CCPR/C/144/D/3828/2020

GE.25-13226 (E) 170925 170925

Human Rights Committee

Views adopted by the Committee under article 5 (4) of the

Optional Protocol, concerning communication

No. 3828/2020*, **

Communication submitted by:

Oly Ilunga Kalenga (represented by counsel,

Kabeya Muana Kalala and Bernard Maingain)

Alleged victim:

The author

State Party:

Democratic Republic of the Congo

Date of communication:

13 September 2020 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State Party on 19 October 2020 (not issued in

document form)

Date of adoption of Views:

9 July 2025

Subject matter:

Criminal conviction of a minister, handed down

in sole instance by a court of cassation

Procedural issues:

Exhaustion of domestic remedies; substantiation

of claims; competence ratione materiae

Substantive issues:

Access to a court; arbitrary arrest or detention;

discrimination; right of appeal; rights of accused

or convicted persons; effective remedy

Articles of the Covenant:

9, 14 (1) and (5) and 26

Articles of the Optional Protocol:

2, 3 and 5 (2) (b)

1.

The author of the communication is Oly Ilunga Kalenga, a national of the Democratic

Republic of the Congo born in 1960. He claims that the State Party has violated his rights

under articles 9, 14 (1) and (5) and 26 of the Covenant. The Optional Protocol entered into

force for the State Party on 1 February 1977. The author is represented by counsel.

Facts as submitted by the author

2.1

The author is a doctor in the Democratic Republic of the Congo, where he was

formerly Minister of Public Health (2016–2019). After being arrested at his residence in the

* Adopted by the Committee at its 144th session (23 June–17 July 2025).

** The following members of the Committee participated in the examination of the communication:

Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders, Carlos Ramón Fernández

Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia Leinarte, Bacre Waly Ndiaye, Hernán Quezada

Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Teraya Koji, Hélène Tigroudja and Imeru

Tamerat Yigezu.

United Nations

CCPR/C/144/D/3828/2020

International Covenant on

Civil and Political Rights

Distr.: General

3 September 2025

English

Original: French

CCPR/C/144/D/3828/2020

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GE.25-13226

course of an investigation into misappropriation of public funds between December 2018 and

June 2019, he was held in police custody from 14 to 17 September 2019 on the basis that he

intended to flee to the Republic of the Congo.

2.2

On 17 September 2019, the author was placed under house arrest. He remained at

home for more than seven months, until a judgment was handed down in his case (see

para. 2.4 below), without having been brought before a judge.

2.3

On 19 December 2019, the author was summoned to appear before the Court of

Cassation, sitting as a trial court, at a hearing scheduled for 30 December 2019. 1 The

summons contained seven charges against the author. The case was referred directly to the

Court of Cassation because the author had occupied the position of Minister of Public Health

at the time of the events.

2.4

On 23 March 2020, the Court of Cassation, sitting as a trial court in sole instance,

sentenced the author and his co-defendant to 5 years’ hard labour (4 years for the

misappropriation of US$ 391,332 and 1 year for the misappropriation of US$ 13,000). The

Court also imposed a five-year suspension of their right to vote and stand for election and

banned them from holding positions in the civil service or semi-public institutions.2 The

author, who had not appeared before the Court and had not been informed of the judgment,

was incarcerated the same day.

2.5

On 25 March 2020, in a letter addressed to the chief prosecutor of the Court of

Cassation, the author asked to be returned to house arrest. This request remains unanswered.

2.6

When the author attempted to appeal the judgment of the Court of Cassation, he

realized that, under the legal system of the Democratic Republic of the Congo, any form of

appeal was precluded. According to the third paragraph of article 153 of the Constitution,

“the Court of Cassation shall try in sole instance offences committed by … members of the

Government other than the Prime Minister”.

2.7

The author instructed a lawyer to lodge a cassational appeal, invoking the author’s

right to a second hearing and to protection against unlawful detention. On 28 April 2020, the

appeal was received at the registry of the Court of Cassation. However, the following day,

the author’s counsel was summoned by the clerk of the Court of Cassation, who handed him

the original copy of the appeal petition with the added handwritten note, “Received in error

on 28 April 2020”.

2.8

Following sentencing, the author was incarcerated at Kinshasa Prison and

Rehabilitation Centre. He claims to have exhausted domestic remedies.

