Free French and Moland!

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DOMMEN fra ankesaken 3. desember 2009 (engelsk)

Her er dommen fra ankesaken oversatt av autorisert oversetter fra fransk til engelsk. Vi har "sladda" bort navn på barna til enken og diverse annet av hensyn til personvern. Men dette er altså den hele og fulle dommen fra ankesaken i Kisangani 3. desember 2009. -Hannah French

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DEMOCRATIC REPUBLIC OF CONGO

MILITARY JUSTICE

MILITARY COURT OF THE

EASTERN PROVINCE

 

RULING

HANDED DOWN

BY THE MILITARY COURT OF THE EASTERN PROVINCE

IN CASE No. 134/09

 

KISANGANI 2009

 

 2.

DEMOCRATIC REPUBLIC OF CONGO                                    RPA No. 134/09

MILITARY JUSTICE                                                                      RMP No. 045/WAV/09

MILITARY COURT OF THE

EASTERN PROVINCE

 

PRO-JUSTITIA 

RULING 

In the name of the Congolese People;

(Art. 149 of the Constitution)

 

THE MILITARY COURT OF THE EASTERN PROVINCE

Sitting on the criminal matter at appeal level in the Franco-Congolese Alliance Hall

of KISANGANI 

HAS HANDED DOWN AND PRONOUNCES

 

At a public hearing this Thursday, the third day of the month of December, in the year two thousand and nine.

 

THIS RULING, WITH THE FOLLOWING CONTENT:

IN THE CASE OF

The Military High commissioner, Public Prosecutor and Plaintiffs participating in the prosecution:

1. The Democratic Republic of Congo;

2. Mrs. Bibiche OLENDJEKE SOLOMO;

3. Mr. AMISI TSHOMBA;

4. Mr. Gaby NGAZWA;

5. Mr. AKALIYA LITUNGU SIMARO;

6. Mr. KASIMU ARADJABU;

7. Mr. KEPO AILA.

VERSUS

1.             Mr. TJOSTOLV MOLAND, born in OSLO on *****, son of KULT MOLAND (Protestant) and of Mathilde MOLAND (Protestant), a native of the Kingdom of Norway; Marital status: single, Profession: Soldier; Rank: Second Lieutenant; domiciled in OSLO, the Norwegian capital, currently being held in detention in KISANGANI Central Prison.

2.             Mr. JOSHUA FRENCH, born in OSLO on *****, son of John William FRENCH (deceased) and of Karine Hilder FRENCH (Protestant), a native of the Kingdom of Norway, Marital status: single, Studies not completed: abandoned at level G3, Profession: Soldier, Rank: Sergeant, domiciled in OSLO, the Norwegian capital, currently being held in detention in KISANGANI Central Prison

 3.

ACCUSED OF:

                For the Accused TJOSTOLV MOLAND

1.         Having, as a foreigner, as the perpetrators, co-perpetrators or as accomplices, in accordance with one of the types of criminal participation envisaged under Articles 5, 6 of the Military Criminal Code, (21, 23 of the Ordinary Criminal Code Volume 1), rendered himself guilty of espionage;

             In this case having, as a Norwegian citizen, holding passport numbers ***** and *****, as a soldier in the active service of the Norwegian Army as proven by his service card, valid through to 2016, as an intelligence agent of the said Government, wearing the uniform of the Royal Norwegian Guard and also holding the Special Intervention Group (SIG) service card, having rendered himself guilty of espionage by delivering or making available to a foreign power, to a foreign company or organisation or to a company or organisation under foreign control, information obtained on the strength of the operational maps of the D.R. of Congo, CAMERAS, COMPASS, GPS device, etc., the exploitation, divulging or combination of these actions being of such a nature as to present a threat to the basic interests of the Congolese Nation, in particular its security in the eastern part of its territory where they were arrested.

             Actions covered by and punishable under Articles 126, 127, 128.5o and 129 of the Military Criminal Code.

2.         Having joined a conspiracy which he knew to have been set up with the aim of carrying out attacks on persons or property.

             In the specific case, having in KAMPALA, Capital of the UGANDAN REPUBLIC, without it being possible to specify the exact date but in the course of April 2009, which period is not yet covered by the statute of limitation, become a member of a conspiracy formed by JOSHUA FRENCH and himself, with the aim of carrying out attacks on persons and property.

             Actions covered by and punishable under Articles 156 and 158 of the Ordinary Criminal Code, Volume II.

3.         Having incited or taken command or been in command within a conspiracy which he knew to have been formed with the aim of preparing for or committing offences against persons or property.

             In the specific case, having in KISANGANI, in the town of this name as the administrative centre of the Eastern Province of the Democratic Republic of Congo, on 05 May 2009 been in command of the above-mentioned conspiracy, in particular:

-          by recruiting the other member, Mr. JOSHUA FRENCH

-          by supplying resources (arms, GPS, COMPASS, CAMERA, geographical map, etc.) with the aim of preparing for attacks on persons or property.

             Actions covered by and punishable under Article 157 of the Ordinary Criminal Code, Volume 2.

4.         Having been in possession, with neither entitlement nor right, of military weapons or ammunition;

             In this case, having at Kilometre Point 109 on the ITURI road, at the locality of this name in the Territory of BAFWASENDE, District of TSCHOPO, Eastern Province of the Democratic

4.

             Republic of Congo, and under the same conditions in terms of time as above, been in possession with neither entitlement nor right of military weapons along with a number of items of ammunition and other military equipment.

             Actions covered by and punishable under Article 203 of the Military Criminal Code.

5.         Having, as perpetrators, co-perpetrators or accomplices in accordance with one of the types of criminal participation set out in Articles 5 and 6 of the Military Criminal Code and Articles 21 and 23 of the Ordinary Criminal Code Volume I,  voluntarily and with premeditation committed the act of homicide on another person;

            In this case, having, under the same circumstances in terms of time and place as above, by direct co-operation in the execution of the offence, assassinated Mr. ABEDI KASONGO, by firing on him, shooting into his head, with the military weapon which he had taken out of his bag.

            Actions covered by and punishable under Articles 5 and 6 of the Military Criminal Code and 21 and 23 of the Ordinary Criminal Code Volume I, and Articles 43, 44 and 45 of the Ordinary Criminal Code Volume II;

6.         Having as perpetrators, co-perpetrators or accomplices in accordance with one of the types of criminal participation set out in Articles 5 and 6 of the Military Criminal Code (Articles 21 and 23 of the Ordinary Criminal Code Volume I), attempted voluntarily and with premeditation to commit a homicide, the resolve to commit this offence having been demonstrated by external actions which represented a start to the execution of this offence and which were not suspended or did not fail to have their intended effect except as a result of circumstances independent of the wish of the perpetrators:

                In this case, having under the same circumstances in terms of time and place as above, by direct co-operation in the execution of the offence, voluntarily attempted to kill Mr. KASIMO ARADJABU who had escaped from the hands of Mr. JOSHUA FRENCH who had overpowered him, as a result of his bravery and fleetness of foot, his suppleness and by the fact of his having managed to flee into the forest, while Mr. MOLAND continued to fire shots in his direction.

7.         Having as perpetrator, co-perpetrator or accomplice in accordance with one of the types of criminal participation set out in Articles 5 and 6 of the Military Criminal Code (Articles 21 and 23 of the Ordinary Criminal Code Volume 2), fraudulently taken possession of a sum of money or various items of movable property to the detriment of others, in circumstances in which those committing the said act of dispossession were carrying military weapons.

            In this case, having in the same circumstances in terms of time and space as set out above, by direct co-operation in the execution of the offence, taken possession of, to the loss of Abbot André TIMBILI of the Monastery of Kisangani, the owner of the white Land Cruiser vehicle with the registration number OR 4328 BB, having done away with its driver, ABEDI KASONGO, assassinated by having shots fired into his head; in circumstances in which one of those committing the said act of dispossession was carrying a military weapon.

            Actions covered by and punishable under Articles 5 and 6 of the Military Criminal Code (21 and 23 of the Ordinary Criminal Code Volume I), and Articles 79-81 of the Ordinary Criminal Code Volume II.

5.

            For the Accused Joshua FRENCH

1.         Having, as a foreigner, as the perpetrator, co-perpetrator or accomplice, in accordance with one of the types of criminal participation envisaged under Articles 5, 6 of the Military Criminal Code, and 21, 23 of the Ordinary Criminal Code Volume 1, rendered himself guilty of espionage;

             In this case having, as a Norwegian citizen, holding the relevant passport bearing the number *****, as a soldier in the active service of the Norwegian Army as proven by his service card, valid through to 2017, as an intelligence agent of the said Government, wearing the uniform of the Royal Norwegian Guard and also holding the Special Intervention Group (SIG) service card, having rendered himself guilty of espionage by delivering or making available to a foreign power, to a foreign company or organisation or to a company or organisation under foreign control, information obtained on the strength of the operational maps of the Democratic Republic of Congo, CAMERAS, COMPASS, GPRS, etc., the exploitation, divulging or combination of these actions being of such a nature as to present a threat to the basic interests of the Congolese Nation, in particular its security in the eastern part of its territory where they were arrested.

             Actions covered by and punishable under Articles 5, 6, 126, 127, 128.5o and 129 of the Military Criminal Code.

2.         Having joined a conspiracy which he knew to have been set up with the aim of carrying out attacks on persons or property. 

            In the specific case, having in KAMPALA, Capital of the UGANDAN REPUBLIC, without it being possible to specify the exact date but in the course of April 2009, which period is not yet covered by the statute of limitation, become a member of a conspiracy formed by MOLAND and himself, with the aim of carrying out attacks on persons and property.

            Actions covered by and punishable under Articles 156 and 158 of the Ordinary Criminal Code, Volume II.

3.         Having, as perpetrator, co-perpetrator or accomplice in accordance with one of the types of criminal participation set out in Articles 5 and 6 of the Military Criminal Code (Articles 21 and 23 of the Ordinary Criminal Code Volume I), voluntarily and with premeditation committed the act of homicide on another person;

            In this case, having at KP 109 on the ITURI road, at the locality of this name in the Territory of BAFWASENDE, District of TSCHOPO, Eastern Province of the Democratic Republic of Congo, on 05 May 2009 by means of direct co-operation in the execution of the offence, overpowered Mr. KASIMU ARADJABU in order to allow Mr. MOLAND to shoot and kill the driver, ABEDI KASONGO, without hindrance.

