HILAIRE NDAYIZAMBA v. THE ATTORNEY GENERAL OF THE REPUBLIC OF BURUNDI & ANOTHER
First Instance Judgment
| Verdict | DECISION OF THE COURT
- As the case stands, the main thrust of the Applicant’s
Counsel’s argument is that, firstly, the failure by the Respondent to present the Applicant before the competent court within the prescribed time is unlawful and thus, an infringement of Article 6(d) and 7(1) of the Treaty. Secondly, since the preventive detention has never been confirmed as required by the Burundian law, there is continuing illegal and unlawful detention notwithstanding subsequent condemnations of the Applicant to life imprisonment and therefore, Article 30(2) of the Treaty as regards the computation of the time to institute proceedings cannot apply.
- In agreement with Counsel for the 2nd Respondent’s position
as supported by the authorities cited above, we are of the decided view that Counsel for the Applicant’s argument revolving around the notion of a continuing violation of the Applicant’s rights does not stand at all. Since the impugned irregularities surrounding the Applicant’s detention triggering his claim were well known as by 15th June 2011, no reason was given why the time to file the Reference was not complied with as prescribed by Article 30(2) of the Treaty.
- In a similar case, the Appellate Division of this Court has
rejected the concept of legal continuing violations and opted instead for a strict interpretation of Article 30(2) of the Treaty in order to protect the principle of legal certainty. It has so decided that:
“The principle of legal certainty requires strict application of the time-limit in Article 30(2) of the Treaty. Furthermore, nowhere does the Treaty provide any power to the Court to extend, to condone, to waive, or to modify the prescribed time limit for any reason (including for ‘continuing violations)”. [See Omar Owadh’s case (supra), p. 21].
- In view of all the foregoing, we conclude that the Applicant filed
his Reference out of the prescribed time, and that, consequently, the Reference is time-barred for not complying with the provisions of Article 30(2) of the Treaty. We answer this issue in the affirmative.
- Since the issue is answered in the affirmative, accordingly, we
refrain from entertaining the remaining issues for the simple reason that the Reference is no longer alive.
- Consequently, the Reference is dismissed.
- As for costs, given the peculiar circumstances of this
Reference, it would not serve the ends of justice to condemn the Applicant in costs. We accordingly deem it just that each party shall bear its/his own costs.
CONCLUSION
- The Reference is dismissed.
- Each party shall bear its/his own costs.
- It is so ordered.
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| Date delivered | March 28, 2014 |
| Quorum | |
Appeal Judgment
| Verdict | |
| PDF document | |
| Date delivered | |
| Quorum | |
