The Right to a Fair Trial: The Case of Senegal

by Maître Sény Diagne, Avocate à la Cour

I. Introduction

Senegal is a former French colony which became independent in 1960. So its judicial system is drawn from the French judicial system.

During the Colonial period Senegal was using the French Penal Code. After independence in 1965 a Senegalese Penal Code was adopted, but many articles were more or less the same as the French ones. Minor changes have been made to the code between 1965 and 1984, but it was only in 1985 that an important penal reform was conducted and most parts of both the Penal and Penal Procedure Codes were readjusted or changed.

To date, this reform is still going on and in the next two years, we are going to have a new penal code which will be more modern and more adapted to the Senegalese realities. This paper will be based on the Code issued from the 1985 penal reform.

The right to a fair trial is guaranteed by the Senegalese Constitution in its Article 6. In addition, it is ensured by the International Covenant on Civic and Political Rights, which Senegal has ratified. In our judicial system, once an international treaty is ratified, it is above the ordinary laws and these laws must be reformed to comply with the treaty. Senegal has also ratified the African Charter which does not allow State Parties to derogate from their obligations under the treaty, even in states of emergency.

In this paper, I will examine the rights accorded the accused in the three stages of the trial process: before trial, during trial and after trial. As I have mentioned in the introduction, Senegal is still conducting a study on the reform of the penal system so as to comply with all its obligations under regional and international instruments. At the present time, the penal system is an improvement over the previous system, but it still does not conform to the instruments.

II. The Status of the Detainee Before Trial

The Senegalese judicial system is built on the same structure as the French system. Accordingly, there is no habeas corpus procedure. The accused is detained at a police or gendarme station before transfer to the courts. The detention by the police is usually necessary to conduct a preliminary enquiry. After this first enquiry the accused is taken before the court where he appears either before the prosecutor or before the "juge d'Instruction."

A. The Preliminary Enquiry

When the police officer is aware of a crime, he is authorized to investigate. To do so, he can ask any person who may have participated to this crime to appear before him. If he finds it necessary to interrogate a person further, he can order him to be detained for 48 hours. This is called "Garde à vue."

1. The "Garde à vue"

The law authorizes the police officer to detain an individual who may have participated in a crime for up to 48 hours. The police officer has an obligation during this period to advise the public prosecutor of what is happening and to refer to him if there is any problem. The public prosecutor can choose to let the officer conduct the enquiry for the 48 hours, but he can also decide to conduct the enquiry himself. In this case, the police officer steps aside, permits the prosecutor to carry out the enquiry and gives the necessary instructions to the police officers.

After advising the prosecutor, the police officer can go on with his enquiry, and if he feels, after the expiration of the 48 hours that he needs more time to assess the case, he can ask the prosecutor for authorization to prolong the detention of the suspect for another 48 hours. If the prosecutor approves the extension, he issues a written authorization notifying the detainee. The police officer also has an obligation to notify the suspect of the reasons why his detention is being prolonged.

During this period the suspect has some means to protect himself against violence and other violations of his rights.

2. The Right to Have Medical Care

The accused who is detained at the police station has the right to ask for a medical examination at any time during the 48 hour period. The demand is made to the public prosecutor through the police officer. The demand must be satisfied and a doctor must be sent to the police station at the detainee's expense. The public prosecutor can also request a medical examination and in this case the examination is at the expense of the government.

The suspect has no right to have his lawyer present at the police station. If the suspect has a lawyer, the only thing that the lawyer can do is to ask that his client have a medical examination.

3. The Right to Remain Silent

During the preliminary enquiry the suspect has the right to refuse to make any statement to the police officer. But this does not prevent the officer from asking questions. To avoid any excess during these interrogations, the law has a provision that makes it mandatory for the police officer to state in a written form in its report the period of interrogation and the period of rest. This helps control that there is no abuse.

For the accused who remains silent, although the law does not address the consequences of his silence, the silence in practice does not play in his favour.

