Decision; Subjects: BURUNDI, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
United Nations
CAT/C/55/D/522/2012
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
24 September 2015
English
Original: French
GE.15-16176 (E) 021115 021115
*1516176*
Committee against Torture
Communication No. 522/2012
Decision adopted by the Committee at its fifty-fifth session
(27 July-14 August 2015)
Submitted by:
Patrice Gahungu, represented by Track
Impunity Always (TRIAL)
Alleged victim:
The complainant
State party:
Burundi
Date of complaint:
30 July 2012 (initial submission)
Date of present decision:
10 August 2015
Subject matter:
Torture committed by police officers
Procedural issues:
None
Substantive issues:
Torture and cruel, inhuman or degrading
treatment or punishment; obligation to
systematically monitor interrogation
techniques and practices; obligation of the
State party to ensure that the competent
authorities conduct a prompt and impartial
investigation; right to lodge a complaint;
right to redress
Articles of the Convention:
Articles 2 (para. 1), 11, 12, 13 and 14, read in
conjunction with articles 1 and 16 of the
Convention
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Annex
Decision of the Committee against Torture under article 22 of
the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (fifty-fifth session)
concerning
Communication No. 522/2012*
Submitted by:
Patrice Gahungu, represented by Track
Impunity Always (TRIAL)
Alleged victim:
The complainant
State party:
Burundi
Date of complaint:
30 July 2012 (initial submission)
The Committee against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 10 August 2015,
Having concluded its consideration of complaint No. 522/2012, submitted to the
Committee against Torture by Mr. Patrice Gahungu under article 22 of the Convention,
Having taken into account all information made available to it by the
complainant, his counsel and the State party,
Adopts the following:
Decision under article 22, paragraph 7, of the Convention
1.1 The complainant is Patrice Gahungu, born in 1973 in Bweru commune, Ruyigi
Province, and residing in Bujumbura. He claims he was the victim of violations of
articles 2 (para. 1), 11, 12, 13 and 14, read in conjunction with article 1 and,
alternatively, article 16 of the Convention. The complainant is represented by counsel.
1.2 On 18 September 2012, in accordance with rule 114, paragraph 1, of its rules of
procedure, the Committee requested the State party to adopt effective measures,
throughout the duration of the Committee’s consideration of the complaint, to prevent
any threats or acts of violence to which the complainant or his family might be
exposed, in particular as a result of having lodged the present complaint.
The facts as presented by the complainant
2.1 The complainant is a lawyer by training and practised for many years in the
investigations, operations and transmissions offices of the Burundian National Police,
until 2007 when he was dismissed following internal disputes. Since the events
__________________
* The following Committee members took part in the consideration of the communication: Essadia
Belmir, Alessio Bruni, Satyabhoosun Gupt Domah, Abdoulaye Gaye, Claudio Grossman, Jens
Modvig, Sapana Pradhan-Malla, George Tugushi and Kening Zhang.
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recounted in this communication, he has not practised for the police. He is married,
has two children and is responsible for three of his brother’s children.
2.2 At the time of the events, in July 2010, when Burundi was in serious electoral
crisis, the complainant was a member of the executive committee of the opposition
party, the Union pour la paix et le développement, and the executive secretary of the
Union’s youth branch at the national level. The complainant enjoyed a degree of
renown owing to his position as a senior member of the Union and the fact that he had
spoken regularly in public on behalf of his party during the presidential election.
2.3 On 1 July 2010, around 5.30 p.m., the complainant was driving to downtown
Bujumbura. At the premises of the National Liberation Forces party, located in North
Mutanga, he picked up four hitchhikers who wished to go downtown. When the
complainant stopped for gas, two vehicles pulled up to either end of his car,
preventing him from leaving. As a former member of the Burundian National Police,
he quickly identified the vehicles as belonging to the National Intelligence Service.
Six officers stepped out of the vehicles. They fired several shots in the air to
intimidate the complainant and his passengers. The passengers managed to flee, but
three of them were caught and forced to get into the National Intelligence Service
vehicle. The complainant had a pistol put to his head and was also forced into the
vehicle. At no time did the officers notify him of the reasons for his arrest nor show
him an arrest warrant.
2.4 During the ride to the offices of the National Intelligence Service, the
complainant was hit many times by the two officers next to him, including with the
butt of a gun. His glasses were broken in the beating and his personal effects were also
taken away. When he arrived at the offices of the National Intelligence Service around
6 p.m., the complainant was forced to remove his shoes and sit on the ground in the
courtyard next to the three hitchhikers. The complainant then suddenly saw one of the
hitchhikers fall over after being hit by a stone thrown by one of the National
Intelligence Service officers. A few seconds later, the complainant was himself hit by
a stone thrown by the same officer, so hard that he lost consciousness. While he was
unconscious, he was taken to the office of the head of the National Intelligence
Service, who spat in his face, after which he regained consciousness.
2.5 The interrogation, which began at 6 p.m. and lasted till approximately midnight,
was primarily led by the head of the National Intelligence Service. The complainant
was interrogated about grenade attacks allegedly carried out by members of the Union
pour la paix et le développement and the National Liberation Forces, the links between
these two groups, the weapons at the disposal of the National Liberation Forces and
other topics. During the interrogation, the complainant was tortured by officers of both
the National Intelligence Service and the Burundian National Police, at the behest of
the head of the National Intelligence Service and in his presence, as well as that of the
executive assistant of the National Intelligence Service, the deputy director general of
the Burundian National Police and the Burundian National Police chief for the West
Region.
