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Organic Law No. 13/010 of 19 February 2013 on the procedure before the Court of Cassation
Statement of Reasons,
PART 1: GENERAL PROVISIONS CHAPTER 1: DE L'INTRODUCTION ET DE LA MISE EN ÉTAT DE CAUSE CHAPTER II: OF THE COMPUTATION OF THE CHAPTER III: OF THE COURT AUDIENCE CHAPTER IV: INCIDENTS CHAPTER V: RESTS CHAPTER VI: AND EXPENDITURE PART II:PROCEDURE FOR CASSIFICATION CHAPTER 1: COMMON PROVISIONS CHAPTER II: PROVISIONAL REGULATIONS TO THE LAW OF THE LAW CHAPTER III: PROVISIONAL RULES FOR THE PENAL CASSIFICATION PART III: SPECIAL PROCEDURES FOR CASSATION CHAPTER 1: DE LA PRISE A PARTI CHAPTER II: LEGALIZATION CHAPTER III: RULES OF JUDGE CHAPITE IV : DE LA REVISION PART IV: PROVISIONAL FOREIGN AGAINST PERSONS ARTICLE 153 ALINEA 3 OF THE CONSTITUTION CHAPTER 1st: FOREIGN AGAINST MEMBERS CHAPTER II: PRODUCTS CONTROLING GOVERNMENT MEMBERS OTHER THAN THE FIRST MINISTER CHAPTER III: PRODUCTS CONTROLING PERSONS ARTICLE 153, ALINEA 3 OF THE CONSTITUTION OTHER THAN THE PARLEMENTARY AND MEMBERS OF THE GOVERNMENT PART V: TRANSITIONAL AND FINAL PROVISIONS
Organic Law No. 13/010 of 19 February 2013 on the procedure before the Court of Cassation
Statement of Reasons
The Constitution of 18 February 2006 a established, in its article 153, an order of judicial order comprising the Civil and Military Courts and Tribunals under the control of the Court of Cassation.
The breaking of the Supreme Court of Justice in three jurisdictions, to knowledge: the Court of Cassation, the Council of State and the Constitutional Court a driven to reform resulting in the distribution and specification of skills and procedures to follow each of these new jurisdictions.
The Court of Cassation differs from the Supreme Court of Justice which was to both a court of funds, a court of cassation, a court of annulment, a court of opinion and interpretation of texts and a constitutional court.
As a general rule, the Court of Cassation is a judge of law and not of the merits. However, she decides as a substantive judge to in respect of persons to Article 153 of the Constitution and in the matter of appeal of decisions rendered in the first degree by the Courts of Appeal in law enforcement.
As such, it ensures:
- control of legality as long as it is recognized to it the right to break all decisions of last resort taken in violation of the Law or custom;
- the unity of jurisprudence by its decisions that impose on the courts of reference.
This Organic Law organizes the cassation procedure in private and criminal matters.
In addition, it establishes four special procedures: to party, referrals of jurisdiction, rules of judges and review.
The appeal is exercised by any person who has been a party to the decision under attack or by the Attorney General acting either within the legal period or to the expiry of such period, but on the Minister of Justice's injunction or in the sole interest of the Act.
The provisions of this Organic Law are structured around five titles:
Title 1 is devoted to general rules of procedure;
Title II deals with the cassation procedure;
Title III deals with special procedures before
Court of Cassation ;
Title IV organizes proceedings against persons covered by Article 153 (3) of the Constitution:
Title V refers to transitional and final provisions.
This is the general economy of this Organic Law.
Act
The National Assembly and the Senate adopted ;
The Supreme Court of Justice has ruled ;
The President of the Republic promulgates the Act with the following content :
PART 1: GENERAL PROVISIONS Contents
CHAPTER 1: DE L'INTRODUCTION ET DE LA MISE EN ÉTAT DE CAUSE
Article 1
The Court of Cassation shall have before it by request of the parties or by requisition of the Attorney General to the Court, filed at the Registry.
Article 2
Except when it comes from the Public Prosecutor's Office, the application for appeal must be signed, under penalty of inadmissibility, by a lawyer at the Court of Cassation
The request is dated and states:
1. the name and, if applicable, the first name;
2. · the quality, residence or seat of the requesting party; ·
3. the subject matter of the application;
4. if he buys, the name, name, quality, residence or seat of the opposing party;
5. the inventory of the parts forming the file.
Article 3
Unless it comes from the Public Prosecutor's Office, any submissions filed must, under penalty of inadmissibility, be signed by a lawyer from the Court of Cassation.
