What procedure for an appeal in cassation ? (Tribunal of the lawyer Victor Ebenya Molongi)
Editorial staff :+243817406088
The Court of Cassation’s hearing date notification feat has given rise to several erroneous interpretations, even going so far as to affirm that the Court of Cassation acquitted Mr. Vital Kamerhe. What is the status of this procedure and what does the law say about it ?
Indeed, Mr. Vital Kamerhe, sentenced on appeal to 13 years of forced labor by the Kinshasa/Gombe Court of Appeal for embezzlement of public funds, had to benefit from provisional release by decision of the Court of Cassation ; this, following his request for an appeal in cassation.
Because, in accordance with the legal provisions, it is possible for the Court of Cassation to grant provisional release to someone who has been definitively convicted by the appeal court and who files an appeal in cassation before the Court of Cassation. This, pursuant to article 47 in fine of the Law on procedure before the Court of Cassation which provides that «The person sentenced by the court of appeal, who is in preventive detention or whose arrest has been ordered by the court of appeal or by the Public Prosecutor attached to this court, may introduce before the Court of Cassation a request for release or provisional release, with or without security”.
And according to the relevant provisions of this article 47, in order for the convicted person to be able to request this provisional release before the Court of Cassation, he must «first file an appeal in cassation against the appeal decision which condemned him».
In the case of Vital Kamerhe, he was entitled to seek provisional release before the Court of Cassation, while waiting for the latter to empty its referral (render its decision) of appeal in cassation. And it should be noted that in criminal matters, «the appeal in cassation suspends the execution of the contested decision which was rendered by the court of appeal».
To this end, now wanting to examine the appeal in cassation, the Court of Cassation notified the parties of the hearing date set for April 11. This Court, sitting in matters of cassation, will not hear the merits of the case (in the sense of acquittal). It will have two possibilities : «confirm the judgment of the Kinshasa / Gombe Court of Appeal or simply quash the said judgment».
Lawyer Victor Ebenya Molongi
About Author
