Opinion; Subjects: BURUNDI, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.12-18217 (E) 101212 131212
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-fourth session, 27–31 August 2012
No. 17/2012 (Burundi)
Communication addressed to the Government on 12 December 2011
Concerning: François Nyamoya
The Government replied to the communication on 1 May 2012, after the expiry of the
time limit set by the Methods of Work adopted by the Human Rights Council, but the
Working Group will, on an exceptional basis, include the information in these
opinions
The State is a party to the International Covenant on Civil and Political Rights
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the former Commission on Human Rights. The mandate of the Working Group was
clarified and extended in Commission resolution 1997/50. The Human Rights Council
assumed the mandate in its decision 2006/102. The mandate was extended for a further
three-year period in Council resolution 15/18 of 30 September 2010. In conformity with its
Methods of Work (A/HRC/16/47, annex), the Working Group has addressed the above-
mentioned communication to the Government.
2.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his
sentence or despite an amnesty law applicable to him) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms set out in articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
United Nations
A/HRC/WGAD/2012/17
General Assembly
Distr.: General
21 November 2012
English
Original: French
A/HRC/WGAD/2012/17
2
GE.12-18217
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law for
reasons of discrimination based on birth; national, ethnic or social origin; language;
religion; economic condition; political or other opinion; gender; sexual orientation;
disability or other status, and which aims towards or can result in ignoring the equality of
human rights (category V).
Submissions
Communication from the source
3.
Mr. François Nyamoya (hereinafter Mr. Nyamoya), a Burundian citizen residing at
avenue de la Dynastie, Rohero I, Bujumbura, is a well-known member of the Bar. He is
also the lawyer who represents Radio Publique Africaine (RPA), which regularly expresses
views critical of the Government, and he is a member of the opposition party Mouvement
pour la solidarité et la démocratie (MSD), of which he is the spokesperson.
4.
On 27 July 2011, having spent the morning with colleagues outside the Office of the
Public Prosecutor to support the President of the Bar, who had been summoned by the
Prosecutor, Mr. Nyamoya found a summons at his home demanding that he appear the next
day, 28 July 2011, before the Public Prosecutor for the Supreme Court in connection with a
case relating to him.
5.
On the day of his hearing, he was interrogated by the prosecutor for two hours
concerning alleged bribery of witnesses in a trial for the murder of Dr. Kassy Manlan, a
representative of the World Health Organization (WHO). The trial dated back to 2003; Mr.
Nyamoya had acted as attorney for the complainant. Mr. Nyamoya was accused of having
attempted to bribe three witnesses, Jean-Paul Bukeyeneze, Diedonné Nkurunziza, alias
Ngangura, and Martin Nuni, who had in fact been suspects in the case and had been
acquitted during the trial.
6.
Despite his repeated requests to the prosecutor, he was not informed of the charges
against him. Following his interrogation, Mr. Nyamoya was incarcerated in the central
prison at Mpimba. He was shown the arrest warrant by a police officer.
7.
It was only on 17 August 2011 that Mr. Nyamoya was accorded a hearing in
chambers with the judge empowered to uphold or overturn the decision to detain him. On
19 August 2011, a decision was taken in chambers to order his provisional release. This
decision, of which he was told but not given a copy, was not enforced, however: it was
appealed by the Public Prosecutor’s Office.
8.
On 12 October 2011, 10 days after the statutory time limit, Mr. Nyamoya was
accorded a hearing in chambers. On 18 October 2011, the Tribunal de Grande Instance
(High Court) of Bujumbura municipality, sitting in chambers, finally declared that it did not
have competence to rule on the detention of Mr. Nyamoya, since it had already decided in
favour of his provisional release, but that decision had been struck down by the Court of
Appeal. It was accordingly for the Court of Appeal to decide whether he had been lawfully
detained or not. Counsel for Mr. Nyamoya is said to intend appealing this decision on the
grounds that under the law of Burundi, the Court, acting in chambers, must confirm the
legality of the detention every 30 days, based on the circumstances then obtaining.
9.
According to the source, the arbitrary nature of Mr. Nyamoya’s detention has
numerous causes.
A/HRC/WGAD/2012/17
GE.12-18217
3
Lack of legal basis for Mr. Nyamoya’s detention
10.
