The author of the communication is Urbain Olanguena Awono, a national of Cameroon born on 16 July 1955. He claims that the State party has violated his rights under articles 2, 7, 9, 10, 14 and 15 of the Covenant. The Covenant and the Optional Protocol entered into force for Cameroon on 27 June 1984. The author is represented by counsel, Richard Sédillot.
The facts as submitted by the author
The author was the Minister of Health of Cameroon from April 2001 to September 2007. He was arrested on 31 March 2008 and placed in detention on 9 April 2008 in the course of proceedings for misappropriation of public funds in connection with the management of national programmes on AIDS, tuberculosis and malaria.
The author claims that he was held in police custody for 10 days, in other words longer than the 6-day limit set in section 119 (2) (a) and (b) of the Criminal Procedure Code. Given the conditions in which he was held at the premises of the Criminal Investigation Department, where the facilities were unsanitary and he had no bed or toilet, the author considers his time in police custody to have been humiliating. He adds that the public channel Cameroon Radio Television (CRTV) broadcast images of him in his cell, to which he had not consented, showing no regard for the emotional distress they might cause his family.
On the night of 9 April 2008, his tenth day in police custody, the author was brought before the public prosecutor attached to the Mfoundi regional court (tribunal de grande instance). He was then brought before the investigating judge, who issued an order for his pretrial detention and charged him on 10 counts. The author, along with some of his colleagues, was charged with misappropriating 14.8 billion CFA francs, of which 8,555,751,545 CFA francs were attributed to the author.
Throughout the 18 months of the judicial investigation, during which he was held in pretrial detention, the author tried to prove his innocence. He refers to two important dates and documents: (a) on 13 May 2008, the Executive Director of the Global Fund to Fight AIDS, Tuberculosis and Malaria sent a letter to the board, stating that, at the time of writing, the financial and programme reports did not hint at any misappropriation or misuse of the funds allocated to Cameroon; and (b) on 1 June 2009, an expert report ordered by the investigating judge concluded that the activities funded by the World Bank and the Global Fund had not seen any significant irregularities that might amount to misappropriation.
The investigating judge pursued the investigation but issued a partial dismissal order on 2 October 2009. Pursuant to the order, the investigation into the author and five of his colleagues was continued with regard to an amount of 680 million CFA francs – instead of the 14.8 billion CFA francs originally mentioned on 9 April 2008 – of which 414 million CFA francs were attributed to the author. He argues that the collapse of the charges illustrates the emptiness of the claims against him. On 21 August 2009, the investigating judge ordered the separation of the portion of the case concerning undelivered medication.
On 16 February 2010, the Mfoundi regional court held its first hearing in the case. The author claims that the judicial panel appointed to hear the case did not respect the principles and guarantees of a fair trial. He also claims that new charges were introduced through the investigating judge’s order, thereby distorting the facts as set forth in the public prosecutor’s application to the investigating judge to open an investigation. This was done without the author having been informed, despite an obligation under section 169 of the Criminal Procedure Code to draw up a supplemental application in such cases.
The author’s lawyers therefore submitted an application for the new charges to be declared null and void on the basis of sections 3 and 169 of the Criminal Procedure Code. Their application was dismissed by the Mfoundi regional court without, in the author’s opinion, proper reasoning. The appeals court of the Centre region, however, overturned the regional court’s decision and, on 13 October 2011, ordered the termination of the proceedings against the author with regard to the three charges. On 15 March 2012, the Supreme Court found the public prosecutor’s appeal on points of law inadmissible and referred the case back to the Mfoundi regional court, specifying that the composition of the judicial panel should be modified.
In June 2012, the Mfoundi regional court resumed proceedings with regard to only two of the charges.4 The author describes the proceedings as serene and believes that the principles and guarantees of a fair trial were respected. The regional court was expected to deliver its verdict on 15 October 2012. That day, the public prosecutor reportedly ordered the deputy public prosecutor not to attend court. In addition, the public prosecutor allegedly refused to have the accused brought to attend the hearing. Consequently, the presiding judge postponed the hearing to the following day, 16 October 2012, when the public prosecution was again absent, as were the accused, who, once more, were not brought to court. In the author’s view, the situation amounted to an extremely serious obstruction of justice.
- Namely: (a) the use of 11,190,000 CFA francs in public funds to finance the publication of his book Le sida en terre d’Afrique: l’audace des ruptures (AIDS in Africa: the Courage for Radical Change); and (b) the payment of 80,864,242 CFA francs to the firm Vision SARL for undelivered mosquito nets. ↩
On 17 October 2012, the day after the boycott, all cases pending before the Mfoundi regional court had to be transferred, pursuant to Act No. 2012/011 of 16 July 2012 amending certain provisions of Act No. 2011/028 of 14 December 2011, to the Special Criminal Court, an extraordinary criminal court that had been established since the launch of the proceedings against the author. The author asserts that the procedure was thus restarted, in breach of the principle that cases should be adjudicated within a reasonable time. He contends that the public prosecutor reinitiated the proceedings, without having any new evidence, on the basis of charges that had been dismissed by the appeals court of the Centre region. He claims that the investigating judge of the Mfoundi regional court had, as early as 4 July 2012, decided to refer his case to the Special Criminal Court.
