Democratic Republic of the Congo
Practice Relating to Rule 100. Fair Trial Guarantees
Section E. Necessary rights and means of defence
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Book 1: Organization
The military judge proceeds to the designation of defence counsel to the benefit of a defendant in cases where the latter has not chosen one.
Book III: Procedure before the military jurisdiction
Titre II: Procedure before the military courts and tribunals
In time of war, under a state of siege or emergency, or at the occasion of an operation aimed at maintaining or re-establishing public order, the defendant is entitled, without formality or previous summons, to have heard, in his defence, any witness, by declaring him to the Officier du Ministère Public before the opening of the hearing, subject to the discretionary power of the presiding judge.
The defendant has the right freely to communicate with his counsel. The latter has the right to inspect or to obtain, at his own costs, a copy of all or parts of the proceedings, without, however, the meeting of the Tribunal being delayed by this.
In time of war, the military jurisdiction can grant a reasonable period of time to the defendant cited or directly taken before it, in order to allow him to prepare his defence.
This period of time must not exceed 24 hours.
[The presiding judge] reminds the defendant of the offence for which he is prosecuted and advises him of the right, given to him by the law, to say everything which is useful for his defence.
In 2008, a training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. When explaining the participation of victims and witnesses in the proceedings, the training manual states:
Certain victims and witnesses may collaborate with justice under the protection of anonymity, although the resort to such measure is obviously a serious violation of the rights of defence. There is thus a dilemma opposing, on the one hand, victims and witnesses, who claim their right to respect and protection; and on the other hand, the accused, whose right to a fair trial implies the possibility of examining the complete file of the proceedings …
Nevertheless, the protection of the identity of victims and witnesses is imposed by international tribunals in exceptional circumstances … [C]ertain proceedings before these tribunals take place when the conflict is ongoing or the situation in the field is far from stable. These factors increase the risk of reprisals and thus require the use of exceptional mechanisms of protection.