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==Rights of the accused at the police stage==
 
==Rights of the accused at the police stage==
  
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===Status and functions of the police===
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The police is the public force whose function is to ensure order, tranquillity and security in the State.
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The judicial police is the organ of the judicial system, composed of sworn officers, who record offences, investigate the perpetrators and collect evidence allowing the indictment of these perpetrators.
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The first articles of the Congolese Code of Criminal Procedure provide for the powers and duties of the judicial police. This Code is also supplemented by the provisions of the Ordinance of 1978 on the Exercise of Powers of Judicial Police Officers and Agents in the Ordinary Courts. The judicial police officers are in particular competent to record offences, receive denunciations, complaints and reports relating to these offences. They may seize items necessary for the investigation (this must be mentioned in the minutes).
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In addition, in the event of flagrant or deemed offences, or where the acts are punishable by at least six months of imprisonment, or if the identity of the alleged offender is doubtful or unknown, judicial police officers may arrest the person and bring him or her immediately before the competent judicial authority, namely the Public Prosecutor's Office (PPO), provided that there are serious indications of guilt.
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The judicial police officer is under the authority of the PPO (see articles 1 to 10 of the Congolese Code of Criminal Procedure). In the provinces, the judicial polices is therefore placed under the hierarchical authority of the Attorney General of the Court of Appeal to which it belongs, which has a monopoly on public prosecution in its constituency.
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There is its equivalent in the military judiciary. Indeed, articles 5 and 59 of Act No. 023/2002 of 18 November 2002 on the Military Judicial Code stipulates that the officers of the Judicial Police of the Military Prosecutor's Offices are: the General Judicial Inspectorate, the Chief Judicial Inspectors, the Divisional Judicial Inspectors, the Principal Judicial Inspectors, the First and Second Class Judicial Inspectors and the Judicial Police Officers.
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===Police custody===
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Article 18, paragraph 4, of the 2006 Constitution of the DRC as revised in 2011 specifies that police custody may not exceed 48 hours.
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Articles 146 and 148 of Act No. 023/2002 of 18 November 2002 on the Military Judicial Code also provide that the duration of police custody may not exceed 48 hours. In accordance with the aforementioned article 18 of the Constitution, at the end of the period of police custody, soldiers arrested in flagrante delicto or against whom there are serious and consistent indications of guilt must be placed at the disposal of the competent judicial authority.
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This 48-hour period begins as soon as the individual is apprehended, and the Protocol of Seizure of the accused is drawn up and signed by the Judicial Police Officer. It must include the signature of the accused. In the event of a refusal, this refusal must be recorded in the report by the judicial police officer.
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Sometimes the Public Prosecutor's Office also takes the accused into custody.
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After 48 hours, if no provisional arrest warrant is issued against the accused, he must be released, in accordance with article 18 of the aforementioned Constitution.
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The 1978 Ordinance on the Exercise of the Powers of Judicial Police Officers and Agents in the Courts of General Jurisdiction also provides that the Judicial Police Officer must immediately notify the accused's family members and ensure that his or her personal property is secure.
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In addition, any person in police custody has the right to be examined by a doctor and if the doctor finds that abuse or ill-treatment has been committed against the person, he or she shall report this to the Public Prosecutor.
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The person in custody has the right to immediately contact his or her counsel.
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Police custody may extend beyond 48 hours if the police station is located far from the office of the Public Prosecutor's Office, or upon request for derogation from the Public Prosecutor's Office by the judicial police officer. The latter grants permission when the need for training so requires.
  
 
==Pre-trial detention==
 
==Pre-trial detention==
  
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The essential rule in terms of detention (from police custody to final judgment) is the presumption of innocence as enshrined in Article 17(1) of the Constitution of the DRC, the consequence of which is that freedom is the rule, detention the exception.
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Article 28, paragraph 1, of the Code of Criminal Procedure also provides that detention is the exception and freedom is the rule. The same applies to article 205 of the Military Judicial Code, which provides that the detention of persons is an exception, freedom being the rule.
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===Regime of the ordinary criminal procedure code===
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Articles 27 to 45 of the Code of Criminal Procedure specify the procedure and the time limits for it.
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The accused may be remanded in custody only if there are serious indications of guilt and if, in addition, it appears to constitute an offence punishable by law with a penalty of at least six months' criminal servitude.
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Nevertheless, an accused person against whom there are serious indications of guilt may be placed in pre-trial detention where the fact appears to constitute an offence punishable by law with a penalty of less than six months' criminal servitude but more than seven days, if there is reason to fear the accused's flight, or if his identity is unknown or doubtful or if, in the light of serious and exceptional circumstances, preventive detention is imperative in the interests of public safety.
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According to article 28, when preventive detention is applied, the following rules must be respected:
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- When the conditions for placing the accused in pre-trial detention are met, the officer of the Public Prosecutor's Office may, after questioning the accused, place him under a pre-trial arrest warrant, provided that he is brought before the nearest judge competent to rule on preventive detention.
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- If the judge is in the same locality as the officer of the Public Prosecutor's Office, the appearance before the judge must take place, at the latest, within five days of the issuance of the provisional arrest warrant.
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- Otherwise, this period shall be increased by the time strictly necessary to complete the journey, except in cases of force majeure or delays made necessary by the duties of the investigation.
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- At the end of these time limits, the accused may apply to the competent judge for release or interim release. In the cases provided for in Article 27, paragraph 2, the provisional arrest warrant shall specify the circumstances justifying it.
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In article 29, it is specified that pretrial detention is authorized by the judge of the peace court. Article 30 then specifies that the order ruling on it is issued in chambers on the requisitions of the Public Prosecutor's Office, the accused person being heard beforehand and, if he so wishes, assisted by a lawyer or a defence counsel of his choice.
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The observations and means of the accused shall be recorded. The order shall be issued no later than the day after the day of the appearance. The judge shall bring it as soon as possible to the attention of the accused person, in writing, with acknowledgement of receipt, or by oral communication, recorded by the person who makes it. This order is valid for 15 days, including the day on which the order in question is issued. At the end of this period, pre-trial detention may be extended for one month, and so on, from month to month, for as long as the public interest requires.
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However, preventive detention may be extended only once if the fact appears to constitute only an offence for which the penalty provided for by law does not exceed two months' hard labour or main criminal servitude.
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If the penalty provided for is equal to or greater than 6 months, preventive detention may not be extended more than 3 times consecutively. If this time limit is exceeded, the extension of the detention is authorised by the competent judge ruling in open court.
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Extension orders shall be issued in accordance with the forms and time limits provided for in Article 30. The accused may not be denied the assistance of a lawyer or defence counsel.
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In the cases provided for in Article 27, paragraph 2 (penalty provided for less than 6 months but more than 7 days), the order authorising or extending preventive detention must specify the circumstances justifying it.
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===Military judicial law regime (articles 205 to 210 of the Military Judicial Code)===
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Article 205 of the Military Judicial Code stipulates that when the military investigating magistrate competent to initiate proceedings considers that the fact constitutes an offence punishable by law with a penalty of at least one year's criminal servitude and that there are serious and sufficient indications of guilt, he may subject any person subject to military courts to judicial measures of controlled freedom or temporarily detain him, for a period not exceeding fifteen days.
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An accused person against whom there are serious and sufficient indications of guilt may nevertheless be remanded in custody if the act constitutes an offence punishable by a penalty of less than one year but more than six months, if there is reason to fear his flight, or if his identity is unknown or doubtful or if, in the light of serious and exceptional circumstances, his detention is imperative in the interests of public safety.
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At the end of the fifteen-day period, if that authority considers that the arrest warrant should not be maintained, it shall order its withdrawal.
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Controlled freedom is decided by the Military Auditor, who issues an order to this effect, which determines the conditions and procedures for its execution. The Commander of the unit to which the accused person concerned fall under shall be kept informed.
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Where proceedings have been ordered, incarceration and detention may only result from a provisional arrest warrant issued by the Military Auditor.
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The provisional arrest warrant is valid for fifteen days.
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If the investigation of the case is to last more than fifteen days and the military investigating magistrate considers it necessary to keep the accused in detention, he shall refer the matter to the Military Prosecutor. The latter shall decide on the provisional detention and decide on its extension for one month; and so on, from month to month, when duly justified investigative duties so require.
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However, preventive detention may be extended only once if the fact appears to constitute only an offence for which the penalty provided for by law does not exceed two months of criminal servitude.
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If the penalty provided for is equal to or greater than six months, the extension of preventive detention may not exceed twelve consecutive months.
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If this time limit is exceeded, the extension is authorised by the competent court.
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At any time, the preventive detainee may request the Military Auditor to release him or her or to release him or her provisionally. If the provisional arrest warrant is not confirmed within 15 days, the detention shall be terminated in accordance with Article 210.
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===Question of provisional release===
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Article 32 provides: "While authorizing or extending pretrial detention, the judge may, if the accused so requests, order that he or she nevertheless be released on provisional release, provided that he or she deposits with the Registrar, as security, a sum of money to guarantee the representation of the accused person at all acts of the proceedings and the enforcement by him or her of custodial sentences as soon as they are required. Provisional release will be granted on the condition that the accused does not obstruct the investigation and does not cause scandal by his conduct. According to the same article, the judge may also impose on the accused:
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- To live in the locality where the officer of the Public Prosecutor's Office has his seat;
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- Not to move beyond a certain radius of the locality, without the authorisation of the investigating magistrate or his delegate;
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- Not to go to such specified places, such as railway station, port, etc., or not to be there at specified times;
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- To appear periodically before the investigating magistrate or before such official or agent determined by him;
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- To appear before the investigating magistrate or before the judge as soon as he is required.
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The order, which will specify precisely the terms of the charges imposed under this section, may make interim release subject to only one or the other.
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At the request of the Public Prosecutor's Office, the judge may at any time modify these charges and adapt them to new circumstances. It may also withdraw the benefit of provisional release if new and serious circumstances make this measure necessary. As long as he has not brought the case before the court, the officer of the Public Prosecutor's Office may release the accused from preventive detention and order the return of the bond.
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He may also grant him provisional release, under the same conditions and under the same terms as the judge himself may do. In this case, the decision of the Public Prosecutor's Office ceases to have effect with those of the judge's order authorizing or extending preventive detention, unless a new order is issued.
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He may also withdraw from the accused the benefit of the provisional liberty he had granted him, if new and serious circumstances make this measure necessary.
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Under article 34, failure to comply with the charges imposed on him by the accused person granted provisional release may lead the PMO to reincarcerate the accused person. If provisional release has been granted by the judge, the accused person who contests being in default may, within 24 hours of his or her reincarceration, appeal to the judge who had ruled in the first instance on the detention or extension of detention. The decision on this appeal is not subject to appeal.
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When the accused is deprived of the benefit of provisional release, the bond shall be returned to him, unless the reasons for the reincarceration have been given for failure to fulfil the duty to appear before the investigating magistrate or judge. The return of the bond shall be made on the basis of an extract from the prison register, issued to the accused by the officer of the Public Prosecutor's Office.
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In all cases where the requirements of the investigation or prosecution require the presence of an accused person in pre-trial detention with temporary release in a locality other than that in which he or she has been authorized to reside, he or she may be transferred there under the same conditions as an accused person in prison and shall remain in a state of incarceration until such time as the judge, or in the case of article 33, the local public prosecutor, has adapted the charges to which his or her new temporary release may be subjected to local circumstances.
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===Remedies for preventive detention===
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The Public Prosecutor's Office and the accused may appeal orders issued in respect of preventive detention. It follows from article 38 that appeals against orders issued by the President or Judge of the Court of Peace are brought before the High Court. The time limit is 24 hours and runs from the day on which the order was issued for the Public Prosecutor's Office and from the day of notification for the accused (article 39).
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The statement of appeal is made to the clerk of the court that made the order.
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If the clerk is not on the premises, the accused person makes his statement to the officer of the Public Prosecutor's Office or, in his absence, to the judge, who draws the act. The officer of the Public Prosecutor's Office records the appeal himself.
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The magistrate or clerk who receives the statement of appeal shall also record any observations or pleas in law relied on by the accused in support of his appeal and shall attach to the statement of appeal the pleadings, notes and other documents that the accused would submit to him for submission to the court to be heard on the appeal. He was given a receipt for it.
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The notice of appeal and the documents annexed thereto shall be transmitted without delay by the person who drew it up to the clerk of the court which is to hear the appeal.
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During the period of appeal and, in the event of an appeal, until the decision is taken, the accused person shall be kept in the state in which he or she was placed by the judge's order, as long as the period of validity of that order has not expired.
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However, where the offence is one of those punishable by law by at least one year's imprisonment, the officer of the Public Prosecutor's Office may, in the case of an order refusing to authorize preventive detention, order that the accused be placed under the links of the provisional arrest warrant and, in the case of an order refusing to extend the detention, order that the accused be placed under the links of the order authorizing him.
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In either case, the accused will only be put back under the arrest warrant or previous order during the time limit for appeal and, in the event of an appeal, until the decision is taken. The order of the Public Prosecutor's Office must be justified. A copy must be sent simultaneously by the officer of the Public Prosecutor's Office to his line manager, the appeal judge and the guard of the detention centre.
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The guard shall inform the accused of this fact.
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The order is only valid for 24 hours if the guardian does not receive notification of the appeal in the meantime (Article 40).
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The judge hearing the appeal shall decide within 24 hours of the hearing at which the Public Prosecutor's Office makes its requisitions.
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If the accused is not in the locality where the court is holding the hearing or if he or she is not represented by a special proxy holder, the judge may rule on the documents.
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If the order of the first judge refusing to authorize or extend the detention is overruled by the judge of appeal, the period for which the authorization or extension would be granted shall be fixed by the judge of appeal, but may not exceed one month. This period begins to run from the day the appeal order is enforced.
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It follows from article 43 that the accused person in respect of whom the authorization to place him in pre-trial detention has not been granted or extended may not be the subject of a new pre-trial arrest warrant for the same offence unless new and serious circumstances require him to be remanded in custody.
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Where the Public Prosecutor's Office decides that there is no need to prosecute, it must at the same time release the person from preventive detention and, if necessary, order the return of the bond. Unfortunately, there is a practice of requesting fees for the release of detention, even though they are not provided for anywhere.
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Finally, according to article 45, if the accused is in pre-trial detention, with or without pre-trial release, on the day on which the trial court is seized, he will remain in pre-trial detention until the trial. However, in the case provided for in Article 31, paragraph 2, the detention may not exceed the duration provided for in that paragraph.
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The accused prisoner may apply to the court seized for either the release of the pre-trial detention or the release on bail. The court is only required to rule on the first application and on those addressed to it at least fifteen days after the decision on the previous application.
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The decision shall be given in the form and within the time limits provided for in Article 30. The assistance of a lawyer or a defender approved by the court may not be refused to the accused.
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If the court grants interim release, the provisions of Article 32 shall apply.
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With regard to children in conflict with the law, in accordance with article 106 of the Child Protection Act 2009, only the Judge is competent to take a provisional measure of placement either in a State care and education institution or in an approved private social institution.
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===Summary of deadlines===
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'''''Before military courts'':''' - Police custody: 48 hours - Provisional arrest warrant: 15 days - Preventive detention for 1 month and so on without exceeding 12 months
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'''''Before the ordinary court'''''s: - Police custody: 48 hours - Provisional arrest warrant: 5 days - Preventive detention order: 15 DAYS - Order confirming preventive detention: 30 days; thus extended from month to month without exceeding 12 months.
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'''''Before juvenile court''''': The provisional placement measure must not exceed 2 months. Article 108 of the Child Protection Act 2009 provides that "if the measures provided for in article 106 cannot be taken because the child is presumed to be dangerous and no couple or institution is in a position to receive him or her, the child may be placed in a State care and education establishment for a period not exceeding two months".
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===Detention review===
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Before the ordinary courts, the peace court is the court that reviews the regularity of detention. Before the military courts, the military garrison court is the authority responsible for monitoring the regularity of detention. In the juvenile court, the interim placement measure is taken by the president of the juvenile court.
  
