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THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 28 December 1998, the Government of the Republic of Guinea
(hereinafter “Guinea”) filed in the Registry of the Court an Application
instituting proceedings against the Democratic Republic of the Congo
(hereinafter the “DRC”, named Zaire between 1971 and 1997) in respect of a
dispute concerning “serious violations of international law” alleged to have
been committed “upon the person of a Guinean national”. The Application
consisted of two parts, each signed by Guinea’s Minister for Foreign
Affairs. The first part, entitled “Application” (hereinafter the
“Application (Part One)”), contained a succinct statement of the subject of
the dispute, the basis of the Court’s jurisdiction and the legal grounds
relied on. The second part, entitled “Memorial of the Republic of Guinea”
(hereinafter the “Application (Part Two)”), set out the facts underlying the
dispute, expanded on the legal grounds put forward by Guinea and stated
Guinea’s claims.
In the Application (Part One), Guinea maintained that:
“Mr. Ahmadou Sadio Diallo, a businessman of Guinean nationality, was
unjustly imprisoned by the authorities of the Democratic Republic of the
Congo, after being resident in that State for thirty-two (32) years,
despoiled of his sizable investments, businesses, movable and immovable
property and bank accounts, and then expelled.”
Guinea added: “[t]his expulsion came at a time when Mr. Ahmadou Sadio Diallo
was pursuing recovery of substantial debts owed to his businesses by the
State and by oil companies established in its territory and of which the
State is a shareholder”. Mr. Diallo’s arrest, detention and expulsion
constituted, inter alia, according to Guinea, violations of
“the principle that aliens should be treated in accordance with ‘a minimum
standard of civilization’, [of] the obligation to respect the freedom and
property of aliens, [and of] the right of aliens accused of an offence to a
fair trial on adversarial principles by an impartial court”.
To found the jurisdiction of the Court, Guinea invoked in the Application
(Part One) the declarations whereby the two States have recognized the
compulsory jurisdiction of the Court under Article 36, paragraph 2, of the
Statute of the Court.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately communicated to the Government of the DRC by the Registrar; and,
in accordance with paragraph 3 of that Article, all States entitled to
appear before the Court were notified of the Application.
3. By an Order of 25 November 1999, the Court fixed 11 September 2000 as the
time-limit for the filing of a Memorial by Guinea and 11 September 2001 as
the time-limit for the filing of a Counter-Memorial by the DRC. By an Order
of 8 September 2000, the President of the Court, at Guinea’s request,
extended the time-limit for the filing of the Memorial to 23 March 2001; in
the same Order, the time-limit for the filing of the Counter-Memorial was
extended to 4 October 2002. Guinea duly filed its Memorial within the
time-limit as thus extended.
4. Since the Court included upon the Bench no judge of the nationality of
either of the Parties, each of them availed itself of its right under
Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in
the case. Guinea chose Mr. Mohammed Bedjaoui and the DRC Mr. Auguste Mampuya
Kanunk’a-Tshiabo. Following Mr. Bedjaoui’s resignation on 10 September 2002,
Guinea chose Mr. Ahmed Mahiou.
5. On 3 October 2002, within the time-limit set in Article 79, paragraph 1,
of the Rules of Court as adopted on 14 April 1978, the DRC raised
preliminary objections in respect of the admissibility of Guinea’s
Application. In accordance with Article 79, paragraph 3, of the Rules of
Court, the proceedings on the merits were then suspended. By an Order of 7
November 2002, the Court, taking account of the particular circumstances of
the case and the agreement of the Parties, fixed 7 July 2003 as the
time-limit for the presentation by Guinea of a written statement of its
observations and submissions on the preliminary objections raised by the
DRC. Guinea filed such a statement within the time-limit fixed, and the case
thus became ready for hearing on the preliminary objections.
6. The Court held hearings on the preliminary objections raised by the DRC
from 27 November to 1 December 2006. In its Judgment of 24 May 2007, the
Court declared the Application of the Republic of Guinea to be admissible
“in so far as it concerns protection of Mr. Diallo’s rights as an
individual” and “in so far as it concerns protection of [his] direct rights
as associé in Africom-Zaire and Africontainers-Zaire”. On the other hand,
the Court declared the Application of the Republic of Guinea to be
inadmissible “in so far as it concerns protection of Mr. Diallo in respect
of alleged violations of rights of Africom-Zaire and Africontainers-Zaire”.
7. By an Order of 27 June 2007, the Court fixed 27 March 2008 as the
time-limit for the filing of the Counter-Memorial of the DRC. That pleading
was duly filed within the time-limit thus prescribed.
8. By an Order of 5 May 2008, the Court authorized the submission of a Reply
by Guinea and a Rejoinder by the DRC, and fixed 19 November 2008 and 5 June
2009 as the respective time-limits for the filing of those pleadings. The
Reply of Guinea and the Rejoinder of the DRC were duly filed within the
time-limits thus prescribed.
9. In accordance with Article 53, paragraph 2, of the Rules of Court, the
Court decided that, after ascertaining the views of the Parties, copies of
the pleadings and documents annexed would be made accessible to the public
on the opening of the oral proceedings.
10. Owing to the difficulties in the air transport sector following the
volcanic eruption in Iceland during April 2010, the public hearings which,
according to the schedule originally adopted, were due to be held from 19 to
23 April 2010 took place on 19, 26, 28 and 29 April 2010. At those hearings,
the Court heard the oral arguments and replies of:
For Guinea: Mr. Mohamed Camara, Mr. Luke Vidal, Mr. Jean-Marc Thouvenin, Mr.
Mathias Forteau, Mr. Sam Wordsworth, Mr. Daniel Müller, Mr. Alain Pellet.
For the DRC: Mr. Tshibangu Kalala.
11. At the hearings, Members of the Court put questions to the Parties, to
which replies were given orally and in writing, in accordance with Article
61, paragraph 4, of the Rules of Court.
12. In the Application (Part Two), the following requests were made by
Guinea:
“As to the merits: To order the authorities of the Democratic Republic of
the Congo to make an official public apology to the State of Guinea for the
numerous wrongs done to it in the person of its national Ahmadou Sadio
Diallo;
To find that the sums claimed are certain, liquidated and legally due;
To find that the Congolese State must assume responsibility for the payment
of these debts, in accordance with the principles of State responsibility
and civil liability;
To order the Congolese State to pay to the State of Guinea on behalf of its
national Ahmadou Sadio Diallo the sums of US$31,334,685,888.45 and
Z14,207,082,872.7 in respect of the financial loss suffered by him;
To pay also to the State of Guinea damages equal to 15 per cent of the
principal award, that is to say US$4,700,202,883.26 and Z2,131,062,430.9;
To award to the applicant State bank and moratory interest at respective
annual rates of 15 per cent and 26 per cent from the end of the year 1995
until the date of payment in full;
To order the said State to return to the Applicant all the unvalued assets
set out in the list of miscellaneous claims;
To order the Democratic Republic of the Congo to submit within one month an
acceptable schedule for the repayment of the above sums;
In the event that the said schedule is not produced by the date indicated or
is not respected, to authorize the State of Guinea to seize the assets of
the Congolese State wherever they may be found, up to an amount equal to the
principal sum due and such further amounts as the Court shall have ordered.
To order that the costs of the present proceedings be borne by the Congolese
State.” (Emphasis in the original.)
13. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of Guinea,
in the Memorial:
“The Republic of Guinea has the honour to request that it may please the
International Court of Justice to adjudge and declare:
(1) that, in arbitrarily arresting and expelling its national, Mr. Ahmadou
Sadio Diallo; in not at that time respecting his right to the benefit of the
provisions of the [1963] Vienna Convention on Consular Relations; in
subjecting him to humiliating and degrading treatment; in depriving him of
the exercise of his rights of ownership and management in respect of the
companies founded by him in the DRC; in preventing him from pursuing
recovery of the numerous debts owed to him - to himself personally and to
the said companies - both by the DRC itself and by other contractual
partners; in not paying its own debts to him and to his companies, the
Democratic Republic of the Congo has committed internationally wrongful acts
which engage its responsibility to the Republic of Guinea;
(2) that the Democratic Republic of the Congo is accordingly bound to make
full reparation on account of the injury suffered by the Republic of Guinea
in the person of its national;
(3) that such reparation shall take the form of compensation covering the
totality of the injuries caused by the internationally wrongful acts of the
Democratic Republic of the Congo including loss of earnings, and shall also
include interest.
The Republic of Guinea further requests the Court kindly to authorize it to
submit an assessment of the amount of the compensation due to it on this
account from the Democratic Republic of the Congo in a subsequent phase of
the proceedings in the event that the two Parties should be unable to agree
on the amount thereof within a period of six months following delivery of
the Judgment.”
in the Reply:
“On the grounds set out in its Memorial and in the present Reply, the
Republic of Guinea requests the International Court of Justice to adjudge
and declare:
that, in carrying out arbitrary arrests of its national, Mr. Ahmadou Sadio
Diallo, and expelling him; in not at that time respecting his right to the
benefit of the provisions of the 1963 Vienna Convention on Consular
Relations; in submitting him to humiliating and degrading treatment; in
depriving him of the exercise of his rights of ownership, oversight and
management in respect of the companies which he founded in the DRC and in
which he was the sole associé; in preventing him in that capacity from
pursuing recovery of the numerous debts owed to the said companies both by
the DRC itself and by other contractual partners; in expropriating de facto
Mr. Diallo’s property, the Democratic Republic of the Congo has committed
internationally wrongful acts which engage its responsibility to the
Republic of Guinea;
that the Democratic Republic of the Congo is accordingly bound to make full
reparation on account of the injury suffered by Mr. Diallo or by the
Republic of Guinea in the person of its national;
that such reparation shall take the form of compensation covering the
totality of the injuries caused by the internationally wrongful acts of the
Democratic Republic of the Congo, including loss of earnings, and shall also
include interest.
The Republic of Guinea further requests the Court kindly to authorize it to
submit an assessment of the amount of the compensation due to it on this
account from the Democratic Republic of the Congo in a subsequent phase of
the proceedings in the event that the two Parties should be unable to agree
on the amount thereof within a period of six months following delivery of
the Judgment.”
On behalf of the Government of the DRC,
in the Counter-Memorial:
“In the light of the arguments set out above and of the Court’s Judgment of
24 May 2007 on the preliminary objections, in which the Court declared
Guinea’s Application to be inadmissible in so far as it concerned protection
of Mr. Diallo in respect of alleged violations of rights belonging to
Africom-Zaire and Africontainers-Zaire, the Respondent respectfully requests
the Court to adjudge and declare that:
the Democratic Republic of the Congo has not committed any internationally
wrongful acts towards Guinea in respect of Mr. Diallo’s individual personal
rights;
the Democratic Republic of the Congo has not committed any internationally
wrongful acts towards Guinea in respect of Mr. Diallo’s direct rights as
associé in Africom-Zaire and Africontainers-Zaire;
accordingly, the Application of the Republic of Guinea is unfounded in fact
and in law.”
in the Rejoinder:
“While expressly reserving the right to supplement and expand on its grounds
in fact and in law and without admitting any statement that might be
prejudicial to it, the Respondent requests the Court to adjudge and declare
that:
the Democratic Republic of the Congo has not committed any internationally
wrongful acts towards Guinea in respect of Mr. Diallo’s individual personal
rights;
the Democratic Republic of the Congo has not committed any internationally
wrongful acts towards Guinea in respect of Mr. Diallo’s direct rights as
associé in Africontainers-Zaire or alleged associé in Africom-Zaire;
accordingly, the Application of the Republic of Guinea is unfounded in fact
and in law.”
14. At the oral proceedings, the following final submissions were presented
by the Parties:
On behalf of the Government of Guinea,
at the hearing of 28 April 2010:
“1. On the grounds set out in its Memorial, its Reply and the oral argument
now being concluded, the Republic of Guinea requests the International Court
of Justice to adjudge and declare:
(a) that, in carrying out arbitrary arrests of its national, Mr. Ahmadou
Sadio Diallo, and expelling him; in not at that time respecting his right to
the benefit of the provisions of the 1963 Vienna Convention on Consular
Relations; in submitting him to humiliating and degrading treatment; in
depriving him of the exercise of his rights of ownership, oversight and
management in respect of the companies which he founded in the DRC and in
which he was the sole associé; in preventing him in that capacity from
pursuing recovery of the numerous debts owed to the said companies both by
the DRC itself and by other contractual partners; and in expropriating de
facto Mr. Diallo’s property, the Democratic Republic of the Congo has
committed internationally wrongful acts which engage its responsibility to
the Republic of Guinea;
(b) that the Democratic Republic of the Congo is accordingly bound to make
full reparation on account of the injury suffered by Mr. Diallo or by the
Republic of Guinea in the person of its national;
(c) that such reparation shall take the form of compensation covering the
totality of the injuries caused by the internationally wrongful acts of the
Democratic Republic of the Congo, including loss of earnings, and shall also
include interest.
2. The Republic of Guinea further requests the Court kindly to authorize it
to submit an assessment of the amount of the compensation due to it on this
account from the Democratic Republic of the Congo in a subsequent phase of
the proceedings in the event that the two Parties should be unable to agree
on the amount thereof within a period of six months following delivery of
the Judgment.”
On behalf of the Government of the DRC,
at the hearing of 29 April 2010:
“In the light of the arguments referred to above and of the Court’s Judgment
of 24 May 2007 on the preliminary objections, whereby the Court declared
Guinea’s Application to be inadmissible in so far as it concerned protection
of Mr. Diallo in respect of alleged violations of rights of Africom-Zaire
and Africontainers-Zaire, the Respondent respectfully requests the Court to
adjudge and declare that:
the Democratic Republic of the Congo has not committed any internationally
wrongful acts towards Guinea in respect of Mr. Diallo’s individual personal
rights;
the Democratic Republic of the Congo has not committed any internationally
wrongful acts towards Guinea in respect of Mr. Diallo’s direct rights as
associé in Africom-Zaire and Africontainers-Zaire;
accordingly, the Application of the Republic of Guinea is unfounded in fact
and in law and no reparation is due.”
I. GENERAL FACTUAL BACKGROUND
15. The Court will begin with a brief description of the factual background
to the present case, as previously recalled in its Judgment on preliminary
objections of 24 May 2007 (Ahmadou Sadio Diallo (Republic of Guinea v.
