Togo, officially the Togolese Republic, is a West African country with Lomé as its capital. It is one of the smallest African states, bordered to the north by Burkina Faso, to the south by the Gulf of Guinea, to the east by Benin and to the west by Ghana. The population is estimated at about 7.6 million in 2017.
On 27 September 1992, the Constitution of the Fourth Togolese Republic was adopted by referendum, which enshrines a number of provisions on the rights, freedoms and duties of citizens in Title II "Rights, freedoms and duties of citizens" (articles 10 to 50) and affirms the principles of separation of powers and independence of the judiciary and Title VIII "Judicial power" (articles 112-129). The fundamental objective of this Constitution was to include Togo in the circle of democratic states that respect human rights and the rule of law.
The judicial organisation in Togo
The judicial organization in Togo, like its law, is influenced by French law. Togo's judicial organization is composed of two orders, the judicial order and the administrative order (Article 119 of the Constitution). The judicial organisation in Togo was created by Ordinance No. 78-35 of 7 September 1978 on the judicial organisation, as amended successively.
According to article 1 of Order No. 78-35, justice is administered by two categories of ordinary courts: "ordinary courts of common law" and "specialized ordinary courts". The ordinary courts of common law are:
-The Supreme Court (established by articles 120 to 125 of the Constitution and governed by Organic Law No. 97-005 of 6 March 1997 on the organization and functioning of the Supreme Court);
-The Courts of Appeal, and -The Courts of First Instance.
The specialized ordinary courts are:
-Labour courts, and -Juvenile courts
In addition, there are also two categories of special courts, namely the Security Court (governed by Act No. 81-006 of 30 March 1981 on the Code of Military Justice) and the Special Court for the Punishment of the Misappropriation of Public Money (governed by Order No. 72-018 of 13 September 1972 establishing a special court for the punishment of the diversion of public funds).
The ordinary courts of common law - namely the Supreme Court, the courts of appeal and the courts of first instance - are organised into chambers:
-The Supreme Court sits in administrative and judicial chambers;
-The courts of appeal sit in civil, commercial and social chambers, correctional chambers, administrative chambers, indictments and assizes courts, and
-The courts of first instance sit in civil chambers, commercial and correctional chambers.
The specialized ordinary courts are not organized into chambers.
Type of legal system
The criminal procedure in Togo has features of the adversarial and inquisitorial systems. First, in the first phase, the procedure is inquisitorial in nature: it is indeed the police and investigating magistrates who seek and collect evidence. The procedure is in principle written and secret. Then, in the second phase of the judgment, the procedure is more adversarial, public and oral. The accused defends himself against the public prosecutor, who represents the interests of society that have been harmed by the commission of a criminal offence.
The sources of the rights of the defence
National sources of the rights of the defence
One of the main sources of the rights of defence is the Togolese Constitution, in particular its Title II "Rights, freedoms and duties of citizens" (articles 10 to 50). They include:
- protection against arbitrary detention (Article 15);
- the right to a lawyer (Article 16);
- the presumption of innocence (Article 18), - the right to a fair trial (Article 19)
The protection of the rights of the defence is also ensured by the Criminal Code (Act No. 2015-10 of 24 November 2015 on the new Criminal Code), as well as by the Code of Criminal Procedure (Act No. 83-001 of 2 March 1983), as well as their implementing regulations. Among the national sources, we can also mention:
- Act No. 2009-011 of 24 January 2009 on the abolition of the death penalty in Togo - Organic Act No. 97-005 of 6 March 1997 on the organization and functioning of the Supreme Court - Order No. 78-35 of 7 September 1978 on judicial organization, and - Act No. 2013-010 of 27 May 2013 on legal aid in Togo.
International sources of the rights of the defence
The protection of the rights of the defence is ensured by the following international sources:
- the Universal Declaration of Human Rights of 10 December 1948 (included in the preamble to the Constitution of Togo)
- the International Covenant on Civil and Political Rights adopted on 16 December 1966 in New York by the United Nations General Assembly (included in the preamble to the Constitution of Togo)
- the African Charter on Human and Peoples' Rights adopted on 28 June 1981 by the Organisation of African Unity (included in the preamble to the Constitution of Togo), whose article 7 guarantees the right to a fair trial and access to justice
- the African Charter on the Rights and Welfare of the Child adopted by the Organization of African Unity on 11 July 1990, and
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted on 10 December 1984 by the United Nations General Assembly.