 
==The trial==
 
==The trial==
  
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===The appearance of the defendant===
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The accused has the right to appear before his natural judge.
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It must be served by the summons to be served or, for children in conflict with the law, by summons. The time limit for service is set at 8 clear days, and its extension is possible depending on the distance between the accused and the place where he or she is to appear. This provision is also intended to allow sufficient time for him to prepare his defence and to contact his lawyer or judicial counsel.
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At hearings, the principle is that the accused should appear in person. On the other hand, article 71 of the Congolese Code of Criminal Procedure notes that when the penalty of criminal servitude provided for by law does not exceed two years, the accused may appear through a lawyer holding a special power of attorney, or through a special proxy approved by the judge.
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The defendant has the right:
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- to appear voluntarily or to refuse to appear;
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- to be informed of his right to be served with the notice to summons to a regular defendant;
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- to raise irregularities in the referral to the court;
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- to suspect the court or tribunal by bringing an action against the court or tribunal on grounds of legitimate suspicion or suspicion on grounds of public safety;
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- to request the postponement to prepare his defense;
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- to be presumed innocent;
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- to an impartial judge;
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- to have his case heard within a reasonable time;
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- to have the witnesses on his behalf examined;
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- to remain silent;
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- to defend himself or herself or to be defended by counsel of his or her choice, and or to free legal aid if he or she does not have the means to pay for his or her counsel;
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- to request that the trial be held in closed-door when the trial substantially affects his privacy, or for legitimate and legal reasons;
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- to challenge the judge on valid and legal grounds;
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- to file an appeal;
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- to ensure that the principle of adversarial proceedings is respected;
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- to a fair trial;
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- to demand respect for all the fundamental rights recognized by the Constitution of the DRC and enshrined in international legal instruments;
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- to know the facts alleged against him with precision of the time, place or period of the commission of these facts without “obscure libelli”,
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- to be heard in a language of his or her choice, or to be assisted by an interpreter.
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In juvenile court, the child in conflict with the law has the right to be accompanied by his or her parents or guardian, and the principle of confidentiality must be respected.
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===Requisitions of witnesses and notification===
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An accused person shall have the right to have witnesses on his or her behalf examined under the same conditions as witnesses against him or her. The court or tribunal, through its bailiff, shall notify the summons to witness to a person who has heard or seen with his or her own eyes, or who otherwise knows the facts for which the accused is being prosecuted.
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Such notification must comply with the usual formalities provided for in Article 59 of the Code of Criminal Procedure. There is no time limit for the summons to testify. It is sufficient if it is sent before the date of the hearing.
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Nevertheless, if the witness is at the trial site, he or she may be summoned to appear immediately to enlighten the court or tribunal, in accordance with articles 66 and 68 of the Congolese Code of Criminal Procedure.
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In the event of the witness's refusal to appear, despite the regular summons, he may be sentenced to a maximum of one month's criminal servitude and a fine, in accordance with article 78 of the Congolese Code of Criminal Procedure. In the event of perjury, the witness must be prosecuted for perjury, and the victim may file a civil suit for compensation for the damage suffered.
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On the other hand, persons who are custodians by state or by profession of the secrets entrusted to them are exempt from testifying.
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The Child Protection Act requires that, when a child is called as a witness, he or she must be accompanied by his or her parent or guardian and assisted by a counsel, lawyer or judicial advocate.
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===Presence of a jury===
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The concept of jury is not usual in Congolese law. Nevertheless, the decision of the Tribunal is taken at the end of a deliberation in which three Judges take part, who decide together, by vote, on the follow-up to be given to the file submitted to them.
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Article 41 of Organic Act No. 13/011-B of 11 April 2013 on the organization, functioning and competence of the courts of the judiciary provides that the junior judge of the lowest rank shall give his opinion first; the president last.
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Decisions are taken by a majority of votes. However, in criminal matters, if more than two opinions are formed in the deliberation, the judge who has delivered the opinion least favourable to the accused is required to agree with one of the other two opinions. In private law matters, if more than two opinions are formed, the less senior, lower ranking judge is required to agree with one of the other two opinions (Article 42).
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The Chamber taking a case under advisement shall indicate the date of delivery.
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The judgment shall be delivered within 30 days at the latest in civil, commercial or social matters and within 10 days in criminal matters.
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However, the head of the court may, at the request of the chamber seized, and if the elements of the case so justify, or in cases of force majeure duly proven, extend this period by fifteen days in civil, commercial or social matters and five days in criminal matters by a reasoned order, which shall be immediately notified to the parties.
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In criminal matters, where the judgment or judgment is delivered in the absence of the parties and beyond the time limit without prior notification of the date of delivery to the parties, the time limit for appeal shall run from the date of service of the decision (Article 43).
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===The judgment===
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It follows from article 21 of the Constitution that any judgment shall be in writing and shall state the reasons on which it is based. It is delivered in open court. The right to appeal against a judgment is guaranteed to all. It is exercised under the conditions set by law.
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The judgment contains 3 parts: the preamble, the reasons and the operative part: the decision of a court has a different name depending on the court that pronounced it: the decision of a court is called a judgment; the decision of a court is called a judgment; the decision of a court for children in conflict with the law is called a decision.
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===The question of the death penalty===
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The Constitution of the Democratic Republic of the Congo, amended by Act No. 11/002 of 20 January 2011 revising certain articles of the Constitution of the Democratic Republic of the Congo of 18 February 2006, provides in its article 16 that "The human person is sacred. The State has an obligation to respect and protect it. Everyone has the right to life, physical integrity and the free development of his personality in accordance with the law, public order, the rights of others and morals. No one may be held in slavery or in a similar condition. No one shall be subjected to cruel, inhuman or degrading treatment. No one may be compelled to perform forced or compulsory labour. »
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Despite this, the death penalty remains provided for in Congolese national law, in particular by article 5 of the Penal Code,1e in the list of penalties applicable for the offences provided for.
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However, the DRC has adopted a moratorium on the execution of the death penalty since 2002. Consequently, when this sentence is imposed by Congolese courts, enforcement is suspended, or it is automatically commuted to life imprisonment. The Public Prosecutor's Office must in all cases initiate the appeal procedure when the accused is sentenced to death. In addition, when judicial remedies have been exhausted, including cassation, a death sentence may be the subject of a pardon.
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If we analyse the various human rights instruments to which the DRC has acceded, in particular the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the United Nations Convention against Torture and Other Cruel Treatment or Punishment of 10/12/1984, In accordance with article 215 of the Rome Statute of the International Criminal Court, and in accordance with article 215 on the primacy of treaties duly ratified by the DRC, this penalty, although still contained in Congolese criminal legislation, is no longer justified and should no longer be applied by Congolese judges.
  