Democratic Republic of the Congo), Preliminary Objections, Judgment, I.C.J.
Reports 2007 (II), pp. 590-591, paras. 13-15). It will return to each of the
relevant facts in greater detail when it comes to examine the legal claims
relating to them.
16. Mr. Ahmadou Sadio Diallo, a Guinean citizen, settled in the DRC in 1964.
There, in 1974, he founded an import-export company, Africom-Zaire, a
société privée à responsabilité limitée (private limited liability company,
hereinafter “SPRL”) incorporated under Zairean law and entered in the Trade
Register of the city of Kinshasa. In 1979 Mr. Diallo took part, as gérant
(manager) of Africom-Zaire, in the founding of a Zairean SPRL specializing
in the containerized transport of goods, Africontainers-Zaire. This company
was entered in the Trade Register of the city of Kinshasa and Mr. Diallo
became its gérant (see paragraphs 105-113 below).
17. At the end of the 1980s, Africom-Zaire and Africontainers-Zaire, acting
through their gérant, Mr. Diallo, instituted proceedings against their
business partners in an attempt to recover various debts. The various
disputes between Africom-Zaire or Africontainers-Zaire, on the one hand, and
their business partners, on the other, continued throughout the 1990s and
for the most part remain unresolved today (see paragraphs 109, 114, 136 and
150 below).
18. On 25 January 1988, Mr. Diallo was arrested and imprisoned. On 28
January 1989, the public prosecutor in Kinshasa ordered the release of Mr.
Diallo after the case was closed for “inexpediency of prosecution”.
19. On 31 October 1995, the Zairean Prime Minister issued an expulsion
decree against Mr. Diallo. On 5 November 1995, Mr. Diallo was arrested and
placed in detention with a view to his expulsion. After having been released
and rearrested, he was finally expelled from Congolese territory on 31
January 1996 (see paragraphs 50-60 below).
20. Having, in its Judgment of 24 May 2007, declared the Application of the
Republic of Guinea to be admissible “in so far as it concerns protection of
Mr. Diallo’s rights as an individual” and “in so far as it concerns
protection of [his] direct rights as associé in Africom-Zaire and
Africontainers-Zaire” (see paragraph 6 above), the Court will in turn
consider below the questions of the protection of Mr. Diallo’s rights as an
individual (see paragraphs 21-98) and of the protection of his direct rights
as associé in Africom-Zaire and Africontainers-Zaire (see paragraphs
99-159). In the light of the conclusions it comes to on these questions, it
will then examine the claims for reparation made by Guinea in its final
submissions (see paragraphs 160-164).
II. PROTECTION OF MR. DIALLO’S RIGHTS AS AN INDIVIDUAL
21. In its arguments as finally stated, Guinea maintains that Mr. Diallo was
the victim in 1988-1989 of arrest and detention measures taken by the DRC
authorities in violation of international law and in 1995-1996 of arrest,
detention and expulsion measures also in violation of international law.
Guinea reasons from this that it is entitled to exercise diplomatic
protection of its national in this connection.
22. The DRC maintains that the claim relating to the events in 1988-1989 was
presented belatedly and must therefore be rejected as inadmissible. In the
alternative, the DRC maintains that the said claim must be rejected because
of failure to exhaust local remedies, or, otherwise, rejected on the merits.
The DRC denies that Mr. Diallo’s treatment in 1995-1996 breached its
obligations under international law.
23. The Court must therefore first rule on the DRC’s argument contesting the
admissibility of the claim concerning the events in 1988-1989 before it can,
if necessary, consider the merits of that claim. It will then need to
consider the merits of the grievances relied upon by Guinea in support of
its claim concerning the events in 1995-1996, the admissibility of which is
no longer at issue in this phase of the proceedings.
A. The claim concerning the arrest and detention measures taken against Mr.
Diallo in 1988-1989
24. After asserting that it was only in the Reply that Guinea first set out
arguments in respect of the events in 1988-1989, the DRC in the Rejoinder
challenged the admissibility of the claim in question as follows:
“The Applicant is clearly seeking to put forward a new claim by means of the
Reply and consequently to amend the Application at an inappropriate stage of
the proceedings. This new claim, which is not in any way linked to the main
claim concerning the events of 1995 to 1996 forming the basis of this
dispute, entitles the [Respondent] to raise the objection of failure to
exhaust the local remedies available in the Congolese legal system with
respect to the arrest and detention of 1988-1989.”
The DRC reiterated this objection in like terms during the oral proceedings.
25. Thus enunciated, the Respondent’s objection amounts to a challenge to
the admissibility of the claim concerning the events of 1988-1989 on two
separate grounds: first, Guinea is alleged to have raised the claim at a
stage in the proceedings such that it was late, in view of the lack of a
sufficient connection between it and the claim advanced in the Application
instituting proceedings; second, this claim is alleged to be barred in any
case by an objection based on Mr. Diallo’s failure first to exhaust the
remedies available in the Congolese legal system.
26. The Court must commence by considering the first of these two grounds of
inadmissibility. If it concludes that the claim was in fact late and must
therefore be rejected without any consideration on the merits, there will be
no need for the Court to proceed any further. If, on the other hand, it
concludes that the claim was not asserted belatedly, it will need to
consider whether the DRC is entitled to raise, at this stage of the
proceedings, the objection of non-exhaustion of local remedies and, if so,
whether that objection is warranted. *
27. In order to decide whether the claim relating to the events in 1988-1989
was raised late, the Court must first ascertain exactly when the claim was
first asserted in the present proceedings.
28. To begin, note should be taken that there is nothing in the Application
instituting proceedings of 28 December 1998 referring to the events in
1988-1989. Granted, it is stated under the heading “Subject of the Dispute”
as defined in the Application that Mr. Diallo was “unjustly imprisoned . . .
despoiled . . . and then expelled”. But it is clear from the document
annexed to the Application (the Application (Part Two), see paragraph 1
above) that the “imprisonment” in question began on 5 November 1995 and,
according to Guinea, ended after a brief interruption with Mr. Diallo’s
physical expulsion on 31 January 1996 at Kinshasa airport. Nowhere in the
Application proper or in the annex to it is there any reference to Mr.
Diallo’s arrest and detention in 1988-1989.
29. Nor are these facts mentioned in the Memorial Guinea filed pursuant to
Article 49, paragraph 1, of the Rules of Court on 23 March 2001. That
Memorial contains an extensive discussion of the facts which have given rise
to the dispute. In respect of those corresponding to “arrest” and
“detention”, the events of 1995-1996 are described in detail, in the section
“The salient facts”, whereas no mention is made of any detention suffered by
Mr. Diallo in 1988-1989. True, the Court is requested in the final
“submissions” in the Memorial to declare that, “in arbitrarily arresting and
expelling . . . Mr. Diallo” [“en procédant à l’arrestation arbitraire et à
l’expulsion de . . . M. Diallo”], the DRC committed acts engaging its
international responsibility, without any further specification as to the
date and nature of the “arbitrary arrest” [“l’arrestation arbitraire”] in
question. But it is usual for the facts not to be treated in any detail in
the “submissions” which a Memorial is required to contain pursuant to
Article 49, paragraph 1, of the Rules of Court, because the submissions
follow the statement of facts, which the same provision of the Rules of
Court also requires, and they must be read in the light of that statement.
In the case at hand, the “arbitrary arrest” referred to in the submissions
in Guinea’s Memorial can only be the arrest Mr. Diallo suffered, according
to the Applicant, in 1995-1996 in view of the carrying out of the expulsion
decree issued against him in October 1995, not Mr. Diallo’s alleged arrest
in 1988-1989, of which there is no mention.
30. It was not until the Applicant filed its Written Observations on the
preliminary objections raised by the Respondent on 7 July 2003 that Mr.
Diallo’s arrest and detention in 1988-1989 were referred to for the first
time. But it is to be observed that the reference appears only in the first
chapter, entitled “The salient facts”, solely in the context of the refusal
of the Zairean authorities to pay sums to Africom-Zaire, and no further
mention is made of these events in the later chapters devoted to the
discussion from the legal perspective of the DRC’s objections to
admissibility.
31. In the opinion of the Court, the claim in respect of the events in
1988-1989 cannot be deemed to have been presented by Guinea in its “Written
Observations” of 7 July 2003. The purpose of those observations was to
respond to the DRC’s objections in respect of admissibility, in accordance
with the requirements of Article 79, paragraph 5, of the Rules of Court, in
the 1978 version applicable to these proceedings. As these were preliminary
objections, having been raised by the DRC within the time-limit for the
filing of its Counter-Memorial, the proceedings on the merits had been
suspended upon receipt by the Registry of the document setting them out, in
accordance with Article 79, paragraph 3, of the Rules of Court, in the
version applicable to the present proceedings. That is why Guinea confined
itself in its Written Observations of 7 July 2003 to submitting at the end
that the Court should “[r]eject the Preliminary Objections” and “[d]eclare
the Application . . . admissible”. As those were incidental proceedings
opened by virtue of the DRC’s preliminary objections, Guinea could not
present any submission other than those concerning the merit of the
objections and how the Court should deal with them. Accordingly, the
“Written Observations” of 7 July 2003 cannot be interpreted as having
introduced an additional claim by the Applicant into the proceedings. And it
would have been especially difficult for the Respondent to have so
interpreted them, given the object of the incidental proceedings. It is
hardly surprising then that the DRC did not refer, either in the oral
proceedings on the preliminary objections or in its Counter-Memorial, to the
facts alleged by Guinea in respect of 1988-1989.
32. Guinea first presented its claim in respect of the events in 1988-1989
in its Reply, filed on 19 November 2008, after the Court had handed down its
Judgment on the preliminary objections. The Reply describes in detail the
circumstances surrounding Mr. Diallo’s arrest and detention in 1988-1989,
states that these “inarguably figure among the wrongful acts for which
Guinea is seeking to have the Respondent held internationally responsible”
and indicates for the first time what, from the Applicant’s point of view,
were the international obligations, notably treaty-based ones, breached by
the Respondent in connection with the acts in question. Tellingly, whereas
in the final submissions in the Memorial Guinea asked the Court to adjudge
“that, in arbitrarily arresting and expelling . . . Mr. Ahmadou Sadio Diallo
. . . the Democratic Republic of the Congo has committed . . . acts which
engage its responsibility” [in the original French: “qu’en procédant à
l’arrestation arbitraire et à l’expulsion de . . . M. Ahmadou Sadio Diallo .
. . la République démocratique du Congo a commis des faits . . . qui
engagent sa responsabilité” (emphasis added)], the submissions in the Reply
are worded identically with the sole exception that the singular term
emphasized above is replaced by the plural: “arbitrary arrests” [“des
arrestations arbitraires”].
33. In response to the DRC’s objection based on the belated assertion of the
claim in question, Guinea gave no explanation as to why this claim was
introduced at such an advanced stage of the proceedings. It pointed out
however that the Court stated in paragraph 45 of its Judgment of 24 May 2007
on the Respondent’s preliminary objections in the present case:
“in its Memorial on the merits, Guinea described in detail the violations of
international law allegedly committed by the DRC against Mr. Diallo. Among
those cited is the claim that Mr. Diallo was arbitrarily arrested and
detained on two occasions, first in 1988 and then in 1995.” (I.C.J. Reports
2007 (II), p. 600, para. 45.)
34. The quoted passage erroneously refers to the arrest and detention in
1988 as included among the facts set out in the Memorial. This error of fact
had no effect on the conclusion reached by the Court in 2007, namely, that
Guinea’s Application was admissible in so far as it was aimed at exercising
diplomatic protection of Mr. Diallo in respect of alleged violations of his
rights as an individual. Guinea has not argued that the reference to the
year 1988 in paragraph 45 of the 2007 Judgment has any binding effect on the
Court at the present stage of the proceedings, and it clearly has no such
effect, since the operative part of the Judgment would have been no
different even if the error had not appeared in the quoted paragraph.
35. Having determined exactly when the claim concerning the events in
1988-1989 was introduced into the proceedings, the Court can now decide
whether that claim should be considered late and inadmissible as a result.
The Judgment handed down on 24 May 2007 on the DRC’s preliminary objections
does not prevent the Respondent from now raising the objection that the
additional claim was presented belatedly, since the claim was introduced, as
just stated, after delivery of the 2007 Judgment.
36. On the subject of additional claims introduced - by an Applicant - in
the course of proceedings, the Court has developed a jurisprudence which is
now well settled and is based on the relevant provisions of the Statute and
the Rules of Court, specifically Article 40, paragraph 1, of the former and
Article 38, paragraph 2, and Article 49, paragraph 1, of the latter.
37. Article 40, paragraph 1, of the Statute of the Court provides:
“1. Cases are brought before the Court, as the case may be, either by the
notification of the special agreement or by a written application addressed
to the Registrar. In either case the subject of the dispute and the parties
shall be indicated.” (Emphasis added.)
Article 38, paragraph 2, of the Rules of Court states:
“2. The application shall specify as far as possible the legal grounds upon
which the jurisdiction of the Court is said to be based; it shall also
specify the precise nature of the claim, together with a succinct statement
of the facts and grounds on which the claim is based.” (Emphasis added.)
Article 49, paragraph 1, of the Rules of Court reads:
“1. A Memorial shall contain a statement of the relevant facts, a statement
of law, and the submissions.” (Emphasis added.)
38. The Court has deemed these provisions “essential from the point of view
of legal security and the good administration of justice” (Certain Phosphate
Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, p. 267, para. 69). It has further observed that they
were already, in substance, part of the text of the Statute of the Permanent
Court of International Justice, adopted in 1920, and of the text of the
first Rules of that Court, adopted in 1922 (ibid.).
39. From these provisions, the Court has concluded that additional claims
formulated in the course of proceedings are inadmissible if they would
result, were they to be entertained, in transforming “the subject of the
dispute originally brought before [the Court] under the terms of the
Application” (Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J.
Reports 2007 (II), p. 695, para. 108). In this respect, it is the
Application which is relevant and the Memorial, “though it may elucidate the
terms of the Application, must not go beyond the limits of the claim as set
out therein” (Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 267, para. 69,
citing the Order of the Permanent Court of 4 February 1933 in the case
concerning Prince von Pless Administration (Order of 4 February 1933,
P.C.I.J., Series A/B, No. 52, p. 14)). A fortiori, a claim formulated
subsequent to the Memorial, as is the case here, cannot transform the
subject of the dispute as delimited by the terms of the Application.