First, the source states that Mr. Nyamoya’s detention is not lawful, which makes it a
violation of article 9, paragraph 1, of the International Covenant on Civil and Political
Rights (hereinafter the Covenant). Specifically, Mr. Nyamoya was not informed of the
charges brought against him; indeed, he received no arrest warrant, despite his repeated
requests to the prosecutor. The warrant, dated 28 July 2011 and signed by an official from
the Supreme Court’s prosecution team, stated that Mr. Nyamoya was being sent to prison in
a case that dated back to 2003. The source argues that in addition to the fact that the
accusation is groundless — the witnesses in question were in fact suspects who were
acquitted in the trial — the infraction in question had lapsed in 2006.
11.
The source says that bribery of witnesses or experts is an infraction under article 401
of the Burundian Criminal Code, but with a statutory limitation of three years. In the former
decree-law No. 1/6 of 4 April 1984, setting out the Criminal Code, article 89, paragraph 2,
states that “an infraction may be prosecuted after three years have elapsed if the infraction
constitutes an offence”. Article 6 of the same decree-law stipulates that “an offence is an
infraction punishable by less than 2 months and a maximum of 5 years’ imprisonment”.
Article 265 of the Criminal Code states that “false testimony before a court is punishable by
imprisonment and extension of the sentence to 5 years”. Consequently, the infraction in
question must be deemed an offence subject to a statutory limitation of three years. The
same article 265 also stipulates that it constitutes an aggravating factor when, as a result of
the statements by the witness who was bribed, the alleged offender is sentenced either to
life imprisonment or to capital punishment. Here, however, there was no aggravating factor,
since the alleged offenders in the Kassy Manlan case were acquitted. According to the law,
the alleged infraction was open to prosecution as from 2006. The new Criminal Code,
which entered into force on 22 April 2009, retains the three-year statutory limitation on the
offence of bribing a witness. According to the source, a charge of bribing a witness in a
case dating back to 2003 can under no circumstances constitute valid legal grounds for the
continuing detention of Mr. Nyamoya.
12.
The source recounts that during the hearing before the appeals court on 31 August
2011, the prosecution put forward arguments totally lacking in legal validity. According to
the source, the conditions for prolonging pretrial detention set out in article 71 of the Code
of Criminal Procedure were not met. The prosecution argued that Mr. Nyamoya should be
subject to life imprisonment and that his provisional release would enable him to flee the
country. According to the principle of non-retroactivity, however, bribing a witness could
not be characterized as an offence. Moreover, when Mr. Nyamoya’s provisional release was
ordered, concerns about a possible flight from justice resulted in an injunction against his
leaving the country without prior approval from the Ministry of Justice and in a mandate to
appear in court as soon as summoned. In addition, the prosecution was incapable of
presenting the serious evidence of guilt demanded by article 71 of the Code of Criminal
Procedure.
13.
Although counsel for Mr. Nyamoya argued that the charges against him had lapsed,
the appeals court decided to prolong his detention. Since this decision, the validity of the
detention order has not been verified, because on 18 October 2011, the High Court of
Bujumbura municipality, sitting in chambers, declared that it had no competence in the
case.
Procedural irregularities
14.
The source maintains that the numerous irregularities in the legal action taken
against Mr. Nyamoya constitute violations of domestic law and of the international
instruments on the right to freedom and security of the person and the right to a fair trial.
A/HRC/WGAD/2012/17
4
GE.12-18217
15.
First, the source states that following his interrogation by the prosecutor, Mr.
Nyamoya was taken by the police to the central prison at Mpimba without having been
apprised of the charges against him. The prosecutor allegedly refused to show him the
arrest warrant. The police officer who took him to the prison gave him a look at the arrest
warrant.
16.
Secondly, article 72, paragraph 3, of Act No. 1/1015 of 20 July 1999 setting out the
Code of Criminal Procedure states that “The accused must be brought before a judge within
two weeks of the issuance of the provisional arrest warrant.” The arrest warrant that was
never served on Mr. Nyamoya was dated 28 July 2011, but he was given a hearing in
chambers only on 17 August 2011, in other words 20 days after his arrest. The source
accordingly argues that the statutory time limit for an appearance before a judge following
arrest was not respected. The source also argues that article 75 of the Code of Criminal
Procedure states that a pretrial detention order is valid for 30 days. Once this period has
elapsed, pretrial detention may be extended by a reasoned decision on a month-by-month
basis, for as long as required by the public interest. In the present instance, the decision of
the appeals court, which was the latest detention decision, was handed down on 2
September 2011. The accused should according have appeared again in chambers on 2
October 2011. The source indicates that he was seen by a judge only on 12 October 2011,
in other words 10 days after the statutory time limit.