If the suspect chooses to confess during the preliminary enquiry, this is noted in the police report. The confession cannot be used against the suspect if he denies it before the court during trial. In fact the police report has only the value of simple information. So, the suspect can proclaim that what he has confessed for was not the truth, or that the confession was obtained by physical or moral violence or by deception.

B. The Appearance Before the Court

After the first or second period of 48 hours the accused is taken before the court and presented to the prosecutor. The prosecutor after examination of the police report can either send the suspect for trial before the court within a very short period or send him before the "Juge d'Instruction" for further enquiry.

The prosecutor examines the police report which comes with the suspect, and if he decides that the enquiry is complete and that the suspect can appear before the court without any further enquiry, he conducts a short interrogation of the suspect. He then decides after notifying him of the charges whether to place him in detention or to release him from custody.

1. Pre-Trial Detention

Under Senegalese criminal law there is no pre-trial detention for any individual who has a fixed address in the resort of the court and who risks a penalty not exceeding two years. It must be admitted that this principle is not respected in most cases by the prosecutors and the magistrates. Judges and prosecutors too often send accused persons to pre-trial detention. The law is in place; it is now up to those enforcing the law to adapt themselves to it.

The law authorizes the detainee to apply for provisional liberty and to appeal negative responses. If the suspect who appears before the prosecutor makes a confession, he can decide to send the suspect immediately before the court to be tried within three days. In reality the delay of 3 days is seldom respected. Delays before the court are unduly long and sometimes it happens that a person is forgotten in prison. These problems are exacerbated by the fact that not everybody has a lawyer.

2. The Right to Counsel

A lawyer is not compulsory for offences, so only people who can afford a lawyer have one. In theory, a legal aid program exists, but the government claims that it does not have the resources necessary to conduct this program.

In criminal cases, suspects do have the right to counsel. The court asks the National Bar to designate lawyers to assist all accused that do not have a lawyer or cannot afford one. The designated lawyer does not receive any honorarium from the government or the bar, even his expenses (travel, food, etc.) are not reimbursed. If a lawyer is designated, he usually remains through the whole procedure from the lower court to the Supreme Court.

3. Appearance Before the "Juge d'Instruction"

If the prosecutor feels that the case needs further enquiry, he sends it before the Juge d'Instruction. For criminal cases it is compulsory to require the intervention of the Juge d'Instruction.

The accused is presented for his first appearance before the Juge d'Instruction who notifies him of the charges against him and tells him that if he wants, he can refuse to make a statement. The accused is also notified of his right to choose a lawyer from among members of the bar, at his own expenses if it is an offence. If the accused appears for a crime, the Juge d'Instruction advises him that if he cannot afford a lawyer, he is going to ask the bar to designate a lawyer to assist him in his defence. Further the Juge d'Instruction notifies the accused whether he will be put in pre-trial detention or released from custody. If the accused is placed in pre-trial detention, he cannot be detained for more than six months.

Before the expiration of the six months, the Juge d'Instruction must issue another order to prolong the pre-trial detention. If this is not done at the expiration of six months, the Director of the prison can liberate the accused and he cannot be placed again in pre-trial detention.

The accused who is serving a pre-trial detention is, in theory, in separate quarters from others who are serving a definitive sentence. But the conditions of jails in Senegal does not allow this in practice.

4. The Interrogation

After the first appearance, the enquiry is open and the Juge d'Instruction can ask the accused to appear before him to be interrogated on the substance of the charge. If the accused has chosen a lawyer or if one has been appointed, the interrogation cannot be conducted without the presence of counsel, unless it is stated in written form that the accused accepts this interrogation without the presence of his lawyer. During this interrogation, the accused is asked to answer all questions that can help clear up the case. The accused is expressly required by law to answer these questions. If he refuses to answer, this can prejudice his case.

If it is necessary, the Juge d'Instruction can order any expertise that can help him reach a conclusion. In criminal cases it is compulsory for the Juge d'Instruction to order a medical examination of the accused to determine if his mind is sound. He must also order a social enquiry to determine the personality of the accused.