            Actions covered by and punishable under Articles 5, 6 of the Military Criminal Code (Articles 21 and 23 of the Ordinary Criminal Code Volume I), and Articles 44-45 of the Ordinary Criminal Code Volume II;

4.     Having as perpetrators, co-perpetrators or accomplices in accordance with one of the types of criminal participation set out in Articles 5 and 6 of the Military Criminal Code (Articles 21 and 23 of the Ordinary Criminal Code Volume I), attempted voluntarily and with premeditation to commit a homicide, the resolve to commit this offence having been demonstrated by external actions which represented a start to the execution of this offence and which were not suspended

6.

         or did not fail to have their intended effect except as a result of circumstances independent of the wish of the perpetrator: 

         In this case, having under the same circumstances in terms of time and place, by direct co-operation in the execution of the offence, voluntarily and with premeditation attempted to kill Mr. KASIMU ARADJABU, who had escaped from his hands, while Mr. MOLAND continued to fire a number of shots in his direction.

         Actions covered by and punishable under Articles 4, 5 and 6 of the Military Criminal Code (Articles 21 and 23 of the Ordinary Criminal Code Volume I).

5.         Having as perpetrator, co-perpetrator or accomplice in accordance with one of the types of criminal participation set out in Articles 5 and 6 of the Military Criminal Code (Articles 21 and 23 of the Ordinary Criminal Code Volume 1), fraudulently taken possession of a sum of money or various items of movable property to the detriment of others, in circumstances in which those committing the said act of dispossession were carrying military weapons.

            In this case, having in the same circumstances in terms of time and space as set out above, by direct co-operation in the execution of the offence, fraudulently taken possession of the white vehicle, a TOYOTA Land Cruiser model, registration number OR 4328 BB, belonging to Abbot André TIMBILI of the Diocese of KISANGANI; under circumstances in which the perpetrators of the said act of dispossession were carrying military weapons.

            Actions covered by and punishable under Articles 5 and 6 of the Military Criminal Code (21 and 23 of the Ordinary Criminal Code Volume I), and Articles 79- 81 of the Ordinary Criminal Code Volume II.

Given the procedure followed à charge de pré qualifiés[1]:

Given the judgement returned by the KISANGANI Garrison Military Court dated 08 September 2009, the disposition of which Court states as follows:

"The Garrison Military Court"

            Ruling on the public prosecution:

-          declares established in both fact and law all of the charges laid against the two Accused and finds them guilty indiscriminately and without admission of attenuating circumstances, sentencing:

1. The Accused TJOSTOLV MOLAND:

-          to the death penalty for criminal conspiracy; 

-          to the death penalty for espionage; 

-          to the death penalty for assassination; 

-          to the death penalty for attempted assassination;

-          to 20 years of penal servitude for the possession of illegal military weapons and ammunition;

-          to the death penalty for armed robbery.

In application of Article 7 of the Military Criminal Code imposes one single penalty, the most severe, namely the death penalty.

7.

            2. The Accused Joshua FRENCH:

-          to the death penalty for espionage;

-          to the death penalty for criminal conspiracy;

-          to the death penalty for assassination;

-          to the death penalty for attempted assassination;

-          to the death penalty for armed robbery.

In application of Article 7 of the Military Criminal Code imposes one single penalty, the most severe, namely the death penalty.

 

                Ruling on the civil action

Declares admissible and justified the actions for reparations or compensation for the loss submitted by:

  1. The family of ABEDI KASONGO, in particular Mrs. Bibiche OLENDJEKE (widow), ***** (child of the age of majority), ***** (minor child), ***** (minor child), ***** (minor child), ***** (minor child), ***** (minor child), AMISI TSHOMBA (brother of the deceased), AMINA ABD'ALLAH (mother of the deceased), FATUMA WAKE (elder sister of the deceased), ALIMASI NDJE and MIUMGI KASONGO.

3.         The Congo Association of Drivers (ACCO) represented by AKALIA LITUNGU SIMARO.

             The participating plaintiffs: KASIMU ARADJABU, KEPO AILA, GABY NGAZWA and the Democratic Republic of Congo.

Consequently orders the Accused TJOSTOLV MOLAND and JOSHUA FRENCH together, jointly and severally with the State of Norway, to pay by way of compensation for the losses suffered:

-    to Mrs. Bibiche OLENDJEKE, the sum of 30,000 USD, payable in Congolese francs.

-    to ***** , the sum of 40,000 USD, payable in Congolese francs.

-    to ***** , the sum of 60,000 USD, payable in Congolese francs.

-    to ***** , the sum of 60,000 USD, payable in Congolese francs.

-    to ***** , the equivalent in Congolese francs of 60,000 USD.

-    to ***** , the equivalent in Congolese francs of 60,000 USD.

-    to ***** , the equivalent in Congolese francs of 60,000 USD.

-    to AMISI TSHOMBA (elder brother of the deceased), the equivalent in Congolese francs of 10,000 USD.

-    to AMINA ABD'ALLAH (mother of the deceased), the equivalent in Congolese francs of 10,000 USD.

-    to FATUMA  WALO (sister of the deceased), the equivalent in Congolese francs of 10,000 USD

-    to ALIMASI NDJE the equivalent in Congolese francs of 10,000 USD.

-    to ACCO, represented by AKAZIYA LITUNGU SIMARO, the equivalent in Congolese francs of 5000 USD.

8.

-          in respect of the participating plaintiff KASIMU ARADJABU, the equivalent in Congolese francs of 5000 USD.

-          in respect of the participating plaintiff KEPO AILA, the equivalent in Congolese francs of 5000 USD.

-          in respect of the participating plaintiff GABY NGAZWA, the equivalent in Congolese francs of 25,000 USD as the principal sum, and 5000 USD by way of damages and interest.

-          in respect of the civil party of the Democratic Republic of Congo participating as a plaintiff with the prosecution, the equivalent of 60,000,000 USD representing a symbolic amount of 1 USD for each Congolese citizen.

NB: on the basis of Article 131 of the Military Criminal Code, the Court was obliged to pronounce as a matter of course on the damages and interest due in the event of the Democratic Republic of Congo not presenting itself as a participating plaintiff.

Given the appeals submitted by the Accused TJOSTOLV MOLAND and JOSHUA FRENCH, by means of their written declaration addressed to the Clerk of the Garrison's Military Court, through their counsels Maître André KIBAMBE KIKANGALA and Maître Guillaume LIKWELA, accompanied by a special power of attorney dated 08 September 2009;

Given the appeals submitted by the participating plaintiffs KEPO AILA and KASIMU ARADJABU by means of their written declaration addressed to the Clerk of the Garrison's Military Court by their counsels Maître BULEDI KATENDA, LELO DIMAKUNGU and SELENGE LIMBISA, accompanied by a special power of attorney dated 10 September 2009;

Given the appeal submitted by the participating plaintiff Bibiche OLENDJEKE SOLOMO, dated 10 September 2009;

Given the appeal submitted by the participating plaintiff ACCO represented by AKALIYA LITUNGU SIMARO, dated 10 September 2009;

Given the appeal submitted by the participating plaintiff AMISI TSHOMBA, dated 10 September 2009;

Given the appeal submitted by the Military Commissioner of KISANGANI Garrison by means of missive letter no. 078/AMG/KIS/A12/09, addressed to and received by the Clerk of the KISANGANI Garrison Military Court, dated 11 September 2009;

Given the appeal writs drawn up by Second Lieutenant BONDJALA VARIAVAS, Clerk of the KISANGANI Garrison Military Court and notified to all of the parties involved in the case;

Given the appeal notifications and citations to appear for accusation of 01 October 2009 requiring appearance at the hearing of 13 October 2009 drawn up by the Clerk of the Military Court, Lieutenant Michael BENDA, and notified by the Lieutenant MARCO MUKAMBA, Bailiff to the Court, to the Accused identified above;

Given the appeal notification and citation to appear to the party bearing civil responsibility dated 01 October 2009, requiring appearance at the hearing of 13 October 2009;

Given the notification of the hearing date to the Public Prosecutor, dated 01 October 2009, requiring his presence at the hearing of 13 October 2009;

Given the notifications of the hearing date to the participating plaintiffs, dated 08 October 2009, requiring their presence at the hearing of 13 October;

Given the notification of the hearing date to the participating plaintiff, the Democratic Republic of Congo, dated 08 October 2009;

Given the summons as witnesses (or experts) notified at the behest of the Accused to the following persons: Dr Adelard LUFUNGULA and Lieutenant MAFWIDI BINENE, dated 09 October 2009, requiring their presence at the hearing of 13 October 2009;

9.

Given that the case recorded under RPA No. 134/09 was set for the public hearing of Tuesday 13 October 2009, by order of the Senior Presiding Judge of the Military Court, dated 01 October 2009;

Given the written record of the drawing of lots to establish the associate judges to sit on the Military Court of the Easter Province designated for the session in a special sitting, dated 02 October 2009;

Given the oaths taken by the associate judges making up the bench;

Given the constitution of the participating plaintiffs from the first-level action: Mrs. Bibiche OLENDJEKE SOLOMO, Mr. AKALYA LITUNGU SIMARO, Mr. AMISI TSHOMBA, Mr. KASIMU ARADJABU, Mr. KEPO AILA;

Given the constitution of the participating plaintiffs at the level of the appeal by MWANGA KASONGO, MUTONDO KASONGO, ***** KASONGO, ***** KASONGO, ***** KASONGO, ***** KASONGO, AMINA ABD'ALLAH, FATUMA WALO, ALIMASI NDJE and MIUNGI KASONGO;

Given the oath taken by the interpreter Mr. Albert BISONGO, recruited by the Court on 13 October 2009;

Given the oath taken by the interpreter Mr. Jacob MOGISHA, recruited by the defence on 21 October 2009;

Given the appeal on the matter heard at the hearing of 13 October 2009 at which appeared:

a)         in person, the Accused properly summoned, with the assistance of their respective counsels, namely:

-          the Accused JOSHUA FRENCH, represented by Maître Guillaume LIKWELA, Advocate at the Bar of KISANGANI,

-          the Accused TJOSTOLV MOLAND, represented by Maître André KIBAMBE KIKANGALA, Advocate at the Bar of KINSHASA

b)         The participating plaintiffs, with the assistance of their respective counsels, namely:

-          Maître Justin MOLIMA, Advocate at the Bar of BANDUNDU and Maître Jean AKOMBO MANDJO, Advocate to the Bar of KISANGANI, acting for the Republic;

-          Maîtres BULEDI KATENDA, LELO DI MAKUNGU and Placide SELENGE LIMBISA, all Advocates at the Bar of KISANGANI, acting for KASIMU ARADJABU and KEPO AILA;

-          Maîtres Francis MAKANZA and Zéphirin MOTUTE, both Advocates at the Bar of KISANGANI, acting for Mr. Gaby NGAZWA;

-          President of the Bar ALAUWA LOBELA, Maître Jolie Joanna MUGISA, Maître Jean Claude LOFANGO, Maître Patrick MWAMBA, Maître Modeste MAGENI, all Advocates at the Bar of KISANGANI, acting for the widow and children of the Deceased, the parents of the Deceased and the Congo Association of Drivers.

c)         The Kingdom of Norway as a party with civil responsibility did not appear, although properly summonsed, nor did anyone appear in its name.

