Anxious to endow the country with a powerful army,
disciplined and always ready to respond to all eventualities, the Congolese legislator has created and completely reorganized the military courts; these jurisdictions thus include repressive mechanisms that want to respond with equal effectiveness, different from peacetime and wartime, thus resolving the problems of judicial organization .
Indeed, military justice is shared between the different
military courts of judgments whose attribution competence belongs to all of these courts that the hierarchy constitutes the backbone of the military judicial organizations from which in each trial court we find, as in ordinary criminal justice, the military prosecution called “military auditorat” responsible for prosecution and instruction to ensure speed in the procedure and achieve a rapid and energetic repression of all acts contrary to discipline while safeguarding individual freedoms. And Law No. 023/2002 of November 18, 2002 on the Military Judicial Code provides for a set of jurisdictions which serve fully and completely, thus avoiding any improvisation during exceptional circumstances with the aim of maintaining military discipline relentlessly .
In review, the organization of military courts is
essentially repressive, is also governed, as in common law, by the principles: independence of courts and judges; and that of collegiality of the jurisdictions that the constitution of February 18, article 156 provides that3 “the military jurisdictions know the offenses committed by the members of the armed forces and the national police force in time of war or when a state of siege or urgency is proclaimed, the President of the Republic, by a decision deliberated in the Council of Ministers. Can suspend especially or part of the Republic and for the duration and the offenses it fixes, the repressive action of the ordinary courts and tribunals for the benefit of those of the military jurisdictions. An organic law establishes the rules of competence, organization and functioning of military courts “. This is the case with Law No. 023/2002 of November 18, 2002 on the Military Judicial Code Article 1 provides that: “military justice is rendered in the Democratic Republic of Congo by the following military courts:
§ military police courts;
§ military garrison courts;
§ military courts and operational military courts
§ the high military court ”. But alongside this organization, the same law provides for appropriate judicial personnel acting in order to make the functioning of the military courts dynamic and efficient .
However, it should be noted that the courts
military remain competent and only with regard to public action arising from purely military or mixed offenses or common law offenses committed by soldiers and persons assimilated to them; namely the agents of the national police are not justiciable of the military jurisdictions and that in accordance with art. 55 of Decree Law No. 022/2002 of January 26, 2002 on the institution, organization and functioning of the Congolese National Police. As for civilians, they are only made subject to military courts when they provoke, engage or assist one or more soldiers or assimilated to commit an offense against the law or military regulations; or when they commit offenses against the army5.
In addition, a National and Republican Army must have
a straight military criminal justice, disciplinary and humanist, that is to say an Independent and Republican justice which guarantees public order within the army, with respect for the republic.
The military judge remains at the top; a disciplinary judge
unlike his civilian colleague who is a judge of liberty; this character is particularly underlined at the level of the military police court and the operational military court where in particular a number of military jurors is reinforced, unlike other military courts. However, the discipline for which the military judge is responsible does not proceed from an authoritarianism that does not stop the avenues of arbitrariness. It proceeds strictly from the law. The rigor with which he views discipline is based on the consideration of the responsibility of all those who participate in the relationship of command and obedience .
Military judges, disciplinary judges, are therefore also judges.
responsibility and in this he joins his colleague who is judge of freedom; that military justice thus appears henceforth as an instrument of judicial power in the service of command, the guarantee of the legal and regulatory action of the judicial power in the armed forces; if its flexibility is structural to better integrate as much as possible with military realities, its permanence and professionalism protect it from the conjuncture and “tailor-made” .
As part of this study, we will have to reflect on
the rule set of military judicial law in order to capture both the organization, the competence and the functioning of the said courts in the law under consideration; such a study is certainly not without interest.
- Interest of the topic
Such a study cannot fail to be of such importance
that it brings into Congolese society only with regard to our military jurisdictions.
Indeed, the law n ° 023/2002 of November 18, 2002 on
military judicial code clearly reaffirm the principle of the legality of incrimination and penalties. Military justice thus appears as the guarantee of the legal and regulatory action of the judiciary in a military environment, to be assimilated by its permanence and professionalism. It is also in the same spirit and following the same principle, guarantor of discipline within the armed forces.
In practice, military justice is delivered in the
the need for permanent and unrelenting peacekeeping, special discipline in the armed forces and the establishment of the state of unity of the nation.
This constitutes the supreme safeguard of sovereignty
state and defense and unity of the homeland against external aggression and internal insurgencies.
- Research methods
Being a scientific support, the method is nothing else
than a rational approach taken by the researcher to understand, describe or explain the phenomenon he wants to study. This is therefore a way forward to reach clear and objective conclusions. It is in this sense that Grawitz defines method as a set of intellectual operations for which a discipline seeks to attain the truths it pursues, demonstrates and verifies .
In this work, we will use 3 methods namely:
legal method, descriptive method and documentary technique.
Indeed, the legal method is clear by the will of the
legislator to surpass us in return some texts of the laws relating to the Congolese military jurisdictions.
According to MUKUNA MUTANDA WA MUKENDI, the method
descriptive is the key method of scientific research, present at all stages and which consists in detailing all the observations made from the first impression of the phenomenon until its peeling which will help us to detail all the observations in the course of our work .
