A/HRC/WGAD/2015/25

United Nations

A/HRC/WGAD/2015/25

General Assembly

Distr.: General

19 November 2015

English

Original: French

GE.15-20401 (E) 161215 171215

*1520401*

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-third session (31 August-4 September

2015)

No. 25/2015 regarding Émile Bisimwa Muhirhi (Democratic

Republic of the Congo)

1.

The Working Group on Arbitrary Detention was established in resolution

1991/42 of the Commission on Human Rights, which extended and clarified the

Working Group’s mandate in its resolution 1997/50. The Human Rights Council

assumed the mandate in its decision 1/102 and extended it for a three-year period in its

resolution 15/18 of 30 September 2010. The mandate was extended for a further three

years in resolution 24/7 of 26 September 2013.

2.

In accordance with its methods of work (A/HRC/30/69), on 18 May 2015, the

Working Group transmitted to the Government of the Democratic Republic of the

Congo a letter regarding Émile Bisimwa Muhirhi. The Government has not replied to

the communication. The State is a party to the International Covenant on Civil and

Political Rights.

3.

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

or her sentence or despite an amnesty law applicable to the detainee) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by 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);

(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);

A/HRC/WGAD/2015/25

GE.15-20401

2/5

(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, or disability or other status and which aims towards or can result in

ignoring the equality of human rights (category V).

Submission

Communication from the source

4.

Émile Bisimwa Muhirhi, born on 3 November 1983 in Chirindja, has been

working In Bukavu since February 2014 as a consultant for non-profit organizations in

partnership with Action pour le développement intégral de Cinjira (Action for the

comprehensive development of Cinjira) and Ligue africaine pour le changement

(African League for Change).

5.

The source reports that, around 6 a.m. on 17 December 2014, Mr. Bisimwa was

arrested at his home by several officers of the National Intelligence Agency, South

Kivu branch, dressed in sportswear, including Honoré Kakule Katembo, an

intelligence officer in the city of Bukavu. Mr. Bisimwa was not shown an arrest

warrant or informed of the charges against him. When asked by a neighbour, the

officers, who had not identified themselves as such, said they belonged to the National

Intelligence Agency.

6.

The source indicates that Mr. Bisimwa was taken to the premises of the National

Intelligence Agency, where a detective, Mr. Kakule, punched him in the right cheek

and ordered two detainees (called Didas and Nshimiye) to beat him and detain him in

a “6 cell” (a small, cupboard-like compartment not quite the size of a person). In this

cell, he had to remain in the same position and could not sit down or move about.

7.

At around 10 a.m., Mr. Bisimwa was questioned by Mr. Kakule in the latter ’s

office. At Mr. Kakule’s request, Mr. Bisimwa enumerated all the goods he had recently

bought, including a house purchased jointly with a co-owner in August 2013. Mr.

Kakule then hit him on the head with a book and accused him of stealing US$ 172,844

from his cousin Désiré Citunga Chirhakarhula in order to purchase these goods,

including the aforementioned house.

8.

From the end of 2012 to 15 February 2014, Mr. Bisimwa worked with Mr.

Citunga in a business transferring money from Misisi to Bukavu. When Mr. Bisimwa

found another job in February 2014, the two separated amicably following a general

evaluation of the business on 15 February 2014. However, the ledgers that Mr.

Bisimwa said would prove his innocence have disappeared.

9.

Mr. Kakule then forced Mr. Bisimwa to sign a statement that he had not been

given the opportunity to read beforehand. When he insisted on reading the document

before signing it, Mr. Kakule ordered him to lie on his stomach and beat him on the

back and buttocks with another military police officer’s baton.

10. According to the information received, Mr. Bisimwa’s wife went to the premises

of the National Intelligence Agency in Bukavu on 18 December 2014. In exchange for

a payment to the officers, she was able to see him, but only for one minute.

Throughout her husband’s detention, she was able to send him food, also in exchange

for money, but only one meal per day. Mr. Bisimwa was not given access to a lawyer.

11.

The source alleges that Mr. Bisimwa observed Mr. Citunga arriving at the

premises every morning, accompanied by Mr. Kakule, and giving money to the

military police officers on numerous occasions.

A/HRC/WGAD/2015/25

3/5

GE.15-20401

12. On 19 December 2014, Mr. Kakule telephoned Mr. Bisimwa’s wife, telling her to

pay the US$ 500 that the director of the National Intelligence Agency had demanded

for the release of her husband. Mr. Bisimwa telephoned his wife to ask her to prepare

the money and the title deed of their house in order to secure his release and end the

torture. Mr. Kakule went to see Mr. Bisimwa’s family members, threatening to

continue the torture if he did not receive the money.

