Sierra Leone

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Legal Resources for Cape Verde

Cape Verde Constitution 1980 (rev. 1992) ^[1]

E-Learning Resources

eLearning Courses for Criminal Defense lawyers

Background

Sierra Leone is a West African country that sits on the coast of the Atlantic Ocean. It has an estimated population of over 6,000,000. As a republic, Sierra Leone had a directly elected unicameral Parliament, and a directly elected President.
Despite a recent civil war, and the restoration of the democratic government, the 1991 Constitution of Sierra Leone remains intact, with the Criminal Procedures Act of 1965, handling criminal matters.
There are four major provinces known as the Northern Province, Eastern Province, Southern Province, and the Western Area. Sierra Leone is a democratic country, and representatives are elected onto the district council to represent the people residing in that particular province. The three provinces are divided into twelve districts, and the districts are then divided into 149 chiefdoms. The Western Area rural district is not broken up into twelve separate districts. Six municipalities also have councils.
Freetown is the largest city, and the capital of Sierra Leone.

The Legal system

The type of legal system in Sierra Leone is hybrid of both common law (developed from the British system), statutory law, and customary law (tribal).
The Supreme Court is highest court in Sierra Leone, with a Chief Justice as its head. There are inferior courts for each jurisdiction in Sierra Leone that handle criminal procedures, and constitutional matter. Also, there is a High Court, and Appeals Court.
Law enforcement in Sierra Leone is carried out by the Sierra Leone Police, whose head is appointed by the President of Sierra Leone.

Legal Aid

State Sponsored legal aid
Although the law provides for attorneys at public expense if defendants cannot afford their own, the government has instituted legal aid in Freetown only, and has been able to serve only a few clients due to problems with establishing eligibility for legal aid. Fewer than 10 state counsels served the entire country, and they were often overburdened and poorly paid and thus available only for more serious criminal cases. Many indigent detainees did not receive legal advice prior to trial. Only defendants in the military justice system had automatic access to attorneys, whose fees were paid by the Ministry of Defense.

NGOs providing pro bono legal aid
The Legal Aid Act of 2012 is committed toward state-funding legal aid providers and university clinics, however, many legal aids are still provided by NGOs.
Existing NGOs providing pro bono legal aid:

National Forum for Human Rights

The Lawyers Centre for Legal Assistance

Timap for Justice

Access to Justice Law Centre

AdvocAid

BRAC’s Human Rights and Legal Aid Services Programme

Justice and Peace Commission

Methodist Church Sierra Leone Development and Relief Agency

Number of lawyers
298 lawyers (as of 2012).

Sources of defendant's rights

National sources
The Constitution of Sierra Leone, 1991:

Under Sec. 17 (2)(b), the Constitution promises all defendants “access to a legal practitioner or any person of his choice”.

Under Sec. 8(2)(c), the government is to play no role in the courts, and therefore justice should be based on the equal opportunity to all citizens. Justice should not be denied based upon economic situation or disability.

Under Sec. 20, a defendant is protected against “inhuman treatment” and torture.

Under 23(6), if a fee is associated with a criminal convicted citizen, it is not be administered more than 3 months after trial.

The Criminal Procedures Acts of 1965:

Sec. 52(1) “… if the trial is with a jury, the jury shall be sworn and the person accused shall have the same right of challenging jurors as if all the offences charged in the indictment were felonies.”

Sec. 111(2) “The accused shall be entitled to cross-examine the witnesses for the prosecution and shall be information of such right if not represented by a legal practitioner.”

Sec. 112 The defence has the right to recall any of the witnessed called by the persecution.

In a trial by jury Under Sec.192. (1), “At the close of the evidence for the prosecution and after the statement of the accused person before the committing Court has been put in evidence the Court shall in cases where the accused is not defended by counsel inform him of his right to address the Court, to give evidence on his own behalf of to make an unsworn statement and to call witnesses in his defence and in all cases shall require him or his counsel to state whether it is intended to call any witness as to fact other than the accused person himself.”