 
==Prisoner's rights==
 
==Prisoner's rights==
  
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The prisoner is an individual detained in a prison, i.e. a person incarcerated. He has certain rights, and he is subject to obligations. Before being in prison, the individual may be held in custody, in the dungeon or in the prison. Regardless of where he is detained, this individual has rights that are recognized by international and national legal instruments.
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During police custody, in the dungeon or amigo, in the prison, in the detention centre, the prisoner shall enjoy all the fundamental rights proclaimed in the Constitution of the DRC, in particular Articles 11 et seq. and other international legal instruments, unless specifically restricted by law.
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===Detention centres===
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Article 5 of Ordinance No. 344 of 17 September 1965 on the prison system provides that it shall be established:
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(1) a central prison in each locality where a court of first instance has its usual seat;
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(2) a district prison in each locality where a district court has its usual seat, excluding the localities where a central prison is established;
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(3) a police prison in each locality where a police court has its usual seat, excluding localities where a central prison or a district prison is established.
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In addition, there is established in the annex to each of the prisons referred to in article 5, a detention centre.
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The Minister of Justice of the central government may also establish detention camps in all localities, either to avoid congestion in the central prisons or to assign detainees to general work.
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In centres of administrative occupation other than localities where a police court has its usual seat and in places where they temporarily reside, officials or agents who are police judges or auxiliary police judges may, with the assent of the provincial governor and the public prosecutor's office, keep detainees under their supervision and responsibility for a period not exceeding fifteen days (article 8).
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According to article 9, prisons are intended to receive:
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1° Individuals convicted by a judgment or judgment that has become final:
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(a) the death penalty;
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(b) a penalty of primary criminal servitude
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(c) a subsidiary penalty of criminal servitude.
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2° Individuals placed at the disposal of the government by a decision that has become final, taken:
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(a) pursuant to § 6 of Section II of Book 1 of the Criminal Code;
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(b) pursuant to Articles 3 and 4 of the Decree of 23 May 1896, as amended by the Decrees of 11 July 1923 and 6 June 1958 on vagrancy and begging.
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3° Persons under duress by body:
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(a) pursuant to article 17 of the Book 1 of the Criminal Code;
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(b) pursuant to Articles 195 et seq. of Schedule 1 to the Act of 10 July 1963 laying down provisions relating to income tax.
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Detention centres are intended to receive individuals referred to in Article 9, paragraphs 1 and 2, who are the subject of a judgment or arrest that has not become res judicata or a decision that has not become final, as well as preventive prisoners.
 +
 +
They can also be used:
 +
 +
1° Of a place of detention pending their being brought before the competent judicial authority, of persons who are the subject of a warrant to bring and of persons who are the subject of a report of seizure of accused persons drawn up by a judicial police officer. 
 +
 +
2° From place of custody to:
 +
 +
- persons subject to a written requisition by an authority acting either pursuant to Article 52 of Ordinance No. 021 /219 of 29 May 1958 regulating the residence of the population of the constituencies, or pursuant to orders of the governors of provinces or the first mayors regulating residence in municipalities or cities;
 +
 +
- persons arrested pursuant to Ordinance 11-182 of 14 February 1959 on disorder on the public highway;
 +
 +
- persons subject to a written request from an authority acting in accordance with the decrees coordinated by the Royal Decree of 22 April 1958 on immigration police.
 +
 +
 +
===Detention===
 +
 +
The guard may only incarcerate a prisoner in a prison or detention camp upon presentation of one of the following documents:
 +
 +
(1) A requisition in execution of judgments or judgments emanating either from the Public Prosecutor's Office or from the judge when the latter is sitting without the assistance of the Public Prosecutor's Office. This requisition must contain a statement that the judgment or ruling has become res judicata.
 +
 +
(2) A requisition in execution of a judgment rendered by a customary court, or an extract from such a judgment. Such requisition or extract must contain a statement that the judgment has acquired the force of res judicata. Where the judgment has been rendered by a chiefdom, sector, centre or commune court, the requisition or extract must be endorsed by the president of the territory or town court. The guard will only incarcerate if there is no customary constituency prison in the community.
 +
 +
(3) A court decision ordering the internment of a vagrant or beggar placed at the disposal of the government. Mention must be made of this decision that it has become final.
 +
 +
(4) A decision of the authorities referred to in Article 14, i, of the Criminal Code ordering the internment of a habitual offender, placed at the disposal of the government.
 +
 +
(5) A ministerial order revoking conditional release.
 +
 +
(6) A report of the arrest of a convicted person or internee who has escaped, when the judgment or sentence has become final or when the internment decision has become final.
 +
 +
(7) A constraint issued by the competent authority pursuant to Articles 159 et seq. of Schedule 1 to the Act of 10 July 1963 laying down provisions relating to income tax.
 +
 +
(8) A transfer decision taken by the custodian of the remand centre in accordance with section 35.
 +
 +
 +
The guard shall immediately send a certificate of delivery of the prisoner to the authority that ordered the incarceration.
 +
Upon receipt of any prisoner, he shall immediately be entered in the prison register (Article 31).
 +
This register contains ten columns where are respectively mentioned:
 +
 +
(1) a serial number;
 +
 +
(2) the surnames, forenames, nicknames and sex of the prisoner;
 +
 +
(3) his profession;
 +
 +
(4) the territorial administrative district from which he or she originates and the locality or district where the prisoner was authorized to reside at the time of his or her arrest;
 +
 +
(5) the date of its entry;
 +
 +
(6) the designation and date of the act under which the incarceration takes place;
 +
 +
(7) the length of the sentence or internment to be served;
 +
 +
(8) the date of exit;
 +
 +
(9) the signature of the released person or, if the latter cannot sign, that of the guardian;
 +
 +
(10) any relevant observations relating to the prisoner, such as the date of his transfer to another locality, the date of his early relaxation and the statement of the reason for this measure, the date of his death, etc.
 +
 +
 +
The prison register is quoted and initialled on the first and last pages by a judge of the district court.
 +
Prisoners are searched upon entry by a person of their gender designated by the guard. The latter seizes the objects of which the prisoner is a carrier, including cash. An inventory of these objects shall be drawn up in the presence of the person concerned and signed by him and the guardian. If the person concerned does not know how to sign, he or she affixes the imprint of his or her left thumb to the inventory.
 +
The custodian is responsible for the conservation of the objects as well as the cash. The guard may at any time, when he considers it useful, have the detainees searched and seize what they are holding unlawfully or in violation of the regulations (Article 32).
 +
 +
 +
In localities where a central or provincial government doctor resides, each prisoner is subject to a medical examination upon entry to the prison, the main purpose of which is to screen for communicable diseases and possibly isolate patients and suspects.
 +
Visits are made to the prison infirmary, and if there is no prison, to the nearest medical centre. If necessary, the doctor shall prescribe any prophylactic measures he considers necessary or useful, such as vaccination and deworming. The doctor shall record the measures taken on the detainee's medical file, as provided for in Article 16. The certificate shall also mention the physical fitness of the prisoner in terms of the work that may be imposed on him.
 +
 +
 +
Detainees are, as a general rule, confined in premises intended for joint imprisonment. Women are separated from men. Juveniles under 18 years of age shall only be imprisoned in prisons if there is no State court of first instance, custody and education facility within the jurisdiction of the State. In the absence of such an institution, they will be held in a special ward.
 +
The custodian may decide that such prisoner shall be confined in one of the premises assigned to individual imprisonment. In the event of congestion, he may place several prisoners in the same room.
 +
 +
To the extent that facilities permit, the custodian shall allocate prisoners in such a way as to group them separately:
 +
(1) prisoners sentenced by a trial or judgement not yet final, to a penalty of criminal servitude not exceeding two months;
 +
 +
(2) prisoners sentenced by a judgment or judgment not yet final and binding to a penalty of criminal servitude of more than two months;
 +
 +
(3) vagrants and beggars made available to the government by a decision that has not become final;
 +
 +
(4) persons placed in pre-trial detention pursuant to Chapter III of the Code of Criminal Procedure;
 +
 +
(5) persons detained pending questioning by the competent judicial authority and those who have been the subject of a warrant to bring them in;
 +
 +
(6) the persons referred to in 2° of the second paragraph of section 10 (section 44).
 +
 +
On the advice of the Public Prosecutor's Office and for the time determined by it, the detainees referred to in 4° and 5° of Article 44 may be isolated from each other.
 +
Prisoners entering the prison and undisciplined prisoners may, as a precautionary measure, be placed in solitary confinement in a special area called the security area.
 +
 +
 +
===Regulation within prisons===
 +
 +
====Prohibition of individual or collective noises and acts disturbing good order====
 +
 +
All shouting and singing, all noisy group meetings, and generally all individual or collective acts likely to disturb good order, are prohibited to detainees.
 +
The same applies to any complaints, requests or petitions submitted collectively.
 +
All donations, trafficking, or exchanges are prohibited between prisoners.
 +
 +
====Right to buy tobacco and hygiene in prison====
 +
 +
Smoking is permitted within the limits set out in each internal regulation.
 +
The custodian may offer the tobacco for sale in the canteen, if he considers it appropriate. The right to buy tobacco is reserved only for prisoners of good conduct.
 +
 +
 +
Every prison, detention camp and remand centre shall have hygienic facilities and, as far as possible, showers and ovens to be disinfected.
 +
The internal regulations prescribe all measures relating to the cleanliness and maintenance of premises, sleeping and clothing, as well as the toilet of prisoners.
 +
As they enter, the inmates go to the shower. Their clothing is inspected and disinfected; if it carries parasites, it is treated with a suitable product or placed in an oven (article 49).
 +
In order to enable detainees to present themselves properly and maintain self-respect, the internal regulations must provide for measures to facilitate the proper care of the hair and beard (article 50).
 +
 +
====Detainees' clothing====
 +
 +
Prisoners in prisons and detention camps are dressed in uniform. The warden may prescribe that inmates of remand homes or certain categories of inmates be dressed in a uniform.
 +
The clothing must be appropriate to the climate and sufficient to keep the inmate healthy. The outfit must in no way be degrading or humiliating. Clothing must be kept in a constant state of cleanliness and maintenance.
 +
 +
====Right to walk====
 +
 +
Detainees confined in the security sector or in the isolation cell shall be allowed half an hour's walk or physical exercise twice a day, in the morning and afternoon, within the confines of the prison, detention camp or remand centre. The guard may deprive detainees of it if they fear that they will cause disorder.
 +
 +
====Right to a doctor and nurses====
 +
 +
The minister of the central government responsible for public health appoints a doctor to serve prisons, detention camps and remand centres established in the territory of the city of Leopoldville.
 +
The provincial governor or his delegate shall appoint a doctor to serve prisons, detention camps and remand centres established in the territory of the province. Depending on the size of the prison population, the doctor visits the institution either daily or once or several times a week.
 +
The minister of the central government responsible for public health shall assign to each prison, detention camp and remand centre established on the territory of the city of Leopoldville, one or more nurses.
 +
The provincial governor or his delegate shall assign one or more nurses to each prison, detention camp and remand centre established in the territory of the province, depending on the size of the prison population.
 +
Nurses are placed under the technical control and supervision of the doctor, and under the administrative control and direction of the warden.
 +
 +
====Medical examination of patients====
 +
 +
The medical examination of patients takes place daily at the prison, the remand centre and the detention camp if the conditions of the medical service allow it. Every morning upon waking up, the guard registers prisoners who declare themselves sick in the medical check-up book.
 +
Patients are taken to the medical examination at the time set by the doctor. Prisoners who have declared themselves ill and who have not been recognised as such by the doctor may be punished by disciplinary action.
 +
 +
The doctor is required to go to the prison whenever he or she is urgently requested.
 +
The prescriptions relating to the treatment, diet, exemption or capacity for work of patients shall be recorded by the doctor in a special register and on the medical file of each prisoner.
 +
The medical form also mentions any vaccinations, radioscopies, serological or bacteriological examinations that may have been carried out.
 +
If the detainee is transferred to another institution, his medical record follows him.
 +
Special provisions for prisoners with contagious diseases and the right to transfer sick prisoners
 +
Detainees are cared for in the dispensary or infirmary of the prison, the attached remand centre or the detention camp. A special unit to receive prisoners with contagious diseases will be set up in the prisons, attached remand centres and detention camps.
 +
 +
 +
If the doctor considers that, because of the seriousness or nature of the illness, it is impossible to treat the prisoner in the prison, detention camp or remand centre, he or she shall be taken to the nearest medical or hospital training centre. At the medical or hospital training, the detainee is placed in a separate room; his guard is provided by the local police. If the patient thus transferred is an accused person, the warden is required to notify the judicial authority and the territorially competent inspector responsible for the management of the prison inspection section of the transfer immediately.
 +
 +
====Right to food====
 +
 +
Detainees are provided with food as close as possible to their usual food. This food must be of sufficient value to maintain the inmate in perfect physical condition.
 +
It follows from article 62 that prisoners eat three meals a day and the use of alcoholic beverages is strictly prohibited, unless prescribed by a doctor.
 +
 +
The custodian supervises or has supervised the preparation and distribution of food.
 +
 +
Where it is impossible to prepare certain rations at the prison, remand centre or detention camp either because the number of prisoners for whom they are intended is insufficient or because the necessary equipment is lacking, the guard may, within the limits of the maximum prices, provide the prisoners with the rations in question with food prepared outside. The mandate for the payment of invoices relating to the purchase of food prepared outside the prison can only be made after approval of their amount by the territorially competent inspector in charge of the management of the inspection section of the prison service.
 +
 +
====Compulsory work (articles 64 and 65)====
 +
 +
Work is compulsory for prisoners in prisons and detention camps.
 +
The work of minors under 19 years of age held in prisons is governed by special provisions.
 +
Detainees in remand centres may only be put to work if they so request. However, they are required to maintain in perfect condition the premises they occupy, their clothing effects and the equipment and objects at their disposal.
 +
The internal regulations determine the work to which convicts in prisons and detention camps are subject.
  