The organs of the criminal trial
The judicial police
Composition: Under Book 1 - Title I - Chapter I of the Code of Criminal Procedure of Togo, the judicial police is exercised under the direction and supervision of the Public Prosecutor. The judicial police understand: judicial police officers, judicial police agents, and officials and agents to whom certain judicial police functions are assigned by law.
Judicial police officers: Judicial police officers are responsible for identifying offences under criminal law, gathering evidence and searching for perpetrators until information is available (article 13 of the Code of Criminal Procedure). They receive complaints and denunciations, conduct preliminary investigations and exercise the powers conferred on them in the event of flagrant crimes and offences (article 16 of the Code of Criminal Procedure). They have the right to request the direct assistance of the police force for the execution of their mission.
Judicial police officers are required to inform the Public Prosecutor without delay of crimes and offences of which they are aware. As soon as their operations are completed, they must send him directly the original and a certified copy of the minutes they have drawn up; the seized objects shall be made available to him.
The following are judicial police officers: 1) The Public Prosecutor and his deputies
2) The Judges in charge of the Public Prosecutor's Office
3) The Investigating Judges
4) Gendarmerie Officers, Brigade Commanders and Heads of Gendarmerie Posts
5) The Director of National Security and his deputy
6) The Prefects and Deputy Prefects
7) The Mayors
8) The Police Commissioners and Heads of Police Posts
9) The Gendarmerie NCOs, Police Officers and Assistant Police Officers.
Judicial police agents: The mission of judicial police agents is to assist judicial police officers, to report to their superiors all crimes, offences and contraventions of which they are aware and to record, in accordance with their leaders' orders, offences against criminal law and to collect all information with a view to discovering the perpetrators of these offences (article 20 of the Code of Criminal Procedure), all within the framework and in the forms provided for by their own laws.
Gendarmes and civil servants who do not have the status of judicial police agents shall be considered as judicial police officers. Officials and agents in charge of certain judicial police functions: Officials and agents of public administrations and services to whom special laws grant certain powers of judicial police exercise these powers under the conditions and within the limits set by the laws (Article 21 of the Code of Criminal Procedure).
The Public Prosecutor's Office
The provisions concerning the Public Prosecutor's Office can be found in Book 1 - Title I - Chapter II of the Code of Criminal Procedure.
The Public Prosecutor's Office carries out public action and requires the application of the law. He is a party to the criminal proceedings and as such defends the interests of the company that have been harmed by the commission of an offence. Before the Court of First Instance, the Public Prosecutor’s Office is represented by a Public Prosecutor. At the level of the Court of Appeal and the Assize Court, the Public Prosecutor's Office is represented by a General Prosecutor.
The Public Prosecutor receives complaints and denunciations and assesses the follow-up to be given to them according to the particularities of the case (principle of the desirability of prosecution). In the event of a discontinuation without further action, it shall notify the complainant and inform him of the reason for the discontinuation. The Public Prosecutor shall carry out or arrange for the carrying out of all acts necessary for the investigation and prosecution of offences under criminal law. To this end, he shall direct the activities of the officers and agents of the judicial police within his jurisdiction.
The investigating judge and the indictment division
The provisions governing the investigating judge are found in Book 1 - Title I - Chapter III of the Code of Criminal Procedure. The investigating judge is responsible for investigating the case before the trial. It is referred to it by an indictment of the Public Prosecutor or by a complaint with a civil action. The Indictments Chamber is a panel of a Court of Appeal, which hears appeals against the decisions of the investigating judges.
The trial courts
The trial courts in criminal matters are:
- The correctional chambers of the courts of first instance, competent to judge contraventions and offences at first instance
- the sitting courts, competent to judge crimes at first instance
- the courts of appeal, and
- the Supreme Court.
Legal aid situation
The principle of equitable access to justice, as set out in the international instruments ratified by Togo, has been introduced into the domestic legal system through the founding texts of the judicial institution.
