DEMOCRATIC REPUBLIC OF CONGO

MINISTRY OF HIGHER EDUCATION AND UNIVERSITY

Faculty of Law
Sepromade University

Subject: Criminal law

Présentes by: Didier YAMBA MAWILO

Second law degree
directed by Mr. Blaise
English course
INTRODUCTION

Congolese criminal justice is putting the effectiveness of the rule of law to the test. There
appears to be an almost total inadequacy between the service of maintaining order that it must
render to society and the re-education of the criminal members of society whom it must
protect.

To maintain social order, the State resorts to the application of penalties which are governed
by the principle of the legality of penalties. Undoubtedly, criminal law is strictly interpreted
and enforced. However, the State, recognizing that criminal law must be humanized, has
provided for mitigating circumstances.

In Congolese positive law, mitigating circumstances constitute the relaxation of the principle
of legality and not its violation.

By affirming the freedom of the judge in the appreciation of the constitutive elements
founding the maintenance of the mitigating excuses, the legislator should limit his capacity of
fixing the rate of the sorrow, by indicating the minimum below which it cannot go.
 I. DEFINITION OF CRIMINAL LAW

Criminal law is a branch of criminal law. It serves to discourage behavior that goes against
common values or threatens the safety of society. For example, theft or murder are prohibited
because these acts are incompatible with life in society.

Criminal law is the law that manages any behavior that goes against society's values and
standards of conduct. This includes provincial and territorial offences, regulatory offenses as
well as criminal offences.

As for criminal reactions, these are behaviors that are prohibited in Congo by the Penal Code
and the law regulating certain drugs and other substances.

I.1 Type of criminal sanctions

There are four types of criminal offenses namely

❖ Offenses against persons which include:

● Homicide, which can be voluntary or involuntary
● superstitious trials
❖ Offenses against property, which include the following elements:
● The flight
● Extortion
● Fraud
● The destruction
❖ Offenses against public faith where we are looking:
● Counterfeit
● falsification
● The usurpation of public functions
● Illegal port
● The false clerk
● The false witness
❖ Offenses against public order
 ● The rebellion
● The provocation
● The outrages

II. the decider of what is prohibited in criminal law

Various penalties are provided for those found guilty, such as payment of a fine or, much
worse, detention in a jail or penitentiary.

But that is not all: the imposition of a sentence can also serve to repair the harm caused to the
victim of the offense or to the community when it demands financial compensation from the
accused. Sentences ultimately serve to promote the reintegration into society of those found
guilty. A fine means a pecuniary penalty incurred for a fault committed and must be paid
within a reasonable time.

III. The penalties

The penalties applicable to offenses are :
● The death
● Forced Labor
● Penal servitude
● almond
● The special confiscation
● The obligation to move away from certain places
● Residence requirement
● The surveillance

IV. parties in a criminal proceeding

In criminal law, there are two key players: the state (represented by the prosecutor) and the
accused. During a criminal trial, the accused can defend himself against the charges against
him and use the services of a lawyer called a defense lawyer. The prosecutor will have to
present evidence that will convince a judge or jury, beyond a reasonable doubt, of the guilt of
the accused. If the prosecutor is successful, the accused will be found guilty of the offense
with which he is charged.
 V. Role of the victim in a criminal prosecution
In a criminal prosecution, it is not the victim who sues the accused. This can be called on the
witness stand.
during the trial, but it is the prosecutor, on behalf of the state, who lays the charges.

VI. The stages of a criminal prosecution in the Congo

A criminal prosecution can take a few weeks, a few months and sometimes even more than a
year. From arrest to sentencing, there are several steps to follow to ensure the smooth running
of the criminal process and a fair trial. What are these steps?
● The arrest
A) The police officer arrests the suspect. The police officer must clearly tell the suspect the
offense he accuses him of having committed. In general, the police officer brings the suspect
to the police station. The suspect gives his fingerprints.

B) Before releasing the suspect, the police officer gives him a document called a summons
The summons indicates when the suspect must appear in court for his appearance. This
document is very important and should not be lost!

WARNING
Sometimes the police do not release the suspect. For example: when the police believe that
the suspect represents a danger to the public, they can detain him until the appearance before
the judge.

C) The police may lay a charge against the suspect if they have reasonable grounds to believe
that the suspect committed the offence.

D) The prosecutor examines the evidence gathered by the police. He then decides if there is
enough evidence to prosecute the accused in court. When the evidence against the suspect is
not strong enough, the prosecutor can decide to end the proceedings.

● The appearance
After the arrest, the suspect must appear in court, before a judge: this is the appearance. It can
last several days.
TO NOTE
When the suspect is released after his arrest, he must appear in court on the date indicated in
his summons to appear. While the suspect is still in police custody, a police officer escorts
him to court.

A) Once in court, the suspect becomes the “accused”. The accused can hire a lawyer, called a
defense lawyer. If the accused does not have a lawyer, he can ask duty counsel for help with
the appearance. Duty counsel can also refer the accused to legal aid centers that offer services
to low-income people. The accused also has the option of representing himself.

B) The appearance begins with the reading of the offenses (or "arraignment"). The court
informs the accused of the charges brought against him. His lawyer (the defense lawyer) can
skip this step to speed up the process.

C) During the court appearance, the prosecutor gives the disclosure file to the accused. This
is the accused's file which contains all the evidence and information gathered by the police
and the Crown prosecutor. The accused has the right to know what are the charges and
evidence brought against him in order to properly prepare his defence.

D) The accused tells the judge whether he wants to plead guilty or not guilty. This is called
“plea registration”. The accused can plead guilty during his appearance, if he wants to. If the
accused pleads guilty, the judge will pronounce the sentence which will be imposed on him at
a date fixed later.