Any memory is dated and mentions:
1. the name of the lawyer and, if applicable, the name;
2. the quality, residence or seat of the conclusive part;
3. exceptions and means opposing the request;
4. references to the role of registration of the cause;
5. the inventory of the documents forming the file filed in the registry.
Article 4
Any request or statement filed before the Court of Cassation must be accompanied, under penalty of inadmissibility, by at least two copies signed by the lawyer as well as all copies as there are parties designated to the decision undertaken.
Article 5
The parties must, in the introductory motion or in the brief in reply filed at the office of the court, under penalty of inadmissibility, make an election to the office of a lawyer near the Court of Cassation.
Article 6
Any cause shall be recorded by the Registrar in a role. The Court sets out, by its Rules of Procedure, the number of roles. Registration for the role is in the order of the filing dates, following a continuous numbering, indicating the name of the applicant, the opposing parties and the summary mention of the subject matter of the request.
The Registrar shall issue a receipt indicating the role, order number, references to the names of the parties and the subject matter of the application.
Where a request arises from a private party, the recipient refers to the summons provided for in section 31 or the exemption provided for in sections 33 and 34 of this Organic Law.
Article 7
Upon the filing of the application for the appeal or the confirmation of a statement of appeal, or where the statement is not followed, within the time constraints of a confirmation, the Registrar shall forward the case to the First President of the Court of Cassation.
If the appeal is manifestly inadmissible, or if the case does not clearly fall within the jurisdiction of the Court, the First President shall forward the case to the restricted chamber for preliminary consideration before the date of hearing to which the case will be called. Notification of this date is made to the applicant and the Attorney General.
If not, the appeal shall take its normal course in accordance with sections 8 et seq. of this Organic Law.
Article 8
The election of domicile made by the respondent party who has not taken a response is communicated to the Registry.
Any request, request or statement filed in the Registry is, in any contentious matter, previously served on the party against which the application is directed.
This meaning is made, in the city of Kinshasa, by a Huissier near the Court of Cassation, and in the provinces, by a Huissier from the domicile of the party concerned.
Article 9
Parties and their advice may be aware of the copy of the role and records at the registry or obtain a copy at their expense.
The Attorney General receives the communications files. He returns them within sixty days with his conclusions or requisitions.
Article 10
As soon as the productions of the parties are made or the deadlines to produce are elapsed or, in the event that the Act provides, as soon as the requestor or the report of the Attorney General is tabled, the Registrar shall forward the file to the First President for the purpose of appointing a rapporteur.
The State party prepares a report on the facts of the case, on the cassation procedure, on the means invoked and proposes the solution which it feels should be reserved for the cause. He then forwards the file, within thirty days of his appointment, to the First President who submits it, for opinion, to the plenary assembly of the magistrates of the Court of Cassation.
When the notice of the plenary meeting is given, the First President of the Court of Cassation shall determine the date on which the case will be called at the hearing.
Article·11
The Registrar shall notify the parties and the Attorney General at least eight days before the date of the hearing.
Article 12
At least three days prior to the hearing, the Registrar shall, at the office of the Registry and at the entrance of the meeting room, display the role of the cases fixed. This role excerpt refers to the role number and names of the parties.
CHAPTER II: OF THE COMPUTATION OF THE Contents
Article 13
Prefix times are clear deadlines as provided in the Civil Procedure Code.
Timelines for service or notification, as well as time limits, are counted, in all matters, as provided for in the Civil Procedure Code.
Deadlines run against the incompetent. The Court may, however, relieve these of the demise if it is determined that their representation had not been assured.
In the event of death of a party during the prefix period, the party is extended by two months.
In any case, the Court may refer the parties to the decay in the event of force majeure.
CHAPTER III: OF THE COURT AUDIENCE
Article 14
Court hearings are public unless this advertisement is dangerous to public order or good morals. In this case, the Court orders the closed by a reasoned decision.
Article 15
The discussions are as follows:
1. At the appeal of the case, an Counsellor summarises the facts and means and sets out the status of the proceedings;
2. lawyers of the parties may make oral submissions;
3. may not be produced at the hearing other means than those developed in the request or the submissions;
4. each party has the word only once, unless it is necessary to conclude on an incident;
5. the Public Ministry makes its requisitions or gives its opinion;
6. the President of the hearing shall close the proceedings and the cause shall be deliberated;
7. the Speaker of the hearing shall determine the date of delivery.
The Registrar of the Headquarters shall prepare the minutes of the hearing.
Article 16
The Court decides on the means submitted by the parties and the Public Prosecutor ' s Office.
No means other than those taken from requests and submissions filed within the prescribed time limits may be received.
However, the Court may raise any public policy. In this case, it invites the parties to conclude on this basis.
