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Resolution adopted unanimously by the IPU Governing Council at its 194th session
(Geneva, 20 March 2014)

The Governing Council of the Inter-Parliamentary Union,

Referring to the case of Mr. Dieudonné Bakungu Mythondeke and to the resolution it adopted at its 193rd session (October 2013),

Also referring to the letter of the Speaker of the National Assembly of 19 February 2014 and to the information provided by the source,

Referring lastly to the report of the mission conducted to the Democratic Republic of the Congo (DRC) from 10 to 14 June 2013 (CL/193/11b)-R.2),

Considering the following information on file provided by the source:

  • Mr. Mythondeke and members of his family were arrested on 2 February 2012 at his home in Goma, in North Kivu province, after an exchange of gunfire between the policemen assigned to his security detail and a group of roughly 200 soldiers and policemen who were trying to enter the premises in the middle of the night; four people (including two policemen assigned to Mr. Mythondeke’s security detail and two soldiers) were killed and several people wounded during the shootout; the security forces also searched the premises without a search warrant during the night;

  • According to the source, the authorities’ application of the flagrante delicto procedure was unlawful because Mr. Mythondeke was arrested in the middle of the night while he was asleep and no offence was being committed, and because he was not caught in the act of inciting tribal hatred while at home in the middle of the night; in the absence of a flagrante delicto offence, Mr. Mythondeke could only have been arrested on the authorization of the National Assembly, with due regard for his parliamentary immunity;

  • Several hours after the arrests, the Goma High Court prosecutor issued a search warrant and agents from the security forces were once again deployed to search Mr. Mythondeke’s home; the search was conducted in the absence of Mr. Mythondeke and his family, all of whom were being held at the military prosecutor’s office; many objects disappeared during the search; a complaint was filed for pillage with the Goma Military High Court on 9 February 2012, to no effect; in addition, a suit for damages was filed before the Goma High Court;

  • Mr. Mythondeke and some members of his family were ill-treated during their arrest and detention in Goma and their transfer to Kinshasa; liquid was apparently poured over Mr. Mythondeke on the tarmac at Goma airport, in front of television cameras, to humiliate him; the above-mentioned complaints also concerned this ill-treatment;

  • Mr. Mythondeke and 19 other people were taken to Kinshasa under the flagrante delicto procedure and brought before the Supreme Court on the following counts: rebellion, murder, unlawful possession of war weapons, incitement to commit acts contrary to discipline, distribution of ammunition and threat to internal security; the prosecution asked for the death penalty on all the charges;

  • According to the source, Mr. Mythondeke’s arrest and prosecution were politically motivated because:

    • They occurred at a time when Mr. Mythondeke, the former deputy governor of North Kivu province and a member for the majority PPRD party in the 2006-2012 legislature, had joined the political opposition in the November 2011 legislative elections in Masisi constituency (North Kivu province) and run for a new opposition party established by Mr. Vital Kamerhe, the former Speaker of the National Assembly;

    • Mr. Mythondeke was not proclaimed re-elected after the legislative elections of November 2011, even though, according to the source, he had won enough votes, because, again according to the source, the voting had been seriously flawed;

    • Mr. Mythondeke had openly denounced the “balkanization of the east” (of the DRC) during National Assembly debates on the situation in North Kivu, at government question time and in public statements on the matter, which is apparently why the majority wished to remove him from the National Assembly and more generally from the political scene;

  • On 25 February 2012, the Supreme Court, the court of first and last instance, given Mr. Mythondeke’s status as a parliamentarian, handed down its decision; it reclassified the charge of threat to internal security to one of incitement to tribal hatred and sentenced Mr. Mythondeke to 12 months in prison; it also considered that the other charges had not been substantiated;

  • According to the source, the Supreme Court disregarded Mr. Mythondeke’s rights of defence in that it reclassified the offence of threat to State security as incitement to tribal hatred when it handed down the decision, without indicating the reasons for doing so or the elements constituting that charge, without having first informed the parties or enabled defence counsel to present a defence on that charge, and given that Mr. Mythondeke was not at the outset being tried on that charge; the source also cites the Supreme Court decision of 23 July 1970 (MPC/MN, RJC No. 31970, p. 276), in which the court reportedly ruled as follows: “The fact that a court reclassifies the initial offences for which the accused was remanded in custody, without the accused being defended on the serious offences thus reclassified, constitutes a violation of the rights of defence”;