Given the successive referrals of the case to the hearings of 15, 21, 22 and 29 October 2009;

Given the prosecution referral to 10 November 2009 and successively to the hearings of 11, 12, 13, 19, 20 and 21 November 2009;

Given the new element added to the dossier by the Public Prosecutor entitled DINA "Peace Foundation";

Given the hearing of the source of information Pierre ABIUNGU KUBAYA, Co-ordinator with 5th CELPA KISANGANI;

10.

                The witnesses heard in their depositions;

The participating plaintiffs heard presented by their counsels looking to obtain damages plus interest, namely:

1.         (Group 1) Participating plaintiff the widow OLENDJEKE: 1,000,000 USD;

             Children

             ***** :        1,000,000 USD;

             ***** :         2,000,000 USD;

             ***** :              2,000,000 USD;

             ***** :                 2,000,000 USD;

             ***** :              2,000,000 USD;

             ***** :               2,000,000 USD;

             (Group 2) Participating plaintiffs as close family of the Deceased:

             AMISI TSHOMBA:              1,000,000 USD;

             AMINA ABD'ALLAH:         1,000,000 USD;

             FATUMA WALO:                 1,000,000 USD;

             ALIMASI NDJE:                   1,000,000 USD.

             (Group 3) ACCO as participating plaintiff, represented by:

             AKALIYA LITUNGU SIMARO:       3,000,000 USD;

2.         Participating plaintiff Gaby NGAZWA: 25,000 USD as the principal sum and 5000 USD by way of damages with interest.

3.         Participating plaintiff:

(1)        KEPO AILA: 5,000,000 USD

(2)_ KASIMU ARADJABU: 5,000,000 USD.

4.         Participating plaintiff: the Democratic Republic of Congo: 800,000,000 USD.

With the Public Prosecutor having been heard in his petitions in conformity and mindful to see the Court accept his appeal, to declare as established the offences of assassination, armed robbery, espionage and criminal conspiracy, attempted assassination, the illegal possession of military weapons and ammunition, as charged to the Accused TJOSTOLV MOLAND and JOSHUA FRENCH both in fact and in law, and to see it condemn both to the death penalty.

With reference to the civil action; to declare as admissible and well-founded the action for compensation introduced by the participating plaintiffs. Consequently to order the Accused jointly and severally with the State of Norway to pay damages to the participating plaintiffs - fixed interest ex acquo et bono.

The Accused heard in their statements and means of defence presented both by themselves - as well as by their respective counsels- as identified above, being mindful to plead not guilty of the acts of which they stand accused.

The party with civil liability was properly summonsed, but did not appear, nor did anyone appear in its name.

Having heard the responses and counter-responses from all of the parties to the proceedings.

With the Accused having been heard in their final declarations.

Whereupon at the conclusion of the debates the Military Court took the matter into consideration and this day returns the definitive ruling with the following content:

11.

I.             PRESENTATION OF THE FACTS

On 29 April 2009, the Accused TJOSTOLV MOLAND and JOSHUA FRENCH, Norwegian citizens and soldiers of their country, making reference to the military maps confiscated from them, decided to travel to discover the Democratic Republic of Congo. Their passports show that before coming to this country they had first travelled through IRAQ, TURKEY, AFGHANISTAN, PAKISTAN, SOMALIA, ETHIOPIA, RWANDA, ZAMBIA and UGANDA, where they presented themselves at the Embassy of the Democratic Republic of Congo on 27 April 2009 for visa formalities.

Having entered the Democratic Republic of Congo on a white motor cycle of the YAMAHA TENERE make, model 600, registration number UDL 609, crossing the frontier at KASINDI on 29 April 2009, the two Norwegian citizens and soldiers exploited the leniency of the immigration officers and other border security services to conceal within their luggage military weapons, geographical maps of the Democratic Republic of the Congo, military maps, GPS device, cameras, compass, etc., under the fallacious pretext of travelling as tourists in this part of Eastern Congo. Having passed through BENI and having arrived at KISANGANI on 02 May 2009, these two tourist companions took accommodation at the Hotels RIVIERA and PHOENIX, where they did not register as required by the hotel regulations.

In fact, at the Hotel RIVIERA, only the Accused JOSHUA FRENCH registered and occupied room no. 23, and the Accused TJOSTOLV MOLAND, who shared this room with him did not identify himself, and at the same time the (staff of the) said hotel showed no signs of curiosity and were no way surprised by the fact that within three days, i.e. from 2 to 5 May 2009, the Accused TJOSTOLV MOLAND and JOSHUA FRENCH changed rooms, beginning with room no. 5, and then 7, 17, 11 and finally no. 6.

At the end of their stay in KISANGANI, they had sent an agent, not otherwise identified, on ahead with the motor cycle to reserve two places for them in the vehicles heading for NIANIA and advanced a sum of 50 USD in a truck of the FUSO marque leaving for BENI via NIANIA. With the help of an ad hoc interpreter, the two companions proceeded to protest strongly when they saw their machine and other passengers on board the same truck, and proceeded to have the said motor cycle taken off the truck as the driver of the FUSO had not agreed to clear his vehicle.

At the same time, they noticed that in the parking area there was a white TOYOTA van of the LAND CRUISER type, registration number OR 4328 BB, driven by Mr. ABEDI KASONGO. After making contact and negotiation, a deal was struck between the latter and the two companions, involving taking them to NIANIA, and with half of the price paid up front, i.e. 200 USD of 400 USD. The vehicle then set out immediately with six (6) persons on board, i.e. the driver, ABEDI KASONGO and JOSHUA FRENCH in the cabin, TJOSTOLV MOLAND, KASIMU ARADJABU, KEPO AILA and the ACCO supervisor in the back.

But before leaving the parking area, the two Accused expressed the wish that there should be no other person on board in the van, apart from the driver. However the ACCO representative explained to the two Norwegian  foreigners that the vehicle did not travel with the driver alone, but that the driver had to be accompanied by a boy as co-driver to deal with breakdowns and the vehicle's other needs.

12. 

KASIMU ARADJABU was specifically engaged for these tasks, and KEPO asked the driver to take him as far as BAFWASENDE for a price.

Having gone to the bar called "NGANDA la Pyramide" situated opposite the fence enclosing the basketball court of the Hellenic Community to unload the boxes he had accepted for a trip to BUNIA that day, the driver ABEDI KASONGO set out after having paid the dues owed to ACCO into the hands of his supervisor, who then left the vehicle now only containing five (5) people, and the vehicle then finally set out along the ITURI road at just after 18.00.

Having arrived at KP 17, the van made its first stop at the request of TJOSTOLV MOLAND who got the idea across by gesticulating with his hands to his companion JOSHUA FRENCH who was sitting next to the driver ABEDI KASONGO, and the vehicle stopped.

With the vehicle stopped, the two Accused moved a few metres away from the vehicle, conversing in a language which only they understood for more or less 10 minutes, giving as their reasons for the stop that they had to answer a call of nature[2] and on their return to the vehicle the Accused TJOSTOLV MOLAND got into the back and from their large green bag removed a case in which was kept what will be identified subsequently as a firearm, which he took into the cabin according to the deposition of KEPO, and both then sat in the vehicle's cabin, with KEPO and KASIMU in the back. They then set out again in the vehicle in this arrangement and after a long journey of around 21 hours the van reached KP 109 where the two accused again asked the driver to stop. He complied, and at this location the two companions got out of the vehicle, moved away from it to a distance of more than four metres and engaged in a conversation lasting at least ten minutes, with none of the three Congolese understanding a single word of what was said.

Moving as if to return to the vehicle, the Accused TJOSTOLV MOLAND - having got out carrying his weapon case - opened it, took out the weapon and in a professionally practiced movement aimed it at the driver ABEDI KASONGO at the steering wheel of the vehicle, shouting three times in English, "Get out, get out, get out", and before the driver could work out what was meant, the Accused TJOSTOLV MOLAND  fired a shot into his head, causing the poor driver to collapse over his steering wheel.

Before the passengers in the back realised what was happening, the Accused JOSHUA FRENCH swiftly moved to the back of the van to prevent them from running away and escaping with their lives,  and so he took hold of KASIMU ARADJABU and immediately tried to strangle him. TJOSTOLV came round the vehicle and rushed to the back, where KASIMU and JOSHUA FRENCH were on the ground locked together and fighting, this fortunately protecting the young man from being shot, as TJOSTOLV feared that he might kill his companion, and with TJOSTOLV's attention being thus distracted, Mr. KEPO took this opportunity to flee into the bush, with MOLAND contenting himself with firing wildly in the direction of the fleeing man and missing him, and at this juncture KSIMU freed himself from the grasp of JOSHUA FRENCH and fled into the bush in turn, rushing into the bushes and avoiding being shot to death despite the shots fired by the shooter at both of them.

 13.

Being left alone at the scene of the crime and in control of the situation, the two Accused were able to take possession of the van by throwing the blood-covered body of the driver ABEDI KASONGO out to the side of the road and pressing on at full speed towards their chosen destination.

The first to emerge from the bush, Mr. KEPO AILA, saw from a distance something lying on the ground in the dark. He thought this might be his bag which he had abandoned in the vehicle when he fled, that the Accused might have thrown out before they made their escape, however unfortunately for him it was actually the lifeless body of the driver by the name of ABEDI KASONGO which was lying at the side of the road. Mustering his courage, KEPO started to call for Mr. KASIMU, whose name he did not even know, by simply calling "Young man, young man", with KASIMU in his turn then coming out of the bush after waiting a more or less long time, thinking it was the voice of his driver ABEDI KASONGO calling him, only to burst into tears when he realised that the voice he was hearing was not that of his driver ABEDI KASONGO, but that instead the body lying on the ground was that of the driver.

From that point in time and that night, the pursuit of the two Norwegian citizens, soldiers of their state, was commenced, even though it was difficult or even impossible to guess the direction they had taken, apart from the simple indication from the commander of the Infantry Battalion based at BAFWASENDE that the speed at which the vehicle was travelling suggested that they were dealing with soldiers and at the same time the news reached the town of KISANGANI through the member drivers of ACCO, and through the efforts of these the body of their comrade, driver Inspector KASONGO was delivered to the town the next day, 6 May 2009, and the political, military, police and judicial authorities joined forces as one to effect the capture of the two fugitive Accused who sought refuge in the EPULU Okapi Reserve, where on 10 May 2009 the Accused JOSHUA FRENCH was arrested at EPULU and on 15 May, in his turn, the Accused TJOSTOLV MOLAND surrendered to the authorities of MAMBASA, after an unsuccessful attempt at escape, with both of them being transferred to KISANGANI.

In KISANGANI, an enquiry opened in their respect at the Military Prosecutor's Department ended in their being indicted for the offences of criminal conspiracy, espionage, assassination, attempted assassination, armed robbery, the illegal possession of military weapons and ammunition covered by and punishable under Articles 4 of the Ordinary Criminal Code Volume I, 43-44, 81 and 156 of the Volume II of Volume II of the same Code, and 129 and 203 of the Military Criminal Code.

