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
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.
Baghdadi Ali Mahmoudi without transmitting it to Tunisia, 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.
6. Failure to transmit the application to Tunisia 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 - Registrar
1 The French text of the last sentence of paragraph 39 of the Yogogombaye Judgment, which is the
authoritative one, refers to the examination of the applications ("pour que la Cour puisse connaitre de telles
requites") 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").
2