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CAT/C/83/D/1146/2022

Amédée Niyonkuru v. Burundi

UNO-Ausschuss gegen Folter (CAT) · 2025-11-14 · en UN

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)

GE.25-20729 (E) 160226 160226

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1146/2022*, **, ***

Communication submitted by:

Amédée Niyonkuru (represented by counsels Armel

Niyongere, Jean Claude Ntiburumunsi and Divine

Ntiranyuhura)

Alleged victim:

The complainant

State Party:

Burundi

Date of complaint:

10 August 2021 (initial submission)

Document references:

Decision taken pursuant to rule 115 of the Committee’s

rules of procedure, transmitted to the State Party on

18 August 2022 (not issued in document form)

Date of adoption of decision:

14 November 2025

Subject matter:

Torture and other cruel, inhuman or degrading treatment

or punishment; lack of effective investigation and

redress

Procedural issue:

Exhaustion of domestic remedies

Substantive issues:

Torture; cruel, inhuman or degrading treatment or

punishment; prevention of torture; prompt and impartial

investigation; treatment of prisoners; redress

Articles of the Convention:

2 (1) and 11–14, read in conjunction with articles 1 and

16, and 16

1.

The complainant is Amédée Niyonkuru, a national of Burundi born in 1982. He claims

that the State Party has violated his rights under articles 2 (1) and 11–14 of the Convention,

read in conjunction with article 1 or, in the alternative, with article 16, and under article 16

of the Convention, read alone. The State Party has made the declaration pursuant to

article 22 (1) of the Convention, effective from 10 June 2003. The complainant is represented

by counsel.

Facts as submitted by the complainant

2.1

The complainant was a member of the Burundi National Defence Force, usually

resident at Ngozi camp, also known as the 312th commando battalion. On the evening of

* Adopted by the Committee at its eighty-third session (10-28 November 2025).

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

Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen, Maeda

Naoko, Ana Racu, Abderrazak Rouwane and Bakhtiyar Tuzmukhamedov.

*** An individual opinion by Committee member Liu Huawen (dissenting) is annexed to the present

decision.

United Nations

CAT/C/83/D/1146/2022

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

19 January 2026

English

Original: French

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24 January 2017, the camp commander questioned him about the attack on Mukoni camp,

which had taken place in another province (Muyinga Province). The complainant replied that

he knew nothing about it, and the commandant locked him in a cell at the camp pending an

investigation. The following day, on 25 January 2017, the complainant was questioned again

by officers of the 310th brigade and by the commander. He was asked specifically about the

nature of his relationship with a general whom he did not even know.

2.2

The complainant was taken that same day to Mukoni camp, where he was met by the

provincial head of the National Intelligence Service. Upon his arrival, police officers took

him to an unknown location in a house. The complainant was asked to identify a person who

was sitting on the ground, covered in wounds. The complainant did not recognize the person.

The police officers started to beat him and forced him to tell them how the attack had been

prepared. The complainant was beaten until his body no longer felt any pain. He had injuries

to his head1 and legs.2 Two other people, accused of participating in the preparation of the

attack in Mukoni, were also beaten. During these beatings, the complainant was subjected to

insults and death threats by the authorities. He was then taken to a cell at the premises of the

National Intelligence Service.

2.3

The next morning, on 26 January 2017, the provincial head of the National

Intelligence Service took the complainant and the two other individuals to the prosecutor’s

office. He went with the complainant to see the prosecutor, whom he told not to make any

changes to the statement that had already been written, and then forced the complainant to

sign it, without giving him the opportunity to consult a lawyer. This was how the complainant

learned that he and the two other victims were being accused of attempted robbery and illegal

possession of firearms. The complainant was then taken to prison, and half an hour later was

taken back to the Muyinga High Court, where he was convicted of these charges and

sentenced to 30 years’ imprisonment.3

2.4

The complainant appealed against this conviction the following day, on 27 January

2017. He was again placed in prison. On 26 December 2017, the nature of the charges brought

against him by the Court of Appeal changed, and he was charged with having committed a

coup d’état. That charge had never been mentioned during the previous proceedings. He was

sentenced to 30 years’ imprisonment. On 8 December 2018, the complainant filed an appeal

in cassation. The appeal is still pending.

