Angola

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LEGAL RESOURCES FOR GERMANY

  • [[Constitution Angola. pdf [1]]]


LEGAL TRAINING RESOURCE CENTER

Background

The Angolan territory has been inhabited since prehistory, as evidenced by traces found in the regions of Lundas, Congo and the Namib Desert. In 1484, the Portuguese docked at Zaire, under the command of navigator Diogo Cão. The Portuguese Colony of Angola was established in 1575 with the arrival of Paulo Dias de Novais with 100 settler families and 400 soldiers, and was the first Portuguese governor. The purpose of the settlement in Angola, was to exploit natural resources and promote slave trade, forming a large market. By 1850, Luanda was already a big commercial city that exported together with Benguela, various natural products[2]. In 1836 the slave trade was abolished and in 1844 Angola's ports were opened to foreign ships. The end of the monarchy in Portugal in 1910 and a favorable international conjuncture would lead the new reforms to the administrative, agrarian and educational domain. Economically, intensive diamond mining begins. In the second cartel of the twentieth century, diplomatic campaigns are being promoted all over the world, fighting for independence, but without success, triggering direct armed conflicts, the “Armed Fight”. After long years of confrontation, the country reached independence on November 11, 1975, and peace was finally established on April 4, 2002, by the agreements signed in Luena, Moxico. Since 1992, the year of the first general elections, multiparty democracy has led Angola's political course. On February 5, 2010, the country's new constitution is published in the official gazette, which shows that Angola is a sovereign, secular, democratic and independent republic based on the dignity of the human person, having as its fundamental objective to build a free, fair, democratic, solidary society of peace, equality and social progress. As part of the consolidation of democracy, Angola again held elections in 2008 after a 16-year interregnum, as a direct consequence of the new armed conflict. In 2012, Angola held its third election. In 2017, in Angola's fourth multi-party election, João Manuel Gonçalves Lourenço, who became the third President of the Republic of Angola, won on September 26, 2017, for a five-year constitutional mandate[3].


Type of system

The Constitution [4] is the Supreme Law of Angola and foresees that there are three organs of sovereignty (article 105 of the Constitution), namely: President of the Republic, the National Assembly and the Courts that respectively comprise the Executive Power (art.108), Legislative (art. 141 Constitution) and Judicial (art. 174 Constitution) that must coexist interdependently. Angola is subdivided into 18 provinces. Angola is a Unitary State (art. 8 Constitution) in which the principles of autonomy of local government bodies and administrative decentralization and decentralization are respected, under the terms of the Constitution.


Executive Branch

The President of the Republic, head of State and of the Angolan Armed Forces, exercises the executive power, assisted by a Vice President, Ministers of State and Ministers, defending the Constitution and represents the Nation internally and internationally, under the terms of art. 108 of the Magna Carta.

The President is elected by popular vote, subject to eligibility requirements (art. 110) for a five-year term (art. 113 Constitution) with various competencies (art. 119 to 123 Constitution), including promulgating laws (art. 124). The president may issue provisional presidential legislative decrees in force for 70 days, after which they lose their effectiveness, unless they are converted into law by the National Assembly (art. 125 Constitution).

The President of the Republic (art. 127 Constitution) has no responsability for crimes committed in the performance of his duties, except in the case of bribery, treason against the homeland and other crimes defined in the Constitution as imprescriptible and not subjected to amnesty. The conviction implies the dismissal of the position and the impossibility of applying for another term and. The president is subjected to the Supreme Court, after five years of the end of his term, for crimes out of the function of President.

In the event of vacancy, the President shall be substituted by the Vice President (art. 130 Constitution).