Thus, the free provision of the public service of justice was enshrined in Ordinance No. 78-35 of 7 September 1978 on the organization of the judiciary in Togo. This ordinance established the possibility of a beneficiary of legal aid ("legal aid"), but the implementing decree has not yet been adopted.
It is in this context that the government has had Law No. 2013-010 of 27 May 2013 on legal aid in Togo adopted and promulgated. Article 2 of this law defines legal aid as "financial assistance granted by the State for proceedings before a court and/or in matters of settlement". The latter may be total or partial, depending on the applicant's income.
Chapter II of this law provides that legal aid may be granted to "natural persons of Togolese nationality whose resources are insufficient to assert their rights in court or to pursue the execution of any enforcement acts and procedures obtained without the benefit of this assistance" (article 4).
Chapter III details the bodies in charge of this assistance: the National Legal Aid Council and the Legal Aid Office.
The procedures for the admission and withdrawal of aid are set out in Chapters VI and VII respectively of the said Act.
The beneficiary of legal aid is entitled to the assistance of a lawyer (Article 41), whose fees are borne, in part or in whole, by the State. In addition, legal aid covers all costs, fees and taxes of all kinds relating to actions, proceedings, hearings, procedures and acts of all kinds necessary to achieve the purpose for which legal aid was granted (Article 50). The modalities for the application of this law must be determined by an implementing decree which has not yet been adopted, however, in the absence of clear criteria for assessing indigence and fixing the fees of public defenders.
A study mission composed of lawyers, magistrates, government representatives and staff of the Justice Sector Support Programme visited Dakar, Senegal, from 8 to 15 May 2016. The mission of this team was to collect all relevant information, meet with legal aid stakeholders, study the system of operation and administration of legal aid in Senegal with a view to appropriating the mechanism, and acquire the good practices and technical skills necessary to complete the process of effective implementation of legal aid in Togo. It will also make it possible, above all, to establish the criteria for indigence and those relating to the calculation of lawyers' fees. These criteria are essential for the preparation of the implementing regulations for the Legal Aid Act. Nevertheless, Togo has few lawyers. According to the Togolese Bar Association, in 2015, 155 lawyers were registered with the Bar and there were 9 trainee lawyers. Most lawyers are based in law firms in Lomé, the capital.
The rights of the accused
Access to justice is free of charge. Under article 10, paragraph 1, of Ordinance No. 78-35 of 7 September 1978, "Justice is free of charge, subject to stamp and registration duties, the fees of judicial officers and the costs incurred for the investigation of trials or the enforcement of judicial decisions. These costs shall be borne by the unsuccessful party, the advance shall be made by the party to whose benefit they are incurred.
In criminal matters, when the civil party initiates public proceedings by direct summons, it is required, if it has not obtained legal aid and under penalty of inadmissibility of its complaint, to deposit at the registry the sum fixed by order of the investigating judge (article 71 of the Code of Criminal Procedure). A tendency to set excessive costs in order to discourage complainants in certain types of cases has been identified, whereas, at present, Togolese litigants are not eligible for legal aid. Other costs incurred in the course of the procedure shall be borne by the Treasury.
Principle of legality and non-retroactivity of criminal law
Article 19 of the Constitution provides that "no one may be convicted of acts that did not constitute an offence at the time they were committed". Article 3 of the Criminal Code provides that "no one may be prosecuted or punished for a crime or offence the elements of which are not defined by law, or for a contravention the elements of which are not defined by regulation. No one may be punished with a penalty that is not provided for by law, if the offence is a crime or misdemeanour, or by regulation, if the offence is a contravention.
The right to be tried within a reasonable time
Under Togolese law, the right of every person to have his case heard and decided within a reasonable time is enshrined in article 19, paragraph 1, of the Constitution. Indeed, the reasonable length of the proceedings preserves the credibility of the justice system and its effectiveness.
According to a report prepared in 2012 by the Inspectorate General of Judicial and Penitentiary Services, more than 70% of prisoners in prisons are pre-trial detainees . In criminal cases, proceedings last at least 36 months and can last up to 7 years. According to article 112 of the Code of Criminal Procedure,preventive detention is an exceptional measure and, when ordered, certain rules must be observed with regard to its duration.
