FIACAT expresses its support for the Working Group and questions the UN Secretariat’s decision not to grant a derogation on the 10,700 word limit on the Working Group’s annual report, as had been the case almost every year since that limit was introduced by the General Assembly in 1993.
The fact that no derogation was granted to the Working Group is all the more shocking because the report had been finalized by expert members of the Working Group at its 95th session in November 2011. The report was only published in English, which was a major impediment to its widespread distribution, particularly among civil society, and presented a serious obstacle to the Working Party fulfilling its mandate.
FIACAT thanks the Working Group for the mission report which it published following the visit it made to the Republic of Congo from 24 September to 3 October 2011. The aim of that visit was to assess the efforts made by the Republic of Congo to address the issue of enforced disappearances, including resolution of past cases of enforced disappearance.
FIACAT thanks the Republic of Congo for the invitation extended to the Working Group on Enforced and Involuntary Disappearances and for its cooperation during the preparation and performance of the mission.
FIACAT welcomes the recommendations made to the authorities following that visit, and in particular those concerning the need to continue enquiries, to incorporate into the Criminal Code the separate crime of enforced disappearance, and to ban secret detention and detention in unofficial centers.
INCORPORATION INTO THE CRIMINAL CODE OF THE SEPARATE CRIME OF ENFORCED DISAPPEARANCE
Under the Rome Statute establishing the International Criminal Court, enforced disappearance can be prosecuted as a crime against humanity when it is part of a widespread or systematic attack against any civilian population. However, the constituent elements of that crime are not specified.
FIACAT also regrets that the death penalty is applicable to the crime. Even if a de facto moratorium has been in place in Congo since 1982, FIACAT would like to see de jure abolition.
Acting on orders does not constitute an exonerating circumstance, but can be taken into account when the sentence is pronounced. Public prosecution and the penalties for these crimes have been declared not to be subject to the statute of limitations. The law has retrospective effect, insofar as it also applies to crimes committed before its promulgation.
The Congolese criminal code does not currently cover enforced disappearance as a separate crime, independently of its constituting a crime against humanity. FIACAT therefore calls on the Congolese authorities to incorporate into the Congolese criminal code the separate crime of enforced disappearance. The description of that crime must include a clear definition of the constituent elements of the crime of enforced disappearance.
FIACAT welcomes the fact that a review of the criminal code is being conducted, in cooperation, inter alia, with the European Union. It is essential to take this chance to place the separate crime of enforced disappearance onto the statue book, even before the Convention is ratified.
PREVENTION OF ENFORCED DISAPPEARANCES
Congolese criminal law would appear to contain the necessary guarantees on the prevention of enforced disappearances.
However, according to the information at FIACAT’s disposal, human rights NGOs have limited access to detention facilities. They first need to obtain authorisation from the Directorate General for Prison Administration. A detailed request has to be sent to that Directorate for each visit. The request is generally approved if gifts, foodstuffs and medicines are taken for the detainees.
The criminal code provides that a lawyer must be present when a person is being detained and that anyone remanded in custody can be examined by a doctor, and lays down provisions on legal aid. However, in practice, intervention by certain families belonging to the political classes or by human rights defenders is often needed before a doctor or a lawyer can visit the detainee.
Under the Congolese criminal code, the maximum permissible period of custody is 48 hours. However, it can take six months to a year for a case to come to court and, more often than not, it is up to the family of the detainee to press the Public Prosecutor’s Office for this to happen.
It is difficult to tell if the Prosecutor keeps records for all detention facilities, and especially for police stations.
FIACAT welcomes the conclusions and recommendations of the mission report and calls on the Republic of Congo to implement them swiftly and efficiently.
Human Rights Sessions
Item 3: Interactive dialogue with the Special Rapporteur on Enforced Disappearances