 
==Bail==
 
==Bail==
  
 +
Bail is granted only to convicted offenders who have shown proof of change.
 +
When the person concerned has declared that he accepts conditional release and has indicated, if necessary, the place where he intends to settle upon his release from prison, he will be issued, at the time of his release, a release permit which he will be required to represent at any request of the administrative or judicial authorities.
 +
Any prisoner shall be released upon expiry of the validity of the document justifying his entry in the prison or accommodation register.
  
  

Latest revision as of 10:14, 5 August 2019

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CODES

LEGAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

Background

DR Congo is the second largest country in Africa after Algeria. It extends from the Atlantic Ocean to the Eastern Plateau and covers most of the Congo River basin. The country shares borders with the Cabinda enclave (Angola) and the Republic of Congo in the west, the Central African Republic and South Sudan in the north, Uganda, Rwanda, Burundi and Tanzania in the east, Zambia and Angola in the south. It is divided into 26 provinces.

With 81,331,050 million inhabitants and 450 ethnic groups, the DRC is the most populous French-speaking country. It has been a member of the Organisation internationale de la Francophonie since 1977. If the official language is French, four other national languages are also recognized: Kikongo, Lingala, Tshiluba, and Swahili. The economy is mainly based on the primary sector (agriculture and mining).


The Democratic Republic of Congo gained its independence from Belgium on June 30, 1960. Shortly afterwards, Colonel Joseph Mobutu seized power by a coup, and proclaimed himself President in November 1965, changing the name of the country from "Republic of Congo" to "Zaire". From 197l (and until 1997), he implemented a "Zairianization" policy, which required that all private companies be owned by the State, and owned by true "Zairians".

This policy is based on the policy of "using authenticity". It draws its values from African cultural heritage, and is a rejection of the West and its policy of economic domination. It involved the forced adoption by all citizens of names deriving from the Congolese cultural heritage, the adoption of a new currency and the progressive nationalization of commercial and land properties that belonged to foreign nationals or financial groups.


After several years of glory, the Mobutu regime sank into large-scale corruption and abuse of public property. In addition, the structural adjustment policies implemented by the international financial institutions worsened the country's economic situation. In addition to the abuses linked to the dictatorship of the current regime, and the chaos resulting from political crises in neighbouring countries (in Rwanda and Burundi, in particular), these economic problems triggered a popular revolt. At the head of the rebel movement called "Alliance des Forces démocratiques pour la libération du Congo", Laurent Désiré Kabila finally took power in May 1997. This takeover was preceded by a violent civil war, which is still raging in some parts of the country today.

Under its yoke, Zaire became the Democratic Republic of Congo, and relative economic and political stability gradually began to emerge. He was assassinated in January 2001 and his son, Joseph Kabila Kabange, who took over as head of state.

Under Kabila Jr., the Democratic Republic of Congo was confronted with recurrent political crises, one of the fundamental causes of which is the contestation of the legitimacy of the institutions and their leaders. In order to put an end to this chronic crisis of legitimacy and give the country every opportunity to rebuild itself, the delegates of the political class and civil society, met to organize an inter-Congolese dialogue. They agreed by the "Global and Inclusive Agreement" signed in Pretoria, South Africa on 17 December 2002, to put an end to hostilities.


Following the signing of the Pretoria Agreement, the transitional government, consisting of a President and four Vice-Presidents, drafted a new Constitution, adopted by referendum in December 2005[1]. In 2006, presidential and legislative elections were held. Joseph Kabila Kabange ("Kabila son") is elected President of the Democratic Republic of Congo.


With regard to the human rights situation, it should be noted that, since its independence, the DRC has faced numerous violent crises, accompanied by arbitrary arrests and summary executions. During Mobutu's time, human rights violations were mainly directed against opponents of the regime. After the fall of Mobutu, wars followed one another, bringing with them their share of murders, looting, destruction and many other human rights violations. The immense territory of DR Congo is destabilized by these massive violations, and violent clashes between rebel groups, particularly in eastern DRC, the former province of Katanga and the current province of Central Kasai.

Sources of Defendants' Rights

Internal sources of law

Many provisions in Congolese law relate to the rights of the accused and detainees.


The main texts applicable in criminal matters are:

- The Constitution of the Democratic Republic of Congo of 18 February 2006 as revised by Law No. 11/002 of 20 January 2011 revising certain articles of the Constitution of the Democratic Republic of Congo of 18 February 2006;

- Ordinance-law n°82-020 of 31 March 1982[2] on the Code of Judicial Organisation and Jurisdiction revised in 2013 by Organic Law n°13/011-B of 11 April 2013 on the organisation, functioning and competences of the courts of the judicial order;

- The decree of 6 August 1959 on the Code of Criminal Procedure, as amended and supplemented[3];

- Act No. 024-2002 of 18 November 2002 on the Military Criminal Code[4];

- Act No. 06/018 of 20 July 2006 on the suppression of sexual violence in the DRC [5];

- Act No. 09/001 of 10 January 2009 on the protection of children [6];

- The decree of 21 June 1937 on the rehabilitation of convicted persons [7];

- Ordinance 344 of 17 September 1965 on the Penitentiary System [8];

- Ordinance-law n°82-017 of 31 March 1982 relating to proceedings before the Supreme Court of Justice[9]


Regional and international sources

In addition to this important arsenal at the domestic level, other regional and international laws are applicable in the DRC. They consist of the set of standards for the protection and promotion of human rights enshrined in international legal instruments duly ratified by the DRC.

Article 215 of the Constitution provides that international treaties and agreements duly concluded shall, upon their publication, have an authority superior to that of laws, subject for each treaty or agreement to its application by the other party.

Thus, any person can claim a right set out in the international instruments that the State of the DRC has regularly ratified. It is worth mentioning as an example:


- The African Charter on Human and Peoples' Rights; (ratified by the Democratic Republic of Congo on 23/07/1987)[10]

- The International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (ratified by the Democratic Republic of Congo on 18 March 1996[11]

- The Rome Statute of the International Criminal Court; (ratified by the Democratic Republic of Congo on 11 April 2002)[12]

- The Rules of Procedure and Evidence of 9 September 2002[13];

- The International Covenant on Civil and Political Rights of 19 December 1966; (ratified by the DRC on 1 November 1976)[14]

- The International Convention on the Rights of the Child; (ratified by the DRC on 27 September 1990)[15]

- The African Charter on the Rights and Welfare of the Child; (The DRC has not yet signed or ratified this charter)

- The 1949 Geneva Conventions and their Additional Protocols (ratified by the DRC on 24 February 1961)[16]


In addition to these binding texts, there are other texts that are not binding, but whose rules are considered to be part of international custom. This is the case of the Universal Declaration of Human Rights (1948).

Rights of the accused at all times

A number of fundamental rights and principles prevail at all stages of the proceedings, from the moment of the arrest to the final judgment.

The right to be informed of his rights and the reasons for his arrest

In the DRC, this right is constitutionally protected. Indeed, article 18 of the Constitution as revised in 2011 provides that "any person arrested must be immediately informed of the reasons for his arrest and of any charges brought against him in the language he understands. She must be immediately informed of her rights. The person in custody has the right to immediately contact his or her family or counsel. Police custody may not exceed 48 hours. At the end of this period, the person in custody must be released or made available to the competent judicial authority. Every prisoner shall be treated in a manner that preserves his or her life, physical and mental health and dignity. »


In addition, at the time of an arrest, a report of the arrest must be signed by the police officer and the arrested person, after reading or translating it into the language of his choice. This document must include the reason for the arrest.


The right to be presumed innocent

This right is guaranteed by both national and international legal instruments ratified by the Democratic Republic of Congo. This is a principle according to which anyone charged with an offence is presumed innocent until proven guilty according to law. This means that it is for the prosecuting party to bear the burden of proof according to the meaning of the adage actor incumbit probatio and that the doubt must necessarily benefit the prosecuted person according to the meaning of the adage in dubio pro reo.