2.6 The head of the National Intelligence Service began by ordering the complainant
to lie on his stomach while an intelligence officer undressed him. Once the
complainant was naked, the intelligence officer spread sand across his back so that it
would penetrate the wounds to be inflicted on him and heighten the pain. Two
intelligence officers then immobilized the complainant and beat his feet repeatedly
with clubs and ramrods. The intensity of the beating was such as to cause serious
bruising and swelling, preventing the complainant from being able to walk. To
compound the humiliation, the intelligence officers attempted to force a rock into the
complainant’s mouth to stifle his screams. The executive assistant then ordered him to
stand up. Unable to do so, he was forcibly lifted. The executive assistant then put his
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pistol to the complainant’s head, kicked an open wound on his right buttock and
warned him that he had power of life and death over him. The executive assistant then
repeated the same questions that the head of the National Intelligence Service had
already asked. When he did not receive a reply, he ordered the agents to beat the
complainant across the back with belts. Water bottles were also used to hit him in the
face. He was hit again on the feet with ramrods, causing significant bleeding. When he
tried to stem the bleeding, the agents forced him to swallow his own blood.
2.7 Unable to walk, the complainant was dragged to another office. During the
transfer, a Burundian National Police officer attempted to strangle the complainant,
who was saved at the last second by an investigating police officer. The intelligence
officers severely tortured the complainant again, including beatings on the shoulders
with a belt and on the feet with a ramrod. He was also hit in the nose with a club and
in the throat with a ramrod. Then an intelligence officer cut off a piece of the
complainant’s earlobe with bicycle pliers and forced him to eat it. When the
complainant refused, he was hit with the pliers on the right eye and genitalia.
2.8 When the deputy director general of the Burundian National Police and the
Burundian National Police chief for West Region came into the office, they ordered
that the complainant be handcuffed and put in the adjoining lavatory. The complainant
remained there from 1 to 6 July 2010, handcuffed at all times. The lavatory measured
1.5 m by 3m. The complainant had trouble finding a comfortable position because of
the unbearable pain caused by the beatings, especially the open wound on his right
buttock. During the five days that he was held in the lavatory at the National
Intelligence Service premises, the complainant was deprived of water, food and
medical care. He was forced to drink the toilet water in order to survive. The acts of
torture continued during the detention: every night, intelligence officers beat him with
clubs, belts and ramrods all over his body. In addition, the fear of their arrival
prevented him from sleeping for the entire period. The complainant did not receive
any family visits. His wife, who had been informed of his arrest by witnesses, went to
the National Intelligence Service premises as early as 1 July but was not permitted to
see her husband.
2.9 Notified of the complainant’s arrest, observers from the United Nations Office in
Burundi went to the National Intelligence Service premises on 2 July 2010 and were
informed that the complainant had been taken by other officers on a search. In fact,
that day, the complainant had been taken to Lake Tanganyika. At one point during the
journey, an intelligence officer told the complainant to say his last prayer before his
execution, but he was returned to the National Intelligence Service premises three
hours later, after the observers had left.
2.10 On 6 July 2010, the complainant was interrogated again by an investigating
police officer about a plan to undermine the Government in which he had allegedly
taken part. He was asked to sign a report of uncertain content, which the complainant
resigned himself to signing out of exhaustion. The same day, he was taken to the
public prosecution service along with the three hitchhikers and was brought before the
investigating judge. He was held all day in the public prosecution service’s cell,
located in the basement of the building, and was not heard until the end of the
afternoon. He was then informed that he was accused of plotting against the State.
2.11 At this initial hearing, the complainant reported to the judge the abuse he had
suffered while detained at the National Intelligence Service premises and was able to
show the visible traces thereof. On 6 July 2010 at around 8 p.m., the complainant was
transferred to Mpimba, the central prison of Bujumbura. Having still not received any
medical care, he was in a worrying condition. The complainant was held for 15
months at Mpimba prison. This extended period of detention in appalling conditions
had adverse effects on his physical and mental health, despite the fact that he was
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supported by his family. He shared his windowless, 3m by 4m cell with another
inmate. Any food he received was provided by his family and the medication required
for his condition was prescribed by representatives of the International Committee of
the Red Cross (ICRC), who visited him periodically. Following their first visit, the
ICRC representatives requested that an X-ray of his foot be taken, to no avail.
2.12 The observers from the United Nations Office in Burundi and the Independent
Expert on the situation of human rights in Burundi also visited the complainant at
Mpimba prison a number of times. They were able to directly observe the traces of
abuse on his entire body which left no room for doubt as to the fact that he had been
tortured. In the report drafted after their visit to the complainant on 8 July 2010, the
observers describe having noted that part of his ear had been sliced off, that his nose
and feet were swollen, like the feet of a child suffering from kwashiorkor, and that his
buttocks were very puffy. They had also noted that he could barely walk. The
observers also took photographs of the complainant’s swollen body during that visit,
which took place two days after his transfer to Mpimba.1 In a report following his first
visit to Burundi, the Independent Expert, who visited the complainant during his
detention at Mpimba prison, describes the injuries observed on the complainant,
including the presence of scars on the victim’s ear (see A/HRC/17/50, para. 41).