17.
Thirdly, the source claims that the decision to release Mr. Nyamoya was not
respected. On 19 August 2011, a decision was taken in chambers to order Mr. Nyamoya’s
provisional release “subject to the conditions of not leaving Burundi without the
authorization of the presiding judge or his or her deputy and of appearing before the
presiding judge once a week and whenever required”. According to reports, Mr. Nyamoya
has still not been released. The public prosecutor for Bujumbura municipality has refused to
sign the extension order on the grounds that the prosecution was intending to appeal. The
source says that Mr. Nyamoya was kept in detention, in violation of the provisional release
order and of article 84 of the Code of Criminal Procedure, pending a hearing before the
appeals court that took place on 31 August 2011.
18.
Fourthly, the source indicates that neither Mr. Nyamoya nor his lawyers have been
able to obtain the detention order, and without having received it, they have no means of
appealing it. Article 37 of Act. No. 1/7 of 25 February 2005, on the Supreme Court, states
that “The Supreme Court, sitting as an appellate chamber, shall examine appeals of
judgements, rulings and all other judicial decisions handed down by courts and tribunals
and other chambers of the Court itself and shall rule provisionally or definitively on their
merits.” However, Mr. Nyamoya cannot lodge an appeal without access to the extended
detention order that he is appealing. According to the source, therefore, this is not only an
irregularity with regard to the need for transmission of the decision and access to the case
file but is also a violation of Mr. Nyamoya’s right to contest the legality of his detention.
19.
Fifthly, the source argues that the legality of the decision to detain Mr. Nyamoya has
not been verified. Article 75 of the Code of Criminal Procedure states that a pretrial
detention order is valid for 30 days, upon the expiration of which, pretrial detention may be
extended by a reasoned decision, on a month-by-month basis, for as long as required by the
public interest. It was only on 12 October 2011 that Mr. Nyamoya was again taken for a
hearing in chambers, in other words 10 days after the deadline set by the law. On 18
October 2011, the High Court of Bujumbura municipality, sitting in chambers, finally
declared that it did not have competence to rule on the decision to detain Mr. Nyamoya,
since it had already decided in favour of his provisional release, but that finding had been
struck down by the Court of Appeal. It was accordingly for the Court of Appeal to decide
whether he had been lawfully detained or not. However, under the law of Burundi, the High
Court, sitting in chambers, must confirm the legality of the detention every 30 days, based
A/HRC/WGAD/2012/17
GE.12-18217
5
on the circumstances then obtaining. Since the Court has declared that it did not have
competence, the legality of the detention has not been confirmed. Thus, Mr. Nyamoya’s
detention has not been renewed within the time frame set by the law. Consequently, the
source argues, there are no valid grounds for his detention.
Arbitrary nature of Mr. Nyamoya’s detention in the light of his right to freedom of
conscience and expression
20.
The source recalls that Mr. Nyamoya is the lawyer who represents Radio Publique
Africaine (RPA) and a member of the opposition party Mouvement pour la solidarité et la
démocratie (MSD), of which he is the spokesperson. These institutions frequently criticize
the Government, and Mr. Nyamoya may be assumed to share these views.
21.
Mr. Nyamoya was detained during a period of particularly tense relations between
legal professionals and the authorities. His own arrest followed that of many of his
colleagues, including the President of the Bar, who had publicly criticized the Government.
At the same time, human rights defenders were being summoned to explain their public
allegations about human rights violations. The increasingly frequent occurrence of these
events gives cause to fear that the authorities wish to muzzle the freedom of expression of
civil society.
22.
Mr. Nyamoya, like many of his colleagues, has clearly expressed his opposition to
the arrests of Mr. Bukuru and Mr. Rufykiri and participated in demonstrations in support of
the two lawyers who, he felt, had been unfairly detained.
23.
The source argues that the absence of legal justification for detaining Mr. Nyamoya
and the numerous procedural irregularities that accompanied his continued detention, as
shown above, give cause for suspecting that he was detained for a purpose other than to
establish his guilt in the case of alleged witness bribing. Moreover, no serious investigation
to establish his guilt in this case has been undertaken.
24.
The source concludes that Mr. Nyamoya’s detention is a result of the exercise of his
freedom of opinion and expression, protected under article 19 of the International Covenant
on Civil and Political Rights and article 19 of the Universal Declaration of Human Rights.