The abolition of the death penalty
The death penalty was abolished by Act No. 2009-011 of 24 January 2009 on the abolition of the death penalty in Togo. Togo is the 15th member country of the African Union and the 94th country in the world to abolish the death penalty for all crimes.
The prohibition of arbitrary arrests
Article 15 of the Togolese Constitution prohibits arbitrary arrest and detention. Anyone who is arrested without a legal basis or detained beyond the time limit for police custody may, at his request or at the request of any interested party, bring the matter before the judicial authority which decides on the legality or regularity of the measure.
The right to be examined by a doctor
Article 16 of the Constitution provides that the accused or detainee has the right to be examined by a doctor of his or her choice.
The time limit for police custody
Police custody is regulated in the Code of Criminal Procedure by articles 52 and next. Its duration varies according to the gravity of the infringement and its complexity. In principle, it is 48 hours, renewable once, and may, exceptionally, go beyond that, up to 15 days, in the case of complex cases (drugs with foreign ramifications), pursuant to articles 52 of the Code of Criminal Procedure and 126 of Act No. 98-008 of 18 March 1998 on drug control.
However, it must be noted that very often judicial police officers greatly exceed this period of police custody before the defendant is brought before the public prosecutor. The exception (beyond 48 hours) often becomes the rule. This situation is most often due to non-compliance with the provisions of articles 11, 18, 44 and 52 of the Code of Criminal Procedure, which require judicial police officers, in the context of their criminal or correctional proceedings, to inform the Public Prosecutor or the judge in charge of the Public Prosecutor's Office. This obligation to provide information is all the more imperative when it comes to taking or extending police custody measures. The serious consequence of the lack of information is that police custody measures are completely beyond the control of the prosecutor or the judge in charge of the public prosecutor's office.
Presumption of innocence
This principle is provided for in article 18 of the Constitution, which states that "Every accused person shall be presumed innocent until proven guilty following a trial that provides him with the guarantees necessary for his defence. The judiciary, as guardian of individual freedom, ensures compliance with this principle under the conditions provided for by law.
The principle of presumption of innocence is based on article 11 of the 1948 Universal Declaration of Human Rights (enshrined in the Preamble to the Togolese Constitution), which provides that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law in a public trial at which he has been afforded all the guarantees necessary for his defence....".
The rights of the defence
The rights of the defence include the right to be informed of the charges against you, to have access to your file, to be represented by a lawyer, to have prosecution and defence witnesses heard, and to have the assistance of an interpreter, if necessary. In Togo, article 11, paragraph 1, of Ordinance No. 80-11 of 9 January 1980 on the exercise of the legal profession provides that: "Lawyers shall be grouped into a bar association per court of appeal administered by a council of the Bar elected for three years...".
In practice, and despite the possibility of creating a bar in Kara, where the second court of appeal is located, there is only one bar based in Lomé, the city where lawyers are concentrated. Apart from criminal cases in which lawyers can be appointed, it is therefore difficult for litigants to be assisted by a lawyer. The absence of a bar and therefore of lawyers outside Lomé is likely to hinder the rights of the defence.
Information on the inculpation charges
According to article 17 of the Constitution, "Any arrested person has the right to be immediately informed of the charges against him/her". Thus, the accused must be informed of the nature and cause of the charge against him or her, in detail, in a language he or she understands, and must have the time and facilities necessary to prepare his or her defence. In practice, the accused is rarely informed of the charges against him or her at the time of arrest. It is only at the level of the public prosecutor and the investigating judge that notification traditionally takes place.
The right to have witnesses heard
The accused shall have the right to call witnesses for the prosecution and the defence under the same conditions. However, this right is not absolute and does not allow the summoning or questioning of any witness for the prosecution or defence. It may be limited, if necessary, in the interest of the proper administration of justice. Thus, the defendant obviously cannot call false witnesses.
Pre-trial criminal proceedings
The Togolese criminal system has three categories of offences, defined in article 3 of the Criminal Code:
- Fines: these are the least serious offences punishable by police penalties: criminal work for a period not exceeding two months and/or a fine not exceeding 30,000 francs.