Article 17
Before the closure of the proceedings, the Court invites the parties to conclude on an incident or on public means raised on its own motion.
Similarly, after the closure of the proceedings, the Court orders their reopening to allow the parties to conclude on an incident or on public order raised on their own motion.
CHAPTER IV: INCIDENTS Contents
SECTION First: AND INSTANCE REPRISE
Article 18
If there is a need to decide by a single Order on several pending cases before the different Chambers, the First President shall designate, by order of office, either at the request of the Attorney General or at the request of the parties, the Chamber that shall know of it.
The Registrar shall notify the parties and the Attorney General of this order.
Article 19
In the event of death of a party in the course of a proceeding, all communications and notifications of the acts shall be made validly to the persons entitled, collectively and without any other quality designation at the domicile or last domicile of the deceased.
In the event of death, the Court may also request the Attorney General to collect information on the identity or quality of the parties to which the resumption of proceedings may take place.
Rule 20
The resumption of a voluntary proceeding shall be within the prefixed period of six months following the death or loss of quality or capacity of a party, by filing with the Registry of a memorandum justifying the qualities of the person who resumes the proceeding.
The applicant's failure to resume proceedings by the heirs is undesirable.
Article 21
Those who have been entitled to resume the proceedings on a voluntary basis within the time limits set by the Act may force other persons entitled to intervene. This resumption of forced proceedings is made in the form of a request containing the mentions of the introductive application of proceedings and indicating the status of the current procedure.
Article 22
The resumption of voluntary proceedings or acquittal at the resumption of forced proceedings does not take acceptance of heredited.
SECTION 2: PROBALLY MEASURES
Article 23
The Court may commit an Counsellor to carry out any probative action ordered by the Court.
The Commissioner is sitting with the assistance of a Registrar.
Article 24
When probatory operations are to take place outside the city of Kinshasa, the Commissioner may assume any Deputy Registrar or Registrar of the jurisdiction in which he or she is called to sit.
Rule 25
Parts produced by a party may be contested by the opposing party by making a statement to the Registry of the Court. Upon the filing of the declaration, the Registrar shall summon the party who produced the incriminated document to declare whether it continues to report.
If the party that produced the contested piece renounces that it was reported by a statement to the Registry or if it did not make a statement in the eighties, the exhibit is dismissed. The eight-year period may be extended by the Court.
If it declares that it continues to state the disputed exhibit, the Registrar shall notify the party that raised the incident. The court or the Public Prosecutor ' s Office may, within eight days, apply to the competent court. In this case, the Court is over whether to rule until after the judgment on the false, unless it considers that the contested piece is without influence on its decision.
If the Public Prosecutor's Office or the party that has raised the incident has not filed an action within the above-mentioned time limit, the exhibit is kept on file and subject to the Court's assessment.
Rule 26
The minutes of the Judgments are signed by all the magistrates who sat in the case and by the Audian Registrar.
Judgments are literally transcribed by the Registrar in the register of Judgments.
Each transcript is signed by the judges who have served in the case and by the Registrar.
Rule 27
The Judgments of the Court mention:
1. the chamber that has sat in the cause;
2. the names of the judges who composed the seat;
3. the name of the Audian Registrar;
4. the names of the prosecutors who wrote the conclusions or requisitions in the case or who attended the hearings and the judgment of the Order;
5. the names, domicile, residence or seat of the parties and their quality and, if any, the name and quality of the person who represented them;
6. the statement of the means produced by the parties, the reference to the requests and submissions in which they were formulated, the indication of the date of the filing; ·
7. the indication of the reading of the report submitted by the Rapporteur;
8. mention of the convocation and hearing of the parties and the names of the lawyers who represented them;
9. mention of the hearing of the Public Ministry;
10. the date of the hearings;
11. the procedural incidents and the solution provided by the Court;
12. the date and mention of the public hearing;
13. motivation;
14. the device;
15. the account and imputation of costs and expenses.
Rule 28
The Judgments of the Court of Cassation are served on the parties and the Attorney General by the Registrar. They are published in the Bulletin of Judgments in accordance with the terms of the Rules of Procedure of the Court.
Rule 29
The Judgments of the Court of Cassation are not subject to any appeal under Article 161(4) of the Constitution. However, at the request of the parties or the Attorney General, the Court may correct or give interpretation to the material errors of its Orders.
CHAPTER VI: AND EXPENDITURE Contents
Rule 30
Expenses and expenses are determined in accordance with the Act.
Rule 31
.No case may be brought to a party's request without the prior consignation of a provision, unless the consignment exemption granted in accordance with the terms set out in sections 33 and 34 of this Organic Law.
