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I • AFRICAN UNION UNION AFRICAIN£ UNIAO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES In the Matter of Lohe lssa Konate v. Burkina Faso Application No. 00412013 h I JUDGMENT

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Table des matières

Subject of the Application 3
Facts of the Case 3
Alleged Violations 4
Procedure Before the Court6
Jurisdiction of the Court 10
Admissibility of the Application12
Objection Relating to the Failure to identify the Respondent State13
Objection Relating to Applicant's Lack of Status as a Journalist15
Objections Based on Article 40 of the Rules 17
Objections to the Admissibility of the Application Drawn From the Incompatibility of the Application with the Constitutive Act of the African Union and the Charter17
Objection Based on the Nature of the Language Used in the Application17
Objection to the Admissibility of the Application Drawn from Failure to Exhaust Local Remedies20
General Observations 21
The Issue of Unduly Prolonged Process of Appeal at the Cour de Cassation 22
Availability, Efficiency and Sufficiency of Remedies at the Cour de Cassation 23
Availability of Remedy at the Cour de Cassation 26
The Effectiveness and Sufficiency (or Adequacy) of the Remedy at the Cour de Cassation 29
Merits of the Matter30
Provisions of Burkinabe law Challenged in the Instant Case31
Consideration of Possible Violation by the Respondent State of its International Obligations 33
Restrictions Imposed by Burkinabe Laws on Freedom of expression 33
The Restriction Must be Provided by law33
The Restriction Must Serve a Legitimate Purpose35
Limitation Must be Necessary to Achieve the set Objective 36
Consideration of Allegations of Violations Relating to Action by Burkinabe Courts 45
Reparations 47
Cost43

04/13 Konate v Burkina Faso (Judgement)

Décision de la Cour africaine

Aperçu

Type de Document

Jugement

Mots clés

Liberté d'expression / Droits numériques

Etat

Burkina Faso

Résultats

Décidé sur le fond

Année de la Décision: 5 déc. 2014

Droits violés (dispositions de la CADHP)

CADHP 9 : Droit à l'information et à la liberté d'expression

Durée de la procédure: ~ 5 déc. 2014

Géolocalisation du pays

Latitude: 12.238333

Longitude: -1.561593

Géolocalisation du pays (Lié Décision de la Cour africaine): Burkina Faso

Documents principaux

04-13 Konate v Burkina Faso (Judgement).pdf
English
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African Charter on Human and Peoples' Rights

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

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

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

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

Pacte International relatif aux Droits Civils et Politiques

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.

Document de l'ONU

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Revised Treaty of Economic Community of West African States (1993)

Article 66 The Press 1. In order to involve more closely the citizens of the Community in the regional integration process, Member States agree to cooperate in the area of information. 2. To this end they undertake as follows: (a) to maintain within their borders, and between one another, freedom of access for professionals of the communication industry and for information sources; (b) to facilitate exchange of information between their press organs; to promote and foster effective dissemination of information within the Community; (c) to ensure respect for the rights of journalists; (d) to take measures to encourage investment capital, both public and private, in the communication industries in Member States; (e) to modernize the media by introducing training facilities for new information techniques; and (f) to promote and encourage dissemination of information in indigenous languages, strengthening cooperation between national press agencies and developing linkages between them.

Treaty

Revised Treaty of Economic Community of West African States (1993)

Treaty

Revised Treaty of Economic Community of West African States (1993)

rticle 66 The Press 1. In order to involve more closely the citizens of the Community in the regional integration process, Member States agree to cooperate in the area of information. 2. To this end they undertake as follows: (a) to maintain within their borders, and between one another, freedom of access for professionals of the communication industry and for information sources; (b) to facilitate exchange of information between their press organs; to promote and foster effective dissemination of information within the Community; (c) to ensure respect for the rights of journalists; (d) to take measures to encourage investment capital, both public and private, in the communication industries in Member States; (e) to modernize the media by introducing training facilities for new information techniques; and (f) to promote and encourage dissemination of information in indigenous languages, strengthening cooperation between national press agencies and developing linkages between them.

Treaty

Revised Treaty of Economic Community of West African States (1993)

Treaty

Rules of Court (African Court on Human and People's Rights)

ule 34Commencement of Proceedings1. The Applicant shall file in the Court Registry, one (1) copy of theapplication containing a summary of the facts of the case andof theevidence intended to be adduced.The said application shall be signed by the Applicant or by his/herrepresentative.The Registrar shall acknowledge receipt of the application.

