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The Governing Council of the Inter-Parliamentary Union Is further dismayed that no progress has been made in resolving the case of Eugène Diomi Ndongala / IPU – 16/10/14

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DEMOCRATIC REPUBLIC OF THE CONGO

CASE N° DRC/71 – EUGÉNE DIOMI NDONGALA

Decision adopted unanimously by the IPU Governing Council at its 195th session
(Geneva, 16 Octobre 2014)

The Governing Council of the Inter-Parliamentary Union,

Referring to the case of Mr. Eugène Diomi Ndongala, a former member of the National Assembly of the Democratic Republic of the Congo (DRC), and to the resolution it adopted at its 194th session (March 2014),

Referring to the letter of the Speaker of the National Assembly of 8 October 2014 and the information provided by the complainants,

Referring also to the report on the mission conducted to the DRC from 10 to 14 June 2013 (CL/193/11b)-R.2),

Recalling the following allegations provided by the complainants: Mr. Ndongala, the leader of an opposition political party, is being framed because he publicly denounced massive cases of electoral fraud during the 2011 elections and contested the legitimacy of the election outcome; he is being blamed for having boycotted the National Assembly in protest, together with 40 opposition members; for these reasons, Mr. Ndongala has been the target since June 2012 of a campaign of political and legal harassment aimed at removing him from the political process and at weakening the opposition; that campaign has been marked by the following alleged violations of his fundamental rights: (i) arbitrary arrest on 27 June 2012, the day before Mr. Ndongala was to establish an opposition party platform, followed by unlawful incommunicado detention by the intelligence services from 27 June to 11 October 2012, during which time Mr. Ndongala was allegedly ill-treated; (ii) arbitrary lifting of Mr. Ndongala’s parliamentary immunity in violation of his rights of defence on 8 January 2013; (iii) arbitrary revocation of his parliamentary mandate on 15 June 2013; (iv) baseless and politically motivated judicial proceedings that disregarded the right to a fair trial; (v) illegal remand custody from April 2013 until his conviction on March 2014; (vi) denial of medical care in prison since the end of July 2013,

Also recalling that the National Assembly has repeatedly asserted that, since Mr. Ndongala has boycotted the parliamentary institution to which he belonged and questioned its legitimacy, he could not expect to benefit from its protection; that at the hearing held during the 130th IPU Assembly, the delegation of the DRC stated that if Mr. Ndongala had not contested the legitimacy of the last elections and had agreed to take part in the parliamentary proceedings, the National Assembly would not have agreed to lift his parliamentary immunity or revoked his parliamentary mandate,

Recalling that, according to the complainants, the accusations that Mr. Ndongala had sexual relations with minors – qualified as rape by the prosecution –  are unfounded and a pure fabrication, given that: (i) Mr. Ndongala was not present on the scene of the alleged rape when the police arrived to arrest him “in the act of rape”; (ii) the girls and their alleged father were paid to accuse Mr. Ndongala by a police superintendent and a member of the majority from the same constituency as Mr. Ndongala; (iii) the girls are adults and came forward under false identities and the alleged father is a well-known criminal with several convictions for fraud; (iv) the girls and the police superintendent met in order to plot their setting up Mr. Ndongala; (v) the complainants claim that they have evidence of the above, including eyewitnesses,

Considering that Mr. Ndongala’s trial started in July 2013 and concluded on 12 March 2014; most hearings of the trial were postponed; the substance of the case was only examined briefly at the last hearing according to the complainants,

Considering that Mr. Ndongala was convicted as charged by the Supreme Court on 26 March 2014 and was sentenced to 10 years’ imprisonment in the first and last instance; that the girls, recognized as rape victims by the Supreme Court, have filed for civil action for damages, with the presentation of oral arguments of the parties set for 22 October 2014,

Considering that, according to the complainants, due process was not respected during Mr. Ndongala’s trial, which largely took place in camera; the allegations include the following:

  • Mr. Ndongala was kept in jail, despite three Supreme Court decisions between April and June 2013 ordering his placement under house arrest in accordance with the law and the practice applicable to Congolese parliamentarians in pretrial detention;
  • The presumption of innocence and the confidentiality of the pretrial investigation were violated, given the prosecution’s frequent statements to the media stressing Mr. Ndongala’s guilt;
  • Procedural flaws in the case scheduling and notification procedure prevented the lawyers for the defence from having access to the court file and preparing their client’s defence before the first hearings were held in July 2013;
  • The substantive examination of the case did not start until the last hearing and the trial was closed when it had hardly begun; the defence lawyers and Mr. Ndongala were denied the floor and were not given the opportunity to present witnesses and cross-examine those of the prosecution; the two hearings focused exclusively on the testimony of the alleged victims and their “father”; after hearing the testimony of those three people, the judges suddenly decided to close the case and immediately requested the Prosecutor to present his summation without the Court having heard the defence or the plaintiff, who had left the courtroom in boycott over not having been allowed to present their arguments;
  • The Court discarded Mr. Ndongala’s argument that he was the victim of a political set-up on the grounds that he had not provided evidence in that respect, yet the Court did not allow the defence to do so;
  • No exhibit attesting to the rapes was presented or discussed, nor was any medical examination conducted during the investigation; the court relied upon the alleged victims’ account, despite major discrepancies casting doubt on their identity, age, filiation and the truthfulness of the accusations against Mr. Ndongala; the Court took no account of the fact that the defence had disputed the age of the girls, which in this particular case was the central element qualifying the alleged sexual relations as rape, given that absence of consent was never alleged;
  • The Court also relied on highly disputable evidence of the prosecution, namely: (i) evidence that was illegally seized, as Mr. Ndongala’s lawyers were excluded from attending the search by the police; (ii) phone records between the girls and a telephone number not attributed to Mr. Ndongala; (iii) the written testimony of two prosecution witnesses whose credibility and reliability were not established and who were never heard by the Court; those witnesses were arrested on 26 June 2012 and then arbitrarily held in a military camp for several months before being released following demands by civil society and the United Nations; one of these witnesses, a security guard who was initially prosecuted jointly with Mr. Ndongala,  provided written testimony stating that he escorted the girls to Mr. Ndongala’s office but did not witness what happened therein; the guard was never called to appear in court, and he subsequently disappeared following his release;
  • The composition of the trial chamber was not in compliance with the law;
  • Mr. Ndongala’s main political opponent in his constituency, a parliamentarian of the majority, and allegedly the instigator of the political set-up against him, acted as one of the legal representatives of the alleged victims throughout the trial, even though he was not qualified to do so given his status of attorney-in-training;
  • The lack of impartiality of certain judges, in respect of whom requests for recusal were filed, and the political pressure said to have been exerted on several judges, as a result of which the composition of the bench ruling on the case was changed in February and March 2014;
  • During the trial, the judges never acknowledged the deteriorating state of health of the accused or his having been denied medical care while in custody, and blamed him of delay tactics and abuse of the judicial process after he collapsed several times during the hearings,

Considering that the Court noted in its decision that the accused and his counsel had left the last hearing and had therefore not stated their closing arguments before the end of the trial; it rejected the application of the defence to reopen the proceedings after they had left the hearing in boycott on the grounds that courts and tribunals must not be given over to “the whims of defendants regarding abuse of the law, as in the present case, the intention of the accused and his counsel having already been made known throughout the proceedings”; it blamed the defendant for delaying the progress of the trial by different means, including: (i) “under the guise of illness”; (ii) by interrupting the hearings to consult with his counsel; (iii) by questioning the filiation of the alleged victims; and (iv) by protesting “vigorously before collapsing and getting up again to move aside while his counsel withdrew from the courtroom”,

