Ely Ould Dah

08.03.2012 ( Last modified: 10.06.2016 )
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facts

Ely Ould Dah is a Mauritanian national who was born in 1962.The charges against him are to be seen in the context of an ethnic purge and a vast campaign of repression led by the Mauritanian government in power at the time.

In 1990 under the pretext of a hypothetical conspiracy, several thousands of African Mauritanians were arrested and tortured. In May 1993, an amnesty law prohibited any legal proceedings to be taken against those responsible for these acts.

Captain Ely Ould Dah was, at the time, intelligence officer at the Jreida prison base, close to Nouakchott. He was reported to have been responsible for having ordered the torture of two black Mauritanian soldiers, Mamadou Diagana and Ousmane Dia and to have participated in these acts.

His arrest in France on 2 July 1999, when he was participating in a training programme in Montpellier sparked of a serious diplomatic crisis with Mauritania, of which France is the principal commercial partner and the principal provider of public development aid.

legal procedure

Ely Ould Dha was arrested in France on 2 July 1999, when he was participating in a training programme in Montpellier
Proceedings were triggered on 4 June 1999 when a complaint was lodged by the two victims who by then had become political refugees in France. The complaint was lodged with the support of the FIDH (Fédération internationale des droits de l’homme) and of the LDH (Ligue des droits de l’homme) and further supported by the Human Rights Association of Mauritania and the Association of Mauritanian Victims.

Indicted for torture, Ely Ould Dah was placed in pre-trial detention on 2 July 1999. After having rejected a first release request on 22 July 1999, the French judicial authorities authorised his release on 28 September 1999, under judicial control (his passport was confiscated and he was put under house arrest).

This decision made reference to a potential difficulty in applying criminal law, based on the fact that torture had not been included as a separate crime under French legislation until March 1994. This argument however was in contradiction to Article 55 of the French Constitution which asserts the primacy of ratified treaties over domestic laws. As it is, the 1984 Convention against Torture, on which the complaint was based, came into force in France in 1987. Furthermore torture was already regarded under the previous penal code as constituting an aggravating circumstance in sequestration cases.

According to the FIDH, all the necessary dispositions had not been taken to avoid what was the foreseeable escape of Ely Ould Dah to Mauritania on 5 April 2000. Today, he continues to benefit from the protection of the local authorities despite there being an international arrest warrant issued against him by a French judge on 7 April 2000. An enquiry has been opened up in France to determine the circumstances behind his evasion.

On 25 May 2001, the examining magistrate ordered that Ely Ould Dah be sent before the “Cour d’assises” to be tried. After several legal wrangles, on 8 July 2002, the Nîmes Appeals Court finally confirmed that he should be tried before the “Cour d’assises du Gard”.

An appeal lodged by Ely Ould Dah against the decision was rejected on 23 October 2002.

The trial in absentia, as a result of Ely Ould Dah’s escape, opened on June 30, 2005, before the Nîmes “Cour d’assises”.

On July 1st, 2005, the Nîmes Cour d’assises took a historic decision by sentencing the Mauritania Captain Ely Ould Dah to ten years in prison, the maximum term. The Court acknowledged all the charges concerning acts of torture that Ely Ould Dah had committed directly, ordered or organised at the “Jreïda death camp”.

Ely Ould Dah is currently serving in Mauritania in the national army. On June 30, 2006, FIDH, LDH and AMDH appealed to the French authorities that they officially request Ely Ould Dha’s extradition to France, so that he could serve his prison sentence in that country.

On 17 March 2009 the European Court of Human Rights declared that France had not violated the European Convention on Human Rights’ prohibition on retroactivity by trying Ely Ould Dah. The Court held that France had universal jurisdiction in certain cases. What is more, according to the Court, the prohibition on torture was a peremptory norm under international law (jus cogens) so that the Mauritanian amnesty law did not preclude France from trying Ely Ould Dah.

spotlight

The Ely Ould Dah case is an example of the application of the principle of universal jurisdiction, already put into action during other more famous cases such as that of Pinochet or the President of Chad Hissène Habré. This case is however the first in France concerning the application of this principle.

The decision the Nîmes Appeals Court on 8 July 2002, confirmed on 23 October by the rejection of Ely Ould Dah’s appeal, is particularly important in this respect. Indeed, the decision refers notably to Article 689 § 1 and 2 of the Code of Criminal Procedure, which establishes the universal jurisdiction of the French courts to judge the crime of torture through the application of the 1984 Convention Against Torture, without consideration to the place where the crimes were committed or the nationality of the presumed perpetrator.

The decision furthermore affirmed that the principle of universal jurisdiction is applicable even in cases where a foreign amnesty law exists. The inverse, according to the Court, would be tantamount to breaching the international obligations signed up to by France and to limit entirely the scope of the principle of universal jurisdiction. The decision also confirmed that the principle of legality is in no way in opposition to a crime being defined by a treaty or an international agreement, since the latter has primacy over domestic law.