Finally, according to SHOMBA KINYAMBA SYLVAIN, the documentary technique allows the researcher to be present on the one hand and on the other hand documents supposed to contain the information sought, so these will allow us to use the documents supposed to contain the information sought at the material .
- Study delimitation
It is useful to limit this study in time and in
Certainly, depending on the time, the study will be devoted to
examination of the texts in force relating to the organization, competence and functioning of the Congolese military courts. Regarding space, the study will focus on Congolese territories.
- Summary plan
This study will include three main axes of which the
the first will be devoted to the organization of Congolese military courts; the second will deal with the jurisdiction of the Congolese courts and the third will deal with the functioning of the Congolese military courts.
Chapter 1: THE ORGANIZATION OF CONGOLESE MILITARY JURISDICTIONS
The organization of Congolese military courts finds
its basis on texts of the laws in force of the R.D.C.
As such, the constitution of the R.D..C of February 18, 2006
at the end of articles 149, 153 al 1 and 3 and 156 which provide that: “the judicial power is independent of the legislative power and the executive power .
It is devolved to the courts and tribunals which are: the court
Constitution, the Court of Cassation, the Council of State, the High Military Court, the civil and military courts and tribunals as well as the prosecution offices attached to this jurisdiction.
Justice is administered throughout the national territory on behalf of the people.
The judgments and judgments as well as the orders of
courts and tribunals are executed in the name of the President of the Republic. It cannot create extraordinary or special courts under any name whatsoever. The law can create specialized judgments.
The judiciary has a budget drawn up by the
Supreme Judicial Council and sent to the government for inclusion in the general state budget. The president of the court of cassation is the authorizing officer. He is assisted by the permanent secretariat of the Superior Council of the Judiciary ”; and Article 153 al. 1 and 3 adds: “a judicial order of jurisdictions is instituted, made up of civil and military courts and tribunals placed under the control of the court of cassation, apply duly ratified international treaties, laws, acts regulatory as long as they comply with the laws as well as custom as long as this is not contrary to public order or good morals. The organization, functioning and competences of the courts of the judicial order are determined by an organic law “. Finally, Article 156: “Military courts hear offenses committed by members of the armed forces and the national police. In time of war or when a state of siege or emergency is declared. The President of the Republic, by a decision deliberated in the Council of Ministers, can suspend on all or part of the Republic and for the duration and the offenses he fixes, the repressive action of that of the military jurisdictions, however, the right appeal cannot be suspended. An organic law establishes the rules of competence, organization and functioning of military courts “.
In addition, Law No. 23/2002 of February 18, 2002 on the Code
military justice, article 1 states that: “military justice is rendered in R.D.C. by the following military courts:
§ military police courts;
§ the military garrison courts;
§ military courts and operational military courts; § the high military court ”.
Section I: General Provisions
The report accompanied this code of military justice
as conceived by the latter presents the military courts in accordance with article 1 of it under examination as a pyramid having at its top the high military court and at its base the military police courts; It is thus that at all times the military judicial courts, whose attribution competence belongs to the whole of this jurisdiction, that the hierarchy constitutes the backbone of the military judicial organization. Near each trial court we find, as in ordinary criminal justice, the military prosecutor’s office called an “auditorate” responsible for prosecution and the institution. To ensure speed in the procedure and to achieve a rapid and energetic repression of all acts contrary to discipline.
§ I. Military Judicial Personnel
Following Law No. 023/2002 of November 18, 2002
relating to the military judicial code, article 3 al 1 stipulates that: “military judicial personnel include magistrates, judicial officers as well as judicial police officers of military prosecutors.
Indeed, we first point out that the military magistrate
do not have their own status; the latter are governed by the statute of officers of the armed forces as it results from the decree of June 9, 1965 and by the statute of civil magistrates. The members of the military justice corps have the quality of soldiers, by said quality, they form the military justice corps, they have the obligation to accept in time of war or in period of trouble or conflict under threat of penal or disciplinary sanctions in the army, the judicial posts which may be assigned to them in the army, from which the military magistrates whether they are of the seat or of the prosecution are invested with the rank of officer including the substitute of the auditor is recruited at the rank of second lieutenant.
On the other hand, the Auditor General of the Armed Forces benefits
of all the advantages granted to the Deputy Chief of Staff. Military auditors, chief clerks, judicial inspectors. The first secretaries, the chief prison inspector, enjoy the advantages granted to the chief of staff of the military region. However, the initial salary cannot be lower than that enjoyed by magistrates and agents of the other civil jurisdiction having the same rank.
In dear, it is good to specify that the military magistrates
are also bound by the rules of judicial ethics. Hence we will point out that the transfer of the military magistracy within the framework of the civil magistracy can be authorized by the President of the Republic either at the request of the person concerned, or even on the proposal of the State Commissioner for National Defense whose final transfer can be done with or without promotion in accordance with the status of officers or without an officer of the armed forces.
Military magistrates are recruited from among the licensed or
Doctors of Law from the National University of Zaire or foreign universities according to the equivalences accepted by the Department of National Education.
