ECOWAS Court Directs Senegal to Revise Law Compensating Unjustly Detained Individuals After Acquittal

The ECOWAS Court mandated, today 15th December 2023, the Republic of Senegal to reform Article 109 of its Organic Law governing the Commission for the Compensation of Persons Unreasonably Detained on Remand. The judgement orders Senegal to align a portion of the law with its international commitments, particularly that under the African Charter on Human and Peoples’ Rights (ACHPR).

In Suit ECW/CCJ/APP/36/21, the Applicants had alleged the violation of their human rights, specifically violations of the right to fair trial, right to be tried within a reasonable time as well as for breaches of the principle of equality before the law.

In the judgment delivered by Justice Sengu Mohamed Koroma, Judge Rapporteur, the Court declared  a violation of the right to fair trial and the right to be tried within a reasonable time under Article 7 (1) (d) of the ACHPR. It also declared a violation of the principle of equality of citizens before the law under Article 4 of the ACHPR.

Consequently, it awarded each Applicant, Mouhamed Rassoul Ndiaye and Alassane Lo, Fifty Million Francs (50,000,000 CFA)  CFA as reparation for the violation of their right to fair trial, right to be tried within a reasonable time as well as for breaches of the principle of equality before the law.

However, it declared there was no violation of the presumption of innocence as guaranteed under Article 7 (1) (b) of the ACHPR.

In the initiating application, the Applicants asserted that they were arrested on December 12, 2023, facing criminal conspiracy and murder charges, and another unspecified crime. Despite being acquitted by the First Criminal Chamber of the High Court of Dakar in judgment No. 77/2019 on July 16, 2019, they claimed to have been detained for eight years, leading to the collapse of their business and severe hardship for their families. They initiated proceedings with the Compensation Commission after their acquittal, seeking compensation in accordance with the Organic Law of the Supreme Court. Despite meeting eligibility criteria, their compensation application (decision N 02/CS/CI/2021) was denied, unlike others in similar situations. The Applicants alleged a violation of their fundamental rights guaranteed by the Senegal Constitution and relevant human rights conventions.

Senegal’s defense challenged the notion that the detention length alone constituted a rights violation, emphasizing the case’s complexity. It also denied any official role in media leaks about the investigation.

Addressing the extended pre-trial detention, the Court found that Senegal did not provide a satisfactory justification neither did it present a legal basis, thus infringing upon the fair trial rights guaranteed by Article 7 (1) (d) of the ACHPR. However, it rejected the Applicants’ claim of a presumption of innocence violation, citing insufficient evidence that the leak stemmed from an official source, albeit the Respondent.

The Court did determine that Article 109 of the Organic Law violated the ACHPR’s fair trial standards and equality under the law as outlined in Articles 7 (1) and Article 4, respectively. As such, it ordered the amendment of the law to meet Senegal’s international obligations.

Claims regarding the right to compensation from the Compensation Commission of the Respondent were dismissed on grounds of jurisdictional competence. The Applicants had sought Five Hundred Million Francs CFA each for alleged rights violations.

Regarding reparation rights from the Compensation Commission, Senegal said there were two criteria: a long detention and an abnormal and particularly serious prejudice endured while in detention. The Respondent argued that they were not compensated because they did not give evidence on the prejudice suffered.  It also added that the Compensation Commission did not require a reason to deny a compensation and therefore did not violate the Applicants’ rights.

The Respondent State called for the dismissal of the Applicants’ claims as unsubstantiated.

Other judges on the panel were Justices Dupe Atoki (Presiding) and Ricardo Cláudio Monteiro Gonçalves.