An undetermined number of interrogations can be conducted by the Juge d'Instruction under the same circumstances. During the interrogation, victims and witnesses may appear, and confrontations can be conducted between the accused and the victims or the witnesses. The counsel of the accused can participate in the questioning and ask questions through the Juge d'Instruction who can reject them if he thinks that they are not relevant to the case.

5. Provisional Liberty

Throughout the enquiry, the accused or his lawyer can make demands for provisional liberty. The Juge d'Instruction must communicate this demand to the prosecutor and receive his advice before making a decision. He can decide not to follow the advice of the prosecutor. In any case, he must notify the suspect or his lawyer of the decision, and if the demand is refused, the Juge d'Instruction must state the reasons for his refusal.

His decision can be appealed before the "Chambre d'Accusation" which is part of the Court of Appeal.

If the Juge d'Instruction feels that he has all the necessary facts to help him make up his mind, he closes the enquiry and then can issue two kinds of decisions: he can decide that there is no offence and that the accused need not be tried; or he can decide that there is an offence and ask the prosecutor to have the accused appear before the court for trial. In this case the prosecutor has two months to make the accused appear for trial. If it is a crime, the Juge d'Instruction closes his enquiry and sends the case to the Chambre d'Accusation, a part of the Court of Appeal.

6. The Chambre d'Accusation

Within ten days of the reception of the file, the case is brought before the Chambre d'Accusation ("CA") by the General Prosecutor. The CA studies the file and if necessary will order any supplementary enquiry it thinks necessary. The CA also examines the regularity of the procedure followed by the Juge d'Instruction and finally it sends back the case before the "Cour d'Assises" which is the trial court for all criminal affairs.

The counsel of the accused has access to all evidence that is going to be used against his client for the preparation of his defence.

III. The Trial

There are two kinds of courts that try accused persons in Senegal: the Cour d'Assises and the Correctional Court. The Court d'Assises is a special court that tries all persons accused of crimes. Our Penal Code enumerates in its different articles what qualifies as a crime, e.g. killing with premeditation, infanticide, etc. Persons accused of having committed an offence for which punishment does not exceed usually five years appear before the Correctional Court for trial.

A. The Cour d'Assises

The Cour d'Assises is composed of two entities: the court and the jury. The Court is composed of a President and two assessors who are all judges. The President is a judge in the Court of Appeal. The assessors can be judges at the Court of Appeal or at a regional court. (The regional court is a first degree court.) Any judge who has already dealt with the case at any stage of the procedure cannot be an assessor to try the accused.

The jury is composed of six persons: four are the principal jurors and two are nominated for eventual replacement of any of the four. The jurors are Senegalese citizens, men or women (aged 30 minimum) who can read and write in French, the official language of the country. The jurors must also be of sound mind, not deaf, and must enjoy all their political, civic and family rights. In addition, they must have never been imprisoned for any offence or crime. Members of the government, the Parliament, ministers' cabinets, governors, magistrates, members of the police force, or the army cannot be jurors. Old people over 70 and religious chiefs can be discharged from jury service if they require it.

The six jurors are drawn from two lists made annually by the Ministry of Justice of Senegal: a list of 30 names and a supplemental one of 12 names.

1. The Proceedings Before the Trial

Before the formal trial begins, a judgement containing all the charges retained against the accused is transmitted to him. After this transmission he must present himself before the President of the Cour d'Assises who interrogates him and makes sure that he has received notification of the charges. The President also makes sure the accused has a lawyer, and if he does not, the President will designate a lawyer.

Five days after the appearance before the President, the accused is tried before the court. During these five days the counsel of the accused can examine the whole file and all the evidence. In consultation with his client counsel makes a list of defence witnesses and communicates it to the prosecutor and the victim.

Before the opening of the trial, the jurors are chosen during an open session. The accused and his lawyer have the right to excuse half of the jurors and other jurors are chosen as replacements.