The principle of individual criminal responsibility

Article 17 of the Constitution protects any defendant from any form of collective or vicarious criminal liability. Indeed, it clearly states that "criminal responsibility is individual. No one may be prosecuted, arrested, detained or convicted for the acts of others”.


Thus, the arrest of a person for the act of another person constitutes the offence of arbitrary arrest provided for and punished by article 67 of the Penal Code LII, which provides that "Anyone who, by violence, deception or threats, abducts or causes the abduction of any person, or arbitrarily arrests or causes his arbitrary arrest, detention or detention, shall be punished by a criminal servitude of one to five years. »' When the abducted, arrested or detained person has been subject to physical torture, the offender shall be punished by a criminal servitude of five to twenty years. If the torture caused death, the offender is sentenced to criminal servitude for life or death.

The principle of legality and non-retroactivity

This principle is enshrined in the adage "nullum crimen, nulla poena sine lege".


Article 17 of the 2006 Constitution as revised in 2011 enshrines the principle of the legality of criminal law and non-retroactivity. It provides that “No one may be prosecuted, arrested, detained or sentenced except in accordance with the law and in the manner prescribed by it. No one may be prosecuted for an act or omission that does not constitute an offence at the time it is committed and at the time of prosecution. No one may be convicted of an act or omission that does not constitute an offence both at the time it is committed and at the time of conviction. A heavier penalty may not be imposed than that applicable at the time the offence is committed”.


The right to be assisted by a lawyer

The right to a lawyer or judicial defender is a central right for the fairness of justice. It is based on the idea that the complexity of the proceedings and the significant powers of the prosecution require a qualified defence that rebalances the proceedings and gives the parties an equal opportunity to present their claims. Article 19 of the 2006 Constitution of the DRC as revised in 2011 states to this effect that "The right of defence is organized and guaranteed. Everyone has the right to defend himself or herself or to be assisted by a defence counsel of his or her choice at all levels of criminal procedure, including police investigation and pre-judicial investigation. She may also be assisted by the security services.


For its part, article 14§3 of the International Covenant on Civil and Political Rights states that "Everyone charged with a criminal offence is entitled, in full equality, to at least the following guarantees: ... if it does not have legal counsel, to be informed of its right to have one, and, whenever the interests of justice so require, to be assigned legal counsel ex officio, without charge, if it does not have the means to pay for it". Also, article 73 of the Decree of 6 August 1959 on the Code of Criminal Procedure provides that each party may be assisted by a person specially authorized in each case by the court to speak on its behalf: "Unless the accused objects, the Judge may appoint a defence counsel chosen by him from among the prominent persons of the locality where he is sitting. If the defender thus appointed is an agent of the Belgian Congo, he may not refuse this mission, under penalty of such disciplinary sanctions as he may be entitled to. »


With regards to military justice, Act No. 023/2002 of 18 November 2002 on the Military Judicial Code also contains interesting provisions on the defence of defendants in articles 61, 62 and 63, which stipulate that the defence of defendants before military courts is carried out by lawyers registered with the bar, judicial defenders and soldiers approved by the president of the court and of Congolese nationality. Judicial defenders exercise their ministry only before the Military Garrison and Police Courts within the jurisdiction of the High Court where they are registered. The military judge shall appoint a defence counsel for the benefit of an accused person if the latter has not chosen one. This protection is theoretically more extensive than that granted before the ordinary courts, in that the law does not make access to free legal aid conditional on the possible indigence of the accused.


With regard to children, Act No. 09/001 of 10 January 2009 on the protection of children contains a specific system of free legal aid for children deprived of their liberty. Article 12 of the Convention specifies that a child deprived of liberty has the right, within a short period of time, to free legal assistance and to any appropriate assistance. This right is also included in article 104, paragraph 4, of the same Act, which provides that a child in conflict with the law has the right to assistance by a counsel of his or her choice or appointed by the Judge.


The right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment

Despite the ratification by the DRC on 18/3/1996 of the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment of 10/12/1984, domestic legislation was not brought into line until 2011, when it finally designated torture as an autonomous offence.


Article 16 of the Constitution of 18 February 2006, as revised in 2011, prohibits torture and other cruel, inhuman or degrading treatment or punishment. Article 61 specifies that no derogation from the prohibition of torture is permitted, even in situations of war, emergency or siege.


The explicit prohibition of torture is then reflected in a number of other Congolese legal texts, such as Act No. 9/001 of 10 January 2009 on the protection of children, articles 9.1, 151 and 152 of which prohibit and punish torture against children; or the Military Penal Code, whose articles 103, 166, 169, 173, 192, 194 establish torture and other PTCIDs as aggravating circumstances punishable by the death penalty, crimes against humanity or war crimes.


The same applies to the Ordinary Criminal Code, articles 57 and 67 (2) of which establish corporal torture as an aggravating circumstance, and Organization Act No. 06/020 of 10 October 2006 on the status of judges, which establishes torture as a disciplinary offence.


In 2011, law n°11/008 of 09/07/2011 on the criminalization of torture adds articles 48 bis, 48 ter and 48 quarter to the Congolese Criminal Code. Under article 48 bis: "Any public official or officer, any person in charge of a public service or any person acting at his or her direction or instigation, or with his or her consent or acquiescence, who intentionally inflicts severe pain or suffering, whether physical or mental, on a person for the purpose of obtaining information or a confession from him or her or from a third person, to punish her for an act she or a third person has committed or is suspected of having committed, or of intimidating or coercing her or of intimidating or coercing a third person or for any other reason based on any form of discrimination, shall be punished by five to ten years' imprisonment as a principal criminal servitude and a fine of fifty thousand Congolese francs to one hundred thousand Congolese francs".


In addition to the fact that torture is considered an offence in the DRC, confessions and evidence obtained under torture cannot be held in court. In other words, if someone has admitted to having committed a crime under torture, this confession is not evidence and a judge should not accept it as such. This is clearly stated in Circular No. 04/008/In/PGR/70 of 16 May 1970 of the Attorney General of the Republic addressed to the Officers of the Public Prosecutor's Office.


In addition, every victim has the right to fair and equitable compensation. Investigations conducted by IBJ teams in 2017 into cases of torture known to the courts of South Kivu province in the DRC revealed, however, that victims are afraid to report these cases for fear of reprisals by the perpetrators, given the lack of appropriate mechanisms to protect victims.


The right to be tried within a reasonable time

Article 19 of the Constitution provides that "everyone has the right to have his case heard within a reasonable time by the competent judge. The reasonable time limit is problematic in that the law does not generally specify this time limit.


However, Act No. 06/01 of 20 July 2006 amending and supplementing the Decree of 30/1/1959 on the Congolese Code of Criminal Procedure provides in article 7 bis that, without prejudice to the provisions relating to the flagrante delicto procedure, the preliminary investigation into sexual violence shall be carried out within a maximum period of one month from the date of referral to the judicial authority. The investigation and the pronouncement of the judgment are carried out within a maximum period of 3 months from the date of referral to the judicial authority.

However, this law does not provide for any sanctions in the event of non-compliance with the deadlines.

Legal Aid System

Article 74 of Ordinance-law 79-028 of 28 September 1979 on the organization of the Bar, the body of judicial defenders and the body of State agents provides that lawyers (judicial defenders) are prohibited from refusing or neglecting to defend defendants and assist the parties, in the event that they are appointed.


In practice, "pro bono" assistance is conditional on the request of any person (accused, charged, defendant) in need of legal assistance, and who proves his indigence by the certificate issued by the Registrar or his representative in his place of residence; this request is addressed either to the Bar Association or to the Judicial Defenders Corps at the Court seized in order to appoint a Counsel.


Nevertheless, during the hearing, the Judge may note the state of indigence of an accused or a child in conflict with the law and either for the sake of balance of defence or because the penalty incurred is more than 5 years' imprisonment, he automatically appoints a judicial defender present at the hearing for pro deo assistance, or requests the Syndic (head of the Judicial Defenders Corps) or the Bâtonnier to appoint pro bono counsel.

Rights of the accused at the police stage

Status and functions of the police

The police is the public force whose function is to ensure order, tranquillity and security in the State. The judicial police is the organ of the judicial system, composed of sworn officers, who record offences, investigate the perpetrators and collect evidence allowing the indictment of these perpetrators.


The first articles of the Congolese Code of Criminal Procedure provide for the powers and duties of the judicial police. This Code is also supplemented by the provisions of the Ordinance of 1978 on the Exercise of Powers of Judicial Police Officers and Agents in the Ordinary Courts. The judicial police officers are in particular competent to record offences, receive denunciations, complaints and reports relating to these offences. They may seize items necessary for the investigation (this must be mentioned in the minutes). In addition, in the event of flagrant or deemed offences, or where the acts are punishable by at least six months of imprisonment, or if the identity of the alleged offender is doubtful or unknown, judicial police officers may arrest the person and bring him or her immediately before the competent judicial authority, namely the Public Prosecutor's Office (PPO), provided that there are serious indications of guilt.


The judicial police officer is under the authority of the PPO (see articles 1 to 10 of the Congolese Code of Criminal Procedure). In the provinces, the judicial polices is therefore placed under the hierarchical authority of the Attorney General of the Court of Appeal to which it belongs, which has a monopoly on public prosecution in its constituency. There is its equivalent in the military judiciary. Indeed, articles 5 and 59 of Act No. 023/2002 of 18 November 2002 on the Military Judicial Code stipulates that the officers of the Judicial Police of the Military Prosecutor's Offices are: the General Judicial Inspectorate, the Chief Judicial Inspectors, the Divisional Judicial Inspectors, the Principal Judicial Inspectors, the First and Second Class Judicial Inspectors and the Judicial Police Officers.


Police custody

Article 18, paragraph 4, of the 2006 Constitution of the DRC as revised in 2011 specifies that police custody may not exceed 48 hours. Articles 146 and 148 of Act No. 023/2002 of 18 November 2002 on the Military Judicial Code also provide that the duration of police custody may not exceed 48 hours. In accordance with the aforementioned article 18 of the Constitution, at the end of the period of police custody, soldiers arrested in flagrante delicto or against whom there are serious and consistent indications of guilt must be placed at the disposal of the competent judicial authority.


This 48-hour period begins as soon as the individual is apprehended, and the Protocol of Seizure of the accused is drawn up and signed by the Judicial Police Officer. It must include the signature of the accused. In the event of a refusal, this refusal must be recorded in the report by the judicial police officer. Sometimes the Public Prosecutor's Office also takes the accused into custody.

After 48 hours, if no provisional arrest warrant is issued against the accused, he must be released, in accordance with article 18 of the aforementioned Constitution.


The 1978 Ordinance on the Exercise of the Powers of Judicial Police Officers and Agents in the Courts of General Jurisdiction also provides that the Judicial Police Officer must immediately notify the accused's family members and ensure that his or her personal property is secure.


In addition, any person in police custody has the right to be examined by a doctor and if the doctor finds that abuse or ill-treatment has been committed against the person, he or she shall report this to the Public Prosecutor.


The person in custody has the right to immediately contact his or her counsel. Police custody may extend beyond 48 hours if the police station is located far from the office of the Public Prosecutor's Office, or upon request for derogation from the Public Prosecutor's Office by the judicial police officer. The latter grants permission when the need for training so requires.