The Registrar must request additional provision when he considers that the amounts recorded are insufficient to cover the costs that are incurred. In case of dispute over the amount claimed by the
Registrar, the First President decides.
The failure to record at the expiry of the period of appeal shall result in the final classification of the case ordered by the First President of the Court of Cassation, unless the decision of the Court of Cassation is contrary.
The lack of further consignation, after a period of fifteen days, results in the deletion of the case by Judgment of the Court of Cassation, unless the First President of the Court of Cassation decides otherwise.
Rule 32
The fees are taxed and charged to the succumbing party in the Judgment Order of the Court.
Rule 33
In view of the resources of the parties, the total or partial exemption from consignation and the authorization to dismiss shipments and copies may be granted upon request by the First President.
The Order of Exemption or Authorization does not enter tax.
Rule 34
In the event of a total or partial exemption from consignation, the costs of expertise and witness taxation are advanced by the Treasury.
PART II:PROCEDURE FOR CASSIFICATION Contents
CHAPTER 1: COMMON PROVISIONS
Rule 35
The appeal is open to any person who has been a party to the decision and to the Attorney General near the Court of Cassation.
The appeal of cassation against judgments before the right is opened only after the final judgment; but the execution, even voluntary, of such judgment, cannot be, in any case, opposed as an end of non-receipt.
Rule 36
The Attorney General near the Court of Cassation may not, in any case, be allowed to expire the deadlines only on the Minister of Justice's injunction or in the sole interest of the Act.
In the latter case, and subject to the provisions of section 48 of this Organic law, the Court's decision cannot benefit or harm the parties.
When the Attorney General appeals to the Minister of Justice, the Registrar shall notify the parties who may be represented in the proceeding and make conclusions.
The injunction of the Minister of Justice must be given within the limitation period of the action that gives rise to it and be subordinated to an excess of power in the decision undertaken or to a definite wrong.
This injunction is motivated and mentions the means or means that the Attorney General may, if purchased, invoke in support of his requisitory.
The decision on appeal on the Minister of Justice's injunction is enforceable to the parties.
Rule 37
Subject to the provisions of the last paragraph of this article, the Court of Cassation does not know the substance of the proceedings.
If an appeal for any other reason that the incompetence is rejected, the applicant may no longer be allowed to file a cassation in the same case on any pretext and for any reason whatsoever.
Subject to the provisions of the following paragraphs 4 and 5, if, after cassation, a dispute remains to be tried, the Court shall refer the case for consideration on the merits to the same jurisdiction or to a jurisdiction of the same rank and order as it designates.
In the event that the decision is broken for incompetence, the case is referred to the competent jurisdiction it designates.
The jurisdiction of referral cannot waive its jurisdiction. It is obliged to comply with the Court ' s decision on the point of law tried by it.
When the case is referred to it by the chambers brought together, in a case that has already been the subject of a first appeal, or in a case that has been the subject of a appeal filed by the Attorney General on the order of the Minister of Justice, the Court shall rule on the merits.
CHAPTER II: OF THE RULES PROPOSED TO THE INTERNATIONAL Contents
SECTION First: OF DISCUSSION
Rule 38
Except for cases where the Act· has established a shorter period of time, the time limit for filing the request is three months from the date of service of the decision under appeal.
However, where the Order or judgment has been rendered by default, the appeal is not open and the period begins to run in respect of the failed party only. of the day the opposition is no longer admissible.
The opposition filed against the decision suspended the cassation proceedings. If the opposition is declared admissible, the appeal is rejected for lack of object.
Rule 39
The deadline to file the submission in response to the request is one month from the date of the application's service. This period is increased by three months in favor of
people living abroad.
Rule 40
With the exception of acts of withdrawal, resumption of proceedings, no subsequent production of documents or submissions is allowed after the expiry of the deadlines.
The deadlines and the appeal in cassation are not suspensive of the execution of the decision undertaken, except when the decision changes the status of the persons.
Rule 41
The civil motion suspends, in respect of all parties in question, the time limit for the appeal, which only resumes on the basis of the meaning of the Order or the judgment which has finally ruled on the said request.
SECTION 2: THE FORME
Rule 42
The shipment of the decision undertaken and of all judgments or judgments before right, as well as the correct copy of the summons of the first degree, the shipment of the judgment of the first degree, the compliant copy of the conclusions of the parties made in the first degree and on appeal, the compliant copy of the hearing sheets of the first degree and appeal must be attached to the introductive request of the appeal.
Rule 43
In addition to the references provided in the article. 2, the request contains the statement of the means of the applicant party, its conclusions and the indication of the provisions of the duly ratified international treaties, the statutes or principles of customary law whose violation is invoked, barely nullity.
