253/02 : Antonie Bissangou / Congo
Summary of Facts
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1. On March 14 , 1995 the complainant brought a case against the Republic of Congo and the
Municipal Office of Brazzaville before the Court of First Instance of Brazzaville, sitting on civil matters,
with a view to obtaining the recognition of the responsibility of the Congolese Republic, as well as
reparation for the damage caused to his personal property and real estate following barbaric acts
carried out by soldiers, armed bands and uncontrolled elements of the Congolese National Police
Force, during the socio-political upheavals that took place in the country in 1993.
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2. On February 18 1997 the civil division of the Court of First Instance passed a ruling ordering the
Congolese Republic and the Municipal Office of Brazzaville to pay the following amounts:
Principal amount for all the damage caused: 180,000,000.00 FCFA
Damages: 15,000,000.00 FCFA
Amount representing legal costs: 7,000.00 FCFA
Total amount: 195,037,000.00 FCFA
That is the equivalent of 297,333.98 euros, the whole being immediately enforceable.
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3. On March 19 1997, the ruling became legally binding and a certificate of no-appeal was issued to
the complainant (see file).
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4. In a letter dated May 20 1999, the Minister of Justice asked the Minister of Economy, Finance
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and Budget of Congo to enforce the ruling. However, in a letter dated December 30 1999, the
Minister of Economy, Finance and Budget refused to execute the ruling, for no apparent reason.
Complaint
5. The complainant alleges the violation of violates Articles 2, 3, 21(2) of the African Charter. The
complainant is asking the African Commission to recommend to the Republic of Congo Brazzaville to
comply with the ruling which has been passed on behalf of the Congolese people, and to comply at
the same time with the provisions of the Charter to which it is signatory.
Procedure
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6. The complaint was received by the Secretariat of the African Commission on 27 June 2002.
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7. On 1 August 2002, the Secretariat wrote to the complainant informing him that the complaint was
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registered and that it would be considered at the [African] Commission’s 32 Ordinary Session, which
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was scheduled to take place from 17 to 31 October 2002 in Banjul, The Gambia.
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8. At its 32 Ordinary Session held from 17 to 23 October 2002 in Banjul, The Gambia, the African
Commission considered the Complaint and decided to be seized thereof.
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9. On October 30 , 2002 the Secretariat communicated the above decision to the Parties and
requested them to submit in writing, their observations on the matter of exhaustion of local remedies.
The Secretariat also sent a copy of the communication to the Respondent State.
10. The Complainant sent his comments on admissibility to the Secretariat in a letter dated
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17 December 2002.
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11. On 24 March 2003, a reminder was sent by Note Verbale to the Respondent State, requesting
its comments on admissibility to be sent to the Secretariat of the [African] Commission.
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12. On 25 March 2003, the Secretariat sent the Complainant’s observations to the Respondent
State and reminded the latter to send its observations concerning the exhaustion of local remedies
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before the 15 April 2003.
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13. During the 33 Ordinary Session held from 15 to 29 May 2003 in Niamey, Niger, the African
Commission considered the communication and deferred its decision on admissibility to the
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34 Ordinary Session. The Parties were requested to send further information on the procedure to be
followed for the recovery of the debt.
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14. On 23 June 2003, the Secretariat informed the Parties of this decision and requested the
Respondent State to submit its observations on the admissibility of the communication within three (3)
months from the date of the receipt of this Note, and to include the details of Congo’s legislation on the
matter of debt recovery.
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15. On 22 September 2003, the Secretariat again contacted the Parties involved in the
communication and requested them to submit their written observations on admissibility.
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16. On 6 October 2003, the Secretariat received written submissions from the Complainant.
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17. The Secretariat acknowledged receipt of the Complainant’s submissions on 15 October 2003
and on the same date forwarded the said submissions to the Respondent State reminding it to forward
its written submission with regard to admissibility and to provide more information on all the local
remedies available in the context of debt recovery in Congolese legislation.
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18. On the 4 November 2003, the Secretariat of the African Commission received written
observations from the Respondent State.
