Related Rule
Democratic Republic of the Congo
Practice Relating to Rule 100. Fair Trial Guarantees
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Article 165
Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.
Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State.
Article 166
The grave breaches listed hereafter, affecting, by action or omission, the persons and objects protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, constitute crimes against humanity, repressed according to the provisions of the present Code, without prejudice to more severe penal provisions provided by the ordinary Penal Code:
4. Depriving a prisoner of war or a civilian person protected by the Conventions or Additional Protocols relative to the protection of persons in time of war of the rights of a fair and regular trial according to the regulations of those provisions;
Article 167
The offences contained in the preceding article are punished with penal servitude for life.
If those contained in points 1, 2, 5, 6, 10 to 14 of the same article lead to the death or cause grave injury to the physical integrity or health of one or several persons, the perpetrators are liable to the death penalty. 
Democratic Republic of the Congo, Military Penal Code, 2002, Articles 165–167.
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Article 106:
Subject to military jurisdiction are the soldiers of the Congolese Armed Forces and equivalent persons.
Equivalent persons means members of the National Police and the Builders of the Nation [bâtisseurs de la Nation] for acts committed during training and at the occasion of the exercise of their functions within the National Service.
Article 112:
Subject to military jurisdiction equally are:
5. Prisoners of war.
6. Members of insurrection groups. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Articles 106 and 112.
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Article 112:
Any soldier or equivalent person who, outside the cases provided for by the present Code, establishes and maintains a repressive jurisdiction, is punished with ten to twenty years of penal servitude, without prejudice to more severe penalties which can be incurred because of the execution of the sentences pronounced. 
Democratic Republic of the Congo, Military Penal Code, 2002, Article 112.
The Democratic Republic of the Congo’s Constitution (2006) provides:
Article 156
The military jurisdictions adjudge offences committed by members of the Armed Forces and the National Police.
In time of war or when a state of siege or emergency has been proclaimed, the President of the Republic, by a decision deliberated in the Council of Ministers, can suspend, in the whole or a part of the Republic and for the duration and the offences he designates, the penal law actions of the ordinary law courts and tribunals, in favour of the military jurisdictions.
An organic law designates the rules regarding the competence, organization and functioning of the military jurisdictions. 
Democratic Republic of the Congo, Constitution, 2006, Article 156.
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Book 1: Organization
Article 63:
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
Article 224:
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.
Article 225:
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.
Article 229:
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.
Article 243:
[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. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Articles 63, 224–225, 229 and 243.
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. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 62–63.
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. Regarding 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 or having examined victims and witnesses against him.
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. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 62–63.
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Article 326:
If the defendant sent or brought before the military jurisdictions for an offence could not be seized or, after having been seized, has escaped, or if, regularly summoned, he does not appear, the judgement, as far as it concerns him, is rendered in absentia.
Article 331:
If the judgement has not been personally served, an objection can be received until the expiration of the limitation period of the penalty. If the convicted person presents himself or if he is arrested before the penalty has expired by limitation, he is without delay notified of the judgement.
The notification, under penalty of nullity, includes the note that he can, within five days in time of peace and within 24 hours in time of war, lodge an objection against the judgement by declaration either at the time of its notification, or to the registry of the closest military jurisdiction, and that, after expiration of that time limit without objection having been lodged, the judgement will become definitive at the expiration of the time limits for demurring. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Articles 326 and 331.
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Article 230
The debates before the military jurisdiction are public.
If publicity is harmful to the military public order or morals, the jurisdiction orders proceedings in camera.
When in camera proceedings have been ordered, this equally applies to the pronouncement of incidental decisions.
The decision on the merits is always pronounced in public. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Article 230.
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Book 3: Procedure before the military jurisdiction
Article 272:
After having pronounced the judgement, the presiding judge, if applicable, advises the convicted person that he has the right to appeal the decision. He specifies the time limit.
Book 4: Specific procedures and various provisions
Article 331:
If the judgement has not been personally served, an objection can be received until the expiration of the limitation period of the penalty. If the convicted person presents himself or if he is arrested before the penalty has expired by limitation, he is without delay notified of the judgement.
The notification, under penalty of nullity, includes the note that he can, within five days in time of peace and within 24 hours in time of war, lodge objection against the judgement by declaration either at the time of its notification, or to the registry of the closest military jurisdiction, and that, after expiration of that time limit without objection having been lodged, the judgement will become definitive at the expiration of the time limits for demurring. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Articles 272 and 331.
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Article 18:
In time of war or in any other exceptional circumstances of a nature to endanger the life of the Nation, in particular threats of war, armed rebellion or insurrection, Operational Military Courts are established in the zones of war operation, which accompany the units of the army in operation.
The installation of Operational Military Courts is decided by the President of the Republic.
Article 276:
With the exception of the decisions rendered by the Operational Military Courts, the decisions and judgements of the Military Tribunals are subject to objection [opposition] and appeal [appel].
Article 279:
With the exception of the decisions rendered by the Operational Military Courts, during the circumstances contained in article 18 above, the decisions and judgements of the military jurisdictions are subject to annulment for violation of the law [annulation] and re-opening of proceedings after a conviction [révision] in accordance with the provisions of the present Code. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Articles 18, 276 and 279.
The Democratic Republic of the Congo’s Constitution (2006) provides:
The military jurisdictions adjudge offences committed by members of the Armed Forces and the National Police.
In time of war or when a state of siege or emergency has been proclaimed, the President of the Republic, by a decision deliberated in the Council of Ministers, can suspend, in the whole or a part of the Republic and for the duration and the offences he designates, the penal law actions of the ordinary law courts and tribunals, in favour of the military jurisdictions. However, the right to appeal cannot be suspended. 
Democratic Republic of the Congo, Constitution, 2006, Article 156.
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides: “No person legally acquitted can be taken up again or accused for the same facts, even under a different qualification.” 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Article 268.