40. The Court has however also made clear that “the mere fact that a claim
is new is not in itself decisive for the issue of admissibility” and that:
“In order to determine whether a new claim introduced during the course of
the proceedings is admissible [it] will need to consider whether, ‘although
formally a new claim, the claim in question can be considered as included in
the original claim in substance’.” (Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),
Judgment, I.C.J. Reports 2007 (II), p. 695, para. 110, in part quoting
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
Objections, Judgment, I.C.J. Reports 1992, pp. 265-266, para. 65.)
41. In other words, a new claim is not inadmissible ipso facto; the decisive
consideration is the nature of the connection between that claim and the one
formulated in the Application instituting proceedings.
In this regard the Court has also had the occasion to point out that, to
find that a new claim, as a matter of substance, has been included in the
original claim, “it is not sufficient that there should be links between
them of a general nature” (Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),
Judgment, I.C.J. Reports 2007 (II), p. 695, para. 110).
Drawing upon earlier cases, the Judgment handed down in the case concerning
Certain Phosphate Lands in Nauru (Nauru v. Australia), (Preliminary
Objections, Judgment, I.C.J. Reports 1992) formulated two alternative tests.
Either the additional claim must be implicit in the Application (as was the
case of one of the Applicant’s final submissions in the case concerning
Temple of Preah Vihear (Cambodia v. Thailand) (see the Judgment on the
merits, I.C.J. Reports 1962, p. 36)) or it must arise directly out of the
question which is the subject-matter of the Application (as was the case of
one of Nicaragua’s final submissions in the case concerning Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), cited above, paragraph 114).
42. These are the tests the Court now has to apply in the present case to
determine whether Guinea’s claim in respect of the events in 1988-1989,
which is “formally new” vis-à-vis the initial claim, is admissible.
43. The Court finds itself unable to consider this claim as being “implicit”
in the original claim as set forth in the Application. Leaving aside the
alleged violations of rights belonging to the companies owned by Mr. Diallo,
in respect of which the Application was held inadmissible in the Judgment
rendered on the preliminary objections, and the violations of Mr. Diallo’s
direct rights as associé, to be dealt with below, the initial claim
concerned violations of Mr. Diallo’s individual rights alleged by Guinea to
have resulted from the arrest, detention and expulsion measures taken
against him in 1995-1996. It is hard to see how allegations concerning other
arrest and detention measures, taken at a different time and in different
circumstances, could be regarded as “implicit” in the Application concerned
with the events in 1995-1996. This is especially so given that the legal
bases for Mr. Diallo’s arrests in 1988-1989, on the one hand, and 1995-1996,
on the other, were completely different. His first detention was carried out
as part of a criminal investigation into fraud opened by the Prosecutor’s
Office in Kinshasa. The second was ordered with a view to implementing an
expulsion decree, that is to say, as part of an administrative procedure.
Among other consequences, it follows that the applicable international rules
- which the DRC is accused of having violated - are different in part, and
that the domestic remedies on whose prior exhaustion the exercise of
diplomatic protection is as a rule contingent are also different in nature.
44. The last point deserves particular attention. Since, as noted above, the
new claim was introduced only at the Reply stage, the Respondent was no
longer able to assert preliminary objections to it, since such objections
have to be submitted, under Article 79 of the Rules of Court as applicable
to these proceedings, within the time-limit fixed for the delivery of the
Counter-Memorial (and, under that Article as in force since 1 February 2001,
within three months following delivery of the Memorial). A Respondent’s
right to raise preliminary objections, that is to say, objections which the
Court is required to rule on before the debate on the merits begins (see
Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p.
26, para. 47), is a fundamental procedural right. This right is infringed if
the Applicant asserts a substantively new claim after the Counter-Memorial,
which is to say at a time when the Respondent can still raise objections to
admissibility and jurisdiction, but not preliminary objections. This is
especially so in a case involving diplomatic protection if, as in the
present instance, the new claim concerns facts in respect of which the
remedies available in the domestic system are different from those which
could be pursued in respect of the facts underlying the initial claim.
45. Thus, it cannot be said that the additional claim in respect of the
events in 1988-1989 was “implicit” in the initial Application.
46. For similar reasons, the Court sees no possibility of finding that the
new claim “arises directly out of the question which is the subject-matter
of the Application”. Obviously, the mere fact that two questions are closely
related in subject-matter, in that they concern more or less comparable
facts and similar rights, does not mean that one arises out of the other.
Moreover, as already observed, the facts involved in Mr. Diallo’s detentions
in 1988-1989 and in 1995-1996 are dissimilar in nature, the domestic legal
framework is different in each case and the rights guaranteed by
international law are far from perfectly coincident. It would be
particularly odd to regard the claim concerning the events in 1988-1989 as
“arising directly” out of the issue forming the subject-matter of the
Application in that the claim concerns facts, perfectly well known to Guinea
on the date the Application was filed, which long pre-date those in respect
of which the Application (in that part of it concerning the alleged
violation of Mr. Diallo’s individual rights) was presented.
47. For all of the reasons set out above, the Court finds that the claim
concerning the arrest and detention measures to which Mr. Diallo was subject
in 1988-1989 is inadmissible.
48. In light of the above finding, there is no need for the Court to
consider whether the DRC is entitled to raise, at this stage in the
proceedings, an objection to the claim in question based on the failure to
exhaust local remedies, or, if so, whether the objection would be warranted.
B. The claim concerning the arrest, detention and expulsion measures taken
against Mr. Diallo in 1995-1996
1. The facts
49. Some of the facts relating to the arrest, detention and expulsion
measures taken against Mr. Diallo between October 1995 and January 1996 are
acknowledged by both Parties; others, in contrast, are in dispute.
50. The facts on which the Parties are in agreement are as follows.
An expulsion decree was issued against Mr. Diallo on 31 October 1995. This
decree, signed by the Prime Minister of Zaire, stated that: “[the] presence
and personal conduct [of Mr. Diallo] have breached Zairean public order,
especially in the economic, financial and monetary areas, and continue to do
so”.
On 5 November 1995, further to the above-mentioned decision and with a view
to its implementation, Mr. Diallo was arrested and placed in detention in
the premises of the immigration service.
On 10 January 1996, Mr. Diallo was released.
On 31 January 1996, Mr. Diallo was expelled to Abidjan, on a flight from
Kinshasa airport. He was served with a notice, drawn up that day, indicating
that he was the subject of a “refoulement on account of unauthorized
residence”.
51. However, the Parties disagree markedly concerning, on the one hand, Mr.
Diallo’s situation between 5 November 1995, when he was first arrested, and
his release on 10 January 1996, and, on the other hand, his situation during
the period between this latter date and his actual expulsion on 31 January
1996.
As regards the first of these periods, Guinea maintains that Mr. Diallo
remained continuously in detention: he is thus said to have been detained
for 66 consecutive days. In contrast, the DRC contends that Mr. Diallo was
released on 7 November 1995 - two days after his arrest - and placed under
surveillance. According to the DRC, having resumed his activities in breach
of public order, he was rearrested on an unspecified date, but in any event
not earlier than 2 January 1996. He is then said to have been released for a
second time on 10 January 1996, because the immigration service could not
find a flight leaving for Conakry within the eight-day legal time-limit
following his latest arrest. During the first period in question, therefore,
according to the DRC, Mr. Diallo was only detained for two days in the first
instance and subsequently for no longer than eight days.
With regard to the period from 10 January to 31 January 1996, Guinea
maintains that Mr. Diallo was rearrested on 14 January 1996, on the order of
the Congolese Prime Minister for the purpose of effecting the expulsion
decree, and kept in detention until he was deported from Kinshasa airport on
31 January, i.e., for another 17 days. On the other hand, the DRC asserts
that Mr. Diallo remained at liberty from 10 January to 25 January 1996, on
which date he was arrested prior to being expelled a few days later, on 31
January.
52. The Parties also differ as to how Mr. Diallo was treated during the
periods when he was deprived of his liberty, although on this aspect of the
dispute the disagreement relates less to the facts themselves than to their
characterization. According to Guinea, Mr. Diallo was held in dire and
difficult conditions; he was only able to receive food because of the visits
from his next of kin; and he was subjected to death threats from the persons
responsible for guarding him. The DRC contests this final point; for the
rest, it maintains that the conditions of Mr. Diallo’s detention did not
amount to inhuman and degrading treatment in breach of international law. *
53. Faced with a disagreement between the Parties as to the existence of the
facts relevant to the decision of the case, the Court must first address the
question of the burden of proof.
54. As a general rule, it is for the party which alleges a fact in support
of its claims to prove the existence of that fact (see, most recently, the
Judgment delivered in the case concerning Pulp Mills on the River Uruguay
(Argentina v. Uruguay), Judgment of 20 April 2010, para. 162).
However, it would be wrong to regard this rule, based on the maxim onus
probandi incumbit actori, as an absolute one, to be applied in all
circumstances. The determination of the burden of proof is in reality
dependent on the subject-matter and the nature of each dispute brought
before the Court; it varies according to the type of facts which it is
necessary to establish for the purposes of the decision of the case.
55. In particular, where, as in these proceedings, it is alleged that a
person has not been afforded, by a public authority, certain procedural
guarantees to which he was entitled, it cannot as a general rule be demanded
of the Applicant that it prove the negative fact which it is asserting. A
public authority is generally able to demonstrate that it has followed the
appropriate procedures and applied the guarantees required by law - if such
was the case - by producing documentary evidence of the actions that were
carried out. However, it cannot be inferred in every case where the
Respondent is unable to prove the performance of a procedural obligation
that it has disregarded it: that depends to a large extent on the precise
nature of the obligation in question; some obligations normally imply that
written documents are drawn up, while others do not. The time which has
elapsed since the events must also be taken into account.
56. It is for the Court to evaluate all the evidence produced by the two
Parties and duly subjected to adversarial scrutiny, with a view to forming
its conclusions. In short, when it comes to establishing facts such as those
which are at issue in the present case, neither party is alone in bearing
the burden of proof.
57. It is on the basis of the considerations set out above that the Court
will now pronounce on the facts which remain in dispute between the Parties.
*
58. The Court is not convinced by the DRC’s allegation that Mr. Diallo was
released as early as 7 November 1995 and then only rearrested at the
beginning of January 1996, before being freed again on 10 January. The
Court’s assessment is based on the following reasons.
There are two documents in the case file which prove that Mr. Diallo was
imprisoned on 5 November 1995 and freed again on 10 January 1996: these are
the committal note (billet d’écrou) bearing the first of these two dates and
the release document (billet de mise en liberté) which bears the second. If
it were true, as the DRC claims, that between these two dates Mr. Diallo was
released for the first time and then rearrested, it is hardly comprehensible
that the Respondent has been unable to produce any administrative documents
- or any other piece of evidence - to establish the reality of those events.
It is true that on 30 November 1995 - a date when Mr. Diallo was at liberty
according to the DRC’s version of the facts, whereas according to Guinea’s
allegations, he was in prison - he wrote a letter to the Zairean Prime
Minister and Minister of Finance transmitting to them the files concerning
the debts claimed by his companies, in which he makes no reference to his
detention. But the existence of this correspondence far from proves,
contrary to the assertions of the DRC, that Mr. Diallo was at liberty on
that date. It is a fact that, during the periods when he was deprived of his
liberty, Mr. Diallo was largely able to communicate with the outside world,
and that he was not prevented from engaging in written correspondence. The
letter of 30 November 1995 is therefore in no way conclusive.
59. Accordingly, the Court concludes that Mr. Diallo remained in continuous
detention for 66 days, from 5 November 1995 to 10 January 1996.
60. On the other hand, the Court does not accept the Applicant’s assertion
that Mr. Diallo was rearrested on 14 January 1996 and remained in detention
until he was expelled on 31 January. This claim, which is contested by the
Respondent, is not supported by any evidence at all; the Court also observes
that, in the written proceedings, Guinea stated the date of this alleged
arrest to be 17 and not 14 January. The Court therefore cannot regard the
second period of detention claimed by the Applicant, lasting 17 days, as
having been established. However, since the DRC has acknowledged that Mr.
Diallo was detained, at the latest, on 25 January 1996, the Court will take
it as established that he was in detention between 25 and 31 January 1996.
61. Nor can the Court accept the allegations of death threats said to have
been made against Mr. Diallo by his guards, in the absence of any evidence
in support of these allegations.
62. As regards the question of compliance of the authorities of the DRC with
their obligations under Article 36 (1) (b) of the Vienna Convention on
Consular Relations, the relevant facts will be examined at a later stage,
when the Court deals with that question (see paragraphs 90-97 below).
2. Consideration of the facts in the light of the applicable international
law
63. Guinea maintains that the circumstances in which Mr. Diallo was
arrested, detained and expelled in 1995-1996 constitute in several respects
a breach by the DRC of its international obligations.
First, the expulsion of Mr. Diallo is said to have breached Article 13 of
the International Covenant on Civil and Political Rights (hereinafter the
“Covenant”) of 16 December 1966, to which Guinea and the DRC became parties
on 24 April 1978 and 1 February 1977 respectively, as well as Article 12,
paragraph 4, of the African Charter on Human and Peoples’ Rights
(hereinafter the “African Charter”) of 27 June 1981, which entered into
force for Guinea on 21 October 1986, and for the DRC on 28 October 1987.
Second, Mr. Diallo’s arrest and detention are said to have violated Article
9, paragraphs 1 and 2, of the Covenant, and Article 6 of the African
Charter.
Third, Mr. Diallo is said to have suffered conditions in detention
comparable to forms of inhuman or degrading treatment that are prohibited by
international law.
Fourth and last, Mr. Diallo is said not to have been informed, when he was
arrested, of his right to request consular assistance from his country, in
violation of Article 36 (1) (b) of the Vienna Convention on Consular
Relations of 24 April 1963, which entered into force for Guinea on 30 July
1988 and for the DRC on 14 August 1976.
The Court will examine in turn whether each of these assertions is
well-founded.
