Release of Jean François Ndengue - Paris : complicity in crimes against humanity?

The International Federation for Human Rights (FIDH), the French League for Human Rights (LDH) and the Congolese Observatory for Human Rights (OCDH) express their profound indignation at the decision taken in the middle of the night on April 3, 2004 by the French Justice to release Jean-François Ndengue, Director of the National Police of the Republic of the Congo (Brazzaville), who is accused of crimes against humanity committed in the case known as the "Disappeared of the Beach".

In a communication made public yesterday the Paris Public Prosecutor denounced the "arbitrary detention" of Ndengue who had a "document signed by the President of the Congo granting him diplomatic status".

Patrick Baudouin, lawyer of the victims and former President of FIDH declared at this occasion that "far from being arbitrary, the detention was fully justified with regards to the gravity of the crimes and the absence of immunity that could apply to the Director of the Congo National Police".

After having been placed in police detention on 1 April, Jean-François Ndengue was indicted for crimes against humanity by an examining magistrate (juge d’instruction) of Meaux near Paris, and then placed in temporary detention by the Judge of the Liberties and the Detention (Juge des Libertés et de la Détention, JLD) on 2 April. This decision was taken despite particularly strong pressure exercised by the highest authorities of the French State through the Public Prosecutor’s Office - in flagrant violation of the fundamental principle of the separation of powers.

Whereas the official arguments put forward by the French Foreign Ministry to justify the release of Ndengue were that he had "a valid diplomatic passport and was on an official visit", FIDH, LDH and OCDH challenge and totally reject such arguments. Ndengue could not hold a diplomatic passport, because of the nature of his functions, and the facts all show that he was on a private visit and not on an official mission. It should be added that:

1. The Vienna Convention of 18 April 1961 on diplomatic relations grants agents of permanent diplomatic missions complete immunity from criminal proceedings (Art. 31) and protects them from all forms of arrest and detention (Art. 29). The Convention is not however applicable in this case, because Jean-François Ndengue does not belong to a permanent diplomatic mission in France, and is not therefore a "diplomatic agent" according to the terms of the Convention.

2. The New York Convention of 8 and 16 December 1969 on special missions grants representatives of States on special missions abroad, absolute judicial immunity for the duration of an official journey (Art. 31) and protects them from any form of arrest and detention during the special mission. France, however, has not ratified this Convention, which is therefore not applicable. In any case the Convention does not provide for immunity from criminal proceedings during a private visit abroad. Therefore it cannot be invoked to exempt Jean-François Ndengue from individual criminal liability, as he has been in France since 19 March for purely personal reasons.

3. Nor does international customary law grant any criminal immunity to a foreign person on a private visit to France. Such a position was officially adopted in 2003 by the French Government itself before the International Court of Justice in the same case (Republic of Congo vs. France). During the public hearing on 28 April 2003 the French Government’s counsel stated unequivocally: "It would appear prima facie very clear that none of the three last persons I mentioned (General Pierre Oba, Minister of the Interior, of public security and of territorial administration, General Norbert Dabira, Inspector General of the Congolese Armed Forces, and General Blaise Adoua, Commander of the Presidential Guard) holds any international immunity whatsoever by virtue of his office". A fortiori, obviously, the same reasoning applies to the director of the National Police of Congo Brazzaville.

In conclusion, Jean-François Ndengue, in France on a private visit, enjoys no diplomatic immunity, neither by virtue of conventional international law, nor of customary international law in particular given the nature of the crimes for which he has been indicted.

It was only thanks to the extreme hast shown by the Public Prosecutor’s Office, which appealed against the placing in provisional detention that Monique Radenne, the President of the Paris Chambre d’Instruction (Appeals Chamber of the Paris Court of Appeal), was called upon to give an emergency ruling in the middle of the night, finding in favor of the release of Ndengue.

It would also appear that Jean-François Ndengue’s lawyer himself was not informed of the step taken, as he had lodged a request for the release of his client which was to be examined today April 7 by that same Chambre d’Instruction.

As the FIDH President, Sidiki Kaba, puts it: "When the raison d’État prevails, the State loses its reason, to the great detriment of the victims of particularly odious crimes. In a scandalous manner, once again, alas, we have proof that friendship among States takes precedence over the rights of victims to effective recourse before independent courts".

The International Federation for Human Rights (FIDH), the Congolese Observatory for Human Rights (OCDH) and the French League for Human Rights (LDH) have decided to inform the Conseil Supérieur de la Magistrature about the conditions in which, in a few hours, Mr. Ndengue was indicted, placed in provisional detention and released, carried out during the night, in total derogation to ordinary rules.

FIDH, LDH and OCDH condemn the apparent compliance with a formal legality, which in reality only confirms the feeling that the French executive, by covering such "friends", is in fact maintaining its complicity with authors of crimes against humanity. The organizations wish to recall that Jean-François Ndengue, despite his release, is still indicted.

Summary of facts and procedure
(for full details see the report - in French only - http://www.fidh.org/afriq/dossiers/sassou/sassou.htm)

On a visit to the French capital, Jean-François Ndengue was arrested by the police on the basis of a criminal complaint, with claims for compensation (partie civile), lodged in December 2001, alongside the Congolese victims, by FIDH, the French League for Human Rights and the Congolese Observatory for Human Rights, an FIDH member organisation in Congo, for crimes against humanity, forced disappearances and torture.
In May 1999 Mr. Ndengue was in charge of security in the Beach river port in Brazzaville, where several hundred Congolese refugees, returning to their country thanks to a humanitarian corridor placed under the auspices of the High Commissioner for Refugees, were abducted by elements of the Presidential Guard, and executed within the very grounds of President Sassou Nguesso’s palace. Concurring sources indicate that over 350 cases of disappearances were recorded on the occasion of this return from exile. On one day, 14 May 1999, over 200 people are said to have disappeared. Mr. Ndengue was in permanent contact with the elements of the Presidential Guard patrolling the Beach, and received and carried out the official instructions concerning the required behaviour during the massacres, and he was present when the future Congolese victims were arrested and abducted.
Mr. Ndengue is the second person to be placed in police detention in this case. On 23 May 2003 the same thing happened to Mr. Dabira, Inspector General of the Armed Forces at the time of the facts. Our organisations wish to recall, in that respect, that Mr. Dabira later failed to appear before a judge in September 2002, although he had been called, following strong pressure from the Congolese authorities. Since then he has stayed in Brazzaville, despite an indictment against him in France, and an international warrant for arrest issued against him.

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