CYIL vol. 8 (2017)

TOMÁŠ BRUNER

CYIL 8 ȍ2017Ȏ

The courts decision-making practice So far the Court has finalized 33 cases ( cf. Table 1 in annex 1). In 18 proceedings the application was refused because the Court lacked jurisdiction. The respondent country either did not make the respective declaration enabling individual access or jurisdiction rationae materiae was not established. Three ambitious attempts to sue an international organization were among those cases. Firstly, Femi Falana raised his application against the African Union for not facilitating access of individuals to the Court. 48 Secondly, the same applicant sued the African Commission for not taking his case to the Court. 49 In both cases the Court dismissed the application, as it found both the application and the respondent inadmissible. The case of Kamden Roger 50 ended similarly. This applicant also sued an international organization, or more precisely, the members of Inter-African Conference on Insurance Markets (CIMA) and the ACHPR again found that it had no jurisdiction to decide over an international organization as a respondent. Six other proceedings ended due to insufficient cooperation of applicants or non-exhaustion of local remedies. The Court issued 8 judgements (one of them in two joint proceedings) on the merits and all of them decided at least partially in favour of the applicants. The Court also performed persuasive legal reasoning following and developing the jurisprudence of the European and the Inter-American Human Rights Courts. The following summary of cases demonstrates that this has been a positive development in comparison to the first years of the Court’s involuntary passivity. Proceeding no. 013/2011 51 revealed that the respondent state violated the applicant’s right to fair trial (article 7 of the African Charter, article 2(3)a of the ICCPR 52 and article 8 of the Universal Declaration of Human Rights 53 ), because it did not sufficiently investigate the murder of Robert Zongo. Although there has been no failure to adopt appropriate legal measures, those measures different than legal (criminal investigation) were fairly neglected, which restricted – according to the Court’s opinion – the beneficiaries’ right to fair trial. The Court ruled that the right to fair trial includes the right to have one’s case heard by competent national courts, which includes the following aspects: “duration of the proceedings in the local courts, the role of the Prosecutor in the judicial system of the Respondent State; the issue of withdrawal of an Investigating Magistrate; the issue of a witness failing to appear, the involvement of parties in the civil suit, and the question of the dispatch with which the Respondent guaranteed this right in the instant case.” Stating that the right to fair trial of a victim might be violated by withdrawal from the investigation might form an important precedent and increase the thoroughness of criminal investigation through human rights regulation. The only application of the African Commission that resulted in the judgement on the merits was application no. 002/2013 . 54 The African Commission brokered the litigation 48 Femi Falana v African Union [2011] ACHPR [2012] 001/2011. 49 Femi Falana v the African Commission on Human and Peoples’ Rights [2015] ACHPR [2015] 019/2015. 50 Kamden Roger v CIMA [2015] ACHPR [2015] 021/2015. 51 Beneficiaries of Late Robert Zongo v. Republic of Burkina Faso [2011] ACHPR [2014] 013/2011. 52 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 53 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR). 54 The African Commission v. The Republic of Libya [2013] ACHPR [2016] 002/2013.

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