Complaint

3.1

The complainant claims that the State Party has violated his rights under articles 2 (1)

and 11–14 of the Convention, read in conjunction with article 1 or, in the alternative, with

article 16, and under article 16 of the Convention, read alone.

3.2

The complainant states that, in view of the danger that he and his family would face

if he attempted to take any action before the domestic courts, and in view of the situation of

serious human rights violations in Burundi and the objective ineffectiveness of domestic

remedies, such remedies appear to be unavailable. Given the identity of the perpetrators –

agents of the National Intelligence Service – it would be particularly dangerous for the

complainant to initiate any steps to establish the responsibility of State agents who enjoy total

impunity. The complainant refers to the Committee’s concerns about the impunity that the

perpetrators of violations appear to have enjoyed in Burundi since the political crisis began

in April 2015, which presents an additional barrier to the bringing of legal actions by the

victims and their families. 4 Furthermore, according to the complainant, the ongoing

violations and climate of impunity in Burundi 5 after the establishment of a legal and

institutional framework to ensure the safety of victims and witnesses in 2016 clearly

1 Elsewhere in his communication, the complainant states that his teeth were knocked out, but he does

not specify when this happened.

2 In another part of his communication, the complainant states that the police officers continued their

journey and stopped in a forest, where they hung him from a tree by his feet, handcuffed him and beat

him on the head and legs until he lost consciousness.

3 No details or documents provided.

4 CAT/C/BDI/CO/2/Add.1, para. 26. See also A/HRC/39/CRP.1, para. 569.

5 A/HRC/36/54 and Corr.1, para. 13.

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demonstrate that the adoption of this new legal framework has had no tangible impact on the

situation of victims and their protection. Lastly, given the failings of the judicial system and

the persistent climate of abuse and impunity,6 it would be futile for the complainant to pursue

any remedy.

3.3

According to the complainant, the abuse to which he was subjected caused him acute

physical and psychological pain and suffering. These acts of torture, which were intentionally

inflicted on him by personnel of the National Police Force and the National Intelligence

Service, were intended to extract information from him about the preparation of the attack on

Mukoni camp. In addition, he was denied access to medical care. The complainant states that

this abuse amounted to torture within the meaning of article 1 of the Convention.

3.4

The complainant, invoking article 2 (1) of the Convention, claims that the State Party

has not taken effective measures to prevent acts of torture in the territory under its

jurisdiction. During his questioning at the National Intelligence Service, the complainant was

not assisted by a lawyer.

3.5

Invoking article 11 of the Convention and referring to the United Nations Standard

Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,

the complainant argues that the State Party has clearly failed in its obligation to keep under

systematic review interrogation rules, instructions, methods and practices, as well as

arrangements for the custody and treatment of persons subjected to any form of arrest,

detention or imprisonment. Among other things, this failure is reflected in the fact that,

throughout his detention, the complainant was not able to exercise his right to receive visits;

he did not benefit from the assistance of a lawyer during his interrogation; and, as for his

state of health, he received only simple healthcare from inside the prison, which did not allow

him to recover.

3.6

With regard to article 14 of the Convention, the complainant considers that, by failing

to conduct a criminal investigation, the State Party has deprived him of his right to obtain

redress and his right to fair and adequate compensation. In this regard, following the torture

to which he was subjected, he did not receive rehabilitation services of any kind or the means

for as full rehabilitation as possible, as provided for under article 14 of the Convention. In

view of the inaction of the judicial authorities, other remedies to obtain redress, such as a

civil suit for damages, have no realistic prospect of success. In 2014, the Committee

specifically expressed its concern about the failure to apply the provision of the Code of

Criminal Procedure providing for compensation for victims of torture, in violation of

article 14 of the Convention.7 In 2016, it reiterated its concerns about the need to guarantee

adequate compensation in accordance with article 14.8

3.7

The complainant reiterates that the violent acts inflicted on him constitute torture, as

defined in article 1 of the Convention. Should the Committee not agree to qualify it as such,

he maintains that the abuse he endured constitutes cruel, inhuman or degrading treatment and

that, on this basis, the State Party also has an obligation, under article 16 of the Convention,

to prevent public officials from committing, instigating or tolerating such acts and to punish

them if they do.

