Summary report – The civil parties are asking the EAC to reconsider its decision on reparations Reviewed by Momizat on . Dakar, Senegal, 10 January 2017 Today, it was for the civil parties to take the stand for their submissions in the appeal proceedings concerning the case agains Dakar, Senegal, 10 January 2017 Today, it was for the civil parties to take the stand for their submissions in the appeal proceedings concerning the case agains Rating: 0

Summary report – The civil parties are asking the EAC to reconsider its decision on reparations

Cet article est également disponible en : French

cae-partie-civiDakar, Senegal, 10 January 2017

Today, it was for the civil parties to take the stand for their submissions in the appeal proceedings concerning the case against former Chadian president, Hissein Habré, before the Extraordinary African Chambers (EAC). The lawyers for the victims asked the Chamber to invalidate the 29 July 2016 Trial Chamber decision. They emphasised that it was important to clarify how the reparations will be put into effect, and to set up a victims’ fund as envisaged by the Statute.

Alain Werner, a Swiss lawyer, was the first to address the court on behalf of the civil parties. He represents a group of 4,733 victims. Three of those victims, prominent figures in the history of their country, attended the proceedings at the Palais de Justice in Dakar on Tuesday. They are: Clément Abaïfouta, Souleymane Guengueng and Abdourahmane Gueye. While looking in their direction, Counsel Werner said, “This trial is for the men and women who endured untold suffering during Habré’s regime, and who pursued a 25-year struggle for justice. A long struggle filled with challenges. As far as we are concerned, the judgement of 30 May 2016 represents an immense victory for the victims, whether living or dead, and also for those who have supported them in their endeavour.”

Counsel Werner cited two “very precise” reasons why the civil parties decided to appeal the decision on reparations. He first recalled that pursuant to Article 28(2) of the EAC Statute, victims are eligible for reparations whether or not they participated in the proceedings. Accordingly, during both the judicial investigation and the actual trial, “our 4,733 victims considered that they had fully participated in the proceedings”. Yet, when the judgement was issued, “hundreds of our victims realised that they were not included on the Trial Chamber’s list. That affected them morally and psychologically. They were denied reparations.”

The victims’ fund must be activated”, according to Counsel Werner

The Trial Chamber refused to allow any unidentified victims from joining the procedure as civil parties. “We were notified of that with no further details”, said Counsel Werner; he was referring to what is meant by full and proper identification. We are not able to tell our applicants why they were excluded after having come so far. Such blanket rejection of our clients without any notification or case-by-case explanation amounts to a violation of their rights!,” Counsel Werner asserted. Citing the example of a decision on reparations which was issued by the Extraordinary Chambers in the Courts of Cambodia, he opined that the criteria applied by the EAC “are not only too vague and restrictive, but they also run against international jurisprudence”.

Continuing with his submissions, Counsel Werner said that the Trial Chamber erred by its failure to specify how the reparations it awarded are to be put into effect. “The Chamber did not specify the total amount owed by the accused; it also did not specify the implementation mechanism for the reparations or, for that matter, how the victims can seek redress. This could mean that the reparations may not be paid after all.” He emphasised the need to effectively and promptly activate the victims’ fund envisaged in the Statute. In concluding, he said, “In the absence of that, the decision could end up being for naught for the victims, a mere scrap of paper, a mirage, an illusion and, if you really want to know what I think… a charade.”

3,261 victims are excluded from procedure: Counsel Jacqueline Moudeïna

According to Jacqueline Moudeïna, a Chadian lawyer who represents the same group of victims, the decision issued by the EAC Trial’s Chamber is ambiguous. “We are faced with enormous challenges because of the decision on reparations is ambiguous”, she asserted. “We described the judgement as being historic. But it ought to provide for adequate reparations for the trial to be complete”. In her estimate, no fewer than “3,261 victims have found themselves excluded from the procedure” after the first instance judgement. She said that the criteria applied were unclear. “You have victims who submitted officially recorded documents, yet they are not listed in the judgement. You also have victims who did not do any of that, but are listed in the judgement. Some victims who were interviewed during the investigation, but were not admitted.” As far as she is concerned, “The Trial Chamber devoted a lot of time to the criminal case, but for the civil case, it did things in a rush. It is a though the Trial Chamber wanted to pass the issue on to the Appeals Chamber!”

There was a mix-up, according to Counsel Yare Fall

Yare Fall, a Senegalese lawyer, represents a second group comprising 3,850 victims. In his view, at trial “the notions of civil party, victim and witness were mixed up.” In his view, given that the EAC operates under civil law system, “once the judicial investigation has been completed, one no longer speaks in terms of civil parties but rather in terms of victims.” That, therefore, is the basis upon which those who joined the procedure upon the issuance of the indictment were recognised. There is no reason to reject them subsequent to that,” he added. “The problem we have with this judgement is that it mixes up the notion of civil party with that of victim.” He said further that the amounts awarded to the victims are “incommensurable with the injury they suffered”. He said that they ought to be increased and that all those who participated in the proceedings ought to be found admissible.

Civil parties are not stowaways in the present case”, according to Counsel Wafi Ougadèye

Further to Counsel Fall’s remarks, Judge Wafi Ougadèye of Mali, who is the president of the Appeals Chamber, very clearly stated as follows: “As far as the Extraordinary Chambers are concerned, civil parties are recognised as parties to the proceedings, just like the other parties. They are not viewed as stowaways in the case. However, we must bear in mind that we operate under Senegalese law; just like in my country [Mali] a victim cannot qualify as civil party, unless that victim has joined the procedure. What we need is to be compromising and declare that civil party is considered as a victim at this stage. Now, having said that, if there have been any omissions, we can always correct that [on appeal]. If any material errors have been committed, we can always take corrective measures.”

Philippe Houssine, a Chadian lawyer, who represents the same group of victims as Counsel Fall, was the last to speak on behalf of the civil parties. He, in turn, urged the Appeals Chamber to show flexibility by setting aside the Trial Chamber’s decision on civil claims, and thereby “remedy the harm suffered”.

The hearings were adjourned. They are due to resume on 11 January, with the final submissions of the Prosecutor General.

The Consortium

Site by Primum Africa Consulting © Copyright 2014, All Rights Reserved

Scroll to top