The defence lawyers submitted in limine litis their motion to have the proceedings declared null and void on the grounds that they violated sections 3 and 5 of the Criminal Procedure Code, the latter of which provides that nullified documents must be removed from the case file and filed in the registry and that the use of information contained in them against the person concerned is prohibited, subject to proceedings for damages; the principle that judgments are binding; and the non bis in idem rule. The Special Criminal Court decided to join the defence of nullity to the merits. The author maintains that the Special Criminal Court rejected his list of witnesses, a serious violation of the rights of the defence. On 14 June 2013, the author was sentenced to 15 years in prison for “misappropriation of public funds by association”. He contends that “misappropriation by association” is not an offence under Cameroonian criminal law and that the principle of nullum crimen, nulla poena sine lege was therefore breached. The Special Criminal Court denied the request to combine the proceedings for misappropriation and, on 12 August 2013, found him guilty of complicity, along with Mr. S.M., in the misappropriation of 80,864,242 CFA francs. The author contends that Mr. S.M. was able, through fraudulent acts such as forging signatures, including the author’s, to receive payment for a lawfully obtained contract for mosquito nets that, however, were never delivered. He further contends that there is no evidence of his material participation or guilty intent or of a deal between him and his alleged co-perpetrator, since his signature had been forged. The author argues that the harsh sentences imposed on him are baseless and unlawful. He filed an appeal on points of law against the decisions of the Special Criminal Court.
On 5 August 2015, the Supreme Court handed down its decision regarding the author’s appeal on points of law against the 14 June 2013 judgment of the Special Criminal Court. The Supreme Court overturned the conviction for “misappropriation by association”. However, it reclassified the acts, resulting in a 10-year prison sentence. Two former principal State prosecutors attached to the appeals court of the Centre region who had led proceedings against the author had since been appointed to the specialized division of the Supreme Court. The author asked that they be disqualified from the case, which request was granted; he claims, however, that the climate of mistrust created by this situation had already vitiated the proceedings.
The complaint
The author claims to have exhausted domestic remedies since the beginning of the case on 31 March 2008 and, in this connection, enumerates several applications that were submitted, all without effect: (a) a letter sent on 27 August 2008 by the author’s lawyers to the investigating judge, calling attention to his rights; (b) an application for release on bail filed with the investigating judge on 31 March 2009; (c) a letter sent on 25 January 2010 by the author’s lawyers to the president of the Mfoundi regional court criticizing the delay in the registration of the case; (d) a letter sent on 20 January 2011 by the author’s lawyers to the Minister of Justice, denouncing the delays in the proceedings and requesting their discontinuance in accordance with section 64 of the Criminal Procedure Code; (e) a writ of habeas corpus filed on 22 November 2012 with a view to obtaining his immediate release; (f) a habeas corpus appeal; and (g) an appeal on points of law against the convictions handed down by the Special Criminal Court, which remained unheeded for an unreasonable period of time. He adds that, with the handing down of judgment No. 002/SSP/CS of the Supreme Court of 5 August 2015, the requirement to exhaust domestic remedies has undoubtedly been met, although that condition had already been satisfied on account of “the unreasonably prolonged nature of the appeals procedures”.
The author claims to have been the victim of a violation of his right to respect for human dignity as enshrined in articles 7 and 10 of the Covenant. He argues that the broadcasting on national television of images of him lying on the floor of a cell at the premises of the Criminal Investigation Department constitutes an offence against his dignity as a human being within the meaning of article 10 (1) of the Covenant. He also argues that these events were traumatic for him and his relatives and constitute cruel, inhuman and degrading treatment as prohibited under article 7 of the Covenant.
The author alleges that he was the victim of a violation of article 9 (1) of the Covenant. He affirms that his sentencing by the Supreme Court to 10 years in prison was in no way justified by irrefutable factual evidence or legal argument; his conviction was motivated by extrajudicial considerations, mainly political ones. He contends that he did not have a fair trial and that he was detained arbitrarily.
The author also claims to have been the victim of a violation of his right to the presumption of innocence as enshrined in article 14 (2) of the Covenant. In his opinion, the circumstances of his arrest, which was publicized in the media, did not respect the principle of the presumption of innocence. In support of his claim, he cites a public statement by the Deputy Prime Minister and Minister of Justice of 16 June 2010, in which he challenged anyone to prove that those who had been arrested were innocent since they had done a good job hiding what they had stolen. The author situates this statement in the context of the anti-corruption operation known as Opération Epervier and believes that the judiciary was under political pressure and largely under the orders of the executive. He also cites the Minister of Communications,5 whose words, in his opinion, reveal the political undertones of the trials that flowed from Opération Epervier.
- “All the corrupt officials who were arrested as part of Opération Epervier misused public funds because they aspired to the presidency, ignoring the statutes of their party, the Cameroon People’s Democratic Movement, which stipulate that the president of the party is the natural candidate for the presidential elections.” The Cameroon People’s Democratic Movement is the party in power. ↩
The author further claims that his right to a fair trial within a reasonable time was violated owing to excessive procedural delays and denial of justice, in breach of articles 9 (3) and 14 (3) of the Covenant. Concerning the investigation stage, he contends that his applications to have the investigation closed remained unheeded despite evidence of his innocence. The trial before the Mfoundi regional court lasted over four years. The author also believes that the failure of the public prosecutor to attend the hearings at the regional court on 15 and 16 October 2012 prevented a judicial decision from being taken and prolonged the trial. As regards the Special Criminal Court, he argues that the very nature of the Court and its rules of procedure violate the guarantees of a fair trial. Citing the Court’s own rules, he also argues that the Court exceeded the time allotted to reach a decision, which is set at a maximum of six months, with the possibility of extension for up to three months.6 Regarding the appeal on points of law, the specialized division of the Supreme Court responsible for considering appeals against judgments of the Special Criminal Court is supposed to have a maximum of six months to come to a decision.7 The author considers that the uncertainty and inefficiency of this final remedy are such as to render it virtually useless. Thus, he believes that domestic remedies, having been unreasonably prolonged within the meaning of article 5 (2) (b) of the Optional Protocol, have been exhausted.