State Party’s observations on admissibility and the merits

4.1

On 2 December 2024, the State Party submitted its observations. It argues that the

Committee should reject the communication under article 22 (5) (b) of the Convention, since

the complainant has made no attempt to bring the matter before a domestic judicial body.

The State Party explains that it has laws, judicial institutions and non-judicial mechanisms

for the protection of human rights in general and the guarantee of fair trials in particular. Its

legislation offers cast-iron guarantees for the legal security of its legal subjects in the event

of human rights violations.

6 A/HRC/39/CRP.1, para. 576.

7 CAT/C/BDI/CO/2, para. 18.

8 CAT/C/BDI/CO/2/Add.1, para. 27 (d).

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4.2

On the merits, the State Party considers that the communication is merely a

continuation of the complainant’s allegations, without any supporting evidence. In the State

Party’s view, the fact that the complainant was unable to produce any evidence of the torture

he alleges to have suffered shows that he was not subjected to any acts of torture. Moreover,

while these are nothing more than scandalous, frivolous and vexing accusations, the State

Party wonders how wrongdoing alleged to have been committed in 2017 can be brought

before the Committee in 2022, without any prior attempt to bring it before domestic judicial

institutions.

4.3

The State Party draws attention to the assertion made by the complainant in his

communication that he was beaten in a house in Muyinga and in a forest. It deplores these

false statements, which are not supported by any evidence, because a single person cannot

have been beaten in two different locations at the same time.

4.4

As to the complainant’s allegation that he was not assisted by legal counsel, the State

Party points out that all of the persons accused of the attacks on Mukoni military camp were

assisted by a lawyer.9 With regard to the complainant’s allegations that he was not provided

with medical treatment, the State Party regrets the lack of evidence of this allegation to enable

it to defend itself against it objectively.

4.5

The State Party observes that, in his communication, the complainant claims to have

had his teeth knocked out, without providing any evidence to support his allegations. As

anyone can see, he is not missing any teeth, but he is suffering from tooth decay,10 a problem

that cannot be blamed on anyone.

4.6

With regard to the allegations of a violation of article 11 of the Convention, the State

Party notes that, in addition to the National Independent Human Rights Commission, which

plays a very important role in monitoring the conditions of prisoners, there is a prison

monitoring mechanism attached to the Ministry of Justice that is tasked exclusively with

monitoring and inspecting places of detention. The complainant’s argument is therefore

completely unfounded.

4.7

In conclusion, the State Party maintains that the complainant is being held for offences

he committed and for which he has been sentenced to 30 years’ imprisonment. His allegations

of violations of the Convention are unsubstantiated and therefore unfounded.

Complainant’s comments on the State Party’s observations

5.1

On 31 August 2025, the complainant submitted his comments on the State Party’s

observations. He restated his arguments relating to the inaccessibility of domestic remedies,

the risks inherent in taking action before the Burundian courts and the fact that the judicial

outcome would probably not be satisfactory for the victim.

5.2

On the merits, in response to the State Party’s argument concerning the lack of

evidence, the complainant recalls that the physical traces of the beatings he sustained remain

visible on his body, attesting to the inhuman treatment and abuse he suffered. These

after-effects in themselves constitute irrefutable material evidence of the torture and

degrading treatment he endured. However, it should be noted that the complainant is

currently still in detention in a Burundian prison. In these circumstances, it is virtually

impossible, not to say entirely unfeasible, to collect and produce photographs or other visual

evidence that may be required. The State Party’s argument concerning the lack of evidence

is therefore based on obvious bad faith, since it is itself responsible for the fact that it is not

possible to have access to the victims and to evidence.

5.3

Furthermore, it should be brought to the Committee’s attention that the complainant

has been subjected to explicit threats from prison officials in retaliation for referring the

matter to the Committee. These threats, which are part of a pattern of intimidation and

deterrence, illustrate not only the vulnerability of the complainant, but also the climate of

impunity in which such violations are committed and perpetuated. These actions constitute a

serious obstacle to the exercise of the right to lodge individual complaints with the

9 The State Party provides the lawyer’s name.

10 The State Party refers to an enclosed photo, but no photo has been enclosed.

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Committee. The complainant therefore requests the Committee to order protective measures

to ensure his effective protection against any reprisals or threats within the prison.