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19. During the 34 Ordinary Session of the African Commission held from 6 to 20 November 2003
in Banjul, The Gambia, the Respondent State made an oral presentation of its grounds of defence on
the admissibility of the communication.
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20. After consideration of the communication during its 34 Ordinary Session, the African
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Commission decided to defer its decision to the 35 Ordinary Session in order to allow the plaintiff
time to submit his written observations on the admissibility of the communication, taking into account
the observations of the Respondent State.
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21. On 7 December 2003, the Secretariat notified the Parties of the decision of the African
Commission and sent to the Complainant a copy of the observations submitted by the Respondent
State.
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22. On 9 March 2004, the Secretariat of the African Commission informed the Parties that
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consideration of the admissibility of the communication was scheduled for the 35 Ordinary Session.
The Complainant was requested to send his reaction to the written observations submitted by the
Respondent State.
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23. On 30 March and 5 April 2004, the Secretariat of the African Commission received the
observations from the Complainant on the matter of admissibility. These observations were forwarded
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by DHL to the Respondent State on the 30 April 2004.
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24. During the 35 Ordinary Session held in Banjul from 21 May to 4 June 2004, the African
Commission heard oral submissions from the Respondent State. After having considered the
communication, the African Commission declared it admissible.
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25. On 18 June 2004, the Secretariat of the African Commission informed the Parties of the
[African] Commission’s decision and requested them to submit more information on the merits of the
communication.
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26. A reminder was sent to both Parties on 6 September 2004.
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27. On the 28 October 2004, the Secretariat of the [African] Commission received the written
observations from the Complainant on the merits of the communication and acknowledged receipt
thereof.
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28. During the 36 Ordinary Session held from 23 November to 7 December 2004 in Dakar,
Senegal, the African Commission considered the communication and deferred its consideration on the
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merits to the 37 Ordinary Session.
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29. By correspondence of 20 December 2004, the Secretariat of the [African] Commission informed
Parties to the communication of the above decision.
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30. On 10 March 2005, the Secretariat of the [African] Commission conveyed the comments of the
Complainant to the Respondent State reminding it to send its written arguments as early as possible.
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31. During the 37 Ordinary Session held from 27 April to 11 May 2005 in Banjul, The Gambia, the
African Commission considered the communication and decided to defer its consideration on the
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merits to the 38 Ordinary Session.
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32. By correspondence dated 28 June 2005, the Secretariat of the African Commission informed the
parties of the decision of the African Commission and requested the Respondent State to submit its
arguments on the merits of the case within two months.
33. The Secretariat of the [African] Commission sent a reminder to the Respondent State on
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10 October 2005.
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34. At its 38 Ordinary Session held from 21 November to 5 December 2005, the African
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Commission decided to defer its decision on the merits to the 39 Ordinary Session.
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35. On 15 December 2005, the Secretariat of the [African] Commission conveyed this decision on
deferment to the Parties.
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36. At its 39 Ordinary Session held in Banjul, The Gambia from 11 to 25 May 2006, the African
Commission considered the communication and decided to defer its decision on the merits to its
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40 Ordinary Session.
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37. By Note Verbale of 14 July 2006 and by letter of the same date, both parties were notified of the
[African] Commission’s decision.
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38. At its 40 Ordinary Session held from 15 to 29 November 2006 in Banjul, The Gambia, the
African Commission considered the communication and took a decision on the merits.
Law
Admissibility
39. The admissibility of communications submitted in conformity with Article 55 of the Charter is
governed by the conditions spelt out by Article 56 of the same Charter. According to Article
56.5 communications can only be considered if they are submitted “after the exhaustion of local
remedies, if any, unless it is obvious that this procedure is unduly prolonged”.
40. According to Article 56.2, communications brought before the African Commission shall
be “compatible with the Charter of the [OAU] or with the present Charter”, and in terms of Article 56.5,
communication will not be examined unless they “are sent after exhausting local remedies, if any
unless it is obvious that this procedure is unduly prolonged” .
