A/HRC/13/63
page 15
51.
In May 2009, a delegation of the Security Council visiting the country handed to
the President and other senior officials a list with the names of five high-ranking army
officers accused of crimes of sexual violence. The five have yet to be prosecuted.
According to the latest information received, only two are in pretrial detention, while
two are under controlled supervision in Kinshasa and one is at large.
52.
In July 2009, President Joseph Kabila announced a policy of “zero-tolerance”
for human rights violations committed by FARDC members, which would include
holding commanders accountable for the behaviour of their soldiers. While the experts
strongly welcome the announcement of this policy, significant obstacles hamper its
implementation.
53.
The serious structural deficiencies of the justice system foster impunity. The
experts are concerned that legislation has not been adopted to establish the
Constitutional Court, the Court of Cassation and the State Council, as required by the
2006 Constitution. Judicial structural reform must be implemented urgently, including
through the establishment of high courts. The Higher Judicial Council, established in
2008 to be responsible for the selection of, and disciplinary measures against, judges is
not fully functional and shortcomings persist regarding its internal organization, human
resources and budget.
54.
The State needs to increase the financial, logistical and human resources that it
provides to the justice system. The Government has decreased spending on the judicial
sector to 0.24 per cent of the 2009 budget, which is far below the 2-6 per cent of
national budget that most other countries dedicate to justice.
55.
Reiterating their recommendation to expand the State justice system in rural
areas and provide more support to legal assistance programmes,19 the experts note that
the President redeployed more than 600 new judges in July 2009, including to remote
areas. When this report was finalized, a considerable number of them had apparently not
yet reported to their new posts. The Government also launched a competitive
examination, on the basis of which 1,000 magistrates (civil and military) are to be
appointed.
56.
In July 2009, the President also dismissed 86 judges by decree. In the absence of
timely replacements, these dismissals have created a critical shortage of judges in some
areas. Furthermore, the dismissals were reportedly made without hearings being held
and did not meet fundamental due process standards. Reportedly, a number of those
judges who were dismissed had disciplinary measures or a criminal sentence
pronounced against them. However, others were promoted even though the facts of their
cases were substantially identical.
57.
One step towards greater transparency would be to adopt a code of ethics for
judges. A draft code has been developed by the Higher Judicial Council in cooperation
with donors and the United Nations Joint Human Rights Office and is intended to be
submitted to the General Assembly of the Higher Judicial Council for adoption.
19
A/HRC/10/59, para. 93.
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