Lastly, the author claims that his right to be judged fairly by an independent and impartial court, as provided for in article 14 of the Covenant, was violated. Given that the Special Criminal Court is an extraordinary body benefiting from exceptions to the law, it does not uphold or protect the rights enshrined in the Covenant. These exceptions include: (a) the elimination of the right of appeal in matters of ordinary law; (b) the violation of the principle of the non-retroactivity of laws; (c) the violation of the principle of equality of arms inasmuch as section 11 of Act No. 2012/011 provides that a public prosecutor’s appeal may deal with the facts and points of law, whereas other parties may submit an appeal only on points of law; and (d) breaches of the rights of the defence stemming from section 10 of the Act, which provides that the Court sets the number of witnesses to be called for each party to the proceedings and that procedural pleas, including those relating to jurisdiction, are to be joined to the merits. The author is of the view that starting the entire procedure over before the Special Criminal Court led to a violation of fair trial guarantees, in particular: (a) the reinstatement of charges that had been dismissed by binding decisions of higher courts, in violation of the non bis in idem rule set out in article 14 (7) of the Covenant; (b) the joining of the defence of nullity, raised by the author’s lawyers, to the merits, in violation of article 14 (1) of the Covenant; (c) the fact that prosecution witnesses were allowed to testify while witnesses for the defence were not, in breach of the principle of equality of arms as provided for in article 14 (3) (e) of the Covenant; and (d) the fact that the author was held in pretrial detention then convicted, whereas other officials of the Ministry of Health involved in the Vision SARL case were released, which was discriminatory and violated the principle of equality before the law as enshrined in article 14 (1) of the Covenant.
The author affirms that the judgment of the Supreme Court violated article 14 (1) of the Covenant. He considers that the Supreme Court afforded no guarantees of independence or impartiality, as it is the product of a law instituting an extraordinary criminal justice system under government control. He also calls into question the composition of the specialized division responsible for reviewing decisions of the Special Criminal Court given that two of its appointed members had served as principal State prosecutor attached to the appeals court of the Centre region and had, in that capacity, led proceedings against him. The author believes that, under these circumstances, it is legitimate to doubt the impartiality of the judges in question and that their appointment violated article 14 of the Covenant. His lawyers appealed to the first president of the Supreme Court, the President of the Republic and the president of the Supreme Council of Justice to have the judges replaced.
In conclusion, the author claims that he has suffered physical, moral, material, judicial and professional damage and that the well-being of his family has also suffered. He includes an assessment of the financial compensation he is seeking. In addition, he requests the Committee to order his release.
State party’s observations
On 25 April 2016, the State party submitted its observations on the case. It challenges the admissibility of the communication, emphasizing that the author has not exhausted domestic remedies as required under article 5 (2) (b) of the Optional Protocol.
The State party clarifies the facts and procedure. It recalls that, in the course of an audit ordered by the Supreme State Audit Office, State inspectors uncovered cases of misappropriation in relation to programmes to fight tuberculosis, AIDS and malaria.
The State party then comments on the three portions of the proceedings against the author. In relation to the first portion, that is the misappropriation of funds to finance his book and the non-performance of a contract by Vision SARL, the author was held in police custody for eight days, in accordance with section 119 of the Criminal Procedure Code. He was then charged on 9 April 2008 with misappropriation of public funds and complicity and was placed in pretrial detention. The charge relating to the delivery of medication was separated from these proceedings by an order of 21 August 2009.
Concerning the second portion, namely misappropriation and attempted misappropriation, the memorandum of understanding with the Cameroon Association for Social Marketing was in fact a public contract and was allegedly concluded and implemented in violation of the relevant regulations. The State party contends that the author unblocked 260 million CFA francs when the contract was actually for 200 million CFA francs. It also contends that the author directly wired 122 million CFA francs to various associations, in breach of the Public Procurement Code. It claims that the charges that were dismissed by the Supreme Court in the order of 15 March 2012 did not relate to the aforementioned acts and believes that the charging of the author with misappropriation and attempted misappropriation on 4 July 2012 was justified.
With regard to the third portion, that is, misappropriation through non-delivery of medication, the State party notes that the misappropriation became evident because of a lack of delivery receipts. It asserts that, on 21 August 2009, the investigating judge ordered the separation of these facts from the first portion of the case because they were complex and would merely have prolonged the investigation, which also targeted other suspects. On 8 October 2012, in accordance with section 16 of Act No. 2012/011, the investigating judge of the Mfoundi regional court ordered the case transferred to the Special Criminal Court. On 12 August 2013, the Special Criminal Court sentenced the author to 20 years in prison in connection with this portion of the case.
The State party goes on to provide its comments on admissibility and recalls the admissibility criteria set forth in the Optional Protocol.
Regarding the author’s claims about violations of articles 7 and 10 of the Covenant, the State party maintains that he did not seek any domestic remedy in relation to these claims. The State party refers to the Committee’s jurisprudence according to which mere doubts as to the effectiveness of domestic remedies do not absolve an author from the obligation to exhaust them.8 It is of the view that the domestic remedies in matters relating to human dignity exist, are effective and should have been exhausted.
- García Perea v. Spain, No. 1511/2006, para. 6.2. ↩
The State party calls into question the author’s statement that the requirement to exhaust domestic remedies has been met, given that proceedings remain pending before the Supreme Court and that this remedy is neither uncertain nor ineffective. Concerning the latter point, the State party notes that, on 5 August 2015, the Supreme Court dismissed all the charges in the second portion of the case. It specifies that the second appeal is before the reporting judge of the Supreme Court and that the case will be placed on the docket as soon as the findings of the reporting judge have been submitted.
Subsidiarily, the State party points out that the author’s claims regarding the presumption of innocence, the unreasonable length of the trial, the rights of the defence and the independence of the courts are unfounded.
