Mohamadou Seck is a Senegalese national accused of committing crimes and offences related to acts of terrorism, encouragement of terrorism, money laundering in the context of terrorist activities and financing terrorism in an organized crime group. He was a minor at the time of the events. He was tried by the First Chamber of the Dakar Special Regional Court alongside with 29 other accused, with the case first adjourned and then referred to the Special Criminal Chamber of the Court of Appeal of Dakar.
The fact that Mr. Seck was a minor at the time of the crimes being committed became a critical point in the process, with the Court of Appeal ruling that it was unfit to deliver a sentence in the case involving an underage offender and referring it back to the Public Prosecutor's Office that would now have to pursue the case in the Juvenile Court.
Premier cabinet d’instruction du Tribunal de Grande Instance Hors Classe de Dakar [First Chamber of the Dakar Special Regional Court]
In the first instance, the Court did not deliver a definitive judgment, instead choosing to refer the case to a higher instance court. On December 15, 2017, the case was adjourned for the regularization of the order of partial dismissal, indictment, taking of custody and referral to the Special Criminal Chamber of the Court of Appeal.
Cour d’Appel de Dakar, Chambre criminelle spéciale [Court of Appeal of Dakar, Special Criminal Chamber]
After having received the case from the court of lower instance via referral, the Special Criminal Chamber of the Court of Appeal delivered a judgment in Mr. Seck's case on April 10, 2018.
The decision contained references to the contradictions between the Senegalese Code of Criminal Procedure that established a Juvenile Court to deal with all offences committed by minors and the Law 2016-30, amending said Code by creating a special procedure for hearing terrorism offences that was drafted in general terms and did not account for any deviation from the said procedure, including in the case of underage offenders. Additionally, reference was made to the obligations undertaken by Senegal through becoming party to the 1989 International Convention on the Rights of the Child and the 1992 African Charter on the Rights and Welfare of the Child. The Court concluded that these international obligations would not be respected should the provisions of Law 2016-30 prevail.
Therefore, seeing that Mr. Seck was a minor at the time the terrorist crimes he was accused of were committed, the Court of Appeal declared itself incompetent to rule on the case of the defendant, referring the case back to the Public Prosecutor's Office.
Mr. Seck was a minor at the time of the crimes.
Articles 279-1 and 279-5 of the Law 2016-29 of 8 November 2016
Actes de terrorisme [Crimes and offences related to acts of terrorism]
Articles 279-1 and 279-5 of the Law 2016-29 of 8 November 2016
Apologie du terrorisme [Encouragement of terrorism]
Articles 2 and 37 of the Law 2004-9 of 6 February 2004
Blanchiment de capitaux dans le cadre d'activités terroristes [Money laundering in the context of terrorist activities]
Articles 4 and 32 of the Law 2004-16 of 2 March 2009; Article 279-4 of the Law 2016-29 of 8 November 2016
Financement du terrorisme en bande organisée [Financing terrorism in an organized crime group]
Cour d’Appel de Dakar (Chambre criminelle spéciale) [Court of Appeal of Dakar (Special Criminal Chamber)]
As of 2019, the process involving Mr. Seck has not yet been finalized, with the Court of Appeal having referred the case back to the Public Prosecutor's Office that would most likely initiate new proceedings in the Juvenile Court. Nevertheless, this case has already set an important precedent in the ambit of counter-terrorism criminal justice processes in Senegal.
The decision of the Court has underscored the legal conflict between the provisions of the Senegalese Code of Criminal Procedure and Law 2016-30, amending the said Code. Law 2016-30, as noted by the Court, was drafted in general terms and gave exclusive jurisdiction to the courts of Dakar to hear terrorist offences regardless of who committed them. However, the said text did not provide for any measures regarding the specific situation of minors involved in terrorist cases, bringing these norms into clear contradiction with the Senegalese Code of Criminal Procedure establishing the Juvenile Court, and the special procedure for the trial of minors suspected of having committed offences. Furthermore, such treatment of minors involved in terrorism cases would also contravene the international commitments undertaken by Senegal through becoming party to the 1989 International Convention on the Rights of the Child and the 1992 African Charter on the Rights and Welfare of the Child. The Court has furthermore noted that the 1989 Convention obliged States Parties to create a special justice system for cases involving minor offenders, and since the Senegalese Constitution provides that international treaties and agreements have a higher authority than national legislation, the exclusive jurisdiction of the Court of Appeal cannot be applied to a minor, under the risk of violating the principle of hierarchy between norms.
The Court of Appeal came to a conclusion that the special provisions relating to terrorist offences introduced by Law 2016-30 have not specifically considered the circumstances of terrorist acts when committed by a minor. Therefore these provisions cannot derogate from the general law which provides that accused persons who are minors at the time of the offence must be prosecuted before a juvenile court.
As the defendant was 16 years old and, therefore, a minor at the time of the events and his arrest in 2015, the Court concluded that it had no jurisdiction to hear the case and deliver a sentence on it. The case was referred back to the Public Prosecutor's Office for further deliberation. Thus, by reversing the referral decision of the lower instance criminal court and declaring that the proper criminal justice procedure was not observed in the case of Mr. Seck, the Court of Appeal delivered a landmark ruling on the issue of protection of the rights of minors suspected of having committed criminal offences.