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==Rights of the accused at the police stage==
==Rights of the accused at the police stage==
Revision as of 12:53, 4 August 2019
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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. 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 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;
- Act No. 024-2002 of 18 November 2002 on the Military Criminal Code;
- Act No. 06/018 of 20 July 2006 on the suppression of sexual violence in the DRC ;
- Act No. 09/001 of 10 January 2009 on the protection of children ;
- The decree of 21 June 1937 on the rehabilitation of convicted persons ;
- Ordinance 344 of 17 September 1965 on the Penitentiary System ;
- Ordinance-law n°82-017 of 31 March 1982 relating to proceedings before the Supreme Court of Justice
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)
- 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
- The Rome Statute of the International Criminal Court; (ratified by the Democratic Republic of Congo on 11 April 2002)
- The Rules of Procedure and Evidence of 9 September 2002;
- The International Covenant on Civil and Political Rights of 19 December 1966; (ratified by the DRC on 1 November 1976)
- The International Convention on the Rights of the Child; (ratified by the DRC on 27 September 1990)
- 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)
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.
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.
- 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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