INTRODUCTION

In law, the notion of official capacity refers essentially to two concepts: immunities and privileges.

Public or criminal proceedings are those that arise following the commission of acts classified as offences by criminal law and whose purpose is the application of the penalties laid down by the legislator.

The principle of equality of all before the law: scope, basis and limits

The principle is that all citizens, without distinction of any kind, are equal before the law. Consequently, offenders of all persuasions should enjoy the same repressive system. But this principle is subject to an exception in favour of certain clearly identified individuals, an exception based on the official capacity enjoyed by these individuals. In some cases, the exorbitant powers and freedom of action of the Public Prosecutor’s Office in respect of acts classified as offences committed by a category of persons are legally impeded.

For persons in an official capacity, the Congolese legislator is only one of a number of States to have instituted a system of repression that derogates from ordinary law.

The implications of official capacity for prosecution

Persons in an official capacity cannot be prosecuted in the same way as other offenders.

Some of them cannot be prosecuted for a particular category of offence. This is the case for Members of Parliament, who may not be prosecuted, investigated, arrested, detained or tried on account of opinions expressed or votes cast by them in the exercise of their duties. This is also the case for former Presidents of the Republic, who enjoy absolute immunity for offences committed in the exercise of their duties. Not to mention offences committed by diplomats in accordance with the Vienna Convention on Diplomatic Relations. In the case of such persons, criminal proceedings are considered inoperative insofar as the offence never existed because of their immunities.

Immunity is a definitive cause of impunity; it makes it impossible to prosecute an individual before the investigating or trial courts.

For certain people, however, it is necessary to observe certain procedures and processes organised by the laws concerned (privileges). To this end, these persons benefit both or even exclusively from either the system of authorisation to prosecute or the system of indictment.

CONCLUSION

In the search for offences and their perpetrators, the public prosecutor enjoys exorbitant powers and freedom of action. However, as mentioned above, these powers can sometimes come up against certain legal obstacles. The status of certain offenders is such that the public prosecutor is prevented from investigating or prosecuting.

The status of the offender is therefore a limitation on the exercise of public action.