Difference between revisions of "Congo, Democratic Republic of the"
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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.
The essential rule in terms of detention (from police custody to final judgment) is the presumption of innocence as enshrined in Article 17(1) of the Constitution of the DRC, the consequence of which is that freedom is the rule, detention the exception.
Article 28, paragraph 1, of the Code of Criminal Procedure also provides that detention is the exception and freedom is the rule. The same applies to article 205 of the Military Judicial Code, which provides that the detention of persons is an exception, freedom being the rule.
Regime of the ordinary criminal procedure code
Articles 27 to 45 of the Code of Criminal Procedure specify the procedure and the time limits for it. The accused may be remanded in custody only if there are serious indications of guilt and if, in addition, it appears to constitute an offence punishable by law with a penalty of at least six months' criminal servitude.
Nevertheless, an accused person against whom there are serious indications of guilt may be placed in pre-trial detention where the fact appears to constitute an offence punishable by law with a penalty of less than six months' criminal servitude but more than seven days, if there is reason to fear the accused's flight, or if his identity is unknown or doubtful or if, in the light of serious and exceptional circumstances, preventive detention is imperative in the interests of public safety.
According to article 28, when preventive detention is applied, the following rules must be respected: - When the conditions for placing the accused in pre-trial detention are met, the officer of the Public Prosecutor's Office may, after questioning the accused, place him under a pre-trial arrest warrant, provided that he is brought before the nearest judge competent to rule on preventive detention. - If the judge is in the same locality as the officer of the Public Prosecutor's Office, the appearance before the judge must take place, at the latest, within five days of the issuance of the provisional arrest warrant. - Otherwise, this period shall be increased by the time strictly necessary to complete the journey, except in cases of force majeure or delays made necessary by the duties of the investigation. - At the end of these time limits, the accused may apply to the competent judge for release or interim release. In the cases provided for in Article 27, paragraph 2, the provisional arrest warrant shall specify the circumstances justifying it.
In article 29, it is specified that pretrial detention is authorized by the judge of the peace court. Article 30 then specifies that the order ruling on it is issued in chambers on the requisitions of the Public Prosecutor's Office, the accused person being heard beforehand and, if he so wishes, assisted by a lawyer or a defence counsel of his choice.
The observations and means of the accused shall be recorded. The order shall be issued no later than the day after the day of the appearance. The judge shall bring it as soon as possible to the attention of the accused person, in writing, with acknowledgement of receipt, or by oral communication, recorded by the person who makes it. This order is valid for 15 days, including the day on which the order in question is issued. At the end of this period, pre-trial detention may be extended for one month, and so on, from month to month, for as long as the public interest requires.
However, preventive detention may be extended only once if the fact appears to constitute only an offence for which the penalty provided for by law does not exceed two months' hard labour or main criminal servitude. If the penalty provided for is equal to or greater than 6 months, preventive detention may not be extended more than 3 times consecutively. If this time limit is exceeded, the extension of the detention is authorised by the competent judge ruling in open court.
Extension orders shall be issued in accordance with the forms and time limits provided for in Article 30. The accused may not be denied the assistance of a lawyer or defence counsel. In the cases provided for in Article 27, paragraph 2 (penalty provided for less than 6 months but more than 7 days), the order authorising or extending preventive detention must specify the circumstances justifying it.
Military judicial law regime (articles 205 to 210 of the Military Judicial Code)
Article 205 of the Military Judicial Code stipulates that when the military investigating magistrate competent to initiate proceedings considers that the fact constitutes an offence punishable by law with a penalty of at least one year's criminal servitude and that there are serious and sufficient indications of guilt, he may subject any person subject to military courts to judicial measures of controlled freedom or temporarily detain him, for a period not exceeding fifteen days.
An accused person against whom there are serious and sufficient indications of guilt may nevertheless be remanded in custody if the act constitutes an offence punishable by a penalty of less than one year but more than six months, if there is reason to fear his flight, or if his identity is unknown or doubtful or if, in the light of serious and exceptional circumstances, his detention is imperative in the interests of public safety. At the end of the fifteen-day period, if that authority considers that the arrest warrant should not be maintained, it shall order its withdrawal.