- offences: these are an intermediate category of offences punishable by criminal penalties of up to five years' imprisonment and/or a fine fixed by law for each offence, and
- crimes: these are the most serious category of offences, punishable by criminal penalties of imprisonment (imprisonment between five and twenty years). The death penalty was abolished by Act No. 2009-011 of 24 January 2009 on the abolition of the death penalty in Togo. The rules of criminal procedure to be followed before the trial will depend on these categories of offences.
Investigations in the criminal procedural system in Togo
There are two types of investigations: the flagrante delicto investigation (articles 43 to 60 of the Code of Criminal Procedure) and the preliminary investigation (article 61 of the Code of Criminal Procedure). The flagrante delicto investigation takes place if certain conditions are met (as to the nature of the facts or the circumstances brought to the attention of the judicial police officer). Otherwise, there is a preliminary investigation.
The investigation of flagrante delicto
A crime or flagrant offence is defined as a crime or misdemeanour that is currently being committed or has just been committed. There is also a flagrant crime or misdemeanour when, in a time very close to the action, the suspected person is prosecuted by public clamour or is found in possession of objects that show traces or signs of involvement in the crime or misdemeanour (article 43 of the Code of Criminal Procedure). Articles 43 to 60 of the Code of Criminal Procedure set out the powers exercised by judicial police officers in flagrante delicto investigations. The notified judicial police officer must inform the Public Prosecutor and go to the scene of the offence. It then carries out the necessary investigative acts, more extensive than in preliminary investigation, in particular with regard to the carrying out of searches (with coercion and without consent). It may subsequently summon persons and place them in police custody for a maximum period of 48 hours under ordinary law.
The preliminary investigation
In the context of the preliminary investigation (article 61 of the Code of Criminal Procedure), as long as there is no flagrante delicto, all these steps can also be carried out by the judicial police officer. Indeed, article 61 of the Code of Criminal Procedure provides that "the provisions of the previous chapter [on the investigation of flagrante delicto] are applicable to the preliminary investigation". Articles 43 to 60 of the Code of Criminal Procedure therefore apply to the preliminary investigation. Nevertheless, where a search is necessary, the consent of the person at whose home it is carried out must be required.
The investigating judge
Preparatory investigation is mandatory in matters of crime and optional in matters of misdemeanour (article 62 of the Code of Criminal Procedure). The investigating judge has the power to charge any person who has taken part, as perpetrator or accomplice in the acts referred to him/her (article 63 of the Code of Criminal Procedure).
The investigating judge may only inform after having been informed by an indictment of the Public Prosecutor or by a complaint with a civil action.
The investigating judge hearing the case shall carry out all acts of information which he considers useful for establishing the truth. If it is unable to carry out all the investigative measures itself, it may issue letters rogatory to judicial police officers so that they may carry out the necessary information measures under certain conditions (article 64 of the Code of Criminal Procedure).
The constitution of a civil party
At any time during the investigation, any person claiming to have been harmed by a crime or misdemeanour may file a civil suit with the competent investigating judge (articles 68 and 70 of the Code of Criminal Procedure). The latter communicates the complaint to the Public Prosecutor who must issue an indictment, against named or unnamed persons, within 48 hours.
Transportation, searches and seizures
Pursuant to article 75 of the Code of Criminal Procedure, the investigating judge may travel to the premises to make any relevant findings or carry out searches. He shall give notice thereof to the Public Prosecutor, who may accompany him. Searches are carried out in all places where objects may be found whose discovery would be useful for the manifestation of the truth. All seized objects and documents shall be immediately inventoried and placed under seal.
The hearing of witnesses
The investigating judge may summon before him all persons whose testimony seems useful to him. Witnesses take an oath to tell the whole truth, nothing but the truth. Children under the age of 16 are heard without taking an oath.
Any person summoned to be heard as a witness is required to appear and take an oath (subject to the provisions of the Criminal Code protecting professional secrecy). If the witness does not appear, the investigating judge may, at the request of the Public Prosecutor, compel him to do so by the police.