Legislative Branch

The National Assembly is the unicameral Parliament of the Republic of Angola, representative of all Angolans, expressing the sovereign will of the people and exercising the legislative power of the state (art. 141 Constitution), composed of deputies, according to the proportional representation system. for a five-year term (art. 142 Constitution). The Constitution stipulates the cases of impediment, incompatibility and ineligibility (art. 145 and 149 Constitution). Deputies are elected for each province. For the election the following criteria shall be set: (a) a number of 130 Deputies shall be elected at national level, the country itself is considered as if it were only one province; b) a number of five Deputies are elected for each province, (art. 143 to 144 Constitution).

	The deputies have civil and criminal immunities (art. 150 Constitution), and they can lose their political office, whose vacant position is filled, in the terms of art. 153 of the Constitution. The internal organization and functioning of the National Assembly shall be governed by the provisions of the Constitution and the law (art. 155 Constitution). There are five legislative sessions in the year and quorum for operation is one fifth of the active deputies. Decisions of the National Assembly are taken by an absolute majority of the Deputies tin the Parliament, since present more than a half of the Deputies, except when the Constitution and the law establish other deliberative rules (art. 159 Constitution). The assembly has several legislative competences (articles 160 to 165 Constitution).

The National Assembly issues, in the exercise of its constitutional powers revision laws, organic laws, basic laws, legislative authorization laws and resolutions. Legislative initiative may be exercised by Deputies, Members of the parliamentary groups and the President of the Republic. Citizens organized in representative groups and organizations may submit to the National Assembly proposals for legislative initiative projects, as defined by law. Proposals that involve, in the current fiscal year, an increase in expenditures or a decrease in State revenues in the budget may not be submitted, except for the revision laws of the State General Budget (art. 166 to 173 Constitution).


Judicial Branch

The Courts are sovereign organs with competence to administer justice in the name of the people (art. 175 Constitution). In the exercise of their judicial function, the Courts are independent and impartial, being subject only to the Constitution (art. 176 Constitution). The Superior Courts of the Republic of Angola are: Constitutional Court, the Supreme Court, the Court of Auditors and the Supreme Military Court. The creation of courts with exclusive jurisdiction to prosecute certain offenses is prohibited. The Courts guarantee and ensure compliance with the Constitution, the laws and other normative provisions in force, the protection of the legitimate rights and interests of citizens and institutions and decide on the legality of administrative acts. The decisions of the Courts are binding on all citizens and other legal entities and take precedence over those of any other authorities. The law regulates the terms of the execution of the decisions of the courts, sanctions those responsible for their non-compliance and holds criminally responsible the public and private authorities that contribute to their obstruction (art.177 Constitution). The Courts have administrative and financial autonomy and the magistrates have immunities, impediments and incompatibilities (Articles 178 to 179 Constitution).


The Legal System

Angola's legal system is Civil Law. Legislation is the main source of law. Courts base their judgments on legislation and there is no binding precedent [5]. The Constitution confers fundamental rights and guarantees to all the persons without distinction (art. 22 Constitution) It is also assecurated the principle of universality; the inviolability of property (art. 14 Constitution), isonomy (art. 22 Constitution), the right to life (art. 30 Constitution), freedom (art. 36 Constitution). It is prohibited capital punishment (art. 59 Constitution), torture and degrading treatment (art. 60 Constitution). Legal assistance is provided by the State to disadvantaged persons (art. 196 Constitution) It is allowed suspension of rights and freedoms in exceptional situations such as: state of war, state of siege or state of emergency (art. 58 Constitution).

Angola currently has a penal population of 24,165 inmates, with an installed capacity of 21,874, which represents an overcrowding of 9%. The jails in Luanda, capital of Angola, have some structural problems as insufficiency health support and provision water problems[6].

Source of Defendants Rights The Angolan Constitution guarantees to the detainees, due to legal process, the presumption of innocence, the right to assistance with lawyers / public defender, revisability of judicial acts, communication of the arrest to the family, appreciation of custody by the competent judicial authority, non-self-discrimination and timeliness. judicial protection and the non-transference of the penalty, among other rights and guarantees, under the terms of arts. 63 to 68 of Constitution.