(a) The alleged violation of Article 13 of the Covenant and Article 12,
paragraph 4, of the African Charter
64. Article 13 of the Covenant reads as follows:
“An alien lawfully in the territory of a State Party to the present Covenant
may be expelled therefrom only in pursuance of a decision reached in
accordance with law and shall, except where compelling reasons of national
security otherwise require, be allowed to submit the reasons against his
expulsion and to have his case reviewed by, and be represented for the
purpose before, the competent authority or a person or persons especially
designated by the competent authority.”
Likewise, Article 12, paragraph 4, of the African Charter provides that:
“A non-national legally admitted in a territory of a State Party to the
present Charter, may only be expelled from it by virtue of a decision taken
in accordance with the law.”
65. It follows from the terms of the two provisions cited above that the
expulsion of an alien lawfully in the territory of a State which is a party
to these instruments can only be compatible with the international
obligations of that State if it is decided in accordance with “the law”, in
other words the domestic law applicable in that respect. Compliance with
international law is to some extent dependent here on compliance with
internal law. However, it is clear that while “accordance with law” as thus
defined is a necessary condition for compliance with the above-mentioned
provisions, it is not the sufficient condition. First, the applicable
domestic law must itself be compatible with the other requirements of the
Covenant and the African Charter; second, an expulsion must not be arbitrary
in nature, since protection against arbitrary treatment lies at the heart of
the rights guaranteed by the international norms protecting human rights, in
particular those set out in the two treaties applicable in this case.
66. The interpretation above is fully corroborated by the jurisprudence of
the Human Rights Committee established by the Covenant to ensure compliance
with that instrument by the States parties (see for example, in this
respect, Maroufidou v. Sweden, No. 58/1979, para. 9.3; Human Rights
Committee, General Comment No. 15: The position of aliens under the
Covenant).
Since it was created, the Human Rights Committee has built up a considerable
body of interpretative case law, in particular through its findings in
response to the individual communications which may be submitted to it in
respect of States parties to the first Optional Protocol, and in the form of
its “General Comments”.
Although the Court is in no way obliged, in the exercise of its judicial
functions, to model its own interpretation of the Covenant on that of the
Committee, it believes that it should ascribe great weight to the
interpretation adopted by this independent body that was established
specifically to supervise the application of that treaty. The point here is
to achieve the necessary clarity and the essential consistency of
international law, as well as legal security, to which both the individuals
with guaranteed rights and the States obliged to comply with treaty
obligations are entitled.
67. Likewise, when the Court is called upon, as in these proceedings, to
apply a regional instrument for the protection of human rights, it must take
due account of the interpretation of that instrument adopted by the
independent bodies which have been specifically created, if such has been
the case, to monitor the sound application of the treaty in question. In the
present case, the interpretation given above of Article 12, paragraph 4, of
the African Charter is consonant with the case law of the African Commission
on Human and Peoples’ Rights established by Article 30 of the said Charter
(see, for example, Kenneth Good v. Republic of Botswana, No. 313/05, para.
204; World Organization against Torture and International Association of
Democratic Lawyers, International Commission of Jurists, Interafrican Union
for Human Rights v. Rwanda, No. 27/89, 46/91, 49/91, 99/93).
68. The Court also notes that the interpretation by the European Court of
Human Rights and the Inter-American Court of Human Rights, respectively, of
Article 1 of Protocol No. 7 to the (European) Convention for the Protection
of Human Rights and Fundamental Freedoms and Article 22, paragraph 6, of the
American Convention on Human Rights - the said provisions being close in
substance to those of the Covenant and the African Charter which the Court
is applying in the present case - is consistent with what has been found in
respect of the latter provisions in paragraph 65 above.
69. According to Guinea, the decision to expel Mr. Diallo first breached
Article 13 of the Covenant and Article 12, paragraph 4, of the African
Charter because it was not taken in accordance with Congolese domestic law,
for three reasons: it should have been signed by the President of the
Republic and not by the Prime Minister; it should have been preceded by
consultation of the National Immigration Board; and it should have indicated
the grounds for the expulsion, which it failed to do.
70. The Court is not convinced by the first of these arguments. It is true
that Article 15 of the Zairean Legislative Order of 12 September 1983
concerning immigration control, in the version in force at the time,
conferred on the President of the Republic, and not the Prime Minister, the
power to expel an alien. However, the DRC explains that since the entry into
force of the Constitutional Act of 9 April 1994, the powers conferred by
particular legislative provisions on the President of the Republic are
deemed to have been transferred to the Prime Minister - even though such
provisions have not been formally amended - under Article 80 (2) of the new
Constitution, which provides that “the Prime Minister shall exercise
regulatory power by means of decrees deliberated upon in the Council of
Ministers”.
The Court recalls that it is for each State, in the first instance, to
interpret its own domestic law. The Court does not, in principle, have the
power to substitute its own interpretation for that of the national
authorities, especially when that interpretation is given by the highest
national courts (see, for this latter case, Serbian Loans, Judgment No. 14,
1929, P.C.I.J., Series A, No. 20, p. 46 and Brazilian Loans, Judgment No.
15, 1929, P.C.I.J., Series A, No. 21, p. 124). Exceptionally, where a State
puts forward a manifestly incorrect interpretation of its domestic law,
particularly for the purpose of gaining an advantage in a pending case, it
is for the Court to adopt what it finds to be the proper interpretation.
71. That is not the situation here. The DRC’s interpretation of its
Constitution, from which it follows that Article 80 (2) produces certain
effects on the laws already in force on the date when that Constitution was
adopted, does not seem manifestly incorrect. It has not been contested that
this interpretation corresponded, at the time in question, to the general
practice of the constitutional authorities. The DRC has included in the case
file, in this connection, a number of other expulsion decrees issued at the
same time and all signed by the Prime Minister. Consequently, although it
would be possible in theory to discuss the validity of that interpretation,
it is certainly not for the Court to adopt a different interpretation of
Congolese domestic law for the purposes of the decision of this case. It
therefore cannot be concluded that the decree expelling Mr. Diallo was not
issued “in accordance with law” by virtue of the fact that it was signed by
the Prime Minister.
72. However, the Court is of the opinion that this decree did not comply
with the provisions of Congolese law for two other reasons.
First, it was not preceded by consultation of the National Immigration
Board, whose opinion is required by Article 16 of the above-mentioned
Legislative Order concerning immigration control before any expulsion
measure is taken against an alien holding a residence permit. The DRC has
not contested either that Mr. Diallo’s situation placed him within the scope
of this provision, or that consultation of the Board was neglected. This
omission is confirmed by the absence in the decree of a citation mentioning
the Board’s opinion, whereas all the other expulsion decrees included in the
case file specifically cite such an opinion, in accordance with Article 16
of the Legislative Order, moreover, which concludes by stipulating that the
decision “shall mention the fact that the Board was consulted”.
Second, the expulsion decree should have been “reasoned” pursuant to Article
15 of the 1983 Legislative Order; in other words, it should have indicated
the grounds for the decision taken. The fact is that the general,
stereotyped reasoning included in the decree cannot in any way be regarded
as meeting the requirements of the legislation. The decree confines itself
to stating that the “presence and conduct [of Mr. Diallo] have breached
Zairean public order, especially in the economic, financial and monetary
areas, and continue to do so”. The first part of this sentence simply
paraphrases the legal basis for any expulsion measure according to Congolese
law, since Article 15 of the 1983 Legislative Order permits the expulsion of
any alien “who, by his presence or conduct, breaches or threatens to breach
the peace or public order”. As for the second part, while it represents an
addition, this is so vague that it is impossible to know on the basis of
which activities the presence of Mr. Diallo was deemed to be a threat to
public order (in the same sense, mutatis mutandis, see Certain Questions of
Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J.
Reports 2008, p. 231, para. 152).
The formulation used by the author of the decree therefore amounts to an
absence of reasoning for the expulsion measure.
73. The Court thus concludes that in two important respects, concerning
procedural guarantees conferred on aliens by Congolese law and aimed at
protecting the persons in question against the risk of arbitrary treatment,
the expulsion of Mr. Diallo was not decided “in accordance with law”.
Consequently, regardless of whether that expulsion was justified on the
merits, a question to which the Court will return later in this Judgment,
the disputed measure violated Article 13 of the Covenant and Article 12,
paragraph 4, of the African Charter.
74. Furthermore, the Court considers that Guinea is justified in contending
that the right afforded by Article 13 to an alien who is subject to an
expulsion measure to “submit the reasons against his expulsion and to have
his case reviewed by . . . the competent authority” was not respected in the
case of Mr. Diallo.
It is indeed certain that, neither before the expulsion decree was signed on
31 October 1995, nor subsequently but before the said decree was implemented
on 31 January 1996, was Mr. Diallo allowed to submit his defence to a
competent authority in order to have his arguments taken into consideration
and a decision made on the appropriate response to be given to them.
It is true, as the DRC has pointed out, that Article 13 of the Covenant
provides for an exception to the right of an alien to submit his reasons
where “compelling reasons of national security” require otherwise. The
Respondent maintains that this was precisely the case here. However, it has
not provided the Court with any tangible information that might establish
the existence of such “compelling reasons”. In principle, it is doubtless
for the national authorities to consider the reasons of public order that
may justify the adoption of one police measure or another. But when this
involves setting aside an important procedural guarantee provided for by an
international treaty, it cannot simply be left in the hands of the State in
question to determine the circumstances which, exceptionally, allow that
guarantee to be set aside. It is for the State to demonstrate that the
“compelling reasons” required by the Covenant existed, or at the very least
could reasonably have been concluded to have existed, taking account of the
circumstances which surrounded the expulsion measure.
In the present case, no such demonstration has been provided by the
Respondent.
On these grounds too, the Court concludes that Article 13 of the Covenant
was violated in respect of the circumstances in which Mr. Diallo was
expelled.
(b) The alleged violation of Article 9, paragraphs 1 and 2, of the Covenant
and Article 6 of the African Charter
75. Article 9, paragraphs 1 and 2, of the Covenant provides that:
“1. Everyone has the right to liberty and security of person. No one shall
be subjected to arbitrary arrest or detention. No one shall be deprived of
his liberty except on such grounds and in accordance with such procedure as
are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the
reasons for his arrest and shall be promptly informed of any charges against
him.”
Article 6 of the African Charter provides that:
“Every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be
arbitrarily arrested or detained.”
76. According to Guinea, the above-mentioned provisions were violated when
Mr. Diallo was arrested and detained in 1995-1996 for the purpose of
implementing the expulsion decree, for a number of reasons.
First, the deprivations of liberty which he suffered did not take place “in
accordance with such procedure as [is] established by law” within the
meaning of Article 9, paragraph 1, of the Covenant, or on the basis of
“conditions previously laid down by law” within the meaning of Article 6 of
the African Charter.
Second, they were “arbitrary” within the meaning of these provisions.
Third, Mr. Diallo was not informed, at the time of his arrests, of the
reasons for those arrests, nor was he informed of the charges against him,
which constituted a violation of Article 9, paragraph 2, of the Covenant.
The Court will examine in turn whether each of these assertions is
well-founded.
77. First of all, it is necessary to make a general remark. The provisions
of Article 9, paragraphs 1 and 2, of the Covenant, and those of Article 6 of
the African Charter, apply in principle to any form of arrest or detention
decided upon and carried out by a public authority, whatever its legal basis
and the objective being pursued (see in this respect, with regard to the
Covenant, the Human Rights Committee’s General Comment No. 8 of 30 June 1982
concerning the right to liberty and security of person (Human Rights
Committee, CCPR General Comment No. 8: Article 9 (Right to Liberty and
Security of Person))). The scope of these provisions is not, therefore,
confined to criminal proceedings; they also apply, in principle, to measures
which deprive individuals of their liberty that are taken in the context of
an administrative procedure, such as those which may be necessary in order
to effect the forcible removal of an alien from the national territory. In
this latter case, it is of little importance whether the measure in question
is characterized by domestic law as an “expulsion” or a “refoulement”. The
position is only different as regards the requirement in Article 9,
paragraph 2, of the Covenant that the arrested person be “informed of any
charges” against him, a requirement which is only meaningful in the context
of criminal proceedings.
78. The Court now turns to the first of Guinea’s three allegations, namely,
that Mr. Diallo’s arrest and detention were not in accordance with the
requirements of the law of the DRC. It should first be noted that Mr.
Diallo’s arrest on 5 November 1995 and his detention until 10 January 1996
(see paragraph 58 above) were for the purpose of enabling the expulsion
decree issued against him on 31 October 1995 to be effected. The second
arrest, on 25 January 1996 at the latest, was also for the purpose of
implementing that decree: the mention of a “refoulement” on account of
“illegal residence” in the notice served on Mr. Diallo on 31 January 1996,
the day when he was actually expelled, was clearly erroneous, as the DRC
acknowledges.
79. Article 15 of the Legislative Order of 12 September 1983 concerning
immigration control, as in force at the time of Mr. Diallo’s arrest and
detention, provided that an alien “who is likely to evade implementation” of
an expulsion measure may be imprisoned for an initial period of 48 hours,
which may be “extended by 48 hours at a time, but shall not exceed eight
days”. The Court finds that Mr. Diallo’s arrest and detention were not in
accordance with these provisions. There is no evidence that the authorities
of the DRC sought to determine whether Mr. Diallo was “likely to evade
implementation” of the expulsion decree and, therefore, whether it was
necessary to detain him. The fact that he made no attempt to evade expulsion
after he was released on 10 January 1996 suggests that there was no need for
his detention. The overall length of time for which he was detained - 66
days following his initial arrest and at least six more days following the
second arrest - greatly exceeded the maximum period permitted by Article 15.
In addition, the DRC has produced no evidence to show that the detention was
reviewed every 48 hours, as required by that provision.
80. The Court further finds, in response to the second allegation set out
above (see paragraph 76 above), that Mr. Diallo’s arrest and detention were
arbitrary within the meaning of Article 9, paragraph 1, of the Covenant and
Article 6 of the African Charter.
81. Admittedly, in principle an arrest or detention aimed at effecting an
expulsion decision taken by the competent authority cannot be characterized
as “arbitrary” within the meaning of the above-mentioned provisions, even if
the lawfulness of the expulsion decision might be open to question.
Consequently, the fact that the decree of 31 October 1995 was not issued, in
some respects, “in accordance with law”, as the Court has noted above in
relation to Article 13 of the Covenant and Article 12, paragraph 4, of the
African Charter, is not sufficient to render the arrest and detention aimed
at implementing that decree “arbitrary” within the meaning of Article 9,
paragraph 1, of the Covenant and Article 6 of the African Charter.