Rule 44
When the Attorney General deems it necessary to oppose the appeal a means deducted from the lack of knowledge of a rule of public order that would not have been raised by the production of the parties, he makes it a requisitory that he deposits in the registry. The Registrar shall notify counsel of the parties to the case at least eight clear days before the hearing date.
If the lawyers have not received the notification eight days prior to the hearing, the Court may order the surrender of the case at a later date.
CHAPTER III: OF THE RULES PROPRES TO THE PENAL CASSIFICATION Contents
SECTION Ire: DU DÉLAI DU POURVOI
Rule 45
The deadline to be filled is forty free days from the pronouncement of the Order or the judgment rendered contradictoryly.
The Attorney General near the Court of Appeal and the Military Higher Auditor have, however, a fixed period of three months from the judgment or the Order.
When the Order or judgment has been rendered by default, the appeal is not open and the period of time begins with respect to the convicted person only on the day the opposition is no longer admissible.
For the civil party and the civilly responsible party, the period takes place on the tenth day after the date of the meaning of the Order or judgment.
Rule 46
The opposition made by the convict against the decision taken suspends the cassation procedure. If the opposition is declared admissible, the appeal is rejected, for lack of object.
Rule 47
The deadline and exercise of the appeal are suspensive of the enforcement of the decision with respect to all parties.
The convicted person who is in pre-trial detention or whose immediate arrest has been pronounced by the appellate court is, however, kept in that state until the detention has covered the main criminal servitude imposed by the decision undertaken.
In addition, where there are serious and exceptional circumstances that warrant it or where there are serious indications suggesting that the convicted person may attempt to avoid, by leaking, the execution of the criminal servitude, the Public Ministry near the court of appeal which has rendered the decision may order, by reasoned order, his incarceration during the period and the principal exercise of servitude covered by the decision, which shall hold until
He must, within 48 hours, transmit his decision to the Attorney General to the Court of Cassation by registered letter or by porter with acknowledgement of receipt.
However, a convict who is in a state of pre-trial detention or whose arrest has been ordered by the court of appeal or by the Public Prosecutor's Office in this jurisdiction may, before the Court of Cassation, file an application for release or provisional release, with or without bail.
If the convicted person is not present or is not represented by a special proxy lawyer, the Court shall rule on exhibits.
The Court shall rule, all cases that have ceased, within 24 hours from the hearing to which the Public Prosecutor has made his requisitions.
The provisions of articles 45 and 47 of the Decree of 06 August 1959 concerning the Code of Criminal Procedure shall apply to the Court of Cassation.
Rule 48
When the Attorney General appeals in the sole interest of the Act, his act takes advantage of the convict as to the only criminal convictions.
SECTION 2: THE FORME
Rule 49
· By derogation from section 1 of this Organic Law, the appeal against judgments or judgments rendered by repressive courts may be filed by a verbal or written statement of the parties made to the court office that rendered the decision undertaken.
The declaration is verbal by the only indication of the intention to form a claim and by the designation of the decision undertaken. A convict in custody may make a statement to the custodian of the prison or is incarcerated. The custodian shall issue a record of the statement and shall promptly hand it over to the Registrar of the Judiciary who rendered the judgment.
The Registrar shall record the statement. It shall issue a copy of this act to the declarant and the Public Prosecutor ' s Office close to the jurisdiction that rendered the decision undertaken. He immediately forwards a shipment of this act to the Registrar of the Court of Cassation by joining the judicial record of the case.
The appeal for cassation filed by a declaration at the court office which rendered the judgment must, under penalty of inadmissibility, be confirmed, within three months, by a request made in the form provided for in sections 1 to 3 of this Organic Law.
Rule 50
The means used in the cassation application indicate the provisions of the duly ratified international treaties and the laws of which the violation is indicated.
SECTION 3: IMPLEMENTATION
Rule 51
Upon receipt of the request, the Registrar of the Court shall apply to the Registrar of the Jurisdiction who has rendered the decision the judicial record and the dispatch of the decision, if such documents have not been handed over to him with the statement of appeal.
Articles 52
The Registrar of the Court shall notify the Attorney General of the matter before the Court of Cassation, upon receipt of the shipment of the notice of the appeal filed at the office of the Court of Cassation.
Upon receipt of the request forming the appeal, the Registrar shall notify all parties and the Attorney General to the Court of Cassation.
Rule 53
As of the date of the application, the parties have thirty days to file a memorandum.
Rule 54
After a period of twenty days from the day the last notification of the submissions was made, the case is deemed to be tried.