Concerning the presumption of innocence, the statements of the authorities cited by the author were general in nature and did not refer to any specific person. The State party maintains that proceedings in connection with the misappropriation of public funds do not automatically lead to a conviction. Moreover, the statements had no impact on the investigation of the case, as illustrated by the reduction of the amount of the misappropriated funds attributed to the author, the acquittal of four of his co-defendants and the acquittal of the author himself, in the judgment of the Special Criminal Court of 14 June 2013, of the charges in the first portion of the case, relating to funding for the publication of his book.
Turning to the claim that the trial was unreasonably long, the State party refers to the three criteria set out in the Committee’s jurisprudence, namely the complexity of the case, the conduct of the accused and the manner in which the matter was dealt with by the administrative and judicial authorities.
Regarding the first portion of the case, the accused contributed to the delays in the proceedings by filing multiple procedural applications. The transfer of the case to the Special Criminal Court on 17 October 2012 was lawful as the hearings had lasted until 16 October 2012, that is, the deadline for transmitting the case to the Special Criminal Court. Proceedings began afresh following the transfer because the new panel of judges was not familiar with the facts. The author was tried by the Special Criminal Court within the statutory period as the case was first registered on 7 December 2012 and the decision was issued on 14 June 2013.
As for the second portion of the case, the author refused to sign the notification of charges dated 4 July 2012 and to comply with the investigating judge’s orders to appear in court. The Special Criminal Court was seized of the second portion on 26 December 2012 and handed down its decision on 14 June 2013. The Supreme Court, which was seized of the appeal, registered the case on 9 June 2015 and issued its decision on 5 August 2015.
Concerning the third portion, the State party argues that the trial cannot be considered as having been excessively long owing to the complexity of the procedure. It describes the measures taken by the investigating judges of the Mfoundi regional court and the Special Criminal Court. It refers to a request for judicial assistance made on 10 December 2014 to the chief of the enquiry unit of the specialized criminal investigation corps of the Special Criminal Court to check the orders placed by the Ministry of Health using funds intended for debt relief for heavily indebted poor countries.
Regarding the rights of the defence, paragraph 39 of the Committee’s general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial establishes that the right to examine one’s witnesses is not an unlimited right. The author fails to distinguish between the presentation of evidence and its assessment. The State party contends that the author never officially requested that the testimony of the Executive Director of the Global Fund to Fight AIDS, Tuberculosis and Malaria be entered into evidence. The author submitted his witness list on 4 February 2013 in connection with the second portion of the case, in other words only one day before the start of the hearing, compared to the five days prescribed in section 414 of the Criminal Procedure Code. Section 414 also provides that as a consequence of non-adherence to the deadline, witnesses are not heard.
Turning to the impartiality and independence of the courts, the State party comments on the characterization of the Special Criminal Court as an extraordinary body, the right of appeal, the equality of arms, the non bis in idem rule, the legality of the offences and the punishments, and non-discrimination. The Special Criminal Court is not an extraordinary court but, rather, a special court. According to the State party, the struggle against misuse of public resources is a legitimate objective. The right of appeal has not been eliminated as decisions of the Special Criminal Court are appealable. Similarly, the principle of the non-retroactivity of the law has not been violated inasmuch as Act No. 2011/028 of 14 December 2011 is a procedural law that may be immediately applied. Restricting appeals lodged by other parties to points of law does not breach the principle of equality of arms because points of law are not considered in the abstract. The Supreme Court, acting as final appellate body, used its power to examine the facts as well as the points of law referred to it. The dismissal of the charges should not be confused with the non bis in idem rule, according to which dismissal affects only the procedural documents that have been nullified, not the facts, which remain unchanged. Therefore, it is possible to seek evidence in connection with the facts by any other means. The dismissal of the charges thus does not imply that the facts alleged in these charges are precluded from examination. As for the conviction for “misappropriation by association”, the Supreme Court rectified this point in its judgment of 5 August 2015, in which it convicted the author on the basis of section 184 of the Penal Code and section 87 of Decree No. 2000/15 of 30 June 2000 regulating public procurement. The fact that some of the author’s co-defendants were released during the proceedings relating to the second portion whereas he was convicted does not constitute a violation of the principle of non-discrimination, since criminal liability is individual. Both Supreme Court justices whose impartiality had been called into question were removed from the proceedings.
The State party requests the Committee to declare the communication inadmissible and, subsidiarily, with regard to the merits, to conclude that the author’s rights have not been violated.
Author’s comments on the State party’s observations
With regard to the facts and procedure, the author challenges the State party’s assertion that the acts of which he was accused led to three-part proceedings against him. He claims that the separation of the proceedings, for which there was no legal basis, and their resumption based on charges that had been definitively dismissed effectively meant that he had been the subject of three different proceedings.
The author recalls that, from his arrest on the morning of 31 March 2008 to the end of his time in police custody on 9 April 2008, 10 days elapsed, not 8 as claimed by the State party.
The author reiterates the facts as he presented them and contests their qualification by the State party.
The author recalls that the portion of the case relating to non-delivery of medication is still ongoing. Furthermore, statutory deadlines were not respected in the judgments already handed down by the Special Criminal Court, nor was the six-month period established for the investigation phase of the appeals against these judgments. It is obvious that the duration of domestic remedies exceeds what is considered reasonable within the meaning of article 5 (2) (b) of the Optional Protocol and that, for this reason, they should be considered ineffective.
Regarding the merits, the author once again raises the issues of respect for human dignity, violation of the right to the presumption of innocence, violation of the right to be tried within a reasonable period, the boycott of the Mfoundi regional court, the rejection of his witness list, the failure to consider exculpatory evidence, and the bias and lack of independence of the extraordinary courts that have been set up.