  • Mr. Mythondeke served his sentence at Kinshasa central prison and was released on 28 January 2013,
Considering the following: over two years after handing down its decision, the Supreme Court finally issued a reasoned copy thereof; the decision confirms most of the source’s allegations, namely (i) Mr. Mythondeke was arrested at night and in the absence of an arrest warrant, (ii) Mr. Mythondeke’s house was searched, and weapons allegedly found there, in his absence and after his arrest, (iii) no evidence was ever provided to substantiate the serious charges made by the prosecution and for which it had asked for the death penalty for Mr. Mythondeke and the members of his family, (iv) the court reclassified the offence when it handed down its decision and Mr. Mythondeke, who had not been charged with the new offence, was not notified in advance and was therefore unable to mount a defence, and (v) the court did not rule on the lawfulness of the application of the flagrante delicto procedure, even though it considered that none of the charges against Mr. Mythondeke had been substantiated and that the charge of incitement to tribal hatred was based on earlier public statements to which the flagrante delicto procedure did not apply,

Recalling that no avenue of appeal exists in the case of criminal proceedings against National Assembly members pursuant to Article 98 of the Judicial Organization and Competence Code and Article 153 of the Constitution,

Also recalling that, during the Committee mission to the DRC, Mr. Mythondeke and his lawyer said that they planned to ask for a retrial once they had received a copy of the reasoned decision and that they had sued the State in Goma High Court for compensation for the ill-treatment and destruction of property suffered by Mr. Mythondeke and his family at the time of their arrests,

Recalling lastly that the DRC is party to the International Covenant on Civil and Political Rights, Articles 9, 10 and 14 of which recognize the right to liberty and security of person, the right to a fair trial and in particular the right of anyone convicted of a crime to appeal to a higher court,

Considering the following information provided by the source: Mr. Mythondeke has feared for his safety and that of his family since his release from prison; he is allegedly being followed and intimidated by agents acting on the orders of the general who ordered his arrest in Goma and who has since been promoted and transferred to Kinshasa; Mr. Mythondeke’s security situation is said to have seriously deteriorated between June 2013 and March 2014 and he is being kept under increasingly close surveillance (he is constantly followed and has learned that the people around him are systematically asked about his movements); Mr. Mythondeke has said that he fears for his life and that of his family,

Bearing in mind that, in his letter of 19 February 2014, the Speaker of the National Assembly said that the Congolese authorities were responsible for ensuring the safety of Mr. Mythondeke and his family, as they were for ensuring that of all Congolese citizens,

  1. Notes with deep concern the deterioration in Mr. Mythondeke’s security situation and calls on the competent authorities urgently to take the requisite measures to stop the surveillance and intimidation to which he has been subjected, in order to ensure his safety and that of his family; strongly urges the parliamentary authorities to inform it of the measures taken to that end by the authorities concerned;

  2. Observes that the Supreme Court’s reasoned decision confirms that Mr. Mythondeke’s basic rights were violated when he was arrested; considers also that, because the charges on which Mr. Mythondeke was prosecuted were not substantiated, the Court should have determined that there had been no flagrante delicto offence and declared itself incompetent in the case, since Mr. Mythondeke had parliamentary immunity; further observes that Mr. Mythondeke’s rights of defence were disregarded during the proceedings, given that he was convicted on a charge in respect of which he was unable to present a defence;

  3. Again emphasizes that the possibility of appeal is one of the most fundamental guarantees of a fair trial, and, given that parliamentarians in the DRC currently have no avenue of appeal in judicial proceedings against them, invites the competent authorities to satisfy Mr. Mythondeke’s request for a retrial and his suit for damages for the violation of his basic rights; asks the authorities and the source to keep it informed of the outcome of those proceedings;

  4. Requests the Secretary General to convey this resolution to the parliamentary authorities, the Minister of Justice, the source and any third party likely to be in a position to supply relevant information;

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

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