Norma relacionada
Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
Section B. Extradition
In 2011, in its third periodic report to the Committee against Torture, Senegal stated:
I. Information on new measures and new developments relating to the implementation of the [1984] Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]
Article 3 of the Convention
94. To date, there have been no cases in Senegal of expulsion, refoulement or extradition of a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.
95. Act No. 71-77 of 28 December 1971 covers the conditions, procedures and consequences of extradition in situations where no relevant treaty applies, as well as any other aspects not expressly regulated by any such treaty.
96. Thus, the legislation on extradition expressly gives primacy to international law and, in particular, to article 3 of the Convention, which is considered a self-executing provision.
Article 5 of the Convention
Paragraph 2
114. By adopting Act No. 2007-05 of 12 February 2007, which amends the [1965] Code of Criminal Procedure, the State of Senegal has taken the necessary measures to establish the competency of the Senegalese criminal courts to try all acts of torture in cases where the alleged offenders are present in Senegalese territory if no order for their extradition has been issued.
115. In line with this law, any foreigner who has been accused of committing or aiding in the commission of any of the crimes mentioned in article 295-1 of the [1965 Penal] Code outside Senegalese territory may be tried under Senegalese law or laws applicable in Senegal if he or she is under Senegalese jurisdiction or if one of the victims resides in the territory of Senegal, or if the Government secures the alleged offender’s extradition.
Article 7 of the Convention
Paragraph 1
120. As mentioned above, the only known case concerning an alleged perpetrator of acts of torture residing in Senegalese territory is the case of Hissène Habré, former President of the Republic of Chad. In this case, the State of Senegal has undertaken, in conformity with the mandate entrusted to it by the African Union, to conduct a trial, to be heard by Senegalese judges, in compliance with the universally recognized fundamental legal principle of a just and fair trial. …
121. As a general rule, extradition is regulated in Senegal by Act No. 71-77 of 28 December 1971. Article 5 of this law lists the cases in which extradition shall not be granted:
(1) When the subject of the request is a Senegalese national and was recognized as such at the time of the commission of the offence for which extradition is requested;
(2) When the crime or offence is of a political nature or if the circumstances indicate that the extradition request is politically motivated. Acts committed during a rebellion or civil war by one of the parties involved in order to further its cause are extraditable only if they constitute acts of extreme barbarity or destructiveness prohibited by the laws of war and only after the civil war has ended;
(3) When the crime or offence was committed in Senegal;
(4) When the crime or offence, even if committed outside Senegal, has been prosecuted in Senegal and a final decision rendered;
(5) When, according to the laws of the requesting State or the requested State, the time limit for bringing an action has passed before the extradition request is served, or the time limit for the enforcement of the sentence has passed before the arrest of the individual whose extradition is requested and, generally, whenever the criminal proceedings have been completed.
Article 8 of the Convention
129. Even though none of the treaties on mutual judicial assistance, in particular extradition, concluded by Senegal with third States contains a specific list of offences for which a person may be extradited, this in no way constitutes a barrier to the extradition of perpetrators of offences classified as torture upon the request of another State.
130. The Senegalese State does not make extradition conditional on the existence of a treaty. Act No. 71-77 of 28 December 1971 applies to all requests from States with which Senegal does not have a judicial assistance agreement.
131. With the exception of the cases mentioned above, extradition is possible if:
(a) The acts in question are defined as an offence and carry criminal or correctional penalties of at least 2 years of imprisonment;
(b) The acts in question are punishable offences under Senegalese law.
Article 9 of the Convention
132. Senegal provides extensive judicial assistance during all stages of proceedings related to torture in conformity with the treaties on mutual assistance to which it is party.
II. Implementation of the conclusions and recommendations of the Committee
B. Compliance with the Committee’s decision concerning communication No. 181/2001
Recapitulation of facts and procedures
237. Mr. Hissène Habré, who was the President of the Republic of Chad from 1982 until 1990, was ousted on 1 December 1990. Following a stay in Cameroon, he moved to Senegal, where he has been ever since.
238. In January 2000, [a victim] and others submitted a complaint together with an application for indemnification to the senior examining judge of the Dakar special regional court …
239. On 3 February 2000, the senior examining judge indicted Mr. Hissène Habré …
241. On 4 July 2001, the Indictment Division dismissed the charges, thereby putting an end to the legal proceedings against him, on the grounds that the judge dealing with the case lacked jurisdiction.
242. On 20 November 2001, the Court of Cassation rejected the appeal lodged by the complainants on 7 July 2001 against the Indictment Division’s ruling of 4 July 2001, thus reaffirming that decision.