With regard to human dignity, the author’s lawyers sent a letter to the Deputy Prime Minister and Minister of Justice, copied to the President of the Republic, protesting the broadcasting of images of the author lying on the floor of a cell; no response was received. Concerning the right to the presumption of innocence, the statements by the Deputy Prime Minister and Minister of Justice and the Minister of Communications were not at all general and, given the context, obviously targeted the author and two other ministers. Referring to paragraph 23 of the Committee’s concluding observations concerning the State party’s fourth periodic report (CCPR/C/CMR/CO/4) and to the position of the African Commission on Human and Peoples’ Rights in its decision No. 266/03 (Kevin Mgwanga Gunme et al. v. Cameroon) of 27 May 2009, the author calls into question the independence of the judiciary in Cameroon in the light of the fact that the presidency and vice-presidency of the Supreme Council of Justice are held by the President of the Republic and the Minister of Justice, respectively. He recalls the multiple delays in proceedings and asserts that he was justified in challenging what was an illegal procedure that undermined the rights of the defence. The decision of the public prosecutor to boycott the Mfoundi regional court must have been taken in response to instructions, since the public prosecution service is under the direct authority of the Minister of Justice. As for the rejection of the witness list, section 414 of the Criminal Procedure Code allowed the Mfoundi regional court to hear witnesses with the agreement of the parties and the public prosecution. Since the defence of nullity in respect of the resumed proceedings before the Special Criminal Court on charges that had been definitively dismissed had been raised in limine litis, it is only logical that he did not move for nullity until the Court had ruled on combining the consideration of the defence of nullity and the merits. His witness list was reportedly rejected on the grounds that it included the Minister of Justice who, in his time as Minister of Health, had carried out some of the same actions as those of which the author was accused. Regarding the failure to consider exculpatory evidence, the author recalls the statement of the Executive Director of the Global Fund to Fight AIDS, Tuberculosis and Malaria and the report of the judicial experts and contends that the director of the local office of PricewaterhouseCoopers, the Global Fund’s local agent, was on the list. As for the extraordinary courts’ bias and lack of independence, the system, which has been criticized by numerous legal specialists and practitioners, is reportedly politically driven. The author refers to press articles that question the independence of the justice system. He recalls the exceptions to the law permitted for Special Criminal Court and his conviction for the offence of “misappropriation by association”. In relation to his conviction as an accessory, along with a forger, he further recalls that all the other accused whose signatures had been imitated or scanned were released, except for himself and his former accountant. In addition, he notes that, despite the fact that the Special Criminal Court’s judgment regarding the charge of “misappropriation of public funds by association” was quashed on appeal, the Supreme Court, in its decision of 5 August 2015, used the same argument as the Special Criminal Court to convict him.
Additional observations by the author
On 21 December 2016, the author transmitted a report on his treatment in hospital for a suppurating tumefaction. He claims that it is difficult for him to continue the prescribed treatment due to being detained.
Additional observations by the State party
On 21 April 2016, the State party reiterated its observations and provided additional information.
Regarding the author’s assertions about the funds allocated to associations, the State party recalls that it is not for the Committee to substitute itself for the national authorities in the assessment and qualification of the facts, unless there has been a clear case of denial of justice or bias on the part of those authorities.
Concerning admissibility, the letters sent to the Deputy Prime Minister protesting the violations of the author’s dignity should not be considered legal remedies. The State party recalls that the third portion of the case is particularly complex and that investigative measures continue to be taken.
As for the merits, the State party claims that other high-profile persons prosecuted as part of efforts to rid the management of public funds of corruption have been acquitted or seen the proceedings against them set aside. It recalls that the author had numerous opportunities to produce his witness list.
Author’s comments on the State party’s additional observations
In a letter dated 12 May 2017, the author notes that the claims that other high-profile persons prosecuted as part of efforts to rid the management of public funds of corruption have been acquitted or seen the proceedings against them set aside should not be taken into consideration.
In addition, the author informs the Committee that, on 4 April 2017, the Supreme Court rejected his appeal on points of law against the judgment of the Special Criminal Court of 12 August 2013, supposedly because the defence’s case had no legal basis. He refers the Committee to the statement in defence as transmitted to the Supreme Court, which was annexed to the initial submission and was, in his view, a high-level legal document produced by competent experienced lawyers.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol to the Covenant.
The Committee has ascertained, as required by article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined by another international procedure of investigation or settlement.
The Committee notes that the State party contests the admissibility of the communication on the grounds that domestic remedies have not been exhausted within the meaning of article 5 (2) (b) of the Optional Protocol and that, subsidiarily, the author’s claims are unfounded.
The Committee notes that the author claims a violation of article 2 of the Covenant, but recalls that the provisions of this article lay down general obligations for States parties which cannot give rise, when invoked separately, to a claim in a communication.9 It finds that the claim is inadmissible under article 3 of the Optional Protocol.
- Poliakov v. Belarus (CCPR/C/111/D/2030/2011), para. 7.4; Castañeda v. Mexico (CCPR/C/108/D/2202/2012), para. 6.8; A.P. v. Ukraine (CCPR/C/105/D/1834/2008), para. 8.5; and Peirano Basso v. Uruguay (CCPR/C/100/D/1887/2009), para. 9.4. ↩
The Committee takes note of the author’s claims under articles 7 and 10 of the Covenant with regard to the violation of the right to respect for human dignity. It notes: (a) the conditions in which he was held in police custody between 31 March and 9 April 2008; (b) the broadcasting on public television of images of him taken without his consent during the same period; and (c) the report of 21 December 2016 on his treatment in hospital for a suppurating tumefaction. It also notes the letters of protest sent to the Deputy Prime Minister and Minister of Justice, copied to the President of the Republic. It further notes the State party’s argument that the author has not exhausted domestic remedies insofar as he has not seized the domestic courts. Recalling its established case law whereby an author must avail himself or herself of all legal remedies in order to fulfil the requirement under article 5 (2) (b) of the Optional Protocol, provided that such remedies are effective and available to the author,10 and observing that the aforementioned letters of protest cannot be considered legal remedies, the Committee is of the view that the author has not raised his claims before the domestic courts. Consequently, it finds this part of the communication inadmissible under article 5 (2) (b) of the Optional Protocol.
