Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)
Overview of the case
On 9 January 2006, the Republic of Djibouti filed an Application against the French Republic in respect of a dispute :
“concern[ing] the refusal by the French governmental and judicial authorities to execute an international letter rogatory regarding the transmission to the judicial authorities in Djibouti of the record relating to the investigation in the Case against X for the murder of Bernard Borrel, in violation of the Convention on Mutual Assistance in Criminal Matters between the [Djiboutian] Government and the [French] Government, of 27 September 1986, and in breach of other international obligations borne by [France] to . . . Djibouti”.
In its Application, Djibouti also alleged that these acts constituted a violation of the Treaty of Friendship and Co-operation concluded between France and Djibouti on 27 June 1977. Djibouti indicated that it sought to found the jurisdiction of the Court on Article 38, paragraph 5, of the Rules of Court. This provision applies when a State submits a dispute to the Court, proposing to found the Court’s jurisdiction upon a consent yet to be given or manifested by the State against which the Application is made. This was the second occasion that the Court had been called upon to pronounce on a dispute brought before it by an Application based on Article 38, paragraph 5, of its Rules (forum prorogatum). France consented to the jurisdiction of the Court by a letter, dated 25 July 2006 in which it specified that this consent was “valid only for the purposes of the case, within the meaning of Article 38, paragraph 5, i.e., in respect of the dispute forming the subject of the Application and strictly within the limits of the claims formulated therein” by Djibouti. However, the Parties disagreed as to the exact extent of the consent given by France.
In a Judgment rendered on 4 June 2008, the Court, having read Djibouti’s Application together with France’s letter in order to determine the extent of the mutual consent of the Parties, concluded that (a) it had jurisdiction to adjudicate upon the dispute concerning the execution of the letter rogatory addressed by the Republic of Djibouti to the French Republic on 3 November 2004 ; (b) it had jurisdiction to adjudicate upon the dispute concerning the summons addressed to the President of the Republic of Djibouti on 17 May 2005 and the summonses addressed to two senior Djiboutian officials on 3 and 4 November 2004 and 17 June 2005 ; (c) it had jurisdiction to adjudicate upon the dispute concerning the summons addressed to the President of the Republic of Djibouti on 14 February 2007 ; and (d) it had no jurisdiction to adjudicate upon the dispute concerning the arrest warrants issued against two senior Djiboutian officials on 27 September 2006.
Having established the precise scope of its jurisdiction in the case, the Court turned first to the alleged violation by France of the Treaty of Friendship and Co-operation between France and Djibouti of 27 June 1977. While pointing out that the provisions of the said Treaty constituted relevant rules of international law having “a certain bearing” on relations between the Parties, the Court concluded that “the fields of co-operation envisaged in th[at] Treaty do not include co-operation in the judicial field” and thus that the above-mentioned relevant rules imposed no concrete obligations in this case.
The Court then turned to the allegation that France had violated its obligations under the 1986 Convention on Mutual Assistance in Criminal Matters. Under that Convention, judicial co-operation is envisaged, including the requesting and granting of “letters rogatory” (usually the passing, for judicial purposes, of information held by a party). The Convention also provides for exceptions to this envisaged co-operation. Since the French judicial authorities refused to transmit the requested case file, a key question in the case was whether that refusal fell within the permitted exceptions. Also at issue was whether France had complied with the provisions of the 1986 Convention in other respects. The Court held 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. The Court did however conclude that, as no reasons were given in the letter dated 6 June 2005, whereby France informed Djibouti of its refusal to execute the letter rogatory presented by the latter on 3 November 2004, France had failed to comply with its international obligations under Article 17 of the 1986 Convention.
This overview is provided for information only and in no way involves the responsibility of the Court.