2. During Trial

To begin, the jurors are installed and if one is missing, a replacement is used. At this time, the trial is opened. Usually the entrance of the court room is free unless the court decides that there are risks of trouble if this is so. Members of the press are admitted in the court room, but they are not allowed to film the proceedings or record the voices, nor take any photographs.

The trial takes part either in the place where the crime has been committed, or in the place where the accused is detained. In the case of the Cour d'Assises, the trial can take part in another place if there is no Cour d'Assises in the place of the crime or of detention.

The President conducts the debates. He interrogates the accused, the witnesses and any other person whose statement can be necessary to the manifestation of the truth. The prosecutor, the defence, and the victim can ask questions to the persons who are making statements or testifying through the President. Witnesses must testify in person, and no one can testify for somebody else.

During the trial, specific rights of the accused must be respected. The accused is protected against all interferences with his private life. Also, all evidence obtained by arbitrary or unlawful means must be rejected by the court.

After the court enquiry and statements by the prosecution and the defence, the court and the jury retire to deliberate. The deliberations are done both by the jurors and the court. After the discussions, a decision must be reached by a majority of five voters. Members of the court vote also. Once the decision on the sentence is reached by a majority of at least five voters, the Cour d'Assises reconvenes. The sentence is pronounced in public by the President after stating the responses made to the questions. If the accused is acquitted, he is immediately released from custody. If he is convicted, he is punished individually as there is no provision for collective punishment in Senegalese law.

B. The Correctional Court

The Correctional Court is usually composed of a single judge. The only exception is for Dakar county where there are three judges -- a President and two assessors. All three are professional judges; there are no jurors.

1. The Hearing

The accused appears before this court and the interrogation is conducted by the President. The accused, by law, must answer the questions of the President; refusal to answer his questions can prejudice his case.

Counsel is not compulsory before this court. If the accused cannot afford a lawyer, the only recourse possible for him is to write to the National Bar and ask the President of the Bar to appoint a lawyer for his defence. The appointment of a lawyer by the President of the Bar is not compulsory, but usually one is appointed.

The President of the Correctional Court can hear all witnesses' statements be they from the prosecution or the defence. The defence lawyer can ask questions of all witnesses through the President. Usually the President will allow the lawyer to ask questions directly to the defendant. The defence can call upon all witnesses to sustain his case. He is only required to tell the prosecution and give him the list of his witnesses.

The hearing before the Correctional Court is public unless the President decides to have it closed because some trouble may occur. The press can attend the debates but cannot film or make recordings.

As in the case of the Cour d'Assises, the accused is tried in the court of the place where the offence has been committed or in the court of the place where he is detained. There is a Correctional Court in all the counties of Senegal, so the lack of a Correctional Court is no bar to trial.

After the President's interrogation and questioning from the prosecution and the defence, the court hears closing statements. The defence lawyer is the last one to speak before the court pronounces its sentence.

2. The Sentence

The court makes a decision about the accused's guilt or innocence based upon its own conviction, however the decision must be based on the evidence presented during the trial. The judge is not required to explain his decision. If there are three judges, they deliberate among themselves and issue a sentence. The law expressly asks the judges that if there is any doubt, it must be profitable to the accused. And if the offence can be justified, the judge can suspend the sentence be it an imprisonment or a fine.

After the sentencing in the first degree court the defendant can appeal the sentence before the Court of Appeal or introduce a recourse before the Supreme Court of "Cour de Cassation."

3. Other Protection Afforded an Accused Person

If an accused is acquitted after pre-trial detention, he has no recourse against the State. If the accused is declared insane by a doctor, he cannot be sentenced and is declared irresponsible. The death penalty is not abolished in Senegal but it is seldom pronounced. Since Independence, only two persons have been killed (by firing squad). All the others have obtained pardon by decision of the President of Senegal. Forced labour is more or less abolished and if prisoners work, they receive a salary, even though the salary is inferior to the normal one. If a more severe law is taken after the accused has committed the offence, the law cannot apply to his case. If the law contains a less severe sentence, it is applied to the accused.