- P.L. v. Germany ((CCPR/C/79/D/1003/2001), para. 6.5; and Akwanga v. Cameroon (CCPR/C/101/D/1813/2008), para. 6.4. ↩
The Committee takes note of the author’s claims under article 9 (1) of the Covenant concerning his arbitrary detention. It notes, however, that he has not sufficiently substantiated his claim that he was convicted on account of extrajudicial considerations and finds the claim inadmissible under article 2 of the Optional Protocol.
The Committee takes note of the author’s claims under article 14 (2) of the Covenant regarding the violation of the right to the presumption of innocence. It takes note of the public statements by high-level State officials, including in relation to Opération Epervier, and recalls the duty of government authorities to refrain from prejudicing the outcome of a trial.11 It is of the opinion, however, that, based on the facts as submitted by the author and the State party, the statements concerned did not directly refer to the proceedings against the author and that the author has not sufficiently substantiated his claims in this regard. It concludes therefrom that the claims relating to article 14 (2) of the Covenant should be found inadmissible under article 2 of the Optional Protocol.
- Zinsou v. Benin (CCPR/C/111/D/2055/2011), para. 7.3, and Committee’s general comment No. 32, para. 30. ↩
The Committee takes note of the author’s claims relating to articles 9 (3) and 14 (3) of the Covenant regarding the violation of the right to a fair trial within a reasonable time.
The Committee notes that the author was arrested on 31 March 2008 and that the Mfoundi regional court held its first hearing in the case on 16 February 2010. It also notes that the author was held in detention for the entire duration of the trial. It takes note of the author’s multiple attempts to secure his release (see para. 3.1) and of the lack of information from the State party on the follow-up given to these attempts. The Committee further notes the State party’s argument that, at the time of the submission of the communication on 1 June 2015, domestic remedies remained pending and were neither uncertain nor ineffective. In the present case, the author was arrested on 31 March 2008 and the Supreme Court handed down its last decisions on 5 August 2015 and 4 April 2017. The Committee takes note of the letters sent on 25 January 2010 to the president of the Mfoundi regional court and on 20 January 2011 to the Minister of Justice, criticizing the sluggishness of the trial. In the light of the foregoing, the Committee concludes that the communication is admissible under article 5 (2) (b) of the Optional Protocol in respect of a possible violation of articles 9 (3) and 14 (3) (c).
Regarding the claim that the Special Criminal Court is an extraordinary court that does not uphold the rights of the defence, the Committee takes note of the author’s allegations about the violation of the principle of the non-retroactivity of the law, the violation of the principle of equality of arms and breaches of the rights of the defence (see para. 3.6). It recalls that a trial before courts other than the ordinary courts is not necessarily, per se, a violation of the entitlement to a fair hearing12 and that a State party’s decision to try a person before a special court must be based on reasonable and objective grounds.13 The Committee notes that: (a) the Special Criminal Court was established by the legislative branch through Act No. 2011/028 of 14 December 2011, as supplemented by Act No. 2012/011 of 16 July 2012; (b) the Acts establish the Court’s competence ratione materiae, in other words to adjudicate offences related to the misappropriation of public funds above a set amount, as defined in the Penal Code; and (c) for the most part, the relevant rules of procedure are contained in the Criminal Procedure Code. The Committee notes that, in this case, the establishment of the Special Criminal Court seems to have been a reasonable response to the country’s economic and social situation14 and that the proceedings against the author were objectively within the remit of the Court. It also notes that Acts No. 2011/028 and No. 2012/011 as such do not establish any new offences or penalties15 and that the consideration by the Court of events predating its establishment does not constitute a breach of the principle of the non-retroactivity of the law. It further notes that the elements submitted by the author do not cast legitimate doubt on the guarantees of the rights of the defence or on the independence and impartiality of the Court. The Committee considers that the author has not sufficiently substantiated his claims and that this part of the communication must therefore be declared inadmissible under article 3 of the Optional Protocol.
The Committee notes that the author makes a number of claims under article 14 of the Covenant regarding procedure (see para. 3.6). He alleges that: (a) the non bis in idem rule was violated by the Special Criminal Court; (b) the combining, by the Court, of the defence of nullity with the merits of the case breached article 14 (1) of the Covenant, according to which everyone is entitled to a hearing; (c) the principle of equality of arms between the prosecution and the defence, safeguarded by article 14 (3) of the Covenant, was violated on account of the refusal to call the witnesses for the defence; and (d) the principle of non-discrimination was violated as some of the author’s co-defendants were released. The Committee, having examined these claims, believes that, overall, they have not been sufficiently substantiated in order to cast doubt on the procedure followed by the Special Criminal Court, and it therefore concludes that this part of the communication must be found inadmissible under article 3 of the Optional Protocol.
With regard to the claim that the Supreme Court breached its obligation of impartiality, the Committee notes that two of the members of the Court’s specialized division had in the past served as principal State prosecutor attached to the appeals court of the Centre region and had led proceedings against the author. The Committee notes that, notwithstanding the fact that the judges in question exercised their duties in chiefly procedural matters without actually ruling on the author’s guilt, his concerns about the judges were objectively founded. Although it would have been preferable for the judges to recuse themselves of their own accord, the Committee takes note of the fact that they were removed from the proceedings. It also takes note of the author’s assertion that the Supreme Court was widely suspected of bias. However, in the light of the facts submitted by the State party and the author, the Committee is of the view that the author has not sufficiently substantiated his claims in this regard and concludes that the claim about the Supreme Court’s bias should be declared inadmissible under article 3 of the Optional Protocol.