Response from the Government
25.
Although the Government of Burundi responded to the communication from the
Working Group only after the expiry of the time limit set by its Methods of Work, the
Working Group will, on an exceptional basis, take into account the information received
prior to its discussion.
26.
By letter dated 20 April 2012, the Government informed the Working Group that
during the investigation of the case, strong evidence had been uncovered that Mr. Nyamoya
and four co-defendants were guilty. Notices were sent summoning the defendants,
including Mr. Nyamoya, to appear in court. His interrogation was conducted in strict
accordance with the law: notice was given of the reason why he had been summoned and
the charges laid against him. The Government further stated that Mr. Nyamoya had been
acting not for the complainant but rather for his sister, who had been accused of murdering
Dr. Kassy Manlan, WHO’s representative in Burundi, in 2003.
27.
Contrary to the allegations made by the source, the Government states that Mr.
Nyamoya was prosecuted, not for attempting to bribe three witnesses, but for actually
bribing them. The offence of attempted bribery of a witness does not exist in the law of
Burundi. The case was brought before a judge in chambers on the thirteenth day of Mr.
Nyamoya’s incarceration, 9 August 2011, whereas the maximum time limit set by the law
A/HRC/WGAD/2012/17
6
GE.12-18217
is 15 days. As soon as the case was brought before it, the High Court scheduled a hearing of
the parties in chambers, on 17 August 2011. Mr. Nyamoya was assisted by two lawyers.
28.
The Court ordered Mr. Nyamoya’s provisional release. The prosecution appealed the
ruling, in conformity with the law, on 19 August 2011. By virtue of article 84, paragraph 2,
of the Code of Criminal Procedure, Mr. Nyamoya remained in detention pending the
decision of the appeals judge. That decision ordered Mr. Nyamoya’s continued pretrial
detention. When the prosecution presented Mr. Nyamoya to the High Court for the purpose
of prolonging his detention, the judge declared that he did not have competence. The
detention was prolonged by order of the judge of the Bujumbura Court of Appeals, to
which Mr. Nyamoya had appealed.
29.
The Government points out that article 401 of the Criminal Code does not specify
who must be bribed for bribery to be committed. It provides that bribery is “the use of
promises, propositions, gifts, ploys or tricks during judicial proceedings to persuade others
to deliver or make false testimony, a false statement or a false attestation”. This, according
to the Government, is what Mr. Nyamoya was guilty of in the case concerning the murder
of Dr. Manlan.
30.
The Government of Burundi rejects the source’s allegations concerning the statute of
limitations. It notes that bribery is a continuing offence that lasts throughout the course of
the judicial proceedings. The proceedings in question came to an end only with the
rejection of the appeal, in 2010. According to the Government, the statute of limitations
began running only upon completion of the appeals proceedings, in 2010.
31.
The Government states that all the competent bodies involved confirmed the legality
of Mr. Nyamoya’s pretrial detention.
32.
According to the Government, there is no relationship between the offences of
which Mr. Nyamoya is accused and his profession and political affiliation, nor is his case
related to the one resulting in the imprisonment of the President of the Bar. The
Government denies the source’s allegation of political persecution.
Comments from the source
33.
By letter dated 8 March 2012, the source informed the Working Group that Mr.
Nyamoya had been provisionally released, by order of the public prosecutor’s office, on 17
February 2012, under the following conditions: (a) the charge of witness bribing was
retained; (b) presence at the airport or port of Burundi or crossing of the border was
prohibited; (c) leaving Bujumbura municipality was prohibited; and (d) appearing before
the prosecutor every Friday was obligatory. The public prosecutor reserves the right to
revoke the provisional release order if one or more of the above-mentioned conditions are
not met.
34.
On 3 May 2012, the source provided comments on the Government’s response. The
source noted that “the action requested of the Working Group is to give its views, not on
whether the accusations that Mr. François Nyamoya has bribed witnesses are well founded,
but rather on whether he was arbitrarily detained during the seven-month period from 28
July 2011 to 17 February 2012”. In view of the presumption of innocence and in the
absence of a decision on the merits of the case, the source contends that the State’s
comments on Mr. Nyamoya’s alleged guilt are irrelevant to the action requested of the
Working Group.
35.
