Secondly, the Defendant State cites inadmissibility of the Application, on the
ground of the pendency of case (lis pendence) – that at the time the Court was
seised with the matter before it, the same case was already pending before the
domestic courts of Burkina Faso, and that it would be worthwhile for the Court
to decline to hear the case.
On the issue concerning tapped telephone conversations, Burkina Faso makes
the claim that the tapping of the telephone calls had a legal basis, notably Law
061-2008/AN of 27 November 2008, Regulations on Networks and Electronic
Communication Services in Burkina Faso (Article 35 in particular, which provides
that confidentiality shall be guaranteed: “without prejudice to the powers
granted for the conduct of investigations and for the security of the State”), and
that the Code of Criminal Procedure (Article 427, states that: “offences may be
established by any mode of evidence”).
Finally, regarding the rejection of foreign lawyers, Burkina Faso principally
argues that the instruments cited by the Applicant, do themselves provide for
legal restrictions to be consistently applied to the exercise of rights in general;
and that specifically, the rules of UEMOA again provide for restrictions on
certain rights, for the sake of public order, public safety, public health, “or other
reasons of general interest” (Article 94 of the Treaty of UEMOA). Concerning the
24 April 1964 Convention signed between France and Upper Volta (former name
of Burkina Faso), the Defendant State is of the view that its application is subject
to the mechanism of reciprocity, and that the Applicant does not provide
evidence of the provision made for such reciprocity.
During the court hearing of 7 June 2016, Burkina Faso advanced the argument
that despite the progress made in the trial proceedings of the case at the
national level, and notably by virtue of the judgments delivered by the Supreme
Court of Burkina Faso, Burkina Faso was maintaining its position on the question
of the presence of foreign lawyers among the constituted counsel for the
Applicant and on the issue concerning tapped telephone conversations.
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