The complaint

3.1

The author claims that the State Party has violated his rights under articles 9, 14 (1)

and (5) and 26 of the Covenant.

3.2

The author has not had access to any court where he might appeal against the

judgement handed down in sole instance by the Court of Cassation. The lack of a second

hearing constitutes a violation of article 14 (5) of the Covenant. According to the Committee,

“although the legislation of the State Party provides that under some circumstances a person,

by reason of his office, is to be judged by a higher tribunal than would ordinarily be the case,

that circumstance cannot of itself detract from the right of an accused to have his conviction

and sentence reviewed by a higher tribunal”.3

3.3

With regard to articles 14 (1) and 26 of the Covenant, the impossibility for the author

of appealing against his conviction has deprived him of his right to access to justice and to a

fair trial without discrimination in comparison with any other person who is the subject of

criminal proceedings.

1 The author provides a copy of the summons dated 19 December 2019.

2 The Court dismissed charges of misappropriation of other sums (US$ 40,607, US$ 175,800,

US$ 100,000, US$ 8,794 and US$ 5,000).

3 Terrón v. Spain (CCPR/C/82/D/1073/2002), para. 7.4.

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3.4

Moreover, in violation of article 26 of the Covenant, the author was subjected to

discriminatory treatment in that the prosecutor’s office did not first refer his case to the

National Assembly for a debate on lifting the immunity enjoyed by the author in the exercise

of his duties as Minister of Public Health, as required by national law. All ministers enjoying

immunity who are the subject of criminal proceedings and are sent for trial before the Court

of Cassation should have their cases put to such a debate beforehand. Furthermore, only the

author, as a minister, was deprived of his right to a second hearing and his right to lodge a

cassational appeal.

3.5

The State Party also violated the author’s rights under article 9 of the Covenant by

subjecting him to arbitrary and unlawful detention. First, to justify his arrest and placement

in custody in a criminal investigation police cell from 14 to 17 September 2019, the author

was accused of wishing to flee to the Republic of the Congo, when there was no concrete

evidence to substantiate this accusation. Then, from 17 September 2019, his freedom of

movement was restricted and he was held under house arrest for more than six months (until

23 March 2020), without having been brought before a judge. Furthermore, on the day that

the judgment was handed down, the author was taken to prison without having been notified

of the judgment as required under article 28 of Organic Act No. 13/010 of 19 February 2013

concerning proceedings before the Court of Cassation, which provides that judgments of the

Court of Cassation are to be notified to the parties and the chief prosecutor by the clerk of

the Court. Lastly, the author’s detention in prison violated the first paragraph of article 47 of

the Act, which provides that the period granted for appeal and the lodging of an appeal have

a suspensive effect on the execution of the decision with regard to all parties.

Lack of cooperation by the State Party

4.

On 19 October 2020, 3 December 2021, 4 October 2022 and 14 February 2023, the

Committee requested the State Party to submit its observations on the admissibility and

merits of the communication. The Committee regrets that the State Party has failed to respond

to any of these requests and to provide any information with regard to the admissibility or

the merits of the author’s allegations. It further observes that, by adhering to the Optional

Protocol, a State Party to the Covenant recognizes the competence of the Committee to

receive and consider communications from individuals subject to its jurisdiction who claim

to be victims of a violation of any of the rights set forth in the Covenant (see Optional

Protocol, preamble and art. 1). Implicit in the adherence of a State to the Optional Protocol

is the undertaking to cooperate with the Committee in good faith so as to enable it to consider

such communications and, after examination thereof, to forward its Views to the State Party

and to the individual concerned (see Optional Protocol, art. 5 (1) and (4)).4 The Committee

also recalls that article 4 (2) of the Optional Protocol obliges States Parties to examine in

good faith all allegations brought against them and to make available to the Committee all

the information at their disposal.5 In the absence of a reply from the State Party, due weight

must be given to the author’s allegations, to the extent that they have been properly

substantiated.

Issues and proceedings before the Committee

Consideration of admissibility

5.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

5.2

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not being examined under another procedure of international

investigation or settlement.

4 Berezhnaya and Gershankova v. Belarus (CCPR/C/140/D/3196/2018-CCPR/C/140/D/3209/2018),

para. 6.3.