The source states that Mr. Nyamoya was not informed of the charges against him
while being interrogated by Judge Adolphe Manirakiza, nor was he informed by the latter
that he was under arrest. No arrest warrant was served on him. Following the interrogation,
police officers came to take him to the prison at Mpimba. He was able to look at the arrest
A/HRC/WGAD/2012/17
GE.12-18217
7
warrant only thanks to a police officer who agreed to show it to him. This constitutes a
breach of the provisions of Burundi law relating to arrest. The source also notes that the
Government of Burundi, the sole possessor of the documentation, provided neither the
official record of the interrogation nor the arrest warrant in support of its arguments.
36.
The source recalls that according to the decisions of the judicial bodies, Mr.
Nyamoya is being prosecuted under article 401 of the Criminal Code, (article 265 at the
time of the events), which begins with the title “Bribery of a witness or an expert”. The
prosecution’s summing up on appeal, dated 22 August 2011, the High Court ruling in
chambers of 18 October 2011 and the provisional release order all refer explicitly to the
offence of witness bribery under article 401 of the Criminal Code.
37.
The source draws attention to the confusion instigated by the Burundian authorities,
in that the witnesses in the offence of which Mr. Nyamoya is accused were in reality
defendants in the case and have in fact been acquitted.
38.
On the statutory limitation on prosecution of the offence imputed to Mr. Nyamoya,
the source explains that bribery of witnesses is an immediate offence as opposed to a
continuing offence. The statutory limitation must accordingly run from the moment the
offence is committed. The date on which the case involving witness bribery was taken up is
25 July 2007, in other words more than three years earlier.
39.
The source reiterates that this is a violation of the three-year statutory limitation. No
aggravating factor may be adduced in this case, since those accused of the alleged offence
in the Kassy Manlan case have been acquitted. Thus, from the legal standpoint, prosecution
of the offence in the present instance was prohibited at the time Mr. Nyamoya was arrested.
40.
The source contends that the Government of Burundi has misinterpreted article 72 of
the Code of Criminal Procedure, paragraph 2 of which states that “the accused must be
brought before a judge within two weeks of issuance of the provisional arrest warrant”.
According to the source, it is not the date the case was referred to the court by the
competent authority that must be taken into account, as the Government maintains, but the
actual appearance in the court. Mr. Nyamoya was detained on 28 July 2011 but was brought
before a judge in chambers only on 17 August 2011, in other words 20 days after his arrest.
The statutory time limit for an appearance before a judge following arrest was accordingly
not respected.
41.
Article 75 of the Code of Criminal Procedure provides that the order authorizing
pretrial detention is valid for 30 days. Once this period has elapsed, pretrial detention may
be extended by a reasoned decision, on a month-by-month basis, for as long as required by
the public interest. Article 75 also stipulates that “the accused must be brought before the
judge” by the competent authorities. Thus, contrary to the Government’s contention, it is
not the date on which the case was referred to the court that is to be taken into account. In
the present instance, the Court of Appeals handed down its decision on 2 September 2011.
The complainant should thus have again appeared in chambers on 2 October 2011, but the
hearing with the judge took place only on 12 October 2011, in other words, 10 days after
the statutory time limit. Accordingly, the prescriptions of the law as to confirmation of the
legality of the detention were not respected.
42.
The source reiterates the arguments raised in the initial communication in support of
the contention that the numerous irregularities in the proceedings constitute violations of
domestic law and of the international instruments on the right to freedom and security of
the person and the right to a fair trial.
43.
Lastly, the source recalls that Mr. Nyamoya is the lawyer who represents Radio
Publique Africaine (RPA) and a member of the opposition party Mouvement pour la
solidarité et la démocratie (MSD), of which he is the spokesperson. He was detained during
A/HRC/WGAD/2012/17
8
GE.12-18217
a period of particularly tense relations between legal professionals and the authorities.
According to the source, the Government has not disproved this contention.
Discussion
44.
In view of the foregoing, the only aspect of the case discussed by the Working
Group was Mr. Nyamoya’s detention from 28 July 2011 and 17 February 2012.
45.
The discussion focused on the date on which the offence of witness bribing
occurred. According to the source, the alleged offence took place on 25 July 2007, in other
words, four years prior to Mr. Nyamoya’s arrest. Under the law, the statutory limitation
applicable to the commission of this offence is three years. The Government contends that
it was a continuing offence and that the date to be taken into account is that of the
completion of proceedings.
46.
