Suleymane Guengueng, et al. v. Senegal

The complainants were six Chadian nationals living in Chad who alleged they had been tortured by the agents of the state answerable directly to the then President of Chad, Hissène Habré. They lodged a complaint in January 2000 against Habré in Senegal, where he had taken refuge. The complaint was dismissed on the grounds of a lack of jurisdiction to take cognizance of acts of torture committed by a foreigner outside Senegalese territory, based on Article 669 of the Senegalese Code of Criminal Procedure. This decision was confirmed in March 2001 by the Senegalese Court of Cassation which stated that no procedural text conferred on the Senegalese Court universal jurisdiction to prosecute and judge, if they are found on the territory, presumed perpetrators of or accomplices in acts of torture when those acts have been committed outside Senegal by foreigners.

In September 2005, a Belgian judge issued an international arrest warrant against Habré charging him with genocide, war crimes, torture and other serious violations of international humanitarian law. In November 2005, the Dakar Court of Appeal stated that it lacked jurisdiction to rule on Belgium’s Request for Extradition.

Senegal ratified the Convention in 1986 and made the declaration under Article 22 in 1996. The complainants alleged that Senegal had violated Article 5 by failing to take appropriate legislative measures to establish universal jurisdiction in cases of torture and Article 7 by failing to prosecute or extradite Habré.

[Adapted from INTERIGHTS summary, with permission]

The Committee held that Senegal violated articles 5 and 7.

Senegal is obligated to take measures under article 5(2) and Senegal does not dispute that it has not taken such measures. As a reasonable time has passed for Senegal to fulfill its obligation, it violated the article.

Under Article 7, the State whose jurisdiction a person alleged to have committed offences under Article 4 is found must, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. The obligation to prosecute does not depend on the prior existence of a request for extradition nor can it be excused because of the complexity of judicial proceedings. The alternative of extradition is only available when a request has been made and puts the State in a position to choose between extradition or domestic prosecution. Senegal has refused to extradite Habré to Belgium and to prosecute him, violating article 7

[Adapted from INTERIGHTS summary, with permission]

“7.16 However, the absence of domestic codification of universal jurisdiction has not allowed Hissène Habré complete impunity. Senegal applies the principle aut dedere aut judicare. Any request for judicial assistance or cooperation is considered benignly and granted insofar as the law permits, particularly when the request relates to the implementation of an international treaty obligation.

7.17 In the case of Hissène Habré, Senegal isapplying article 7 of the Convention. The obligation to extradite, unless raised at another level, has never posed any difficulties. Consequently, if a request is made for application of the other option under the principle aut dedere aut judicare, there is no doubt that Senegal will fulfil its obligations.”

“9.7 The Committee recalls that, under article 7 of the Convention, “the State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution”. It notes that the obligation to prosecute the alleged perpetrator of acts of torture does not depend on the prior existence of a request for his extradition. The alternative available to the State party under article 7 of the Convention exists only when a request for extradition has been made and puts the State party in the position of having to choose between (a) proceeding with extradition or (b) submitting the case to its own judicial authorities for the institution of criminal proceedings, the objective of the provision being to prevent any act of torture from going unpunished.

9.8 The Committee considers that the State party cannot invoke the complexity of its judicial proceedings or other reasons stemming from domestic law to justify its failure to comply with these obligations under the Convention. It is of the opinion that the State party was obliged to prosecute Hissène Habré for alleged acts of torture unless it could show that there was not sufficient evidence to prosecute, at least at the time when the complainants submitted their complaint in January 2000. Yet by its decision of 20 March 2001, which is not subject to appeal, the Court of Cassation put an end to any possibility of prosecuting Hissène Habré in Senegal.”