Opinion; Subjects: DEMOCRATIC REPUBLIC OF THE CONGO, 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.18-14027 (E) 300818 310818
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-first session, 17–26 April 2018
Opinion No. 23/2018 concerning Gustave Bagayamukwe Tadji
(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. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 33/30.
2.
In accordance with its methods of work (A/HRC/36/38), on 1 December 2017 the
Working Group transmitted to the Government of the Democratic Republic of the Congo a
communication concerning Gustave Bagayamukwe Tadji. 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 him or her) (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 Covenant (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);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
United Nations
A/HRC/WGAD/2018/23
General Assembly
Distr.: General
27 August 2018
English
Original: French
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Submissions
Communication from the source
4.
Gustave Bagayamukwe Tadji, born in 1954, is a Congolese national. He normally
resides in Bukavu, South Kivu.
5.
According to the source, Mr. Bagayamukwe Tadji was an industrial electronics and
aeronautic telecommunications engineer. He worked for 20 years for the Central Bank of
Congo. On 31 December 2010, the President of the Republic dismissed him. The source
contends that the cause of the dismissal was a campaign for intercommunal peace and
reconciliation that Mr. Bagayamukwe Tadji led in August 2010. Mr. Bagayamukwe Tadji
was also the national president of a non-governmental organization (NGO), the Association
for the Defence of the Interests of Kivu-Bukavu (Association pour la défense des intérêts
du Kivu-Bukavu), and the president of the coordination committee and the interim high
council of the Union of Revolutionary Forces of the Congo (Union des forces
révolutionnaires du Congo). Mr. Bagayamukwe Tadji advocated for the creation of a new,
decent State and nation in the Democratic Republic of the Congo.
6.
According to the source, the Association, with the approval of the provincial
governor and the leaders of the tribal and ethnic mutual aid associations of South Kivu, had
decided to eliminate armed groups in South Kivu. To this end, it had set up “people’s self-
defence forces” to compensate for the shortcomings of the country’s security forces,
whether the army or the police, in non-urban areas. However, the source submits that the
governor then ordered the arrest of the movement’s leaders, whom he considered to be
rebels. In response, the leaders, once back in their respective provinces, formed the Union
of Revolutionary Forces and designated Mr. Bagayamukwe Tadji as its president.
7.
According to the source, Mr. Bagayamukwe Tadji was arrested on 10 February 2013
at 5.30 a.m. for allegedly committing a political offence, but he was not shown a warrant.
The arrest did not take place at his home but at a cousin’s. He was then taken by
presidential jet to Kinshasa. The source submits that Mr. Bagayamukwe Tadji was
blindfolded and his hands and feet tied and that a weapon was trained on him. He was
subjected to threats during the journey, then stripped and thrown naked into a dungeon. It
was not until a week later that he learned that he was in Kinshasa. The arrest order had been
issued by the governor of the Province of South Kivu. Mr. Bagayamukwe Tadji has been
detained ever since. A week after his arrest, Mr. Bagayamukwe Tadji’s cousin was also
arrested.
8.
According to the source, Mr. Bagayamukwe Tadji is being held by order of the
governor of South Kivu, the general manager of the National Intelligence Agency and the
President of the Republic.
9.
Between 10 February and 23 May 2013, Mr. Bagayamukwe Tadji was held in a cell
on the premises of the National Intelligence Agency. On 23 May 2013, Mr. Bagayamukwe
Tadji was transferred to Ndolo military prison in Kinshasa. He is currently being held at the
military hospital on Kokolo base in Kinshasa.
10.
The source indicates that, on 23 May 2013, Mr. Bagayamukwe Tadji learned from
the military and civil authorities that he was being held for leading an insurrection
movement in collusion with the M23 armed group. He also learned that the military justice
system had initiated legal proceedings against him to prevent “participation in an
insurrection movement” under articles 136 and 137 of the Ordinary Criminal Code, which
criminalize the establishment of an armed coalition whose aim is to destabilize State
institutions and take power by force.
11.