The Registrar shall forward the file to the Attorney General to the Court of Cassation, which shall prepare such requisitions and then file the file with the Registry for the purpose of proceeding as provided for in section 10 of this Organic Law.
PART III: SPECIAL PROCEDURES FOR CASSATION Contents
CHAPTER 1: DE LA PRISE A PARTI
SECTION I: PRISE OPENING CAUSES A PARTIE
Rule 55
Any judicial officer may be taken part in the following cases:
1. If there has been dol or concussion committed either in the course of the instruction or in the decision rendered;
2. If there's a denial of justice.
Rule 56
The dol is a voluntary violation of the law by the magistrate to result in an erroneous conclusion with the aim of giving an undue advantage to a party. It is characterized by bad faith, artifices and manoeuvres that give the decision an apparent legal value.
The gross error of the law is equivalent to the dol.
Rule 57
The concussion is the fact, for a magistrate, of ordering to collect, demand or receive what he knew was not due or to exceed what was due, for fees, taxes, taxes, income or interest, wages or salaries.
Rule 58
There is denial of justice when the magistrate refuses to perform the duties of his office or fails to judge the cases in a state of being tried.
The denial of justice is found by two summonses made by the bailiff and sent to the magistrate at least eight days apart.
SECTION II: OF THE PRICE PROCEDURE WITH PARTICULAR
Rule 59
The court is seized by an application that must, under penalty of inadmissibility, be filed within twelve months by a lawyer, from the day the decision is pronounced or the meaning of the decision as it is contradictory or by default or within the same period as the day on which the applicant has taken · knowledge of the act or the conduct incriminated.
In case of denial of justice, the request is filed within twelve months from the second summation made by the bailiff.
In addition to the information provided for in articles 1 and 2 of this report An organic law, the application contains the appellant's claims for damages and, possibly, for the cancellation of orders, orders, minutes or other acts under attack.
Rule 60
The request shall be served on the judge who has been taken in part who shall provide his defence within fifteen days of the notification. Otherwise, the cause is deemed to be in condition.
Rule 61
If the decision is declared to be substantiated, the Court shall annul the judgements, judgments, orders, minutes or other acts under attack without prejudice to the damages caused to the complainant.
Rule 62
From the meaning of the request until the decision to intervene, under penalty of the invalidity of the proceedings, the judge who has been taken in part will abstain from the knowledge of any case concerning the appellant, his spouse or his or her direct-line parents.
Articles 63
The State is jointly and severally responsible for the convictions of the judge for damages.
Rule 64
The magistrate who was taken in part by a tenor and vexatious action may apply the applicant's conviction to damages.
CHAPTER II: DU RENVOI DE JURIDICTION Contents
Rule 65
In the matter of reference, the Court shall proceed in accordance with the provisions of this Organic Law and the relevant provisions of the Organic Law on the Organization, Functioning and Jurisdictions of the Judiciary.
CHAPTER III: OF THE RULES OF JUDGE
Rule 66
Judges must be ruled when two or more courts of the judicial order, ruling as a last resort, declare at the same time either competent or incompetent, to know of the same muted application between the same parties.
The resolution of judges may be requested by a request from one of the parties to the case or the Public Prosecutor's Office to one of the courts concerned.
The Court of Cassation refers to the jurisdiction that will be familiar with the case.
CHAPTER IV: DE LA REVISION Contents
Rule 67
Revision of convictions in force of a judgment may be requested for any offence punishable by a criminal servitude greater than two months, regardless of the court that has ruled and the sentence imposed, where:
1. after a conviction, a new judgment or judgment condemns, for the same facts, another defendant, and that, the two convictions cannot reconcile, their contradiction is evidence of the innocence of one or the other convicted;
2. after the conviction, one of the witnesses heard was prosecuted and convicted for false testimony against the accused;
The witness thus condemned can no longer be heard during further debates;
3. after a homicide sentence, there are sufficient evidence to suggest the existence of the alleged homicide victim;
4. after a conviction, a fact comes to oneself
revealing or unfamiliar documents during the debates are presented and that this fact or these documents are of a nature to establish the innocence of the convicted person.
Rule 68
The right to request a review is:
1. to the Minister of Justice;
2. the convict or, in the event of disability, his or her representative, after the death or absence of the convict, his or her spouse, his or her descendants, his or her ascendants, his or her rights holders and his or her universal legatees.
Rule 69
The Court of Cassation is seized by the Attorney General under the Minister of Justice's injunction, or by the request of one of the parties referred to in section 68, paragraph 2, of this Organic Law.
If the Order or sentence has not been executed, the enforcement of the decision may be suspended by the Court.
