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136-Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)

The Republic of Djobouti filed an application instituting proceedings before the International Court of Justice (ICJ) against France on January 09th, 2006. It criticised the position of the French governmental and judicial authorities for having refused to execute a letter rogatory concerning the transmission of Djiboutian judicial authorities of the record relating to an active investigation. According to the applicant State, this refusal amounted to a violation of the Treaty of Friendship and Co-operation concluded between France and Djibouti on 27 June 1977 (the Treaty).

Djibouti invoked Article 38 paragraph 5 of the Rules of the Court, a provision which applies when a State submits a dispute to the ICJ intending to base its jurisdiction on a consent not yet given or manifested by the State against which the request is made. France previously had to give a similar consent in the case reference 129-Certain criminal Proceedings in France (DRC vs France).

France consented to the jurisdiction of the Court by a letter dated July 25th, 2006. However, the Parties disagreed on the exact scope of the consent. In its judgment of June 4th, 2008, the ICJ first defined its jurisdiction and concluded:

  • That it had jurisdiction to rule on the dispute relating to the execution of the letter rogatory;
  • That it had jurisdiction to rule on the dispute relating to the summons sent on May 17th, 2005 to the President of the Republic of Djibouti and other high ranking members of its government;
  • That it had no jurisdiction to rule on the dispute over the arrest warrants issued on September 27th, 2006 against two senior Djiboutian officials.

Ruling on the merits of the case, the Court concluded that:

  1. The scope of the Treaty did not cover judicial matters and therefore did not apply in the present case;
  2. Judicial cooperation did indeed fall within the scope of the cooperation of the Convention on mutual assistance in criminal matters of September 27th, 1986. However, there were exceptions to this judicial cooperation. The ICJ concluded that the reasons given by the French investigating judge for refusing the request for mutual assistance fell within the scope of Article 2 (c) of the Convention, which entitles the requested State to refuse to execute a letter rogatory if it considers that that execution is likely to prejudice its sovereignty, its security, its ordre public or other of its essential interests. 

France should however have justified its refusal, pursuing Article 17 of the 1986 Convention.

Judgment of 04-06-2008.pdf

This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.

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