International sources:

International Covenant on Civil and Political Rights
Article 14:
(d) "To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) "To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”

Sierra Leone is also a party to the International Convention Against Torture

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures or Detentions

Right Not to be Tortured or Ill-Treated

Right to Medical Care

Right to be Informed of Charges

Right to be Presumption of Innocence Sec. 23 (4) of the Constitution clearly states that every person shall be presumed innocent until proven guilty, or pleaded guilty.

Right Against Self-Incrimination

Right to Counsel and Effective Assistance and the Right to Present a Defense

Right to a Fair Trial and Due Process

Right to Bail

Right Against Ex Post Facto Prosecution The Constitution protects citizens from double jeopardy, but Parliament has the power to enforce law retroactively, but only as they are being implemented under Section 106 (5). However, the Criminal Procedure Act of 1965 in Sections 47-49 states that a person may be convicted of a crime they were previously acquitted from if the facts are different, and more evidence comes to light. Generally though, a person in Sierra Leone is protected from Ex Post Facto criminal law.

Right against Double Jeopardy Section 23 (9) of the Constitution prevents double jeopardy from occurring in Sierra Leone, if the convicted was tried in a competent court.

Right to Language Interpretation

Right to Habeas Corpus

Capital Punishment Criminal Procedure Acts of 1965, Sec. 213 (1) (a-b): Capital punishment may only be administered after the convicted has had the opportunity to appeal, or the time to petition for an appeal has elapsed.

Right to Appeal

Rights of Counsel

Right to Provide Representation See Right to Counsel and Effective Assistance and the Right to Present a Defense for the relevant provision in the constitution which grants a right to legal representation and accompaniment by an attorney.

Right of Access to the Client and Right to Confidential Communication with the Client The constitution allows the attorney the right to communicate personally and confidentially with his or her client, including when the latter is under arrest or is detained.

Means of Protecting and Enforcing Rights

The Constitution allows everyone the right to request from the Constitutional Court, by a writ of amparo, the protection of his or her constitutionally recognized fundamental rights, liberties and guarantees. Note that: (1) a writ may only be filed against acts or omissions of public authorities that are injurious to the fundamental rights, liberties and guarantees, once all other means of ordinary appeal have been exhausted; and (2) it would be of an urgent nature, and its procedure must be based on the principle of summary treatment. All citizens have the right to demand, under the terms of the law, compensatory damages for the violation of their rights, liberties, and guarantees.

Guarantees are also in place for rules and resolutions that the Cape Verdean government is seeking to adopt. The rules and resolutions which violate the provisions of the Constitution or the principles therein enshrined are regarded as unconstitutional. The Constitutional Court may request a preventive review of the constitutionality in any international treaty or agreement referred for ratification, or any provision of legislation that is intended to be promulgated as a law, legislative decree, or decree-law. If the Constitutional Court rules in favor of the unconstitutionality of a rule contained in an international treaty or agreement, it must not be ratified by the President of the Republic, who shall return it to the organ that had approved it. The same applies to an unconstitutionality ruling for any legislative act, whereby the instrument must be vetoed by the President of the Republic and returned to the organ that had approved it.

Pre-Trial Procedure

Inspections and Searches

The Code of Penal Procedure of Cape Verde provides rules on inspections and searches.

Firstly, when there are signs that a person is concealing on his person items that relate to a crime or that may serve as evidence, a search shall be ordered. Secondly, when there are signs that the items referred to previously, or the accused or any other person who is to be detained, are situated in a private location or a location to which the public does not have free access, a search shall be ordered. Also, searches shall be authorized or ordered by the competent judicial authority.

However, an exception is made when inspections and searches are conducted by police bodies concerned with criminal investigations when:

(1) the crimes are connected with terrorism or criminal organizations, are punishable by a maximum penalty of more than 8 years imprisonment, committed with violence or the threat of violence, or suspects who pose an imminent flight risk; and

(2) if there is sound reason to believe that any delay may pose a serious and immediate danger to life, physical integrity, freedom, or the survival of the constitutional rule of law in Cape Verde.