Recalling also the following information provided by the complainants: Mr.Diomi Ndongala’s health has deteriorated sharply while in detention since late July 2013, but the authorities have systematically refused to allow him to be taken to hospital; Mr. Ndongala was briefly transferred to a military camp in late July 2013 for medical care, but demanded that he be transferred to one of the civilian hospitals with which the prison has an agreement, in accordance with standard prison practice, and because he feared for his safety, given that he had been unlawfully detained and tortured in that military camp in the past; after Mr.Diomi  Ndongala’s cardiac arrest and emergency hospitalization on 27 December 2013, he was forcibly returned to prison the following day before the tests ordered by the doctor had been carried out; according to the complainants, he has been denied appropriate medical care since,

Recalling in that regard that, in her letter of 27 November 2013, the Minister of Justice stated that there was no truth to the allegations that Mr. Ndongala had been denied medical care and that the applicable legislative provisions had been respected, that Mr. Ndongala had been seen by the doctor at the military hospital at Kokolo camp in July 2013 and that the doctor had recommended x‑rays and physiotherapy, that Mr. Ndongala had obtained a recommendation from the doctor that he continue his treatment at a hospital near the airport that had no agreement with the prison, that “the proximity of the international airport [was] indicative of Mr. Ndongala’s intentions”, and that the prison administration had acted in good faith and given Mr. Ndongala every opportunity to have access to appropriate care outside the prison, but that he had abused that possibility through his behaviour; at the hearing held during the 130th IPU Assembly (March, 2014), the delegation of the DRC said, with regard to the denial of medical care, that the fact that Mr. Ndongala was still alive was “irrefutable proof that he continued to receive treatment, otherwise he would already be dead”,

Considering that the United Nations Human Rights Committee was seized of the case of Mr. Ndongala on 22 September 2014 and requested on 8 October 2014 that the DRC take all necessary measures to provide appropriate medical assistance in order to ensure that no irreparable health damage is incurred by Mr. Ndongala,

Recalling that the Congolese authorities held national consultations from 7 September to 5 October 2013 in order to strengthen national unity, that the Head of State presented the recommendations of the final report that emerged from the consultations to both houses of parliament on 23 October 2013 and set up a national committee tasked with implementing them, and that the final report recommends that, “among the measures taken to ease the political tension and announced by the President of the Republic, the public authorities: (a) grant, depending on the case, a presidential pardon, release on parole and/or amnesty to inter alia (…) Eugène Diomi Ndongala (…)”,

Considering that this recommendation has not been implemented to date; the nature of the charges against Mr. Ndongala makes him ineligible for amnesty under the amnesty law of February 2014 and the only possibility left for him is a presidential pardon, according to the letter of the Speaker of 8 October 2014; the complainants have stated that there was no remedy under Congolese law with the exception of a retrial (which stands no chance of succeeding given the political nature of the case according to them), a presidential pardon, or an amnesty, the latter being – in their opinion – the most appropriate way to resolve the case at this stage,

  1. Thanks the Speaker of the National Assembly for the information provided;
  2. Takes note of the decision of the Supreme Courtand deeply regrets that it has not taken into account, nor provided any redress for the serious violations of due process that have characterized the trial;
  3. Once again strongly deplores that there is no avenue of appeal in the judicial process applying to parliamentarians in the DRC; can but fear a serious miscarriage of justice in the current circumstances, in particular in light of the eminently political nature of the case;
  4. Is further dismayed that no progress has been made in resolving the case, and urges the DRC authorities, including Parliament, to urgently implement the recommendations of the national consultations through all appropriate means, including presidential pardon, amnesty, or a retrial in full compliance with international standards; wishes to be informed of the measures taken without delay;
  5. Reiterates its deep concern that Mr. Ndongala continues to be denied appropriate medical care and, urges once again that the DRC authorities ensure that he is urgently provided with medical care in full compliance with the DRC’s international obligations under international human rights law;
  6. Requests the Secretary General to convey this decision to the parliamentary authorities, the Minister of Justice, the complainants and any third party likely to be in a position to supply relevant information;
  7. Requests the Committee to continue examining this case and to report back to it in due course.

 

 

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