5 For example, Nyengele et al v. Democratic Republic of the Congo (CCPR/C/139/D/3658/2019),

para. 4; and Muteba v. Zaire, communication No. 124/1982, para. 11.

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5.3

The Committee takes note of the author’s claim that, as required by article 5 (2) (b)

of the Optional Protocol, he availed himself of all effective and available domestic remedies

before submitting the communication to the Committee. 6 The Committee notes that on

25 March 2020, two days after his conviction, the author made a request to the chief

prosecutor of the Court of Cassation to be returned to house arrest and claimed that he had

not been notified of the Court’s judgment. According to the author, the request remained

unanswered.

5.4

Furthermore, the Committee notes that in April 2020 the author attempted to lodge an

appeal against the conviction with the Court of Cassation. He invoked the following

arguments: the right to have the decision to prosecute approved in a vote by an absolute

majority of the National Assembly; the lack of reasoning of the judgment; and the failure to

construe documents in accordance with their actual terms. He also invoked the right to a

second hearing and the right to protection against unlawful detention. The Court of Cassation

refused to accept the appeal petition and returned it to the author, stating that it had been

received in error.

5.5

The Committee notes that, in its judgment, the Court of Cassation stated that it had

jurisdiction to try in sole instance offences committed by members of the Government other

than the Prime Minister, in accordance with article 153 (2) of the Constitution and

article 93 (2) of Organic Act No. 13/011-B of 11 April 2013 on the organization, functioning

and jurisdiction of the ordinary courts. The Committee notes that the author’s conviction in

sole instance is compliant with the aforementioned provisions, since it relates to events that

occurred during his term as a member of the Government, namely Minister of Public Health.

The operative part of the judgment reads as follows: “The Joint Chambers of the Court of

Cassation, sitting as a trial court in sole instance … rule that the commission by the

defendants [the author and a co-defendant] of misappropriation of public funds in the sums

of US$ 40,607, US$ 175,800, US$ 100,000, US$ 8,794 and US$ 5,000 has not been

established, but that the complicity of the defendants in the commission of the same offence

in respect of the sums of US$ 391,332 and US$ 13,000 has been established.”

5.6

In the absence of any cooperation from the State Party and, in particular, of

information on domestic remedies that would have been effective and available in the present

case, the Committee is of the view, in the light of the information contained in the preceding

paragraph, that article 5 (2) (b) of the Optional Protocol does not constitute an obstacle to the

admissibility of the complaint under article 14 (5) of the Covenant.7

5.7

On the other hand, with regard to the claim made under article 26 of the Covenant that

the absence of a prior parliamentary debate on the author’s ministerial immunity was

discriminatory, the Committee notes that the author did not include in his appeal petition any

argument based on the right to non-discrimination, nor did he attempt to raise this claim

before any other body or authority. Nor, according to the information available to the

Committee, did the author allege during the period of his house arrest that he was unable to

appear before a judge, and he has not specified when he was notified of the judgment of the

Court of Cassation. Although he mentioned the prohibition on unlawful detention in his

appeal, the author did not develop this argument and did not raise the claims contained in

paragraph 3.5. The Committee recalls that authors of communications must exercise due

diligence in the pursuit of available remedies,8 that the effectiveness of a remedy does not

depend upon the certainty of a favourable outcome for the author and that mere doubts about

the effectiveness of a remedy do not absolve the author from the obligation to attempt to

exhaust that remedy.9 The Committee thus finds these aspects of the communication, under

articles 9 (1) and 26 of the Covenant, inadmissible pursuant to article 5 (2) (b) of the Optional

Protocol.

5.8

The Committee takes note of the author’s claim under article 14 (1) of the Covenant

that he is the victim of a violation of his right of access to a court, for the reasons set out in

paragraph 5.3 of the present Views. The Committee recalls that, according to its general

6 For example, Gilberg v. Germany (CCPR/C/87/D/1403/2005), para. 6.5.

7 See, for example, Mulezi v. Democratic Republic of the Congo (CCPR/C/81/D/962/2001), para. 4.3.

8 See, for example, G.B. v. Türkiye (CCPR/C/142/D/3592/2019), para. 9.3.

9 For example, ibid.; and D.Č. v. Lithuania (CCPR/C/134/D/3327/2019), para. 4.16.

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comment No. 32 (2007), the right of equal access to a court, embodied in article 14 (1) of the

Covenant, concerns access to first instance procedures and does not address the issue of the

right to appeal or other remedies.10 Accordingly, the Committee finds that absence of a

review of the facts of the case by a higher tribunal lies outside the scope of the protection of

article 14 (1) of the Covenant and is therefore inadmissible ratione materiae under article 3

of the Optional Protocol.

