A/HRC/WGAD/2015/37

United Nations

A/HRC/WGAD/2015/37

General Assembly

Distr.: General

7 December 2015

English

Original: French

GE.15-21517 (E) 311215 040116

*1521517*

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

Opinion No. 37/2015 concerning Christopher Ngoyi Mutamba

(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 9 June 2015, the

Working Group transmitted a communication to the Government of the Democratic

Republic of the Congo concerning Christopher Ngoyi Mutamba. 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);

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(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).

Submissions

Communication from the source

4.

Mr. Ngoyi Mutamba, who was born on 12 September 1960, is the national

president of the non-governmental organization Synergie Congo Culture et

Développement (Congo Culture and Development Synergy) and the coordinator of the

Société civile de la République démocratique du Congo (Civil society of the

Democratic Republic of the Congo) advocacy association.

5.

The source states that, from 12 January 2015, Mr. Ngoyi Mutamba participated

actively in peaceful protests against the electoral reform introduced by the

Government. He was particularly involved in documenting human rights violations

committed during the demonstrations held on 19 and 20 January 2015.

6.

The source reports that, on 21 January 2015, Mr. Ngoyi Mutamba was part of a

delegation of human rights defenders who visited Kinshasa General Hospital to meet

demonstrators who had been injured during rallies organized on 19, 20 and 21 January

2015 to denounce the revision of the electoral law. Several members of the Republican

Guard entered the hospital and fired shots, injuring four people and terrifying patients

and visitors. Mr. Ngoyi Mutamba and his colleagues managed to leave the scene

without incident.

7.

At around 8.30 p.m. on 21 January, Mr. Ngoyi Mutamba and his colleagues met

in Victoire Square in Matonge, Kinshasa, in the immediate vicinity of the Inter

Matonge Hotel, where Congolese human rights defenders who travel to Kinshasa often

stay. Mr. Ngoyi Mutamba was arrested by a serviceman in uniform who asked him to

follow him. He was then loaded onto a pick-up truck with no number plates and taken

to an unknown location. He was not shown a warrant at the time of his arrest, nor did

those who abducted him disclose their identity or the reasons for the arrest.

8.

The source asserts that, at around 5.30 a.m. the next day, 22 January 2015, six

men in plain clothes arrived at Mr. Ngoyi Mutamba’s home with a military search

warrant issued by the judge advocate’s office in Gombe. They searched the property,

including Mr. Ngoyi Mutamba’s study, seized his travel documents and informed his

relatives that he was being detained at the Gombe district military prosecutor’s office.

9.

Several members of Mr. Ngoyi Mutamba’s family and a number of his

colleagues tried to visit him at the military prosecutor’s office and, later, at prisons in

Kinshasa. The authorities subsequently refused to provide information on where Mr.

Ngoyi Mutamba was being detained.

10. On 26 January 2015, the Director-General of the National Intelligence Agency

revealed that Mr. Ngoyi Mutamba was being held by the Agency, without providing

further details on the reasons for his arrest or on the exact place of detention.

11.

The source reports that, on 5 February 2015, the Government’s spokesperson

announced the charges against Mr. Ngoyi Mutamba at a press conference in Kinshasa.

The spokesperson refused to disclose where Mr. Ngoyi Mutamba was being detained

and asserted that his family and lawyers had been made aware of his whereabouts.

This claim was publicly denied by Mr. Ngoyi Mutamba’s relatives on 8 February

2015.

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12. On 10 February 2015, Mr. Ngoyi Mutamba was brought before the press by the

Minister of the Interior. It was ascertained that he had been detained by the National

Intelligence Agency. This was the first time that his family and lawyers had seen him

since his abduction.

13. The source maintains that, according to a police report of 10 February 2015, Mr.

Ngoyi Mutamba “was arrested on 21 January 2015 for having [allegedly] ordered

demonstrators on 19 January 2015 ‘not to abandon the wave of demonstrations but to

sustain the violence until the Head of State has fled’”. These claims were based on a

telephone conversation that had supposedly taken place between Mr. Ngoyi Mutamba

and a person named Kadi, about whom no further details were provided. Mr. Ngoyi

Mutamba denied the allegation that, during the conversation, he called on

demonstrators to “burn and destroy the homes of deputies and senators as they would

with those of the Chinese”. The source adds that, in the police report, Mr. Ngoyi

Mutamba was accused of the following offences: arson (Criminal Code, book II, arts.