RIGHTS OF THE ACCUSED

Criminal Law System The Angolan Constitution establishes rights to the detainee and does not exclude the incidence of international treaties and agreements, as long as they are compatible with the Constitution and also establishes stone clauses. It was recently approved in the Angolan Parliament the Criminal Code [7] and Criminal Procedure Code [8] that revoked colony-era legislation. In this sense, starting from the Constitution, it is possible to analyze the normative physiognomy regarding the procedural and substantial aspects of Angola's criminal system.

Dignity of The Human Principle The dignity of the human person is a fundamental principle of the Angolan legal system (art. 1 Constitution).

Equality Principle By such principle no one may be harmed, privileged, deprived of any right or exempt from any duty by reason of his or her ancestry, sex or race. ethnicity, color, disability, language, place of birth, religion, political, ideological or philosophical beliefs, educational level, economic or social status or profession (art. 23 Constitution).

Ban on capital punishment and degrading treatment The death penalty, torture, forced labor, cruel, inhuman or degrading treatment and punishment are prohibited (art. 60 Constitution).

Right to be informed of prison motivation, rights and place of custody Every person deprived of liberty must be informed at the time of his arrest or detention of his reasons and rights (art. 63 Constitution).

Penalty Personality Criminal responsibility is personal and non-transferable (art. 65 Constitution)

Principle of criminal precedence No one can be convicted of a crime except by virtue of a previous law that declares the action or omission punishable, nor suffer security measure whose presuppositions are not fixed by previous law (art. 65 Constitution).

Legality principle

No penalties or security measures that are not expressly applicable may be applied by previous law (art. 65 Constitution)

Retroactivity of the beneficial law and criminal taxation No one may be subjected to a more serious penalty or security measure than was provided for at the time of the corresponding conduct or verification of the respective assumptions, retroactively applying the criminal laws with more favorable content to the defendant (art. 65 Constitution).

Fair trial Rights The Angolan Constitution ensures due process of law whereby no one will be restricted from his freedom without due process of law (art. 68 Constitution). From this point of view, in the Angolan legal system there is the protection of liberties and guarantees of due process that are set as a protective web of the rights of detainees.

Double jeopardy No one should be judged more than once for the same fact (art. 65 Constitution).

Right not to self-incrimination The detained can not be obligated to make confessions or statements against oneself (art. 63 Constitution);

Right to legal assistance Right to choose an advocate to accompany the police and judicial proceedings (art. 63 Constitution).

Access to law and effective judicial protection Everyone is guaranteed access to the law and the courts to defend their legally protected rights and interests, and justice cannot be denied for lack of economic means, ensuring, under the law, the secrecy of justice, and the timeliness and speed of judicial protection (art. 29 Constitution). Criminal Prosecution Guarantees in Angola's Constitution Angola's Constitution ensures criminal prosecution guarantees.

Due process of law principle No one may be detained, imprisoned or tried except under the terms of the law, and all defendants or prisoners shall be guaranteed the right of defense, appeal and legal assistance (art. 68 Constitution).

Presumption of Innocence All citizens are presumed innocent until the final judgment has been passed (article 68 Constitution). Right to legal aid and communication with family members The prisoner has the right to legal assistance, including those economically vulnerable and to communicate with family members (art. 68 Constitution).

Appeal Right The prisoner is allowed to manage instruments to review the decision, including the habeas corpus (arts. 68 and 69 Constitution).

Right to Fair Trial and in Accordance with Law Every citizen is entitled to a fair judgment and lawful trial (art. 72 Constitution).

Ways to protect rights

Nullity Argument

The sentence that does not contain reasoning and conclusion is null. Also is invalid the sentence that condemns for other facts than those alleged in the accusation and described in the accusation, outside the conditions and cases provided for in article 407. In such case, the nullity of the sentence is argued as grounds for appeal. Some other violations of the rites should be alleged by the parties to be analysed by judge (art. 427 CPP).  