5.9

The Committee is of the opinion that, for the purposes of admissibility, the author has

sufficiently substantiated his other claim, under article 14 (5) of the Covenant. Accordingly,

it declares the complaint admissible and proceeds with its consideration of the merits.

Consideration of the merits

6.1

The Committee has considered the case in the light of all the information submitted

to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

6.2

The Committee notes that the State Party has not responded to the author’s allegations

and recalls its jurisprudence according to which the burden of proof should not rest solely on

the author of a communication, especially given that the author and the State Party do not

always have the same degree of access to evidence and that often only the State Party is in

possession of the necessary information.11

6.3

The Committee must determine whether the author’s conviction in first instance by

the Court of Cassation, with no possibility of review of the conviction and sentence,

constitutes a violation of article 14 (5) of the Covenant. The Committee recalls that the

aforementioned provision concerns anyone convicted of a crime and guarantees that his or

her conviction and sentence will be reviewed by a higher tribunal according to law.12 The

expression “according to law” is not intended to leave the very existence of the right of review

to the discretion of the States Parties.13

6.4

The Committee recalls that article 14 (5) of the Convention is violated not only if the

decision by the court of first instance is final, but also where a conviction imposed by an

appeal court or a court of final instance, following acquittal by a lower court, according to

domestic law, cannot be reviewed by a higher court.14 Although the legislation of the State

Party provides that under some circumstances a person, by reason of his or her office, is to

be judged by a higher tribunal than would ordinarily be the case, that circumstance cannot of

itself detract from the right of an accused to have his or her conviction and sentence reviewed

by a higher tribunal;15 rather, such a system is incompatible with the Covenant, unless the

State Party concerned has made a reservation to this effect.16 Consequently, since the author

did not have the right to file an appeal against his conviction and the sentence handed down

in sole instance by the Court of Cassation (see paras. 5.4 and 5.5 above), the Committee

concludes that the State Party violated the author’s rights under article 14 (5) of the Covenant.

7.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that

the facts before it disclose a violation by the State Party of article 14 (5) of the Covenant.

8.

Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to

provide the author with an effective remedy. This requires it to make full reparation to

individuals whose Covenant rights have been violated. The Committee considers that, in this

case, an effective remedy would consist in granting the author adequate compensation. The

Committee also considers that the State Party should bring the relevant legal framework into

10 General comment No. 32 (2007), para. 12; and X v. Latvia (CCPR/C/136/D/3254/2018), para. 7.4.

11 For example, Nyengele et al v. Democratic Republic of the Congo, para. 6.2.

12 General comment No. 32 (2007), para. 45; D.M. v. Serbia (CCPR/C/131/D/2869/2016), para. 6.5;

Timmer v. Netherlands (CCPR/C/111/D/2097/2011), para. 7.3; and Terrón v. Spain, para. 7.2.

13 General comment No. 32 (2007), para. 45; and Garzón v. Spain (CCPR/C/132/D/2844/2016),

para. 5.12.

14 General comment No. 32 (2007), para. 47.

15 Velásquez Echeverri v. Colombia (CCPR/C/129/D/2931/2017), para. 9.4; and Arias Leiva v.

Colombia (CCPR/C/123/D/2537/2015), para. 11.4.

16 Garzón v. Spain, para. 5.12.

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conformity with the requirements of article 14 (5) of the Covenant. In addition, the State

Party is under an obligation to prevent similar violations in the future.

9.

Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party

has recognized the competence of the Committee to determine whether there has been a

violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has

undertaken to ensure to all individuals within its territory and subject to its jurisdiction the

rights recognized in the Covenant and to provide an effective remedy when it has been

determined that a violation has occurred, the Committee wishes to receive from the State

Party, within 180 days, information about the measures taken to give effect to the

Committee’s Views. The State Party is also requested to publish the present Views and

disseminate them widely in the official language of the State Party.