41. The Complainant has submitted evidence that he brought an action before the Court of First
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Instance which delivered a ruling on the 18 February 1997, condemning the Respondent State to pay
to him the amount of 195,037,000 FCFA, namely the equivalent of 297,333.98 Euros. This judgment
was not contested by the Respondent State. A certificate of no appeal had been delivered to the
Complainant by the Registrar of the Court.
42. The Complainant added the certificate of no appeal to the case file, which means that the
judgment is final and should be executed. He produced supporting documents certifying that the file
had been forwarded by the Ministry of Justice to the Ministry of the Economy, Finances and Budget for
execution. The Complainant alleges that despite several notices sent requesting it to honour its debt,
the Respondent State has refused to comply.
43. The Complainant alleges that the ruling, in relation to which execution is being called for is final
and binding. He contends that the certificate of no appeal added to the case file legally establishes
that there are no other remedies to be brought against the said ruling.
44. The Complainant alleges that in a country where the rule of law exists, the fact that an
Administrative Officer refuses to execute a decision of the Court against which there are no more legal
remedies, is a constitutive case of criminal offence.
45. The Respondent State, in making an oral presentation of its grounds of defence before the
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African Commission during its 34 Ordinary Session, did not contest the facts of the complaint. It
however raised a plea of inadmissibility regarding the Complainant’s request on the grounds that the
rule of exhaustion of local remedies had not been observed.
46. Regarding the incompatibility with the Charter, the Congolese State alleges that the object of the
communication does not fall under the jurisdiction devolving on the [African] Commission in terms
of Article 45 of the Charter that is to promote and protect human and peoples’ rights in Africa.
According to the State, “…The [African Charter] has established a non-jurisdictional mechanism to
guarantee rights and freedoms, the decisions of the latter having just a moral significance and are not
binding. Therefore, the [African] Commission could not turn into a jurisdiction to consider requests for
the payment of money against states.”
47. The [African] Commission observes that the communication is based on allegations of violation of
provisions of the Charter which it has the mandate to promote and protect. As the State itself
acknowledged it in its submission, the African Commission “controls the conformity of State Parties
actions to [African Charter]”. The [African] Commission finds that in the case under consideration, in
seizing the [African] Commission, the Complainant does not have any other intention than to request
the latter to play its role by controlling the conformity to Articles 2, Article 3, 21(2) of the Charter of an
action (the refusal to enforce a court decision in favour of the Complainant) of a State party (the
Republic of Congo). The [African] Commission concludes that the object of the communication falls
under its mandate and, as a result, finds that the communication is compatible with the Charter.
48. Regarding the exhaustion of local remedies, the Respondent State contends that the complainant
had a remedy against the refusal of the Minister of the Economy, Finances and Budget to execute this
ruling in accordance with the provisions of Articles 405 to 409 of the Code of Civil, Commercial,
Administrative and Financial Procedure. These articles stipulate that:
“any citizen who is qualified and so wishes has the right to bring an appeal for annulment against any
regulatory or individual decision by an administrative Authority. Such an appeal must be brought within
two (2) months from the date of the publication or notification of the grievance on the one hand, and
exceptionally within four (4) months in case of silence from the administration which is interpreted as
an implicit dismissal, on the other…”.
49. Article 410 of the same Code adds:
“Nonetheless, before applying for the annulment of an administrative decision, the interested Party
may present, within 2 months, an appeal to a higher or the same administrative Authority to cancel the
said decision. In such a case, the application for annulment will only be effective either from the date
of the notification of the dismissal of the administrative appeal, or on the expiry of the 4 months
stipulated in the Article 408 mentioned above”
50. The Respondent State alleges that in the case under consideration, starting from the date of the
notification of the unjustified dismissal of his case by the Minister for Economy, Finance and Budget,
the complainant should have, within 2 months, brought an appeal either to the same administrative
authority, or to the Head of Government as a higher administrative authority.
51. The Respondent State contends that such an early administrative appeal would have allowed the
Complainant to have the negative decision annulled. Otherwise, the Complainant should have secured
the real grounds for the dismissal of his claims to allow him make a submission for an annulment at
the expiry of the above mentioned deadlines.
