ECOWAS COURT DECLARES A VIOLATION OF THE RIGHT TO THE PRESUMPTION OF INNOCENCE AND THE RIGHT TO DEFENSE UNDER ARTICLE 7 OF THE ACHPR AND ORDERS COMPENSATION TO TWO APPLICANTS IN CASE OF MR. ISMAILA HAIDARA AND TWO OTHER MALIAN CITIZENS

The ECOWAS Court of Justice, on December 15, 2023, ruled that the State of Mali violated the fundamental rights of Mr. Ismaila Haidara and another Malian citizen. These rights include the right to the presumption of innocence and the right to a defense Counsel. This violation occurred when the individuals were denied the opportunity to choose their own lawyers during an investigation proceeding carried out against them on various criminal allegations.

In the judgment delivered by Justice Sengu Mohamed Koroma, who served as the Judge Rapporteur of the Panel, the Court declared that it is vested with jurisdiction and that the application is admissible having passed the test for admissibility. The Court held that the State of Mali had infringed upon the Applicants’ rights to the presumption of innocence and the right to a defense Counsel. As a result, the Court ordered the State of Mali to compensate the First and Third Applicants with Ten Million (10,000,000 CFA) Francs each as damages.

The Court further directed the State of Mali to consistently fulfill its obligations under the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. 

In the Initiating Application, ECW/CCJ/APP/54/21, the Applicants, Mr. Ismaila Haidara, Madina Deme Coulibaly and Mrs. Hawa Traore are asserting human rights violations, emphasizing the lack of a defense Counsel and access to evidence during the preliminary investigation. They argued that the Public Prosecutor delayed presenting an indictment for a month, failing to address the violations. The Applicants claimed  that their detention amounted to a breach of fair trial norms as they did not enjoy the legally mandated preliminary guarantees. They are seeking various remedies from the Court, including monetary compensation for damages and costs.

The Respondent, the State of Mali disputed the claims, deeming them fanciful. It asserted that the investigation followed existing laws and involved charges related to forgery, misuse of corporate assets, misappropriation of assets, and organized bankruptcy. The Respondent rejected all violation allegations, citing the Malian Code of Criminal Procedure, which empowers investigators to uncover the truth. It emphasized the investigator’s integrity and adherence to the presumption of innocence. Consequently, the Respondent argued that requests for monetary compensation should be dismissed due to lack of evidence.

In the judgment, the Court determined that questioning the Applicants during the preliminary investigation without granting them the right to legal counsel, as guaranteed by Article 7(1)(c) of the ACHPR and Article 14(3)(d) of the ICCPR, constitutes a violation of those rights. Additionally, the Court condemned any actions contrary to a neutral investigation outlined in Article 7 of the ACHPR and concluded that the Respondent has failed to fulfill its obligations to uphold these principles.

The Court recalled that the Applicants perceived themselves as witnesses, while the Respondent considered them as suspects, asserting the authority to label individuals under investigation. It emphasized that the presumption of innocence requires the Respondent not to prejudge the outcome of the investigation or trial. Referring to its jurisprudence, the Court underscored that the right to defense is a fundamental requirement, and based on the evidence presented, it adjudged that the Respondent breached the Applicants’ right to the presumption of innocence.

The Court recognized that in the present case, the First and Third Applicants suffered violations of the right to Counsel, fair, neutral, and adversarial proceedings, and the presumption of innocence during the preliminary investigation. After reviewing the submissions, it concluded that the Second Applicant was not connected to the violation; instead, the charges against her emerged after the completion of the preliminary investigation in which the violations occurred. Consequently, the Court decided that the First and Third Applicants are entitled to compensation for the infringement of their rights.

The other judges on the Panel were Justices Dupe Atoki (Presiding) and Ricardo Claúdio Monteiro Gonçalves (Member).