As for the claims relating to the right of appeal against decisions handed down by the Special Criminal Court, the Committee notes that proceedings before the Court are not governed by ordinary law and that, under article 11 of Act No. 2012/011 of 16 July 2012, appeals against verdicts of the Special Criminal Court submitted by parties other than the public prosecutor may address only points of law. The Committee recalls its general comment No. 32 according to which a review by a higher tribunal of a conviction that is limited to its formal or legal aspects without any consideration of the facts is not sufficient under the Covenant. It notes, however, the State party’s insistence that, in the present case, the Supreme Court examined both points of law and the facts (see para. 4.16) and that the author has not refuted this contention. The Committee is therefore of the view that the author has not sufficiently substantiated his claims in this regard and concludes that the allegation of a violation of article 14 (5) of the Covenant must be found inadmissible under article 3 of the Optional Protocol.
The Committee notes that the author refers to a violation of article 15 of the Covenant in relation to the breach of the principle of non-retroactivity of the law arising from the establishment of the Special Criminal Court after the launch of the proceedings against him. It comments on this point in its analysis in paragraph 9.10, in which it notes that Acts No. 2011/028 and No. 2012/011 as such do not create any new offence or punishment. That being the case, it considers that the author has not substantiated the related claim and finds it inadmissible under article 3 of the Optional Protocol.
The Committee is of the view that the author has sufficiently substantiated his claims regarding articles 9 (3) and 14 (3) of the Covenant and that there is no obstacle to their admissibility. Accordingly, it proceeds with its consideration of the merits of these claims.
Consideration of the merits
The Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.
The Committee recalls that, under article 14 (3) (c) of the Covenant, everyone has the right to be tried without undue delay. It recalls that the author was arrested on 31 March 2008, then brought before the public prosecutor attached to the Mfoundi regional court on 9 April 2008. It notes that: (a) the proceedings before the court lasted more than four years; (b) the verdict of the Mfoundi regional court had been expected on 15 October 2012; (c) the case was transferred to the Special Criminal Court on 17 October 2012; (d) the Special Criminal Court handed down two judgments, on 14 June and 12 August 2013; and (e) the specialized division of the Supreme Court issued its judgments on appeal on 5 August 2015 and 4 April 2017. It also notes the author’s allegations of procedural delays by the Special Criminal Court and the Supreme Court contrary to Act No. 2012/011. The Committee has taken note of the State party’s explanations about the complexity of the case (see para. 4.14) and the conduct of the author, who, through procedural applications he filed, contributed to prolonging the proceedings (see para. 4.12). The Committee recalls its jurisprudence according to which the reasonableness of the length of proceedings has to be assessed in the circumstances of each case, taking into account the complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities. While the Committee acknowledges the complex nature of the present case, it is of the view that the State party has not adequately demonstrated abuses on the part of the author that contributed significantly to prolonging the proceedings.
Regarding the manner in which the administrative and judicial authorities dealt with the case, the Committee notes that the Mfoundi regional court was, according to the author, ready to issue its verdict on 15 October 2012, after more than four years of proceedings (see para. 2.8). The Committee also notes that, pursuant to section 15 of Act No. 2012/011 of 16 July 2012, cases that are brought before the ordinary courts but which fall under the remit of the Special Criminal Court must be transferred to the Court either at the investigation or trial stage. It takes note of the State party’s explanations that 17 October 2012 was the deadline for transferring the cases to the Court. It also takes note, however, of the author’s assertions regarding the refusal of the deputy public prosecutors to attend court on 15 and 16 October 2012, de facto blocking the issuance of the regional court’s verdict, and remarks that the State party has failed to provide any information on this point. The Committee notes that, as a result, the proceedings went on for a further nine months, a delay which can be attributed to the prosecutor and during which the author remained in pretrial detention. In the light of the information submitted to the Committee and the fact that nine years elapsed between the author’s arrest and the final judgment on appeal before the Supreme Court, the Committee concludes that article 14 (3) (c) has been violated.
In view of the foregoing, the Committee will not consider separately the claims of a violation of article 9 (3) of the Covenant.
The Committee, acting under article 5 (4) of the Optional Protocol to the Covenant, is of the view that the information before it discloses a violation by the State party of article 14 (3) (c) of the Covenant with regard to the author.
In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This provision requires that States parties make full reparation to individuals whose Covenant rights have been violated. The Committee recognizes the importance of the legitimate objective of combating corruption in the State party, but it also wishes to underline that such efforts must respect procedural rules and the right to a fair trial. In the particular circumstances of the present case, the Committee considers that the finding of a violation constitutes sufficient reparation to give the author satisfaction. The State party is required to take measures to prevent similar violations from recurring.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether or not there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.
Individual opinion by José Manuel Santos Pais (dissenting)
I regret not being able to share the Committee’s decision, according to which the State party violated the author’s rights under article 14 (3) (c) of the Covenant. Such a decision may hamper the State party’s efforts, as well as those of other countries, in fighting cases of corruption involving persons holding public office.
In particular, in the case of Cameroon, and after analysing its fifth periodic report, the Committee has recently adopted the following concluding observation “The State party should: (a) step up its efforts to combat corruption and to ensure that it does not go unpunished; (b) ensure that all cases of corruption are independently and impartially investigated and, where applicable, that appropriate judicial penalties are imposed on perpetrators; and (c) establish strict standards for public officials and ensure that those responsible for acts of corruption are subjected to disciplinary action and are prosecuted in court” (CCPR/C/CMR/CO/5, para. 10). However, while the State party is respecting Committee’s decision, it stands confronted with a finding of a violation.
The present communication concerns the corruption of former Minister of Health, Urbain Olanguena Awono, suspected, along with some of his colleagues, of misappropriation of public funds, in connection with the management of national programmes on HIV/AIDS, tuberculosis and malaria. The funds in question amount to 14.8 billion CFA francs (approximately euros 22,496,000), of which 8,555,751.545 CFA francs (approximately euros 3,004,742) were attributed to the author. He was initially charged on 10 counts by the investigating judge, who issued a pretrial detention order (see paras. 2.1 and 2.3 above) and was later sentenced, on 12 August 2013, by the Special Criminal Court to imprisonment for 20 years (see para. 4.5 above).