5.4

As far as medical evidence is concerned, the complainant explains that he has never

received regular medical care enabling him to document his state of health and the

after-effects of the abuse he suffered. Currently, due to his arbitrary detention and lack of

freedom of movement, it is materially impossible for him to seek an independent expert

opinion or to be examined by an impartial doctor. It should also be emphasized that, in the

Burundian context, no doctor practising in the country would be able to issue a medical

certificate attesting to acts of torture. Doing so would endanger both the doctor and the

complainant, given the climate of widespread intimidation. The perpetrators of the acts of

torture are members of the National Intelligence Service, an institution directly under the

authority of the Office of the President, who enjoy political protection and institutional

impunity. Thus, the absence of a medical certificate can in no way be interpreted as an

absence of torture. On the contrary, it is a direct consequence of the repressive environment

and the authorities’ deliberate efforts to make independent expert opinions inaccessible.

5.5

Furthermore, it is recognized by the established jurisprudence of United Nations

bodies that, in contexts of systematic repression, the burden of proof cannot be unduly placed

on the victim, especially when he or she is in detention and entirely dependent on the

respondent State for any access to healthcare. In such situations, it is for the State, in

accordance with its international obligations, to demonstrate that it has taken all necessary

measures to prevent and punish torture and to ensure that prisoners receive regular medical

attention. The lack of a medical report in the complainant’s case does not therefore reflect a

weakness in his case, but rather further proof of the seriousness of the human rights situation

in Burundi and the total absence of safeguards for victims of torture.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any complaint submitted in a communication, the Committee must

decide whether it is admissible under article 22 of the Convention. The Committee has

ascertained, as it is required to do under article 22 (5) (a) of the Convention, 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 contested the admissibility of the complaint

on the grounds of non-exhaustion of domestic remedies, as the complainant had not attempted

to formally raise the allegations of torture with the competent authorities. However, the

Committee notes the complainant’s argument that it would have been dangerous for him to

take any steps, as the perpetrators of the acts of torture were police officers and agents of the

National Intelligence Service operating under the Office of the President of the Republic.

6.3

The Committee recalls that article 22 (5) (b) of the Convention provides for two

exceptions to the rule governing the exhaustion of domestic remedies; the relevant exception

in the present case is that this shall not be the rule where the application of the remedies is

unlikely to bring effective relief to the person who is the victim of the violation of the

Convention. In this regard, the Committee recalls that, during its consideration of the State

Party’s third periodic report in 2023, it noted with concern that there was still no specific,

independent and confidential mechanism for the receipt of complaints of torture or

ill-treatment and that existing investigation bodies lacked the necessary independence, as

they belong to the same structure that employs the alleged perpetrators.11 The Committee

notes with concern that while it had taken note of the “many consistent, ongoing

allegations”12 of torture and ill-treatment, according to the State Party’s statistics, cited in

another case examined by the Committee, only one case went to trial in 2020, one in 2021,

none in 2022 and two in 2023.13 Furthermore, in its previous decisions concerning individual

11 CAT/C/BDI/CO/3, para. 10.

12 Ibid.

13 E.N. v. Burundi (CAT/C/82/D/1105/2021), para. 7.2 and footnote 14.

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communications against the State Party, the Committee has already highlighted major

shortcomings in the procedure for providing complainants with an effective remedy.14

6.4

Given the limited information provided by the State Party in this regard and the

particular situation in which the complainant found himself, the Committee considers that it

has not been established that existing remedies for reporting acts of torture were, in practice,

made available to the complainant to enable him to assert his rights under the Convention.15

6.5

The Committee also notes the State Party’s assertion concerning the lack of evidence

submitted by the complainant to substantiate his allegations of torture. The Committee recalls

that, in its general comment No. 4 (2017), it clarified that when complainants are in a situation

where they have no possibility of obtaining documentation relating to their allegation of

torture or have been deprived of liberty, the burden of proof is reversed and it falls to the

State concerned to investigate the allegations.16 However, the Committee notes that the State

Party has not presented any arguments or evidence to demonstrate that the complainant has

the opportunity to produce evidence. In this regard, the Committee notes that the State Party

has not mentioned whether the complainant underwent a medical examination upon his

admission to prison or what his state of health was when he was arrested. Consequently, the

Committee cannot accept the State Party’s argument.