103 and 104); wilful destruction (Criminal Code, book II, arts. 110 and 111);

spreading false rumours (Criminal Code, book II, art. 199 bis); subversive propaganda

(decree-law of 14 January 1961 punishing subversive propaganda, art. 1); incitement

to civil disobedience (Criminal Code, book II, art. 135 bis); incitement to racial hatred

(ordinance-law No. 66-342 of 7 June 1966 punishing racism and tribalism); inciting

members of the military to commit acts contrary to duty or to discipline (Military

Criminal Code, art. 88); criminal association (Criminal Code, book II, arts. 156, 157

and 158); attacks and conspiracies with the aim of carrying out a massacre,

devastation or pillaging (Criminal Code, book II, arts. 200 and 201); and breaches of

national security (Criminal Code, book II, arts. 193, para. 2, and 195).

14. On 11 February 2015, Mr. Ngoyi Mutamba was brought before the State

Prosecutor-General, who, having upheld the charges of spreading false rumours

(Criminal Code, book II, art. 199 bis), incitement to disobedience of the law and to

revolt (Criminal Code, book II, art. 135 bis), incitement to racial hatred (Criminal

Code, book I, arts. 21.4 and 23.1, and Criminal Code, book II, arts. 79 and 82), wilful

destruction (Criminal Code, book I, arts. 21.4 and 23.1 and Criminal Code, book II,

art. 200) and theft against him, ordered that he should be detained during his trial. He

is being held at Makala Central Prison.

15. The following evidence has been used to justify Mr. Ngoyi Mutamba’s detention:

(a) an audio recording of the alleged telephone conversation with the above-mentioned

Kadi; (b) a draft of the speech that Mr. Ngoyi Mutamba was set to deliver at a meeting

on 11 January that was banned; and (c) a leaflet calling for demonstrations on 19, 20

and 21 January, which Mr. Ngoyi Mutamba denies having written.

16. The pretrial detention order against Mr. Ngoyi Mutamba was based on articles

29, 30 and 31 of the Decree of 6 August 1959 on the Code of Criminal Procedure and

provided that he should be held in pretrial detention for 15 days because “the offences

are serious” and “to enable the public prosecutor’s office to gather all the evidence”.

The pretrial detention order handed down by Kinshasa/Matete Magistrates’ Court was

dated “2014, the 13th”, without any more information about the date of issuance,

which ostensibly was prior to the commission of the offences for which Mr. Ngoyi

Mutamba was accused. In addition, it is not stated in the order whether it was issued in

the judge’s chambers. There is no mention of the place of issuance or of any statement

or submission by the defence, and the order is not reasoned in that it offers no solid

evidence of guilt. Lastly, the order was valid for 15 days from its date of issuance.

That deadline passed several months ago, yet no official measures have been taken to

extend the pretrial detention.

17. On 4 March 2015, the State and 22 Chinese nationals brought criminal

indemnification proceedings against Mr. Ngoyi Mutamba before Kinshasa/Matete

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Magistrates’ Court for spreading false rumours, incitement to disobedience of the law

and to revolt, incitement to racial hatred, wilful destruction and theft. As the defendant

had not been notified within the legal time limit for holding the hearing, he refused to

appear voluntarily. The Court therefore decided not to hear the case and set a new date

of 18 March 2015 so that procedural irregularities could be resolved.

18. The source reports that, on 18 March 2015, a second hearing was held at Makala

Central Prison. In anticipation of the hearing, several journalists and representatives of

the international community and of Congolese civil society who wished to attend had

appeared at the Court, but a number of them were refused entry. The President of the

Bar submitted a request for the hearings to be held in public. The judges, who

indicated that they would have to refer the matter to their superiors, could not respond

to the request and decided to proceed with the hearing. Mr. Ngoyi Mutamba, who had

asked for his right to a public hearing to be fully respected, filed an appeal against the

Court’s decision to resume the proceedings. The Court, unable to respond to the

request, eventually decided to postpone the hearing pending a ruling on the matter by

the appellate court.

19. On 10 April 2015, the president of the appellate court received a written request

from Mr. Ngoyi Mutamba to allow the press to cover the hearing of 13 April.