In addition, we say first on the criminal level, the code
military judiciary specifies that legal proceedings against military magistrates take place before the General War Council (High Military Court) and in the same and with the same procedure as is provided against civilian magistrates. They can only be procured by the State Commissioner for National Defense and the Auditor General of the Armed Forces.
The other members of the military justice body (auxiliaries) are prosecuted like other officers of the armed forces, the law not having established a specific procedure in their regard. However, it is believed that the Auditor General can authorize the opening of prosecutions and it is quite obvious that the State Commissioner for National Defense can issue an order against these officers.
From a disciplinary point of view, the members of the
bodies of military justice are governed by their own disciplinary regulations resulting from ordinance law n ° 71/082 of September 2, 1971 which instituted penalties not only deferent to those provided for other members of the armed forces but also that provided for civil magistrates and agents of the judiciary.
In this regard, art 6 of this ordinance provides for the
following disciplinary sanctions:
- home delivery with or without access for a maximum of 30 days;
- withholding of one third of the salary for a period not exceeding one month;
- suspension of function by order;
It is true to present that the disciplinary sanctions
apply to the slightest breach of service discipline or less serious faults in social and human relations. Hence, apart from this list, Article 32 of the said law provides that: “career disciplinary sanctions punishing criminal offenses as well as serious misdeeds affecting order within the military community, of which it it’s about :
§ the reprimand;
§ suspension for a maximum of 3 months with provision for any compensation;
Of course, we will observe that this exercise of action
disciplinary procedure is reserved exclusively for hierarchical superiors of military justice . It is said that with regard to the military magistrate this disciplinary power is exercised by the auditor general of the armed forces with regard to the white, the home deposit with or without access; the state commissioner for national defense takes over with regard to holding and suspension.
On the other hand, for the auxiliaries of justice the power is
exercised by the military auditor with regard to white; by the Auditor General with regard to home storage with or without access; and restraint. Lastly by the state commissioner for national defense with regard to the suspension12.
In short, career disciplinary sanctions provided for by art 32 subordinated to a special extra-judicial procedure of the disciplinary council. It is only members of the military justice corps who can be appointed to compose the disciplinary council.
§2. Military Courts and Tribunals
Following Law No. 023/2002 of November 18, 2002
bearing the military judicial code as conceived; presents the military courts as a pyramid having at its top the high military court and at the base of the military police courts, of which article 1 of the aforementioned law provides that: “military justice is rendered in the Democratic Republic of the Congo by the following military jurisdictions:
§ the high military court
§ the military court and the operational military court;
§ military garrison courts
§ the military police courts ”
So we are examining the military courts on the one hand
higher and lower military courts on the other.
A. The High Military Court
With regard to the high military court, this law
under review under article 6 stipulates that14: “a high military court is established, the ordinary seat of which is in the capital. Its jurisdiction extends above all to the territory of the Republic “.
It should be said that the said military high court still finds its flourishing from the point of view of organization at the end of provisions 7 to 11 of the aforementioned law.
B. Military courses
The latter, are changed at the end of article 12 which
states: “One or two military courts are established in the territorial jurisdiction of each province and in the city of Kinshasa. The ordinary seat of the military court is established in the capital of the province in the locality where the headquarters of the military region is located or in any other place determined by the President of the Republic. “
Thus, it is true to add that apart from article 12, articles 13 to 17 of the law under consideration provide a description of the organization of military courts.
C. Of the Operational Military Court
It should be said that the latter in accordance with the law
cited above at the end of Articles 18 to 20 that the latter stipulate that : “in the event of war or in any other exceptional circumstances likely to endanger the life of the nation, in particular threats of war, rebellion or death. he armed insurrection, operational military courses which accompany fractions of the army in operation are established in the war zone.
The establishment of operational military courts is
decided by the President of the Republic “thus article 19 adds:” the operational military court know, without limit of territorial competence, all the offenses falling within the military jurisdictions which are referred to them “. Finally, article 20 concludes with this term: “the operational military court has a number of five members, including at least one career magistrate, they are as much as possible in the rank of senior officers. It sits with the assistance of the public prosecutor. It has the rank of a military court ”.
D. Military Garrison Courts
It is obvious that under the said law, the latter at
term of Articles 21 and 22 which enumerate that : “There shall be established one or more military garrison courts within the jurisdiction of a district, town, garrison or military base. The ordinary seat is fixed at the county seat of the district, in the city where the headquarters of the garrison is located or in a place fixed by the President of the Republic “further article 22 specifies:” The military courts of the garrison is composed of a president and judges.
It has five members, all officers
superiors or subordinates, including at least one career magistrate. And the assistance of the clerk. It is chaired by a senior or subordinate officer, career magistrate.
E. Military Police Courts
It is true to specify that the latter, at the end of Article 23 which provide that: “it establishes one or more military police courts within the jurisdiction of a military garrison court” and articles 24, 25 and 26 list for the rest of the functioning of the police courts.
