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ri:fV 6�!:tEfi �(.aHm • Human and Peoples' Rights Human Rights our Collective Responsibility entertain the appeal in Devendra11ath Hurnam v N Devat and others, the JCPC contemplation that the Court of Appeal had yet to consider the issue would be tenuous as a ground for supposing that the issue is still ongoing before domestic courts as the Respondent State suggests. 86. The issue also arose subsequently in the same year in yet another case of Ex parte Devendranath Hurnam. The Judge in dealing with the procedural issues in chambers and relying on the 1 July 2011 ruling, decided that the ex-parte application cannot be instituted by the applicant in person/without recourse to an Attorney and on appeal, the Complainant once again requested that the issue of litigating in person should be reconsidered (see paragraphs 23 and 24 above). The Court of Appeal's decision on 7 November 2013 in this case clearly shows that: (a) the Complainant's request was ignored; (b) the Court of Appeal still regarded the issue as settled in the 1 July 201 1 ruling as sacrosanct. The Court however, allowed the appeal on the ground that in filing the ex-parte application, the Complainant was acting as a Respondent and is not covered by the 1 July 2011 ruling. 87. From all the cases cited above, the Commission is of the view that the Court of Appeal had taken a firm position not to revisit the 1 July 2011 ruling that the Complainant could not institute proceedings before the Supreme Court in person. The Commission also finds that, despite the fact that the 1 July 201 1 ruling affected any other person who would institute proceedings in person, the JCPC as a court of last resort earlier took the view that it could not consider the issue as it is not an arguable point of general public importance to warrant attention. 88. In light of the above, the Commission is convinced that there was no other court the Complainant could go to in Mauritius to get redress on this issue.. The Commission accordingly finds that the Complainant had exhausted local remedies initially as at December 2011 and later on upon further attempts by July 2013 when on both occasions the JCPC, the court of last resort, declined to entertain his appeals on the issue of litigating in person. 89. Further, the Commission notes that the Complainant's motions for orders to re open the criminal and disciplinary cases were dismissed by the Supreme Court. The decision dismissing the motions is what gave rise to the issue of litigating in person. The disciplinary case is inextricably connected to the criminal cas �=:::::-....... ,. . t' Atncan 1 Union,� Page 2 African Commission on Human and P 31 Bijilo Annex Layout, Kombo West Coast R Phone: (220) 230 4361 Fax: (2 Email: au-banjul@afr hnps:/achpr. i if. �

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Communication 459/13 - Devendranath Hurnam v. Mauritius

ACHPR Decision

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Type of Document

Decision

Keywords

Equality
Equality Before the Law
Functioning and Independence of the Judiciary
Right to be Heard before a Competent Court

Case Head Notes: The Complainant is a lawyer, who, in the midst of dealing with charges that were brought against him, wished to represent himself without the services of an attorney. The Respondent State denied this possibility. The Commission found a violation of Article 3 stating that the right to litigate one's own case is protected under the African Charter, and because, otherwise, those who are unable (because of financial or other reasons), or unwilling, to use the services of an attorney will be deprived of their right to be heard by the Court. The Commission also noted that the right to litigate in person is not refused to the representatives of the State, so to deny that right to the other party is unequal. The Commission found a violation of Article 7 stating that, given that the Complainant was refused the opportunity to present his case in front of the Supreme Court and the Judicial Committee, the Complainant was denied the opportunity to appeal to a competent national organ, and, therefore, denied the right to have his case heard. The Commission further states that no substance would be left to the right to defence if it meant that individuals, whose rights are infringed, can only pursue justice through the services of a third party. The Commission asserted that the right to be defended by counsel of their choice is an entitlement and not a requirement. The Commission found no violation of Article 26 stating that the Complainant submitted a series of allegations which could not be sufficiently substantiated and cannot be considered as solid evidence. They also state that they do not have a reason to conclude that the Respondent State has not allowed the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of human rights, as required by Article 26 of the Charter. The Commission requested the Respondent State to take all necessary measures to ensure the reopening of the proceedings, as requested by the Complainant, and to allow him to be self-represented if he desires. The Commission also requested the Respondent State to ensure that its laws and statutes, regarding access to courts, are in line with its obligations under the Charter and to provide the Complainant with financial compensation.

Country

Mauritius

Outcome: Decided on Merits

Year Decided: May 23, 2023

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 7.1: Right to be Heard
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 7.1.a: Right to Sue for Remedy before a Competent Tribunal
ACHPR 7.1.c: Right to Defence

Rights Not Violated (ACHPR Provisions)

ACHPR 26 : Duty to Guarantee Independence of Courts

Duration of Procedure

Sep 18, 2013 ~ May 23, 2023

Country Geolocation

Latitude: -20.348404

Longitude: 57.55215200000001

Country Geolocation (linked ACHPR Decision): Mauritius

Primary Documents

Devendranath Hurnam v Mauritius.pdf
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African Human Rights CLA 2.0

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Communication 459/13 - Devendranath Hurnam v. Mauritius

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