6.6

In the absence of any other obstacle to the admissibility of the communication, the

Committee proceeds with its consideration of the merits of the claims submitted by the

complainant under articles 2 (1), 11–14 and 16 of the Convention.

Consideration of the merits

7.1

The Committee has considered the communication in the light of all the information

made available to it by the parties, in accordance with article 22 (4) of the Convention. As

the State Party has not provided any detailed information on the merits, due weight must be

given to the complainant’s allegations, which have been properly substantiated.17

7.2

The Committee notes the complainant’s allegation that he was severely beaten on the

head and legs. The Committee also notes that the complainant was made to continue suffering

as a result of the lack of appropriate care. The Committee further notes that, during his

detention at the premises of the National Intelligence Service, the complainant had no access

either to a lawyer or to his family. The Committee recalls its jurisprudence, according to

which any persons deprived of their liberty must be provided with prompt and independent

legal and medical assistance and must be able to contact their families, in order to prevent

torture. 18 The Committee likewise takes note of the complainant’s allegations that the

beatings and death threats to which he was subjected by the authorities caused him severe

suffering, including emotional and psychological suffering, and that the beatings were

deliberately inflicted by State officials to extract confessions from him. It also notes that the

State Party has contested this version of events, although it has not produced any evidence.

The Committee recalls that it clarified in its general comment No. 4 (2017) that when

complainants are in a situation where they have no possibility of obtaining documentation

relating to their allegation of torture or have been deprived of their liberty, the burden of

proof is reversed and the State Party concerned must investigate the allegations.19 In these

14 For example, Nshimirimana v. Burundi (CAT/C/79/D/1039/2020), paras. 6.3 and 6.4; Ndarisigaranye

v. Burundi (CAT/C/62/D/493/2012 and CAT/C/62/D/493/2012/Corr.1), para. 6.3; C.N. v. Burundi

(CAT/C/60/D/579/2013), para. 6.3; Kabura v. Burundi (CAT/C/59/D/549/2013), para. 6.2; E.N. v.

Burundi (CAT/C/56/D/578/2013), para. 6.2; Ntahiraja v. Burundi (CAT/C/55/D/575/2013), para. 6.3;

and Niyonzima v. Burundi (CAT/C/53/D/514/2012), para. 7.2.

15 Nshimirimana v. Burundi, para. 6.4.

16 Committee against Torture, general comment No. 4 (2017), para. 38.

17 See, inter alia, N.N. v. Burundi (CAT/C/74/D/795/2017), para. 6.1.

18 Committee against Torture, general comment No. 2 (2007), para. 13.

19 Committee against Torture, general comment No. 4 (2017), para. 38.

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circumstances, the Committee concludes that the facts as presented by the complainant

constitute torture within the meaning of article 1 of the Convention.20

7.3

The Committee notes the complainant’s claim that, if they cannot be classed as acts

of torture, the acts and treatment to which he was subjected constitute cruel, inhuman or

degrading treatment or punishment in accordance with article 16 of the Convention. The

Committee considers that these claims, which were not contested by the State Party, relate to

facts that constitute torture within the meaning of article 1 of the Convention. Accordingly,

the Committee does not consider it necessary to examine the claims under article 16

separately.21

7.4

The Committee takes note of the complainant’s claims based on article 2 (1) of the

Convention and recalls its conclusions and recommendations in respect of the reports

submitted by the State Party under article 19 of the Convention, in which it urged it to take

effective legislative, administrative and judicial measures to prevent all acts of torture and all

ill-treatment and to take steps, as a matter of urgency, to bring all places of detention under

judicial control and to prevent its officials from making arbitrary arrests and engaging in

torture.22 In the present case, the Committee notes the complainant’s allegations regarding

the treatment inflicted upon him by State agents during his detention at the National

Intelligence Service, throughout which time he was unable to contact his family or have

access to legal counsel or a doctor. The Committee also notes that the State Party did not take

any measures to protect the complainant. Lastly, the State authorities have not taken any steps

to investigate the acts of torture suffered by the complainant and impose the appropriate

punishment, even on the assumption that the State Party first became aware of the

complainant’s allegations at the time of the transmission of the present communication on