The investigation, prosecution and conviction in this case involved several national and international entities, including the Global Fund to Fight AIDS, Tuberculosis and Malaria and the World Bank. The misappropriated funds had to be duly traced by the competent authorities, implying in-depth analysis by economic and financial experts and requests for judicial assistance, for example to the specialized criminal investigation corps of the Special Criminal Court to check orders placed by the Ministry of Health using funds from the Heavily Indebted Poor Countries Initiative (see para. 4.14 above).
The criminal proceedings were focused on three different areas (see paras. 4.2-4.5 above): (a) misappropriation of funds to finance a book by the author and the non-performance of a contract by Vision; (b) misappropriation and attempted misappropriation; (c) misappropriation through non-delivery of medication. Each of these three areas had different levels of complexity and charges were therefore separated (see paras. 4.3 and 4.5 above). Of the initial 10 charges, proceedings were later reduced, after the author submitted applications for some of the charges to be declared null and void. On 13 October 2011, the Central Appeals Court ordered that the proceedings in relation to three charges (see para. 2.7 above) be terminated; on 14 June 2013, the Special Criminal Court acquitted the author of charges in the first area (see para. 4.10 above); on 5 August 2015, the Supreme Court dismissed all charges in the second area (see para. 4.8 above), overturned the conviction for “misappropriation by association” and reduced the author’s sentence to 10 years’ imprisonment (see para. 2.11 above). As can be seen, the criminal proceedings were particularly complex.
The Committee found most of the communication inadmissible (see paras. 9.4–9.7, and 9.10–9.14), considering that the author had not sufficiently substantiated his claims. The claims regarding article 14 were therefore all declared inadmissible except one, concerning article 14 (3) (c), relating to undue delay in the author’s trial.
According to the Committee’s jurisprudence (see general comment No. 32, para. 35), reasonableness of length of proceedings is to be assessed in the circumstances of each case, taking into account the complexity of the case, the conduct of the accused and the manner in which the matter was dealt with by the administrative and judicial authorities. The Committee has acknowledged the complex nature of this case but considered that the State party had not sufficiently substantiated its argument that abuses on the part of author contributed to prolonging the proceedings (see para. 10.2 above). I disagree. The problem is not whether we face abuse of the right of defence, but whether the conduct of the accused entailed a significant prolongation of proceedings, which it did.
The author submitted applications for the charges to be declared null and void, some were granted and resulted in previous court decisions being overturned and even a change in the composition of the judicial panel (see paras. 2.7 and 2.10–2.11). He submitted several appeals before the Supreme Court. The author himself speaks of his interventions (see para. 3.1 above) and the State party refers to the author’s strenuous activity and the results thereof for the duration of the proceedings (see paras. 4.11–4.14 above).
The author was arrested on 31 March 2008 and brought before the public prosecutor attached to the Mfoundi regional court on 9 April 2008; proceedings before the court began on 16 February 2010 and lasted until 16 October 2012. The case was then transferred to the Special Criminal Court on 17 October 2012, which handed down two judgments, on 14 June and 12 August 2013. The author was therefore kept in pretrial detention for five years, since from the date of those two judgments, he began serving his prison sentence. A specialized division of Supreme Court issued its judgments on appeal on 5 August 2015 on the judgment of 14 June 2013 (see para. 4.13 above) and on 4 April 2017 on the judgment of 12 August 2013, considering that the defence case had no legal basis (see para. 8.2 above), extending the proceedings for four years. It is however undeniable that this extension was a direct result of the author’s appeals.
In sum, the investigation lasted for two years, the trial for three years, including the proceedings before both the Mfoundi regional court and the Special Criminal Court (which conducted the trial in just eight months), and the final appeals for four years (before the Supreme Court). In such a complex case, these delays are far from excessive, even in the jurisdictions of countries that are much more developed than Cameroon.
As to the involvement of the administrative and judicial authorities, particularly the public prosecutor, the Committee highlights the alleged refusal of the public prosecutor to attend the sessions of the Mfoundi regional court on 15 and 16 October 2012, thus blocking the issuance of the regional court verdict, and considers that the State party failed to provide information explaining that behaviour (see para. 10.3 above). Proceedings were as a result prolonged by eight months.
I doubt whether the State party should comment on the conduct of the public prosecutor in the proceedings, thus interfering with its autonomy. Moreover, the reason for the decision taken by the public prosecutor seems obvious: to enforce Act No. 2012/011 of 16 July 2012, as the author acknowledges (see para. 2.9 above) and the State party confirms, referring further to a decision by the investigating judge of 8 October 2012 (see para. 4.5 above); and to guarantee that a more specialized court intervenes (see para. 9.10 above), that has particular training and expertise in trying economic crimes, in particular for handling the evidence in such cases.
Acting thus, the public prosecutor pursued a legitimate aim, just as the author used at length his right to defence. If the author can extend proceedings, submitting several appeals, the public prosecutor should also be entitled not to participate for two days in court proceedings, thereby extending them for eight months. In that regard, in the light of general comment No. 32, para. 13, procedural rights are to be provided to all parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.
The public prosecutor in the present case tried to ensure respect for the Committee’s concerns, namely to identify those responsible for cases of corruption and ensure that the perpetrators are prosecuted and, if convicted, punished, with penalties that are commensurate with the gravity of the crimes. It also took due account of the numerous and anonymous victims of this type of criminality, the population of Cameroon, who have also to be considered. Therefore, I would have concluded for a decision of non-violation under article 14 (3) (c) of the Covenant.