DRC: Practice Direction for Selection and Prioritisation of Atrocity Cases Adopted by the Superior Council of Magistrates

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CMN provides technical assistance to the Superior Council of Magistrates and 6 other Congolese institutions

On 19 March 2018, the President of the Superior Council of Magistrates (CSM) of the Democratic Republic of Congo, Benoît Lwamba Bindu, signed into force the Practice Direction No. 02/PCC-PCSM/2018 for the Selection and Prioritisation of Crimes Against Peace and Security of Mankind, in Particular Sexual Violence at the Investigation Stage (Practice Direction). The Practice Direction was prepared by the CSM between October and January 2017 with technical assistance provided by CMN and the League for Peace, Human Rights and Justice (LIPADHOJ).

Guiding prosecutors to ensure that the most suitable conflict-related cases will be reviewed and judged first

The Practice Direction provides prosecutors with an objective and transparent procedure to select and prioritise cases of core international crimes listed in the Congolese Criminal Code, for prosecution within the civilian Court of Appeal as well as the military justice system, and particularly aims at sexual and gender-based violence crimes. Practice directions are periodically adopted by the CSM or the Attorney General to provide instructions to prosecutors on the practice and procedure to follow in important matters of law or procedure.

The Practice Direction is organised into five chapters: (i) justification; (ii) scope of application; (iii) mapping as a prerequisite of prioritisation; (iv) case selection and prioritisation criteria; and (v) final provisions.

Mapping as a prerequisite for effective selection and prioritisation

Chapter III of the Practice Direction recognises the importance of accurate, centralised data on the number and nature of crimes and provides guidance on the process for mapping core international crime cases. It largely follows the methodology proposed by CMN, which considers that mapping is a prerequisite condition to case selection and prioritisation.

Case selection and prioritisation criteria

The Practice Direction organises case selection and prioritisation criteria into formal and practical considerations. Section 1 includes formal criteria that seek to establish the factual context of the commission of the crime, the responsibility of the alleged perpetrator and the objective representativity of the overall scope of the prosecutions. Section 2 sets out policy and practical considerations that should be taken into account. Each criterion is supplemented with non-exhaustive indicators.

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Addressing backlogs and new cases

The final chapter considers the allocation of cases on the basis of their temporal status: new cases will be reviewed by prosecutors in light of the strategic and policy considerations (listed in Chapter IV, Section 2) while historic cases which form part of the national backlog will be regularly evaluated by the public prosecutor.

Technical Assistance between CMN and the Superior Council of Magistrates

The Practice Direction was developed by the CSM, in collaboration with CMN who provided technical expertise and LIPADHOJ who provided legal research. Following the creation of a detailed terms of reference, the CSM convened a Technical Committee of 7 magistrates to review and revise the terms of reference and the proposed Practice Direction. This took place in four meetings throughout November 2017 and led to a validation meeting of 28 Magistrates from CSM, civilian and military Attorney General’s offices, Court of Appeal, High Military Court, Supreme Court of Justice, Office of the President of the Republic and Garrison Military Tribunals on 04 December 2018, where the Practice Direction was unanimously supported.

CMN supported each stage of the drafting process, providing technical summaries, explanations and recommendations on prioritisation concepts and methodologies, including the importance of centralized case mapping.

The Practice Direction as part of a broader practice to map and prioritise conflict-related cases in the DRC

The Practice Direction forms part of CMN’s long term engagement with national efforts to map and prioritise conflict-related cases, particularly those involving sexual and gender-based violence. In 2011 CMN designed and installed the Database of Open Case Files (DOCF), a software system to map conflict-related sexual and gender-based violence cases for the Ministry of Justice. The system was installed in prosecutor’s offices and court offices in North Kivu and the former Orientale Province, registering more than 600 cases in its first year of use and was considered to be the most effective case registration and mapping system in operation following a harmonisation report by the government. Alongside mapping software, CMN has developed criteria for the selection and prioritisation of conflict-related sexual and gender-based violence, as well as analysis of the newly adopted legal frameworks for conflict-related sexual and gender-based violence crimes.

The concept of case mapping and prioritisation has emerged as a prominent tool in the provision of equitable justice for conflict-related crimes, with different actors supporting subsequent initiatives at a centralised and local level. More recently, the American Bar Association Rule of Law Initiative has implemented a broader mapping project of all criminal cases, installing software in Kinshasa to map cases at prosecution and court registrar offices and in six provinces across the DRC.

Relevant publications

* Request to be notified when English translation is ready. Contact: icjtoolkit@casematrixnetwork.org

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