2.13 On 13 July 2010, there was a second hearing before the investigating judge
during which the complainant once again reported the abuse and ill-treatment that he
had suffered while in detention at the National Intelligence Service premises. On 26
July 2010, he was brought before the Council Chamber for an extension of the period
of detention, accompanied by his lawyer for the first time. When the lawyer asked the
investigating judge about the charges against his client, he was told, informally, that
there was insufficient evidence to indict Mr. Gahungu but that he would nonetheless
remain in detention. The complainant’s lawyer appealed the decision to continue the
detention. However, the Appeals Court, not having found the file at the public
prosecutor’s office, has never considered the appeal.
2.14 Although the complainant was initially accused of plotting against the State, at a
new hearing on 5 July 2011, the charges against him were changed to accessory to the
possession of illegal weapons.
2.15 On 18 October 2011, Mr. Gahungu was finally sentenced to 1 year’s
imprisonment for being an accessory to the possession of illegal weapons. 2 Having
already spent nearly 15 months in prison at the time of his conviction, he was released
on 24 October 2011.
2.16 The complainant contends that he still suffers from the severe physical and
mental scars of the torture to which he was subjected. His overall health has declined,
especially since, owing to a lack of funds, he never received the necessary care, either
while in detention or after his release. His right eye is sensitive because of the blow he
received with the pliers. He often feels tingling in it and it weeps involuntarily. He
feels persistent pain in his genital area. He cannot walk for long distances and is
forced to take pain medication very regularly. Mr. Gahungu was also severely harmed
mentally. At night, he often falls prey to nightmares in which he is chased by
intelligence officers. He suffers from a general feeling of insecurity, which is fuelled
by real threats against his life: since his release in October 2011, he has been the
object of intense surveillance by individuals identified as being members of the
National Intelligence Service. He regularly receives threatening phone calls, including
death threats. Intelligence officers have also come to his home on several occasions.
__________________
1 The complainant has included the report of the observers from the United Nations Office in Burundi
and the photographs in an annex to his file.
2 A copy of the judgement is included in the file.
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He was informed by sources within the National Intelligence Service that there was a
plan to kill him. The threats have intensified since June 2012 and the danger to his life
and his physical and mental integrity are considered to be so real and imminent that he
is forced to live in hiding.
2.17 His medical issues are compounded by social and financial problems, as he is
unemployed and merely volunteers with the Union pour la paix et le développement.
Owing to his detention, the treatment to which he was subjected and the physical and
mental side effects of the ill-treatment, the complainant is unable to resume his
previous post. Consequently, he is surviving only with the help of his relatives and is
struggling to meet the needs of his dependent children.
2.18 Regarding the matter of the exhaustion of domestic remedies, the complainant
contends that he reported the treatment to which he had been subjected to the
Burundian authorities on many occasions. On 6 July 2010, at the first hearing before
the investigating judge, he immediately reported the torture he had endured while in
detention at the National Intelligence Service premises (see para. 2.11 above). Given
his worrying condition and the visible signs of assault, there is no doubt that the
investigating judge was able to observe for himself that the complainant had been
tortured.
The
complainant
emphasizes
that
international
non-governmental
organizations also described his situation in their reports.
2.19 At the subsequent hearings before the Council Chamber, the complainant once
again reported the torture he had suffered. Furthermore, at the hearing of 5 July 2011
before the Bujumbura Tribunal de Grande Instance (court of major jurisdiction), his
lawyer again reported the torture to which the complainant had been subjected while
in detention at the National Intelligence Service premises. Despite the complainant’s
multiple reports to the judicial authorities, no investigation was initiated into the
events.
2.20 A few months after his release in October 2011, and despite the incessant threats
he had received since then, the complainant filed a formal complaint of torture with
the public prosecutor at Bujumbura city hall on 9 February 2012, to which he annexed
photographs taken by the observers from the United Nations Office in Burundi a few
days after his torture. In his complaint, he also described the conditions of his arrest
and the ill-treatment he received while in detention at the National Intelligence
Service premises and named some of the officers involved. However, no action has
been taken on this criminal complaint. Mr. Gahungu has never been heard and the
alleged offenders, although easily identifiable, have never been summoned. On 5 June
2012, the complainant followed up on his complaint with the public prosecutor at
Bujumbura city hall, but no action was taken then, either. He contends that, in the light
of the threats to him and the risks that he and his family are running, he cannot
reasonably be expected to initiate further proceedings with the authorities, which have
in any case proved to be unresponsive.
The complaint
3.1 The complainant claims to be the victim of violations by the State party of
articles 2 (para. 1), 11, 12, 13 and 14, read in conjunction with article 1 and,
alternatively, with article 16 of the Convention.
3.2 According to the complainant, the abuse to which he was subjected during his
transfer to and detention at the premises of the National Intelligence Service caused
him intense pain and suffering and constitutes torture 3 within the meaning of article 1
of the Convention.
__________________
3 The complainant refers to communication No. 207/2002, Dimitrijevic v. Serbia and Montenegro,
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3.3 With further reference to article 1 of the Convention, the complainant points out
that he was deprived of the right to see a doctor and to be visited by his family during
his detention. Between 1 and 6 July 2010, he was thus held incommunicado and had
no contact whatsoever with the outside world. He was kept in an unsanitary lavatory
without any care, food or water,4 was given death threats and was subjected to mock
executions. The complainant recalls that the Committee has already qualified as
methods of torture the fact of leading a person to the bank of a river and threatening to
drown him or her for refusal to confess to an offence, and of pointing a gun to his or
her head (see CAT/C/75, para. 143). In addition, the complainant was exposed to a
host of humiliating and degrading treatments and practices. There is no doubt that
these acts were perpetrated intentionally by agents of the State party, as evidenced by
the presence of senior officials of the National Intelligence Service and the Burundian
National Police during the ill-treatment, and the fact that it was they who ordered the
acts to be carried out. The purpose of those acts was to obtain information concerning
the political opposition of the Union pour la paix et le développement and the National
Liberation Forces.