Controlled freedom is decided by the Military Auditor, who issues an order to this effect, which determines the conditions and procedures for its execution. The Commander of the unit to which the accused person concerned fall under shall be kept informed. Where proceedings have been ordered, incarceration and detention may only result from a provisional arrest warrant issued by the Military Auditor.
The provisional arrest warrant is valid for fifteen days. If the investigation of the case is to last more than fifteen days and the military investigating magistrate considers it necessary to keep the accused in detention, he shall refer the matter to the Military Prosecutor. The latter shall decide on the provisional detention and decide on its extension for one month; and so on, from month to month, when duly justified investigative duties so require.
However, preventive detention may be extended only once if the fact appears to constitute only an offence for which the penalty provided for by law does not exceed two months of criminal servitude. If the penalty provided for is equal to or greater than six months, the extension of preventive detention may not exceed twelve consecutive months.
If this time limit is exceeded, the extension is authorised by the competent court. At any time, the preventive detainee may request the Military Auditor to release him or her or to release him or her provisionally. If the provisional arrest warrant is not confirmed within 15 days, the detention shall be terminated in accordance with Article 210.
Question of provisional release
Article 32 provides: "While authorizing or extending pretrial detention, the judge may, if the accused so requests, order that he or she nevertheless be released on provisional release, provided that he or she deposits with the Registrar, as security, a sum of money to guarantee the representation of the accused person at all acts of the proceedings and the enforcement by him or her of custodial sentences as soon as they are required. Provisional release will be granted on the condition that the accused does not obstruct the investigation and does not cause scandal by his conduct. According to the same article, the judge may also impose on the accused:
- To live in the locality where the officer of the Public Prosecutor's Office has his seat;
- Not to move beyond a certain radius of the locality, without the authorisation of the investigating magistrate or his delegate;
- Not to go to such specified places, such as railway station, port, etc., or not to be there at specified times;
- To appear periodically before the investigating magistrate or before such official or agent determined by him;
- To appear before the investigating magistrate or before the judge as soon as he is required.
The order, which will specify precisely the terms of the charges imposed under this section, may make interim release subject to only one or the other. At the request of the Public Prosecutor's Office, the judge may at any time modify these charges and adapt them to new circumstances. It may also withdraw the benefit of provisional release if new and serious circumstances make this measure necessary. As long as he has not brought the case before the court, the officer of the Public Prosecutor's Office may release the accused from preventive detention and order the return of the bond.
He may also grant him provisional release, under the same conditions and under the same terms as the judge himself may do. In this case, the decision of the Public Prosecutor's Office ceases to have effect with those of the judge's order authorizing or extending preventive detention, unless a new order is issued. He may also withdraw from the accused the benefit of the provisional liberty he had granted him, if new and serious circumstances make this measure necessary.
Under article 34, failure to comply with the charges imposed on him by the accused person granted provisional release may lead the PMO to reincarcerate the accused person. If provisional release has been granted by the judge, the accused person who contests being in default may, within 24 hours of his or her reincarceration, appeal to the judge who had ruled in the first instance on the detention or extension of detention. The decision on this appeal is not subject to appeal.
When the accused is deprived of the benefit of provisional release, the bond shall be returned to him, unless the reasons for the reincarceration have been given for failure to fulfil the duty to appear before the investigating magistrate or judge. The return of the bond shall be made on the basis of an extract from the prison register, issued to the accused by the officer of the Public Prosecutor's Office. In all cases where the requirements of the investigation or prosecution require the presence of an accused person in pre-trial detention with temporary release in a locality other than that in which he or she has been authorized to reside, he or she may be transferred there under the same conditions as an accused person in prison and shall remain in a state of incarceration until such time as the judge, or in the case of article 33, the local public prosecutor, has adapted the charges to which his or her new temporary release may be subjected to local circumstances.
Remedies for preventive detention
The Public Prosecutor's Office and the accused may appeal orders issued in respect of preventive detention. It follows from article 38 that appeals against orders issued by the President or Judge of the Court of Peace are brought before the High Court. The time limit is 24 hours and runs from the day on which the order was issued for the Public Prosecutor's Office and from the day of notification for the accused (article 39).