Questions and confrontations
At the first appearance, the investigating judge shall establish the identity of the accused, expressly inform him of each of the facts imputed to him and warn him that he is free not to make any statement. The detained accused may immediately after the first appearance communicate freely with his or her counsel. No restrictions may be placed on it at any time during detention, either before or after trial. The accused and the plaintiff may not be heard or confronted unless they expressly waive it only in the presence of their counsel or duly summoned.
Warrants and their execution
The investigating judge may, as the case may be, issue a warrant for appearance, bringing, arrest or detention. The warrants are enforceable throughout the territory of the Togolese Republic. The purpose of the appearance warrant is to give the accused a formal notice to appear before the investigating judge on the date and at the time indicated by the warrant. The investigating judge shall immediately question the accused person who is the subject of an appearance warrant.
The warrant to bring is the order given by the judge to the police to immediately bring the accused before him.
The warrant of detention is the order given by the judge to the chief supervisor of the remand centre to receive and detain the accused.
The arrest warrant is the order given to the police to search for the accused and take him to the arrest house indicated on the warrant, where he will be received and detained.
Preventive detention is an exceptional measure, applicable in the context of the preparatory investigation, governed by articles 112 to 124 of the Code of Criminal Procedure. It is up to the investigating judge to decide on the placement in pre-trial detention, under the supervision of the indictment division of the Court of Appeal (appeal period of three days from the date of notification of the decision), if the facts are punishable by a prison sentence of more than three months (article 110 of the Code of Criminal Procedure).
It is important to note that the duration of preventive detention is not limited by the Code of Criminal Procedure, except in two cases: - In criminal matters, where the maximum penalty provided for by law is less than two years' imprisonment, an accused person domiciled in Togo may not be detained more than ten days after his first appearance before the investigating judge, if he has not already been sentenced either for a crime or to a sentence of more than three months without suspension for ordinary offences. - In all other cases, as long as the duration of preventive detention reaches half of the maximum penalty and the accused is a first offender.
The Code of Criminal Procedure provides for the possibility of requesting release at any time for the accused, his counsel or the Public Prosecutor. In these cases where release is not a right, under article 119 of the Code of Criminal Procedure, it may be subject to specific obligations set by the judge, such as:
1- the payment of a bond to guarantee the payment of civil damages and legal costs or the representation of the accused.
2- the obligation to reside in a specific place
3- the prohibition to frequent certain places or establishments.
4- the exercise of regular work
5- the obligation to undergo medical treatment or detoxification,
6- the temporary suspension of the right to drive a motor vehicle,
7- the temporary suspension of a hunting licence or a weapons licence.
The Letter of Request
Letters rogatory are governed by articles 125 to 130 of the Code of Criminal Procedure. The investigating judge may, by letter rogatory, request any competent judicial police officer within his jurisdiction or any investigating judge, in the case of acts to be performed outside his jurisdiction, to carry out such acts of information as he considers necessary in the places subject to the jurisdiction of each of them. The
Letter of Request shall indicate the nature of the information that is the subject of the proceedings. It shall be dated and signed by the magistrate who shall issue it and bear his seal. It may only prescribe investigative measures directly related to the prosecution of the offence in question. Judges or judicial police officers appointed for the purpose of execution shall exercise, within the limits of the Letter of Request and within the limits of Article 126, paragraph 2 et seq. of the Code of Criminal Procedure, all the powers of the investigating judge.
The expertise is governed by articles 131 to 142 of the Code of Criminal Procedure. Any investigating or trial court in the event of a technical question may, either at the request of the Public Prosecutor's Office or of its own motion, or at the request of the parties, order an expert report. Where the investigating judge considers that he or she should not grant a request for expertise, he or she must issue a reasoned order. The experts shall carry out their mission under the supervision of the investigating judge or magistrate appointed for that purpose by the court that ordered the expertise.
Nullity of information
The nullity of the information is established in articles 143 to 147 of the Code of Criminal Procedure. If the provisions relating to the conduct of an interrogation or the right of defence are not respected, the acts are annulled. The annulled acts are removed from the information file and filed at the registry of the Court of Appeal. It is forbidden to draw any information from it against the parties to the debate, under penalty of forfeiture for judges and disciplinary sanctions for defenders.