Rule 70
In the event of admissibility, if the case is not in a state, the Court proceeds directly, or by commission, to any investigation of the facts, confrontations, recognition of identity and duties specific to the manifestation of the truth.
The Court rejects the application if it considers it unfounded. If, on the contrary, she judged her well-founded, she annulled the conviction. She appreciates, in this case, whether it is possible to conduct further contradictory debates. If so, it shall refer the accused to another jurisdiction of the same order and of the same degree as that of the order or the judgment annulled, or to the same court otherwise composed.
If the annulment of the Order or judgment in respect of a living convict leaves nothing to stand that cannot be qualified as an offence, no reference shall be made. In this case, the convict in custody is released.
If the Court finds that there is no possibility of proceeding with further proceedings, in particular because of the death, absence, dementia, failure of one or more convicts, criminal irresponsibility, limitation of public action or sentence, it shall rule on the merits. If there is a trial, the civil parties are heard.
When she sits down. The Court only cancels the convictions that have been unfairly pronounced. She unloads, if any, the memory of the dead.
Rule 71
The Order resulting from the innocence of a convicted person may, on his application, award him damages because of the damage caused to him by his conviction.
If the victim of the judicial error has died, the right to seek damages is, under the same conditions, his spouse, descendants and ascendants, and his or her rightful persons. It belongs to the other people as long as they justify material damage resulting from the conviction. The application for damages is admissible in any case in the review proceedings.
The damages are the responsibility of the State, except for its appeal against the civil party, the whistleblowers or false witnesses by the fault of which the conviction was pronounced.
Rule 72
The costs of the review proceeding are advanced by the Treasury from the filing of the application to the Court of Cassation. The applicant for review who succumbed to the proceedings is sentenced to all costs.
If the final order or judgment, after removal, pronounces a conviction, it shall charge the convicted person with the costs of that sole instance.
The Judgment of the Court of Cassation, or the judgment made after review of the innocence of a convict, is, at the due diligence of the Registrar, displayed in the locality:
1. where the condemnation was pronounced;
2. where the review court sits;
3. where public action was opened;
4. the domicile of the applicants for review;
5. of her last home when the victim died.
In addition, they are, at the request of the applicant for revision, published by extract in the Official Journal and in two newspapers.
Advertising fees are charged to the Treasury.
TITRE IV: OF THE FOREST TO PERSONS SUBMITTED BY ARTICLE 153 ALINEA 3 OF THE CONSTITUTIONContents
CHAPTER 1st: FOREIGN AGAINST MEMBERS
Rule 73
No parliamentarian may be prosecuted, sought, arrested, detained or tried because of the opinions or votes cast by him in the performance of his duties.
No parliamentarian may be prosecuted or arrested, except in cases of flagrante delicto, except with the authorization of the National Assembly or the Senate, as the case may be.
Apart from sessions, no parliamentarians may be arrested only with the authorization of the National Assembly Office or the Senate Office, except in cases of flagrante delicto, prosecution or final conviction.
Even in cases where the facts would be blatant or deemed to be such, if the Board of Directors decides, in the course of an investigation of a case, to suspend the prosecution and detention of a member of the Chamber, that decision is immediately enforceable, but it ceases to produce its effects at the end of the session.
Rule 74
A judicial police officer or an officer of the Public Prosecutor's Office who receives a complaint, denunciation or notices the existence of an offence even flagrantly charged to a person who, at the time of the complaint or the finding is a member of Parliament, transmits his report directly to the Attorney General near the Court of Cassation and advises its chief judicial officers.
The Attorney General at the Court of Cassation informs the Bureau of the House of Parliament.
Rule 75
Except in the event that a parliamentarian may be prosecuted or detained without the prior authorization of the National Assembly, the Senate or their Bureau as the case may be, if the Attorney General near the Court of Cassation considers that the nature of the facts and the gravity of the evidence justify the exercise of the public action, he shall address to the Office of the Chamber of which the parliamentarian is a request for the purposes of the investigation.
The authorization once obtained, the Attorney General shall lay down all the acts of instruction.
Rule 76
The ordinary rules of the criminal procedure are applicable to the preparatory instruction.
However, the Court of Cassation is solely competent to authorize the pre-trial detention, which it determines the modalities in each case.
Preventive detention is replaced by house arrest.
Rule 77
If the Attorney General deems it necessary to bring the accused before the Court, he shall send a request to the Cham.bre office of which the parliamentarian is a member for the purpose of obtaining the lifting of immunities and the authorization of the proceedings.
Once the authorization has been obtained, it forwards the file to the First President for hearing fixing.
The Attorney General cites the defendant before the Court at the same time as the persons prosecuted jointly because of their participation in the offence committed by the parliamentarian or because of a related offence.
