The Governing Council of the Inter-Parliamentary Union,

Having before it the case of Mr. Pierre Jacques Chalupa, a former member of the National Assembly of the Democratic Republic of the Congo (DRC) arrested in February 2012 and sentenced to four years in prison, which has been examined by the Committee on the Human Rights of Parliamentarians, pursuant to its Procedure for the treatment by the Inter-Parliamentary Union of communications concerning violations of the human rights of members of parliament,

Referring to the information provided by the Speaker of the National Assembly in his letter of 16 October 2012 and by the National Assembly delegation heard by the Committee at the session it held during the 127th IPU Assembly (Quebec, October 2012), and to the information provided by the sources,

Considering that, the Committee on the Human Rights of Parliamentarians having declared itself competent to examine the case even though Mr. Chalupa was no longer a member of parliament at the time of his arrest, in keeping with its usual practice, it considered itself competent to deal with arbitrary measures allegedly taken against a member of parliament for the entire legal duration of his term of office in cases where his mandate was arbitrarily interrupted,

Recalling that, following his election in the 2006 legislative elections, Mr. Chalupa’s parliamentary mandate and those of 17 others were invalidated by the Supreme Court in 2007, that the Governing Council was seized of the case and noted the arbitrary invalidation of the election results, that it firmly recalled in its resolutions that the arbitrary invalidation of election results violates not only the right of the persons concerned to exercise the parliamentary mandate entrusted to them by the people, but also the right of their electors to be represented by persons of their choice, and that it considered that the compensation offered to the parliamentarians could not change this fact,

Considering the following elements on file:

• Mr. Chalupa, aged 64, was arrested on 2 February and detained at the Kinshasa penitentiary rehabilitation centre; he was charged with using forged documents; he is accused of using a false attestation of nationality issued in 2001 by an official to obtain a Congolese passport and voter’s card before he had obtained Congolese nationality; the official accused of having produced the false documents and of issuing them to Mr. Chalupa was prosecuted together with him but, unlike Mr. Chalupa, has apparently never been remanded in custody;

• The trial at first instance took place during three hearings held on 23 July and 2 and 6 August 2012; on 6 October 2012, Mr. Chalupa was sentenced to four years in prison while the charge of forgery against the official was dropped on the grounds that the statute of limitations had expired; Mr. Chalupa has been living in the DRC for many years, working as an economic agent; he is married to a Congolese national; Mr. Chalupa’s candidature for the 2006 and 2011 parliamentary elections was validated by the Electoral Commission, as it met the conditions set forth in Article 102 of the Constitution, including those related to Congolese nationality; he was issued a biometric diplomatic passport by the competent Congolese authorities following his election to the National Assembly; the constitution of the political party founded and headed by Mr. Chalupa in 2011 was also validated by the Minister of the Interior, following the usual verifications;

• The public prosecutor’s office reportedly opened an investigation on its own initiative, as it had discovered that Mr. Chalupa did not have a presidential order granting nationality; Mr. Chalupa had apparently provided differing data to the Congolese administration over the years (1996 to 2011) concerning both his place of birth (Bujumbura in Burundi, Kaludu and Uvira in the DRC - both are near Burundi) and the complete identity of his parents, neither of whom had Congolese nationality; the office had apparently noticed these discrepancies and made verifications, and this had resulted in the legal proceedings;

• Naturalization is not automatic in the DRC, but must be requested from the administration no matter what the circumstances; thus, even though Mr. Chalupa seems to meet all the conditions for the granting of Congolese nationality, since he has been a resident of the country for many years and is married to a Congolese citizen, he cannot be granted naturalization automatically but must request it from the administration and wait for a reply; 

• Mr. Chalupa says that he has an attestation that he requested naturalization, namely a receipt for his application, but no proof that he holds Congolese nationality, which, under the law on nationality, is only granted by presidential order; Mr. Chalupa had apparently not yet received a reply to his application and therefore did not yet have the presidential order or, consequently, Congolese nationality; he apparently received an attestation of nationality in 2001 without having received a prior presidential order, a public official having issued a false attestation in violation of the law on nationality; all the other official documents (voter card, passport, etc.) were subsequently issued on the basis of the false attestation of nationality,

