As for Rule 41 of the same
or during
the
course
of the
Rules, it provides in turn that "the Court may, before
proceedings,
call on
the
parties
to file any
pertinent
document or to provide any relevant explanations. The Court shall formally note any
refusal to comply".
Finally, it follows from Rule 45 of the said Rules that "the Court may, either on its
own motion or at the request of a party or, where appropriate, of the representatives of
the Commission, obtain any evidence which it deems relevant to the facts of the case.
It may, notably, ......... "
It is apparent from paragraph
139 of the Judgment that the Court confirmed
that it had established the Applicant's alleged right to free legal assistance and the right
to be tried within a reasonable time. However,
in paragraphs 142 and 143, the Court
dismissed the Applicant's claims for material damages on the ground that he had not
adduced
any
evidence
of the
alleged
damages
with
documents
proving
financial
income from his occupation, payments to the Advocate, costs of proceedings and the
like,
However, it is not apparent from the reasons for the judgment that, in accordance
with
the
above-mentioned
articles,
the
Court
asked
the
Applicant
to submit
the
documents proving the harm suffered, thereby failing to comply with the rule requiring
it to adduce reasons for its judgments.
Moreover,
in relation
to the
non-pecuniary
damage
suffered
by the
indirect
victims, the Court also considered the lack of evidence in relation to the Applicant's
allegations, as it had not proved the identification or filiation of the indirect victims.
in my opinion, this approach
is contrary to the spirit of the above-mentioned
instruments and to the positive role that a judge must play for the proper administration
of justice.
It is worthy to mention in this respect that the application was registered on 19
January 2015 and that between
6 July 2018 and September 2019, the Respondent
State had already raised this lack of evidence on the part of the Applicant and that on
the closing date of the reparations proceedings, 29 September 2019, the Court could
have responded by asking the Applicant to file the documents.
If such a request had
not been complied with, the Court would have based the dismissal of the applications
on Rule 41 of the Rules.