the abovementioned paragraph 39, that is that the Court has actually examined1 the application, even
though it concluded that it does not have jurisdiction to entertain it; however, according to its interpretation
of Article 34(6), the Court should not examine an application if the State Party concerned has not made the
optional declaration.
5. It should further be observed that the Court gave a judicial consideration to the application filed by Mr.
Amir Adam Timan without transmiting it to Sudan, nor even informing this State that an application had
been lodged against it. The adoption by the Court of a judicial decision under such circumstances amounts
to a violation of the adversarial principle (Audiatur et altera pars), which principle must apply at any stage of
the proceedings. This breach of fairness and equality of arms is all the more remarkable given that the
application lodged by Mr. Amir Adam Timan was, upon receipt, publicized on the website of the Court.
6. Failure to transmit the application to Sudan also deprived that State of the possibility to accept the
jurisdiction of the Court by way of forum prorogatum (on this question, see my separate opinion in the case
concerning Michelot Yogogombaye v. Republic of Senegal).

Judge Fatsah Ouguergouz

Robert Eno,
1 The French text of the last sentence of paragraph 39 of the Yogogombaye Judgment, which is the
authoritative one, refers to the examination applications (pour que la Cour puisse connaître de telles
requ?tes) and not to the hearing of the cases as it is mentioned in the English text (conditions under which
the Court could hear such cases).


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