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Rule 35Transmission of Applications1. Upon the receipt of an application filed in accordance with article 5(1)and (3) of the Protocol, the Registrar shall transmit a copy thereof togetherwith any annexes, to the President and other Members of the Court.2. Unless otherwise decided by the Court, the Registrar shall forward copiesof the application where applicable to the:a) State Party against which the application has been filed, inaccordance with Rule 34 (6) of these Rules;b) State Party whose citizen is a victim of the alleged violation;c) State Party against which an application has been filed at theCommission;d)Commission;e) Individual or legal entity or the Non-Governmental Organization thathas filed an application at the Commission by virtue of article 55 ofthe Charter.3. The Registrar shall also inform the Chairperson of the African UnionCommission and through him/her, the Executive Council of the AfricanUnion, and all the other States Parties to the Protocol, of the filing of theapplication;4. In forwarding applications as stipulated in sub-rules 2 and 3 of this Rule,the Registrar shall invite:a) the Respondent State Party to indicate, within thirty (30) days ofreceipt of the application, the names and addresses of itsrepresentatives; 25b) any other State Party that may wish to intervene in the proceedingsunder article 5(2) of the Protocol, to inform the Registrar accordingly,within the time stipulated in Rule 53;c) if applicable, the Commission to forward to the Registrar, within thirty(30) days the names and addresses of its representatives;

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Rule 37Time Limit for ReplyThe State Party against which an application has been filed shall respondthereto within sixty (60) days provided that the Court may, if the needarises, grant an extension of time

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

ule 35Transmission of Applications1. Upon the receipt of an application filed in accordance with article 5(1)and (3) of the Protocol, the Registrar shall transmit a copy thereof togetherwith any annexes, to the President and other Members of the Court.2. Unless otherwise decided by the Court, the Registrar shall forward copiesof the application where applicable to the:a) State Party against which the application has been filed, inaccordance with Rule 34 (6) of these Rules;b) State Party whose citizen is a victim of the alleged violation;c) State Party against which an application has been filed at theCommission;d)Commission;e) Individual or legal entity or the Non-Governmental Organization thathas filed an application at the Commission by virtue of article 55 ofthe Charter.3. The Registrar shall also inform the Chairperson of the African UnionCommission and through him/her, the Executive Council of the AfricanUnion, and all the other States Parties to the Protocol, of the filing of theapplication

Règlement intérieur

African Charter on Human and Peoples' Rights

Article 56Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1.Indicate their authors even if the latter request anonymity, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4.Are not based exclusively on news discriminated through the mass media, 5.Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6.Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and 7.Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.

Treaty

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Rule 40Conditions for Admissibility of ApplicationsPursuant to the provisions of article 56 of the Charter to which article 6(2) ofthe Protocol refers, applications to the Court shall comply with the followingconditions:1. disclose the identity of the Applicant notwithstanding the latter’srequest for anonymity;2. comply with the Constitutive Act of the Union and the Charter ;3. not contain any disparaging or insulting language;4. not be based exclusively on news disseminated through the massmedia;5. be filed after exhausting local remedies, if any, unless it is obviousthat this procedure is unduly prolonged;6. be filed within a reasonable time from the date local remedies wereexhausted or from the date set by the Court as being thecommencement of the time limit within which it shall be seized withthe matter; and 277. not raise any mater or issues previously settled by the parties inaccordance with the principles of the Charter of the United Nations,the Constitutive Act of the African Union, the provisions of the Charteror of any legal instrument of the African Union.

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Rule 39Preliminary Examination of the Competence of the Court and ofAdmissibility of Applications1. The Court shall conduct preliminary examination of its jurisdiction andthe admissibility of the application in accordance with articles 50 and 56 ofthe Charter, and Rule 40 of these Rules.2. Pursuant to sub-rule 1 of this Rule, the Court may request the parties tosubmit any factual information, documents or other material considered bythe Court to be relevant.

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

rticle 3 JURISDICTION 1. The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 34 RATIFICATION1. This Protocol shall be open for signature and ratification or accession by any State Party to the Charter.2. The instrument of ratification or accession to the present Protocol shall be deposited with the Secretary-General of the OAU.3. The Protocol shall come into force thirty days after fifteen instruments of ratification or accession have been deposited.4. For any State Party ratifying or acceding subsequently, the present Protocol shall come into force in respect of that State on the date of the deposit of its instrument of ratification or accession.5. The Secretary-General of the OAU shall inform all Member States of the entry into force of the present Protocol.6. At the time of the ratification of this Protocol or any time thereafter, the State shall make adeclaration accepting the competence of the Court to receive cases under article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration.

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 5 ACCESS TO THE COURT 1. The following are entitled to submit cases to the Court:a) The Commissionb) The State Party which had lodged a complaint to the Commissionc) The State Party against which the complaint has been lodged at the Commissiond) The State Party whose citizen is a victim of human rights violatione) African Intergovernmental Organizations2. When a State Party has an interest in a case, it may submit a request to the Court to be permitted to join.3. The Court may entitle relevant Non Governmental organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocol.

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Treaty

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 3 JURISDICTION 1. The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.

