Les pouvoirs du Ministère Public face au respect des droits de la défense en droit judiciaire congolais

• Main Author: Cyprien MUSHONGA MAYEMBE
• Format: Article
• Language: English
• Published: Nomos Verlagsgesellschaft mbH & Co. KG 2017-02-01
• Series: KAS African Law Study Library
• Online Access: https://www.nomos-elibrary.de/10.5771/2363-6262-2017-1-100

It is clearly admitted that one of the essential missions of a modern State is to maintain and to restore the social order while punishing the mistakes committed on the territory that he/it controls or by the people who are a matter for his/her/its authority, every time that these mistakes risk to bring a trouble or to cause a pain affecting the social peace of the community. To accomplish this mission with efficiency, the state created some organs in order to search for the infringements, to instruct the objective and subjective circumstances of their commission, and finally to punish the authors. According to Congolese Right, these missions are devolved to the police judicaire, to the public prosecutor's office and to the courses and courts. It is necessary to note however that the dangerous mission to pursue and to punish is limited by the guarantees of the Rights of the defense granted to the justiciables against the excesses that the full magistrates of their ministry could commit and affluent can be exorbitant. But Congolese’ right, the powers of pursuit and instruction being confided to a same organ: the public, violent Ministry the rights of the defense, notably the one to interject call against his/her/its decisions. However, while pursuing the delinquent, the state also assures the protection of this one during the procedure, it is why the constitution of our country dedicated the principle consecrated of the innocence presumption, organize then and guarantees the Rights of the defense. It is why, in the setting of this work we propose to the Congolese legislator to limit the powers of the Public Ministry while removing him the power of instruction and to confide it to another organ that can be either a jurisdiction of instruction as in French right and in Belgian right, either to create another organ that can fill this mission validly, and must not let between the hands of the Public prosecutor's office that the power of pursuit. Of this fact, we can think about a sufficient guarantee of the respect of rights of the defense as proclaimed by a State of right. Indeed, a State of right, defines itself notably by the situation that results, for a society of his/her/its submissiveness to a legal order excluding the anarchy and the private justice. He/it proclaims the respect of the right and the guarantee of the rights recognized to the citizens. He/it dedicates the pre-eminence of the law, which must guarantee the public liberties, the rights fundamental of the man and citizens, the equality of all before the law, the protection of the right topics against arbitrariness. He/it is inseparable of the justice idea, sensible functionally like a process or an institution that say the right in all impartiality and independence. What also characterizes the state of right, it is notably the necessity to cover to the ways and means of right to assure the maintenance or the restoration of the public order disturbed by an infringement or shaken by quarrels between justiciables around crystallized, of lusts or contestations of varied impor- tance.