13. The source reports that, a few days later, Mr. Bisimwa’s father was present at the

confrontation between Mr. Bisimwa and Mr. Citunga at the premises of the National

Intelligence Agency on the orders of Mr. Kakule. Mr. Kakule beat Mr. Bisimwa, who

was lying on the floor, for 20 minutes. Mr. Bisimwa’s right arm was severely beaten

with a baton, so that the joints of his hand were bent back. At the end of the

interrogation, Mr. Kakule once again forced him to sign documents that he had drafted

without giving Mr. Bisimwa the opportunity to familiarize himself with the content.

14. At the end of December, Mr. Bisimwa’s wife paid Mr. Kakule US$ 80, then

another US$ 480, but he was not released.

15. The source states that, following the arrest of her husband, Mr. Bisimwa’s wife

contacted a lawyer by the name of Mr. Charles Cubaka. Mr. Cubaka was refused

access to Mr. Bisimwa and did not receive any reply from the National Intelligence

Agency to requests for his release or his transfer to the prosecution service in order to

be brought before a judge. On 20 December 2014, Mr. Cubaka, acting on behalf of Mr.

Bisimwa, filed a criminal complaint against Mr. Citunga with the general prosecution

service of Bukavu for arbitrary arrest and detention and damages, citing the incidents

of torture. For fear of direct reprisals against Mr. Bisimwa, the complaint does not

mention the role of Mr. Kakule. The Prosecutor General handed the case to Detective

Cidundaganya.

16. On 14 January 2015, Mr. Bisimwa was transferred to the Bukavu prosecution

service. Although Congolese law stipulates that police custody cannot exceed 48 hours

before a case is handed over to a judge, Mr. Bisimwa was held for 28 days without

access to his lawyer, Mr. Cubaka, whom he met for the first time on that day. Mr.

Bisimwa was immediately placed under provisional arrest by the Advocate General,

Mulongoyi Kasongo, pursuant to article 28 (2) of the Decree of 6 August 1959 on the

Code of Criminal Procedure. Mr. Bisimwa was transferred to Bukavu central prison

and, on 15 January 2015, was heard again by Mulongoyi Kasongo, in the presence of

his lawyer, Mr. Cubaka, at which time he described incidents of torture.

17. On 19 January 2015, Mr. Cubaka wrote to the Prosecutor General, requesting

release on bail. Mr. Citunga opposed the request in a letter to the Prosecutor General.

18. Under article 28 (3) of the Code of Criminal Procedure, Mr. Bisimwa should

have been brought before the competent judge for a decision on the extension of his

detention within five days of being placed under provisional arrest. In fact, this was

done on 27 January 2015, or 13 days after the issuance of the provisional arrest

warrant. On that day, the Bukavu magistrate’s court, in the absence of Mr. Cubaka,

ordered Mr. Bisimwa placed in pretrial detention. On 17 February 2015, Mr. Cubaka

filed a request for release on bail with the Bukavu magistrate’s court, which was

contested by Mr. Citunga. On 19 February 2015, the magistrate’s court rejected the

request on the grounds that there was credible evidence of Mr. Bisimwa’s guilt. On 20

February 2015, Mr. Cubaka appealed the magistrate court’s decision. In early March,

the Bukavu Tribunal de Grande Instance (court of major jurisdiction) upheld the

lower court’s decision and rejected Mr. Cubaka’s appeal.

19. Since no action had been taken on the criminal complaint filed on 20 December

2014 against Mr. Citunga, on 27 February 2015, Mr. Cubaka submitted to the Bukavu

Tribunal de Grande Instance a direct summons for Mr. Kakule and Mr. Citunga in

A/HRC/WGAD/2015/25

GE.15-20401

4/5

relation to allegations of torture and arbitrary detention. At the opening hearing on 19

March 2015, Messrs. Kakule and Citunga’s lawyers submitted preliminary objections,

including one relating to the need for prior authorization from the director of the

National Intelligence Agency to bring proceedings against the two men, on the

grounds of exceptio obscuri libelli. The Tribunal de Grande Instance, which has

reserved judgement on the case, has yet to rule on the objections raised.

20. According to the information received, Mr. Bisimwa remains in detention at

Bukavu central prison. The detention conditions are appalling and could undermine

his physical and emotional well-being, especially his health, given the ill-treatment to

which he was subjected. Mr. Bisimwa has not received appropriate care.

21. The source alleges that the proceedings against Mr. Bisimwa have been marred

by significant irregularities, inasmuch as the National Intelligence Agency is

responsible for cases related to State security and the offence of which he is accused

does not come under this category. It follows that the Agency has never had the

authority to arrest or detain Mr. Bisimwa.

