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IN THE COURT OF JUSTICE OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) In the Case MR. GABRIEL MESSAN AGBEYOME KODJO v. TOGOLESE REPUBLIC Application No. ECW/CCJ/APP/25/20 - Judgment No. ECW/CCJ/JUD/11/2022 JUDGMENT ACCRA On March 24, 2022 1

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I. REPRESENTATION OF PARTIES3
II. COURT’S JUDGMENT3
III. DESCRIPTION OF THE PARTIES3
IV. INTRODUCTION4
V. PROCEEDINGBEFORE THE COURT 4
VI. APPLICANT’S CASE5
a) Summary of Facts5
b. Pleas in Law10
c) Reliefs Sought11
VII. DEFENDANT’S CASE12
a) Summary of Facts12
b. Pleas in Law18
c. Reliefs Sought19
As to admissibility of the Application19
As to the jurisdiction of the Cour19
VIII. REPLY20
IX. PROCEDURE BEFORE THE COURT20
Provisional Measures20
X –JURISDICTION23
On the Court's alleged lack of jurisdiction23
XI –ADMISSIBILITY27
XII. MERITS28
1. The alleged violation of Article 10 of the Universal Declaration of Human Rights and Article 14(1) of the International Covenant on Civil and Political Rights28
2. On the violation of Article 7 (1) of the African Charter, Article 10 of the UDHR and Article 14 (1) and (3) of the ICCPR.41
3. The violation of the provisions of Article 9(2) of the Charter and Article 19 of the UDHR48
4. The arbitrariness of the Applicant’s arrest and detention in the premises of the Criminal Intelligence and Investigation Service, in violation of the provisions in Article 9(2) of the ICCPR, Article 9 of the UDHR and Article 6, in fine, of the Charter56
XIII –REPARATION61
XIV. COSTS61
XV. OPERATIVE CLAUSE62
As to jurisdiction62
As to admissibility62
As to merit62
AS TO REPARATION63
XVI. ON THE COSTS63
XVII. COMPLIANCE AND REPORTING63

ECW/CCJ/JUD/11/22 - Gabriel Messan Kodjo v. Togo

ECOWAS Court

Preview

ECCJ App no.: ECW/CCJ/APP/25/20

ECCJ Jud No.: ECW/CCJ/JUD/11/22

Type of Document

Judgement

Keywords

Arbitrary Arrest and Detention
Cruel and Degrading Treatment
Freedom of Expression / Digital Rights
Functioning and Independence of the Judiciary
Right to Fair Trial

Country

Togo

Outcome: Decided on Merits

Year Decided: Mar 24, 2022

African Charter Rights Alleged to be Violated

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 60: Drawing inspiration from international law
ACHPR 9.2: Right to Express and Disseminate Opinions Within the law

African Charter Rights Violated

ACHPR 9: Right to Receive Information and Free Expression
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 9.2: Right to Express and Disseminate Opinions Within the law

Duration of Procedure: Jun 14, 2020 ~ Mar 24, 2022

Country Geolocation

Latitude: 8.619543

Longitude: 0.824782

Country Geolocation (linked ECOWAS Court): Togo

Primary Documents

JUD-ECW-CCJ-JUD-11-22-Mr-Gabriel-Messan-Agbeyome-Kodjo-vs.-Republic-of-Togo.pdf
English
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ARRËT-ECW-CCJ-JUD-11-22-Monsieur-Gabriel-Messan-Agbeyome-Kodjo-c.-République-Togolaise.pdf
French
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African Charter on Human and Peoples' Rights (Banjul Charter)

Article 6Every 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.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 26States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Every individual shall have the right to express and disseminate his opinions within the law.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Treaty

Universal Declaration of Human Rights (UDHR)

Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

UN Document

Universal Declaration of Human Rights (UDHR)

Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 60The Commission shall draw inspiration from international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples' rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members.

Treaty

International Covenant on Civil and Political Rights ICCPR

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.

UN Document

International Covenant on Civil and Political Rights ICCPR

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

Universal Declaration of Human Rights (UDHR)

UN Document

International Covenant on Civil and Political Rights ICCPR

UN Document

International Covenant on Civil and Political Rights ICCPR

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Every individual shall have the right to express and disseminate his opinions within the law.

Treaty

Universal Declaration of Human Rights (UDHR)

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

Universal Declaration of Human Rights (UDHR)

Article 9 No one shall be subjected to arbitrary arrest, detention or exile.