• With regard to the existence of an arrest warrant at the time of Mr. Chalupa’s arrest, the circumstances of the arrest and the identity of the security forces who carried out the arrest, the facts have yet to be established; according to the sources, Mr. Chalupa was arrested in the absence of an arrest warrant by Republican Guard troops after going to a bogus appointment arranged over the telephone by someone he did not know; the authorities, for their part, have informed the Committee that they have no information on these points, given the confidential nature of the pre-trial investigation;

• With regard to the launch of proceedings, the exact circumstances leading to the verification of Mr. Chalupa’s administrative file with the various administrations and prompting the public prosecutor’s office to initiate proceedings on its own initiative have not been clearly established either, as they are reportedly also covered by the confidential nature of the pre-trial investigation;

• With regard to whether or not Mr. Chalupa holds Congolese nationality, the place of Mr. Chalupa’s birth has been the subject of conflicting information on the part of the sources and the authorities (DRC and Burundi) and requires clarification; the same holds true for the dates on which Mr. Chalupa filed his application(s) for Congolese nationality (1996, according to the sources; not until 2006 and 2011, according to the authorities);

• With regard to Mr. Chalupa’s continued detention, the sources affirm that none of the decisions handed down rejecting the applications for pre-trial release, including by the Supreme Court, specify the facts and elements of proof on which the decisions are based and which would justify Mr. Chalupa’s continued detention; the reasons why the Supreme Court exceeded the legal deadline of 48 hours and handed down its decision a few months later have not been established either;

• With regard to the allegations that Mr. Chalupa’s arrest and the judicial proceedings against him were prompted by political interference, no credible explanation has been provided of why the proceedings were only launched at this point in time and why the forgery was not discovered earlier, during the many prior verifications conducted by the Congolese administration when Mr. Chalupa undertook administrative representations to obtain nationality, travel abroad, get married, conduct his economic activities, found and register his political party, register as a candidate and be elected as a member of parliament in 2006 and run for election in 2011, or in the course of the electoral dispute that led to his disqualification in 2007; given that the forgery in question was issued by a public official, that the administration never responded to Mr. Chalupa’s repeated applications for nationality and never questioned his nationality in the past, Mr. Chalupa’s responsibility is not clearly established, contrary to that of the Congolese administration,

Taking note that, in the DRC, the procedure for granting and withdrawing nationality is discretionary, with decision-making authority on such matters being conferred in law and in practice on the Minister of Justice and the Council of Ministers headed by the Head of State, and that there is practically no remedy before the courts,

Recalling the following: the right to nationality is set out in many international instruments, notably Article 24(3) of the International Covenant on Civil and Political Rights and Article 5(d)(iii) of the International Convention on the Elimination of All Forms of Racial Discrimination, which the DRC has also ratified; Human Rights Council resolution 20/5 of 16 July 2012, on human rights and arbitrary deprivation of nationality, calls on “States to observe minimum procedural standards in order to ensure that decisions concerning the acquisition, deprivation or change of nationality do not contain any element of arbitrariness”, “[r]eafirms that the right to a nationality of every human person is a fundamental human right” and “[r]eiterates that arbitrary deprivation of nationality, especially on discriminatory grounds such as political or other opinion (…) is a violation of human rights and fundamental freedoms”,

Considering that Mr. Agboyibo, former Prime Minister of Togo, was mandated to travel to Kinshasa from 25 July to 2 August 2012 in order to verify Mr. Chalupa’s conditions of detention, meet with all the parties to clarify the above-mentioned points, consult the file on the case and observe any hearings, that the parliamentary authorities welcomed the mission and facilitated its smooth conduct, that Mr. Agboyibo’s mission report was forwarded to the authorities and to the sources on 13 September 2012, and that their observations have been taken into consideration,