18 August 2022. 23 In the light of the foregoing, the Committee finds a violation of

article 2 (1), read in conjunction with article 1, of the Convention.24

7.5

The Committee also notes the complainant’s argument that article 11 of the

Convention – which calls on States Parties to keep under systematic review arrangements for

the custody and treatment of persons subjected to any form of arrest, detention or

imprisonment in any territory under its jurisdiction, with a view to preventing any cases of

torture – was violated. The complainant argues, in particular, that: (a) despite his condition,

he did not receive appropriate medical care; (b) he did not have access to a lawyer during his

questioning by police officers and members of the National Intelligence Service or during his

first appearance before the public prosecutor; (c) he was arrested without being informed of

the charges against him; and (d) he did not have access to effective remedies to report the

acts of torture. The Committee recalls its concluding observations regarding the second

periodic report of Burundi, adopted in 2014, and those regarding the third periodic report of

Burundi, adopted in 2023, in which it expressed concern at the excessive length of time

during which people can be held in police custody, the numerous instances in which the

permissible duration of police custody has been exceeded, failures to keep registers on

persons in custody or 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.25 In the present case, the complainant appears to have been

deprived of any form of judicial oversight. In the absence of any relevant information to the

contrary from the State Party, the existence of such deplorable conditions and treatment is

20 Ndagijimana v. Burundi (CAT/C/62/D/496/2012 and CAT/C/62/D/496/2012/Corr.1), para. 8.2;

Ndarisigaranye v. Burundi, para. 8.2; Kabura v. Burundi, para. 7.2; and Niyonzima v. Burundi,

para. 8.2.

21 Ramírez Martínez et al. v. Mexico (CAT/C/55/D/500/2012), para. 17.4, and Ndayirukiye c. Burundi

(CAT/C/73/D/952/2019), para. 8.3.

22 CAT/C/BDI/CO/3, para. 10, and CAT/C/BDI/CO/2, para. 8 et seq. See also CAT/C/BDI/CO/3,

para. 21.

23 Nkunzimana v. Burundi, para. 7.3, and E.N. v. Burundi (CAT/C/82/D/1105/2021), para. 9.4.

24 Ndagijimana v. Burundi, para. 8.3; Ndarisigaranye v. Burundi, para. 8.3; Niyonzima v. Burundi,

para. 8.4; and E.N. v. Burundi (CAT/C/56/D/578/2013), para. 7.5.

25 CAT/C/BDI/CO/2, para. 10, and CAT/C/BDI/CO/3, para. 24.

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sufficient to establish that the State Party failed to fulfil its obligation to keep under

systematic review arrangements for the custody and treatment of persons subjected to any

form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view

to preventing any cases of torture, and that this violation resulted in harm to the complainant.

The Committee therefore finds a violation of article 11 of the Convention.26

7.6

With regard to article 12 of the Convention, the Committee takes note of the

complainant’s allegations that, on 25 January 2017, he was tortured by police officers and

members of the National Intelligence Service. Even supposing that the State Party became

aware of these events only when the present communication was transmitted to it on

18 August 2022, there has been no investigation almost nine years after the events and more

than three years after the transmission of the communication. The Committee considers that

so long a delay in initiating an investigation into allegations of torture is patently unjustified.27

In this regard, it draws attention to the State Party’s obligation under article 12 of the

Convention to ensure that a prompt and impartial investigation is carried out wherever there

is reasonable ground to believe that an act of torture has been committed. Accordingly, the

Committee finds a violation of article 12 of the Convention.

7.7

In the same way, the State Party failed to meet its obligation, under article 13 of the

Convention, to uphold the complainant’s right to complain to, and to have his case promptly

and impartially examined by, its competent authorities.28 The Committee therefore also finds

a violation of article 13 of the Convention.

7.8

Regarding the complainant’s claims under article 14 of the Convention, the

Committee recalls that this article 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 recalls that redress should cover all the harm suffered by the

victim and encompasses, among other measures, restitution, compensation and guarantees of

non-repetition of the violations, taking into account the circumstances of each case.29 In the

present case, in the absence of a prompt and impartial investigation, despite material evidence

that the complainant was the victim of acts of torture, which have gone unpunished, the

Committee concludes that the State Party has also failed to fulfil its obligations under

article 14 of the Convention.30

8.