E) Generally after the first hearing, the court adjourns the appearance of the accused. In other
words, the court sets a date to continue later. This allows:

The Crown prosecutor to prepare the disclosure file, if not ready;

The accused to hire a lawyer or retain the services of legal aid, if this has not already been
done;
It is up to the accused and/or his lawyer to know all the evidence against him. For example,
the identity of all witnesses and a copy of their statements given to the police, police reports,
photos and video or audio recordings. It is up to the accused to decide on the next steps to
take.

IMPORTANT

If the accused does not show up for his appearance, he commits a crime. This will be a new
offense added to his record. This is called “failure to appear”.

● The bail hearing (or bail hearing)

The bail hearing takes place only when:

A) The suspect is detained by the police and

B) The prosecutor does not want the accused to be released after his appearance.

During the interim release hearing, the judge must decide: should the defendant be detained
or released until trial? It is an important decision because the trial can be several weeks or
months after the arrest. The judge considers several factors in making his decision, including
the safety of the victim.

In general, when the judge releases the accused until the trial, he imposes conditions to him to
respect. For example: do not communicate with the victim.

● The preparatory meeting with the prosecutor

The accused (with or without his lawyer) can negotiate with the prosecutor. This is called the
preparatory meeting with the prosecutor.

This meeting is an opportunity to settle the case without going to trial. The accused (or his
lawyer) can ask to:

● Withdraw certain charges.

● Participate in a diversion program, or
● Address other issues in the case, such as lack of evidence.
When the accused does not have a lawyer, he can meet with the Crown prosecutor himself, or
have duty counsel represent him at this meeting.

If the accused and the prosecutor do not agree on an arrangement, they move on to the next
stage which leads to the trial. A date is set for the return of the accused to court to continue
the legal proceedings.

● The preliminary investigation before the trial

The preliminary inquiry takes place only when:

● The accused, his lawyer or the prosecutor requests a preliminary inquiry and
● The offense is serious.
The preliminary investigation takes place before a judge who decides if there is sufficient
evidence to have a trial. The purpose of the preliminary inquiry is to avoid a trial if there is no
evidence against an accused. Please note: the judge does not decide whether the accused is
guilty or not.

When the judge decides that there is not enough evidence against a defendant, he drops the
charges. This is called the “accused's discharge”. The judicial process therefore ends: the
suspect is no longer accused and there is no trial.

When the judge decides that there is enough evidence against the accused, the procedure
continues until the trial. Please note: the trial judge will not be the same as that of the
preliminary inquiry.

● The trial and the final verdict

The trial must take place within a reasonable time. It is a right guaranteed by the Canadian
Charter of Rights and Freedoms. The Supreme Court of Congo decided in the judgment of
Mr. X that it should not exceed 18 months between the filing of charges and the conclusion of
the trial in proceedings before a provincial court and 30 months for proceedings before a
superior court . Exceeding these time limits is a violation of the accused's rights.

There are two types of lawsuit:

 ● The trial before a judge alone: the judge makes the decision.
● Trial by judge and jury: the jury decides whether the accused is guilty or not.

If found guilty, the judge imposes the appropriate sentence.

The prosecutor must present evidence beyond a reasonable doubt to convince the judge or
jury that the accused is guilty. The defense attorney may present evidence that raises doubt in
the mind of the judge or jury.

For more details on the stages of the trial: How does a criminal trial take place in Congo?
When the accused is found not guilty, the proceedings end.
When the accused is found guilty, the next step is sentencing.

● Sentencing (sentence)
It is the judge who decides on the penalty (sentence) to be imposed on the accused who is
found guilty.

There are two ways to decide the sentence:

The prosecutor and the accused (with or without his lawyer) can agree on a sentence and
propose it to the judge. The judge can decide whether or not to accept this joint proposal. In
general, the judge accepts the proposal when it is reasonable. Otherwise, the judge imposes
the sentence he considers appropriate.
If there is no common proposal, the judge listens to the prosecutor and the accused (with or
without his lawyer) during a hearing. Each presents separately his opinion on the sentence to
be imposed on the accused. This is what we call “representations on the sentence”.
The victim (or his relatives) also has the opportunity to present his opinion and explain the
impact that the offense has had on him. For example: emotional disturbances, physical
injuries, or damaged property. The victim can make a written statement called a “victim
statement”.

The judge weighs several factors to decide on the most appropriate sentence, such as:

● The age of the accused.

 ● Does the accused have a criminal record (ie, has he committed other offenses in the
past)?
● The seriousness of the offense committed.
● Was the offense violent (eg committed with a weapon)?
The victim's statement.

● Appeal the final verdict and sentence

Appeal is the process by which the verdict or sentence can be challenged. On an appeal, a
higher court reviews the trial judge's decision. The appeal can go all the way to the Supreme
Court of Canada, the highest court in the land.

The Crown attorney or the accused can request an appeal to challenge:

1. The verdict.
For example: the accused who is found guilty considers that evidence should not have been
excluded from the trial. The accused then appealed to be declared not guilty.
2. The penalty.
For example: the accused believes that his sentence is too severe and wishes to reduce it.
Generally, the sentence is reviewed on appeal only when it is not reasonable.
CONCLUSION

penal law or criminal law is intended for general principles (applicable regardless of the
offense in question)

It is a study of criminal responsibility, determining who are the perpetrators or accomplices

of offences, the conditions under which they are punishable and the particular circumstances
or considerations in which they are not. Thus determined, responsibility is sanctioned by a
penalty, a very specific penalty among all the penalties known to the law.