Pre-trial detention

The essential rule in terms of detention (from police custody to final judgment) is the presumption of innocence as enshrined in Article 17(1) of the Constitution of the DRC, the consequence of which is that freedom is the rule, detention the exception.

Article 28, paragraph 1, of the Code of Criminal Procedure also provides that detention is the exception and freedom is the rule. The same applies to article 205 of the Military Judicial Code, which provides that the detention of persons is an exception, freedom being the rule.


Regime of the ordinary criminal procedure code

Articles 27 to 45 of the Code of Criminal Procedure specify the procedure and the time limits for it. The accused may be remanded in custody only if there are serious indications of guilt and if, in addition, it appears to constitute an offence punishable by law with a penalty of at least six months' criminal servitude.


Nevertheless, an accused person against whom there are serious indications of guilt may be placed in pre-trial detention where the fact appears to constitute an offence punishable by law with a penalty of less than six months' criminal servitude but more than seven days, if there is reason to fear the accused's flight, or if his identity is unknown or doubtful or if, in the light of serious and exceptional circumstances, preventive detention is imperative in the interests of public safety.


According to article 28, when preventive detention is applied, the following rules must be respected: - When the conditions for placing the accused in pre-trial detention are met, the officer of the Public Prosecutor's Office may, after questioning the accused, place him under a pre-trial arrest warrant, provided that he is brought before the nearest judge competent to rule on preventive detention. - If the judge is in the same locality as the officer of the Public Prosecutor's Office, the appearance before the judge must take place, at the latest, within five days of the issuance of the provisional arrest warrant. - Otherwise, this period shall be increased by the time strictly necessary to complete the journey, except in cases of force majeure or delays made necessary by the duties of the investigation. - At the end of these time limits, the accused may apply to the competent judge for release or interim release. In the cases provided for in Article 27, paragraph 2, the provisional arrest warrant shall specify the circumstances justifying it.


In article 29, it is specified that pretrial detention is authorized by the judge of the peace court. Article 30 then specifies that the order ruling on it is issued in chambers on the requisitions of the Public Prosecutor's Office, the accused person being heard beforehand and, if he so wishes, assisted by a lawyer or a defence counsel of his choice.


The observations and means of the accused shall be recorded. The order shall be issued no later than the day after the day of the appearance. The judge shall bring it as soon as possible to the attention of the accused person, in writing, with acknowledgement of receipt, or by oral communication, recorded by the person who makes it. This order is valid for 15 days, including the day on which the order in question is issued. At the end of this period, pre-trial detention may be extended for one month, and so on, from month to month, for as long as the public interest requires.


However, preventive detention may be extended only once if the fact appears to constitute only an offence for which the penalty provided for by law does not exceed two months' hard labour or main criminal servitude. If the penalty provided for is equal to or greater than 6 months, preventive detention may not be extended more than 3 times consecutively. If this time limit is exceeded, the extension of the detention is authorised by the competent judge ruling in open court.


Extension orders shall be issued in accordance with the forms and time limits provided for in Article 30. The accused may not be denied the assistance of a lawyer or defence counsel. In the cases provided for in Article 27, paragraph 2 (penalty provided for less than 6 months but more than 7 days), the order authorising or extending preventive detention must specify the circumstances justifying it.


Military judicial law regime (articles 205 to 210 of the Military Judicial Code)

Article 205 of the Military Judicial Code stipulates that when the military investigating magistrate competent to initiate proceedings considers that the fact constitutes an offence punishable by law with a penalty of at least one year's criminal servitude and that there are serious and sufficient indications of guilt, he may subject any person subject to military courts to judicial measures of controlled freedom or temporarily detain him, for a period not exceeding fifteen days.


An accused person against whom there are serious and sufficient indications of guilt may nevertheless be remanded in custody if the act constitutes an offence punishable by a penalty of less than one year but more than six months, if there is reason to fear his flight, or if his identity is unknown or doubtful or if, in the light of serious and exceptional circumstances, his detention is imperative in the interests of public safety. At the end of the fifteen-day period, if that authority considers that the arrest warrant should not be maintained, it shall order its withdrawal.


Controlled freedom is decided by the Military Auditor, who issues an order to this effect, which determines the conditions and procedures for its execution. The Commander of the unit to which the accused person concerned fall under shall be kept informed. Where proceedings have been ordered, incarceration and detention may only result from a provisional arrest warrant issued by the Military Auditor.


The provisional arrest warrant is valid for fifteen days. If the investigation of the case is to last more than fifteen days and the military investigating magistrate considers it necessary to keep the accused in detention, he shall refer the matter to the Military Prosecutor. The latter shall decide on the provisional detention and decide on its extension for one month; and so on, from month to month, when duly justified investigative duties so require.


However, preventive detention may be extended only once if the fact appears to constitute only an offence for which the penalty provided for by law does not exceed two months of criminal servitude. If the penalty provided for is equal to or greater than six months, the extension of preventive detention may not exceed twelve consecutive months.


If this time limit is exceeded, the extension is authorised by the competent court. At any time, the preventive detainee may request the Military Auditor to release him or her or to release him or her provisionally. If the provisional arrest warrant is not confirmed within 15 days, the detention shall be terminated in accordance with Article 210.


Question of provisional release

Article 32 provides: "While authorizing or extending pretrial detention, the judge may, if the accused so requests, order that he or she nevertheless be released on provisional release, provided that he or she deposits with the Registrar, as security, a sum of money to guarantee the representation of the accused person at all acts of the proceedings and the enforcement by him or her of custodial sentences as soon as they are required. Provisional release will be granted on the condition that the accused does not obstruct the investigation and does not cause scandal by his conduct. According to the same article, the judge may also impose on the accused:

- To live in the locality where the officer of the Public Prosecutor's Office has his seat;

- Not to move beyond a certain radius of the locality, without the authorisation of the investigating magistrate or his delegate;

- Not to go to such specified places, such as railway station, port, etc., or not to be there at specified times;

- To appear periodically before the investigating magistrate or before such official or agent determined by him;

- To appear before the investigating magistrate or before the judge as soon as he is required.


The order, which will specify precisely the terms of the charges imposed under this section, may make interim release subject to only one or the other. At the request of the Public Prosecutor's Office, the judge may at any time modify these charges and adapt them to new circumstances. It may also withdraw the benefit of provisional release if new and serious circumstances make this measure necessary. As long as he has not brought the case before the court, the officer of the Public Prosecutor's Office may release the accused from preventive detention and order the return of the bond.

He may also grant him provisional release, under the same conditions and under the same terms as the judge himself may do. In this case, the decision of the Public Prosecutor's Office ceases to have effect with those of the judge's order authorizing or extending preventive detention, unless a new order is issued. He may also withdraw from the accused the benefit of the provisional liberty he had granted him, if new and serious circumstances make this measure necessary.


Under article 34, failure to comply with the charges imposed on him by the accused person granted provisional release may lead the PMO to reincarcerate the accused person. If provisional release has been granted by the judge, the accused person who contests being in default may, within 24 hours of his or her reincarceration, appeal to the judge who had ruled in the first instance on the detention or extension of detention. The decision on this appeal is not subject to appeal.


When the accused is deprived of the benefit of provisional release, the bond shall be returned to him, unless the reasons for the reincarceration have been given for failure to fulfil the duty to appear before the investigating magistrate or judge. The return of the bond shall be made on the basis of an extract from the prison register, issued to the accused by the officer of the Public Prosecutor's Office. In all cases where the requirements of the investigation or prosecution require the presence of an accused person in pre-trial detention with temporary release in a locality other than that in which he or she has been authorized to reside, he or she may be transferred there under the same conditions as an accused person in prison and shall remain in a state of incarceration until such time as the judge, or in the case of article 33, the local public prosecutor, has adapted the charges to which his or her new temporary release may be subjected to local circumstances.


Remedies for preventive detention

The Public Prosecutor's Office and the accused may appeal orders issued in respect of preventive detention. It follows from article 38 that appeals against orders issued by the President or Judge of the Court of Peace are brought before the High Court. The time limit is 24 hours and runs from the day on which the order was issued for the Public Prosecutor's Office and from the day of notification for the accused (article 39).

The statement of appeal is made to the clerk of the court that made the order. If the clerk is not on the premises, the accused person makes his statement to the officer of the Public Prosecutor's Office or, in his absence, to the judge, who draws the act. The officer of the Public Prosecutor's Office records the appeal himself.


The magistrate or clerk who receives the statement of appeal shall also record any observations or pleas in law relied on by the accused in support of his appeal and shall attach to the statement of appeal the pleadings, notes and other documents that the accused would submit to him for submission to the court to be heard on the appeal. He was given a receipt for it.

The notice of appeal and the documents annexed thereto shall be transmitted without delay by the person who drew it up to the clerk of the court which is to hear the appeal.


During the period of appeal and, in the event of an appeal, until the decision is taken, the accused person shall be kept in the state in which he or she was placed by the judge's order, as long as the period of validity of that order has not expired.

However, where the offence is one of those punishable by law by at least one year's imprisonment, the officer of the Public Prosecutor's Office may, in the case of an order refusing to authorize preventive detention, order that the accused be placed under the links of the provisional arrest warrant and, in the case of an order refusing to extend the detention, order that the accused be placed under the links of the order authorizing him.


In either case, the accused will only be put back under the arrest warrant or previous order during the time limit for appeal and, in the event of an appeal, until the decision is taken. The order of the Public Prosecutor's Office must be justified. A copy must be sent simultaneously by the officer of the Public Prosecutor's Office to his line manager, the appeal judge and the guard of the detention centre. The guard shall inform the accused of this fact.

The order is only valid for 24 hours if the guardian does not receive notification of the appeal in the meantime (Article 40).


The judge hearing the appeal shall decide within 24 hours of the hearing at which the Public Prosecutor's Office makes its requisitions. If the accused is not in the locality where the court is holding the hearing or if he or she is not represented by a special proxy holder, the judge may rule on the documents.


If the order of the first judge refusing to authorize or extend the detention is overruled by the judge of appeal, the period for which the authorization or extension would be granted shall be fixed by the judge of appeal, but may not exceed one month. This period begins to run from the day the appeal order is enforced.


It follows from article 43 that the accused person in respect of whom the authorization to place him in pre-trial detention has not been granted or extended may not be the subject of a new pre-trial arrest warrant for the same offence unless new and serious circumstances require him to be remanded in custody.


Where the Public Prosecutor's Office decides that there is no need to prosecute, it must at the same time release the person from preventive detention and, if necessary, order the return of the bond. Unfortunately, there is a practice of requesting fees for the release of detention, even though they are not provided for anywhere.


Finally, according to article 45, if the accused is in pre-trial detention, with or without pre-trial release, on the day on which the trial court is seized, he will remain in pre-trial detention until the trial. However, in the case provided for in Article 31, paragraph 2, the detention may not exceed the duration provided for in that paragraph.


The accused prisoner may apply to the court seized for either the release of the pre-trial detention or the release on bail. The court is only required to rule on the first application and on those addressed to it at least fifteen days after the decision on the previous application.