82. However, account should be taken here of the number and seriousness of
the irregularities tainting Mr. Diallo’s detentions. As noted above, he was
held for a particularly long time and it would appear that the authorities
made no attempt to ascertain whether his detention was necessary.
Moreover, the Court can but find not only that the decree itself was not
reasoned in a sufficiently precise way, as was pointed out above (see
paragraph 70), but that throughout the proceedings, the DRC has never been
able to provide grounds which might constitute a convincing basis for Mr.
Diallo’s expulsion. Allegations of “corruption” and other offences have been
made against Mr. Diallo, but no concrete evidence has been presented to the
Court to support these claims. These accusations did not give rise to any
proceedings before the courts or, a fortiori, to any conviction.
Furthermore, it is difficult not to discern a link between Mr. Diallo’s
expulsion and the fact that he had attempted to recover debts which he
believed were owed to his companies by, amongst others, the Zairean State or
companies in which the State holds a substantial portion of the capital,
bringing cases for this purpose before the civil courts. Under these
circumstances, the arrest and detention aimed at allowing such an expulsion
measure, one without any defensible basis, to be effected can only be
characterized as arbitrary within the meaning of Article 9, paragraph 1, of
the Covenant and Article 6 of the African Charter.
83. Finally, the Court turns to the allegation relating to Article 9,
paragraph 2, of the Covenant. For the reasons discussed above (see paragraph
77), Guinea cannot effectively argue that at the time of each of his arrests
(in November 1995 and January 1996), Mr. Diallo was not informed of the
“charges against him”, as the Applicant contends is required by Article 9,
paragraph 2, of the Covenant. This particular provision of Article 9 is
applicable only when a person is arrested in the context of criminal
proceedings; that was not the case for Mr. Diallo.
84. On the other hand, Guinea is justified in arguing that Mr. Diallo’s
right to be “informed, at the time of arrest, of the reasons for his arrest”
— a right guaranteed in all cases, irrespective of the grounds for the
arrest — was breached. The DRC has failed to produce a single document or
any other form of evidence to prove that Mr. Diallo was notified of the
expulsion decree at the time of his arrest on 5 November 1995, or that he
was in some way informed, at that time, of the reason for his arrest.
Although the expulsion decree itself did not give specific reasons, as
pointed out above (see paragraph 72), the notification of this decree at the
time of Mr. Diallo’s arrest would have informed him sufficiently of the
reasons for that arrest for the purposes of Article 9, paragraph 2, since it
would have indicated to Mr. Diallo that he had been arrested for the purpose
of an expulsion procedure and would have allowed him, if necessary, to take
the appropriate steps to challenge the lawfulness of the decree. However, no
information of this kind was provided to him; the DRC, which should be in a
position to prove the date on which Mr. Diallo was notified of the decree,
has presented no evidence to that effect.
85. The same applies to Mr. Diallo’s arrest in January 1996. On that date,
it has also not been established that Mr. Diallo was informed that he was
being forcibly removed from Congolese territory in execution of an expulsion
decree. Moreover, on the day when he was actually expelled, he was given the
incorrect information that he was the subject of a “refoulement” on account
of his “illegal residence” (see paragraph 50 above). This being so, the
requirement for him to be informed, laid down by Article 9, paragraph 2, of
the Covenant, was not complied with on that occasion either.
(c) The alleged violation of the prohibition on subjecting a detainee to
mistreatment
86. Guinea maintains that Mr. Diallo was subjected to mistreatment during
his detention, because of the particularly tough conditions thereof, because
he was deprived of his right to communicate with his lawyers and with the
Guinean Embassy, and because he received death threats from the guards.
87. The Applicant invokes in this connection Article 10, paragraph 1, of the
Covenant, according to which: “All persons deprived of their liberty shall
be treated with humanity and with respect for the inherent dignity of the
human person.”
Article 7 of the Covenant, providing that “[n]o one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment”, and
Article 5 of the African Charter, stating that “[e]very individual shall
have the right to the respect of the dignity inherent in a human being”, are
also pertinent in this area.
There is no doubt, moreover, that the prohibition of inhuman and degrading
treatment is among the rules of general international law which are binding
on States in all circumstances, even apart from any treaty commitments.
88. The Court notes, however, that Guinea has failed to demonstrate
convincingly that Mr. Diallo was subjected to such treatment during his
detention. There is no evidence to substantiate the allegation that he
received death threats. It seems that Mr. Diallo was able to communicate
with his relatives and his lawyers without any great difficulty and, even if
this had not been the case, such constraints would not per se have
constituted treatment prohibited by Article 10, paragraph 1, of the Covenant
and by general international law. The question of Mr. Diallo’s
communications with the Guinean authorities is distinct from that of
compliance with the provisions currently under examination and will be
addressed under the next heading, in relation to Article 36, paragraph 1
(b), of the Vienna Convention on Consular Relations. Finally, that Mr.
Diallo was fed thanks to the provisions his relatives brought to his place
of detention — which the DRC does not contest — is insufficient in itself to
prove mistreatment, since access by the relatives to the individual deprived
of his liberty was not hindered.
89. In conclusion, the Court finds that it has not been demonstrated that
Mr. Diallo was subjected to treatment prohibited by Article 10, paragraph 1,
of the Covenant.
(d) The alleged violation of the provisions of Article 36, paragraph 1 (b),
of the Vienna Convention on Consular Relations
90. Article 36, paragraph 1 (b), of the Vienna Convention on Consular
Relations provides that: “[I]f he so requests, the competent authorities of
the receiving State shall, without delay, inform the consular post of the
sending State if, within its consular district, a national of that State is
arrested or committed to prison or to custody pending trial or is detained
in any other manner. Any communication addressed to the consular post by the
person arrested, in prison, custody or detention shall be forwarded by the
said authorities without delay. The said authorities shall inform the person
concerned without delay of his rights under this subparagraph.”
91. These provisions, as is clear from their very wording, are applicable to
any deprivation of liberty of whatever kind, even outside the context of
pursuing perpetrators of criminal offences. They therefore apply in the
present case, which the DRC does not contest.
92. According to Guinea, these provisions were violated when Mr. Diallo was
arrested in November 1995 and January 1996, because he was not informed
“without delay” at those times of his right to seek assistance from the
consular authorities of his country.
93. At no point in the written proceedings or the first round of oral
argument did the DRC contest the accuracy of Guinea’s allegations in this
respect; it did not attempt to establish, or even claim, that the
information called for by the last sentence of the quoted provision was
supplied to Mr. Diallo, or that it was supplied “without delay”, as the text
requires. The Respondent replied to the Applicant’s allegation with two
arguments: that Guinea had failed to prove that Mr. Diallo requested the
Congolese authorities to notify the Guinean consular post without delay of
his situation; and that the Guinean Ambassador in Kinshasa was aware of Mr.
Diallo’s arrest and detention, as evidenced by the steps he took on his
behalf.
94. It was only in replying to a question put by a judge during the hearing
of 26 April 2010 that the DRC asserted for the first time that it had
“orally informed Mr. Diallo immediately after his detention of the
possibility of seeking consular assistance from his State” (written reply by
the DRC handed in to the Registry on 27 April 2010 and confirmed orally at
the hearing of 29 April, during the second round of oral argument).
95. The Court notes that the two arguments put forward by the DRC before the
second round of oral pleadings lack any relevance. It is for the authorities
of the State which proceeded with the arrest to inform on their own
initiative the arrested person of his right to ask for his consulate to be
notified; the fact that the person did not make such a request not only
fails to justify non-compliance with the obligation to inform which is
incumbent on the arresting State, but could also be explained in some cases
precisely by the fact that the person had not been informed of his rights in
that respect (Avena and Other Mexican Nationals (Mexico v. United States of
America), Judgment, I.C.J. Reports 2004 (I), p. 46, para. 76). Moreover, the
fact that the consular authorities of the national State of the arrested
person have learned of the arrest through other channels does not remove any
violation that may have been committed of the obligation to inform that
person of his rights “without delay”.
96. As for the DRC’s assertion, made in the conditions described above, that
Mr. Diallo was “orally informed” of his rights upon his arrest, the Court
can but note that it was made very late in the proceedings, whereas the
point was at issue from the beginning, and that there is not the slightest
piece of evidence to corroborate it. The Court is therefore unable to give
it any credit.
97. Consequently, the Court finds that there was a violation by the DRC of
Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations.
*
98. Guinea has further contended that Mr. Diallo’s expulsion, given the
circumstances in which it was carried out, violated his right to property,
guaranteed by Article 14 of the African Charter, because he had to leave
behind most of his assets when he was forced to leave the Congo.
In the Court’s view, this aspect of the dispute has less to do with the
lawfulness of Mr. Diallo’s expulsion in the light of the DRC’s international
obligations and more to do with the damage Mr. Diallo suffered as a result
of the internationally wrongful acts of which he was a victim. The Court
will therefore examine it later in this Judgment, within the context of the
question of reparation owed by the Respondent (see paragraphs 160-164
below).
III. PROTECTION OF MR. DIALLO’S DIRECT RIGHTS AS ASSOCIÉ IN AFRICOM-ZAIRE
AND AFRICONTAINERS-ZAIRE
99. Africom-Zaire and Africontainers-Zaire are two corporate entities
incorporated under Zairean law in the form of sociétés privées à
responsabilité limitée (SPRLs) and entered in the Trade Register of the city
of Kinshasa. Because the SPRL, as a form of commercial company, is specific
to civil-law systems and has no precise equivalent in common-law systems,
the Court will use certain French terms of DRC law in the English version of
the present Judgment, namely, parts sociales, associé, gérant, gérance and
gérant associé. The capital of an SPRL is divided into equal parts sociales.
Under Article 36 of the Decree of the Independent State of Congo of 27
February 1887 on commercial corporations, as amended by the Decree of 23
June 1960 (hereinafter: “the 1887 Decree”), the parts are nominative and not
freely transferable. They are also “uniform”, i.e., they confer identical
rights upon their holders (called associés: see, e.g., Articles 43, 44, 45
and 51 of the 1887 Decree). Management (the gérance) of an SPRL is entrusted
to an agent, called the gérant, who may also be an associé (in which case
there is a gérant associé).
100. In its Judgment of 24 May 2007, the Court stated that it did not have
“to determine, at [the preliminary objections] stage . . ., which specific
rights appertain to the status of associé and which to the position of
gérant of an SPRL under Congolese law”, but that it was
“at the merits stage, as appropriate, that [it] will have to define the
precise nature, content and limits of these rights. It is also at that stage
of the proceedings that it will be for the Court, if need be, to assess the
effects on these various rights of the action against Mr. Diallo.” (I.C.J.
Reports 2007 (II), p. 606, para. 66.)
101. In its final submissions, Guinea asked the Court to find that, on the
issue of Mr. Diallo’s direct rights as associé, the DRC had committed
several internationally wrongful acts which engage its responsibility
towards Guinea. Specifically, Guinea contended that the DRC had breached its
international obligations by:
“depriving [Mr. Diallo] of the exercise of his rights of ownership,
oversight and management in respect of the companies which he founded in the
DRC and in which he was the sole associé; [by] preventing him in that
capacity from pursuing recovery of the numerous debts owed to the said
companies both by the DRC itself and by other contractual partners; and [by]
expropriating de facto Mr. Diallo’s property”.
102. In contrast, the DRC reiterated in its final submissions that it had
committed no internationally wrongful acts towards Guinea in respect of Mr.
Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire.
*
103. Before addressing the various claims made by the Parties in this
regard, it is necessary for the Court to clarify matters relating to the
legal existence of the two companies and to Mr. Diallo’s role and
participation in them. Indeed, as the Court found in its Judgment of 24 May
2007, the rights of associés are “their direct rights in relation to a legal
person” (I.C.J. Reports 2007 (II), p. 606, para. 64; emphasis added). In
other words, direct rights as associé exist because companies have
“juridical personalities distinct from those of the associés” (as stated in
Article 1 of the Congolese Decree of 27 February 1887 on commercial
corporations), and they are rights of the associés in their relationship
with the company whose parts they hold. In the present case, it is
especially important to clarify the issues of the legal existence of the
companies and of Mr. Diallo’s participation and role in them, since Guinea
claims that he was the sole gérant and also, directly or indirectly, the
sole associé of the two companies. As mentioned by the Court in its Judgment
of 24 May 2007, Guinea maintains that “in fact and in law it was virtually
impossible to distinguish Mr. Diallo from his companies” (I.C.J. Reports
2007 (II), p. 604, para. 56). The DRC, for its part, considers that the
number of parts held by Mr. Diallo in Africom-Zaire has never been
indisputably established; it adds that the two companies are still formally
in existence and are therefore to be distinguished from Mr. Diallo as
associé. Moreover, the DRC contends that, for lack of any commercial
activity, the two SPRLs were in a state of “undeclared bankruptcy” for many
years before Mr. Diallo’s expulsion.
104. In order to determine Mr. Diallo’s legal rights as associé in
Africom-Zaire and Africontainers-Zaire, and whether those rights have been
infringed, the Court will have to examine in the first instance the
existence and structure of those companies under DRC law. As the Court
stated in the Barcelona Traction case:
“In this field international law is called upon to recognize institutions of
municipal law that have an important and extensive role in the international
field . . . All it means is that international law has had to recognize the
corporate entity as an institution created by States in a domain essentially
within their domestic jurisdiction. This in turn requires that, whenever
legal issues arise concerning the rights of States with regard to the
treatment of companies and shareholders, as to which rights international
law has not established its own rules, it has to refer to the relevant rules
of municipal law.” (Barcelona Traction, Light and Power Company, Limited
(Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, pp. 33-34,
para. 38.)
In the Judgment of 24 May 2007, the Court has already found that Mr.
Diallo’s direct rights as associé “are defined by the domestic law” of the
DRC, being the State of incorporation of the companies (I.C.J. Reports 2007
(II), p. 606, para. 64), and that the Congolese Decree of 27 February 1887
on commercial corporations must in particular be referred to “in order to
establish the precise legal nature of Africom-Zaire and
Africontainers-Zaire” (ibid., p. 605, para. 62).