The Committee, acting under article 22 (7) of the Convention, concludes that the facts

before it reveal a violation by the State Party of articles 2 (1) and 11–14, read in conjunction

with article 1 of the Convention.

9.

The Committee urges the State Party to (a) initiate a thorough and impartial

investigation into the incidents in question, conducted by an independent body, with

reference also to the guidelines of the Manual on the Effective Investigation and

Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(Istanbul Protocol), as revised, in order to prosecute and punish those responsible for the

complainant’s treatment; (b) provide the complainant with appropriate redress, including

compensation for material and non-material damages, restitution, rehabilitation, satisfaction

and guarantees of non-repetition; (c) refrain from any form of pressure, intimidation or

reprisals against the complainant and his family, which would otherwise constitute a violation

of the State Party’s obligations under the Convention to cooperate with the Committee in

good faith in the implementation of the provisions of the Convention; and (d) ensure that no

similar violations occur in the future.

10.

Pursuant to rule 118 (5) of its rules of procedure, the Committee invites the State Party

to inform it, within 90 days of the date of transmittal of the present decision, of the steps it

has taken to respond to the above observations.

26 E.N. v. Burundi (CAT/C/56/D/578/2013), para. 7.6.

27 E.N. v. Burundi (CAT/C/82/D/1105/2021), para. 9.5.

28 Niyonzima v. Burundi, para. 8.5.

29 Ibid, para. 8.6. See also Ntikarahera v. Burundi, (CAT/C/52/D/503/2012), para. 6.5.

30 Ndarisigaranye v. Burundi (CAT/C/82/D/1105/2021), para. 8.7, and E.N. v. Burundi, para. 9.6.

CAT/C/83/D/1146/2022

GE.25-20729

9

Annex

[Original: English]

Individual opinion of Committee member Liu Huawen

(dissenting)

1.

I regret that I cannot concur with the majority opinion of the Committee regarding the

admissibility of the present communication, in particular concerning two key elements: the

relaxation of the requirement to provide prima facie evidence of torture and the presumption of

the ineffectiveness of domestic remedies. In my view, these conclusions do not meet the

procedural requirements set forth in article 22 of the Convention. Therefore, I believe the

communication should have been declared inadmissible.

2.

First, the burden of proof regarding allegations of torture generally rests with the

complainant. Under article 22 (5) (b) of the Convention, a communication must not be manifestly

ill-founded, requiring the complainant to provide prima facie evidence indicating that the torture

allegations have a factual basis. In the present case, the complainant failed to furnish such prima

facie evidence. While the Committee’s majority opinion shifted the burden of proof to the State

Party, the complainant did not provide the minimum level of substantiation required to trigger

such a reversal of the burden of proof. In its general comment No. 4 (2017) on the

implementation of article 3 in the context of article 22, the Committee identified the exceptional

circumstances in which the burden of proof may shift. It indicated that, when complainants have

no possibility of obtaining documentation relating to their allegation of torture or have been

deprived of their liberty, the burden of proof is reversed.1 Therefore, the decisive factor for

shifting the burden of proof is that the complainants must demonstrate their inability to provide

relevant evidence.

3.

In assessing whether to shift the burden of proof, the Committee did not require the

complainant to provide any factual elements or evidence to demonstrate his alleged inability

to obtain preliminary evidence. The complainant asserted that he remained detained in prison

in Burundi and, on that basis, argued that it was impossible for him to obtain or provide

corroborating evidence (see para. 5.2 of the Committee’s decision). However, this claim is

difficult to reconcile with the fact that he was able to submit an individual communication to

the Committee. The ability to lodge a complaint and maintain correspondence with the

Committee typically indicates that the complainant can at least communicate with the outside

world, either directly or through family members or representatives, and is therefore not in a

situation where he is unable to provide any evidence. Consequently, I consider that the

complainant has not provided a reasonable justification for his alleged inability to

substantiate his torture allegations.

4.

Second, the inference that domestic remedies are ineffective is not sufficiently

founded. The complainant’s criminal proceedings remain pending, constituting a classic case

of domestic remedies not having been exhausted. The complainant claims that he filed an

appeal with the Supreme Court in December 2018, which is still pending (see para. 2.4 of the

Committee’s decision). For about two years, he did not raise the issue of torture with the

domestic authorities. His explanation was that domestic remedies were difficult to access,

filing lawsuits or complaints carried certain risks and the outcomes might not be satisfactory

(see para. 5.1). This reasoning fails to explain why submitting a communication to the

Committee would not entail risk or would pose a lesser risk. The vague assertions are

insufficient to exempt him from his obligation to exhaust all available and effective domestic

remedies under article 22 (5) (b) of the Convention.