Treaty

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

African Charter on Human and Peoples' Rights

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

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Revised Treaty of Economic Community of West African States (1993)

Treaty

Revised Treaty of Economic Community of West African States (1993)

Treaty

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

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

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

African Charter on Human and Peoples' Rights

Treaty

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

rticle 56Communications relating to human and peoples' rights referred to in 55 received by the Commission, shall be considered if they: 1.Indicate their authors even if the latter request anonymity, 2.Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3.Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity,

Treaty

African Charter on Human and Peoples' Rights

Treaty

Rules of Court (African Court on Human and People's Rights)

ule 40Conditions for Admissibility of ApplicationsPursuant to the provisions of article 56 of the Charter to which article 6(2) ofthe Protocol refers, applications to the Court shall comply with the followingconditions:1. disclose the identity of the Applicant notwithstanding the latter’srequest for anonymity;2. comply with the Constitutive Act of the Union and the Charter ;3. not contain any disparaging or insulting language

Règlement intérieur

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

African Charter on Human and Peoples' Rights

Treaty

African Charter on Human and Peoples' Rights

Treaty

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

African Charter on Human and Peoples' Rights

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

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

African Charter on Human and Peoples' Rights

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

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

African Charter on Human and Peoples' Rights

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

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

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

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

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

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

African Charter on Human and Peoples' Rights

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

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

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

African Charter on Human and Peoples' Rights

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

Revised Treaty of Economic Community of West African States (1993)

Treaty

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Rules of Court (African Court on Human and People's Rights)

Rule 63Judgment on ReparationThe Court shall rule on the request for the reparation, submitted inaccordance with Rule 34 (5) of these Rules, by the same decisionestablishing the violation of a human and peoples’ right or, if thecircumstances so require, by a separate decision.

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Rule 34Commencement of Proceedings1. The Applicant shall file in the Court Registry, one (1) copy of theapplication containing a summary of the facts of the case andof theevidence intended to be adduced.The said application shall be signed by the Applicant or by his/herrepresentative.The Registrar shall acknowledge receipt of the application.2. Any application addressed to the Court shall give clear particulars of theApplicant and of the party or parties against whom such application hasbeen brought. The application shall also contain the names and addressesof the persons designated as the Applicant’s representatives.3. The application shall be written in one of the official languages of theCourt, and the original forwarded to the Court Registry.4. The application shall specify the alleged violation, evidence of exhaustionof local remedies or of the inordinate delay of such local remedies as well asthe orders or the injunctions sought. All applications filed by individualsand Non-Governmental Organizations shall meet the other admissibilityconditions as set out in article 56 of the Charter and Rule 40 of these Rules.5. Any Applicant who on his/her own behalf or on behalf of the victimwishes to be granted reparation pursuant to article 27(1) of the Protocol shallinclude the request for the reparation in the application in accordance withsub-rule 4 above. The amount of the reparation and the evidence relatingthereto may be submitted subsequently within the time limit set by theCourt.6. The Registrar shall effect service of the application on the other party byregistered post together with a request to acknowledge receipt.

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Rule 30Legal CostsUnless otherwise decided by the Court, each party shall bear its own costs.

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Rule 30Legal CostsUnless otherwise decided by the Court, each party shall bear its own costs.

Règlement intérieur

African Charter on Human and Peoples' Rights

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

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

African Charter on Human and Peoples' Rights

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

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Revised Treaty of Economic Community of West African States (1993)

Treaty

African Charter on Human and Peoples' Rights

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

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

African Charter on Human and Peoples' Rights

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

Revised Treaty of Economic Community of West African States (1993)

Treaty

African Charter on Human and Peoples' Rights

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

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

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

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

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Revised Treaty of Economic Community of West African States (1993)

Treaty

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Revised Treaty of Economic Community of West African States (1993)

Treaty

Revised Treaty of Economic Community of West African States (1993)

Treaty

Revised Treaty of Economic Community of West African States (1993)

Treaty

Pacte International relatif aux Droits Civils et Politiques

Document de l'ONU

Revised Treaty of Economic Community of West African States (1993)

Treaty

African Charter on Human and Peoples' Rights

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

Rules of Court (African Court on Human and People's Rights)

Rule 60Court’s Deliberations1. The deliberations of the Court shall be heldin cameraand shall remainconfidential.2. Only Judges who were Members of the Panel that heard the case shallparticipate in the deliberations of the Court.3. The decision of the Court shall be made by a majority of the Members ofthePanel present.4. In the event of a tied vote, the Presiding Judge shall have a casting vote.5. Any Member of the Court who heard the case may deliver a separate ordissenting opinion.

Règlement intérieur

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights

Article 28 JUDGMENT1. The Court shall render its judgment within ninety (90) days of having completed its deliberations.2. The judgment of the Court decided by majority shall be final and not subject to appeal.3. Without prejudice to sub-article 2 above, the Court may review its decision in the light of new evidence under conditions to be set out in the Rules of Procedure.4. The Court may interpret its own decision.5. The judgment of the Court shall be read in open court, due notice having been given to the parties.6. Reasons shall be given for the judgment of the Court.7. If the judgment of the court does not represent, in whole or in part, the unanimous decision of the judges, any judge shall beentitled to deliver a separate or dissenting opinion.

Treaty

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

Rules of Court (African Court on Human and People's Rights)

Règlement intérieur

African Charter on Human and Peoples' Rights

Article 271. Every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community. 2. 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

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- Treaty56
- Document de l'ONU22
- Règlement intérieur30
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