Shipwreck in international territorial waters with hundreds of victims. The cessation of persecution due to the immunity of the leaders of the responsible state was in accordance with international law. Non-violation of the right of access of the victims’ relatives to court
JUDGMENT
Association des familles des victimes JOOLA v. France 24.02.2022 (app. no. 21119/19)
SUMMARY
On 26 September 2002, the vessel Joola, which had been acquired in 1990 by the Senegalese State
to operate the ferry route between Casamance and the rest of the country, went down in
international waters off the coast of Gambia: 1,863 of the 1,928 passengers and crew members
drowned or were declared missing, including a number of French nationals. The applicant
association, whose members are men, women and children who lost relatives or friends in the
sinking of the Senegalese ferry or victims who survived the accident, complained before the Court
that they had been deprived of their right of access to a court on account of the jurisdictional
immunity which led to the discontinuance of the proceedings initiated by their criminal complaints
in France.
The Court began by reiterating its settled case-law according to which the grant of sovereign
immunity to a State in civil proceedings pursued the legitimate aim of complying with international
law in order to promote comity and good relations between States through respect for another
State’s sovereignty.
It further noted the finding of the French courts that the breaches of international maritime
navigation rules, which had been imputed to high-ranking figures in the Senegalese government,
stemmed from the exercise by Senegal of its sovereignty, and not from acts of private
administration. The Court of Cassation had emphasised that the acts for which the Senegalese
leaders were reproached at the time of the sinking, however serious they might have been, did not
fall within the exceptions to the principle of immunity of the State’s representatives in sovereign
matters.
The Court lastly found that in granting such immunity the domestic courts had not departed from
the currently accepted international norms.
Having noted that there was nothing arbitrary or unreasonable in the interpretation by the domestic
courts of the applicable legal principles, or in the way they had been applied in the present case, the
Court declared the application manifestly ill-founded.
PROVISIONS
Article 6 par. 1
Article 13
PRINCIPAL FACTS
The applicant association, Association des Familles des Victimes du Joola, which was set up on
26 May 2007 and is governed by the French Law of 1 July 1901, has its head office in Saint-Arnoulten-Yvelines. The Association’s members are individuals who lost relatives or friends in the sinking of the Senegalese ferry or victims who survived the accident.
The ferryboat Joola, with a capacity of 536 passengers, was acquired by the Senegalese State in 1990
to provide a transport link between the Casamance region and the rest of Senegal.
On 26 September 2002 the vessel sank in international waters off the coast of Gambia: 1,863 of the
1,928 passengers and crew members drowned or were declared missing, including a number of
French nationals. The Senegalese authorities opened a judicial investigation and set up a commission
of inquiry. On 7 August 2003 the Dakar public prosecutor concluded that the only person responsible
for the sinking was the ship’s captain, who was presumed dead. The case was closed with the
termination of the prosecution.
The sole French survivor and a number of relatives of the eighteen French victims who died or were
declared missing as a result of the sinking filed a criminal complaint in France. On 1 April 2003 the
public prosecutor of Evry called for a judicial investigation. The investigating judge requested
numerous forensic reports. These revealed that the ship was already listing heavily when it left the
port of Ziguinchor, that it was overloaded with nearly 2,000 passengers on board, and that the doors
of the hold had been left open, thus causing it to founder more rapidly. The experts also noted that
the ship had not been fitted with a maritime distress and safety system or a device to receive
weather information, that it did not have a decision support system for the captain and that the
crew had not been trained in the steps to be taken in the event of an accident. The experts
concluded that the weather could not have been the sole cause of the sinking.
In 2008 the investigating judge issued nine international arrest warrants against Senegalese leaders
in office at the time of the sinking. Two of these warrants (against the Prime Minister and Minister of
the Armed Forces) were cancelled by the Court of Cassation in January 2010, on the basis of the
immunity of the foreign State. The individuals concerned by the other warrants lodged an
application for the annulment of the proceedings for lack of jurisdiction of the French investigating
judge and the withdrawal of the arrest warrants. Their appeals were dismissed by the Investigation
Division of the Court of Appeal and then by the Court of Cassation.