Rule 78
The constitution of a civil party is not admissible before the Court of Cassation.
Similarly, the Court may not rule ex officio on damages and reparations that may be due under the law, custom or local uses.
Civil action can only be prosecuted after the final judgment of the Court and before ordinary courts.
Rule 79
Unless otherwise provided by law, the ordinary rules of criminal proceedings shall apply to the Court for all matters relating to the hearing and enforcement of the Order.
CHAPTER II: OTHER THAN THE FIRST MINISTER Contents
Rule 80
Without prejudice to the procedure for blatant intentional offences, the decision to prosecute and the indictment of members of the Government other than the Prime Minister shall be voted by the absolute majority of the members composing the National Assembly following the procedure provided for in its Rules of Procedure.
Any member of the indicted Government shall present his resignation within 24 hours. After this period, he is resigned.
Rule 81
The Attorney General near the Court of Cassation ensures the exercise of public action in the acts of investigation and prosecution. He has the initiative of investigating the offences against the members of the Government.
He receives complaints and denunciations and gathers evidence. He hears any person likely to contribute to the manifestation of the truth.
He informed the President of the Republic and the Prime Minister by registered letter or by porter with acknowledgement of receipt.
Rule 82
If a Judicial Police Officer or Public Prosecutor receives a complaint, denunciation or notices the existence of a dependant offence of a person who, at the time of the complaint or denunciation, is a member of the Government, he shall transmit his or her report, all ceaseless cases, to the Attorney General near the Court of Cassation and refrain from any other duty.
He advises his chief judicial officers.
Articles 83
If the Attorney General considers the facts sufficiently consistent and relevant, he shall issue a requisitory to the National Assembly for the purpose of obtaining the authorization of prosecution which allows him to complete the preparatory investigation and to take coercive and custodial measures against the member of the Government incriminated.
It shall notify the President of the Republic and the Prime Minister by registered letter or bearer with acknowledgement of receipt.
Rule 84
The provisions of sections 75 to 79 of this Organic Law apply mutatis mutandis to proceedings against members of the Government other than the Prime Minister.
CHAPTER III: OF THE FOREST TO PERSONS SUBMITTED BY ARTICLE 153, ALINEA 3 OF THE CONSTITUTION OTHER THAN THE PARLEMENTARY AND MEMBERS OF THE GOVERNMENT Contents
Rule 85
Without prejudice to the procedure for blatant intentional offences, the members of the Constitutional Court and those of the Prosecutor close to this Court, the judges of the Court of Cassation and those of the Prosecutor close to this Court, the members of the Council of State and those of the Prosecutor close to this Council, the First Presidents of the Courts of Appeal and the Attorney General near these Courts, the First Presidents of the Administrative Courts of Appeal
Rule 86
Without prejudice to the procedure for blatant intentional offences, the members of the Court of Accounts and those of the Prosecutor close to this Court may only be prosecuted and charged by the National Assembly, by secret ballot and by absolute majority of the votes cast, at the request of the Attorney General.
Rule 87
Without prejudice to the procedure for blatant intentional offences, Governors, Provincial Deputy Governors and Provincial Ministers may only be prosecuted and charged by the Provincial Assembly, by secret ballot and by the absolute majority of its members.
The provisions of sections 80, paragraph 2, to 84 apply mutatis mutandis to Governors and Vice-Governors.
Rule 88
The President of the Provincial Assembly may not be prosecuted, sought, arrested, detained or tried because of the opinions or votes cast by him in the performance of his duties.
He may not be prosecuted or arrested, except in cases of flagrante delicto, unless authorized by the Provincial Assembly.
Apart from the sessions, he may be arrested only with the authorization of the Office of the Provincial Assembly, except in cases of flagrante delicto, prosecution or administrative conviction.
The detention or prosecution of the President of the Provincial Assembly is suspended if required by the Provincial Assembly. The suspension may not exceed the duration of the current session.
PART V: TRANSITIONAL AND FINAL PROVISIONS Contents
Rule 89
Cases within the jurisdiction of the Court of Cassation, pending before the Supreme Court of Justice and the High Military Court, are transferred to the Court of Cassation as soon as it is established.
Rule 90
Pending a review of the Law on the Law of the Bar, lawyers registered in the Law Society near the Supreme Court of Justice practise their profession before the Court of Cassation.
Rule 91
Titles II and IV of the Ordinance-Law No. 82-017 of 31 March 1982 relating to proceedings before the Supreme Court of Justice are repealed.
Rule 92
This Organic Law comes into force thirty days after its promulgation.
Done in Kinshasa, 19 February 2013
Joseph KABILA KABANGE