 

II.           THE APPEAL

Once the first judge returned his decision on 08 September 2009, all of the parties to the proceedings, with the exception of the participating plaintiff Gaby NGAZWA, proceeded to appeal in compliance with Article 278 of the Military Code of Justice which makes provision for the submission of an appeal to the Military Court when the contested decision has been returned by the Garrison's Military Court.

This disposition states that the appeal must be submitted within five clear days from the interested party being made aware of the decision.

Paragraph 3 of this disposition underlines that it shall be submitted by means of declaration or missive letter to the clerk of the jurisdiction which has returned the judgement.

 14.

As far as the parties who have submitted appeals against this judgement are concerned, all of these procedures have been observed. The first judge returned his judgement on 08 September 2009.

On 09 September 2009, Maître Guillaume LIKWELA BOFONDE, Advocate to the Bar of KISANGANI, the holder of special powers of attorney bestowed on him on 08 September 2009, the Accused TJOSTOLV MOLAND and JOSHUA FRENCH appealed against the a quo judgement of the KISANGANI Garrison Military Court of 08 September 2009, recorded as RP 190/09 with as justification incorrect judgement, both in terms of its form and basis.

The other participating plaintiffs, AKALIYA LITUNGU, AMISI TSHOMBA, Mrs Bibiche and the children, KEPO AILA and KASIMU ARADJUBA then on 10 September 2009 all appealed against the same judgement, in this case against the low level of the damages and interest.

Finally, for his part, the Public Prosecutor appealed on 11 September 2009 for all useful purposes, and with the wish above all to see the fate of the Accused kept at the level of the appeal in respect of their punishment.

-          Notification was provided for the Public Prosecutor on 12 September 2009 and for all of the other parties. The Court notes with satisfaction[3] that all of the parties observed the law in terms of the set deadline. They proceeded to appeal within five clear days, the deadline set by the Military Criminal Code (Article 278). The advocates who lodged the appeals in the name of their clients were all in possession of the special powers of attorney duly signed by their clients.

-          They had all been notified in good time by the clerk of the court.

-          Their appeals were all properly submitted within the set period.

 

III.          REASONS FOR AND CAUSES OF THE APPEAL

1. and 2. From the right of communication and to obtain a copy under the terms of Article 201 of the Military Code of Justice, the accused's counsel has the right to communication of the dossier as soon as the competent court has been invoked. The defence reproaches both the first judge and the second of not having facilitated this task for it, thereby failing to comply with legal requirements.

To our knowledge, the Military Court at no time refused the defence the opportunity to familiarise itself with this dossier, but rather for reasons of security and on the basis of Article 225 of the Code of Military Justice, the Court and the Military High Commissioner were of the opinion that the defence, which has chambers in the town, could have access to this dossier without necessarily being provided with copies. It could take note of documents without photocopying them. Even during the second degree proceedings, at no time did the clerk of the court refuse to place this dossier at the disposal of the parties' counsel. There was quite full and adequate communication of the dossiers, and the defence did indeed have knowledge of all of the elements of the dossiers.

4. In respect of the supplementary deeds ordered by the Court on 10 August 2009, in compliance with Article 219 of the Military Code of Justice which the Court had prescribed and which had not been completed by the organ of the law. The law does not state that the failure to complete this dossier results in the procedure being rendered null and void. The law requires the Military Commissioner to fulfil this task. This is what was done, but in an incomplete manner, however the deeds completed were added to the dossiers sent to the Court and made available to the Court for its information.

 15.

Article 259 of the Military Code of Justice was not compromised by this, as the parties were kept informed of the existence of these CR ROOMs[4] of the hearing of a witness, photos all came out of the photo[5] and it was up to the Court to assess whether it could produce the documents or not. And it assessed this in great depth.

5. In the provisional judgement RP 193/09 of 20 August 2009.

In respect of the witness impugnments covered by Article 242 of the Military Code of Justice, the Court confirms that this question was raised by the Military Court and the solution to settling this question was in compliance with the law.  Indeed, in its own time the Court had decided that the witnesses KEPO AILA and KASIMU were to make their depositions as sources of information and not as witnesses, having opted to participate in the proceedings as plaintiffs. This question was settled by the Court in compliance with the law (Article 242 of the Code of Military Justice).

6. In respect of the list of participating plaintiffs stipulated by the 1st level judge in his provisional judgement, it is true that the status of participating plaintiff was recognised in the case of the lady Bibiche OLENDJEKE, AMISI TSHOMBA and AKALIA LITUNGU SIMARO who had properly had himself recorded by the Clerk of the Court in this individual status. The Court only recognises this status for those parties who have properly and individually lodged the amount required by law or before the Court and will undertake what the first judge should have undertaken for those who did not so do.

The same will apply for the extension of competence for KEPO AILA, in compliance with Articles 216 and 218 of the Code of Military Justice.

This Military Court is of the opinion that the first judge did not have the opportunity to present the question to two Accused TJOSTOLV MOLAND and JOSHUA FRENCH, in compliance with the requirements of Articles 216 and 218 of the Military Code of Justice; primarily because as the two Accused chose to remain silent there was no point in asking them questions which were going to remain unanswered; secondly, Article 55 of the Code of Criminal Procedure states that the ruling jurisdiction is only invoked by a voluntary appearance in the case in which the penalty envisaged by the law is no greater than five years of penal servitude. In the opposite case, and only if advised by the judge that he may claim the formality of citation or in normal procedure the decision to refer, the accused declares that he is waiving this; replying to this question was not evident for the two Accused.

7. In respect of the complaints formulated by the defence against the work of the first judge, particularly the incomplete identities of the Accused, of the participating plaintiff and of the party with civil responsibility, this Court will take steps in compliance with Article 274 Paragraph 2 of the Military Court of Justice to set this right, by undertaking what the first judge should have done.

8. In respect of the other grounds such as an inaccurate presentation of the facts and lack of justification, the Court will be able to complete these in the course of its work and to the extent that the law authorises it and that these aspects are not outside its competence. These are, as far as the Accused TJOSTOLV MOLAND is concerned, the charges against him and being appealed.

(1)    Having, as a foreigner, as the perpetrator, co-perpetrator or as accomplice, in accordance with one of the types of criminal participation envisaged under Articles 5, 6 of the Military Criminal Code, 21, 23 of the Ordinary Criminal Code Volume 1, rendered himself guilty of espionage;

16.

In this case having, as a Norwegian citizen, holding passport numbers ***** and *****, as a soldier in the active service of the Norwegian Army as proven by his service card, valid through to 2016, as an intelligence agent of the said Government, wearing the uniform of the Royal Norwegian Guard and also holding the Special Intervention Group (SIG) service card, having rendered himself guilty of espionage by delivering or making available to a foreign power, to a foreign company or organisation or to a company or organisation under foreign control, information obtained on the strength of the operational maps of the Democratic Republic of Congo, camera, compass, GPS device, the exploitation, divulging or combination of these actions being of such a nature as to present a threat to the basic interests of the Congolese Nation, in particular its security in the eastern part of its territory where they were arrested.

Actions covered by and punishable under Articles 126, 127, 128.5o and 129 of the Military Criminal Code.

2.     Having joined an conspiracy which he knew to have been set up with the aim of carrying out attacks on persons or property. Having in KAMPALA, Capital of the UGANDAN REPUBLIC, without it being possible to specify the exact date but in the course of April 2009, which period is not yet covered by the statute of limitation, become a member of a conspiracy formed by JOSHUA FRENCH and himself, with the aim of carrying out attacks on persons and property.

        Actions covered by and punishable under Articles 156 and 158 of the Ordinary Criminal Code, Volume II.

3.     Having incited or taken command or been in command within an conspiracy which he knew to have been formed with the aim of preparing for or committing offences against persons or property.

        In the specific case, having in KISANGANI, in the town of this name as the administrative centre of the Eastern Province of the Democratic Republic of Congo, on 05 May 2009 been in  command of the above-mentioned conspiracy, in particular:

-          by recruiting the other member, Mr. JOSHUA FRENCH

-          by supplying resources (arms, GPS, compass, camera, geographical map, etc.) with the aim of preparing for attacks on persons or property.

        Actions covered by and punishable under Articles 157 of the Ordinary Criminal Code, Volume 2.

4.     Having been in possession, with neither entitlement nor right, of military weapons or ammunition, as set out above without entitlement or right, two military weapons with a number of items of ammunition and other military equipment[6].

        Actions covered by and punishable under Article 203 of the Military Criminal Code.

5.     Having, as perpetrator, co-perpetrator or accomplice in accordance with one of the types of criminal participation set out in Articles 5 and 6 of the Military Criminal Code and Articles 21 and 23 of the Ordinary Criminal Code Volume I,  voluntarily and with premeditation committed the act of homicide on another person;

        In this case, having, under the same circumstances in terms of time and place as above, by direct co-operation in the execution of the offence, assassinated Mr. ABEDI KASONGO, by firing on him, shooting into his head, with the military weapon which he had taken out of his bag.

17.

            Actions covered by and punishable under Articles 5 and 6 of the Military Criminal Code and 21 and 23 of the Ordinary Criminal Code Volume I, and Articles 43, 44 and 45 of the Ordinary Criminal Code Volume II;

6.     Having as perpetrator, co-perpetrator or accomplice in accordance with one of the types of criminal participation set out in Articles 5 and 6 of the Military Criminal Code, Articles 21 and 23 of the Ordinary Criminal Code Volume I, attempted voluntarily and with premeditation to commit a homicide, the resolve to commit this offence having been demonstrated by external actions which represented a start to the execution of this offence and which were not suspended or did not fail to have their intended effect except as a result of circumstances independent of the wish of the perpetrators:

            In this case, having under the same circumstances in terms of time and place as above, by direct co-operation in the execution of the offence, voluntarily attempted to kill Mr. KASIMO ARADJABU who had escaped from the hands of Mr. JOSHUA FRENCH who had overpowered him, as a result of his bravery and fleetness of foot, his suppleness, and by the fact of having fired shots in his direction.

7.     Having as perpetrator, co-perpetrator or accomplice in accordance with one of the types of criminal participation set out in Articles 5 and 6 of the Military Criminal Code and Articles 21 and 23 of the Ordinary Criminal Code Volume 1, fraudulently taken possession of a sum of money or various items of movable property to the detriment of others, in circumstances in which those committing the said act of dispossession were carrying military weapons.

        In this case, having in the same circumstances in terms of time and space as set out above, by direct co-operation in the execution of the offence, taken possession of, to the loss of Abbot André TIMBILI of the Monastery of KISANGANI, the owner of the white Land Cruiser vehicle with the registration number OR 4328 BB, having done away with its driver, ABEDI KASONGO, assassinated by having shots fired into his head; in circumstances in which one of those committing the said act of dispossession was carrying a military weapon.

