Congo, Democratic Republic of the - Revision history

IBJadmin: /* Bail */

2019-08-05T08:14:09Z

Bail

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	==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.

IBJadmin: /* Prisoner's rights */

2019-08-05T08:13:11Z

Prisoner's rights

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IBJadmin: /* The trial */

2019-08-04T17:32:21Z

The trial

← Older revision		Revision as of 19:32, 4 August 2019
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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.		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==		==Prisoner's rights==

IBJadmin: /* The trial */

2019-08-04T17:30:09Z

The trial

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	==The trial==		==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.

	==Prisoner's rights==		==Prisoner's rights==

IBJadmin: /* Remedies for preventive detention */

2019-08-04T17:28:06Z

Remedies for preventive detention

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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.		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 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.

			'''''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 trial==

IBJadmin: /* Pre-trial detention */

2019-08-04T17:26:48Z

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.		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.		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.

IBJadmin: /* Pre-trial detention */

2019-08-04T17:26:37Z

Pre-trial detention

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IBJadmin: /* Rights of the accused at the police stage */

2019-08-04T10:53:56Z

Rights of the accused at the police stage

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	==Rights of the accused at the police stage==		==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==		==Pre-trial detention==

IBJadmin: /* Legal Aid System */

2019-08-04T10:50:49Z

Legal Aid System

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	==Legal Aid System==		==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==		==Rights of the accused at the police stage==

IBJadmin: /* Rights of the accused at all times */

2019-08-04T08:19:38Z

Rights of the accused at all times

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	==Rights of the accused at all times==		==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==		==Legal Aid System==