5.

Meanwhile, the complainant’s criminal proceedings remain at the appellate stage,

affording him ample opportunity to raise any allegation of torture within the ongoing

litigation. The State Party’s judicial authorities retain the possibility of reviewing whether he

was subjected to torture. In such circumstances, the Committee’s consideration of the

1 General comment No. 4 (2017), para. 38.

CAT/C/83/D/1146/2022

10

GE.25-20729

communication effectively supplants the ongoing domestic review process, thereby violating

the fundamental procedural principle of exhausting domestic remedies, as stipulated in

article 22 of the Convention.

6.

With regard to the effectiveness of domestic remedies, the majority’s opinion unduly

expands the scope of the exceptions under article 22 (5) (b) of the Convention. Article 22 (5) (b)

of the Convention provides that the requirement to exhaust domestic remedies may be waived

only in cases where effective remedies are not available to the victim of a violation of the

Convention. This provision is, by its nature, an exception that must be applied on a case-by-case

basis. It requires a specific assessment of the availability and effectiveness of domestic remedies

in the particular circumstances of the individual case and cannot be inferred solely from the

general human rights situation in the State Party or from general conclusions reached by the

Committee in the context of the State Party’s periodic reporting.

7.

The majority opinion cited the concluding observations of the Committee on the third

periodic report of the State Party,2 adopted in 2023, as well as the Committee’s phrasing

regarding Burundi in its decisions on several individual cases. It determined that Burundi

exhibited significant deficiencies in the procedures for providing effective remedies and,

consequently, concluded that domestic remedies were unavailable in the present case. However,

the concluding observations are intended to reflect the overall human rights situation in a

country at a given stage, aiming to urge States Parties to fulfil their obligations. Directly using

such general assessments as evidence that domestic remedies need not be exhausted in

individual cases is incorrect and constitutes an excessive extension of their probative value in

case adjudication.

8.

Moreover, the Committee’s assessment of Burundi from 2023 is time-bound and does

not constitute an immutable, permanent judgment on a country. One purpose of international

monitoring mechanisms, including the treaty body reporting procedure, is to identify and urge

countries to correct deficiencies. Treating past general assessments as a permanent declaration

that all judicial or human rights remedies in the State Party are unavailable in all cases risks a

rigid and erroneous understanding of the supervisory function and is more likely to deprive the

national authorities of a genuine opportunity to provide remedy through domestic channels.

9.

It is noteworthy that during the 2023 review, some Committee members mentioned that

the National Human Rights Commission of Burundi had been granted A status internationally,3

indicating that the country’s legal and policy frameworks, as well as institutional

improvements, were not entirely without merit.

10.

Lastly, I wish to note that, in several individual communications concerning Burundi,

the Committee has employed similar language to find communications admissible,4 which

appears to have become a common practice. This approach carries certain risks. The Committee

is not a court of common law, and its prior decisions do not automatically confer legal authority

on subsequent determinations. While such cases may serve as references, I would encourage

the Committee to give due consideration to recent developments in the State Party’s rule of law

and human rights framework and to enhance recognition and trust in the State Party’s judicial

capacity.

11.

In summary, the complainant should have personally substantiated his allegations of

torture to establish the existence of a dispute, he should have first exhausted domestic remedies

to protect the rights guaranteed by the Convention, and it was inappropriate to bring a case

before the Committee while his appeal remained pending. Therefore, in my view, the

communication failed to meet the admissibility requirements under article 22 of the Convention

and should have been declared inadmissible.

2 CAT/C/BDI/CO/3.

3 See www.ohchr.org/en/meeting-summaries/2023/11/experts-committee-against-torture-commend-

burundi-efforts-repatriate.

4 See Hatungimana v. Burundi (CAT/C/82/D/1100/2021), E.N. v. Burundi (CAT/C/82/D/1105/2021) and

Nkunzimana v. Burundi (CAT/C/82/D/957/2019).