3.4 The complainant also invokes article 2, paragraph 1, of the Convention, under
which the State party should have taken effective legislative, administrative, judicial
or other measures to prevent acts of torture in any territory under its jurisdiction.
However, in the present case, the complainant was deprived of contact with his family
and with a lawyer throughout the entire period of his detention at the premises of the
National Intelligence Service, which lasted 5 days. His detention took place outside
the protection of the law — a context that is particularly conducive to the practice of
torture. Moreover, during the first 12 days of his detention, he received no care, even
though he had requested it and his condition had deteriorated and clearly required
immediate medical attention. It was not until 12 July 2010 that ICRC representatives
examined him; nevertheless, the requested X-ray was not performed.
3.5 Although there is no statute of limitations under Burundian law for the
prosecution of genocide, crimes against humanity or war crimes, when the offence of
torture is committed outside these specific contexts, it is subject to a statutory
limitation ranging from 20 to 30 years, depending on the circumstances. 5 The
complainant adds that his is not an isolated case and that serious human rights
violations by police officers go largely unpunished in Burundi. According to the
complainant, since the State party has not adopted the legislative or other measures
needed to prevent torture, it has failed to meet its obligations under article 2,
paragraph 1, of the Convention.
3.6 The complainant also invokes article 11 of the Convention and notes that the
State party failed to meet its obligations in relation to the custody and treatment of
persons subjected to any form of arrest, detention or imprisonment. His detention was
unlawful: he was not informed of the charges against him; he did not have access to
legal counsel during his detention at the National Intelligence Service premises; and
he was not brought before a judge at any time during his detention. As it was
materially impossible for him to assert his rights through legal channels, he was
unable to challenge his detention or lodge a formal complaint concerning the torture to
which he had been subjected. Furthermore, he was not examined by a doctor, despite
the critical nature of his condition, nor was he given access to a lawyer. In addition, he
was detained in appalling conditions. For these reasons, the complainant concludes
__________________
decision adopted on 24 November 2004, para. 5.3.
4 The complainant refers to the Dimitrijevic v. Serbia and Montenegro decision, para. 5.3.
5 Article 146 of the Criminal Code.
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that the State party failed in its duty to properly monitor the treatment he received
during his detention at the premises of the National Intelligence Service.6
3.7 The complainant also maintains that the State party has violated article 12 of the
Convention in the present case. Under that article, the competent authorities are
required to proceed to a prompt and impartial investigation, wherever there is
reasonable ground to believe that an act of torture has been committed. 7 He recalls that
it is not necessary, for the purposes of article 12, for a formal complaint to have been
lodged. He notes that, in the case in question, the judicial authorities were amply
informed of the torture he endured (see paras. 2.18-2.20 above). However, no
effective, in-depth and impartial investigation was ever conducted. No investigative
procedures were carried out, not even to bring the complainant or the alleged
perpetrators in for questioning, despite the fact that the latter had been identified. The
complainant therefore concludes that, since a genuine, prompt and impartial
investigation into the allegations of torture to which he was subjected was not carried
out, the State party acted in violation of its obligations under article 12 of the
Convention.
3.8 With regard to article 13 of the Convention, the complainant maintains that the
State party had the obligation to guarantee his right to bring a claim before the
competent national authorities in order to have his case promptly and impartially
examined. In fact, however, despite the formal complaints that he filed (mentioned
above), no action was taken in response to his complaints. Worse still, the complainant
received death threats and was under constant surveillance by agents identified as
belonging to the National Intelligence Service. 8 He recalls that the Committee had
noted with concern the reprisals, serious acts of intimidation and threats against
human rights defenders, and had stressed the need for Burundi to take effective steps
to ensure that all persons reporting torture or ill-treatment are protected from
intimidation and from any unfavourable consequences that they might suffer as a
result of making such a report (see CAT/C/BDI/CO/1, para. 25).
3.9 The complainant also invokes article 14 of the Convention. He states that, by
depriving him of due process, the State party has also deprived him of the enforceable
right to compensation for torture. Furthermore, given the inaction of the judicial
authorities, other remedies to obtain redress, through a civil suit for damages, for
example, have no realistic prospect of success. The Burundian authorities have taken
few measures to compensate victims of torture, a point raised by the Committee in its
2006 concluding observations concerning the State party’s initial report (see
CAT/C/BDI/CO/1, para. 23). The complainant adds that he has not received any form
of rehabilitation to ensure that he recovers as fully as possible in physical, mental,
social and financial terms. The crimes committed against the complainant have gone
unpunished, given that his torturers have not been convicted, prosecuted, investigated
__________________
6 The complainant recalls that, in its concluding observations concerning the State party’s initial
report, adopted on 20 November 2006, the Committee expressed concern at the “lack of systematic
and effective monitoring of all places of detention, notably through regular unannounced visits by
national inspectors and a mechanism for legislative and judicial monitoring” (CAT/C/BDI/CO/1,
para. 19). In his initial complaint, the complainant also notes that the State party has not ratified the
Optional Protocol to the Convention, which provides for the establishment of a national mechanism
for the prevention of torture. [Since then, on 18 October 2013, the State party acceded to the
Optional Protocol.]