105. In its Judgment of 24 May 2007, the Court observed that, under the
Decree of 27 February 1887, SPRLs are companies “which are formed by persons
whose liability is limited to their capital contributions; which are not
publicly held companies; and in which the parts sociales, required to be
uniform and nominative, are not freely transferable” (Article 36 of the
Decree of 27 February 1887 on commercial corporations; I.C.J. Reports 2007
(II), p. 594, para. 25; see paragraph 99 above). The Court also stated that
“Congolese law accords an SPRL independent legal personality distinct from
that of its associés, particularly in that the property of the associés is
completely separate from that of the company, and in that the associés are
responsible for the debts of the company only to the extent of the resources
they have subscribed. Consequently, the company’s debts receivable from and
owing to third parties relate to its respective rights and obligations. As
the Court pointed out in the Barcelona Traction case: ‘So long as the
company is in existence the shareholder has no right to the corporate
assets.’ (I.C.J. Reports 1970, p. 34, para. 41.) This remains the
fundamental rule in this respect, whether for an SPRL or for a public
limited company.” (I.C.J. Reports 2007 (II), p. 606, para. 63.)
106. It is not disputed that Africom-Zaire, an import-export company, was
founded in 1974 by Mr. Diallo, and that he has been the gérant of that
company for many years. As mentioned below (see paragraph 110), it was in
that capacity that Mr. Diallo took part in the creation of
Africontainers-Zaire. Guinea contends that he was also the sole associé of
Africom-Zaire. This has however been questioned by the DRC in the course of
the proceedings. In particular, the DRC contends that the number of parts
held by Mr. Diallo in Africom-Zaire has never been duly documented and that
Guinea has not established that he was still an associé of that company at
the time of his expulsion.
107. Because the record before the Court does not include Africom-Zaire’s
Articles of Incorporation, the Court is unable to determine precisely the
nature and extent of Mr. Diallo’s holding in that company at the time it was
formed. Nevertheless, as DRC law requires that an SPRL be formed by more
than one associé - as seen in the relevant Articles of the 1887 Decree,
including Article 36, cited above (“[a]n [SPRL] is a company formed by
persons” (emphasis added)) and Article 78, which refers to the general
meeting “of the associés” - and since neither of the Parties has contested
the fact that Africom-Zaire was duly formed as an SPRL under the 1887
Decree, the conclusion is inescapable that, at the very first stage of its
existence, Africom-Zaire must have had, besides Mr. Diallo, at least one
other associé.
108. As the Court has not been provided with minutes of general meetings of
Africom-Zaire, it is unable to conclude whether Mr. Diallo has become the
sole associé of that SPRL and, if so, when this occurred. In the opinion of
the Court, that factual issue is however of no legal consequence to the
issue under consideration here, since it has not been established that,
under DRC law, an SPRL automatically ceases to exist as a legal person when
all its parts sociales come to be owned by a single person. Moreover, it is
clear that in practice, the business activities of Africom-Zaire in the DRC
were not in any way impaired by the fact that it may have become a
unipersonal SPRL. This is shown by the commercial relationship established
by Africom-Zaire with the authorities of Zaire (and later the DRC), in which
no questions or objections were advanced as to the legal nature of
Africom-Zaire and the fact that it may have become a company with a sole
associé. The DRC has stated that by the mid-1980s, Africom-Zaire had ceased
all commercial activity and for that reason had been struck off the Trade
Register. However, the DRC did not argue that that administrative measure
amounted to the ending of the distinct legal personality of the SPRL. The
Court thus concludes that, notwithstanding the fact that Mr. Diallo may have
become its sole associé, Africom-Zaire kept its distinct legal personality.
This SPRL thus remains governed by the 1887 Decree, in the absence of
Congolese legislation specifically regulating companies whose parts sociales
are owned by a single associé, or which, de facto, are fully controlled by
the gérant associé.
109. On the question of the number of shares held by Mr. Diallo in
Africom-Zaire, the Court notes that the DRC has not contested that he was an
associé in the company, as it has conceded that he was the gérant associé,
within the meaning of Article 67 of the Decree of 27 February 1887 (see
paragraph 138 below), of Africontainers-Zaire and of Africom-Zaire.
Moreover, and even if it is impossible to quantify precisely the extent of
his holding in Africom-Zaire, the Court considers that all the evidence
submitted to it suggests that Mr. Diallo held such a significant part of the
parts sociales in the company that he controlled it and could have prevented
any other associés acting in a general meeting (see paragraph 120 below on
the DRC law relating to the right of the associés to request that a general
meeting be convened) from challenging his management, including in
particular his decision to contract with the public authorities and to
initiate and pursue proceedings against the State of Zaire in domestic
courts (see paragraph 114 below). Having thus concluded that Mr. Diallo was
a major associé in Africom-Zaire, the Court considers that it is for the DRC
to prove that Mr. Diallo might have ceased to be an associé in Africom-Zaire
at the time of his expulsion, as it suggests (see paragraph 106 above). In
the opinion of the Court, this has not however been established. The Court
considers therefore that a very large part of the parts sociales of
Africom-Zaire, if not all of them, were owned by Mr. Diallo throughout the
years over which the current dispute extends, allowing him to be fully in
charge and in control of that company, both as gérant and as associé.
Establishing the precise holding of Mr. Diallo in Africom-Zaire as associé
would only be necessary if the company were liquidated, so as to transfer to
Mr. Diallo, in due proportion to his capital ownership, the net value of the
company’s assets.
110. On 18 September 1979, as gérant of Africom-Zaire, Mr. Diallo took part
in the creation of another SPRL, Africontainers-Zaire, which specialized in
transporting goods in containers. The notarial act of 18 September 1979
constituting Africontainers-Zaire’s Articles of Incorporation was submitted
by Guinea as part of the documents included with its Memorial. The capital
in the new company was held as follows: 40 per cent by Mr. Kibeti Zala, a
Zairean national; 30 per cent by Ms Colette Dewast, a French national, and
30 per cent by Africom-Zaire. Mr. Zala and Ms Dewast withdrew from
Africontainers-Zaire in 1980. From that time onwards, the capital in
Africontainers-Zaire was held as follows: 60 per cent by Africom-Zaire and
40 per cent by Mr. Diallo. At the same time Mr. Diallo became gérant of
Africontainers-Zaire for an indefinite period, thus replacing Mr. Alain
David, who had been appointed the first gérant in the Articles of
Incorporation. The Court concludes that since Mr. Diallo was, as established
above (see paragraph 109), fully in charge and in control of Africom-Zaire,
he was also, directly or indirectly, fully in charge and in control of
Africontainers-Zaire.
111. Relying on documents submitted to the Court, the DRC alleges that,
following his expulsion, Mr. Diallo appointed a new gérant for
Africontainers-Zaire, Mr. N’Kanza. The DRC notes in this regard that it was
Mr. N’Kanza who made the inventory of Africontainers’ property and
represented the company in the negotiations with Gécamines in 1997, over one
year after Mr. Diallo’s expulsion. Guinea argues that, contrary to the
assertion by the DRC, Mr. Diallo did not appoint Mr. N’Kanza as a new gérant
for Africontainers-Zaire. First, it draws attention to the lack of evidence
establishing that an extraordinary general meeting was ever held at which
Mr. N’Kanza might have been appointed gérant of Africontainers-Zaire.
Secondly, Guinea cites the decision of the Cour d’Appel of Kinshasa/Gombe of
20 June 2002, in which Mr. Diallo is referred to as the gérant associé of
Africontainers-Zaire. Finally, Guinea observes that in documents relating to
Africontainers-Zaire submitted to the Court, Mr. N’Kanza is not referred to
as gérant, but rather as “Directeur d’exploitation”, and that Mr. Diallo
signed his letters to the DRC as “gérant of Africontainers-Zaire”.
112. The Court observes that the DRC has failed to establish, by means of
relevant corporate documents, that Mr. N’Kanza was appointed gérant of
Africontainers-Zaire. In particular, no general meeting appointing Mr.
N’Kanza as gérant took place (see paragraphs 129 and 133 below on the
appointment of the gérant under Article 65 of the 1887 Decree). The Court
therefore concludes that the only gérant acting for either of the companies,
both at the time of Mr. Diallo’s detentions and after his expulsion, was Mr.
Diallo himself.
113. The Court is moreover of the view that Africom-Zaire and
Africontainers-Zaire have not ceased to exist. In the absence of a judicial
liquidation, the dissolution of a company, according to the 1887 Decree,
“can only be decided by a general meeting” (Art. 99). Once the dissolution
has been decided upon, the company goes into a process of liquidation. The
Court notes that there is however no evidence before it indicating that a
judicial liquidation took place or that a general meeting of either of the
two companies was held for the purposes of their dissolution or liquidation.
*
114. Having reached the conclusion that Mr. Diallo was, both as gérant and
associé of the two companies, fully in charge and in control of them, but
that they nevertheless remained legal entities distinct from him, the Court
will now address the various claims of Guinea pertaining to the direct
rights of Mr. Diallo as associé. In doing so, the Court will have to assess
whether, under DRC law, the claimed rights are indeed direct rights of the
associé, or whether they are rather rights or obligations of the companies.
As the Court has already pointed out, claims relating to rights which are
not direct rights held by Mr. Diallo as associé have been declared
inadmissible by the Judgment of 24 May 2007; they can therefore no longer be
entertained. In particular, this is the case of the claims relating to the
contractual rights of Africom-Zaire against the State of Zaire (DRC), and of
Africontainers-Zaire against the Gécamines, Onatra, Fina and Shell
companies.
115. In the following paragraphs, the Court is careful to maintain the
strict distinction between the alleged infringements of the rights of the
two SPRLs at issue and the alleged infringements of Mr. Diallo’s direct
rights as associé of these latter (see I.C.J. Reports 2007 (II), pp.
605-606, paras. 62-63). The Court understands that such a distinction could
appear artificial in the case of an SPRL in which the parts sociales are
held in practice by a single associé. It is nonetheless well-founded
juridically, and it is essential rigorously to observe it in the present
case. Guinea itself accepts this distinction in the present stage of the
proceedings, and most of its arguments are indeed based on it. The Court has
to deal with the claims as they were presented by the Applicant.
116. Guinea’s claims relating to Mr. Diallo’s direct rights as associé
pertain to the right to participate and vote in general meetings of the two
SPRLs, the right to appoint a gérant, and the right to oversee and monitor
the management of the companies. Guinea also presents a claim in relation to
the right to property concerning Mr. Diallo’s parts sociales in
Africom-Zaire and Africontainers-Zaire. The Court will now address those
different claims.
A. The right to take part and vote in general meetings
117. Guinea maintains that the DRC, in expelling Mr. Diallo, deprived him of
his right, guaranteed by Article 79 of the Congolese Decree of 27 February
1887 on commercial corporations, to take part in general meetings and to
vote. It claims that under DRC law general meetings of Africom-Zaire and
Africontainers-Zaire could not be held outside the territory of the DRC.
Guinea admits that Mr. Diallo could of course have exercised his rights as
associé from another country by appointing a proxy of his choice, in
accordance with Article 81 of the 1887 Decree, but argues that appointing a
proxy is merely an option available to the associé, whose recognized right
is clearly to have a choice whether to appoint a representative or to attend
in person. Guinea adds that, in the case of Africontainers-Zaire, it would
have been impossible for Mr. Diallo to be represented by a proxy, since
Article 22 of the Articles of Incorporation of the SPRL stipulates that only
an associé may be appointed proxy of another, whereas he had become its sole
associé at the time of his expulsion.
118. The DRC maintains that there cannot have been any violation of Mr.
Diallo’s right to take part in general meetings, as there has been no
evidence that any general meetings were convened and that Mr. Diallo was
unable to attend owing to his removal from DRC territory. The DRC asserts
that in any case Congolese commercial law places no obligation on commercial
companies in respect of where general meetings are to be held. *
119. Article 79 of the Congolese Decree of 27 February 1887 on commercial
corporations stipulates that: “[n]otwithstanding any provision to the
contrary, all associés shall have the right to take part in general meetings
and shall be entitled to one vote per share”. The Court observes that it
follows from the terms of this provision that the right to participate and
vote in general meetings belongs to the associés and not to the company.
This is consistent with the Court’s conclusion in the Barcelona Traction
case, where it pointed out that “[i]t is well known” that the right to
participate and vote in general meetings is a right “which municipal law
confers upon the [shareholders] distinct from those of the company”
(Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain),
Second Phase, Judgment, I.C.J. Reports 1970, p. 36, para. 47).
120. The Court now turns to the question of whether the DRC, in expelling
Mr. Diallo, deprived him of his right to take part in general meetings and
to vote, as guaranteed by Article 79 of the Congolese Decree of 27 February
1887 on commercial corporations.
121. According to Article 83 of the Congolese Decree of 27 February 1887,
while the decision to convene a general meeting is incumbent upon the gérant
or the auditors (paragraph 1), associés also have the right to request that
a general meeting be convened if they hold a fifth of the total number of
shares (paragraph 2). In view of the evidence submitted to it by the
Parties, the Court finds that there is no proof that Mr. Diallo, acting
either as gérant or as associé holding at least one-fifth of the total
number of shares, has taken any action to convene a general meeting, either
after having been expelled from the DRC, or at any time when he was a
resident in the DRC after 1980, not even for the purposes of annually
“consider[ing] and decid[ing] on the balance sheet and profit and loss
account and on the allocation of profits”, as required by the 1887 Decree
(see Article 96). In the opinion of the Court, the right of Mr. Diallo to
take part in general meetings and to vote could only have been breached if
general meetings had actually been convened after his expulsion from the
DRC. The Court notes in this respect that, even assuming that Article 1 of
Legislative Order No. 66-341 of 7 June 1966 were to oblige corporations
having their administrative seat in the DRC to hold their general meetings
on Congolese territory, no evidence has been provided that Mr. Diallo would
have been precluded from taking any action to convene general meetings from
abroad, either as gérant or as associé.
122. The Court will now turn to the question of whether Mr. Diallo has been
deprived of his right to take part and vote in any general meetings because,
as Guinea argues, after his expulsion he could only have exercised that
right through a proxy, whereas Congolese law afforded him the right to
choose between appointing a representative or attending in person.