IV. After Trial

As already mentioned, the defendant can decide to appeal his sentence. If he decides not to appeal his sentence and it involves imprisonment, he has recourse to some means to help him avoid staying in prison for the whole term of imprisonment.

If he decides to appeal, the case goes to the Court of Appeals, as there is only one court in Senegal for appeals in correctional matters. In the case of criminal affairs tried by the Cour d'Assises, there is no appeal. The only thing one can do is seek recourse before the Supreme Court.

A. Review in the Court of Appeals

The Court of Appeals receives the file used in the first degree trial and can review the facts and the law. Both prosecution and defence can present new argumentation for their case but no new offence nor demand can be brought before the Court of Appeals.

The Court is composed of a President and two assessors. All are professional judges. If the accused is imprisoned within the resort of the Court of Appeals, he appears before the Court and an enquiry is conducted by the President who interrogates the accused and the witnesses. The rights of the accused are the same as before the first degree courts.

If the accused is imprisoned out of the resort of the Court of Appeals, he does not appear before the Court unless the President decides that his appearance is necessary for the manifestation of the truth. If the accused does not appear, one of the assessors makes a report on the case after that prosecution and defence make their statements. The Court enters into deliberation and issues a sentence. The sentence can be a confirmation of the first sentence or an information, in which case the sentence can be reduced or increased. After review in the Court of Appeals, the accused has another opportunity for appeal in the Supreme Court, which is called Cour de Cassation in Senegal.

B. Review in the Cour de Cassation

The Cour de Cassation ("CC") reviews only the law. A defendant or victim who feels that one of his rights has been violated may seek such review after appeal or a sentence of the Cour d'Assises.

Such review can only be sought by a lawyer who receives a special power from his client. The request for review is written and notified to the CC, to the General prosecutor and to the other party (either the defendant or the victim). The latter has two months after notification of the request to deposit his written argumentation in response.

When all the parties have deposited their written statements, the CC sits to examine the case. The Court first examines the proceedings to see that they conform to the law. Then the Court examines the arguments of the parties and if they determine that the law or the rights of the demandee have been violated, they pronounce the cassation of the judgement and the case is again brought before the Court of Appeals or the Cour d'Assises. The judges who sit to examine the case upon remand must be different from the ones who reviewed the case the first time.

C. Probation

When the sentence is definitive, the person imprisoned can ask for the benefit of probation. There are several conditions for probation. First, the detainee must have accomplished half of his sentence if it is his first imprisonment and three quarters of his sentence if he has already been in prison on some other matter. If the detainee is sentenced to life imprisonment, he must have spent at least 15 years in prison. Also the detainee must have a good record in prison regarding good behaviour. He must also show that once outside prison he is qualified enough to reintegrate into society, find a job, etc. Depending upon the personality of the detainee, his nationality etc., additional conditions may be imposed upon him. For example, if he is a foreigner, return and acceptance by his home country may be required. If there is a history of chemical dependency, he may be required to submit himself to medical treatment.

In order to request probation, the detainee must send a written demand to the ministry in charge of jail administration. The competent section in this ministry will send the demand to the Ministry of Justice for advice. The advice of the following persons is required: the Director of the Prison where the detainee serves his sentence, the Chief of the Administrative district where the detainee intends to live once probation is obtained, and the Prosecutor of the Court who has sentenced the detainee. If all these persons and entities give a favourable recommendation, probation is granted.

As soon as probation is granted the beneficiary is put under the protection of a committee called "Committee for the Assistance to persons in Probation." The decision granting the probation fixes the conditions of the probation period. The beneficiary is compelled to respect these conditions, or probation is terminated. During the probation period, these conditions can be changed.

V. Conclusion

I have tried to describe as accurately as possible the proceedings regarding criminal laws in Senegal. One can say that Senegal does not respect all of its international obligations under the conventions it has signed. But let us hope that with the penal reform which is underway, most of the gaps will be closed.