52. The Respondent State alleges that since the refusal of the Minister was an administrative
decision, the Administrative Chamber of the Supreme Court was competent to deal with its annulment,
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in accordance with the provisions of Article 3 of law No. 17-99 of 15 April 1999 modifying and
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supplementing certain provisions of law No. 025-92 of 20 August 1992 and law No. 30-94 of
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18 October 1994 governing the organisation and functioning of the Supreme Court. This article
stipulates that: “the Supreme Court shall rule on appeals relating to abuses of power lodged against
decisions from various authorities”.
53. Finally the Respondent State stresses that the Complainant, an attorney by profession, is hardly
ignorant of the procedural subtleties of Congolese law and that under the circumstances, he should
have submitted his grievances beforehand to the Congolese Courts which have primacy over
subsidiary international appeals.
54. The Respondent State concluded that the Complainant did not resort to any internal remedy after
the administrative decision rejecting his case and, in consequence, did not comply with one of the
essential rules governing the admissibility of communications before the African Commission, namely
that of exhaustion of local remedies.
55. All the conditions laid down by Article 56 have been fulfilled by this communication. However, the
rule stipulating the exhaustion of local remedies as a requirement for the submission of a
communication before the African Commission assumes that the Respondent State should first of all
have the opportunity to compensate, by its own means and within the context of its system of domestic
law, for any prejudice that may have been caused to an individual.
56. The African Commission, in communications 48/90, 50/91 [52/91] and 89/93 Amnesty
International [et] al./Sudan, ruled that all local remedies, if they exist, if they are of a legal nature, are
effective and are not subordinate to the discretionary power of the public authorities, should be
exhausted.
57. The [African] Commission is of the view that the Complainant has exhausted all local remedies in
endeavouring to assert his right to compensation for the prejudice suffered and rejects the
Respondent State’s claims that he should have appealed against the decision of the Minister before
seizing the [African] Commission.
58. The [African] Commission notes that no strict legal provision grants the Minister responsible for
the budget any authority to refuse to pay damages which are legally granted. The execution of the
judgments made against the Respondent State therefore appears to be subject to the regular
procedure provided for in the Administrative Procedure Code (Article 293 and the following ones).
59. Under these circumstances, the question which arises is whether the complainant should have
initiated the procedures of forced execution against the Respondent State as provided for by the
Administrative Procedure Code. The [African] Commission considers that it is unreasonable to require
from a citizen who has won the case of a payable debt against the State at the end of a legal
proceedings to institute procedures of seizure against it (assuming that it is possible to resort to this
means of imposition against the public authorities). As it happened, the Complainant, having duly
notified his judgment to the competent authorities in accordance with the relevant articles of the
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Administrative Procedure Code, he had a right to expect the immediate execution of his judgment.
60. The [African] Commission is of the view that the Minister had no right to hinder or delay the
execution of a final judgment without legitimate reason. The [African] Commission observes that the
decision of the Minister was unjustified and that the Respondent State did not, at any time try to clarify
to the [African] Commission the reasons for the refusal by its Officer. In this context, the [African]
Commission supports the position of the European Court according to which even the inability of the
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Respondent State to pay could not justify the refusal by the Minister to execute a final judgment.
61. Furthermore, the [African] Commission considers that the appeal provided for in Article 402 of the
Administrative Procedure Code does not constitute a legal remedy which can be used by the
complainant. The [African] Commission reiterates that local remedies, if any, should be legal, effective
and not subject to the discretionary powers of the public Authorities. Concerning the appeal for
annulment provided for in Article 410 of the Administrative Procedure Code, the [African] Commission
is not convinced that it would have allowed the Complainant to gain satisfaction. Even a ruling by the
Supreme Court setting aside the unjustified decision of the Minister would have given the Complainant
the power to demand the execution of his judgment without however providing him with any means to
enforce this ruling. Under these circumstances, the [African] Commission considers this remedy as
ineffective.
