Chapter 3: The jurisdiction of the Congolese judiciary to try war crimes
3.2 Prosecution of war crimes
3.2.2 Procedure
First and foremost it is important to recognize that it is not easy to analyze the criminal military procedure required by military justice to prosecute war crimes in a few pages. However, the following section provides broad guidelines on how this system of justice operates. Except for some peculiarities related to the military
Read M. S. Du Plessis „South Africa‟s International Criminal Court Act: countering genocide, war crimes and crimes against humanity‟ (2008) available at http://www.iss.co.za/uploads/PAPER173.PDF, accessed on 28 April 2010.
256 Ibidem 50.
257 L Mutata Luaba Traité de crimes internationaux (2008) 274-351.
258 D Zongwe F Butedi & P M Clement (note 209 above).
character of this kind of trial, the procedure before the military courts is based roughly on the same principles as procedure before the ordinary courts.
In the DRC, the criminal process in the prosecution of war crimes as with military crimes in general constitutes three stages of procedure: preliminary investigation, preparatory instruction and instruction before the Court. However, there is overlap between the first and the second steps so that it is more practical to examine both in the same rubric.
3.2.2.1. The preparatory instruction
This step is led or carried out by Magistrate or the Public Prosecutor. Its instruction may be preceded by the preliminary investigation of police officers, who operate under its order and supervision. During the preliminary investigation, the Police Judicial Officer looks for evidence of offences in the place where the crimes were committed. He/she investigates the means used to commit the crime, and seeks to find out more about the criminal, and, if he/she is hidden, how to arrest him/her.
The superior prosecutor may give written instructions to Military Police Judicial Officer to undertake an investigation even at night in a military installation or other places. Common Police Judicial Officers are competent in certain conditions to ascertain military crimes committed in their respective territorial jurisdiction.259 They may also receive claims and denunciation from victims, or interested parties.
Where necessary, they can arrest suspects where there is evidence of flagrant violations.260 Non-military suspects arrested because the charge of criminality against them was serious and obvious, must without delay be presented to the judicial authority competent to launch proceedings. When Judicial Officers of Police arrest a suspect, they must in accordance with ordinary criminal procedure code state in their report the dates, and hours of the beginning and the end of such detention measures.261
259 Article 139 and 140 of the Military Judiciary Code.
260 Article 145 of the Military Judiciary Code.
261 Articles 158 and 155 of the Military judiciary Code .See also Code of Criminal Procedure of 6 August 1959 by the Décret of 6 August 1959 in Codes Larcier Vol I (2003)288-299.
A suspect may not be detained for more than two days without being brought before the magistrate competent to instruct the case.262 The report on the outcome of the investigation is presented to the Prosecutor, who will determine whether the evidence against the suspect is sufficient to pursue prosecution.
The opinion of the Judge Advocate General is required by the Minister of Justice or Defense during wartime, in respect to all decisions related to the outcome of the eventual prosecution.263
When the Magistrate decides to prosecute as a result of the police report he/she received, a complaint, a denunciation or at his/her own initiative (when he/she was witness to a crime) he/she informs the commander of the Unit the suspect is attached to.
An order to prosecute can also come from the Defense Ministry. This order cannot be appealed and is given by the Judge Advocate General of Army Forces.264
The prosecutor is not bound by the investigation of the Police Judicial Officer. He/she can directly interview the suspect and interrogate him/her.
Depending on the attitude (collaboration or resistance) of the suspect and the seriousness of charge against the suspect, the prosecutor can issue an invitation or a warrant of arrest (mandat de comparution, mandat d `amener or mandate d`arrêt).
Any warrant must precisely specify the suspect‟s identity and bear the date and signature of the magistrate who has issued it as well as the seal of the office. Further infraction and their legal basis must be mentioned. The Commandant of the Unit that the suspect is attached to must be notified. Warrants are applicable in all the national territory of the Republic and are reinforced (executed) in all circumstances by Public Force agents in conformity with ordinary criminal procedure.265
262 Articles 146, 148 and 149 of the Military Judiciary Code.
263 Article 162 of the Military Judiciary Code.
264 Articles 164 and 165 of the Military Judiciary Code.
265 Articles 183, 184 and 185 of the Military Judiciary Code and article 162 of the Code of Ordinary Criminal Procedure.
The procedure launched by the Prosecutor at this stage is essentially secret266 and inquisitorial. But the right to defense of the suspect is constitutionally guaranteed, even if they are not often respected.267 After preparatory instruction, the Instructor Magistrate can release the suspect if it appears that there is no infraction, transfer the case to the civilian judiciary, or confirm the charge and then send the file to the Prosecutor (auditeur) who will seize the military court.
