005/12_SO Amir Adam Timan v. Sudan (Separate Opinion - Fatsah Ouguergouz) African Union African Court on Human and Peoples' Rights In the Matter Amir Adam Timan v. Republic of Sudan (Application N° 005/2012) Separate Opinion of Judge Fatsah Ouguergouz 1. I am of the opinion that the application filed by Mr. Amir Adam Timan against the Republic of Sudan must be rejected. However, the lack of jurisdiction ratione personae of the Court being manifest, the application should not have been dealt with by a decision of the Court; rather, it should have been rejected de plano by a simple letter of the Registrar (see my reasoning on this matter in my separate opinions appended to the decisions in the cases of Michelot Yogogombaye v. Republic of Senegal, Effoua Mbozo Samuel v. Pan African Parliament, National Convention of Teachers' Trade Union (CONASYSED) v. Republic of Gabon, Delta International Investments S.A & Mr. and Mrs. de AGL de Lang v. Republic of South Africa, Emmanuel Joseph Uko and others v. Republic of South Africa, as well as in my dissenting opinion appended to the decision rendered in the matter of Ekollo Moundi Alexandre v. Republic of Cameroon and Federal Republic of Nigeria. 2. Indeed, I am not in favour of the judicial consideration of an application filed against a State Party to the Protocol which has not made the declaration accepting the compulsory jurisdiction of the Court to receive applications from individuals and non-governmental organizations, or against any African State which is not party to the Protocol or which is not a member of the African Union, as was the case in several applications already dealt with by the Court. 3. By proceeding with the judicial consideration of the present application lodged against the Republic of South Africa, the Court failed to take into account the interpretation, in my view correct, which it initially gave of Article 34(6) of the Protocol in paragraph 39 of its very first judgment in the case concerning Michelot Yogogombaye v. Republic of Senegal. In that judgment, the Court indeed stated what follows: "the second sentence of Article 34(6) of the Protocol provides that [the Court]" shall not receive any petition under article 5(3) involving a State Party which has not made such a declaration" (emphasis added). The word "receive" should not however be understood in its literal meaning as referring to "physically receiving" nor in its technical sense as referring to "admissibility". It should instead be interpreted in light of the letter and spirit of Article 34(6) taken in its entirety and, in particular, in relation to the expression "declaration accepting the competence of the Court to receive applications [emanating from individuals or NGOs]" contained in the first sentence of this provision. It is evident from this reading that the objective of the aforementioned Article 34(6) is to prescribe the conditions under which the Court could hear such cases; that is to say, the requirement that a special declaration should be deposited by the concerned State Party, and to set forth the consequences of the absence of such a deposit by the State concerned". 4. It is evident that by giving a judicial treatment to an application and delivering a decision on the said application, the Court actually "received" the application in the sense that it interpreted the verb "receive" in 1

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