§.3. Common Provisions of the High Court, Military Courts and Tribunals
Like the law in force governing the courts
military under Articles 36 and 37 provide : “In all cases, members of the high court, military courts and tribunals shall exercise their functions until the end of the proceedings.
When a case is likely to lead to lengthy debates, substitute members may be called upon to attend the hearings in order to replace, if necessary and for a cause duly noted, the members who are unable to attend.
In the case of the replacement of an effective assessor judge by a substitute member, the president shall give the latter a summary of the debates “thus article 37 adds:” The organization of the high court, the courts and military courts is governed by the principles of independence of judges and collegiality of seats, in accordance with the provisions of the code of organization and judicial competence.
However, for reasons related to the best interests of defense, the Minister of Defense, on the proposal of the first president of the military high court, can decide on the displacement of one or more military judges “.
Section II. Of the Military Public Ministry
Our law entrusts to a single body, the public prosecutor,
the functions of prosecution and investigation, that the latter, public prosecutor or military auditorium of its dual roles of investigation and prosecution is an essential element of our military jurisdictions. They must be considered successively in the principle which dominates them, in its structure and in its attributions .
§1. General notions
In Congolese military criminal law, the general notion of
prosecution is based on the principle drawn from article 171 of the code of military justice which stipulates that the officers of the public prosecution of the armed forces, have in terms of instruction the same powers as their civilian colleagues in accordance with the code of ordinary criminal procedure .
Indeed, the preparatory instruction which tends to bring together or
to collect the evidence includes all the parts of the trial which tends to the discovery of the offense at the judgment while the prosecution consists in the exercise or the setting in motion of the public action born of the offense, that which is of it charge supports the accusation before the court martial in other words, he is plaintiff in the criminal trial. Hence in his various functions the public prosecutor is assisted by the judicial police officers in charge of the preliminary investigation as well as the execution of delegated requisitions addressed to them.
On the other hand, we say that the organ of the prosecution
is organized by the presence of an officer or a representative of the prosecution in each military trial court, which is one of the fundamental principles of judicial organization.
This requirement is applied by the fact that the public prosecutor
as in common law is main party in each criminal trial, or when the prosecution is set in motion by the civil party; no military court can therefore properly instruct or judge if one of the members of the prosecution service is not present and has not been heard. The judgment or judgment must expressly contact this presence, which is explained by the statement of article 41 which states that : “the public prosecutor exercises public action and requires the application of the law.
• he is represented before each military court.
• He attends the debates of the military courts.
• He takes written requisitions under the conditions provided for by this code.
• He freely presents oral observations
• All decisions are pronounced in his presence.
• It ensures the execution of court decisions “.
§2. From the Auditor General of the Armed Forces
In itself, it should be said that the judiciary stands which
forms the military prosecutor’s office responsible for exercising public action by requiring the application of the law, is established as follows:
§ At the top we find the Auditor General who is attached to the Department of National Defense of which we find the Auditor General who is the head of the military justice body. He is appointed and dismissed by the President of the Republic. He must have a doctorate in law or, failing that, have a license in law, over 30 years of age, he supervises the actions of military auditors, clerks, judicial inspectors, prison inspectors, officers of the judicial police, military justice, the keeping of their register and writing, the conservation of the archives, the conduct of auxiliary agents and all that relates to the administration of justice.
He is the legal adviser to the State Commissioner for
defense. He performs the same function with the captain general of the armed forces. He reports to the State Defense Commissioner any irregularities noted in the service and any measures necessary to ensure the execution of the law.
He is responsible for the execution of the judgments of the war council
general. He can directly address the units of the armed forces in areas of interest to military justice. He exercises these functions in peacetime and wartime under the exclusive and direct control of the State Defense Commissioner and in wartime under a state of siege or emergency. It is placed under the inclusive authority of the chief executive.
The auditor general may have one or more prime
substitutes and these substitutes must be at least licensed in law, aged 30 years. They are appointed and dismissed by the President of the Republic. He can be replaced by one of these first substitutes or substitutes in all acts of these functions. In case of impediment, the oldest first substitute or substitute replaces him as of right. As head of the body, he exercises disciplinary power over all of the military justice body. He has control over everything related to the administration of military justice. The first substitute participates especially in the direction of the general auditor .
By way of all that we have said, it should be
reveal that under Law No. 023/2002 of 18 November 2002 on the Code of Military Justice, at the end of Article 42 provides : “the Auditor General of the Armed Forces fulfills the functions of an officer of the public prosecution high military court and can exercise the same functions near all the military jurisdictions established on the territories of the Republic.
The exercise of public action, in all its fullness and
before all military courts belongs to the auditor general of the armed forces
The Auditor General of the Armed Forces has the right to order
for military magistrates to instruct, prosecute or refrain from prosecution. He is the hierarchical chief of the magistrates of the military public ministry. He is appointed and, if necessary, relieved of his functions by the President of the Republic ”.
AUDITORS AT COURTS AND COURTS
It should be said that the latter are named and
dismissed by the President of the Republic and must be at least 25 years old legally licensed. He keeps a register of notices in which are entered, in order of date, any denunciation or complaint received by him and any other proceedings initiated, with his decision, until referral to the trial court. On the first of each month, he sends the Auditor General a copy of the notice for the month.
