However,
on the case filed
before the Court,
no evidence has been adduced to show
that in the Burkinabe judicial system, the Judge is bound to follow the position of the
Prosecutor when he or she rules on a given matter.
On the contrary, articles 129 and
130 of the Burkinabé Constitution provide, respectively, that “the judiciary is independent”
and that “sitting Magistrates are subject only to the authority of the law in the exercise of
their duties [and] are irremovable’”.
Only the specific conduct by a Prosecutor in a given matter, as in the cases cited by the
Applicants (infra, paragraph 127 et seq), could eventually be construed - if proven - as
interference with the independence of the judge.
126. Consequently, it cannot be said that the institution and profile of the Prosecutor in
the Burkinabé judicial system, was in itself and by its nature at variance with article 7 of
the
Charter,
as
long
as
the
existence
of
these
institutions
does
not
affect
the
independence of the relevant jurisdictions.
3) The issue of withdrawal of an Investigating Magistrate
127. In their reply on the merits, the Applicants claim that, at the initiative of the Prosecutor
and in violation of the law, a judge was replaced with another who “managed to ensure
that Francois Compaoré was not heard ...”.They conclude that the interference in this
procedure “by the Prosecutor of Faso, the hatchet man of the Minister of Justice, can be
regarded as an obstruction to the normal course of justice and as an attempt to reassign
the case to more trusted persons”.
128. At the Public Hearing of 28 November 2013, a Counsel for the Applicants reiterated
this allegation.
129. At the Public Hearing of 29 November 2013, however, in answer to a question by
the Court, a Counsel for the Applicants finally declared that it was a mix up with another
case (that of David Ouédraogo) which had brought about the confusion; he admitted that
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