App. 034/2017_ Kouadio Kobena Fory vs Cote d’Ivoire
Kouadio Kobena Fory vs Cote d’Ivoire
On November 8th, 2017, Mr. Kouadio Kobena Fory, Applicant, filed before the African Court of Human and Peoples’ Rights (the Court) an application instituting proceedings in his name and that of his wife and children, an application instituting proceedings for alleged violations of the African Charter of Human and Peoples’ Rights (the Charter) in its articles 1, 2, 3, 5, 6, 7 10, 13(2), 14, 15, 16, 17, 18(1) (2) (3), 26 and 28.
Mr. Fory was the revenue officer of the Guiberoua Commune when a fire in the revenue office took place in 1995. An important sum of money disappeared. Following a complaint filed by the Minister of Economy and Finances for misappropriation of public funds, Mr. Fory was arrested, judged and found guilty of this charge and sentenced to a 10 year sentence as well as paying 26 millions of francs to the Ivoirian government. This sentenced was confirmed by the Court of appeal of Daloa on July 25th, 1997. Mr. Fory filed an application before the Supreme Court on July 29th, 1997 but said jurisdiction never delivered a judgment on the question in spite of all the actions taken by the Applicant.
Mr. Fory contends that after serving his 10 year sentence, he was once again arrested on July 31st, 2005 and held at the detention center of Abidjan with other political prisoner until August 1st, 2011 when they were released without judgment. Once free, he petitioned the Disciplinary Council of the Public Administration to be reinstated in his previous functions of revenue officer, a request that the Council refused to grant until the Supreme Court of the country overturned the judgment of the Court of appeal.
The Applicant alleged that both the Ivoirian administration and justice violated his rights to a fair protection before the law, his right to not self -incriminate, his right to property, physical and moral integrity, his right to freedom, safety and the right to have his matter presented before a court of law. He also contended that his right to the protection of his family adn the right to work were also breached.
On April 29th, 2020, the Republic of Cote d’Ivoire deposited the instruments of withdrawal of the Court’s declaration of jurisdiction to receive applications from individuals and non-governmental organizations. In issuing its decision on December 2th, 2021, the Court has been faithful to its consistent jurisprudence of dealing with all cases enrolled in the Registry before the date of entry into force of the withdrawal of the declaration.
The state of Cote d’Ivoire raised objections relating to the lack of jurisdiction of the Court and inadmissibility of the application regarding the application made in the name of Mr. Fory’s wife and children stating that they could petition the African Court themselves. In an order dated November 25th 2021, the Court concluded that both the wife and the children could be deemed indirect victims but only Mr. Fory met the conditions to institute a proceedings. It therefore ruled in favour of the defendant State in this regard.
The State of Cote d’Ivoire also raised questions regarding the temporal jurisdiction of the Court contending that some of the alleged violations raised by the Applicant had taken place before the entry into force of the Protocol establising the African Court of Human and Peoples’ Rights (the Protocol) for the defendant State, on January 25th, 2004. The Court therefore made a distinction according to that date and rule that it only had jurisdiction for events that had taken place after 2004 (mainly the second arrest between 2005 and 2011) and alleged continuous violations of the rights enshrined in the Charter, mainly the fact that the Supreme Court did not hear the appeal formed against the judgment of July 25th, 1997.
The Ivoirian government also objected to the recevability of the request based on the non exhaustion of local remedies and the fact that the application before the African Court was not filed within a reasonable time. It contended that since the appeal of the Applicant was still pending before the Supreme Court, Mr. Fory did exhaust all national recourses. The African Court ruled that since the appeal was filed some 20 years prior, this argument could not be admitted. After examination of all the relevant information, it concluded that it only had jurisdiction to hear the plea regarding the right to be judged within a reasonable time.
On the latter point, the Court noted that the Applicant proved that he did everything in his power to have his case heard by the Supreme Court for 20 years. As there was no satisfactory reason as to the fact that it did not happen, the African Court ruled that the defendant State had violated the Applicant’s right to be judged within a reasonable time as prescribed by the Article 7(1)(d) of the Charter.
The Ivoirian Government was ordered to pay to the Applicant the amount of 40 million of francs for the moral prejudice he suffered, as well as 2 million for Mrs. Fory and 1 million for each of their 3 children. As for non-pecuniary reparations, the Court ordered this judgment be published on the websites of the Government, of the Justice Department and the Supreme Court for at least a year.
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.