He cannot communicate legal documents to others
people without permission from the Auditor General. He has an obligation to visit the prisons where soldiers are held. He informs the Auditor General of any irregularity he finds there when he takes office, he draws up an inventory of the archives and the objects for which he is responsible.
He sends a copy to the Auditor General, of which the latter
is responsible for the execution of the decisions of the council of wars of the region, It ensures the internal administration of the military auditor of which he is the head.
Of course, the military auditor may have one or more
first substitutes who must be at least licensed in law and 21 years old fulfills. They are appointed and dismissed by the President of the Republic. The military auditor may be replaced by one of these substitutes, the first substitute or the oldest substitute. They are chosen from among the military auditors. The first substitute for military auditors is appointed by the President of the Republic as the magistrates of the public prosecutor’s office; they must be at least licensed in law .
Finally, it should be said that the military magistrates of the
headquarters enjoy the advantages, prerogatives, rights and privileges recognized to their civilian colleagues; because the State Commissioner can decide on their displacement for the superior interest of military defense or the requirements of discipline: in addition, law n ° 023/2002 of 18 November 2002 at the end of article 48 provides [22 ]: “It is instituted near each military court a superior military auditor appointed and, if necessary, relieved of his functions by the president of the republic”.
The senior military auditor exercises, under the supervision and
the control of the general auditor of the armed forces, the functions of public prosecution in all military jurisdictions established within the jurisdiction of the military court.
He has the fullness of public action before all
military courts within the jurisdiction of the military court. He is assisted by one or more military attorneys general and substitutes for the senior military auditor, appointed and, where appropriate, relieved of their duties by the President of the Republic “.
Section III: Military Auxiliaries of Justice
The body of military justice includes other
magistrates, clerks, secretaries, inspectors, prison inspectors, judicial police officers and military personnel permanently attached to military courts.
A. Military Registrars
Judgments are provided in each military jurisdiction
a military clerk appointed by the President of the Republic on the proposal of the state commissioner for national defense, the candidate military clerk must meet the conditions required to be appointed to the same function as the clerk of ordinary jurisdiction but these candidates are not required for a career military candidate.
In itself, the military clerks bear the titles of clerk
principal, if he is the senior officer. He has the rank of clerk of the court of appeal while he will have that of the principal clerk of the court of first instance if he is a junior officer. In this, we say that the provisions of the law of judicial organization relating to the clerks of the common law courts are not contrary to the provisions of the code of military justice; also applies to military clerks subject to the internal regulations of the military jurisdiction to which they are assigned.
On the other hand, the powers of the military clerk are
identical to that of the civil clerk like his civilian colleague, the military clerks assist the judgment in all the acts of his ministry. He signs them with him, he is responsible for drafting the minutes of the hearing and the transcription of judgments and judgments .
Indeed, the military clerks as we have just had to,
plays an important role in the administration of justice over the course of the trial. He keeps the minutes, register and all acts relating to the jurisdiction near which he is established. He delivers the grosses, dispatch and extract of judgment and written order which pronounced or dictated by the judges and addresses the acts of various formalities whose fulfillment must be noted. For all acts of their functions, the clerks are placed under the supervision of the permanent judge or the permanent adviser as the case may be.
In dear, military clerks never attend the
judgment deliberation. In certain cases, they can act as secretary of the auditor’s office, failing this .
In conclusion, we say that the clerks
military under the aforementioned law, on the basis of article 53 enumerates that : “a registry composed of military clerks is established in each court or military tribunal. The registries of the high military court and headed by a chief registrar, assisted by one or more senior registrars. They are senior officers. Military court registries are headed by a senior clerk, assisted by one or more division clerks.
They are at least junior officers. The registries of the military garrison courts are headed by a divisional registrar, assisted by one or more first or second class registrars. The clerks of the military garrison courts also sit on the military police court. They are junior officers ”.
B. Secretaries of the Military Auditors
The code of military justice to be introduced in
the military judicial organization, the functions of secretary of the military prosecution or military auditor. It thus provides in each military auditorium for a secretary appointed by the President of the Republic on a proposal from the State Commissioner for National Defense.
Indeed, the secretary of the military auditorium filled in the same
function as his colleague from the civil prosecutor’s office. This consists more precisely in keeping the secretariat of the auditor. The appointment of the auditor’s secretary is subject to the same conditions as that of his civilian colleague.
In this, no one can be appointed secretary of the auditors
military if he does not meet the conditions required to be appointed to the same function in the civil prosecutor’s office if he is a career military candidate. The secretary of the general auditor at the general war council bears the title of first secretary if he is a senior officer, he has the rank of the first secretary of the general prosecutor’s office of the Republic. While he will have the first secretary of the general prosecutor’s office near the appeals court if he is the junior officer.
Besides, it can have an assistant, assistants. The Secretary
of the military auditorat near the regional war council bears the title of principal secretary. He has the rank of the first superior and that of the principal secretary of the prosecution at the court of first instance if he is a subordinate officer. It may have one or more assistants .