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Every individual shall have the right to express and disseminate his opinions within the law.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

Universal Declaration of Human Rights (UDHR)

UN Document

International Covenant on Civil and Political Rights ICCPR

Article 91. 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. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

UN Document

Universal Declaration of Human Rights (UDHR)

UN Document

International Covenant on Civil and Political Rights ICCPR

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

UN Document

European Convention on Human Rights

ARTICLE 6Right to a fair trial1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.3. Everyone charged with a criminal offence has the following minimum rights: 1011(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;(b) to have adequate time and facilities for the preparation of his defence;(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Treaty

Universal Declaration of Human Rights (UDHR)

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

International Covenant on Civil and Political Rights ICCPR

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

UN Document

International Covenant on Civil and Political Rights ICCPR

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

UN Document

ECOWAS Court Rules of Procedure

Article 661. A decision as to costs shall be given in the final judgment or in the order, which closes the proceedings. 2. The unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party's pleadings. 3. Where there are several unsuccessful parties the Court shall decide how the costs are to be shared. 4. Where each party succeeds on some and fails on other heads, or where the Circumstances are exceptional; the Court may order that the costs be shared or that the parties bear their own costs. 5. The Court may order a party, even if successful, to pay costs which the Court considers that party to have unreasonably or vexatious caused the opposite party to incur. 6. The Member States and institutions which intervene in the proceedings shall bear their own costs. 7. The Court may order an intervener other than those mentioned in the preceding subparagraphs to bear his own costs. 8. A party who discontinues or withdraws from proceedings shall be ordered to pay the costs if they have been applied for in the other party's observations on the discontinuance. 9. However, upon application by the party who discontinues or withdraws from proceedings, the costs shall be borne by the other party if this appears justified by the conduct of that party. 10. Where the parties have come to an agreement on costs, the decision as to costs shall be in accordance with that agreement. 11. If costs are not claimed, the parties shall bear their own costs. 12. Where a case does not proceed to judgment the costs shall be in the discretion of the Court.

Rules of Procedure

ECOWAS Court Rules of Procedure

2. The application shall be made by a separate document and in accordance with the provisions of Articles 32 and 33 of these Rules.

Rules of Procedure

Protocol A/P.I/7/91 on the Community Court of Justice

Article9: Competence of the Court1. The Court shall ensure the observance of law and of the principles of equity in the interpretation and application of the provisions of the Treaty.2. The Court shall also be competent to deal with disputes referred to it, in accordance with the provisions of Article 56 of the Treaty, by Member States or the Authority, when such disputes arise between the Member States or between one or more Member States and the Institutions of the Community on the· interpretation or application of the provisions of the Treaty. 3. A Member State may, on behalf of its nationals, institute proceedings against another Member State or Institution of the Community, relating to the interpretation and application of the provisions of the Treaty, after attempts to settle the dispute amicably have failed.4. The Court shall have any powers conferred upon it, specifically by the provisions of this Protocol.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

Universal Declaration of Human Rights (UDHR)

UN Document

International Covenant on Civil and Political Rights ICCPR

UN Document

International Covenant on Civil and Political Rights ICCPR

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

2.Subject to the obligation of solidarity provided for in 29 no one may be compelled to join an association.

Treaty

Universal Declaration of Human Rights (UDHR)

UN Document

Universal Declaration of Human Rights (UDHR)

Article 9 No one shall be subjected to arbitrary arrest, detention or exile.

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

ECOWAS Court Rules of Procedure

Article 791. An application under Article 20 of the Protocol shall state the subject- matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for.

Rules of Procedure

International Covenant on Civil and Political Rights ICCPR

Article 141. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legalassistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person whohas suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

UN Document

Universal Declaration of Human Rights (UDHR)

UN Document

International Covenant on Civil and Political Rights ICCPR

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 91.Every individual shall have the right to receive information. 2.Every individual shall have the right to express and disseminate his opinions within the law.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 91.Every individual shall have the right to receive information. 2.Every individual shall have the right to express and disseminate his opinions within the law.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

Treaty

International Covenant on Civil and Political Rights ICCPR

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

2.Every individual shall have the right to express and disseminate his opinions within the law.

Treaty

International Covenant on Civil and Political Rights ICCPR

Article 191. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

UN Document

Universal Declaration of Human Rights (UDHR)

UN Document

Universal Declaration of Human Rights (UDHR)

Article 9 No one shall be subjected to arbitrary arrest, detention or exile.

UN Document

International Covenant on Civil and Political Rights ICCPR

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.

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

International Covenant on Civil and Political Rights ICCPR

UN Document

Universal Declaration of Human Rights (UDHR)

Article 3 Everyone has the right to life, liberty and security of person.

UN Document

International Covenant on Civil and Political Rights ICCPR

UN Document

International Covenant on Civil and Political Rights ICCPR

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

Universal Declaration of Human Rights (UDHR)

Article 9 No one shall be subjected to arbitrary arrest, detention or exile.

UN Document

International Covenant on Civil and Political Rights ICCPR

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.

UN Document

ECOWAS Court Rules of Procedure

Article 661. A decision as to costs shall be given in the final judgment or in the order, which closes the proceedings.

Rules of Procedure

ECOWAS Court Rules of Procedure

2. The unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party's pleadings.

Rules of Procedure

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 91.Every individual shall have the right to receive information. 2.Every individual shall have the right to express and disseminate his opinions within the law.

Treaty

Universal Declaration of Human Rights (UDHR)

UN Document

International Covenant on Civil and Political Rights ICCPR

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

International Covenant on Civil and Political Rights ICCPR

UN Document

Universal Declaration of Human Rights (UDHR)

Article 3 Everyone has the right to life, liberty and security of person.

UN Document

Universal Declaration of Human Rights (UDHR)

Article 9 No one shall be subjected to arbitrary arrest, detention or exile.

UN Document

ECOWAS Court Rules of Procedure

2. The unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party's pleadings.

Rules of Procedure

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