62. In conclusion, even assuming that the above-mentioned appeals had enabled the complainant to
recover his debt, the [African] Commission observes that the complainant had not been informed of
the reasons underlying the decision of the Minister, a decision about which, moreover, he does not
appear to have been notified.
63. For these reasons and considering the fact that the complainant had duly exhausted all local
remedies, the African Commission declares the communication admissible.
Merits
64. The Complainant alleges the violation of Article 2 of the African Charter which stipulates
that “Every individual has the right to enjoy the rights and freedoms recognised and guaranteed in the
present Charter…” and the violation of Article 3 of the African Charter which stipulates that “Every
individual shall be equal before the law, every individual shall be entitled to equal protection of the
law”.
65. The Complainant contends that the Respondent State does not treat its citizens in the same
manner and does not guarantee the total equality of its citizens before the law by leaving it to the
discretion of the Minister of the Economy, Finance and the Budget to choose which judgments to
honour. In support of his allegations, he alludes to the letter of the Permanent Secretary of the Minister
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dated 30 December 1999 which rejects, without justification, the request for execution of his
judgment and those of two other people.
66. It is important to point out here that a judgment rendered in the presence of both Parties had
jointly and severally condemned the Republic of Congo and the Mayor’s Office of Brazzaville to pay
the Complainant the amounts of 180,000,000 FCFA representing principal and 15,000,000 FCFA
representing damages and interest, in compensation for the prejudice caused to his personal assets
and property by the soldiers and officers of the national Police Force during the socio-political
upheavals of 1993. Neither the Republic of Congo, nor the Brazzaville Mayor’s Office lodged an
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appeal against the judgment, so that the latter became final on the 19 March 1997. On the
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30 December 1999, with no apparent reason, the Permanent Secretary of the Minister of the
Economy, Finance and Budget informed the Minister of Justice about his refusal to execute the
judgment of the Complainant.
67. The Respondent State does not oppose the facts alleged in this communication but refutes the
allegations of discrimination. It retorts that the three individuals affected by the Minister’s refusal do not
come from the same ethnic group or region nor do they share the same religion or political opinion.
One of the individuals concerned is even said to be a former Minister of the Government who was
actually holding office at the time of the rejection. Under the circumstances, the Congolese State
contends that the communication constitutes an abuse of rights in terms of of the African
Commission’sRules of Procedure .
68. The two provisions cited by the Complainant repose, on the one hand, on the principle of nondiscrimination and on the other, on that of equality. These principles mean that citizens should be
treated in a fair and equitable manner before the law and have the right to enjoy, with no distinction
whatsoever, the rights guaranteed by the Charter. The right to equality is all the more important since
it determines the possibility for the individual to enjoy many other rights.
69. Like Article 14 of the European Convention, Article 2 does not stipulate a general banning of
discrimination; it only prohibits discrimination where it affects the enjoyment of a right or freedom
guaranteed by the Charter. The [African] Commission considers that the Complainant has not
adequately supported his claims of discrimination to show that this Article has been violated; besides,
his not having proven how the enjoyment of one of the rights guaranteed by the Charter had been
hindered in a discriminatory manner, his complaint is not based on any of the grounds of
discrimination listed out inArticle 2 or on grounds similar to the latter.
70. Nonetheless, the [African] Commission notes that Article 3 of the African Charter contains a
general guarantee of equality which supplements the ban on discrimination provided for in Article 2. In
this regard, the African Charter differs from the European Convention [on Human Rights] and draws
inspiration from the Agreement on Civil and Political Rights [sic] . Equality before the law, protected
by Article 3.1 relates to the status of individuals before the law. Equal protection by the law,
guaranteed in Article 3.2 relates to the implementation of the law and is applicable where the rights of
the Complainant are implemented unequally.
71. The [African] Commission further notes that for Article 3 to be applicable, the inequality alleged
by the Complainant should follow from the ‘law’. In this context, the legislative or regulatory Act
constitutes the most unambiguous form of law. It is obvious however that Member States could easily
circumvent the Charter i[f] the term ‘law’ were to be restricted to these formal methods of legislating.