By conclusion, we say that confers the law under review,
at the end of articles 57 and 58 which provide : “A secretariat is established in each military auditorium, comprising military secretaries. The secretary of the general auditor at the high military court is headed by a first secretary, assisted if necessary by one or more principal secretaries. They are senior officers.
The secretary of the military garrison auditorates wears the
title of divisional secretary. They may be assisted by one or more first or second class secretaries. They are junior officers. The secretary of military auditors fulfills the same function as those of civil prosecutors “and article 58 adds” The secretaries of military auditors are appointed and, if necessary, relieved of their function by the President of the Republic in accordance with the statute which governs. No one can be appointed secretary if he does not fulfill the conditions required to be appointed to the same function at the civil prosecutor’s office ”.
§.3. Agents of the Judicial Police
It should be said that the agents of the judicial police of
Military prosecutors are officers and agents exercising the function of judicial police within the army and placed at the disposal of the military judicial authorities by the State Commissioner for National Defense.
Indeed, their hierarchy corresponds to that of their colleagues
civil prosecutors; they are placed among the gendarmes or other officers having the quality of judicial police officer and if necessary, civilian candidates from the training center for judicial personnel can also be appointed in this capacity by the President of the Republic [28 ].
Thus, we say that their organization allows
including non-commissioned officers, officers and military soldiers also provide court police.
In this regard, we say that at the top of their hierarchy,
there is the judicial inspector attached to the general auditor and who bears the title of chief judicial inspector. If he is a senior officer, he has the rank of Chief Judicial Inspector of the General Prosecutor’s Office of the Republic and that of Chief Judicial Inspector, of the General Prosecutor’s Office at the Court of Appeal if he is a junior officer.
In addition, it may have one or more deputies of the
judicial inspectors of military prosecutors who carry the title of chief judicial inspector. If they are senior officers, they have the rank of chief judicial inspector of the general prosecutor’s office at the appeals court. While they will have that of Chief Judicial Inspector if they are in the rank of junior officer; they may also have one or more assistants .
By way of all we just said we shoot
a conclusion that the latter in accordance with the law n ° 023/2002 of November 18, 2002 on the military judicial code under the terms of its articles 59 and 60 which stipulate : “the agents of the judicial police of the prosecutors are police officers judicial. The judicial police of the auditorat general is headed by an inspector general, assisted by one or more chief judicial inspectors. They are senior officers.
The judicial police of military prosecutors at military courts, near military garrison courts, are headed by a divisional judicial inspector, assisted by one or more senior judicial inspectors and first and second class judicial inspectors. They are at least junior officers.
Have the quality of judicial police officers of the armed forces, non-commissioned officers of the armed forces and sworn officers of the various services of the armed forces for the exercise of the particular missions assigned to them by laws and regulations.
In the latter case, they take action only on offenses committed in their respective units or services or on persons placed under their command and in the territorial area assigned to them for the exercise of their administrative functions.
The soldiers of the military provost who are not officers of the judicial police of the armed forces are also entitled to carry out preliminary inquiries under the conditions provided for by this code “thus article 60 adds:” the inspectors of the judicial police military personnel are appointed and, where appropriate, relieved of their duties in accordance with the statute which governs them ”.
§4. Prison inspectors
Schematically we say that within the body of
military justice military personnel responsible for the prison administration of the entire military prison.
Indeed, we see a body of prison inspector
With the title of Chief Prison Inspector who is at the head of the prison service. He must be at least licensed in law or criminology. His initial salary is equal to that of the Chief Judicial Inspector. He is a military magistrate and will be equal to that of the audience.
In short, he can have one or more assistants in the military penitentiary organization and it may have one or more assistants who have the rank of military officer .
§ 5. Defenders
Conversely, anxious to ensure the protection of guarantees
individuals and to safeguard fundamental human rights at the same time to achieve sound application of the law, Law No. 023/2002 of 18 November on the Military Judicial Code; thus instituted the principle of defense to enlighten the opinion of the military judge.
Indeed, to strengthen the protection of freedoms
individual the constitution of February 18, 2006 article 19 which enumerates that : “no one can be neither withdrawn nor distracted against his will that the law assigns. Everyone has the right to be heard within a reasonable time by the competent judge. The right to defense is organized and guaranteed.
Everyone has the right to defend themselves or to
to have a legal defender of his choice assisted at all levels of criminal proceedings, including investigation and pre-judicial investigation.
She can also be assisted in front of the
security. “; This principle is also accepted at all times with regard to all litigants in military criminal law.
On the other hand, the right of defense of any person
subject to military jurisdiction is provided at his choice by national lawyers registered with the bar. On the other hand, it follows that a foreign lawyer cannot plead before the military courts as well as a legal defender.
In conclusion, we say in relation to the law
under examination, at the end of article 61 which provides : “the defense of defendants before military courts is provided by lawyers registered with the bar by legal defenders and soldiers approved by the president of the court. The lawyers, legal or military defenders approved referred to in the first paragraph above must be of Congolese nationality “.
§ 6. Experts, Interpreters and Translators
It is much more to say that about experts,
interpreters and translators that a synthetic analysis is made as follows;
Indeed, an expert is any person appointed by the judge
to verify an account or give a specialist opinion in a matter.