The Court established that the Accused decided to speak, but exploiting the malaria which the Accused TJOSTOLV MOLAND had contracted, the defence opted for a delaying tactic which consisted of stating that the Accused was ill and could therefore not speak for long. For this they used a private doctor without the authorisation of the Court; there are two medical reports stating this point of view in the dossier. One is from a doctor who - without the authorisation of the Court confirmed by the appointment of an expert by the Public Prosecutor or by the Presiding Judge of the Court itself - took it upon himself with the complicity of the Accused's defence to provide him with medical care - and this in the prison. He had even produced a report following on from the consultations. This medical report was numbered 08/DR/JPL/P.O/2009 and was submitted to the office of the Military High Commissioner by the sick Accused's defence. As one would expect, the Court rejected it as being of incorrect form. Indeed, not only was there no requisition issued at the outset, but, above all, this report did not at the commencement of its work bear the sacred oath required by Article 64 of the Code of Military Justice. It was rejected by the Court at its hearing of 21 October 2009.

In place of this doctor recruited by the defence, the Court set up a panel of three doctors, made up of the Medical Director of the General Hospital of KISANGANI, the Medical Director of the 9th Military Region, Major Dr. WANDO, the doctor for the Provincial Inspectorate of the Congolese National Police, Dr. MPAKA, which completed its expert report on 28 October 209 (sic).

18.

The Court had established that this report had been inspired by the report of Dr. LOMBALE which the Court had rejected. It concluded in particular as follows: "given the persistent changes in the content of his consciousness and that the "thick smear" blood test for malaria carried out on 28 October was negative, we concluded the presence of a reactional psychosis and suggest that he be seen by a neuro-psychiatrist for a more in-depth examination". And as KISANGANI does not have a neuro-psychiatrist, it is simple to see what that meant.

It was subsequent to this conclusion that this Court, through its Senior Presiding Judge proceeded to requisition no. CM/PO/001/09 of 30 October 2009, not only to thwart the supposed tactics of the Accused and of his team, but also to get to the bottom of the doctors' logic.

However, this requisition was never sent to the CNPP at KINSHASA. Indeed, as the treating doctors of the Congolese State also suspected the accused of hiding something from them, they proposed to the Court that they should take the family of the deceased to the Accused feigning illness to see his reaction, as it was he who was asking for this. The Accused's defence was informed and saw nothing wrong with this, and the Clerk of the Court was immediately charged with this task along with Dr. MPAKA of the Congolese National Police. This strategy was successful and the Accused TJOSTOLV MOLAND revealed his true plan. He was trying to short-circuit[7] those who did not want him to tell the truth.

On being confronted with the members of the family of the victim ABEDI KASONGO, comprised of his wife, his elder brother, his mother and his sister, he proceeded to confess. He acknowledged that it was indeed he who had killed ABEDI KASONGO and gave a promise in writing that he would compensate the family of the deceased, in the presence of Dr. MPAKA and the Clerk of this Military Court, Captain ILONGA.

And at the hearing of the Court of 11 November 2009, the Accused MOLAND confirmed his confession in writing and verbally.

-          He produced a document written in his own hand by means of which he confirmed the pardon and confessed that it was he who had killed Mr. ABEDI KASONGO.

-          Over and above this letter of confession, he acknowledged that he was a mercenary, and that the eastern part of the country (the Democratic Republic of Congo) that they had travelled through from BENI to KISANGANI is an operational zone.

-          He acknowledged that they had entered the Democratic Republic of Congo with weapons and that the weapon used in the crime had been thrown away into the EPULU forest when they fled.

-          He also acknowledged that he and his associate JOSHUA FRENCH were equipped with a GPS device, a compass and geographical maps.

-          He declared that they had come to the Democratic Republic of Congo in aid of the cause of the Tutsi minority, however without revealing the name of their employer, nor giving any details of the nature and essence of their mission to KISANGANI.

-          The Accused MOLAND also revealed that he is in contact with the military leader of the Tutsi minority in the Democratic Republic of Congo, Laurent NKUNDA.

-          He confessed to being partly responsible for the death of five million Congolese in the various conflicts which have blighted the Democratic Republic of Congo since 2006 and that he was one of those who had brought in arms to sustain the war in the Democratic Republic of Congo.

19.

 

IV.          Legal analysis of the facts

1.            On the charge of espionage

While agreeing with the interpretation of the first Judge on this offence of espionage, we will proceed to shed more light on the concept of "time of war" in internal and international law.

Indeed, with regard to the law, there are two prior conditions required for realisation of the double incrimination of treason and espionage: on the one hand the existence of a time of war and on the other hand the perpetrator of the act holding the status of enemy.

Article 29 of Law No. 023/2002 on the Military Criminal Code evokes this concept of "time of war", stipulating: "For the application of criminal laws and the organisation of military jurisdictions, the time of war commences on the date fixed by the President of the Republic for the mobilisation of the Armed Forces. It ends on the date fixed by the President of the Republic for the Army to be returned to a peacetime footing." Sahir ERMAN, Treatise in the Review of Military Criminal Law and Martial Law XXV 1, 2, 3, 4 Brux, 1988 pp. 497 - 498).

But what is time of war, and what is war?

Law No. 04/023 of 12 November 2004 on the general organisation of Defence and of the Armed Forces stipulates that:

War is the legal and ultimate recourse to all military and non-military means of National Defence to put an end to a threat or to an attack against the basic interests of the country. On this concept, on the term of "war", positive Congolese law has made no clear pronouncement since the colonial era, through to the present day.

There is a "time of peace", i.e. the period during which a sovereign state enjoys public peace over the entire extent of its national geographical space, with public order and the security of populations being fully guaranteed by the appropriate legitimate institutions (armies, the police, etc.).

It goes without saying that this does not totally exclude crises or serious disturbances which the forces of the state may contain, from time to time.

Conversely, a time of war may be understood as any exceptional period during which the security of a sovereign state is gravely threatened by some imminent external attack or by the effective occurrence of an active or passive war undertaken by the said state or which it itself, or at least an enemy power, or even by an internal rebellion with or without external support, having had recourse to arms with a view to restoring a new institutional order; which period is in principle determined by the legitimate authority, in this case the President of the Republic, for our country.

International law refers at present to an ever greater extent, making the great distinction between international armed conflict and non-international armed conflict.

The general rules relating to non-international armed conflicts in respect of the two following cases:

20.

  1. Any situation in which within the territorial limits of a state characterised hostilities bring the Armed Forces and organised armed groups into opposition;
  2. Any situation in which dissident forces are organised under the control of a responsible commander and exercise control over a part of the territory, this control being of such a nature as to make it possible to conduct ongoing and concerted operations (high-intensity conflicts).

In brief, in respect of war time, the legal existence of this concept would today seems to be outmoded. International law on armed conflicts provides us with new elements.

The classic definition of war would seem to be outmoded. One now speaks more of international or non-international armed conflict.

According to this view of matters, a state which sees itself attacked or suffers aggression or is threatened over its entire geographical area, attacked in its basic interests, may[8] wage war without declaring war.

The situation existing in the Eastern province.

With its Eastern Province, the Democratic Republic of Congo is covered by this second hypothesis (non-international armed conflict).

Over and above the concept of "time of war", there is a second condition: " the perpetrator of the act holding the status of enemy".

Accordingly, with TJOSTOLV MOLAND and JOSHUA FRENCH being soldiers, Norwegian intelligence agents, above all, they hold the status of "enemy". This situation is reinforced by the confessions of TJOSTOLV MOLAND who maintains that he came to the Republic of Congo to support Laurent NKUNDA and to support the Tutsi minority, and even to understand the factions fighting in the Congo.

These remarks well illustrate the status of enemy.

  1. Constituent elements

Article 129 of the Military Criminal Code: "guilty of espionage and punishable by death is any foreigner, as the perpetrator of the acts listed in the above Article. From the above Article one must then refer to Article 128 of the Congolese Military Criminal Code which, in turn, defines what must be understood by "treason".

        1.            The nationality of the perpetrator of the offence

(1)           Foreign nationality for the perpetrator of espionage

This requirement arises out of Article 129 of the Military Criminal Code, under the terms of which any foreigner may be pursued by the Head of Espionage. And in the case under examination, TJOSTOLV MOLAND and JOSHUA FRENCH are foreigners, of Norwegian nationality Their passports, their military cards, the intelligence agent cards provide information on this situation.

21.

This nationality of TJOSTOLV MOLAND and JOSHUA FRENCH is that which they have held from when they perpetrated their offences until when they appeared before the Public Prosecutor and the judicial officer deciding on procedural matters, both in the first degree and at appeal level.

(2)           One of the five material acts of treason as envisaged by Article 128 of the Military Criminal Code, specifically:

  1. The action of delivering to a foreign power, to a foreign organisation or one under foreign control, or to their agents, either troops belonging to the Congolese Armed Forces or all or part of the National Territory.
  2. The action of delivering to a foreign power, to a foreign organisation or one under foreign control, or to their agents, construction materials, equipment, installations, apparatus or other materials assigned to national defence.
  3. The action of maintaining intelligence links with a foreign power, with a foreign company or organisation or one under foreign control or with their agents, with a view to inciting hostilities or acts of aggression against the Republic.
  4. The action of supplying to a foreign power, a foreign company or organisation or one under foreign control, or to their agents, the resources for undertaking hostilities or committing acts of aggression against the Republic.
  5. The action of delivering or rendering accessible to a foreign power, a foreign company or organisation or to their agents, information, procedures, objects, documents, data, details or files the exploitation, divulgence or combination of which is such as to damage the basic interests of the Nation.

All of the actions cited, material actions, are not cumulative, with the commitment of one of them sufficing to establish incrimination for treason or espionage, as is the case in the current matter.

In the case in hand, the material element constituting the offence of espionage is that required under Point 5. This 5th action constitutes one of the acts of espionage.

In his confessions of 11 November 2009, TJOSTOLV MOLAND declares: "the part of the territory crossed from BENI to KISANGANI is an operational zone". With this he proves that he is well aware of the military aspects, the ensuing stakes  and the knowledge of all of the groups confronting the Armed Forces of the Democratic Republic of Congo there, and TJOSTOLV MOLAND even named them: FDLR, LRA, Maï-Maï and even the MBORORO elements.

Under Congolese law, the dominant position of doctrine affirms that apart from information, procedures, documents or other secret facts, the legislature must also safeguard those concerning facts which are not secrets, where they take place but which it is important to keep concealed from enemy or foreign forces looking to access them by informal or devious means (Boizet and PINATEL, J.) Treatise on Criminal Law and Criminology, Vol. III, 3rd edition, DALLOZ, quoted by Laurent MUTALA).

22.

The end of the sentence in the 5th action or the 5th point: "the combination of which is such as to damage the basic interests of the Nation." demonstrates or announces that the result is probable.