More specifically, according to the interlocutory decision of 11 August 2016 of the
military court of Kinshasa-Gombe garrison, Mr. Bagayamukwe Tadji was being prosecuted
for “taking part in collective violence likely to jeopardize the institutions of the Democratic
Republic of the Congo or to undermine its territorial integrity.” The decision was based on
the fact that he had “between June 2012 and January 2013 [formed] an armed coalition
whose goal was to destabilize the institutions of the [Democratic Republic of the Congo]
and take power by force, in collusion with M23, by taking active part, on behalf of the
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insurrection movement, in a meeting in Rumangabo (North Kivu), together with Mr.
Nziramakenga Ruzandiza Emmanuel, also known as Sultan or Makenda, Kahasha Rurula
and Albert Foca Mike of M23, as well as Ndushi Songa of the Raia Mutomboki group, to
plan attacks on the cities of Bukavu and Uvira.”
12.
The indictment notwithstanding, Mr. Bagayamukwe Tadji was never sentenced on
the merits of the case. According to the source, the investigation (reference No. RP603/013)
proceeded normally until Act No. 014/006 on amnesty for acts of insurrection, acts of war
and political offences was promulgated on 11 February 2014. On 15 February 2014, the
public prosecutor’s office requested the acquittal of the defendants, including Mr.
Bagayamukwe Tadji. The judge reserved judgment. On two different occasions, Mr.
Bagayamukwe Tadji made the pledge that is a prerequisite for the granting of amnesty.
However, amnesty was denied and no judgment was issued. Mr. Bagayamukwe Tadji’s
four co-defendants, on the other hand, were amnestied under the Act and were released on
30 April 2014.
13.
In addition, the source claims that Mr. Bagayamukwe Tadji is a civilian and that a
military court is therefore incompetent ratione personae to try his case. There was no legal
basis for his referral to this court.
14.
According to the source, on 23 May 2016, Mr. Bagayamukwe Tadji was diagnosed
with cancer that cannot be treated in the Democratic Republic of the Congo. He has been
hospitalized ever since. His doctors are of the view that he needs to undergo treatment
abroad, but the Government has not authorized him to make the trip on humanitarian
grounds.
Deprivation of liberty under category I
15.
The source indicates that Mr. Bagayamukwe Tadji has never been tried or convicted
for the acts of which he stands accused as the proceedings were interrupted by the
enactment of the aforementioned law on amnesty, for which, according to the source, Mr.
Bagayamukwe Tadji was eligible. Mr. Bagayamukwe Tadji requested that the law be
applied to his case, but all his requests were dismissed despite the fact that he has not been
convicted on the merits.
Deprivation of liberty under category II
16.
According to the source, the reasons behind Mr. Bagayamukwe Tadji’s arrest and
detention are his membership in and activities in connection with various associations. Thus,
his arrest is due to his exercising his right to freedom of association, of assembly, of
opinion and of expression as enshrined in articles 19 and 20 of the Universal Declaration of
Human Rights and articles 19 and 21 of the Covenant.
Deprivation of liberty under category III
17.
According to the source, although Mr. Bagayamukwe Tadji was charged with
offences provided for in domestic legislation, he was unable to exercise his right to a
defence or receive a fair trial. Indeed, it was not until three months after his arrest, i.e. on 25
May 2013, that he was allowed to meet with a lawyer and relatives.
18.
Furthermore, between 10 February and 23 May 2013, Mr. Bagayamukwe Tadji was
held with no legal basis and without being formally charged. Moreover, as mentioned
above, Mr. Bagayamukwe Tadji should not have been referred to a military court given his
status as a civilian.
Response from the Government
19.
On 1 December 2017, the Working Group transmitted the source’s claims to the
Government under its regular communication procedure. It requested the Government to
provide its response no later than 30 January 2018. To date, the Government has neither
replied nor requested an extension of the deadline, as permitted under the Working Group’s
methods of work.
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Discussion
20.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
21.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations (see
A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source.
22.
In the light of all the information received, the Working Group considers that the
source has made credible prima facie allegations that can be summarized as follows: Mr.
Bagayamukwe Tadji was president of the Union of Revolutionary Forces of the Congo, a
group that opposed the Government. Mr. Bagayamukwe Tadji was arrested and detained by
the Government and placed under the authority of the National Intelligence Agency on 10
February 2013. Proceedings were under way against him before a military court for
“participation in an insurrection movement” until the promulgation, on 11 February 2014,
of a law on amnesty, of which Mr. Bagayamukwe Tadji should have been able to avail
himself. However, despite making the pledge required under article 5 of the amnesty law,
he remains detained at the military prison in Kinshasa although his health is deteriorating
and requires treatment that is not available in the Democratic Republic of the Congo.