7 The complainant refers to communication No. 341/2008, Sahli v. Algeria, decision adopted on 3
June 2011, para. 9.6; communication No. 187/2001, Thabti v. Tunisia, decision adopted on 14
November 2003, para. 10.4; communication No. 60/1996, M’Barek v. Tunisia, decision adopted on
10 November 1999, para. 11.7; and communication No. 59/1996, Blanco Abad v. Spain, decision
adopted on 14 May 1998, para. 8.2.
8 Given that he himself is a former member of the Burundian National Police, the police officers with
whom he has kept in contact told him of a plan for his imminent execution.
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or even questioned, which reveals a violation of his right to redress under article 14 of
the Convention.
3.10 The complainant reiterates that the violent acts inflicted upon him constitute
torture, in accordance with the definition set out in article 1 of the Convention.
However, and as a subsidiary argument, even if the Committee did not agree to qualify
it as torture, the abuse endured by the victim in any case constitutes cruel, inhuman or
degrading treatment, and on that basis, the State party had the obligation, under article
16 of the Convention, to prevent and repress the commission, instigation or tolerance
of such acts by State officials. In addition, the complainant points to the conditions of
detention imposed on him from 1 to 6 July 2010, including being continuously
handcuffed in a cramped lavatory, deprived of food and forced to drink water from the
toilet, which unquestionably constitute inhuman and degrading treatment. In Mpimba
prison, where he was transferred, the complainant was also subjected to appalling
conditions of detention as a result of the overcrowding prevailing in that prison.9 The
complainant further refers to the Committee’s concluding observations relating to the
initial report of the State party, in which the Committee had considered the conditions
of detention in Burundi as amounting to inhuman and degrading treatment (see
CAT/C/BDI/CO/1, para. 17). Lastly, the complainant recalls that he did not receive
medical care during the first 12 days of his detention. The medicines needed to treat
his condition were provided by his family and the medical examinations prescribed for
him were not carried out. The complainant concludes that the State party failed to
meet its obligations under article 16 of the Convention.
State party’s observations on admissibility and the merits
4.1 On 2 December 2013, the State party submitted its observations on the
admissibility and the merits of the communication. At the outset, the State party notes
that, for several days following his discharge from the national police, the complainant
showed antisocial behaviour that led to the initiation of criminal proceedings against
him. The complainant was charged with illegal possession of firearms that threatened
the national public order. This led the police to arrest and question him, and the case
was referred to the public prosecutor for investigation.
4.2 The State party adds that, during the three hearings comprising his trial (on 7
April, 14 June and 5 July 2011), the complainant was assisted by counsel; all hearings
were conducted by means of public and adversarial proceedings; the complainant was
aware of the charges against him; and he was able to reply freely to the judge’s
questions. Given the seriousness of the charges, the judicial authorities decided to
keep the complainant in detention pending the outcome of the proceedings and denied
his request for interim release. The complainant was sentenced on 18 October 2011 to
1 year of rigorous imprisonment by the judge of the Municipality of Bujumbura.
Despite this, he chose not to appeal the decision, which consequently became final.
Since the complainant had already spent more than a year in prison prior to his
conviction, he was released on the date of the decision, namely 18 October 2011.
4.3 As for the complainant’s allegations that he was subjected to torture, the State
party indicates that the complainant lodged a complaint on 9 February 2012 and that
an investigation, registered as No. 7271/ME, was instituted by the prosecutor at
Bujumbura city hall on 26 March 2012. The complaint was admitted and was
registered in accordance with article 39 of Act No. 1/015 of 20 July 1999, which states
that “the public prosecutor shall receive complaints and reports of wrongdoing, and
shall determine what action to take in response to them, in particular, whether there
are grounds for proceeding to prosecute”. The case is still pending. It should also be
__________________
9 In 2011, more than 4,000 people were imprisoned there, even though the maximum capacity of the
facility is 800 persons.
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noted that the complainant has not complained to the national court of a lack of
promptness on the part of the public prosecutor. The complainant rushed to bring a
claim before the Committee only four months after lodging his complaint with the
public prosecution service, without waiting for the outcome of the complaint or
contacting the authorities once more. As a result, the State party submits that, since the
complainant has not exhausted domestic remedies, he has demonstrated either a lack
of willingness or ignorance of the law, or has abused the right to bring a case before an
international legal instance.
Complainant’s comments on admissibility and on the merits
5.1 On 6 February 2014, the complainant submitted his comments on the State
party’s observations. He points out, first of all, that the State party has not disputed the
validity of the steps he took to report the acts of torture inflicted on him to the
prosecuting, administrative and political authorities or those taken by non-
governmental organizations concerned with the protection of human rights. He rejects
the argument that he has not exhausted domestic remedies: referring to his initial
complaint, he notes that he sought recourse from the judicial system — albeit in vain
— on several occasions, having reported the incidents of torture to the prosecuting
authorities and to judges of various courts, including, on 6 July 2010, the investigating
judge in the case brought against him. On 9 February 2012, he also filed a formal
complaint with the public prosecutor, which was supported by photographs taken by
observers from the United Nations Office in Burundi two days after his transfer to
Mpimba prison. Since no action was taken in response to these complaints, he once
more filed a complaint on 5 June 2012. In July 2010, the arrest and torture of Mr.
