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Certain Questions of Assistance in Criminal Matters (Djibouti v. France)

Introduction.

This is the second case, Certain Criminal Proceedings in France (Republic of the Congo v. France) being the first, in which France voluntarily consented to the jurisdiction of the Court. The hearings opened on 21 and finished on 29 January 2008. The Court has in the meanwhile started its deliberations and will render its decision in due time.

Background.

It was in January 2006 that Djibouti seised the International Court of Justice (ICJ) of a dispute between itself and France regarding the alleged violation by France of its “international obligations in respect of mutual assistance in criminal matters” in the context of the investigation into the death of the French judge Bernard Borrel in Djibouti in 1995. In an Application filed in the Registry of the Court on 9 January 2006, Djibouti stated that the subject of the dispute concerned “the refusal by the French governmental and judicial authorities to execute an international letter rogatory regarding the transmission to the judicial authorities in Djibouti of the record relating to the investigation in the ‘Case against X for the murder of Bernard Borrel’”. Djibouti maintained that the refusal constituted a violation of France’s international obligations under the Treaty of Friendship and Co-operation signed by the two States on 27 June 1977 and the Convention on Mutual Assistance in Criminal Matters between France and Djibouti, dated 27 September 1986. Djibouti further asserted that, in summoning certain internationally protected nationals of Djibouti (including the Head of State) as témoins assistés [legally represented witnesses] in connection with a criminal complaint for subornation of perjury against X in the Borrel case, France violated its obligation to prevent attacks on the person, freedom or dignity of persons enjoying such protection.

At the end of the oral proceedings Djibouti requested the Court to adjudge and declare:

1. that the French Republic has violated its obligations under the 1986 Convention:

(i) by not acting upon its undertaking of 27 January 2005 to execute the letter rogatory addressed to it by the Republic of Djibouti dated 3 November 2004;

(ii) in the alternative, by not performing its obligation pursuant to Article 1 of the aforementioned Convention following its wrongful refusal given in the letter of 6 June 2005;

(iii) in the further alternative, by not performing its obligation pursuant to Article 1 of the aforementioned Convention following its wrongful refusal given in the letter of 31 May 2005;

2. that the French Republic shall immediately after the delivery of the Judgment by the Court:

(i) transmit the “Borrel file” in its entirety to the Republic of Djibouti;

(ii) in the alternative, transmit the “Borrel file” to the Republic of Djibouti within the terms and conditions determined by the Court;

3. that the French Republic has violated its obligation pursuant to the principles of customary and general international law not to attack the immunity, honour and dignity of the President of the Republic of Djibouti:

(i) by issuing a witness summons to the President of the Republic of Djibouti on 17 May 2005;

(ii) by repeating such attack or by attempting to repeat such attack on 14 February 2007;

(iii) by making both summonses public by immediately circulating the information to the French media;

(iv) by not responding appropriately to the two letters of protest from the Ambassador of the Republic of Djibouti in Paris dated 18 May 2005 and 14 February 2007 respectively;

4. that the French Republic has violated its obligation pursuant to the principles of customary and general international law to prevent attacks on the immunity, honour and dignity of the President of the Republic of Djibouti;

5. that the French Republic shall immediately after the delivery of the Judgment by the Court withdraw the witness summons dated 17 May 2005 and declare it null and void;

6. that the French Republic has violated its obligation pursuant to the principles of customary and general international law not to attack the person, freedom and honour of the Public Prosecutor of the Republic of Djibouti and the Head of National Security of Djibouti;

7. that the French Republic has violated its obligation pursuant to the principles of customary and general international law to prevent attacks on the person, freedom and honour of the Public Prosecutor of the Republic of Djibouti and the Head of National Security of the Republic of Djibouti;

8. that the French Republic shall immediately after the delivery of the Judgment by the Court withdraw the summonses to attend as témoins assistés [legally represented witnesses] and the arrest warrants issued against the Public Prosecutor of the Republic of Djibouti and the Head of National Security of the Republic of Djibouti and declare them null and void;

9. that the French Republic by acting contrary to or by failing to act in accordance with Articles 1, 3, 4, 6 and 7 of the Treaty of Friendship and Co-operation of 1977 individually or collectively has violated the spirit and purpose of that Treaty, as well as the obligations deriving therefrom;

10. that the French Republic shall cease its wrongful conduct and abide strictly by the obligations incumbent on it in the future;

11. that the French Republic shall provide the Republic of Djibouti with specific assurances and guarantees of non-repetition of the wrongful acts complained of.”

On its part France requested the Court to adjudge and declare:

1. (a) to declare that it lacks jurisdiction to rule on those claims presented by the Republic of Djibouti upon completion of its oral argument which go beyond the subject of the dispute as set out in its Application, or to declare them inadmissible;

(b) in the alternative, to declare those claims to be unfounded;

2. to reject all the other claims made by the Republic of Djibouti.”

All documents relating to this case including the verbatim records of the hearings held between 21 and 29 January 2008 are available on the Court’s website (www.icj-cij.org) under Cases/Contentious Cases.

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