The court may, of its own motion or upon request, be entitled to supersede nullities under paragraph 5 of article 143 CPP in the decision, related to material errors or manifest omissions, inaccuracies or lapses, to clarify doubts, obscurities or ambiguities (art. 425 CPP) even after pronounced the sentence. Procedural defense measures for individual freedom Coercion measures determined by public prosecution are reviewed by the judge In the other hands, habeas corpus is used against illegal detention or imprisonment (art. 287 to 290 CPP). It is important to note that final convictions may be reviewed by an “appeal in cassation” when there is a serious violation of the substantive law or the adjective law and also when there is manifest injustice of the decision subject to cassation (art. 534 to 535 CPP). Rights in Prison

Conditions of confinement Angola is a sovereign and independent Republic, based on the dignity of the human person and the will of the Angolan people, whose fundamental objective is the construction of a free, fair, democratic, solidary society of peace, equality and social progress (art. 1 Constitution). Thus, the Angolan Superior Law ensures salubre conditions in prisons and assistencial suport to the inmates as a direct result of the incidence of the principle of human dignity. The African Charter [9] on Human and Peoples' Rights also safeguards the principle of the dignity of the human person and grants fundamental rights to prisoners (arts. 6 to 7 African Charter).

Immigrant and equality in the judgement The principles of universality and equality ensure an isonomic treatment between nationals and foreigners, so that the Constitution expresses that all enjoy the rights, freedoms and guarantees constitutionally enshrined and are subject to the duties established in the Constitution and the law (art. 22 of Constitution). All are equal under the Constitution and the law (art. 23 of the Constitution). All foreign nationals or stateless persons are guaranteed the right of asylum in the event of persecution for political reasons, including serious threat or persecution (Article 71 of the Constitution). Accordingly, the foreigner cannot be judged unequally on the grounds of his foreign status.

Women's rights in prison The African Charter states that the State has a duty to ensure the elimination of all discrimination against women and to ensure the protection of the rights of women and children, as stipulated in International Declarations and Conventions (art. 18). The Constitution imposes that measures must be taken to promote equality between men and women (art. 21 Constitution). From this point of view, the Code of Criminal Procedure (art. 280) states that preventive detention cannot be imposed on pregnant women over 6 months of pregnancy and up to 3 months after childbirth. The legislation protects the women and the child, enshrining the dignity principle.

CRIMINAL PROCEDURE

Complaint/Information The criminal process begins with the criminal notice of the infringement. The criminal notice may be obtained directly by unofficial knowledge, or through the police persecution (Art. 303 CPP)

Arrest There are two modalities of arrest: precautionary and the definitive one. The first is intended for public security purposes and to ensure the proper instruction of the case and does not presuppose conviction. The second one, in the other hand, results from a sentence, that is, a condemnation, enabling the execution of the sentence. There are three types of precautionary arrest: detention, personal coercion measures, property security measures (art. 249 CPP). There is also the arrest in the act of committing an offense (art. 251 CPP) Detention presupposes strong evidence that the detainee has committed a criminal offense punishable by deprivation of liberty may be applied for a maximum of 72 hours (art. 250 CPP). The application of the measures of personal coercion depends on the previous constitution of the defendant to the person to whom they were applied and, with the exception of the term of identity and residence, when there is strong evidence of a crime punishable by a higher jail sentence, maximum to 1 year. This modality os precautionary prision is divided into: term of identity and residence; obligation to periodically submit to authorities; the prohibition and obligation of permanence and prohibition of contacts; the bond; the ban on leaving the country; pre-trial detention and pre-trial detention (art. 260 CPP). Finally, the measures of patrimonial guarantee are divides into: the economic bond and the preventive seizure (art. 285 CPP).