The decision shall be given in the form and within the time limits provided for in Article 30. The assistance of a lawyer or a defender approved by the court may not be refused to the accused. If the court grants interim release, the provisions of Article 32 shall apply.

With regard to children in conflict with the law, in accordance with article 106 of the Child Protection Act 2009, only the Judge is competent to take a provisional measure of placement either in a State care and education institution or in an approved private social institution.


Summary of deadlines

Before military courts: - Police custody: 48 hours - Provisional arrest warrant: 15 days - Preventive detention for 1 month and so on without exceeding 12 months

Before the ordinary courts: - Police custody: 48 hours - Provisional arrest warrant: 5 days - Preventive detention order: 15 DAYS - Order confirming preventive detention: 30 days; thus extended from month to month without exceeding 12 months.

Before juvenile court: The provisional placement measure must not exceed 2 months. Article 108 of the Child Protection Act 2009 provides that "if the measures provided for in article 106 cannot be taken because the child is presumed to be dangerous and no couple or institution is in a position to receive him or her, the child may be placed in a State care and education establishment for a period not exceeding two months".


Detention review

Before the ordinary courts, the peace court is the court that reviews the regularity of detention. Before the military courts, the military garrison court is the authority responsible for monitoring the regularity of detention. In the juvenile court, the interim placement measure is taken by the president of the juvenile court.

The trial

The appearance of the defendant

The accused has the right to appear before his natural judge. It must be served by the summons to be served or, for children in conflict with the law, by summons. The time limit for service is set at 8 clear days, and its extension is possible depending on the distance between the accused and the place where he or she is to appear. This provision is also intended to allow sufficient time for him to prepare his defence and to contact his lawyer or judicial counsel.

At hearings, the principle is that the accused should appear in person. On the other hand, article 71 of the Congolese Code of Criminal Procedure notes that when the penalty of criminal servitude provided for by law does not exceed two years, the accused may appear through a lawyer holding a special power of attorney, or through a special proxy approved by the judge.


The defendant has the right:

- to appear voluntarily or to refuse to appear;

- to be informed of his right to be served with the notice to summons to a regular defendant;

- to raise irregularities in the referral to the court;

- to suspect the court or tribunal by bringing an action against the court or tribunal on grounds of legitimate suspicion or suspicion on grounds of public safety;

- to request the postponement to prepare his defense;

- to be presumed innocent;

- to an impartial judge;

- to have his case heard within a reasonable time;

- to have the witnesses on his behalf examined;

- to remain silent;

- to defend himself or herself or to be defended by counsel of his or her choice, and or to free legal aid if he or she does not have the means to pay for his or her counsel;

- to request that the trial be held in closed-door when the trial substantially affects his privacy, or for legitimate and legal reasons;

- to challenge the judge on valid and legal grounds;

- to file an appeal;

- to ensure that the principle of adversarial proceedings is respected;

- to a fair trial;

- to demand respect for all the fundamental rights recognized by the Constitution of the DRC and enshrined in international legal instruments;

- to know the facts alleged against him with precision of the time, place or period of the commission of these facts without “obscure libelli”,

- to be heard in a language of his or her choice, or to be assisted by an interpreter.


In juvenile court, the child in conflict with the law has the right to be accompanied by his or her parents or guardian, and the principle of confidentiality must be respected.

Requisitions of witnesses and notification

An accused person shall have the right to have witnesses on his or her behalf examined under the same conditions as witnesses against him or her. The court or tribunal, through its bailiff, shall notify the summons to witness to a person who has heard or seen with his or her own eyes, or who otherwise knows the facts for which the accused is being prosecuted. Such notification must comply with the usual formalities provided for in Article 59 of the Code of Criminal Procedure. There is no time limit for the summons to testify. It is sufficient if it is sent before the date of the hearing.

Nevertheless, if the witness is at the trial site, he or she may be summoned to appear immediately to enlighten the court or tribunal, in accordance with articles 66 and 68 of the Congolese Code of Criminal Procedure.


In the event of the witness's refusal to appear, despite the regular summons, he may be sentenced to a maximum of one month's criminal servitude and a fine, in accordance with article 78 of the Congolese Code of Criminal Procedure. In the event of perjury, the witness must be prosecuted for perjury, and the victim may file a civil suit for compensation for the damage suffered. On the other hand, persons who are custodians by state or by profession of the secrets entrusted to them are exempt from testifying. The Child Protection Act requires that, when a child is called as a witness, he or she must be accompanied by his or her parent or guardian and assisted by a counsel, lawyer or judicial advocate.

Presence of a jury

The concept of jury is not usual in Congolese law. Nevertheless, the decision of the Tribunal is taken at the end of a deliberation in which three Judges take part, who decide together, by vote, on the follow-up to be given to the file submitted to them.

Article 41 of Organic Act No. 13/011-B of 11 April 2013 on the organization, functioning and competence of the courts of the judiciary provides that the junior judge of the lowest rank shall give his opinion first; the president last.


Decisions are taken by a majority of votes. However, in criminal matters, if more than two opinions are formed in the deliberation, the judge who has delivered the opinion least favourable to the accused is required to agree with one of the other two opinions. In private law matters, if more than two opinions are formed, the less senior, lower ranking judge is required to agree with one of the other two opinions (Article 42).

The Chamber taking a case under advisement shall indicate the date of delivery. The judgment shall be delivered within 30 days at the latest in civil, commercial or social matters and within 10 days in criminal matters.

However, the head of the court may, at the request of the chamber seized, and if the elements of the case so justify, or in cases of force majeure duly proven, extend this period by fifteen days in civil, commercial or social matters and five days in criminal matters by a reasoned order, which shall be immediately notified to the parties. In criminal matters, where the judgment or judgment is delivered in the absence of the parties and beyond the time limit without prior notification of the date of delivery to the parties, the time limit for appeal shall run from the date of service of the decision (Article 43).

The judgment

It follows from article 21 of the Constitution that any judgment shall be in writing and shall state the reasons on which it is based. It is delivered in open court. The right to appeal against a judgment is guaranteed to all. It is exercised under the conditions set by law.

The judgment contains 3 parts: the preamble, the reasons and the operative part: the decision of a court has a different name depending on the court that pronounced it: the decision of a court is called a judgment; the decision of a court is called a judgment; the decision of a court for children in conflict with the law is called a decision.

The question of the death penalty

The Constitution of the Democratic Republic of the Congo, amended by Act No. 11/002 of 20 January 2011 revising certain articles of the Constitution of the Democratic Republic of the Congo of 18 February 2006, provides in its article 16 that "The human person is sacred. The State has an obligation to respect and protect it. Everyone has the right to life, physical integrity and the free development of his personality in accordance with the law, public order, the rights of others and morals. No one may be held in slavery or in a similar condition. No one shall be subjected to cruel, inhuman or degrading treatment. No one may be compelled to perform forced or compulsory labour. »

Despite this, the death penalty remains provided for in Congolese national law, in particular by article 5 of the Penal Code,1e in the list of penalties applicable for the offences provided for. However, the DRC has adopted a moratorium on the execution of the death penalty since 2002. Consequently, when this sentence is imposed by Congolese courts, enforcement is suspended, or it is automatically commuted to life imprisonment. The Public Prosecutor's Office must in all cases initiate the appeal procedure when the accused is sentenced to death. In addition, when judicial remedies have been exhausted, including cassation, a death sentence may be the subject of a pardon.


If we analyse the various human rights instruments to which the DRC has acceded, in particular the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the United Nations Convention against Torture and Other Cruel Treatment or Punishment of 10/12/1984, In accordance with article 215 of the Rome Statute of the International Criminal Court, and in accordance with article 215 on the primacy of treaties duly ratified by the DRC, this penalty, although still contained in Congolese criminal legislation, is no longer justified and should no longer be applied by Congolese judges.

Prisoner's rights

The prisoner is an individual detained in a prison, i.e. a person incarcerated. He has certain rights, and he is subject to obligations. Before being in prison, the individual may be held in custody, in the dungeon or in the prison. Regardless of where he is detained, this individual has rights that are recognized by international and national legal instruments.

During police custody, in the dungeon or amigo, in the prison, in the detention centre, the prisoner shall enjoy all the fundamental rights proclaimed in the Constitution of the DRC, in particular Articles 11 et seq. and other international legal instruments, unless specifically restricted by law.

Detention centres

Article 5 of Ordinance No. 344 of 17 September 1965 on the prison system provides that it shall be established:

(1) a central prison in each locality where a court of first instance has its usual seat;

(2) a district prison in each locality where a district court has its usual seat, excluding the localities where a central prison is established;

(3) a police prison in each locality where a police court has its usual seat, excluding localities where a central prison or a district prison is established.


In addition, there is established in the annex to each of the prisons referred to in article 5, a detention centre. The Minister of Justice of the central government may also establish detention camps in all localities, either to avoid congestion in the central prisons or to assign detainees to general work. In centres of administrative occupation other than localities where a police court has its usual seat and in places where they temporarily reside, officials or agents who are police judges or auxiliary police judges may, with the assent of the provincial governor and the public prosecutor's office, keep detainees under their supervision and responsibility for a period not exceeding fifteen days (article 8).

According to article 9, prisons are intended to receive:

1° Individuals convicted by a judgment or judgment that has become final:

(a) the death penalty;

(b) a penalty of primary criminal servitude

(c) a subsidiary penalty of criminal servitude.

2° Individuals placed at the disposal of the government by a decision that has become final, taken:

(a) pursuant to § 6 of Section II of Book 1 of the Criminal Code;

(b) pursuant to Articles 3 and 4 of the Decree of 23 May 1896, as amended by the Decrees of 11 July 1923 and 6 June 1958 on vagrancy and begging.

3° Persons under duress by body:

(a) pursuant to article 17 of the Book 1 of the Criminal Code;

(b) pursuant to Articles 195 et seq. of Schedule 1 to the Act of 10 July 1963 laying down provisions relating to income tax.


Detention centres are intended to receive individuals referred to in Article 9, paragraphs 1 and 2, who are the subject of a judgment or arrest that has not become res judicata or a decision that has not become final, as well as preventive prisoners.

They can also be used:

1° Of a place of detention pending their being brought before the competent judicial authority, of persons who are the subject of a warrant to bring and of persons who are the subject of a report of seizure of accused persons drawn up by a judicial police officer.

2° From place of custody to:

- persons subject to a written requisition by an authority acting either pursuant to Article 52 of Ordinance No. 021 /219 of 29 May 1958 regulating the residence of the population of the constituencies, or pursuant to orders of the governors of provinces or the first mayors regulating residence in municipalities or cities;

- persons arrested pursuant to Ordinance 11-182 of 14 February 1959 on disorder on the public highway;

- persons subject to a written request from an authority acting in accordance with the decrees coordinated by the Royal Decree of 22 April 1958 on immigration police.


Detention

The guard may only incarcerate a prisoner in a prison or detention camp upon presentation of one of the following documents:

(1) A requisition in execution of judgments or judgments emanating either from the Public Prosecutor's Office or from the judge when the latter is sitting without the assistance of the Public Prosecutor's Office. This requisition must contain a statement that the judgment or ruling has become res judicata.