243. The Court of Cassation advanced the following reasoning for its decision:
Article 5, paragraph 2, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10 December 1984, provides that each State party shall take such measures as may be necessary to establish its jurisdiction over the offences set out in article 4 in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him or her;
Consequently, article 79 of the [2001] Constitution cannot be applied since the implementation of the Convention requires Senegal to adopt prior legislative measures;
No procedural text confers universal jurisdiction upon Senegalese courts to try presumed perpetrators of or accomplices to acts covered by the legislation of 28 August 1996, which aligned Senegalese law with article 4 of the Convention, in cases where such persons are found on Senegalese territory if the acts in question were committed outside Senegal.
244. Subsequently, the victims brought the same case before the Belgian courts. On 19 September 2005, the Belgian examining judge, after an investigation that lasted for years, issued an arrest warrant for Mr. Habré. On the same day, Belgium sent an extradition request to Senegal.
245. On 25 November 2005, the Indictment Division of the Dakar Court of Appeal, in response to the request to extradite Mr. Hissène Habré to Belgium, concluded that it was not competent to do so for the following reasons.
246. “Article 101 of the Constitution of Senegal and the High Court of Justice Organization Act of 14 February 2002 instituted exceptional legal proceedings in respect of any proceedings against the President of the Republic.
247. The Indictment Division, as an ordinary court, cannot extend its jurisdiction to investigating and prosecuting a Head of State for acts allegedly committed during his or her time in office.
248. Therefore, the lack of jurisdiction must also exist in respect of the extradition request, since legal proceedings can only be instituted after basic inquiries have been made, which include having the accused appear in court and be questioned. Moreover, given that the extradition itself would be the result of legal proceedings and enforcement measures delegated by the requesting State to the State receiving that request, it must, at every stage of the judicial process, comply with the rules governing the competence and structure of criminal courts, which are a bastion of national sovereignty. Mr. Hissène Habré’s immunity does not exempt him from criminal responsibility, however, but is merely procedural in nature, as in the case of the arrest warrant issued for Yoro Abdoulaye Ndombassi on 14 February 2002 by the International Court of Justice in the case involving the Democratic Republic of the Congo and Belgium.
249. This immunity remains in place even after a president ceases to hold office, regardless of his or her nationality or of the existence of any mutual assistance treaty.
250. It may be inferred from these comments that the Indictment Division lacks jurisdiction over cases concerning the legality of proceedings against a Head of State or the validity of an arrest warrant issued for a Head of State.”
251. In the light of that decision, Senegal referred the case to the African Union, which, on 2 July 2006, pursuant to the recommendations of a committee of eminent African jurists appointed in January 2006, requested Senegal to try Mr. Hissène Habré on behalf of Africa.
253. Prior to the African Union’s adoption of this position, the complainants who had referred the case to the senior examining judge of the Dakar special regional court had, on 18 April 2001, also submitted a complaint to the Committee against Torture under article 22, paragraph 7, of the Convention against Torture. The Committee submitted its recommendations to the Government of Senegal on 17 May 2006.
254. The Committee, drawing on all of the aforementioned legal decisions, recalled that, in accordance with article 5, paragraph 2, of the Convention, “each State Party shall […] take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him […]”.
256. The Committee also recalled that: “under article 7 of the Convention, ‘the State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution’”.
257. “It notes that the obligation to prosecute the alleged perpetrator of acts of torture does not depend on the prior existence of a request for his extradition. The alternative available to the State party under article 7 of the Convention exists only when a request for extradition has been made. The State party has the power to choose between proceeding with extradition and submitting the case to its own judicial authorities for the institution of criminal proceedings, the objective of the provision being to prevent any act of torture from going unpunished.”
261. It went on to say that: “Moreover, under article 7 of the Convention, the State party is obliged to submit the present case to its competent authorities for the purpose of prosecution or, failing that, to comply with [an extradition] request, or, should the case arise, with any other extradition request made by another State, in accordance with the Convention.”
264. The State of Senegal has taken note of the decision.
265. Following the decision of the African Union, President Abdoulaye Wade made a solemn vow before his peers to have Mr. Hissène Habré prosecuted in Senegal.
266. This strong political commitment reaffirms the legal obligations entailed by the Convention against Torture, which Senegal ratified on 21 August 1987 and which is the legal basis for the proceedings against Mr. Hissène Habré.
269. All the necessary substantive and procedural legislative amendments have now been made to give full effect to the provisions of the Convention and to ensure that Mr. Hissène Habré can have a just, fair and speedy trial in Senegalese courts presided over by Senegalese judges. 
Senegal, Third periodic report to the Committee against Torture, 5 October 2011, UN Doc. CAT/C/SEN/3, submitted 9 February 2011, §§ 94–96, 114–115, 120–121, 129–132, 237–239, 241–251, 253–254, 256–257, 261, 264–266 and 269.