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.19-16507 (E) 251119 251119
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-fifth session, 12–16 August 2019
Opinion No. 37/2019 concerning Germain Rukuki (Burundi)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. 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 19 March 2019 the
Working Group transmitted to the Government of Burundi a communication concerning
Germain Rukuki. 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/2019/37
General Assembly
Distr.: General
25 September 2019
English
Original: French
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Submissions
Communication from the source
4.
Germain Rukuki is an employee of l’Association des juristes catholiques du Burundi
(Burundi Association of Catholic Jurists) and the president of Njabutsa Tujane, a
community association with the aims of combating poverty and hunger through
agrosilvopastoral production and improvements to public health. He is also a former
employee of Action by Christians for the Abolition of Torture in Burundi (ACAT-Burundi),
which documents acts of torture and other crimes committed in the country, particularly
those committed by the authorities.
5.
According to the source, on 13 July 2017 at approximately 6 a.m., members of the
Bujumbura municipal police force came to Mr. Rukuki’s home and conducted a search,
during which they seized his wife’s computer. They then arrested Mr. Rukuki without
having shown a warrant. Mr. Rukuki was subsequently escorted by four police vehicles to
the premises of l’Association des juristes catholiques du Burundi, where his computer and
various documents were confiscated.
6.
The source explains that the operation was led by a police detective, in cooperation
with the National Intelligence Service.
7.
On the same day, the National Intelligence Service apparently confirmed to the
Independent National Human Rights Commission that Mr. Rukuki had been arrested.
8.
The source reports that, on 26 July 2017, after 13 days’ detention in a National
Intelligence Service facility, Mr. Rukuki was transferred to Ngozi prison without having
been interviewed by the prosecutor who had issued the warrant for his arrest, in violation of
article 111 of the Code of Criminal Procedure. During his detention, Mr. Rukuki was not
allowed any visits by his family and could not contact his lawyer, although he was
questioned several times.
9.
The source indicates that Mr. Rukuki’s first hearing took place on 1 August 2017.
On that date, he testified before the deputy public prosecutor, who represents the public
prosecution service in cases related to the attempted coup d’état of 13 May 2015. At the
hearing, Mr. Rukuki was charged with threatening the internal security of the State and
with rebellion, for having worked with ACAT-Burundi, a human rights organization that
the Government had deregistered in October 2016. According to the authorities, ACAT-
Burundi had organized demonstrations in April 2015 to protest against the current
President’s bid for a third term in office and had taken part in the attempted coup d’état of
May 2015 and contributed to reports that were critical of Burundian institutions. It had also
reportedly repudiated the decision by the Ministry of the Interior to deregister it.
10.
According to the source, a chambers hearing was held at Ngozi prison on 14 August
2017 to determine the legality of Mr. Rukuki’s pretrial detention. At the hearing, the public
prosecution service accused Mr. Rukuki of representing ACAT in Burundi, without
presenting any significant evidence of guilt, in breach of article 110 of the Code of
Criminal Procedure. Moreover, the public prosecution service allegedly based its
accusations on evidence found among the belongings of Mr. Rukuki’s wife, which
constitutes a violation of article 18 of the Criminal Code on the personal nature of criminal
responsibility.
11.
On 17 August 2017, in a chambers hearing, the Ntahangwa Tribunal de Grande
Instance (court of major jurisdiction) upheld the decision to place Mr. Rukuki in pretrial
detention. On 25 August 2017, the clerk of the Ntahangwa court notified Mr. Rukuki of the
order issued on 17 August 2017 by the court in chambers to maintain his detention. On the
same day, Mr. Rukuki’s defence counsel lodged an appeal against the order with the
Bujumbura Court of Appeal. On 27 October 2017, the Bujumbura Court of Appeal heard
the parties in a hearing at Ngozi prison, following which it reserved its judgment.
12.
