Jérôme Bougouma and Others v Burkina Faso (ECW/CCJ/APP/15/17; ECW/CCJ/JUD/08/18) [2018] ECOWASCJ 8 (19 février 2018)

Key Facts

Issues

• The applicants argued that the High Court of Justice's composition, which includes members from the legislative branch (deputies), violates the principles of separation of powers and judicial independence as outlined in Article 1er alinéa A of the CEDEAO Protocol. The court evaluated whether this structure undermines the independence of the judiciary.
• The applicants alleged their right to be heard and access to the dossier was violated by the transitional parliament. The court found evidence they were investigated, heard, and formally indicted, and declined to rule on their criminal liability under national law.
• The applicants argued the High Court of Justice initially lacked appellate procedures, breaching the requirement for a double degree of jurisdiction. The court noted the law was amended in July 2017 to introduce appeal rights after a constitutional council decision.
• The applicants claimed the High Court of Justice's law (adopted May 21, 2015) retroactively applied to their alleged offenses, violating principles of legality under the African Charter, Universal Declaration, and International Covenant on Civil and Political Rights (ICCPR). The court found the law procedural and applicable to prior cases.
• The applicants challenged the impartiality of Vice-President Bénéwendé Sankara of the High Court of Justice due to his public statements expressing opposition to the proceedings against them. The court assessed whether these remarks compromised the fairness of the trial as required by the African Charter and international jurisprudence.

Holdings

• The court rejected claims that the applicants' rights to be heard and access to their files were violated. It confirmed that the applicants were investigated, presented to the inquiry commission, and formally indicted, fulfilling procedural obligations under domestic law. The court declined to assess their criminal responsibility, deferring to national courts.
• The court addressed the double degree of jurisdiction claim, acknowledging that the Burkinabe Constitutional Council's 2017 ruling introduced appeal mechanisms for the High Court. This modification resolved the earlier lack of appellate recourse, thereby satisfying international standards for legal redress.
• The court rejected the claim that the mixed composition of the High Court of Justice violates the principles of separation of powers and judicial independence. It emphasized that mixed jurisdictions (e.g., magistrates and non-professional members) are permissible under international law unless there is evidence of external influence or bias. The court cited precedents from the European Court of Human Rights and the UN Human Rights Committee to support this determination.
• The court dismissed allegations of retroactive application of the law and violation of the principle of legality. It noted that while the law establishing the High Court was enacted after the accused's arrest, it serves procedural purposes and can apply to prior situations. The court confirmed the law's retroactive application is lawful under national and international standards.

Remedies

• The Court requested the State of Burkina to ensure that any potential trial of the applicants is surrounded by all guarantees of fairness and impartiality.
• The Court dismissed the applicants for the remainder of their claims.
• The Court ruled that each party shall bear their own expenses.

Legal Principles

• The court acknowledged the amendment to the High Court's law introducing appellate mechanisms, addressing prior concerns about the lack of a double degree of jurisdiction. This ensured compliance with international standards for procedural fairness.
• The court examined whether the composition of the High Court of Justice, which included non-judicial members (e.g., parliamentarians), violated the principle of separation of powers. It concluded that such mixed jurisdictions are permissible under international law unless there is evidence of specific instructions undermining impartiality.
• The court emphasized the importance of judicial impartiality, noting that public statements by a judge (Maître Bénéwendé Sankara) created reasonable doubt about his neutrality. It reaffirmed that judges must avoid actions or statements that could undermine trust in their fairness.
• The court rejected the defendant state's exception of incompetence, affirming its authority to review alleged human rights violations. It clarified that the case involved concrete threats to rights, not abstract legal debates, justifying its jurisdiction.

Precedent Name

• Le Compte Van Leuven et De Meyere contre Belgique
• Observation générale n°32 du Comité des droits de l'Homme
• Buscemi c. Italie
• Sacilor-Lormines c. France

Cited Statute

• Pacte international relatif aux droits civils et politiques (PIDCP)
• Charte africaine des droits de l'Homme et des peuples
• Protocole de la Communauté Économique des États de l'Afrique de l'Ouest (CEDEAO) sur la Démocratie et la Bonne Gouvernance
• Déclaration universelle des droits de l'Homme
• Règlement de la Cour de Justice de la Communauté Économique des États de l'Afrique de l'Ouest (CEDEAO)

Judge Name

• Yaya Boiro
• Hamèye Founé Mahalmadane
• Alioune Sall

Passage Text

• Dit que les déclarations publiques de Maître Bénéwendé Sankara, vice-président de la Haute Cour de Justice sont de nature à susciter un doute raisonnable sur son impartialité en tant que juge.
• En l'espèce, il n'est pas établi... n'est pas constitutive des violations alléguées par le moyen.
• La Cour... doit rejeter l'argument des demandeurs tiré de la violation du principe de la séparation des pouvoirs et de l'indépendance de la justice.