22. The source indicates that Mr. Bisimwa has not benefited from legal safeguards,

such as a fair trial, given that he was arrested without a warrant and without being

informed of the reasons for his arrest; that he was held at the premises of the National

Intelligence Agency in a tiny cell for 28 days, despite the fact that the law provides for

a maximum detention period of 48 hours before a person is brought before a judge;

and that he did not have access to his lawyer during those 28 days. Once he was

handed over to the prosecution service and placed under provisional arrest, he had to

wait 13 days rather than the statutory maximum of 5 days before being brought before

the competent judge for a ruling on extending his detention.

23. The source alleges that Mr. Bisimwa was subjected to torture on numerous

occasions at the hands of Mr. Kakule during his detention at the premises of the

National Intelligence Agency.

24. In the light of the above, the source contends that Mr. Bisimwa’s deprivation of

liberty is arbitrary and comes under categories II and III of the criteria applicable to

the consideration of cases submitted to the Working Group, inasmuch as it breaches

articles 5, 7, 9, 10, and 17 (2) of the Universal Declaration of Human Rights; articles

7, 9, 10 and 14 of the International Covenant on Civil and Political Rights; and articles

2, 15 and 16 of the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment.

Response from the Government

25. The Working Group regrets that the Government of the Democratic Republic of

the Congo has not replied to its letter dated 18 May 2015 within the 60-day period

allotted to it. The deadline having passed, the Working Group may render an opinion,

in accordance with its methods of work.

Discussion

26. It does not follow from the absence of a rebuttal by the State that the facts

reported are true. The Working Group must still verify the source’s credibility and

reliability. However, in this case, the narrative of events is internally consistent.

Moreover, it is corroborated by proceedings before the national judicial authorities,

some of which are described in great detail, and by all the witnesses whose statements

are included in the complaint. Lastly, the reputation of the source who came to the

victim’s aid is an additional reason for considering the facts reported to be

incontrovertible.

A/HRC/WGAD/2015/25

5/5

GE.15-20401

27. Since the facts as reported have been established, the Working Group expresses

its surprise at the National Intelligence Agency’s role in the case. Pursuant to Decree-

Law No. 003/2003 of 11 January 2003 on the establishment and organization of the

National Intelligence Agency, the Agency is “a public service” “under the authority of

the President of the Republic”, responsible for “ensuring the State’s internal and

external security” (see articles 1-3 of Decree-Law No. 003/2003). It is obvious that the

situation at the heart of this case — which stemmed from a relationship between two

individuals — did not endanger State security, whether internal or external, and that,

therefore, the officers of the National Intelligence Agency abused their authority and

exceeded their mandate by intervening in the case. Furthermore, at the time of the

arrest and detention, there was no legal document authorizing the officers to proceed.

Consequently, the Working Group is of the view that the arrest and detention are

arbitrary under category I, as defined in the methods of work, because the victim was

not informed of the reasons for his arrest and subsequent detention, as required under

article 9 (2) of the International Covenant on Civil and Political Rights.

28. The Working Group is also very surprised at the treatment to which Émile

Bisimwa Muhirhi was subjected in both private and public. There is no doubt that this

constitutes torture and inhuman or degrading treatment, which are categorically

prohibited under customary international law, the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the

Democratic Republic of the Congo acceded on 18 March 1996, and article 7 of the

International Covenant on Civil and Political Rights. In addition, any such treatment,

that culminates in an interrogation or a statement that the victim is not permitted to

read before signing, by definition undermines any evidence obtained. Furthermore,

any ensuing criminal proceedings that use evidence stemming from this abuse are

fundamentally tainted. The principle of a fair trial is irrevocably compromised. The

ongoing detention is therefore arbitrary under category III, as defined in the Working

Group’s methods of work.

29. In accordance with its practice, the Working Group refers the allegation of

torture to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment, for appropriate action.

Disposition

30. In the light of the foregoing, the Working Group on Arbitrary Detention renders

the following opinion:

The deprivation of liberty of Mr. Émile Bisimwa Muhirhi is arbitrary because it lacks

legal basis and the right to a fair trial cannot be upheld. It falls within categories I and

III of the criteria applicable to the consideration of cases submitted to the Working

Group.

31. Consequently, the Working Group requests the Government of the Democratic

Republic of the Congo to release Émile Bisimwa Muhirhi without delay and to take all

the necessary measures to provide redress for the serious material and moral damage

he has suffered, including comprehensive compensation as defined in article 9 (5) of

the International Covenant on Civil and Political Rights. In addition, the Government

should conduct an investigation into the circumstances surrounding the violation of his

rights with a view to determining responsibility and ensuring that any offence

committed is punished.

[Adopted on 3 September 2015]