In a decision of 16 October 2014 the investigating judge discontinued the proceedings. He
considered that there was sufficient evidence for the charges under investigation to be made out
but, after analysing the legal status applicable to the vessel, a hybrid status owing to the nature of its
operation for both military and commercial purposes, found that the individuals being investigated
were immune from jurisdiction.
The applicant association and the civil parties appealed against the discontinuance of the
proceedings.
In a judgment of 14 June 2016 the Investigation Division of the Paris Court of Appeal upheld the
decision. It noted that the purpose of the maritime link served by the vessel was to ensure territorial
continuity between Casamance, a southern region cut off from the main part of the country by an
enclave of Gambia, and the rest of Senegal. It noted that the protection of this link by military forces
because of armed rebellions constituted an act of public authority and not an act of administration,
even though the transport of persons and goods was a paid service and the vessel had the physical
characteristics of a merchant ship. It was clear from the commission of inquiry that the constant
policy of the State had been to entrust its nautical management to the Senegalese Navy. The
Investigation Division lastly found that violations of international rules on navigation and safety at
sea and of Senegalese domestic law were not such as to override the principle of jurisdictional
immunity in France.
In a judgment of 16 October 2018 the Court of Cassation rejected the applicant association’s appeal
on points of law.
Relying on Article 6 § 1 (right of access to a court) and Article 13 (right to an effective remedy), the
applicant association argued that the granting by the French courts of jurisdictional immunity to
Senegalese governmental figures in office at the time of the accident had constituted a
disproportionate restriction of their right of access to a court. It contended that breaches of
international rules on navigation and safety could not be characterised as acts falling within the
exercise of the State’s sovereignty.
THE DECISION OF THE COURT…
Article 6 § 1 taken together with Article 13
The Court found that the applicant association’s right of access to a court had been restricted in that
it had not been able to participate in a trial through which the criminal liability of the Senegalese
leaders in office at the relevant time could be determined.
It referred to its settled case-law according to which the grant of sovereign immunity to a State in
civil proceedings pursued the legitimate aim of complying with international law in order to promote
comity and good relations between States through respect for another State’s sovereignty.
The Court reiterated the need to interpret the Convention in conjunction with other rules of
international law, including those governing the grant of State immunity: measures taken by a State
which reflected generally recognised principles of international law as to State immunity could not
be considered to impose a disproportionate restriction on the right of access to a court as
guaranteed by Article 6 § 1. Therefore, just as the right of access to a court was inherent in the
guarantee of a fair trial afforded by that Article, certain restrictions on access also had to be
regarded as inherent. An example could be found in the limitations generally accepted by the
community of nations as falling within the realm of State immunity.
The Court further noted the finding of the French courts that the breaches of international maritime
navigation rules, which had been imputed to high-ranking figures in the Senegalese government,
stemmed from the exercise by Senegal of its sovereignty, and not from acts of private
administration. The Court of Cassation had emphasised that the acts for which the Senegalese
leaders were reproached at the time of the sinking, however serious they might have been, did not
fall within the exceptions to the principle of immunity of the State’s representatives in sovereign
matters.
The Court noted that, in granting the immunity in question, the domestic courts had not departed
from currently accepted international standards.
It observed that in the domestic proceedings the investigating judge had not refused to open a
judicial investigation owing to the immunity of the persons concerned and the case had been
discontinued only after particularly detailed and exhaustive enquiries had been made in order to
shed light on the events leading up to the accident. After carrying out an investigation the judicial
authorities had concluded that the acts in question could be “characterised as the offence of
manslaughter”.
Lastly, although the domestic courts had found that the civil parties were effectively prevented by
jurisdictional immunity from publicly claiming compensation for their losses, they had nevertheless stressed that civil remedies were available for this purpose. In the courts’ view, the civil parties had thus not been deprived of all access to justice since they had been able to seek compensation under
the scheme for indemnifying the victims of crime. Consequently, the applicant association and the
other civil parties had not found themselves in a situation where there was no remedy at all.
The Court did not find anything arbitrary or unreasonable in the interpretation by the domestic
courts of the applicable legal principles or in the way they had been applied in the present case. It
concluded that the application was manifestly ill-founded and had to be rejected pursuant to
Article 35 §§ 3 (a) and 4 of the Convention.