In addition, an interpreter is a person who translates
orally the words of one language in another for which the latter is responsible for declaring, for making known the wishes and intentions of another.
Finally, a translator is a person who translates
works from one language to another.
In short, it should be said that following the law under review in
term of Article 64 which enumerates35: “Before carrying out the acts of their ministry, the experts take the following oath:” I swear before God and the nation, to accomplish the acts of my ministry in honor and conscience and ‘report it’.
Interpreters and translators take the oath
following: “I swear before God and the nation to faithfully fulfill the functions entrusted to me”.
§ 7. Provisions Common to Magistrates, Judges and Military Judicial Persons
It should be said that with regard to the latter, Law No. 023/2002 of 18 November on the Military Judicial Code, under the terms of Articles 66 and 72 which stipulate that : “before taking up , the military magistrates take before the president of the republic in person, or in writing, the following oath: “I swear before God and the nation, obedience to the constitution and the laws of the republic, and to fulfill loyally and faithfully the functions entrusted to me “. furthermore we say that article 72 adds:” the military magistrates, the agents of the judicial order and the judicial police agents of the military prosecutors enjoy the same rights, advantages and privileges as their civilian colleagues “.
In short, it would be useful for us to bring to our knowledge what concerns the organization of Congolese military courts; that the latter constitute a pyramid with five scales. That article 1 of the law under review provides: “military justice is rendered in the Democratic Republic of Congo by the following military courts:
• Military police courts;
• Military garrison courts;
• Military courts and operational military courts:
• The high military court ”.
Thus, we have a structure of judicial personnel
military, article 3 paragraph 1 of the said law provides that: “military judicial personnel include magistrates, judicial officers as well as judicial police officers of military prosecutors”.
CHAPTER II: JURISDICTION OF CONGOLESE MILITARY JURISDICTIONS
In relation to the latter, we say that the
constitution of February 18, 2006, article 156 provides that : “military courts hear offenses committed by members of the armed forces of the national police. In time of war or when the state of siege or emergency is proclaimed, the President of the Republic, by a decision deliberated in the Council of Ministers, can suspend especially or in part of the Republic and for the duration and the offenses which ‘he fixes the repressive action of the ordinary courts and tribunals for the benefit of that of the military jurisdictions. However, the right to appeal cannot be suspended.
An organic law sets the rules of jurisdiction,
organization and functioning of military courts. “In addition, law n ° 023/2002 of 18 November 2002 on the military judicial code provides in articles 73 to 74 that :” military courts and tribunals have full jurisdiction to judge individuals brought or referred to them for the offenses foreseen and punished by law ”. Thus article 74 adds: “Submission to military laws begins for soldiers and volunteers of all categories from the moment an agent committed for this purpose makes them, after having previously read to them the military laws, the declaration that ‘they are subject to these laws.
The completion of these two formalities is recorded by a report by the agent and the recruit or, if the latter cannot sign by the agent and two witnesses “.
Indeed, jurisdiction is the ability of a court
determined to judge given cases. In military criminal law the competence of attribution of military courts belongs to all these courts which can be defined as being the recognized ability of a military court to recognize cases submitted to it or given cases.
On the other hand, in the countries which are instituted justice
military, the extent of power to be recognized for it has often given rise to discussions of this power, other or contrary, favorably consider an extension of these, because this one is a question essentially dominated by the principle which wants military discipline to be maintained permanently and without revenge, discipline without which there is no army
Conversely, to achieve the maintenance of such discipline,
what competence should we recognize in the courts of the armed forces .
It should be said on this subject, that there are two theses
opposites between which the legislator is obliged to choose:
§ or one determines the competence of the military court by considering that the nature of the acts, to judge, without occupying of the quality of the people who carried out them thus the military jurisdictions only know of the infractions envisaged with the code of military justice. Common law offenses committed by persons belonging to the army; outside the jurisdiction of military courts in favor of ordinary courts, this is the so-called real or material jurisdiction system40.
Conversely, without worrying about the nature of the act,
accomplished, consider exclusively the quality of the person to be judged: a certain category of individuals become subject to a specific jurisdiction for all the acts they have performed.
In expensive, the military courts are thus competent
to try all persons with military status for all offenses of any kind that they may commit, whether these offenses are common law or purely military; it is the system of personal competence, the supporters of the system of personal competence are based on the idea of discipline to justify it, they believe in fact that when a soldier commits an offense of common law, he disturbs the social order ; and also the internal public order of the army. This is what a French general LAMGLOIS said in other words: “everything we do when we belong to the army, we do it as a member of the army” in other words any offense committed by the military, even outside of service, always undermines discipline and the proper functioning of the army. He adds another argument which is based on the idea that the interest of discipline requires, there is only one authority to judge the military, the soldiers if one makes him fear an authority other than the authority. military one believes will respect the latter all the less.
On the other hand, in support of this thesis is based on the speed
of repression, it is considered that the interests of discipline demand a rapid repression that that of the procedure of the military tribunals make it possible to obtain and that it is also contrary to the honor of the army to see on the benches of acquired by common law, the sacred military uniform soiled by contact with a reactivist of common law .