The Working Group takes the view that it was an immediate offence that was
limited to the time of the bribery. In the present instance, the offence was committed four
years before Mr. Nyamoya was detained. However, according to the law, the statutory
limitation is three years. The public prosecutor’s office and the other judicial bodies
involved in the proceedings are required to determine the relevant date, namely the date on
which the offence was committed, but this was not done in this case, nor was the possibility
considered that there might be a statutory limitation on the offence in question. As a result,
Mr. Nyamoya was deprived of liberty for seven months.
47.
The second reason why the Working Group can conclude that Mr. Nyamoya was
subjected to arbitrary detention is that on 19 August 2011, a decision was taken in
chambers to order his provisional release. This decision was not carried out: the prosecution
simply stated that it would be appealed. It was only on 31 August that the Court of Appeals
struck down the decision. Counsel for Mr. Nyamoya appealed this ruling. On 18 October
2011, the High Court of Bujumbura municipality, sitting in chambers, finally declared that
it did not have competence to rule on the decision to detain Mr. Nyamoya, since it had
already decided in favour of his provisional release, but that finding had been overturned by
the Court of Appeal.
48.
These irregularities have clearly affected Mr. Nyamoya’s ability to enjoy the
guarantees set out in article 9 of the Universal Declaration of Human Rights and article 9 of
the International Covenant on Civil and Political Rights.
49.
The Working Group notes that the views advanced by the Government and by the
source diverge in regard to the other contentions of formal procedural irregularities,
specifically whether Mr. Nyamoya was informed of the charges against him; whether he
was acquainted with the indictment during the hearings on 28 July and 13, 17 and 19
August 2011; whether the indictment was clear enough; and whether the decision to
prolong his detention was renewed on a month-by-month basis in accordance with the
relevant legal texts. Because the Government and the source have presented differing
versions of the facts, the Working Group cannot take a position on whether the points made
above are well founded. Nevertheless, it notes that the Government has provided
insufficient evidence to show that all the procedural formalities have been respected.
50.
The irregularities discussed in paragraph 47 et seq. are of sufficient gravity for the
Working Group to declare the pretrial detention of Mr. Nyamoya to have been arbitrary in
the sense of category III, as defined by the Working Group.
51.
The Working Group cannot pass over in silence the context in which Mr.
Nyamoya’s detention took place. At the time of his arrest, sharp discord was being
expressed by the Bar and the Government, leading to the detention of the President of the
Bar, among other things. The members of the Bar, including Mr. Nyamoya, participated
A/HRC/WGAD/2012/17
GE.12-18217
9
publicly in a number of protest demonstrations. Mr. Nyamoya, who is the legal counsel for
RPA, is known for expressing critical views of the Government and is the spokesperson for
the opposition party MSD.
52.
As a result, the Working Group feels that there is a strong enough causal link
between the deprivation of liberty and the professional activities of Mr. Nyamoya,
including his criticism of the Government, his political engagement, the public
demonstrations in which he took part, his denunciation of human rights violations and the
overall hostility towards legal professionals attested to by the detention of the President of
the Bar. All these circumstances laid the groundwork for the violation of the rights to
freedom of expression and opinion and of peaceful assembly, in breach of the provisions in
articles 19 and 21 of the Covenant and articles 29 and 20 of the Universal Declaration.
53.
The fact that Mr. Nyamoya was released on 17 February 2012 does not expunge the
arbitrary nature of his detention from 28 July 2011 to 17 February 2012. In addition, the
restrictions on his freedom of movement that are still in force may not be deemed to be
justified, since they follow upon an arbitrary detention.
Views and recommendations
54.
In the light of the foregoing, the Working Group renders the following opinion:
The detention of Mr. François Nyamoya from 28 July 2011 to 17 February 2012 was
arbitrary and constitutes a breach of articles 8, 9, 10, 19 and 20, paragraph 1, of the
Universal Declaration of Human Rights and articles 9, 19 and 20 of the International
Covenant on Civil and Political Rights. This detention falls under categories II and
III of the arbitrary detention categories to which the Working Group makes
reference for the consideration of cases submitted to it.
55.
The restrictions on freedom of movement imposed under the decision of 17
February 2012 are likewise arbitrary and fall under the above-mentioned categories.
56.
The Working Group accordingly requests the Government of Burundi to release Mr.
Nyamoya immediately and to remove the various restrictions on his freedom of movement,
without prejudice to the adoption of other, less intrusive methods of ensuring his attendance
at trial and the necessary legal proceedings. The Working Group also requests the
Government of Burundi to provide Mr. Nyamoya with adequate compensation for the
injury he suffered.
[Adopted on 27 August 2012]