(2) A requisition in execution of a judgment rendered by a customary court, or an extract from such a judgment. Such requisition or extract must contain a statement that the judgment has acquired the force of res judicata. Where the judgment has been rendered by a chiefdom, sector, centre or commune court, the requisition or extract must be endorsed by the president of the territory or town court. The guard will only incarcerate if there is no customary constituency prison in the community.

(3) A court decision ordering the internment of a vagrant or beggar placed at the disposal of the government. Mention must be made of this decision that it has become final.

(4) A decision of the authorities referred to in Article 14, i, of the Criminal Code ordering the internment of a habitual offender, placed at the disposal of the government.

(5) A ministerial order revoking conditional release.

(6) A report of the arrest of a convicted person or internee who has escaped, when the judgment or sentence has become final or when the internment decision has become final.

(7) A constraint issued by the competent authority pursuant to Articles 159 et seq. of Schedule 1 to the Act of 10 July 1963 laying down provisions relating to income tax.

(8) A transfer decision taken by the custodian of the remand centre in accordance with section 35.


The guard shall immediately send a certificate of delivery of the prisoner to the authority that ordered the incarceration. Upon receipt of any prisoner, he shall immediately be entered in the prison register (Article 31). This register contains ten columns where are respectively mentioned:

(1) a serial number;

(2) the surnames, forenames, nicknames and sex of the prisoner;

(3) his profession;

(4) the territorial administrative district from which he or she originates and the locality or district where the prisoner was authorized to reside at the time of his or her arrest;

(5) the date of its entry;

(6) the designation and date of the act under which the incarceration takes place;

(7) the length of the sentence or internment to be served;

(8) the date of exit;

(9) the signature of the released person or, if the latter cannot sign, that of the guardian;

(10) any relevant observations relating to the prisoner, such as the date of his transfer to another locality, the date of his early relaxation and the statement of the reason for this measure, the date of his death, etc.


The prison register is quoted and initialled on the first and last pages by a judge of the district court. Prisoners are searched upon entry by a person of their gender designated by the guard. The latter seizes the objects of which the prisoner is a carrier, including cash. An inventory of these objects shall be drawn up in the presence of the person concerned and signed by him and the guardian. If the person concerned does not know how to sign, he or she affixes the imprint of his or her left thumb to the inventory. The custodian is responsible for the conservation of the objects as well as the cash. The guard may at any time, when he considers it useful, have the detainees searched and seize what they are holding unlawfully or in violation of the regulations (Article 32).


In localities where a central or provincial government doctor resides, each prisoner is subject to a medical examination upon entry to the prison, the main purpose of which is to screen for communicable diseases and possibly isolate patients and suspects. Visits are made to the prison infirmary, and if there is no prison, to the nearest medical centre. If necessary, the doctor shall prescribe any prophylactic measures he considers necessary or useful, such as vaccination and deworming. The doctor shall record the measures taken on the detainee's medical file, as provided for in Article 16. The certificate shall also mention the physical fitness of the prisoner in terms of the work that may be imposed on him.


Detainees are, as a general rule, confined in premises intended for joint imprisonment. Women are separated from men. Juveniles under 18 years of age shall only be imprisoned in prisons if there is no State court of first instance, custody and education facility within the jurisdiction of the State. In the absence of such an institution, they will be held in a special ward. The custodian may decide that such prisoner shall be confined in one of the premises assigned to individual imprisonment. In the event of congestion, he may place several prisoners in the same room.

To the extent that facilities permit, the custodian shall allocate prisoners in such a way as to group them separately: (1) prisoners sentenced by a trial or judgement not yet final, to a penalty of criminal servitude not exceeding two months;

(2) prisoners sentenced by a judgment or judgment not yet final and binding to a penalty of criminal servitude of more than two months;

(3) vagrants and beggars made available to the government by a decision that has not become final;

(4) persons placed in pre-trial detention pursuant to Chapter III of the Code of Criminal Procedure;

(5) persons detained pending questioning by the competent judicial authority and those who have been the subject of a warrant to bring them in;

(6) the persons referred to in 2° of the second paragraph of section 10 (section 44).

On the advice of the Public Prosecutor's Office and for the time determined by it, the detainees referred to in 4° and 5° of Article 44 may be isolated from each other. Prisoners entering the prison and undisciplined prisoners may, as a precautionary measure, be placed in solitary confinement in a special area called the security area.


Regulation within prisons

Prohibition of individual or collective noises and acts disturbing good order

All shouting and singing, all noisy group meetings, and generally all individual or collective acts likely to disturb good order, are prohibited to detainees. The same applies to any complaints, requests or petitions submitted collectively. All donations, trafficking, or exchanges are prohibited between prisoners.

Right to buy tobacco and hygiene in prison

Smoking is permitted within the limits set out in each internal regulation. The custodian may offer the tobacco for sale in the canteen, if he considers it appropriate. The right to buy tobacco is reserved only for prisoners of good conduct.


Every prison, detention camp and remand centre shall have hygienic facilities and, as far as possible, showers and ovens to be disinfected. The internal regulations prescribe all measures relating to the cleanliness and maintenance of premises, sleeping and clothing, as well as the toilet of prisoners. As they enter, the inmates go to the shower. Their clothing is inspected and disinfected; if it carries parasites, it is treated with a suitable product or placed in an oven (article 49). In order to enable detainees to present themselves properly and maintain self-respect, the internal regulations must provide for measures to facilitate the proper care of the hair and beard (article 50).

Detainees' clothing

Prisoners in prisons and detention camps are dressed in uniform. The warden may prescribe that inmates of remand homes or certain categories of inmates be dressed in a uniform. The clothing must be appropriate to the climate and sufficient to keep the inmate healthy. The outfit must in no way be degrading or humiliating. Clothing must be kept in a constant state of cleanliness and maintenance.

Right to walk

Detainees confined in the security sector or in the isolation cell shall be allowed half an hour's walk or physical exercise twice a day, in the morning and afternoon, within the confines of the prison, detention camp or remand centre. The guard may deprive detainees of it if they fear that they will cause disorder.

Right to a doctor and nurses

The minister of the central government responsible for public health appoints a doctor to serve prisons, detention camps and remand centres established in the territory of the city of Leopoldville. The provincial governor or his delegate shall appoint a doctor to serve prisons, detention camps and remand centres established in the territory of the province. Depending on the size of the prison population, the doctor visits the institution either daily or once or several times a week. The minister of the central government responsible for public health shall assign to each prison, detention camp and remand centre established on the territory of the city of Leopoldville, one or more nurses. The provincial governor or his delegate shall assign one or more nurses to each prison, detention camp and remand centre established in the territory of the province, depending on the size of the prison population. Nurses are placed under the technical control and supervision of the doctor, and under the administrative control and direction of the warden.

Medical examination of patients

The medical examination of patients takes place daily at the prison, the remand centre and the detention camp if the conditions of the medical service allow it. Every morning upon waking up, the guard registers prisoners who declare themselves sick in the medical check-up book. Patients are taken to the medical examination at the time set by the doctor. Prisoners who have declared themselves ill and who have not been recognised as such by the doctor may be punished by disciplinary action.

The doctor is required to go to the prison whenever he or she is urgently requested. The prescriptions relating to the treatment, diet, exemption or capacity for work of patients shall be recorded by the doctor in a special register and on the medical file of each prisoner. The medical form also mentions any vaccinations, radioscopies, serological or bacteriological examinations that may have been carried out. If the detainee is transferred to another institution, his medical record follows him. Special provisions for prisoners with contagious diseases and the right to transfer sick prisoners Detainees are cared for in the dispensary or infirmary of the prison, the attached remand centre or the detention camp. A special unit to receive prisoners with contagious diseases will be set up in the prisons, attached remand centres and detention camps.


If the doctor considers that, because of the seriousness or nature of the illness, it is impossible to treat the prisoner in the prison, detention camp or remand centre, he or she shall be taken to the nearest medical or hospital training centre. At the medical or hospital training, the detainee is placed in a separate room; his guard is provided by the local police. If the patient thus transferred is an accused person, the warden is required to notify the judicial authority and the territorially competent inspector responsible for the management of the prison inspection section of the transfer immediately.

Right to food

Detainees are provided with food as close as possible to their usual food. This food must be of sufficient value to maintain the inmate in perfect physical condition. It follows from article 62 that prisoners eat three meals a day and the use of alcoholic beverages is strictly prohibited, unless prescribed by a doctor.

The custodian supervises or has supervised the preparation and distribution of food.

Where it is impossible to prepare certain rations at the prison, remand centre or detention camp either because the number of prisoners for whom they are intended is insufficient or because the necessary equipment is lacking, the guard may, within the limits of the maximum prices, provide the prisoners with the rations in question with food prepared outside. The mandate for the payment of invoices relating to the purchase of food prepared outside the prison can only be made after approval of their amount by the territorially competent inspector in charge of the management of the inspection section of the prison service.

Compulsory work (articles 64 and 65)

Work is compulsory for prisoners in prisons and detention camps. The work of minors under 19 years of age held in prisons is governed by special provisions. Detainees in remand centres may only be put to work if they so request. However, they are required to maintain in perfect condition the premises they occupy, their clothing effects and the equipment and objects at their disposal. The internal regulations determine the work to which convicts in prisons and detention camps are subject.

Bail

Bail is granted only to convicted offenders who have shown proof of change. When the person concerned has declared that he accepts conditional release and has indicated, if necessary, the place where he intends to settle upon his release from prison, he will be issued, at the time of his release, a release permit which he will be required to represent at any request of the administrative or judicial authorities. Any prisoner shall be released upon expiry of the validity of the document justifying his entry in the prison or accommodation register.



See Criminal Justice Systems Around the World

QUICK FACTS

  • Prison population total (including pre-trial detainees / remand prisoners) - c.30,000 at January 2004 (criminal justice experts, D.R.Congo)
  • Prison population rate (per 100,000 of national population) - c.57 based on an estimated national population of 52.8 million at mid-2003.

Pre-trial detainees / remand prisoners (percentage of prison population) - A 2006 United Nations report found that 70-80 percent of prisoners detained nationwide were in pre-trial detention.

  • Female prisoners (percentage of prison population) 3.2% (January 2004 - of prisoners in the main prison in Kinshasa)
  • Number of establishments / institutions 213 in 2007 but fewer than 100 are functioning, according to the director of CPRK, which is the central prison in the capital Kinshasa)
  • Occupancy level (based on official capacity) July 2007 - 270.5% in the main prison in Kinshasa, there being 4,057 prisoners and an official capacity of 1,500
  • Total prison population (including pre-trial detainees / remand prisoners): 20,550 (2015)
  • Percentage of pre-trial detainees/remand prisoners: 73.0% (2015)
  • Percentage of women in prison: 3.0% (2010)
  • Number of prisons: 120 (2013)
  • Prison overcrowding is estimated at 20,000 people according to the UN (2016). For example, in September 2012, Makala Central Prison in Kinshasa had 6,078 inmates, four times the actual capacity of the prison, which is 1500. Goma Central Prison had 1,208 inmates, eight times the prison's capacity of 150. The Minister of Justice announced in early 2016 that the DRC would release 2000 prisoners in order to reduce prison overcrowding


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