-          their status: two soldiers on active service who see themselves as intelligence agents and mercenaries;

-          they enter the Congo clandestinely through the frontier, presenting themselves as tourists and concealing their status as soldiers;

-          they come with materials which they fail to declare: military or geographical maps providing fine details which can or will help them to move through the territory;

-          a military weapon; compasses, items for making progress through the terrain and which are used to show geographical north and north on the map;

-          telephones for communicating and giving information or receiving instructions or orders;

-          cameras for filming, recording and storing certain elements and data;

-          a GPS (Global Position System) device which emits a signal referenced by those in contact with them.

 

III.          Intellectual element

The faults covered by Articles 128 and 129 are only punishable if the moral responsibility of the agent should be engaged. And this responsibility arises out of "animus hostilis or the intention to do damage to a party displayed by the national or the foreigner".

In fact, this relates globally to the criminal intent rendered concrete by the assistance provided consciously or freely by the agent for a foreign power, a foreign organisation or one under foreign control or their agents.

This is the case with TJOSTOLV MOLAND and JOSHUA FRENCH. At the hearing of Wednesday 11 November 2009, TJOSTOLV MOLAND declared that they were their in support of the Tutsi, the Tutsi minority, and that they were in contact with Laurent NKUNDA, with his CNDP movement which is under foreign control.

The animus hostilis discussed above or the "intention of lese-majesty" is based on the knowledge on the part of the agent of the fact that information, procedures, objects, documents freely delivered or rendered accessible to forces foreign or hostile to the Congolese State might help them to harm the basic interests of the Nation.

Does the message of 12 May 2009 received by MOLAND at 07.18 not confirm this, when he was passed the instruction not to identify all of those in the Congo who were relying on this operation as this would lead to "big trouble in the Democratic Republic of Congo"?

In replying to all of these points underlined by the accusation of the offence of espionage, the defence responds that as far as the Accused JOSHUA FRENCH is concerned, the Public Prosecutor did not provide proof of time of war; he tried to pull the Court in the direction of international law. For him, criminal law is strictly a matter of interpretation.

In respect of the material elements of the offence of espionage, the defence states that the organ of the law does not indicate a single material action or even less the moral element which might be included within the context of this accusation.

23.

Besides, the geographical maps of the Democratic Republic of Congo are generally available and must not be considered as operational maps - they are available to everyone.

Finally, the SMS message of 12 May 2009 at 07.18 to which the Public Prosecutor refers does not concern the Accused FRENCH but MOLAND, as FRENCH was already under arrest when MOLAND received this message.

In brief, the organ of the law does not provide any evidence of the information gathered by its clients. As far as the Court is concerned, at the hearing of 11 November 2009 the Accused MOLAND established its opinion on this matter. He declared not only that they were in the Congo to fight the FDLR who are the enemies of their protégés, the minority Tutsis, but that the various objects and instruments they brought were to be used to gather information and made it possible for them to transmit this information as asserted in the accusation.

 

II.           Accusation: Criminal conspiracy

Being covered and punishable under Articles 156, 157 and 158 of the Ordinary Criminal Code, Vol. II, the offence of criminal conspiracy exists from the instant the group is formed or constituted. And this incrimination exists even if the members have not proceeded to subsequently commit any of the offences aimed at persons or owners.

This offence is committed as a combination of the following constituent elements:

a)            Material elements

1.             The existence of an association, i.e. two or more persons coming together with a view to undertaking a joint criminal enterprise. The law does not stipulate any specific number of associates.

2.             The organisation of the group.

3.             The existence of prior agreement between the members.

4.             The resolve between the members to act in a concerted manner, irrespective of the permanence or duration of the association, its structure, and the existence of a leader, or otherwise.

5.             The aim pursued must be to commit an offence against persons or property.

In the case under examination, the association is fully established in respect of TJOSTOLV MOLAND and JOSHUA FRENCH.

Indeed, in his confessions of 11 November 2009, TJOSTOLV MOLAND stated: "I came with a mission "to show at (sic) JOSHUA FRENCH" to show, to help JOSHUA FRENCH to better understand the Congo, to study, to learn more about the various factions fighting each other.".

TJOSTOLV MOLAND affirms and confirms that it was he who murdered ABEDI KASONGO. Nevertheless:

-               This group includes other members that T. MOLAND did not wish to name or denounce;

-               There is a concerted wish to act together.

24.

a)            Moral element

This moral element arises from the wish to fulfil the prior agreement reached by those involved with a view to realising their criminal end and that of consciously fulfilling the role assigned to each of the members.

The offence of criminal conspiracy requires that the perpetrator has acted with knowledge of the matter, i.e.:

1.             that he knew that he was joining a group with the aim of offending against persons and/or property.

2.             that he was supplying the instruments intended for the commitment of the offences by an association of criminals.

TJOSTOLV MOLAND does indeed declare that it was he who recruited JOSHUA FRENCH. The latter knew that he was joining a group set up with the intent of offending against persons and/or property.

c)            In respect of the accusation of being in command within the association of criminals, we agree with the development undertaken by the first judge - see judgement page.

 

3rd Accusation: Illegal possession of weapons and ammunition

This offence is covered by and punishable under Article 203 of the Military Criminal Code. In fact, this article imposes a penalty of 20 years of penal servitude on any individual in possession of military weapons or ammunition without entitlement or right.

On the occasion of his confessions of 11 November 2009, T. MOLAND acknowledged that he had assassinated ABEDI KASONGO using a military weapon. He stated specifically before that Court: "I had I had brought with me a weapon which killed .................... to protect me against wild animals and bandits".

To be realised in concrete terms, this offence requires the following constituent elements:

- the material elements

- the lack of entitlement or right;

- the moral element.

a)            Material elements

These elements are of two kinds: on the one hand the material acts and on the other those objects covered by the law.

In this case, the law only considers the material act of possession, although other acts such as fabricating, repairing, abandoning, putting up for sale , assigning, distributing, transporting, exporting or keeping in store are also punishable by other legal texts.

In the exact case under examination, the Accused T. MOLAND is involved through the act of possession.

Standing jurisprudence stipulates that possession is keeping oneself or having kept, concealing or having concealed, carrying or having carried, using or facilitating the use of a military weapon or

25.

ammunition and weapon accessories, and spare parts, military ammunition.

Items covered by the law: these are military weapons, their accessories and spare parts and as well as the ammunition designed for military weapons.

In this specific case, the above-mentioned Accused were in possession of a GP 9 mm, a military weapon which they threw away into the forest along with the military ammunition.

b)            Lack of entitlement or right

Military weapons or ammunition may only be held by virtue of an entitlement or right. This represents a legal obligation.

1.             The lack of any entitlement implies the absence of qualification on the part of the perpetrator. There is a category of persons who, through the acquisition of a given status, may have access to military weapons and ammunition in compliance with the law, for the accomplishment of their mission in the interests of the Nation or in its service. This is the case with soldiers, police officers and certain members of the national services who bear arms in the interests of the country.

In this specific case, the Accused MOLAND and JOSHUA FRENCH are Norwegian soldiers, and are not authorised to possess weapons and ammunition in the Democratic Republic of Congo.

2.             The lack of any right implies the non-existence of any regulatory deed of the competent authority, in particular the special authorisation of the President of the Republic as Head of State.

                This is the case for the two Accused MOLAND and JOSHUA FRENCH.

c)             Moral element

The perpetrator must be holding the objects covered by the law in a free and conscious manner. However, as this is also a material offence, the fact of possession itself is sufficient for the offence to be committed in concrete terms.

In the case under examination, the Accused MOLAND and JOSHUA FRENCH were in material possession of a GP 9 mm military weapon which they threw away into the forest in the full knowledge that they had neither the qualified status or right to it, as they had at all times kept these objects and their ammunition concealed. This proves that they were aware of the irregularity of their situation.

d)            Considerations of this Court in respect of this offence and the evidence

Before this Court, on 11 November 2009 the Accused MOLAND declared: "I had brought with me a weapon which killed .................... to protect me against wild animals and bandits". For the defence, the weapon of which the client MOLAND speaks is a weapon also known as a shut[9] (sic) gun, i.e. a hunting weapon, 12 calibre, of American manufacture, which the Accused had had with him since being in UGANDA, according to the defence. Accordingly, this is not a military weapon as maintained by the Public Prosecutor and the participating plaintiffs.

26.

However, for the latter, on the basis of the declarations of the Accused MOLAND before the examining magistrate on 15 May 2009, in response to the question of whether he knew he was in possession of a military weapon:

"Yes, we had a military weapon," was his reply.

In response to being questioned on the make of this weapon, he said that it was a Short[10] gun and that they had twelve rounds for it.

When asked about the whereabouts of this weapon, his reply was that he had thrown it away into the forest.

In addition to this argument, by looking at the photo taken of the victim ABEDI KASONGO, Lieutenant Armourer MAFWIDI confirmed the possibility of a 12 calibre weapon, as advanced by the defence.

As far as this Court is concerned, before the experience of the judges as ranking military officers, the majority of the members making up the bench were not in agreement with the defence and held that the weapon which killed the victim ABEDI KASONGO was a military weapon which the Accused MOLAND had thrown away into the bush. This weapon was the GP 9 mm which appeared in one of the seized photos. This was the opinion of the majority on the conclusion of the vote and based on the wound inflicted on the victim's head  by the bullet fired which had penetrated, etc.

 

3rd accusation: Murder

Under the terms of Articles 44-45 of the Criminal Code, homicide committed with mortal intent is regarded as murder, and murder committed with premeditation is regarded as assassination, "they are punishable by death."

From this disposition it arises that assassination covers on the one hand all of the elements of murder and on the other hand premeditation as well.

However, given that the killing in question is the work of a group of individuals, the concept of criminal participation must be considered specifically.

When handing down his decision, the first judge had already established this accusation on the basis of the depositions of the two sources of information KEPO AILA and KASIMU ARADJABU. Before this Court, at the hearing of 11 and 12 November 2009, the Accused MOLAND acknowledged that he had assassinated the driver ABEDI KASONGO at KP 109 on the ITURI road.

In justifying the death of ABEDI KASONGO, the Accused Moland added: "we believed that the two others (speaking of KEPO AILA and KASIMU ARADJABU) were members of the Armed Forces of the Democratic Republic of Congo and that they were armed".

In respect of the constituent elements of this offence of assassination there is the:

27.

                Material element

This is the same as for murder. It relates to a positive and material action.

The action is positive when it leads to death or is intended to result in death, with the exclusion of omission or inaction. The action is material when it is committed with the help of a military weapon, any weapon, an object, a sharp instrument, etc.

In this case, the medical legal report confirmed that the victim ABEDI KASONGO was killed by the bullet shot into his head by the Accused. Here we have a positive and material act.

The two witnesses KEPO AILA and KASIMU ARADJABU also experienced these deeds as they were present. Their witness statements confirm the facts.