Pre-trial Detention Pre-trial detention may occur before the sentence in some hypothesis. Some principles must be observed in pre-trial detention, such as: legality, necessity, adequacy, proportionality and subsidiarity. Pretrial detention (art. 260 to 283 CPP) presupposes that the freedom of the person may pose risks to public safety and processual instruction, basically. Pre-trial detention is divided into house arrest (imposed when the offense is punishable by imprisonment with a maximum limit of more than 2 years) and pre-trial detention (when the crime is punishable by a maximum imprisonment up to 3 years and there are strong indications of his practice by the defendant). Some authorities, such as parliamentarians, cannot suffer prison constraints, except for the arrest in the act, prior to conviction, for having immunities (art. 289 CPP).

Searches The personal search is ordered by the Public Prosecution Service in the investigative phase and by the judge in the procedural phase when there is sufficiently reasoned suspicion to believe that someone conceals in him or her objects related to the commission of a crime or that they may serve as evidence (212 CPP). The criminal police authorities may, without authorization, conduct searches, in express and exceptional cases, under the terms of art. 314 of the Criminal Procedure Code.

Interrogation The interrogation is made by the judicial authority, and may be delegated to the competent criminal police body. The respondent is asked preliminarily about his personal data, if he has already been arrested or answered in court. The defendant is warned that these questions are required to answer, under penalty of criminal responsibility, not being required to answer questions concerning the facts constituting the criminal offense. Questions that may violate the prisoner's right of silence may not be responded and are prohibited (art. 166 CPP).

Right to Counsel Advocate assistance is required in procedural acts. The judge will indicate a defendant for those investigated without a lawyer appointed (art. 71 of the Code of Criminal Procedure). The Angolan Constitution provides the defendant with the right to choose his lawyer and also establishes the creation of the Public Defender's Office for those who do not have the financial resources to pay lawyers (art. 196 Constitution).

Court Appearance Criminal proceedings may take the form of ordinary or special proceedings. The special proceedings are: a) the summary proceedings; b) the misdemeanour proceeding; c) the abbreviated process; d) the process for crimes judged at first instance by the Supreme Court. All these processes have specific deadlines for the presentation of the defense, and specific rites (art. 300 to 302 CPP). However, in relation to all the modalities of Public Prosecutor to direct the preparatory instruction, accompanied by a judge of guarantees, to look for all licit evidence (art. 313 CPP) and in the case of finding evidences of indictment the contradictory phase begins, in other hand, the process may be closed for absence of evidence.

Preliminary Hearing The judge may, at the contradictory stage of inquiry, proceed, of his own motion or on request, to inquire of witnesses and to make statements (art. 339 CPP). In the absence of preliminary questions, the competent magistrate shall immediately order a preliminary hearing for oral and contradictory debate between the parties, informing the defense and the prosecution, within 5 days of the designated date for the hearing that may lead to the hearing, acceptance of the charge or waiver thereof. If accepted, it goes to trial (art. 341 CPP).

Trial The trial hearing may in specific cases be postponed. The instruction and judgment is the moment of the analysis and production of the evidence (art. 388 CPP). After taking evidences, the defendant's last interrogation is held and oral debate begins. Afterwards, the judge delivers the absolute or condemnatory sentence, according to the evidence in the case file (art. 417 CPP).

Expert Witnesses Expert evidence takes place whenever actual knowledge of the facts or their assessment requires particular scientific, technical or artistic skills and knowledge which, by law, is presumed not to be available to judges. The expert should limit himself to examining and advising on scientific, technical or artistic issues. The expert may, however, excuse himself, claiming the lack of expertise to carry out the expertise or the means and conditions for its realization, as well as being subject to impediment and suspicion and is responsible for his acts (arts. 193 to 194 CPP).

Appeal

Appeal is allowed against all court decisions, except those excluded by law. However, there is no appeal against: a) dispatches with no decision profile; b) Hearing police decisions; c) decisions ordering discretionary acts; d) the order that designates the day for hearing in contradictory instruction; e) the order of pronunciation and the one that designates day for trial, without prejudice to the provisions of article 471, paragraph 1, b); f) in other cases prescribed by law (art. 461 CPP).