Noting the following: because they were postponed at the last minute, Mr. Agboyibo was unable to observe the hearings or to have access to the case file; thanks to the Speaker of the National Assembly, Mr. Agboyibo was able to visit Mr. Chalupa in detention, discuss his case with him and ascertain that he had proper conditions of detention; following the mission, and as indicated in the mission report, Mr. Agboyibo concluded that “the charges against Mr. Chalupa of falsifying documents and of using falsified documents were not grounded in reliable evidence and that his arrest and detention were politically motivated. The involvement of the Republican Guard in his arrest and the circumstances surrounding that involvement have never been explained and appear to add to the case’s political dimensions”,

Referring to the information provided by the sources, according to which the ruling of 6 October convicting Mr. Chalupa was handed down after the legal deadline, was not notified to either Mr. Chalupa or his lawyer until now, and was based on no reliable evidence, the official accused of having issued the forged document having testified under oath at a public hearing that the document he issued were not fake and that he was authorized to issue them in the exercise of his duties,

Taking note that, at the hearing with the Committee, the Speaker of the National Assembly and the delegation of the DRC stated that the National Assembly, upholding the principle of the separation of powers, could not take a stand on court decisions and was not authorized to comment on them, to obtain a copy thereof or to transmit a copy to the Committee,

1. Thanks the Speaker of the National Assembly and the members of the delegation for their cooperation and the information provided;

2. Deplores the fact that Mr. Chalupa was not notified of the decision to convict handed down on 6 October 2012; sincerely hopes that Mr. Chalupa will be provided with a copy the ruling against him as soon as possible;

3. Recalls that the publication of judicial decisions is a fundamental principle of the international fair-trial standards which the DRC has undertaken to uphold (Article 14[1] of the International Covenant on Civil and Political Rights) and that appeal proceedings cannot be considered fair unless the person convicted at first instance has been fully informed of the reasons and evidence on which the conviction is based;

4. Wishes to understand the court’s reasoning in law and the evidence invoked in support of its decision, in particular the evidence of forgery in the present circumstances, given that: (i) the statute of limitations had expired and the presumed perpetrator of the forgery is no longer being prosecuted; (ii) the latter apparently testified under oath that the document in question was not a forgery and that he was authorized to issue it; (iii) Mr. Chalupa was charged with using a forgery, which requires that the existence of the forgery be proven; (iv) Mr. Chalupa’s lawyer has stated that none of the evidence in the file establishes that the attestation of nationality issued to Mr. Chalupa was a forgery, even less that Mr. Chalupa knew that the document issued by the Congolese administration was a forgery;

5. Still fails to understand whythe proceedings initiated against Mr. Chalupa cast doubt on his Congolese nationality, which had never previously been contested, even though Mr. Chalupa took many steps contingent on the verification of his nationality, in particular standing twice for election to parliament; shares the Committee’s concerns that Mr. Chalupa continues to be remanded in custody on the charge of using a forgery, even though there are other possibilities, in particular in view of Mr. Chalupa’s age, the nature of the charge, and the well-known fact that the prison in Kinshasa is overcrowded; recalls in this respect the well-established principle according to which suspects must be released pending their trial and remanded in custody as a measure of last resort, used only when the State can prove that there are pertinent and sufficient grounds for detention; strongly hopes that the judicial authorities will once again consider Mr. Chalupa’s provisional release in the context of the appeal proceedings, and that those proceedings will be conducted in exemplary fashion, in strict compliance with fair-trial guarantees and in accordance with the DRC’s international human rights obligations;

6. Requests the Secretary General to convey this resolution to the Speaker of the National Assembly, the Minister of Justice, the Prosecutor General and the sources;

7. Requests the Committee to continue examining this case and to report back to it in due course.

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* The delegation of the Democratic Republic of the Congo expressed its reservation regarding the resolution.

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