The [African] Commission is of the opinion that the Member States would violate Article 3 if they were
to exercise a power or judgment conferred by a law in a discriminatory manner. As it happens, the
refusal by the Minister of the Economy, Finance and the Budget is not based on any specific
legislative authority. Nevertheless, the [African] Commission feels that it was incumbent on the
Minister to honour the judgment by virtue of the rule of law and of the principle of the res judicata .
72. In this context the [African] Commission observes that the complainant was unjustifiably refused
the implementation of a legal ruling which had the character of res judicata . The Minister of the
Economy, Finance and the Budget rejected his request for execution as well as that of two other
individuals for no apparent reason. In [its] claims before the African Commission, the Respondent
State did not put forward any argument to explain the decision of the Minister in rejecting the
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Complainant’s claim. Moreover, in its submissions dated 30 March 2004 in reaction to the
Complainant’s arguments, the State has quoted victims of the same violent events who have been
compensated. The Minister thereby transformed the right of the Complainant to an effective remedy
before the Courts into an illusion and denied him the right to fair legal compensation. Under these
circumstances, the [African] Commission is of the view that the decision of the Minister arbitrarily
deprived the Complainant of the protection of the law accorded to other citizens in accordance with the
provisions of Article 3of the Charter.
73. Furthermore, although the Complainant does not specifically mention this Article of the Charter,
the examination of the facts shows a violation of Article 7 of the Charter concerning the right to fair
trial. The effective exercise of this right by individuals requires that:
“All State Institutions against which an appeal has been lodged or a legal ruling has been pronounced
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conform fully with this ruling or this appeal.”
74. The [African] Commission notes that in similar instances, the European Court of Human Rights
declared that the right to access to a Court guaranteed by Article 6(1) of the European Convention on
Human Rights would be illusory if the domestic laws of a State allowed a final and binding legal ruling
to remain ineffective to the detriment of one Party. The Court therefore ruled that the execution of a
judgment, no matter from what jurisdiction, should be considered as being an integral part of
the‘proceedings’ in accordance with Article 6. The Court further recognised that the effective protection
of the person to be tried and the re-establishment of legality constituted an obligation for the State to
comply with a judgment or ruling pronounced by the highest Court in the land. In consequence, by
virtue of this Article, the execution of a legal ruling can neither be unduly prevented, nullified nor
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delayed.
75. The [African] Commission is also of the view that the right to be heard guaranteed by Article 7 of
the African Charter includes the right to the execution of a judgment. It would therefore be
inconceivable for this Article to grant the right for an individual to bring an appeal before all the
national courts in relation to any act violating the fundamental rights without guaranteeing the
execution of judicial rulings. To interpret Article 14 any other way would lead to situations which are
incompatible with the rule of law. As a result, the execution of a final judgment passed by a Tribunal or
legal court should be considered as an integral part of the right to be heard which is protected
by Article 7.
76. Furthermore, the [African] Commission considers that the refusal by the Minister to honour the
judgment passed in favour of the Complainant also constitutes a violation of Article 14 of the Charter.
Although the complainant only alluded to this Article at the moment of his argument, the [African]
Commission considers that his initial claims sufficiently supported a claim of violation of the right to
property. Drawing inspiration from the jurisprudence of the European Court for Human Rights
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under Article 1 of Protocol No. 1 of the European Convention on Human Rights, the [African]
Commission considers that a monetary compensation granted by judgment having acquired the
authority of res judicata should be considered as an asset. Therefore, the unjustified refusal of the
Respondent State to honour the final judgment passed in favour of the Complainant hindered the
enjoyment of his assets.
77. The African Commission appreciates the fact that in spite of the situation which was then
prevailing in the Republic of Congo during the period under review, the Court had been able to act
rapidly and firmly in pronouncing the judgments in a bid to restore the rule of law.
78. The African Commission nonetheless remains conscious of the fact that without a system of
effective execution, other forms of private justice can spring up and have negative consequences on
the confidence and credibility of the public in the justice system.