The source explains that Mr. Rukuki and his lawyers were given the opportunity to
speak at the hearing, at which they explained that the appeal was based on the lack of
significant evidence of guilt, given that the email exchange on which the public prosecution
service was basing its charges dated from a period in which ACAT-Burundi was operating
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legally in Burundi. They therefore requested that Mr. Rukuki be released. The defence
lawyers also highlighted several blatant breaches of criminal procedure which had been
committed, from the arbitrary arrest of Mr. Rukuki, with no warrant shown, to his
interrogation at the National Intelligence Service facility without his lawyers being present
and the issuance of his arrest warrant with no preliminary examination, again in the absence
of his lawyers. The public prosecution service opposed Mr. Rukuki’s release, arguing that
he “might go and join the other persons exiled abroad who were involved in the case”. On
31 October 2017, the Bujumbura Court of Appeal upheld the continued detention of Mr.
Rukuki.
13.
The source also reports that on 13 February 2018 Ntahangwa court introduced new
charges against Mr. Rukuki, for the murder of military personnel, police officers and
civilians, damage to public and private buildings and the attempted overthrow of the
democratically elected Government. The defence reiterated the procedural irregularities in
Mr. Rukuki’s case and asked the court to rule first on the irregularities before considering
the merits. At that point, Mr. Rukuki’s counsel had only had access to 3 of the 174 items in
his case file. Moreover, Mr. Rukuki had been summoned to appear at the hearing on the
same day it was held, in contravention of the eight-day period required by law between the
date of the summons and the date of the hearing. Finally, the three new charges were added
without a prior period of investigation. The defence therefore asserted that the summons
served to Mr. Rukuki for the hearing was irregular. The court did not rule on the merits but
authorized the defence to acquire a copy of the full prosecution file and adjourned the case
until 27 February 2018. The hearings scheduled for 27 February and 27 March 2018 were
postponed.
14.
On 26 April 2018, the Ntahangwa court sentenced Mr. Rukuki to 32 years’
imprisonment for participation in an insurrectional movement, threatening the internal
security of the State and rebellion. Neither Mr. Rukuki nor his lawyers were present when
the sentence was handed down. Mr. Rukuki filed an appeal against the judgment on 29 May
2018.
15.
The source further reports that Mr. Rukuki underwent surgery in Ngozi hospital on
11 June 2018, after fracturing his ankle and injuring his shoulder in prison on 7 June 2018.
On 18 June 2018, Mr. Rukuki was transferred back to Ngozi prison, despite the fact that his
condition was still critical and that he had requested to stay in hospital to continue receiving
treatment.
Response from the Government
16.
The Working Group sent the relevant communication to the Government on 19
March 2019, informing it that it had until 20 May 2019 to respond.
17.
As at the present date, the Government has not replied to the communication and has
not requested an extension of the deadline.
18.
However, on 7 June 2019, the Government sent a note verbale informing the
Working Group that ACAT-Burundi had been removed from the register of civil society
organizations and asking it to give no credence to the information provided by that
organization. The Government did not specify whether or not this correspondence was
related to the present case.
Further comments from the source
19.
On 22 July 2019, the source informed the Working Group that the court of appeal
had upheld Mr. Rukuki’s sentence of 32 years’ imprisonment.
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
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understood to rest upon the Government, if it wishes to disprove 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. The Working Group considers the
source’s allegations to be credible, given the detailed and consistent information that was
provided.
22.
With regard to the Government’s note verbale of 7 June 2019, the Working Group
points out that, contrary to the argument put forward by the Government, there is no rule
stipulating that only an organization recognized by the State can be regarded as credible in
proceedings before the Working Group. This is especially relevant as in principle the State
does not know the identity of the source who contacted the Working Group, owing to the
preservation of the anonymity of sources under the rules approved by the Human Rights
Council, especially article 8 (b) of the Code of Conduct for Special Procedures Mandate-
holders of the Human Rights Council.1 Finally, the Working Group notes that although Mr.
Rukuki did once work for ACAT-Burundi, that in no way means that the organization is the
source in the present case. The Working Group therefore considers the Government’s note
verbale to be irrelevant.
23.
In terms of the merits, the Working Group notes that Mr. Rukuki was arrested
without a warrant and without being duly informed, at the time of his arrest, of the reasons
for the deprivation of his liberty. As the Working Group has consistently found in its
jurisprudence, that constitutes a violation of his rights under article 9 (1) of the International
Covenant on Civil and Political Rights.2
24.
