Mr. Ahmadou Sadio Diallo, a Guinean citizen, settled in the DRC in 1964. There, in 1974, he founded an import-export company, Africom-Zaire, a société privée à responsabilité limitée (private limited liability company, hereinafter “SPRL”) incorporated under Zairean law. In 1979 Mr. Diallo took part, as gérant (manager) of Africom-Zaire, in the founding of a Zairean SPRL specializing in the containerized transport of goods, Africontainers-Zaire and Mr. Diallo became its gérant. At the end of the 1980s, Africom-Zaire and Africontainers-Zaire, acting through their gérant, Mr. Diallo, instituted proceedings against their business partners in an attempt to recover various debts.
On 25 January 1988, Mr. Diallo was arrested and imprisoned. On 28 January 1989, the public prosecutor in Kinshasa ordered the release of Mr. Diallo after the case was closed for “inexpediency of prosecution”. On 31 October 1995, the Zairean Prime Minister issued an expulsion decree against Mr. Diallo. On 5 November 1995, Mr. Diallo was arrested and placed in detention with a view to his expulsion. After having been released and rearrested, he was finally expelled from Congolese territory on 31 January 1996
The Court earlier in its Judgment of 24 May 2007 held the Application of the Republic of Guinea to be admissible “in so far as it concerns protection of Mr. Diallo’s rights as an individual” and “in so far as it concerns protection of [his] direct rights as associé in Africom-Zaire and Africontainers-Zaire”.
The Court now considered the questions of the protection of Mr. Diallo’s rights as an individual and of the protection of his direct rights as associé in Africom-Zaire and Africontainers-Zaire.
PROTECTION OF MR. DIALLO’S RIGHTS AS AN INDIVIDUAL
Guinea submitted that Mr. Diallo was the victim in 1995-1996 of arrest, detention and expulsion measures also in violation of international law. Guinea reasoned from this that it was entitled to exercise diplomatic protection of its national in this connection.
First, the expulsion of Mr. Diallo was said to have breached Article 13 of the International Covenant on Civil and Political Rights ( “Covenant”) of 16 December 1966, to which Guinea and the DRC were parties, as well as Article 12, paragraph 4, of the African Charter on Human and Peoples’ Rights ( “African Charter”) of 27 June 1981, which entered into force for Guinea on 21 October 1986, and for the DRC on 28 October 1987. Second, Mr. Diallo’s arrest and detention are said to have violated Article 9, paragraphs 1 and 2, of the Covenant, and Article 6 of the African Charter. Third, Mr. Diallo is said to have suffered conditions in detention comparable to forms of inhuman or degrading treatment that are prohibited by international law. Fourth and last, Mr. Diallo is said not to have been informed, when he was arrested, of his right to request consular assistance from his country, in violation of Article 36 (1) (b) of the Vienna Convention on Consular Relations of 24 April 1963.
It follows from the terms of the two provisions cited above that the expulsion of an alien lawfully in the territory of a State which is a party to these instruments can only be compatible with the international obligations of that State if it is decided in accordance with “the law”, in other words the domestic law applicable in that respect. Compliance with international law is to some extent dependent here on compliance with internal law. However, it is clear that while “accordance with law” as thus defined is a necessary condition for compliance with the above-mentioned provisions, it is not the sufficient condition. First, the applicable domestic law must itself be compatible with the other requirements of the Covenant and the African Charter; second, an expulsion must not be arbitrary in nature.
The Court after considering the facts of the case held that expulsion decree did not comply with the provisions of Congolese law. The Court concluded that in two important respects, concerning procedural
guarantees conferred on aliens by Congolese law and aimed at protecting the persons in question against the risk of arbitrary treatment, the expulsion of Mr. Diallo was not decided “in accordance with law”. The Court thus found that Mr. Diallo’s arrest and detention were arbitrary within the meaning of Article 9, paragraph 1, of the Covenant and Article 6 of the African Charter.
PROTECTION OF MR. DIALLO’S DIRECT RIGHTS AS ASSOCIÉ IN AFRICOM-ZAIRE AND AFRICONTAINERS-ZAIRE
Africom-Zaire and Africontainers-Zaire are two corporate entities incorporated under Zairean law in the form of sociétés privées à responsabilité limitée (SPRLs). Guinea contended that the DRC had breached its international obligations by: “depriving Mr. Diallo of the exercise of his rights of ownership, oversight and management in respect of the companies which he founded in the DRC and in which he was the sole associé; by preventing him in that capacity from pursuing recovery of the numerous debts owed to the said companies both by the DRC itself and by other contractual partners; and by expropriating de facto Mr. Diallo’s property”.