In addition, even if at the first level proceedings the Accused MOLAND and FRENCH did not speak, having chosen to remain silent, they still acknowledged that they had killed Mr. ABEDI KASONGO, nonetheless. Indeed, from the month of May 2009, the Norwegian DINA "Peace Foundation" with which the mother of the Accused MOLAND works, was already looking after the family of the victim ABEDI KASONGO, as was acknowledged by the KISANGANI CELPA Church through the person of Mr. Pierre ABIUNGU KABUYA, Co-ordinator of 5th KISANGANI CELPA, speaking before the Court at its hearing of 19 November 2009. This was to have been kept secret, according to the instructions received.

3.            Intentional element

The moral constituent element of voluntary homicide lies in the intention to kill, "animus necandi". In this case, the fact that the Accused stopped at KP 17 to reach agreement, taking their weapon out of the bag in the back of the van and into the cabin, and then stopping again at KP 109, the scene of the crime, to once again reach agreement over a period of more or less 5 to 10 minutes, and then with MOLAND making his way to the driver with his weapon to shoot him, ABEDI KASONGO, down with this weapon, reveals the premeditation required in the intention to kill, in the case of assassination.

b)            Criminal participation

There is criminal participation when a number of persons play a more or less active part, more or less directly, in the commission of the offence (Mineur, G., Commentary on the Congolese Criminal Code, 2nd edition, p. 80).

There is joint action when the contribution made is direct or indispensable, while there is complicity when the assistance provided is - without being necessary - nevertheless useful (NYABIRUNGU MWENE SONGA, Congolese Criminal Law, 2nd edition, DES, 1989, p. 127).

In the case under examination, the contribution of JOSHUA FRENCH to[11] the behaviour of MOLAND was direct and indispensable due to the act of having taken for him the weapon which was in the back of the van for the execution of the offence of assassination carried out by the latter on ABEDI KASONGO.

28.

 

5th Accusation: Attempted assassination

The Accused MOLAND and JOSHUA FRENCH are accused of having attempted to assassinate KASIMU ARADJABU and KEPO AILA.

An offence is committed when the execution of the material actions constituting the offence is suspended or interrupted due to circumstances independent of the wishes of the perpetrator.

For this offence to be fully committed, it is necessary for the three conditions set out below to be fulfilled:

1.             The resolve to commit a specified offence

                In this case, the Accused MOLAND and JOSHUA FRENCH resolved to assassinate ABEDI KASONGO, KASIMU ARADJABU and KEPO AILA at KP 109.

2.             The external actions constituting a start to the execution of the planned offence

                In this case, the fact that MOLAND and JOSHUA FRENCH sought out the possibility of isolating the above-named victims from KISANGANI, at KP 109 on the ITURI road where they took out their weapons to shoot at KEPO AILA and KASIMU ARADJABU, after the latter had been choked by JOSHUA FRENCH. This behaviour displayed by the two Accused represents external actions representing the start of the execution of the offence of assassination.

3.             Absence of voluntary withdrawal

                The perpetrator cannot voluntarily withdraw from his criminal behaviour. In this case, if the victims KASIMU ARADJABU and KEPO AILA were not actually killed, this was due to the fleetness of foot miraculously granted to them by God to allow them to flee into the bush.

                Apart from their offences against relevant persons, the association represented by MOLAND and JOSHUA FRENCH also inflicted on the owners the theft of the TOYOTA Land Cruiser jeep, the property of another.

 

6th Accusation: Armed robbery (with which both are charged)

                Armed robbery is covered by and punishable under Article 81 a of the Ordinary Criminal Code, Vol. II. It is punishable by death.

                The law takes a more serious view of the thief's situation if the fraudulent misappropriation has been undertaken with the help of a weapon.

                In this case, the Accused MOLAND and JOSHUA FRENCH fraudulently took possession of the TOYOTA Land Cruiser jeep belonging to another. This theft was carried out with the assistance of the weapon which killed ABEDI KASONGO and which almost killed KASIMU ARADJABU and KEPO AILA. These weapons were thrown into the bush.

To be realised in concrete terms, this incrimination requires the following constituent elements:

29.

a)            Material elements

1.             Acts of misappropriation

                The first element required for the offence of theft is the misappropriation of an item, i.e. seizure as the action of the guilty party.  This amounts to taking possession, accomplished as a material action. Illicit change of possession takes place. The thief takes the item away from the owner, taking it into his own possession. Here we are not talking about possession under civil law, but possession representing a legal situation, with criminal law considering purely material possession.

                The power created to dispose of the item. This is what was undertaken by T. MOLAND and JOSHUA FRENCH after they had done away with the driver and his helper who happily managed to escape.

2.             The item to be stolen

                This must be a material object, as it is not possible to undertake any misappropriation in respect of a right or a non-material item. The white TOYOTA Land Cruiser jeep, registration number OR 4322 BB is a material object. Criminal law does not necessarily follow the same line as for the distribution of goods established by civil law. It considers a moveable assets as anything which might be relocated or transported from one place to another.

3.             Something belonging to someone else: it is necessary that the item misappropriated does not belong to the perpetrator. It is not possible to steal one's own property. The white TOYOTA Land Cruiser jeep, registration number OR 4322 BB is the property of GABY NGAZUA.

4.             Carrying weapons: carrying weapons is sufficient on its own. It is not necessary for the thief to have used it or them, or to have attempted such use. The punishment is applicable to all of the thieves if one of them has been armed, even for those whose hands were empty. In the case under examination, T. MOLAND had a weapon, a military weapon. Under criminal law, weapons must be understood as any machine, any instrument, any cutting, piercing utensil or blunt instrument, anything at all which can injure someone is considered to be a weapon.

b)            Intentional element

                The misappropriation of the item belonging to another only constitutes theft if fraudulent.

                The concept of fraud means two things:

  • the intention to procure an illegitimate advantage for oneself or for another party.
  • the intention to do harm to the owner of the item disappropriated, even without any intention of financial gain. This intention must exist at the time of misappropriation. This is an instantaneous offence, however the proof of this intention may arise out of prior or subsequent actions.

30.

For these reasons,

the Military Court

ruling on the appeal in respect of the public prosecution 

having heard both sides and by the majority of its members:

 

-          given the Constitution of the Democratic Republic of Congo and its Articles 149, Paragraphs 1 and 2, Articles 150, 151 and 153 Paragraphs 4 and 5;

-          given Law No. 023/2002 of 18 November 209 on the Military Code of Justice;

-          given Law No. 024/2002 on the Military Criminal Code and its Articles 226, 227, 231, 233, 238-242, 249, 250, 251, 274, 278-203, 126 to 129;

-          given the Military Criminal Code as currently amended, in particular its Articles 4, 43, 44, 156, 157-158;

-          given Decree-Law No. 085-035 regulating weapons and ammunition;

-          given the Congolese Codes of Criminal and Civil Procedure as currently amended;

-          given the Rome Statute of the International Criminal Code;

-          given the International Pact on Civil and Political Rights signed in New York on 16 December 1968.

 

hereby declares with the force of law

 

for the Accused TJOSTOLV MOLAND

1.             To the question of whether the Accused TJOSTOLV MOLAND is guilty of the offences with which he is charged, by the majority of its constituent members the Military Court replies:

                yes to espionage and criminal conspiracy, for having fulfilled the commanding role in this association;

                - yes to the assassination of ABEDI KASONGO;

                - yes to armed robbery;

                - yes to the attempted assassination of KASIMU ARADJABU;

                - yes to the illegal possession of military weapons and ammunition.

2.             To the question of whether there should be any mitigating circumstances found in his favour, any objective or subjective justifying reasons, any grounds for acquittal or reprieve, by the majority of the votes of its constituent members, the Court replies: NO.

3.             To the question of whether there should be some criminal sanction applied, by the majority of its constituent votes the Court replies: Yes.

                Consequently, the Court confirms the penalties imposed by the First Judge, i.e. the death penalty for criminal conspiracy, espionage, assassination, attempted assassination and armed robbery;

-               20 years of principal penal servitude for the illegal possession of military weapons, the death penalty for fulfilling the commanding role, however in application of Article 7 of the Military Criminal Code:

31.

-               imposes only one single penalty, the most severe, namely the death penalty;

-               charges the Court's fees to the public purse.

 

 for the Accused JOSHUA FRENCH

1.             To the question of whether the Accused JOSHUA FRENCH is guilty of the offences with which he is charged, this Military Court replies, by the majority of the votes of its constituent members, Yes.

                - yes to criminal conspiracy;

                - yes to attempted assassination;

                - yes to armed robbery;

                - yes to espionage;

                - yes to the illegal possession of a military weapons.

2.             To the question of whether there should be any mitigating circumstances found in favour of the Accused FRENCH, any objective justifying reasons, or any grounds for reprieve, by the majority of the votes of its constituent members, the Court replies NO, for each of the offences of which he is guilty.

3.             To the question of whether there should be some criminal sanction applied, by the majority of its constituent votes the Court replies: Yes..

Consequently,

-               the Court confirms the decision of the First Judge, i.e. the death penalty for criminal conspiracy;

-               the death penalty for the attempted assassination of KASIMU ARADJABU;

-               the death penalty for espionage;

-               twenty years for the illegal possession of military weapons and ammunition.

                And in application of Article 7 of the Military Criminal Code, sentences him to a single penalty, the most severe, i.e. the death penalty.

-               confirms the penalty of special confiscation of the objects seized and held in the judgement of the First Judge;

-               places these at the disposal of the Bureau of Confiscated Objects and Goods.

                This relates to the items listed below by the Clerk of the KISANGANI Garrison Military Court:

-               a motor cycle;

-               one GPS device

-               cameras and cell phones;

-               geographical maps;

-               one saw-edge knife;

-               one FINELLE butt-less weapon + 02 cartridges;

-               one Brusletto knife, etc.

                The Court sentences the Accused jointly and severally with the State of Norway cited by the First Court and by the Clerk of this Court and which neither wished to appear, nor did anyone in its name, by default.

32.

                Sets the costs for this case to the equivalent in Congolese francs of one thousand American dollars.

 

The Military Court 

ruling on the appeal in the civil action

EXAMINATIONS OF THE APPEALS SUBMITTED

BY THE PARTICIPATING PLAINTIFFS

 

From the terms of Articles 79 Paragraph 1 of the Military Criminal Code, 69 and 122 of the Ordinary Code of Criminal Procedure it arises that the action for the reparation of the damages caused by an offence covered by the competence of the military jurisdiction may be pursued by the injured party by declaring itself as a participating plaintiff at the same time, and before the same judge as for the public prosecution the participating plaintiff may present itself at any time from the Court being invoked through to the end of the debates, by means of a declaration received by the Clerk, or so do at the hearing, with this then being formally recorded after lodging of the fees stipulated in Ministerial Decree No. 25/MIN/RIJ/ and GSFIN/98 of 14 December 1998.