The indictment of the presumed perpetrator of the crime by the Court may be required by the Standing Magistrate him/herself, the Commandant, the Ministry of Defense or the victim (the civil party, which may claimed reparations for damages). During the prosecution before the Court the charges against the defendant are supported by the Public Prosecutor (Ministère Public). The prosecution of war crimes and other international crimes cannot be dismissed because of long delays; war criminals are subject to trial at any moment without limitation.268
3.2.2.2 Instruction before the Court
This part of the procedure is crucial in the criminal process. The judge may be seized directly by the plaintiff, by the Prosecutor and sometimes by the defendant if he/she accepts to stand voluntarily before the court in a case of which he/she had not been previously and regularly notified.269
The commencement of the trial is characterized by the verification of rules of form, the jurisdiction of the Court, the regularity of the seize, and the quality of parties by the composition of members of the bench. After this they proceed to the instruction of the case under examination. Parties are allowed to argue the exception relating to form before examination of the matters in depth. They may ask the Prosecutor for
266 Article 132 of the Military Judiciary Code.
267 Article 19 (4) of the Constitution.
268 Article 204 of the Military Judiciary Code.
269 Article 216 of the Military Judiciary Code.
further270 preparatory instruction; they hear public accusations, witnesses, and the prosecutor who requires the application of law in its written form (requisitoire).
All debates during the hearing are recorded by the greffier (registrar).271 The victim may intervene in the process at any time as a civil party and claim reparations for damages. After instruction, the judge deliberates and votes regarding the case, and what sentence to apply.
The judgment must be signed jointly by the chair of the Court and the registrar. It is written by a professional Magistrate affiliated to the jurisdiction. He/she indicates the names of the judges and judge assessors (who are not professional or career magistrates) who adjudicated the case. The name of prosecutor and the registrar, as well as the full identity of the different parties and their advocates must be recorded.
Judgment must be motivated and the charges against the accused must be listed. A summary of procedure and the deposition of adverse parties must also be provided.272 When the Court pronounces acquittal, it immediately releases the accused if they were detained. But if the accused is found guilty, there is the possibility that he/she may accept and acquiesce to his/her indictment or otherwise opt for recourse and appeal.
Two kinds of recourse can be distinguished: the ordinary recourse and the extraordinary one.
The ordinary recourse is composed of appeal and opposition and the extraordinary is made up of annulations (cancellation) and revision (review).
3.2.2.2.1 The ordinary recourse
This recourse essentially comprises appeal and opposition as provided for in the Military Judiciary Code. The Code asserts that, except for decisions of the Military
270 Article 219 of the Military Judiciary Code.
271 Article 273 of the Military Judiciary Code.
272 Articles 274 and 275 of the Military Judiciary Code.
Operational Court, the decisions and judgments of the military court and tribunals are susceptible to opposition and appeal.273
The opposition is an option offered to the accused that was absent from the court during the debate and found guilty in abstentia. It can be exercised within five days after the notification of the verdict of the Court. The appeal is the right offered to the accused to exercise recourse against judgment before the immediate superior jurisdiction within five days after the pronouncement of Judgment when the other party has been notified.274
3.2.2.2.2 The extraordinary recourse
The judgment and decision of the Military Court and Tribunal are subjected to annulation and review. Those recourses are also not applicable to decisions rendered by the military operational court.
For annulation, an interested party or prosecutor may within five days after the day of their notification, require the annulations of decisions and judgments rendered by the Court and tribunal. The High Military Court annulates a decision that is not rendered in accordance with the law. Violation of the rules may consist of: 1) incompetence; 2) abuse of power by the military jurisdiction; 3) wrong application or false interpretation of the law; 4) non-conformity with the law; and 5) violation of the prescribed forms, which inobservance is sanctioned by nullity.275
A review may be required against the decisions rendered by any Court whatever its jurisdiction. Therefore, any party prosecuted for crime in the military jurisdiction may exercise this resource when: 1) after a condemnation there is a new fact which may establish the innocence of the condemned; 2) after a condemnation a new judicial decision for the same criminal fact, is contradictory and provides evidence that the accused is not guilty; 3) after the condemnation for homicide, new evidence is presented that demonstrates that the person presumed dead is alive; and 4) one of the
273 Article 276 of the Military Judiciary Code.
274 Article s277 and 278 of the Military Judiciary Code.
275 Articles 280 and 281 of the Military Judiciary Code.
witnesses have been previously heard, prosecuted and indicted for making false accusations against the accused.276
The next section highlights the Military Courts‟ activities in the DRC.