The Court concluded that, notwithstanding the fact that Mr. Diallo may have become its sole associé, Africom-Zaire kept its distinct legal personality. The SPRL thus remained governed by the 1887 Decree, in the absence of Congolese legislation specifically regulating companies whose parts sociales are owned by a single associé, or which, de facto, are fully controlled by the gérant associé. The Court also concluded that since Mr. Diallo was fully in charge and in control of Africom-Zaire, he was also, directly or indirectly,fully in charge and in control of Africontainers-Zaire.
After reaching the conclusion that Mr. Diallo was, both as gérant and associé of the two companies, fully in charge and in control of them, but that they nevertheless remained legal entities distinct from him, the Court next addressed the various claims of Guinea pertaining to the direct rights of Mr. Diallo as associé.
Guinea’s claim relating to Mr. Diallo’s direct rights as associé pertained to the right to participate and vote in general meetings of the two SPRLs, the right to appoint a gérant, and the right to oversee and monitor the management of the companies. Guinea also presented a claim in relation to the right to property concerning Mr. Diallo’s parts sociales in Africom-Zaire and Africontainers-Zaire.
- The right to take part and vote in general meetings-The Court noted that no evidence was provided that Mr. Diallo would have been precluded from taking any action to convene general meetings from abroad, either asgérant or as associé. It followed from various provisions of Congolese law that an associé’s right to take part and vote in general meetings may be exercised by the associé in person or through a proxy of his choosing. In the opinion of the Court, the primary purpose of the provisions was to ensure that the general meetings of companies can take place effectively. Also in respect of the two SRPLs, the Court was not satisfied that the appointment of a representative by Mr. Diallo could in any way have breached in practical terms his right to take part and vote in general meetings of the two SPRLs, since he had complete control over them. Thus the Court could not sustain Guinea’s claim that the DRC has violated Mr. Diallo’s right to take part and vote in general meetings.
The Court also concluded that there was no violation of Mr. Diallo’s right to be appointed gérant. In fact even after Mr. Diallo’s expulsion, representatives of Africontainers-Zaire had continued to act on behalf of the company in the DRC and to negotiate contractual claims with the Gécamines company. The Court accordingly concluded that Guinea’s claim that the DRC has violated a right of Mr. Diallo to exercise his functions as gérant must fail.
The right to oversee and monitor the management- The Court next considered that, even if a right to oversee and monitor the management exist in companies where only one associé is fully in charge and in control, Mr. Diallo could not have been deprived of the right to oversee and monitor the gérance of the two companies. While it may have been the case that Mr. Diallo’s detentions and expulsion from the DRC rendered the business activity of the companies more difficult, they simply could not have interfered with his ability to oversee and monitor the gérance, wherever he may have been. Accordingly, the Court concluded that Guinea’s claim that the DRC has violated Mr. Diallo’s right to oversee and monitor the management fail.
The right to property of Mr. Diallo over his parts sociales in Africom-Zaire and Africontainers-Zaire-
The Court observed that international law has repeatedly acknowledged the principle of domestic law that a company has a legal personality distinct from that of its shareholders. Therefore, the rights and assets of a company must be distinguished from the rights and assets of an associé. It also rejected Guinea’s argument that the property of the corporation merges with the property of the shareholder. Mr. Diallo’s other direct rights, in respect of his parts sociales, must be clearly distinguished from the rights of the SPRLs, in particular in respect of the property rights belonging to the companies. The Court held that, together with its other assets, including debts receivable from third parties, the capital is part of the company’s property, whereas the parts sociales are owned by the associés. The parts sociales represent the capital but are distinct from it, and confer on their holders rights in the operation of the company and also a right to receive any dividends or any monies payable in the event of the company being liquidated. The Court thus concluded that Guinea’s allegations of infringement of Mr. Diallo’s right to property over his parts sociales in Africom-Zaire and Africontainers-Zaire had not been established.
Finally on the issue of Reparation the Court opined that the Parties should engage in negotiation in order to agree on the amount of compensation to be paid by the DRC to Guinea for the injury flowing from the wrongful detentions and expulsion of Mr. Diallo in 1995-1996, including the resulting loss of his personal belongings.