Formalities exist, in that a copy of the order shall be given to the person concerned before the inspection is carried out, except in exceptional cases with serious or risky crimes as above. The same applies to searches of premises or vehicles, and where the person who has access to the premises or vehicles to be searched is not available the copy is to be given to a relative, neighbour, a building attendant, or someone substituting for them. If the inspection or search objective is to obtain one or more specific items, the judicial authority may order that they be surrendered. Upon compliance, the search shall not take place unless it is considered useful to advance the investigation.

Various rules apply to the search of specific premises.

Search of homes – this may be ordered or authorized only by a judge. Alternatively, it may be ordered by the Ministry of the Public Prosecutor or police bodies which are concerned with criminal investigations in the event that a person is apprehended in the act of committing a crime or for the purpose of rendering assistance. It is not permissible to conduct a search of a home before 7 o’clock in the morning or after 8 o’clock in the evening.

Search of professionals’ offices, including lawyers and physicians – the search of the offices of professionals who have a legal or statutory requirement of secrecy must be supervised by the judge in person, unless it be deemed invalid. Before the search is conducted, the judge shall also notify the president of the corresponding professional association (if applicable) so that he or his representative may be in attendance. For instance, in the case of a search of a government health facility, the notification shall be made to the director of the facility or his legal deputy.

Search of media premises – must be supervised by the judge in person, unless it is deemed invalid. Shall ensure that the investigations and activities will have no impact on the free exercise of the profession of journalism and will not prevent or cause an unjustified delay in the dissemination of information.

Search of university facilities – must be supervised by the judge in person, unless it is deemed invalid. The senior official of the facility in question or his representative must be in attendance.

Seizures

Pursuant to a reasoned decision by a judge or the Ministry of the Public Prosecutor, items may be seized that have been used or were intended to be used to commit a crime, or that represent the proceeds, result or gain from the commission of a crime, as well as any items that may have been left by the perpetrator at the scene of the crime and any other items that may be used as evidence.

The seizure shall take place with a judicial authority in attendance.

Police bodies concerned with criminal investigations may make seizures as a result of searches or inspections in accordance with the provisions of this Code or when there is urgency or when a delay in obtaining evidence poses a risk, and accordingly, such a seizure must be confirmed by the competent judicial authority within 48 hours, unless it be deemed invalid. The person concerned shall be given a copy of the decision if he is present when the seizure takes place.

The items seized shall be kept together with the case records when this is possible or, when it is not possible, they shall be entrusted to the safekeeping of the court official assigned to the case or to a depositary, with full particulars being recorded in the case records.

Any seizure authorised, ordered or confirmed by the Ministry of the Public Prosecutor may be challenged before the competent judge within a period of five days. A challenge shall be decided upon independently, and if the challenge is upheld, the seized items shall be returned.

Correspondence, such as letters, parcels, postage stamps and related items, and telegrams, may only be seized if so authorized or ordered by a judicial decision and there are sound reasons to believe that:

The correspondence was sent by the suspect or addressed to him, even if under some other name or through some other person;

A crime has been committed that is punishable by a maximum penalty of more than 3 years imprisonment;

The seizure will be highly worthwhile in order to uncover the truth or provide evidence, lest the seizure be deemed invalid.

Note that it is prohibited to seize or in any other way monitor correspondence exchanged between an accused and his lawyer, except in the case of correspondence with respect to a criminal deed for which the lawyer has been accused.

When the seizure is performed not by the judge, that entity must immediately turn over the items seized to the competent judge without opening the correspondence or gaining knowledge of its contents. If the judge considers the seized correspondence to be relevant evidence, he shall include it with the case records. Otherwise, he will return it to its rightful owner, and is bound to maintain the secrecy of the contents of the seized correspondence where it was of no interest as evidence.