Violations under category I
23.
The Working Group notes that Mr. Bagayamukwe Tadji was arrested on 10
February 2013 and was held without being shown an arrest warrant. On 23 May 2013, in
other words over three months after his arrest, he learned from the authorities that he was
being detained for allegedly leading an insurrection movement in collusion with the M23
armed group. During this period, Mr. Bagayamukwe Tadji was held in a solitary
confinement and, consequently, did not have access to a judge. Therefore, the Working
Group believes that it has been established that the Democratic Republic of the Congo
violated rights enshrined in article 9 of the Covenant and recalled in principles 2 and 36 of
General Assembly resolution 43/173.
24.
Consequently, the Working Group finds that Mr. Bagayamukwe Tadji was detained
without legal basis for this period and that his arrest and ensuing detention fall under
category I.
25.
The Working Group also notes that Mr. Bagayamukwe Tadji was arrested and
transported blindfolded, with his hands tied and, reportedly, with a weapon constantly
trained on him and was then stripped naked and put in a cell on the premises of the National
Intelligence Agency. He remained in isolation for over three months without contact with
his family or defence counsel. His treatment as described, especially his extended solitary
confinement, would constitute inhuman and degrading treatment and violates article 5 of
the Universal Declaration of Human Rights, articles 7 and 10 of the Covenant, articles 1
and 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, 1 article 5 of the African Charter on Human and Peoples’ Rights, 2 and
principles 6 and 21 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment adopted by the General Assembly in resolution 43/173.
Without ruling on the source’s claims of degrading treatment, the Working Group is of the
view that the claims should be transmitted to the Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment in accordance with paragraph 33 (a)
of its methods of work.
1 The Democratic Republic of the Congo ratified the Convention against Torture on 18 March 1996.
2 The Democratic Republic of the Congo ratified the African Charter on 20 July 1987.
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Violations under category II
26.
The Working Group notes that Mr. Bagayamukwe Tadji was the national president
of the NGO Association for the Defence of the Interests of Kivu-Bukavu, whose aim was to
eliminate armed groups in South Kivu by establishing people’s self-defence forces to
compensate for the gaps in army and police services. The members of the Association were
declared rebels and arrested by the Congolese authorities. On their return, they founded the
Union of Revolutionary Forces of the Congo, of which Mr. Bagayamukwe Tadji was
appointed president. The Union opposes the Government’s policies. Mr. Bagayamukwe
Tadji has expressed his desire to reform the Democratic Republic of the Congo.
27.
The source submits that Mr. Bagayamukwe Tadji is a civil society activist. In the
absence of a reply from the Government, the Working Group deems the source’s claims to
be credible. However, on this specific point, based on the information available in the
public domain, i.e. local and international press and various studies, it is not always clearly
established that the organizations led by Mr. Bagayamukwe Tadji were exclusively civilian
in nature. In the Democratic Republic of the Congo, there has been a proliferation of armed
movements in response to the failing State such that it has become tricky to distinguish
between purely civilian, military and paramilitary movements. In fact, the source even
states that one of the organizations to which Mr. Bagayamukwe Tadji belonged had begun a
self-defence programme, which proves that, at that time at least, the organization had a
military or paramilitary dimension. Moreover, the source recalls that Mr. Bagayamukwe
Tadji wished to benefit from the amnesty afforded to members of armed groups, which
could constitute an indirect confession of his membership in such a group. Under these
circumstances, the Working Group cannot give credence to the source’s argument that Mr.
Bagayamukwe Tadji was arrested and detained merely for exercising his right to freedom
of expression, of opinion and of association, including with regard to political affairs.
Consequently, the Working Group finds that his detention does not fall under category II.
Violations under category III
28.
In addition, the Working Group notes that Mr. Bagayamukwe Tadji has been
detained for five years and that his trial has not led to a judicial decision on his
responsibility or guilt despite the fact that he has a right to be tried within a reasonable
period in keeping with articles 9 and 14 of the Covenant and article 7 of the African Charter
on Human and Peoples’ Rights.
