By Alexandre Naïny BERETE: We have alerted to the consequences of prolonged, abused preventive detention. Well our fears turned out to be well founded. The grim reaper carried off former minister Louceny Camara in detention at the central house last night since April 28. His death is an absolute tragedy that should have been avoided.
We warned of the need to grant conditional freedom to former state executives from the former regime while waiting for the courts to rule on their fate. But unfortunately !
The consecration of the principle of presumption of innocenceis the foundation of principle of exception of preventive detention provided for in article 235 CPP (Guinean criminal procedure code). Recourse to preventive detention must be the last resort and be justified by the strict requirements of the ongoing investigation..
Article 235 of the aforementioned Code of Criminal Procedure provides: pre-trial detention may only be ordered or extended if it is demonstrated, in the light of the precise and detailed elements resulting from the procedure, the seriousness of the acts with which the accused person is charged and the complexity of the investigations necessary for the demonstration of the truth, that it constitutes the only means of achieving one or more of the objectives “. below:
1. Preserve the evidence or material clues that are necessary for the manifestation of the truth;
2. Prevent pressure on witnesses or victims and their families;
3. Prevent fraudulent consultation between the accused person and his co-perpetrators or accomplices
4. Protect the accused person;
5. Ensure that the accused person remains at the disposal of justice;
6. Put an end to the infringement or prevent its renewal;
7. Put an end to the exceptional and persistent disturbance to public order caused by the seriousness of the offence, the circumstances of its commission or the extent of the damage it has caused. This disturbance cannot result from the media repercussions of the affair alone.
In view of this article, it clearly appears that the conditions for pre-trial detention of these people are not met, for several reasons.
First, these people have announced their willingness to face the justice of their country in order to clear their honor in the face of any suspicion or accusation of corruption. In judicial matters, the will of the parties must be taken into account by the judge.
Secondly, these prosecuted persons have known and recognized domiciles. There is therefore no obstacle to placement under judicial supervision.
Tercio, without doubt the most serious reason. The passports and other travel documents of these accused persons have been withdrawn, and their assets frozen by the authorities without any court decision in the matter (another breach of the procedure concerning them, but let’s pass on it).
Nor has it been demonstrated by the prosecution that the former executives prosecuted and who have already been placed under judicial supervision accompanied by bail, I am thinking of Zakaria Koulibaly, Tibou Camara or even more recently in Damantang Camara evaded the conditions linked to their judicial review. In view of all these facts, it is no longer relevant to keep Kassory et cie in pre-trial detention, especially since the time limit for placement in pre-trial detention has largely exceeded for some of them (4 months according to article 236 of the CPP) .
In addition, these people have several times benefited from conditional release accompanied by the payment of bail, each time the very “competent” prosecutor of the CRIEF opposed their release.
I take advantage of this paper to challenge here directly the President of the transition, guarantor of the normal functioning of the institutions, to proceed with the conditional release of the detainees or to quickly proceed to the organization of a fair, equitable and adversarial trial.
Force is given today to note that the detention of Kassory and cie, can be qualified at the same time as arbitrary and unjustified. Arbitrary, in the sense that their arrest and their deprivation of liberty were carried out in non-respect of Guinean law, in particular the non-respect of the maximum periods of preventive detention as prescribed by law. And unjustified, in the sense that several decisions of conditional release have been pronounced and that they have all been refused execution. In addition, all the conditions of pre-trial detention concerning them are not met.
Strictly speaking, it is important to remind magistrates and failing prosecutors that respect for the fundamental freedoms of litigants is a fundamental principle of the rule of law without which no court decision can be legitimate.
By Alexandre Naïny BERETE, jurist