Gahungu and others arrested in the same context were also reported publicly by
human rights organizations, the United Nations Independent Expert on the human
rights situation in Burundi and the United Nations Office in Burundi. The
administrative and political authorities were thus fully aware of the incidents. Yet,
more than three and a half years since they occurred, 10 they continue to go
unpunished. The complainant further argues that deficiencies in the judicial system
and risks to his physical integrity prevented him from taking other steps to assert his
rights. In addition, given that they were fully informed of the reported incidents, the
authorities had the obligation to conduct a thorough, prompt, impartial and
independent investigation into the complainant’s allegations of torture.
5.2 Concerning the torture complaint lodged by the complainant on 9 February 2012,
which is purportedly still being dealt with by the Bujumbura court of major
jurisdiction, the complainant points out that the State party has not provided any
evidence that such proceedings are in progress, by referring to either the status of the
investigation, investigative procedures or even the related documentary evidence, such
as transcripts of hearings or reports, when, in fact, it is the only one that can produce
such evidence. Furthermore, research has revealed that case file No. 7271/ME in the
investigation that was purportedly initiated actually relates to the case of another
person. Lastly, even if such a case file was still pending, it would not represent an
obstacle to the admissibility of the complainant’s communication, given the amount of
time that has elapsed since then. There is no indication that the judicial authorities
plan to undertake an effective, thorough, impartial and independent investigation. Yet,
according to article 22 of the Act of 20 July 1999 providing for the amendment of the
Code of Criminal Procedure, “the public prosecutor’s office exercises the public right
of action and ensures compliance with the law.”11 With this in mind, the seriousness of
the allegations it was called upon to examine should have prompted the public
prosecutor’s office to proceed to the initiation of criminal proceedings in respect of
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10 It has now been more than five years.
11 New Code of Criminal Procedure, art. 47.
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the torture that had been reported on numerous occasions by the complainant. In this
respect, the complainant maintains that no investigation has been undertaken into the
incidents, which occurred three and a half years ago.
5.3 To wait any longer to provide the complainant with redress would constitute a
flagrant violation of his right to an effective remedy, especially as he is exposed to the
risk of reprisals and fears for his personal safety. The complainant was informed of the
existence of a plan for his imminent execution. Despite this intimidation, the
complainant nevertheless had the courage to formally lodge a complaint on 9 February
2012 and to lodge it again on 5 June 2012. Since June 2012, the threats have
intensified to the point that he lives in permanent hiding and in constant fear of being
rearrested and executed. The persons responsible for the acts of torture in question are
senior officials in the National Intelligence Service and the Burundian National Police
and persons affiliated with the current Government who wield power and strong
pressure to prevent any proceedings being initiated against them in the national courts.
The risks to the complainant’s life and physical and mental integrity are considered to
be real and immediate.
5.4 The complainant observes that, pursuant to the Code of Criminal Procedure, the
prosecutor’s office should have opened an investigation and initiated proceedings.12
Moreover, the judges of the various courts called upon to examine the complainant’s
allegations of torture should have requested the opinion of a medical expert. 13 Also
pursuant to the Code, the Minister of Justice was empowered to order the Attorney
General or the public prosecutor to investigate and prosecute the case.
5.5 With reference to the Committee’s jurisprudence,14 the complainant recalls that,
wherever there is reasonable ground to believe that such acts have been committed,
the State must automatically initiate an investigation, regardless of the source of the
allegations. It is not necessary, for the purposes of article 12 of the Convention, for a
formal complaint, or for an express statement of intent to institute and sustain a
criminal action, to have been lodged.15 The complainant concludes that he attempted
to invoke the available domestic remedies but that they proved ineffective.
5.6 With reference once more to the Committee’s jurisprudence,16 the complainant
adds that the remedies have been unduly prolonged. Even if an investigation into the
matter had been instituted, it would not have met the requirements for promptness or
effectiveness. In any event, the more than three and a half years17 that have elapsed
since the reported incidents occurred, without any punishment having been imposed
on those responsible, clearly constitutes an unreasonable delay.
5.7 As for the State party’s arguments that his communication should be deemed
inadmissible, the complainant notes that the right to submit a communication to the
Committee is granted to all individuals whose rights under the Convention have been
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12 New Code of Criminal Procedure, art. 52.
13 New Code of Criminal Procedure, art. 346.
14 See, in particular, Sahli v. Algeria, para. 9.6; Thabti v. Tunisia, para. 10.4; M’Barek v. Tunisia, para.
11.7; Blanco Abad v. Spain, para. 8.6.
15 See communication No. 6/1990, Parot v. Spain, decision adopted on 2 May 1995, para. 10.4. See
also Blanco Abad v. Spain, para. 8.6.
16 The complainant recalls that, in the case of Sonko v. Spain, communication No. 368/2008, decision
adopted on 25 November 2011, the Committee was of the view that an investigation that had been
under way for just over 19 months and that could not be considered prompt or impartial one was
inconsistent with the State party’s obligations in that area, in particular, those set forth in article 12
of the Convention. He also recalls that, in the case of Blanco Abad v. Spain, the Committee
concluded that a period of 10 months to carry out investigative procedures shows the investigative
measures not to have satisfied the requirement for promptness in examining complaints, Blanco
Abad v. Spain, para. 8.7.
17 Now five years.
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violated, given that Burundi accepted the competence of the Committee to receive and
consider such complaints under article 22. Thus, by submitting an individual
communication to the Committee against the State of Burundi, the complainant merely
exercised his right to obtain redress, which is recognized by Burundi itself.