29.
The Working Group finds that the source’s claims raise other violations of the right
to a fair trial, in particular the right to receive visits from relatives3 and the right to access to
a lawyer.4
30.
These violations have a significant impact on the right to a fair trial. Therefore, the
Working Group finds that Mr. Bagayamukwe Tadji’s ongoing detention has become
arbitrary and falls under category III.
Violations under category V
31.
The Working Group also notes that Mr. Bagayamukwe Tadji was arrested under
articles 136 and 138 of the Ordinary Criminal Code, which criminalize the establishment of
an armed coalition whose aim is to destabilize State institutions and take power by force.
However, the Working Group remarks that the amnesty law enacted on 11 February 2014
applies to the acts of insurrection of which Mr. Bagayamukwe Tadji stands accused.
Despite having made the pledge in accordance with the formal requirements under the
amnesty law, Mr. Bagayamukwe Tadji remains detained and his case has not been heard.
The Working Group further notes that other members of the Union of Revolutionary Forces
3 Rules 43, 58 and 106 of the United Nations Standard Minimum Rules for the Treatment of Prisoners
(Nelson Mandela Rules) and principle 19 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment.
4 See the United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, principles 9 and 10.
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of the Congo have been released pursuant to the amnesty law. Accordingly, the Working
Group finds that this differential treatment is unjustified unless the Government or the
justice system provides the reasons for it.5 In the light of the Government’s silence, the
Working Group is of the view that the principle of equality before the law has been
breached with regard to Mr. Bagayamukwe Tadji, in violation of article 26 of the Covenant
and article 1 of the Universal Declaration of Human Rights. This breach leads to a finding
in favour of the source in respect of category V.
32.
In addition, the Working Group notes that Mr. Bagayamukwe Tadji has been
diagnosed with cancer for which treatment is not available in the Democratic Republic of
the Congo and therefore requires his transfer to a foreign hospital. Yet, the authorities have
opposed his transfer, so Mr. Bagayamukwe Tadji is in a military hospital on Kokolo base in
Kinshasa, where he is not receiving the appropriate care for his condition. The Working
Group is of the opinion that the refusal to have him transferred is a violation of rules 25 and
27 of the Nelson Mandela Rules and runs contrary to the Working Group’s opinion No.
35/2016 on the obligation to give special attention to persons with special health-care needs,
which provides that the failure to take such measures would add gravity to the arbitrariness
of the deprivation of liberty. Accordingly, it is apposite to draw the attention of the relevant
special procedure to the matter.
33.
Lastly, the Working Group considers it appropriate to refer the present case to the
following special procedures: the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment and the Special Rapporteur on the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health.
Disposition
34.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Gustave Bagayamukwe Tadji, being in contravention
of articles 1, 9 and 10 of the Universal Declaration of Human Rights and of articles
9, 14 and 26 of the International Covenant on Civil and Political Rights, is arbitrary
and falls within categories I, III and V.
35.
The Working Group requests the Government of the Democratic Republic of the
Congo to take the steps necessary to remedy the situation of Gustave Bagayamukwe Tadji
without delay and bring it into conformity with the relevant international norms, including
those set out in the Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights.
36.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Gustave Bagayamukwe Tadji immediately
and accord him an enforceable right to reparation, including compensation and a guarantee
of non-repetition, in accordance with international law, and to provide him with medical
care as needed and appropriate for his condition.
37.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Bagayamukwe Tadji and to take appropriate measures against those responsible for the
violation of his rights.
38.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment and to the Special Rapporteur on the right of everyone
to the enjoyment of the highest attainable standard of physical and mental health.
Follow-up procedure
39.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
5 See O’Neill and Quinn v. Ireland (CCPR/C/87/D/1314/2004), Human Rights Committee, para. 8.3.
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(a)
Whether Mr. Bagayamukwe Tadji has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr.
Bagayamukwe Tadji;
(c)
Whether an investigation has been conducted into the violation of Mr.
Bagayamukwe Tadji’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of the Democratic Republic of the Congo with its
international obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
40.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
41.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
42.
The Government should disseminate through all available means the present opinion
among all stakeholders.
43.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.6
[Adopted on 23 April 2018]
6 See Human Rights Council resolution 33/30, paras. 3 and 7.