79. Finally, the [African] Commission wishes to make some comments with regard to the claims of
the Complainant based onArticle 21.2 of the Charter. This Article stipulates that “in case of spoliation
the dispossessed people shall have the right to the lawful recovery of their property as well as to an
adequate compensation”. The Complainant contends that the Respondent State violated this Article in
refusing to honour a judgment of the Brazzaville High Court upholding the total responsibility of the
Respondent State and that of the Brazzaville Mayor’s Office in relation to the looting of his assets by
the soldiers and the unruly elements of the National Police Force.
80. The African Charter does not provide a definition of the concept of ‘people’ that is found in
Articles 19 to 24. This concept nonetheless defines third generation rights whose recognition
constitutes the main distinctive feature of the African Charter.Article 21 of the Charter is one of these
rights; it guarantees to all peoples the right to freely dispose of their wealth and natural resources.
Under the terms of this Article, a people stripped of their wealth and natural resources ha[ve] the right
to the recovery of its property and to an adequate compensation.
81. In communication 155/96 (2001) Social and Economic Rights Action Center, Centre for Economic
and Social Rights/Nigeria, the African Commission recalled in the following terms, the origin of Article
21: “[This] provision dates back to the colonial period during which the material and human resources
of Africa had been greatly exploited by foreign powers, thus creating a tragedy for the Africans
themselves, depriving them of their inalienable rights and land” . Considering its nature and its
objective, this Article can only be referred to in the exclusive interest of a people that has the legitimate
right to an adequate compensation as well as to the recovery of its assets in case of spoliation.
82. In this case, the movable and immovable property of the complainant that had been destroyed
during the socio-political events which shook the country in 1993 does not constitute the wealth and
natural resources of a people but rather individual assets. It is important to point out that in the present
communication the complainant is acting on his own behalf and on behalf of a group of individuals or
of a population living in a given territory. Under these circumstances, the African Commission does not
find any violation of Article 21.2 of the African Charter.
83. The Complainant also requests the [African] Commission to prescribe the Respondent State to
pay him damages and a daily penalty for delay in payment of the sum granted to him by a court ruling,
which he estimates at 200.000.000 FCFA [and] 50.000.000 FCFA respectively.
84. The [African] Commission, although admitting that the Complainant suffered some loss due to the
delay in the payment of the sum granted by Congolese courts, does not consider itself in a position to
put a figure to the loss. This is the reason why, relying on its jurisprudence, especially its decision on
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communication 59/91 , the [African] Commission recommends that the amount of the compensation
be determined according to Congolese legislation.
Decision of the African Commission
For these reasons, the African Commission
Observes that the Republic of Congo is in violation of Articles 3, 7 and 14 of the African Charter;
Says that there was no violation of Articles 2 and 21(2) of the African Charter;
Urges the Republic of Congo to harmonise its legislation with that of the African Charter;
Requests the Republic of Congo to compensate the Complainant as required by paying him the
amount fixed by the High Court of Brazzaville, namely the global amount of 195,037,000 FCFA
equivalent to 297,333.00 euros;
Further requests the Republic of Congo to pay compensation for the loss suffered by the Complainant,
the amount of which shall be determined in accordance with Congolese legislation.
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Done at the 40 Ordinary Session of the African Commission held in Banjul, The Gambia, from 15 –
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29 November 2006.
Footnotes
1. See the decision of the European Court on Human Rights in the case Metaxas vs. Greece , no. 8415/02, para.
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19, 27 May 2004.
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2. Burdov v. Russia, no. 59498/03, para 34 7 May 2002, and Ruianu vs. Rumania , no. 34647/97, 17 June
2003.
3. See Guidelines and Principles on the Right to a Fair Trial and Legal Assistance in Africa.
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4. See, among others, the rulings on Hornsby v. Greece of 19 March 1997, Collection 1997-II, pp. 510-511,
para. 40, Burdov v. Russia , cited above, supra note 22.
5. See Burdov , cited above; supra note 22, and Stran Greek Refineries and Stratis Andreadis v. Greece ,
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9 December 1994, Series A no. 301-B, p. 84.
6. Communication 59/91 Embga Mekongo Louis/Cameroon, para. 2.