5.8 The complainant also reiterates all his arguments on the merits.
Issues and proceedings before the Committee
Consideration of admissibility
6.1 As required under article 22, paragraph 5 (a), of the Convention, the Committee
has ascertained that the same matter has not been, and is not being, examined under
another procedure of international investigation or settlement.
6.2 The Committee notes that the State party challenges the admissibility of the
complaint on the grounds of a failure to exhaust domestic remedies, inasmuch as a
criminal case for torture was opened as a result of the complaint lodged by the
complainant on 9 February 2012 and registered with the Bujumbura court of major
jurisdiction on 26 March 2012 under case No. 7271/ME. The Committee notes that the
State party has indicated that the proceedings are still pending, but it has provided no
other information or detail which might help the Committee to ascertain what progress
has been made and to judge how effective the investigation might be, despite the fact
that the case was brought more than three years ago and concerns events that took
place five years ago. The Committee further notes that the complainant has stated that,
upon verification, he learned that the case number mentioned by the State party relates
to another person’s case. The State party has neither denied nor responded to this
point. The Committee finds that, in the circumstances, the inaction of the competent
authorities has made it unlikely that any remedy that might provide effective
reparation can be initiated and that, in any event, the domestic proceedings have been
unreasonably lengthy. Accordingly, the Committee considers that it is not precluded
from considering the communication under article 22, paragraph 5 (b), of the
Convention.
6.3 In the absence of any obstacle to the admissibility of the complaint, the
Committee proceeds to its consideration of the merits of the claims submitted by the
complainant under articles 1, 2 (para. 1), 11, 12, 13, 14 and 16 of the Convention.
Consideration of the merits
7.1 The Committee has considered the complaint in the light of all the information
made available to it by the parties, in accordance with article 22, paragraph 4, of the
Convention.
7.2 The Committee notes that, according to the complainant, he was arrested on 1
July 2010 by officials of the National Intelligence Service without being informed of
the reasons for his arrest; that, while being taken to the National Intelligence Service
offices, he was beaten with, among other things, a rifle butt; that, when he arrived at
the National Intelligence Service offices at approximately 6 p.m., he lost
consciousness upon being struck on the head with a stone; that during an interrogation
that lasted six hours he was kicked and beaten by Intelligence Service officials and
Burundian National Police officers using clubs, rifles and belts. The officers hit the
complainant on different parts of the body, including his feet, face, shoulders and
genitals, causing bruising and bleeding. In addition, a National Intelligence Service
official cut off part of his ear lobe. The complainant was then handcuffed and locked
in a lavatory measuring 1.5m by 3m on National Intelligence Service premises, even
though he was in pain; he remained there for five days without water, food, contact
with the outside world or medical care of any kind. He was forced to drink the water
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from the toilet to avoid dehydration. The Committee notes that the treatment inflicted
on the complainant was probably aimed at forcing a confession from him, since on 6
July 2010 he was asked to sign a statement of uncertain content; he reluctantly agreed
to do so because he was completely exhausted.
7.3 Given the specific circumstances surrounding the case, on the basis of the
information at its disposal and in the absence of any refutation by the State party, the
Committee concludes that the treatment to which the complainant was subjected,
including the conditions of his detention and the denial of medical care, constitute acts
of torture, within the meaning of article 1 of the Convention.
7.4 The Committee further notes that, in addition to the abuse referred to above, the
complainant was subjected to humiliating and punitive treatment, including an attempt
to force a stone into his mouth to stifle his cries; being spat at in the face by the head
of the National Intelligence Service; and the macabre and barbaric episode when
officers tried to make him swallow a portion of his ear lobe, which had been cut off
with bicycle pliers. The Committee also notes that the complainant was deprived of
his right to visits from his family and his lawyer and his right to medical care. He was
not brought before a judge until five days after his arrest. The State party has
described only the part of the proceedings relating to the trial and the complainant’s
conviction; it has abstained from commenting on his arrest and detention in the
premises of the National Intelligence Service between 1 and 6 July 2010, during which
time he was deprived of all judicial safeguards and tortured. The Committee concludes
that these acts also constitute a violation of article 1 of the Convention.
7.5 Regarding article 16, the Committee has taken note of the complainant’s claim
that, owing to overcrowding, the conditions of detention to which he was exposed at
Mpimba prison, where he was transferred on 6 July 2010 and held for more than 15
months, were appalling. Furthermore, the complainant did not receive the medical care
his condition required. The Committee recalls its concluding observations on the State
party’s second periodic report, in which it expressed its alarm at the conditions of
detention in places of deprivation of liberty (see CAT/C/BDI/CO/2, para. 15). In the
circumstances, the Committee concludes that all the detention conditions to which the
complainant was exposed at Mbpimba prison from 6 July 2010 to 24 October 2011
constituted a separate violation of article 16 of the Convention.