20. The source reports that, on 13 April 2015, before he had even made his

submissions in appeal, Mr. Ngoyi Mutamba verbally recalled his written request for

the day’s hearing to be covered by the press. The appellate judges, noting that dealing

with the request was a prerequisite, decided to withdraw to deliberate the matter

before returning to consider the submissions in appeal. They undertook to deliver a

provisional ruling within 24 hours, by 14 April.

21. On 15 April 2015, they ruled that Mr. Ngoyi Mutamba’s appeal was

inadmissible, which prevented him from making his submissions in appeal.

22. Mr. Ngoyi Mutamba’s lawyers had prepared an application for release from

detention, but given that proceedings had been initiated before the Court, the lawyers

considered that it was to the Court that the application should be submitted. However,

in the light of developments with regard to holding the hearings in public and of the

referral of the matter to the appellate court prior to the consideration of the merits of

the case, doing so proved impossible. Mr. Ngoyi Mutamba’s lawyers, who planned to

file a cassation appeal against the appellate court’s ruling, hoped to submit the

application to the court of cassation.

23. The source alleges that the proceedings against Mr. Ngoyi Mutamba have been

marred by grave irregularities, including the lack of an arrest warrant, the failure to

meet the legal deadline for holding the hearing before the court in Kinshasa on 4

March 2015, serious mistakes in the drafting of the pretrial detention order and the

failure to respect the right to a public hearing at Makala Central Prison on 18 March

2015 and before the appellate court on 13 April. These irregularities constitute

violations of Congolese law and of international norms relating to the rights to liberty

and security of person and to a fair trial. When considered together, these irregularities

suggest that Mr. Ngoyi Mutamba enjoys no protection under the law and render the

violations so serious as to give the detention an arbitrary character.

24. The source claims that, when Mr. Ngoyi Mutamba was arrested, no warrant was

presented.

25. The source states that Mr. Ngoyi Mutamba was prevented from preparing his

defence before the court in Kinshasa on 4 March 2015 owing to the failure to meet the

legal deadline for holding the hearing.

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26. The source states that the pretrial detention order issued by the judges of

Kinshasa/Matete Magistrates’ Court is dated “2014, the 13th”, without specifying the

date of issuance, which ostensibly was prior to the commission of the offences for

which Mr. Ngoyi Mutamba was accused. The date, however, is a key element and a

failure to mention it renders the order void. Moreover, it is not stated in the order

whether it was issued in the judge’s chambers, despite the fact that article 30,

paragraph 1, of the Congolese Code of Criminal Procedure stipulates that it should be

issued in the judge’s chambers; according to Congolese case law, pretrial detention

orders issued at hearings are rendered void on procedural grounds. There is also no

mention of the place of issuance or of any statement or submission of defence, as

required by article 30, paragraph 2, of the Code. The order is not reasoned in that it

offers no solid evidence of guilt, notwithstanding the fact that according to Congolese

doctrine and case law, the existence of such evidence is a basic condition for pretrial

detention; the requirement is implicitly established in article 27, paragraph 1, of the

Code. Lastly, the order was valid for 15 days from the date of issuance. That deadline

passed several months ago, yet no official measures have been taken to extend the

pretrial detention.

27. Regarding the failure to respect the right to a public hearing, the source alleges

that, on 18 March 2015, several journalists and representatives of the international

community and of Congolese civil society were not allowed to attend Mr. Ngoyi

Mutamba’s hearing at the court in Kinshasa. Following a request from the President of

the Bar, the judges, who indicated that they would have to refer the matter to their

superiors, decided to proceed with the hearing in private, even though article 66 of the

Organic Act of 11 April 2013 on the organization, functioning and competence of

ordinary courts grants Congolese judges very extensive powers, including with regard

to the conduct of proceedings and to the maintenance of order in the court. In addition,

Mr. Ngoyi Mutamba’s request for the press to be allowed to cover the hearing of 13

April 2015 before the appellate court was declared inadmissible by the appellate

judges and Mr. Ngoyi Mutamba was prevented from making his submissions in

appeal.

28. The source alleges that Mr. Ngoyi Mutamba is in detention for exercising

universally recognized human rights, in particular the rights to freedom of expression

and to peaceful assembly, which include the right, individually and in association with

others, to promote and protect human rights. Mr. Ngoyi Mutamba’s detention is

therefore arbitrary in that it constitutes a form of harassment that runs counter to

international human rights standards and to the corresponding obligations of the

Democratic Republic of the Congo. The detention is also arbitrary in that it is aimed at

punishing Mr. Ngoyi Mutamba and at preventing him from acting to promote and to

encourage respect for universally recognized human rights.