In addition the supporters of the real competence system
or material consider, on the contrary, that it does not cause military jurisdiction to duplicate common law tribunals. Their powers must be conditioned only on breaches of discipline, on those which directly affect this particular order of the army.
Thus, we will explain that at this level, a
more special branch applied especially to members of the armed forces, to their assimilated, to co-actors, to accomplices of military offenses, to perpetrators of offenses committed by means of weapons of war, to persons following the army, as well as to all perpetrators of acts detrimental to the heritage of the army, the national police or the national service. This discipline is none other than military criminal law, which is known as a special branch of criminal law aimed at preventing by threat and if necessary repressing the application of the various sanctions (penalties and security measures) actions or inaction likely to disturb military public order within the army 
Section I: Material Competence
Like, we say that this material competence of
military jurisdictions under the law n ° 023/2002 of November 18, 2002 is devolved at the end of article 76 which enumerates : “The military jurisdictions know, on the territory of the Republic, offenses of a military nature punished in application of the provisions of the military penal code.
They also know all kinds of offenses
committed by soldiers and punished in accordance with the provisions of the ordinary penal code. They are competent to interpret administrative, regulatory or individual acts and to assess their legality when, on this examination, the solution of the criminal proceedings submitted to them depends on.
They are incompetent to rule on the
constitutionality of laws and acts having the force of law, the exceptions raised to this effect are brought before the Supreme Court of Justice which rules, all cases ceasing, as a constitutional court.
Remedies for violation of the provisions
Constitutional by military courts are brought before the Supreme Court of Justice acting as constitutional court ”.
§1. Of the High Military Court
From the point of view of material competence, this is
materially competent on the basis of articles 82 and 83 which enumerate that : “the high military court hears, as a first and last resort, offenses of any kind committed by the persons listed in article 120 of this code”. Thus the article adds: “The military high court also hears appeals against first degree judgments handed down by military courts.
The decisions of the high military court are not susceptible
than opposition, in accordance with common law procedure. However, appeals for violation of constitutional provisions by the high military court are brought before the Supreme Court of Justice sitting as a constitutional court.
The high military court may at the request of the hearing
General of the armed forces or of the parties rectify the material errors of its judgments or give an interpretation thereof, the parties heard ”.
§2. Military courses
With regard to the latter, we say that its competence
material is based on the terms of Articles 84 and 85 which provide45: “the military courts hear at first instance the offenses committed by the persons listed in Article 121 above.
It also hears the appeal of judgments rendered at first instance by the military garrison courts “. In addition, article 85 reaffirms “judgments handed down by first-degree military courts are open to opposition and appeal”.
§3. Operational Military Courses
It should be said that the material competence of the courts
operational military extends under the terms of Articles 86 and 87 which provide : “operational military courts are aware of offenses of any kind committed by persons under military jurisdiction”. In addition we say that Article 83 states: “the judgments rendered by operational military courts are not subject to appeal”.
§ 4. Military Garrison Courts
In itself, military garrison courts are based on
based on provisions 88 and 89 which provide47: “the military garrison courts hear offenses punishable by the death penalty and that punishable by a penalty of more than one year committed by persons specified in Article 122 paragraph 1 below.
They are also aware of the appeal for judgment rendered in
first instance by the military police courts “: thus article 89 adds:” the judgment rendered in the first instance by the military garrison courts is subject to opposition and appeal “.
§5. Military Police Courts
It should be said that the latter, their skills
based on articles 90 enumerates that48: “the military courts deal with offenses punishable by one year of penal servitude at most, committed by persons specified in article 122 below.
They also have jurisdiction over other offenses where, due to the circumstances, the military prosecutor considers that the sentence to be imposed should not exceed one year of penal servitude, a fine and deprivation of rank “.
Section II. Personal and Territorial Competences of Congolese Military Jurisdictions
It’s good to say that unlike material competence,
military courts have full jurisdiction over persons which is dubbed personal jurisdiction; in addition, the latter still have full jurisdiction over the territories of which these different jurisdictions occupy as a jurisdiction called territorial jurisdiction.
47 47 Law n ° 023/2002 of November 18, 2002 on the military judicial code, articles 88 and 89 48 Aforementioned law articles 90
§1. The Personal Jurisdiction of Military Courts
It should be noted that military courts are
find competent with regard to certain persons whose law n ° 023/2002 of November 18, 2002 on the military judicial code on the basis of articles 104 to 106 provide that : “the personal competence of military courts is determined by the quality and the rank that the litigant carries at the time of the commission of the incriminated facts or at the time of his appearance “. Thus article 105 adds:” when there is a plurality of ranks or different ranks, the rank is taken into account. and of the highest rank ”. Finally, article 106 concludes: “the military courts, the soldiers of the Congolese armed forces, and the like are justiciable.
By assimilated, we mean the members of the police national and nation-builders for acts committed during training or during the performance of their duties in national service “.
This work is an English translation, the original of which can be found at: https://www.congovirtuel.com/page_mundele.php