7.6 The complainant also invokes article 2, paragraph 1, of the Convention, under
which the State party should have taken “effective legislative, administrative, judicial
or other measures to prevent acts of torture in any territory under its jurisdiction”. The
Committee notes that in the present case the complainant was severely beaten, then
detained without immediately being allowed to contact his family or being given
access to legal or medical assistance. It was not until 6 July 2010 that the complainant
was finally brought before a judge and informed of the charges against him. The State
party has produced no item of material evidence, such as relevant registers, capable of
refuting the complainant’s claims. Accordingly, the Committee finds a violation of
article 2, paragraph 1, read in conjunction with article 1 of the Convention.18
7.7 The Committee also notes the complainant’s argument that article 11 has been
violated, inasmuch as the State party failed to properly monitor the treatment he
received during his detention. The complainant claims, in particular, that he was not
informed of the charges against him, that he did not have access to a lawyer during his
detention at the premises of the National Intelligence Service and that he was not
brought before a judge during his detention. He further claims that, as it was
materially impossible for him to assert his rights through legal channels, he was
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18 See communication No. 514/2012, Niyonzima v. Burundi, decision adopted on 21 November 2014,
para. 8.3.
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unable to challenge his detention or lodge a formal complaint concerning the torture to
which he had been subjected. The complainant has further recalled that he was not
examined by a doctor and that he did not have access to legal counsel. Furthermore,
the conditions of his detention at the premises of the National Intelligence Service
were appalling. The Committee further reiterates its concluding observations on
Burundi, in which it expressed concern at the excessive length of time during which
people can be held in police custody; numerous instances in which the allowable
duration of police custody has been exceeded; failures to keep registers on persons in
custody or failures to ensure that such records are complete; failures to comply with
fundamental legal safeguards for persons deprived of their liberty; the absence of
provisions that guarantee access to a doctor and access to legal assistance for persons
of limited means; and the excessive use of pretrial detention in the absence of regular
reviews of its legality and of any limit on its total duration (CAT/C/BDI/CO/2, para.
10). In the present case, the complainant appears to have been held outside the judicial
system before being brought before a judge 5 days after his arrest; during his detention
at the premises of the National Intelligence Service, he was denied medical assistance
despite his worrying condition. Furthermore, he had no access to a lawyer or to his
family. In the absence of any compelling evidence from the State party indicating that
the complainant’s detention was indeed subject to its supervision, the Committee finds
a violation of article 11 of the Convention by the State party.
7.8 With regard to articles 12 and 13 of the Convention, the Committee has taken
note of the complainant’s claims that no investigation has been opened to ascertain the
facts of the case despite the many steps taken to report the torture inflicted on him and
the formal complaint lodged with the public prosecutor on 9 February 2012, supported
by photographs showing the marks of torture on his body. The complainant lodged the
complaint again on 5 June 2012 but has received no response. The State party contests
the referral of the case to the Committee by the complainant on the grounds that the
latter has filed a complaint with the authorities, but it has provided no evidence which
might help the Committee to ascertain what progress has been made, to judge how
effective the procedure might be or to explain the reasons for such a delay. The
Committee considers that so long a delay in initiating an investigation into allegations
of torture is patently unjustified and clearly breaches the State party’s obligations
under article 12 of the Convention, which requires it to proceed to a prompt and
impartial investigation wherever there is reasonable ground to believe that an act of
torture has been committed. By failing to meet this obligation, the State party has also
failed to fulfil its responsibility under article 13 of the Convention to guarantee the
right of the complainant to lodge a complaint, which presupposes that the authorities
provide a satisfactory response to such a complaint by launching a prompt and
impartial investigation.19
7.9. With regard to article 14 of the Convention, the Committee has taken note of the
complainant’s allegations that he has not benefited from any form of rehabilitation
designed to ensure that he recovers as fully as possible in physical, mental, social and
financial terms. The Committee recalls that article 14 not only recognizes the right to
fair and adequate compensation but also requires States parties to ensure that the
victim of an act of torture obtains redress. The Committee refers to its general
comment No. 3 (2012) on the implementation of article 14 by States parties, in which
it establishes that States parties should ensure that victims of torture or ill-treatment
obtain full and effective redress and reparation, including compensation and the means
for as full rehabilitation as possible. Redress should cover all the harm suffered by the
victim and encompass, among other measures, restitution, compensation and
guarantees of non-repetition of the violations, taking into account the circumstances of
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19 Communications Nos. 376/2009, Bendib v. Algeria, decision adopted on 8 November 2013, para.
6.6 and 503/2012, Ntikarahera v. Burundi, decision adopted on 12 May 2014, para. 6.4.
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the individual case.20 Given that no prompt and impartial investigation was undertaken
despite the complainant’s numerous claims that he was tortured, which were
corroborated by several pieces of evidence that have not been refuted by the State
party, the Committee concludes that the latter has breached its obligations under
article 14 of the Convention.
8.
The Committee, acting under article 22, paragraph 7, of the Convention, is of the
view that the facts before it reveal a violation of articles 1 and 2 (para. 1), read in
conjunction with article 1, and articles 11, 12, 13, 14 and 16 of the Convention.
9.
Pursuant to rule 118, paragraph 5, of its rules of procedure, the Committee urges
the State party to: (a) conduct an impartial investigation into the incidents in question,
with a view to bringing to justice those responsible for the complainant’s treatment;
(b) grant the complainant appropriate reparation, including measures of compensation
for the material and psychological harm caused, restitution, rehabilitation, satisfaction
and guarantees of non-repetition; (c) take all necessary steps to prevent any threats or
acts of violence to which the complainant or his family might be exposed, in particular
as a result of having lodged the present complaint; and (d) inform the Committee,
within 90 days from the date of the transmittal of this decision, of the steps it has
taken in response to the views expressed above, including compensation for the
complainant.
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20 See Bendib v. Algeria, para. 6.7 and Sahli v. Algeria, para. 9.7.