007/12_SO Baghdadi Ali Mahmoudi v. Tunisia
(Separate Opinion - Fatsah Ouguergouz)


(Application N° 007/2012)

Separate Opinion Of Judge Fatsah Ouguergouz
1. I am of the opinion that the application filed by Mr. Baghdadi Ali Mahmoudi against the Republic of
Tunisia, together with his request for provisional measures, must be rejected. However, the lack of
jurisdiction ratione personae of the Court being manifest, the application and the request should not have
been dealt with by a decision of the Court; rather, they should have been rejected de piano 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, Amir Adam Timan v. Republic of Sudan, as well as in
my dissenting opinion appended to the decision rendered in the matter 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 Tunisia, 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


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