fact o f such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence». l) «A party may, in the event o f the discovery o f a fact which might by its nature have a decisive influence and which, when a judgm ent was delivered, was unknown to the Court and could not reasonably have been known to that parly, request the Court, within a period o f six months after that party acquired knowledge o f the fact, to revise that judgment». The American Convention o f Human Rights, the Statute as well as the Rules o f the Inter- American Court o f H um an Rights, do not contain provisions dealing with revision o f judgm ents; these three instruments make reference only to the issue o f interpretation o f judgments.