123. According to Article 81 of the Congolese Decree of 27 February 1887,
“[a]ssociés may always be represented by a proxy of their choice, subject to
compliance with the conditions set forth in the statutes”. According to
Article 80 of the Congolese Decree, “[u]nless the statutes provide
otherwise, associés may express their votes in writing or by any other means
that guarantees the authenticity of the will expressed”. The Court has noted
that the Parties have provided it with the Articles of Incorporation of
Africontainers-Zaire, but have not communicated to it those of Africom-Zaire
(see paragraphs 107 and 110 above). Article 22, paragraph 2, of the Articles
of Incorporation of Africontainers-Zaire reads as follows: “Associés may
arrange to be represented either by a proxy chosen from amongst the
associés, or by a representative or agent of any associé that is a legal
person, if such is the case.” Article 21 of the Articles of Incorporation of
Africontainers-Zaire states that “[r]esolutions of the general meeting shall
be passed by a majority of three quarters of the votes irrespective of the
number of shares owned by the members present or represented at the meeting”
(emphasis added).
124. It follows from these provisions that an associé’s right to take part
and vote in general meetings may be exercised by the associé in person or
through a proxy of his choosing. There is no doubt in this connection that a
vote expressed through a proxy at a general meeting has the same legal
effect as a vote expressed by the associé himself. On the other hand, it is
more difficult to infer with certainty from the above-mentioned provisions
that they establish the right, as Guinea maintains, for the associé to
attend general meetings in person. In the opinion of the Court, the primary
purpose of these provisions is to ensure that the general meetings of
companies can take place effectively. Guinea’s interpretation of Congolese
law might frustrate that objective, by allowing an associé to prevent the
organs of the company from operating normally. It is questionable whether
the Congolese legislators could have desired such an outcome, which is far
removed from the affectio societatis. Moreover, in respect of Africom-Zaire
and Africontainers-Zaire, the Court does not see how the appointment of a
representative by Mr. Diallo could in any way have breached in practical
terms his right to take part and vote in general meetings of the two SPRLs,
since he had complete control over them.
125. Furthermore, with regard to Africontainers-Zaire, the Court cannot
accept Guinea’s argument that it would have been impossible for Mr. Diallo
to be represented at a general meeting by a proxy other than himself because
he was the sole associé of that SPRL and Article 22 of
Africontainers-Zaire’s Articles of Incorporation stipulates that an associé
may only appoint another associé as proxy. As the Court has observed above
(see paragraph 110), that company has two associés, namely, Mr. Diallo and
Africom-Zaire. Therefore, pursuant to the above-mentioned Article 22, Mr.
Diallo, acting as associé of Africontainers-Zaire, could appoint the
“representative or agent” of Africom-Zaire as his proxy for a general
meeting of Africontainers-Zaire. Prior to the appointment of that proxy, and
acting as gérant of Africom-Zaire pursuant to Article 69 of the 1887 Decree
(see paragraph 135 below), Mr. Diallo could have appointed such a
“representative or agent” of the latter company.
126. Therefore, the Court cannot sustain Guinea’s claim that the DRC has
violated Mr. Diallo’s right to take part and vote in general meetings. The
DRC, in expelling Mr. Diallo, has probably impeded him from taking part in
person in any general meeting, but, in the opinion of the Court, such
hindrance does not amount to a deprivation of his right to take part and
vote in general meetings.
B. The rights relating to the gérance
127. The Court observes that, at various points in the proceedings, Guinea
has made four slightly different assertions which it has grouped under the
general claim of a violation of Mr. Diallo’s right to “appoint a gérant”. It
has contended that, by unlawfully expelling Mr. Diallo, the DRC has
committed: a violation of his alleged right to appoint a gérant, a violation
of his alleged right to be appointed as gérant, a violation of his alleged
right to exercise the functions of a gérant, and a violation of his alleged
right not to be removed as gérant.
128. The DRC contends that the right to appoint the gérant of an SPRL is a
right of the company, not of the associé, as it lies with the general
meeting, which is an organ of the company. Furthermore, the DRC affirms that
because, under the 1887 Decree, a gérant who has not been appointed in the
Articles of Incorporation is appointed by the general meeting, the right
invoked by Guinea to appoint a gérant is indistinguishable from the right of
the associé to take part in the general meetings. According to the DRC,
Guinea has failed to show that a general meeting was convened and that the
DRC intervened with the other associés to prevent Mr. Diallo from
participating in the appointment of a new gérant, or from being represented
by another person of his choice. The DRC submits that Mr. Diallo did appoint
Mr. N’Kanza as gérant of Africontainers-Zaire following his expulsion.
129. The Court observes that the appointment and functions of gérants are
governed, in Congolese law, by the 1887 Decree on commercial corporations,
and by the Articles of Incorporation of the company in question.
130. Under Article 64 of the 1887 Decree:
“A private limited company shall be managed by one or more persons, who may
or may not be associés, called gérants.”
The appointment of gérants is governed by Article 65 of the 1887 Decree,
which provides:
“Gérants shall be appointed either in the instrument of incorporation or by
the general meeting, for a period which may be fixed or indeterminate.”
In addition, Article 69 of the 1887 Decree provides that:
“The statutes, the general meeting or the gérance may entrust the day-to-day
management of the company and special powers to agents or other proxies,
whether associés or not.”
131. Furthermore, Article 14 of Africontainers-Zaire’s Articles of
Incorporation provides, inter alia, that:
“The company shall be managed by one or more gérants, who may or may not be
associés, appointed by the general meeting.
Where more than one gérant is appointed, the general meeting shall decide
whether they shall exercise their powers separately or jointly.”
Article 17, for its part, is couched in the following terms:
“The gérance may delegate to one of the associés or to third parties or
confer on one of its managers any powers necessary for the performance of
daily managerial duties. It shall determine the powers to be conferred and,
where necessary, the remuneration of such agents; delegated powers may be
revoked at any time.”
132. The Court will begin by dismissing the DRC’s argument that Mr. Diallo’s
right to appoint a gérant could not have been violated because he in fact
appointed a gérant for Africontainers-Zaire in the person of Mr. N’Kanza. It
has already concluded that this allegation has not been proved (see
paragraphs 111 and 112 above).
133. As regards the first assertion put forth by Guinea that the DRC has
violated Mr. Diallo’s right to appoint a gérant, the Court recalls Article
65 of the 1887 Decree, which provides that “[g]érants shall be appointed
either in the instrument of incorporation or by the general meeting”. The
Court observes that, under this provision, every SPRL is required to be
managed by at least one gérant. In principle, the appointment of the gérant
takes place at the point when the SPRL is founded. It can also take place at
a later stage, by decision of the general meeting. In that case, one organ
of the company (the general meeting) exercises its power in respect of
another (the gérance). The appointment of the gérant therefore falls under
the responsibility of the company itself, without constituting a right of
the associé. Accordingly, the Court concludes that Guinea’s claim that the
DRC has violated Mr. Diallo’s right to appoint a gérant must fail.
134. As regards the second assertion put forward by Guinea that the DRC has
violated Mr. Diallo’s right to be appointed gérant, the Court notes that, in
its 2007 Judgment on preliminary objections, it observed that:
“The DRC . . . agrees with Guinea on the fact that, in terms of Congolese
law, the direct rights of associés are determined by the Decree of the
Independent State of Congo of 27 February 1887 on commercial corporations.
The rights of Mr. Diallo as associé of the companies Africom-Zaire and
Africontainers-Zaire are therefore theoretically as follows: ‘the right to
dividends and to the proceeds of liquidation’, ‘the right to be appointed
manager (gérant)’, ‘the right of the associé manager (gérant) not to be
removed without cause’, ‘the right of the manager to represent the company’,
‘the right of oversight [of the management]’ and ‘the right to participate
in general meetings’.” (I.C.J. Reports 2007 (II), p. 603, para. 53.)
It is clear that an associé has a right to be appointed gérant. However,
this right cannot have been violated in this instance because Mr. Diallo has
in fact been appointed as gérant, and still is the gérant of both companies
in question. In this regard, the Court recalls its finding in its 2007
Judgment “that Mr. Diallo, who was associé in Africom-Zaire and
Africontainers-Zaire, also held the position of gérant in each of them”
(ibid., p. 606, para. 66). This finding is confirmed in evidence put before
the Court by the Parties in the present stage of the proceedings, in
particular by evidence submitted by Guinea itself. Accordingly, the Court
concludes that there is no violation of Mr. Diallo’s right to be appointed
gérant.
135. The Court notes that, thirdly, Guinea has claimed that a right of Mr.
Diallo to exercise his functions as gérant was violated. In this regard,
Guinea has argued in its Reply that:
“following [Mr. Diallo’s] detention and expulsion by the Zairean
authorities, it became impossible for him, in practical terms, to perform
the role of ‘gérant’ from Guinea, because he was outside the country”.
The Court cannot accept this line of reasoning, and refers in this regard to
Article 69 of the 1887 Decree, which provides that “the gérance may entrust
the day-to-day management of the company and special powers to agents or
other proxies, whether associés or not”. Moreover, with respect to
Africontainers-Zaire, the Court also refers to Article 16 of its Articles of
Incorporation, which provides that the “gérance is entitled to establish
administrative bases in the Republic of Zaire and branches, offices,
agencies, depots or trading outlets in any location whatsoever, whether in
the Republic of Zaire or abroad”. While the performance of Mr. Diallo’s
duties as gérant may have been rendered more difficult by his presence
outside the country, Guinea has failed to demonstrate that it was impossible
to carry out those duties. In addition, Guinea has not shown that Mr. Diallo
attempted to appoint a proxy, who could have acted within the DRC on his
instructions.
136. In fact, it is clear from various documents submitted to the Court
that, even after Mr. Diallo’s expulsion, representatives of
Africontainers-Zaire have continued to act on behalf of the company in the
DRC and to negotiate contractual claims with the Gécamines company.
137. The Court accordingly concludes that Guinea’s claim that the DRC has
violated a right of Mr. Diallo to exercise his functions as gérant must
fail.
138. Finally, the Court observes that, fourthly, Guinea has claimed that the
DRC has violated Mr. Diallo’s right not to be removed as gérant, referring
to Article 67 of the 1887 Decree, which provides that:
“Unless the statutes provide otherwise, gérants associés appointed for the
life of the company can be removed only for good cause, by a general meeting
deliberating under the conditions required for amendments to the statutes.
Other gérants can be removed at any time.”
With reference to this provision, Guinea argues that Mr. Diallo was deprived
of his right not to be removed as a gérant as long as the company was in
existence. The Court observes, however, that no evidence has been provided
to it that Mr. Diallo was deprived of his right to remain gérant, since no
general meeting was ever convened for the purpose of removing him, or for
any other purpose. There was therefore no possibility of having him removed
“for good cause”. Although it may have become more difficult for Mr. Diallo
to carry out his duties as gérant from outside the DRC following his
expulsion, as discussed above, he remained, from a legal standpoint, the
gérant of both Africom-Zaire and Africontainers-Zaire. Accordingly, the
Court concludes that Guinea’s claim that the DRC has violated Mr. Diallo’s
right not to be removed as gérant must fail.
139. The Court may add that, even if it were established that Mr. Diallo had
been appointed gérant associé as long as the company was in existence and
that he had been removed as gérant without good cause, the claim of Guinea
would still stand on very weak ground. The right established by Article 67
of the 1887 Decree is a right of a combined gérant associé, not a simple
right of an associé. To the extent that it is a right of the gérant, who is
an organ of the company, the claim would be precluded by paragraph 98 (3)
(c) of the Court’s 2007 Judgment.
140. In light of all the above, the Court concludes that the various
assertions put forward by Guinea, grouped under the general claim of a
violation of Mr. Diallo’s rights relating to the gérance, must be rejected.
C. The right to oversee and monitor the management
141. Guinea submits that, in detaining and expelling Mr. Diallo, the DRC
deprived him of his right to oversee and monitor the actions of management
and the operations of Africom-Zaire and Africontainers-Zaire, in violation
of Articles 71 and 75 of the 1887 Decree. Referring to those provisions,
Guinea contends that the right to oversee and monitor the actions of
management is a right attaching to the status of associé, not a right of the
company, especially where there are five or fewer associés. It argues that
because Mr. Diallo was the sole associé of both companies, he enjoyed all
the rights and powers of the commissaire or auditor under Article 75 of the
1887 Decree. It adds that those rights are also recognized by Article 19 of
Africontainers-Zaire’s Articles of Incorporation.
142. The DRC submits that under Articles 71 and 75 of the 1887 Decree, as
well as Article 19 and Article 25, paragraph 3, of Africontainers-Zaire’s
Articles of Incorporation, the task of overseeing and monitoring the gérance
of an SPRL is entrusted not to an associé individually, but to financial
experts known as “statutory auditors” [commissaires aux comptes]. In the
view of the DRC, the right of the associé is limited to participating in the
appointment of one or more such auditors at the general meeting. The DRC
acknowledges that, under certain conditions, Congolese law accords associés
the right to oversee and monitor the management of the company, but it
argues that Guinea has failed to demonstrate that the DRC had ordered
Africontainers-Zaire not to permit Mr. Diallo to monitor its operations.
143. Article 71 of the 1887 Decree provides as follows:
Article 71
“Oversight of the management shall be entrusted to one or more
administrators, who need not be associés, called ‘auditors’.
If there are more than one of these, the statutes or the general meeting may
require them to act on a collegiate basis.
If the number of associés does not exceed five, the appointment of auditors
is not compulsory, and each associé shall have the powers of an auditor.”
144. Article 75 of that Decree is couched in the following terms:
Article 75
“The auditors’ task shall be to oversee and monitor, without restriction,
all the actions performed by the management, all the company’s transactions
and the register of associés.”
145. Article 19 of Africontainers-Zaire’s Articles of Incorporation
provides:
“Each of the associés shall exercise supervision over the company. Should
the company consist of more than five associés, supervision shall be
exercised by at least one auditor appointed by the general meeting, which
shall fix his/her term of office and remuneration.”
146. The Court concludes from the wording of Article 71, third paragraph, as
cited above, that since both Africom-Zaire and Africontainers-Zaire had
fewer than five associés, Mr. Diallo was permitted to act as auditor.
However, the question arises of whether, under Congolese law, this provision
applies in the case of a company where there is only one associé who is
fully in charge and in control of it.