The statement of appeal is made to the clerk of the court that made the order. If the clerk is not on the premises, the accused person makes his statement to the officer of the Public Prosecutor's Office or, in his absence, to the judge, who draws the act. The officer of the Public Prosecutor's Office records the appeal himself.
The magistrate or clerk who receives the statement of appeal shall also record any observations or pleas in law relied on by the accused in support of his appeal and shall attach to the statement of appeal the pleadings, notes and other documents that the accused would submit to him for submission to the court to be heard on the appeal. He was given a receipt for it.
The notice of appeal and the documents annexed thereto shall be transmitted without delay by the person who drew it up to the clerk of the court which is to hear the appeal.
During the period of appeal and, in the event of an appeal, until the decision is taken, the accused person shall be kept in the state in which he or she was placed by the judge's order, as long as the period of validity of that order has not expired.
However, where the offence is one of those punishable by law by at least one year's imprisonment, the officer of the Public Prosecutor's Office may, in the case of an order refusing to authorize preventive detention, order that the accused be placed under the links of the provisional arrest warrant and, in the case of an order refusing to extend the detention, order that the accused be placed under the links of the order authorizing him.
In either case, the accused will only be put back under the arrest warrant or previous order during the time limit for appeal and, in the event of an appeal, until the decision is taken. The order of the Public Prosecutor's Office must be justified. A copy must be sent simultaneously by the officer of the Public Prosecutor's Office to his line manager, the appeal judge and the guard of the detention centre. The guard shall inform the accused of this fact.
The order is only valid for 24 hours if the guardian does not receive notification of the appeal in the meantime (Article 40).
The judge hearing the appeal shall decide within 24 hours of the hearing at which the Public Prosecutor's Office makes its requisitions. If the accused is not in the locality where the court is holding the hearing or if he or she is not represented by a special proxy holder, the judge may rule on the documents.
If the order of the first judge refusing to authorize or extend the detention is overruled by the judge of appeal, the period for which the authorization or extension would be granted shall be fixed by the judge of appeal, but may not exceed one month. This period begins to run from the day the appeal order is enforced.
It follows from article 43 that the accused person in respect of whom the authorization to place him in pre-trial detention has not been granted or extended may not be the subject of a new pre-trial arrest warrant for the same offence unless new and serious circumstances require him to be remanded in custody.
Where the Public Prosecutor's Office decides that there is no need to prosecute, it must at the same time release the person from preventive detention and, if necessary, order the return of the bond. Unfortunately, there is a practice of requesting fees for the release of detention, even though they are not provided for anywhere.
Finally, according to article 45, if the accused is in pre-trial detention, with or without pre-trial release, on the day on which the trial court is seized, he will remain in pre-trial detention until the trial. However, in the case provided for in Article 31, paragraph 2, the detention may not exceed the duration provided for in that paragraph.
The accused prisoner may apply to the court seized for either the release of the pre-trial detention or the release on bail. The court is only required to rule on the first application and on those addressed to it at least fifteen days after the decision on the previous application.
The decision shall be given in the form and within the time limits provided for in Article 30. The assistance of a lawyer or a defender approved by the court may not be refused to the accused. If the court grants interim release, the provisions of Article 32 shall apply.
With regard to children in conflict with the law, in accordance with article 106 of the Child Protection Act 2009, only the Judge is competent to take a provisional measure of placement either in a State care and education institution or in an approved private social institution.
Summary of deadlines
Before military courts: - Police custody: 48 hours - Provisional arrest warrant: 15 days - Preventive detention for 1 month and so on without exceeding 12 months
Before the ordinary courts: - Police custody: 48 hours - Provisional arrest warrant: 5 days - Preventive detention order: 15 DAYS - Order confirming preventive detention: 30 days; thus extended from month to month without exceeding 12 months.
Before juvenile court: The provisional placement measure must not exceed 2 months. Article 108 of the Child Protection Act 2009 provides that "if the measures provided for in article 106 cannot be taken because the child is presumed to be dangerous and no couple or institution is in a position to receive him or her, the child may be placed in a State care and education establishment for a period not exceeding two months".
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 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.
- 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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