Difference between revisions of "Togo(en)"
(→The sources of the rights of the defence)
(→Legal aid situation)
|Line 96:||Line 96:|
==Legal aid situation==
==Legal aid situation==
==The rights of the accused==
==The rights of the accused==
Revision as of 11:04, 5 August 2019
Togo, officially the Togolese Republic, is a West African country with Lomé as its capital. It is one of the smallest African states, bordered to the north by Burkina Faso, to the south by the Gulf of Guinea, to the east by Benin and to the west by Ghana. The population is estimated at about 7.6 million in 2017.
On 27 September 1992, the Constitution of the Fourth Togolese Republic was adopted by referendum, which enshrines a number of provisions on the rights, freedoms and duties of citizens in Title II "Rights, freedoms and duties of citizens" (articles 10 to 50) and affirms the principles of separation of powers and independence of the judiciary and Title VIII "Judicial power" (articles 112-129). The fundamental objective of this Constitution was to include Togo in the circle of democratic states that respect human rights and the rule of law.
The judicial organisation in Togo
The judicial organization in Togo, like its law, is influenced by French law. Togo's judicial organization is composed of two orders, the judicial order and the administrative order (Article 119 of the Constitution). The judicial organisation in Togo was created by Ordinance No. 78-35 of 7 September 1978 on the judicial organisation, as amended successively.
According to article 1 of Order No. 78-35, justice is administered by two categories of ordinary courts: "ordinary courts of common law" and "specialized ordinary courts". The ordinary courts of common law are:
-The Supreme Court (established by articles 120 to 125 of the Constitution and governed by Organic Law No. 97-005 of 6 March 1997 on the organization and functioning of the Supreme Court);
-The Courts of Appeal, and -The Courts of First Instance.
The specialized ordinary courts are:
-Labour courts, and -Juvenile courts
In addition, there are also two categories of special courts, namely the Security Court (governed by Act No. 81-006 of 30 March 1981 on the Code of Military Justice) and the Special Court for the Punishment of the Misappropriation of Public Money (governed by Order No. 72-018 of 13 September 1972 establishing a special court for the punishment of the diversion of public funds).
The ordinary courts of common law - namely the Supreme Court, the courts of appeal and the courts of first instance - are organised into chambers:
-The Supreme Court sits in administrative and judicial chambers;
-The courts of appeal sit in civil, commercial and social chambers, correctional chambers, administrative chambers, indictments and assizes courts, and
-The courts of first instance sit in civil chambers, commercial and correctional chambers.
The specialized ordinary courts are not organized into chambers.
Type of legal system
The criminal procedure in Togo has features of the adversarial and inquisitorial systems. First, in the first phase, the procedure is inquisitorial in nature: it is indeed the police and investigating magistrates who seek and collect evidence. The procedure is in principle written and secret. Then, in the second phase of the judgment, the procedure is more adversarial, public and oral. The accused defends himself against the public prosecutor, who represents the interests of society that have been harmed by the commission of a criminal offence.
The sources of the rights of the defence
National sources of the rights of the defence
One of the main sources of the rights of defence is the Togolese Constitution, in particular its Title II "Rights, freedoms and duties of citizens" (articles 10 to 50). They include:
- protection against arbitrary detention (Article 15);
- the right to a lawyer (Article 16);
- the presumption of innocence (Article 18), - the right to a fair trial (Article 19)
The protection of the rights of the defence is also ensured by the Criminal Code (Act No. 2015-10 of 24 November 2015 on the new Criminal Code), as well as by the Code of Criminal Procedure (Act No. 83-001 of 2 March 1983), as well as their implementing regulations. Among the national sources, we can also mention:
- Act No. 2009-011 of 24 January 2009 on the abolition of the death penalty in Togo - Organic Act No. 97-005 of 6 March 1997 on the organization and functioning of the Supreme Court - Order No. 78-35 of 7 September 1978 on judicial organization, and - Act No. 2013-010 of 27 May 2013 on legal aid in Togo.
International sources of the rights of the defence
The protection of the rights of the defence is ensured by the following international sources:
- the Universal Declaration of Human Rights of 10 December 1948 (included in the preamble to the Constitution of Togo)
- the International Covenant on Civil and Political Rights adopted on 16 December 1966 in New York by the United Nations General Assembly (included in the preamble to the Constitution of Togo)
- the African Charter on Human and Peoples' Rights adopted on 28 June 1981 by the Organisation of African Unity (included in the preamble to the Constitution of Togo), whose article 7 guarantees the right to a fair trial and access to justice
- the African Charter on the Rights and Welfare of the Child adopted by the Organization of African Unity on 11 July 1990, and
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted on 10 December 1984 by the United Nations General Assembly.
The organs of the criminal trial
The judicial police
The Public Prosecutor's Office
The investigating judge and the indictment division
The trial courts
Legal aid situation
The principle of equitable access to justice, as set out in the international instruments ratified by Togo, has been introduced into the domestic legal system through the founding texts of the judicial institution.
Thus, the free provision of the public service of justice was enshrined in Ordinance No. 78-35 of 7 September 1978 on the organization of the judiciary in Togo. This ordinance established the possibility of a beneficiary of legal aid ("legal aid"), but the implementing decree has not yet been adopted.
It is in this context that the government has had Law No. 2013-010 of 27 May 2013 on legal aid in Togo adopted and promulgated. Article 2 of this law defines legal aid as "financial assistance granted by the State for proceedings before a court and/or in matters of settlement". The latter may be total or partial, depending on the applicant's income.
Chapter II of this law provides that legal aid may be granted to "natural persons of Togolese nationality whose resources are insufficient to assert their rights in court or to pursue the execution of any enforcement acts and procedures obtained without the benefit of this assistance" (article 4).
Chapter III details the bodies in charge of this assistance: the National Legal Aid Council and the Legal Aid Office.
The procedures for the admission and withdrawal of aid are set out in Chapters VI and VII respectively of the said Act.
The beneficiary of legal aid is entitled to the assistance of a lawyer (Article 41), whose fees are borne, in part or in whole, by the State. In addition, legal aid covers all costs, fees and taxes of all kinds relating to actions, proceedings, hearings, procedures and acts of all kinds necessary to achieve the purpose for which legal aid was granted (Article 50). The modalities for the application of this law must be determined by an implementing decree which has not yet been adopted, however, in the absence of clear criteria for assessing indigence and fixing the fees of public defenders.
A study mission composed of lawyers, magistrates, government representatives and staff of the Justice Sector Support Programme visited Dakar, Senegal, from 8 to 15 May 2016. The mission of this team was to collect all relevant information, meet with legal aid stakeholders, study the system of operation and administration of legal aid in Senegal with a view to appropriating the mechanism, and acquire the good practices and technical skills necessary to complete the process of effective implementation of legal aid in Togo. It will also make it possible, above all, to establish the criteria for indigence and those relating to the calculation of lawyers' fees. These criteria are essential for the preparation of the implementing regulations for the Legal Aid Act. Nevertheless, Togo has few lawyers. According to the Togolese Bar Association, in 2015, 155 lawyers were registered with the Bar and there were 9 trainee lawyers. Most lawyers are based in law firms in Lomé, the capital.