The Court is mindful that due to the relevant legal dispositions referred to above, the examination of the claims of the participating plaintiffs in the appeal and the qualities of the judgement undertaken stood up neither to verification of the validity of the constitution of the participating plaintiffs nor to that of the quality of those demanding reparations, nor even to the legal criteria for reparations for damages, namely the connection of the damages to the deed generating responsibility, by means of a link between cause and effect.

Accordingly it is necessary for the deed generating responsibility to have been the effective cause of the damages inflicted, without which the damages would not have been produced (Alex WEIL and François TERRE, Civil Law, Obligations, Dalloz Summary, 1986, pp. 760-763, No. 741-743).

When these criteria are brought to bear on this case, we arrive at the following observations: in respect of the family of ABEDI KASONGO as a participating plaintiff, in the light of the deeds attached to the dossier only one person has presented herself as a participating plaintiff, namely Citizen OLENDJEKE.

With the six children of ABEDI KASONGO, of whom one is of the age of majority as their joint counsel, President of the Bar ALAUWA intended to lump them together with the widow OLENDJEKE under the heading of THE FAMILY OF ABEDI KASONGO, but without the fees required to present a party as a participating plaintiff, they are not admissible in this role of participating plaintiff, although the First Judge erroneously conferred this status on them.

In respect of the participating plaintiff AMISI TSHOMBA, brothers and relatives under the heading of the second group, only AMISI TSHOMBA effectively presented himself as a participating plaintiff in accordance with the deed attached to the dossier, countersigned by the Clerk and AMISI TSHOMBA.

The fees have also been ordered in accordance with the payment schedule attached to the dossier.

33.

All of the others lined up behind AMISI TSHOMBA as part of this second group are therefore not accredited as participating parties by this Military Court, despite the work of the First Judge and the claims of their counsel, ALAUWA, President of the Bar.

These are, specifically: AMINA ABDALLAH, the mother of ABEDI KASONGO, FATUMA WALO, the elder sister of ABEDI KASONGO, ALIMASI NDJE and MIUNGE KASONGO, relatives of the deceased.

In respect of the participating plaintiff AKALIWA LITUNGU, acting on behalf of ACCO, the Congo Association of Drivers, the assassination of ABEDI KASONGO represents the principal action generating responsibility, the effective cause of the damages suffered by these various participating plaintiffs.

For the widow Bibiche OLENDJEKE, the definitive loss of a husband which whom she had wished to see out her life, with him looking after her and together ensuring the education of their children.

With Norway having been cited as bearing civil responsibility by authorised means, this party rejected this charge by claiming that the two Accused are no longer soldiers and that there is no longer any link of principal and agent between them, with, however, the two Accused, namely TJOSTOLV MOLAND with the rank of Second Lieutenant and JOSHUA FRENCH with the rank of Staff Sergeant, as is shown by their military cards issued by the Norwegian Ministry of Defence, seized from the Accused and valid respectively for the first until 2016 and the second until 2017. They are therefore active soldiers on the Norwegian Army, from which it arises that there is a link of principal to agent between Norway and the two Accused.

 

CONCERNING THE PARTICIPATING PLAINTIFFS

KASIMU ARADJABU AND KEPI AILA

 

Each of these has a deed jointly forming a dossier. They have lodged the fees in accordance with the payment schedule attached to the dossier.

The offence of attempted assassination invoked by their counsel, Maîtres BULEDI, LELO and SELENGE, on the reading of the referral decision concerns only KASIMU ARADJABU. The punishment of the death penalty attached to the attempted assassination as required by the law is punished by the same penalty as the offence perpetrated, with recourse to voluntary appearance prohibited.

 

CONCERNING THE DEMOCRATIC REPUBLIC OF CONGO

AS A PARTICIPATING PLAINTIFF

Some aspects of the disputed judgement and the debates in the hearings before the Court, of the offences of criminal conspiracy or the illegal possession of military weapons, would have represented the generating deed if the ineffectiveness of the services operating at the border and the diplomatic services were not disputing the leadership for the range of reasons thus adding weight to the claims of the Democratic Republic of Congo to reparations.

It was for this reason that the counsels of the Democratic Republic of Congo, Maître Justin MOLIMA and Maître Jean AKOMBO preferred to focus on the offence of espionage where the damages and interest are allocated as a matter of course, i.e. free from the formalities of presenting oneself as a participating plaintiff and where the extent of these damages, and the amount of the damages and interest

34.

are only measured by the influence of what may be termed the acts of aggression against the basic interests of the Nation.

How to cover the undertaking to destabilise the East of the Democratic Republic of Congo which has claimed the lives of four million people? For this all one must believe is that MOLAND is a defender of the Tutsi cause, he confesses to having supplied them with weapons and that the two offenders were able to move within the said area or to its frontiers, if one is to believe the conclusions of Maître Justin MOLIMA (page 4).

 

FOR THESE REASONS 

THIS MILITARY COURT

RULING ON THE CIVIL ACTION

AFTER HEARING BOTH SIDES IN PUBLIC HEARING AND

BY THE MAJORITY OF THE VOTES OF ITS

CONSTITUENT MEMBERS

 

DECLARES INADMISSIBLE due to failure to present themselves as participating plaintiffs at the court of first instance, the appeals submitted through the intervention of President of the Bar ALAUWA on behalf of:

1. ***** (18 years of age)

2. ***** (14)

3. ***** (11)

4. ***** (05)

5. ***** (03)

6. ***** (01)

All children and successors of ABEDI KASONGO and included under the heading Group 1.

DECLARES INADMISSIBLE due to failure to present themselves as participating plaintiffs and to pay the relevant fees at the court of first instance, the appeals submitted by Maître ALAUWA on behalf of the brothers and relatives of ABEDI KASONGO included under the heading Group 2, namely:

1. FATUMA WALO

2. ALIMASI NDJE

3. MIUNGE KASONGO

4. AMINA ABDALLAH, the mother of the deceased.

DECLARES INADMISSIBLE THE APPEAL SUBMITTED BY MAÎTRES BULEDI, LELO and SELENGE on behalf of KEPO AILA, due to it not being covered by the judicial contract from the court of first instance, as it was not included in the disposition for the referral decision. That the First Judge erroneously used Articles 216 and 217, believed he was reinserting it thanks to the situation of voluntary appearance. This only works for offences punishable by the death penalty, such as the attempted assassination which KEPO AILA puts forward as the action generating the damages he suffered. The same applies for armed robbery, to which he was counting on attaching the loss of his suitcase containing articles for sale.

As these two offences are punishable by death, they are not eligible for voluntary appearance.

35.

CONVERSELY

DECLARES ADMISSIBLE AND FOUNDED THE ACTION for damages for the loss submitted by President of the Bar ALAUWA on behalf of Bibiche OLENDJEKE, the widow of ABEDI KASONGO.

 

CONSEQUENTLY

THE COURT ORDERS the Accused TJOSTOLV MOLAND and JOSHUA FRENCH, jointly and severally with the State of Norway, to pay to Bibiche OLENDJEKE the equivalent in Congolese francs of 750,000 USD, by way of compensatory damages for the loss suffered.

DECLARES ADMISSIBLE AND FOUNDED the action for compensation for the loss suffered submitted by AMISI TSHOMBA, the elder brother of the deceased.

 

CONSEQUENTLY

THE COURT ORDERS the Accused TJOSTOLV MOLAND and JOSHUA FRENCH, jointly and severally with the State of Norway, to pay to AMISI TSHOMBA the equivalent in Congolese francs of 375,000 USD, by way of compensatory damages for the loss suffered.

DECLARES ADMISSIBLE AND FOUNDED the action for compensation for the loss suffered submitted by the participating plaintiff AKALIA LITUNGU, representing the Congo Association of Drivers.

 CONSEQUENTLY

THE COURT ORDERS the Accused TJOSTOLV MOLAND and JOSHUA FRENCH, jointly and severally with the State of Norway, to pay to AKALIA LITUNGU for the account of the Congo Association of Drivers, the equivalent in Congolese francs of 50,000 USD by way of compensation for the loss suffered.

DECLARES ADMISSIBLE AND FOUNDED THE ACTION for damages for the loss suffered submitted by the participating plaintiff KASIMU ARADJABU;

 

CONSEQUENTLY

THE COURT ORDERS the Accused TJOSTOLV MOLAND and JOSHUA FRENCH, jointly and severally with the State of Norway, to pay to KASIMU ARADJABU the equivalent in Congolese francs of 100,000 USD, by way of compensatory damages for the loss suffered.

DECLARES ADMISSIBLE AND FOUNDED the action for compensation for the loss suffered submitted by the Maîtres Justin MOLIMA and Jean AKOMBO MANDJO for the account of the Democratic Republic of Congo.

36. 

CONSEQUENTLY

THE COURT ORDERS the Accused TJOSTOLV MOLAND and JOSHUA FRENCH, jointly and severally with the State of Norway, to pay the equivalent in Congolese francs of 500,000,000 USD, by way of compensatory damages for the loss suffered.

 

AND FOR THE REST CONCLUDES BY

CONFIRMING THE DECISION OF THE FIRST JUDGE 

THUS DECREES AND PRONOUNCES AT THE PUBLIC HEARING OF THE COURT AT WHICH SAT:

  • Colonel Magistrate MOLIBA TEWA DESANA, Senior Presiding Judge
  • Lieutenant-Colonel Magistrate EMBU ANIENG, Presiding Judge
  • Assistant Inspector Marie BAGALET, Assistant Judge
  • Assistant Inspector NSINDUKU MASIATIMA, Assistant Judge
  • Major Remy WASSO ZAKILONGO, Assistant Judge

With the participation of Major Magistrate BWAMULUNDU GUZOLA, Substituting for the High Military Commissioner at the Military Court of the Eastern Province, and with the assistance of Captain Camille ILONGA DHAMWANZO, Clerk to the Bench.

 

Clerk of the Court                                                                             Senior Presiding Judge


 

[1] Sorry, but cannot even attempt to put a meaning on this phrase. Nothing else in the phrase is plural to link to "qualifiés". Translator

[2] Here this version of the story uses "psychological" for, presumably "physiological". Translator

[3] The French word used is "faction". "Satisfaction" assumed as the word meant. Translator

[4] CR ROOM = CD ROMs? Translator

[5] Literal translation of French words, difficult to make any sense of this. Translator

[6] Very odd syntax. This is the closest I can get to sense. Translator

[7] Assumed translation from apparently mis-spelled word. Translator

[8] Only if the "pour" in this sentence is replaced by "peut" (may) does the sentence have a verb to allow it make some (asssumed) sense. Translator

[9] Presumably "shotgun"? Translator

[10] "Short gun" really a make of weapon? More likely "shot gun"? Translator

[11] This makes sense if one assumes "ou" as a typo for "au". Translator

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