Court Procedures

Pre-Trial

Following arrest, one must appear before a judge within 48 hours of detention. The judge will decide whether there is a case to answer to and if so, whether you should be released on restrictive conditions or kept in custody pending further enquiries. Note that any time spent on remand counts as served prison time and is deducted from any future sentence that may be handed down.

Meanwhile, an inquiry is launched. This is the first stage of the criminal investigation carried out by the Judiciary Police in collaboration with the Public Prosecutor. The police investigation can last for several months and depends on the complexity of the case. At the end of this phase, the Public Prosecutor will either file the case (arquivamento) due to insufficient evidence or inability to identify the perpetrator, or formally press charges (acusação).

The victim who constitutes an assistant or the defendant can request a preliminary hearing if they disagree with the decision of the Public Prosecutor at the end of the inquiry stage. The aim of the preliminary hearing is to determine whether the case should go to trial or be dismissed.

Trial

On the day of the trial, the parties are taken to the court where the case is being heard. This will normally be the court closest to where the crime allegedly took place. Trials can be heard by a single judge or a panel of 3 judges. Crimes of a sexual nature are tried in private before a judge, or, at the request of the accused or the assistant, a collective court may be held for offenses punishable by a sentence of more than eight years). There are normally no jury trials in Cape Verde.

The state prosecutor will be present, together with the lawyers and an interpreter if the parties do not speak Portuguese. A court clerk will also be there. Hearings are public unless otherwise decided by the presiding judge.

Witnesses for both the prosecution and the defense will be called one by one. They will not be allowed in the courtroom until they are required to give evidence.

If the trial cannot be concluded in one day, it will continue the next working day.

Sentencing

On the last day of the trial, the judge will either read the verdict or set a date for the court to reconvene for the verdict to be read. The defendant will be present when the sentence is read.

Sentencing is codified in law and varies according to the type of crime and the circumstances in which it was committed. The attorney is best placed to advise the defendant on the minimum and maximum sentences.

For example, if found guilty of rape or sexual assault with penetration, the defendant can be punished with a prison sentence of 4 to 10 years. The prison sentence will be 7 to 14 years if the victim is a minor or under 16. The prison sentence can be further increased if the crime results in pregnancy, serious damages to your physical and emotional integrity, the transmission of a contagious, serious or incurable disease, the incapacity to reproduce, or the suicide, attempted suicide or death of the victim.

Appeals

The defendant may appeal through their lawyer against any conviction within 15 days of sentencing. If the appeal is admissible, the court will pass it up to the Court of Second Instance or Appeal. In certain circumstances, a sentence that has become final can be reviewed by the Supreme Court of Justice. The state prosecutor may also appeal if they consider that the conviction is too lenient.

International Sources of Defendants Rights

The Constitution of the Republic of Cape Verde upholds the rights and obligations of the general public.

International sources of human rights primarily stem from the international human rights treaties to which Cape Verde is a party. These United Nations treaties are listed below.

Treaty	Introduced	Ratified
Convention on the Prevention and Punishment of the Crime of Genocide	1948	2011
International Convention on the Elimination of All Forms of Racial Discrimination	1966	1979
International Covenant on Economic, Social and Cultural Rights	1966	1993
International Covenant on Civil and Political Rights	1966	1993
First Optional Protocol to the International Covenant on Civil and Political Rights	1966	2000
International Convention on the Suppression and Punishment of the Crime of Apartheid	1973	1979
Convention on the Elimination of All Forms of Discrimination against Women	1979	1980
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment	1984	1992
Convention on the Rights of the Child	1989	1992
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty	1989	2000
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families	1990	1997
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women	1999	2011
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict	2000	2002
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography	2000	2002
Convention on the Rights of Persons with Disabilities	2006	2011

Note that the following treaties were signed but not ratified.

Treaty	Introduced	Signed
International Convention for the Protection of All Persons from Enforced Disappearance	2006	2007
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights	2008	2011

The following treaties have not been signed by Cape Verde.

Treaty	Introduced
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity	1968
Optional Protocol to the Convention on the Rights of Persons with Disabilities	2006
Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure	2011