29. In the light of the foregoing, the source contends that Mr. Ngoyi Mutamba’s

deprivation of liberty is arbitrary and falls under categories II and III of the categories

applicable to the consideration of cases submitted to the Working Group, in that it

lacks any legal basis and runs counter to articles 7, 9, 10, 19 and 20 of the Universal

Declaration of Human Rights and to articles 9, 14, 19, 21, 22 and 26 of the

International Covenant on Civil and Political Rights, to which the Democratic

Republic of the Congo acceded on 1 November 1976.

Response from the Government

30. The Working Group notes that the Government of the Democratic Republic of

the Congo has not replied to the communication addressed to it on 9 June 2015. As the

60-day deadline for replying has long passed, the Working Group is now in a position

to conduct its deliberations, in accordance with its methods of work.

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Discussion

31. In the absence of a rebuttal from the respondent State, the Working Group must

limit itself to assessing the credibility and reliability of the source solely on the basis

of the information at its disposal. In this regard, the Working Group notes that the

source’s account is consistent and presents no contradictions. Moreover, the

allegations in the present case are similar to those made in other recent cases before

the Working Group, including opinions Nos. 25/2015 (abuse of power by officials of

the National Intelligence Agency) and 31/2015 (detention of a human rights defender).

The Working Group is therefore convinced of the accuracy of the facts as summarized

in the following paragraph.

32. Mr. Ngoyi Mutamba is a civic activist who opposes the constitutional reform of

the presidential mandate and who chose to investigate the recent violence suffered by

members of the public during the demonstrations of 19 and 20 January 2015. While he

was visiting victims of the violence on 21 January, the security forces burst into the

hospital but were unable to apprehend him. Later that day, at around 8.30 p.m., he was

arrested in the city near a hotel that is very popular with other activists. He was not

informed of any charges and knew nothing about the identity of the individuals who

arrested him. The day after his arrest, his home was searched by law enforcement

officers, who stated that he was being held at a location where his family were

subsequently unable to find him. It was not until 26 January 2015 that the Director-

General of the National Intelligence Agency stated that he was being detained on the

Agency’s premises, without specifying the exact location. It was not until 10 February

2015, almost three weeks after his arrest, that he was finally presented to the press

along with a police report detailing the charges against him. In the criminal case file,

some of the procedural documents are flawed because essential elements such as dates

and locations are missing. The public nature of the hearings in the ensuing criminal

proceedings was also affected, and the defendant complained that the schedule of the

judicial proceedings had not allowed him to prepare adequately.

33. In the Working Group’s view, in this case, Mr. Ngoyi Mutamba was the victim of

an arrest that had no legal basis and was therefore arbitrary owing to a violation of

article 9, paragraph 1, of the International Covenant on Civil and Political Rights. The

secret nature of the detention for the first three weeks throws serious doubt on the

proceedings, which are vitiated by an irregularity that is difficult to rectify. Moreover,

the right to a fair trial as established in article 14 of the International Covenant on

Civil and Political Rights includes the right to a public hearing by an independent and

impartial tribunal. That did not occur in the case in question, which means that this

fundamental right too was violated.

34. Lastly, on the basis of the information at the Working Group’s disposal, there is

no doubt that this arrest and prosecution are the result of Mr. Ngoyi Mutamba’s

activism as a human rights defender.

35. Considered as a whole, this situation of abuse hence meets the definition of

arbitrary detention under categories I, II and III of the categories applicable to the

consideration of cases submitted to the Working Group.

Disposition

36. In the light of the foregoing, the Working Group renders the following opinion:

The ongoing deprivation of liberty of Mr. Ngoyi Mutamba is arbitrary because it

lacks a legal basis, because it results from the exercise by the victim of his

fundamental rights and because his right to a fair trial has not been respected.

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His detention therefore falls under categories I, II and III of the categories

applicable to the consideration of cases submitted to the Working Group.

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

Republic of the Congo to release Mr. Ngoyi Mutamba immediately and to take all

necessary steps to remedy the serious material and moral harm that he has suffered by

providing full reparation in line with article 9, paragraph 5, of the International

Covenant on Civil and Political Rights. The Government should also ensure that an

investigation is carried out to establish the facts and to apportion responsibility, and

that any misconduct is punished.

[Adopted on 4 September 2015]