147. The Court considers that, even if a right to oversee and monitor the
management exists in companies where only one associé is fully in charge and
in control, Mr. Diallo could not have been deprived of the right to oversee
and monitor the gérance of the two companies. While it may have been the
case that Mr. Diallo’s detentions and expulsion from the DRC rendered the
business activity of the companies more difficult, they simply could not
have interfered with his ability to oversee and monitor the gérance,
wherever he may have been.
148. Accordingly, the Court concludes that Guinea’s claim that the DRC has
violated Mr. Diallo’s right to oversee and monitor the management fails.
D. The right to property of Mr. Diallo over his parts sociales in
Africom-Zaire and Africontainers-Zaire
149. Guinea claims that Mr. Diallo, no longer enjoying control over, or
effective use of, his rights as associé, has suffered the indirect
expropriation of his parts sociales in Africom-Zaire and
Africontainers-Zaire because his property rights have been interfered with
to such an extent that he has been lastingly deprived of effective control
over, or actual use of, or the value of those rights.
150. Guinea states that the acts of interference by the DRC with Mr.
Diallo’s property rights in the parts sociales date back to 1988, when he
was first placed in detention. Those acts allegedly resulted in the debts
owed to the companies not being recovered and, by way of consequence, Mr.
Diallo’s investment in the companies falling in value. According to Guinea,
the interference by the DRC continued consequent to the Congolese
authorities’ decision in 1995 to stay enforcement of the judgment for the
plaintiff handed down in Africontainers v. Zaire Shell, which resulted in
reducing the value of Mr. Diallo’s parts sociales in the company. Guinea
claims that the interference by the DRC culminated in the re-arrest and
expulsion of Mr. Diallo who, as a result, was prevented from managing his
companies and from participating in any way in the activities of their
corporate organs and was deprived of any possibility of controlling and
using his parts sociales. Guinea asserts that the indirect expropriation of
Mr. Diallo’s rights constitutes an internationally wrongful act giving rise
to the DRC’s international responsibility.
151. The essence of Guinea’s argument is that there is a factual element
specific to this case, namely:
“that Mr. Diallo is the sole associé in the two companies, that is to say,
the only owner of the parts sociales in Africom[-Zaire] and
Africontainers[-Zaire]. As a consequence, even though officially they have
separate legal personalities, the very special characteristics of the
relationship between Mr. Diallo and his companies means that, from the
factual perspective, which is the perspective of expropriation
(expropriation is a question of fact), the property of the two companies
merges with his. Thus, in expropriating his companies, the DRC infringed Mr.
Diallo’s ownership rights in his parts sociales.”
152. For its part, the DRC claims that there cannot have been any violation
of any rights attaching to ownership of the parts sociales. In particular,
as regards the right to dividends, it alleges that, even on the assumption
that any have actually been distributed by the companies, Guinea would still
have to show that Mr. Diallo was unable to receive them on account of the
decision to remove him from Congolese territory or of another wrongful act
attributable to the DRC. The DRC argues in this respect that Guinea has not
established that Mr. Diallo could not directly receive his dividends abroad
or that he was prevented from doing so by an act attributable to the DRC.
153. The DRC contends as well that it cannot be accused of having impeded
the exercise of rights held by Mr. Diallo as owner of his parts sociales.
Specifically, the DRC at no time ordered Africontainers-Zaire not to make
payments in respect of Mr. Diallo’s parts sociales in the annual dividend
allocation. With regard to Africom-Zaire, the DRC notes that Guinea has
failed to provide evidence showing that Mr. Diallo was still an associé in
this company at the time of his expulsion and, if so, how many parts
sociales he held (see paragraph 106 above).
154. The DRC finally asserts that the value of Mr. Diallo’s parts sociales
is unrelated to his presence in its territory. It rejects Guinea’s arguments
that acts attributable to the DRC were at the origin of the loss of value of
his parts sociales and, in general, the economic demise of his companies. On
this subject, the DRC claims that both Africom-Zaire and
Africontainers-Zaire had been in a state of “undeclared bankruptcy” for
several years before Mr. Diallo’s expulsion, not having engaged in any
commercial activity since, at least, 1991.
155. The Court observes that international law has repeatedly acknowledged
the principle of domestic law that a company has a legal personality
distinct from that of its shareholders. This remains true even in the case
of an SPRL which may have become unipersonal in the present case. Therefore,
the rights and assets of a company must be distinguished from the rights and
assets of an associé. In this respect, it is legally untenable to consider,
as Guinea argues, that the property of the corporation merges with the
property of the shareholder. Furthermore, it must be recognized that the
liabilities of the company are not the liabilities of the shareholder. In
the case of Africontainers-Zaire, as an SPRL, it is specifically indicated
in its Articles of Incorporation that the “liability of each associé in
respect of corporate obligations shall be limited to the amount of his/her
parts sociales in the company” (Article 7; see also paragraphs 105 and 115
above).
156. The Court, in the Barcelona Traction case, recognized that “a wrong
done to the company frequently causes prejudice to its shareholders”
(Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain),
Second Phase, Judgment, I.C.J. Reports 1970, p. 35, para. 44). But, it
added, damage affecting both company and shareholder will not mean that both
are entitled to claim compensation: “whenever a shareholder’s interests are
harmed by an act done to the company, it is to the latter that he must look
to institute appropriate action; for although two separate entities may have
suffered from the same wrong, it is only one entity whose rights have been
infringed” (ibid.). This principle was reaffirmed when the Court, responding
to a Belgian contention, established a
“distinction between injury in respect of a right and injury to a simple
interest . . . Not a mere interest affected, but solely a right infringed
involves responsibility, so that an act directed against and infringing only
the company’s rights does not involve responsibility towards the
shareholders, even if their interests are affected.” (Ibid., p. 36, para.
46.)
157. The Court has already indicated that the DRC has not violated Mr.
Diallo’s direct right as associé to take part and vote in general meetings
of the companies, nor his right to be appointed or to remain gérant, nor his
right to oversee and monitor the management (see paragraphs 117-148 above).
As the Court has just reaffirmed, Mr. Diallo’s other direct rights, in
respect of his parts sociales, must be clearly distinguished from the rights
of the SPRLs, in particular in respect of the property rights belonging to
the companies. The Court recalls in this connection that, together with its
other assets, including debts receivable from third parties, the capital is
part of the company’s property, whereas the parts sociales are owned by the
associés. The parts sociales represent the capital but are distinct from it,
and confer on their holders rights in the operation of the company and also
a right to receive any dividends or any monies payable in the event of the
company being liquidated. The only direct rights of Mr. Diallo which remain
to be considered are in respect of these last two matters, namely, the
receipt of dividends or any monies payable on a winding-up of the companies.
There is, however, no evidence that any dividends were ever declared or that
any action was ever taken to wind up the companies, even less that any
action attributable to the DRC has infringed Mr. Diallo’s rights in respect
of those matters.
158. Finally, the Court considers there to be no need to determine the
extent of the business activities of Africom-Zaire and Africontainers-Zaire
at the time Mr. Diallo was expelled, or to make any finding as to whether
they were in a state of “undeclared bankruptcy”, as alleged by the DRC. As
the Court has already found in the Barcelona Traction case:
“a precarious financial situation cannot be equated with the demise of the
corporate entity . . .: the company’s status in law is alone relevant, and
not its economic condition, nor even the possibility of its being
‘practically defunct’” (Barcelona Traction, Light and Power Company, Limited
(Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 41,
para. 66).
159. The Court concludes from the above that Guinea’s allegations of
infringement of Mr. Diallo’s right to property over his parts sociales in
Africom-Zaire and Africontainers-Zaire have not been established.
IV. REPARATION
160. Having concluded that the Democratic Republic of the Congo has breached
its obligations under Articles 9 and 13 of the International Covenant on
Civil and Political Rights, Articles 6 and 12 of the African Charter on
Human and Peoples’ Rights, and Article 36, paragraph 1 (b), of the Vienna
Convention on Consular Relations (see paragraphs 73, 74, 85 and 97 above),
it is for the Court now to determine, in light of Guinea’s final
submissions, what consequences flow from these internationally wrongful acts
giving rise to the DRC’s international responsibility.
161. The Court recalls that “reparation must, as far as possible, wipe out
all the consequences of the illegal act and reestablish the situation which
would, in all probability, have existed if that act had not been committed”
(Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No.
17, p. 47). Where this is not possible, reparation may take “the form of
compensation or satisfaction, or even both” (Pulp Mills on the River Uruguay
(Argentina v. Uruguay), Judgment of 20 April 2010, para. 273). In the light
of the circumstances of the case, in particular the fundamental character of
the human rights obligations breached and Guinea’s claim for reparation in
the form of compensation, the Court is of the opinion that, in addition to a
judicial finding of the violations, reparation due to Guinea for the injury
suffered by Mr. Diallo must take the form of compensation.
162. In this respect, Guinea requested in its final submissions that the
Court defer its Judgment on the amount of compensation, in order for the
Parties to reach an agreed settlement on that matter. Should the Parties be
unable to do so “within a period of six months following [the] delivery of
the [present] Judgment”, Guinea also requested the Court to authorize it to
submit an assessment of the amount of compensation due to it, in order for
the Court to decide on this issue “in a subsequent phase of the proceedings”
(see paragraph 14 above).
163. The Court is of the opinion that the Parties should indeed engage in
negotiation in order to agree on the amount of compensation to be paid by
the DRC to Guinea for the injury flowing from the wrongful detentions and
expulsion of Mr. Diallo in 1995-1996, including the resulting loss of his
personal belongings.
164. In light of the fact that the Application instituting proceedings in
the present case was filed in December 1998, the Court considers that the
sound administration of justice requires that those proceedings soon be
brought to a final conclusion, and thus that the period for negotiating an
agreement on compensation should be limited. Therefore, failing agreement
between the Parties within six months following the delivery of the present
Judgment on the amount of compensation to be paid by the DRC, the matter
shall be settled by the Court in a subsequent phase of the proceedings.
Having been sufficiently informed of the facts of the present case, the
Court finds that a single exchange of written pleadings by the Parties would
then be sufficient in order for it to decide on the amount of compensation.
165. For these reasons,
THE COURT,
(1) By eight votes to six,
Finds that the claim of the Republic of Guinea concerning the arrest and
detention of Mr. Diallo in 1988-1989 is inadmissible;
IN FAVOUR: President Owada; Vice-President Tomka; Judges Abraham, Keith,
Sepúlveda-Amor, Skotnikov, Greenwood; Judge ad hoc Mampuya;
AGAINST: Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade, Yusuf;
Judge ad hoc Mahiou;
(2) Unanimously,
Finds that, in respect of the circumstances in which Mr. Diallo was expelled
from Congolese territory on 31 January 1996, the Democratic Republic of the
Congo violated Article 13 of the International Covenant on Civil and
Political Rights and Article 12, paragraph 4, of the African Charter on
Human and Peoples’ Rights;
(3) Unanimously,
Finds that, in respect of the circumstances in which Mr. Diallo was arrested
and detained in 1995-1996 with a view to his expulsion, the Democratic
Republic of the Congo violated Article 9, paragraphs 1 and 2, of the
International Covenant on Civil and Political Rights and Article 6 of the
African Charter on Human and Peoples’ Rights;
(4) By thirteen votes to one,
Finds that, by not informing Mr. Diallo without delay, upon his detention in
1995-1996, of his rights under Article 36, paragraph 1 (b), of the Vienna
Convention on Consular Relations, the Democratic Republic of the Congo
violated the obligations incumbent upon it under that subparagraph;
IN FAVOUR: President Owada; Vice-President Tomka; Judges Al-Khasawneh,
Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado
Trindade, Yusuf, Greenwood; Judge ad hoc Mahiou;
AGAINST: Judge ad hoc Mampuya;
(5) By twelve votes to two,
Rejects all other submissions by the Republic of Guinea relating to the
circumstances in which Mr. Diallo was arrested and detained in 1995-1996
with a view to his expulsion;
IN FAVOUR: President Owada; Vice-President Tomka; Judges Al-Khasawneh,
Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf,
Greenwood; Judge ad hoc Mampuya;
AGAINST: Judge Cançado Trindade; Judge ad hoc Mahiou;
(6) By nine votes to five,
Finds that the Democratic Republic of the Congo has not violated Mr.
Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire;
IN FAVOUR: President Owada; Vice-President Tomka; Judges Simma, Abraham,
Keith, Sepúlveda-Amor, Skotnikov, Greenwood; Judge ad hoc Mampuya;
AGAINST: Judges Al-Khasawneh, Bennouna, Cançado Trindade, Yusuf; Judge ad
hoc Mahiou;
(7) Unanimously,
Finds that the Democratic Republic of the Congo is under obligation to make
appropriate reparation, in the form of compensation, to the Republic of
Guinea for the injurious consequences of the violations of international
obligations referred to in subparagraphs (2) and (3) above;
(8) Unanimously,
Decides that, failing agreement between the Parties on this matter within
six months from the date of this Judgment, the question of compensation due
to the Republic of Guinea shall be settled by the Court, and reserves for
this purpose the subsequent procedure in the case.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this thirtieth day of November, two thousand and
ten, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Republic of Guinea
and the Government of the Democratic Republic of the Congo, respectively.
(Signed) Hisashi OWADA,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judges AL-KHASAWNEH, SIMMA, BENNOUNA, CANÇADO TRINDADE and YUSUF append a
joint declaration to the Judgment of the Court; Judges AL-KHASAWNEH and
YUSUF append a joint dissenting opinion to the Judgment of the Court; Judges
KEITH and GREENWOOD append a joint declaration to the Judgment of the Court;
Judge BENNOUNA appends a dissenting opinion to the Judgment of the Court;
Judge CANÇADO TRINDADE appends a separate opinion to the Judgment of the
Court; Judge ad hoc MAHIOU appends a dissenting opinion to the Judgment of
the Court; Judge ad hoc MAMPUYA appends a separate opinion to the Judgment
of the Court.
(Initialled) H. O.
(Initialled) Ph. C.
Joint declaration of
Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade and Yusuf
Joint dissenting opinion
of Judges Al-Khasawneh and Yusuf
Joint declaration of Judges Keith and
Greenwood
Dissenting opinion of Judge
Bennouna
Separate opinion of Judge
Cançado Trindade
Dissenting opinion of Judge ad hoc Mahiou (French version only)
Separate opinion of Judge ad hoc Mampuya (French version only) |
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