The Working Group also notes that Mr. Rukuki was arrested on 13 July 2017 but
was not brought before a judge until 14 August 2017. The Working Group considers that
such a delay constitutes a breach of the State party’s obligations under article 9 (3) and (4)
of the International Covenant on Civil and Political Rights, which provide that anyone who
is arrested must be brought promptly before a judge and is entitled to take proceedings
before a court to have the lawfulness of his or her detention reviewed. Thus, the continued
detention of Mr. Rukuki during this period had no legal basis.
25.
Consequently, Mr. Rukuki’s arrest and detention under these circumstances are
arbitrary under category I.
26.
In addition, the Working Group has no doubt that Mr. Rukuki is a human rights
defender. According to the facts related by the source and not refuted by the Government,
Mr. Rukuki had worked and was working at the time of his arrest for organizations
promoting human rights in various areas of activity. The source states that this was the
main reason for his arrest and detention. The generic character of the charges and their
nature confirm this point of view. Mr. Rukuki is accused of insurrection and rebellion,
charges which are not clearly defined, especially since no specific detail is given to confirm
that such crimes, which would threaten the very existence of the State, have actually been
committed.
27.
As a human rights defender, Mr. Rukuki is entitled to protection and his activity
should not be subject to criminal prosecution.
28.
Furthermore, the Working Group considers that the Government’s note verbale of
the Government of 7 June 2019 substantially supports the source’s allegation that Mr.
Rukuki’s association with ACAT-Burundi and his human rights work more generally, in
the current situation in Burundi as described in previous opinions,3 are the cause of the
arrest, detention and prosecution he is facing.
29.
In the opinion of the Working Group, the only basis for Mr. Rukuki’s arrest and
continued detention are his enjoyment of his right to freedom of association (article 20 of
the Universal Declaration of Human Rights and article 22 of the International Covenant on
Civil and Political Rights) and freedom of expression and opinion (article 19 of the
1 See Human Rights Council resolution 5/2, annex.
2 See, for example, opinions No. 36/2018, No. 75/2017 and No. 46/2017.
3 Opinions No. 7/2018, No. 8/2016, No. 30/2015 and No. 33/2014.
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Declaration and article 19 of the Covenant), exercised in his capacity as a human rights
defender. This renders the detention arbitrary under category II.
30.
Under these circumstances, Mr. Rukuki should not have been tried. However, a trial
did take place and Mr. Rukuki was sentenced by the court of first instance to 32 years’
imprisonment, in a judgment upheld on appeal. The Working Group will therefore also
consider alleged violations of his right to a fair trial.
31.
The source reports that Mr. Rukuki did not have access to legal assistance from the
outset of his detention or during questioning by National Intelligence Service officers. The
right to legal assistance and representation provided for by article 14 (3) (d) of the
International Covenant on Civil and Political Rights is inseparable from criminal procedure
and any violation of that right is especially serious. The source also reports that Mr. Rukuki
was not able to communicate with either his family or his lawyers during the first days of
his detention, which prevented him from preparing his defence. It must be added that, in
accordance with article 14 (3) (g) of the Covenant, no one may be compelled to testify
against him or herself. Detained persons who do not have assistance from a lawyer during
detention are at risk of making involuntary confessions. Lastly, the Working Group is
surprised by the sentence imposed at the end of proceedings since, based on the facts
presented, it is not justifiable in principle and also seems disproportionate given the lack of
material facts to support the charges.
32.
The severity of these multiple violations of Mr. Rukuki’s right to a fair trial renders
his continued detention arbitrary under category III.
33.
Furthermore, the Working Group is of the opinion that Mr. Rukuki’s status makes it
necessary to refer the case to the Special Rapporteur on the situation of human rights
defenders for appropriate action.
34.
The Working Group is also concerned about the health of Mr. Rukuki in the prison
environment. For monitoring of this critical situation, and in consideration of Mr. Rukuki’s
right to health, the Working Group has decided to refer the case to the Special Rapporteur
on the right of everyone to the enjoyment of the highest attainable standard of physical and
mental health.
Disposition
35.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Germain Rukuki, being in contravention of articles 19
and 20 of the Universal Declaration of Human Rights and articles 9, 14, 19 and 22
of the International Covenant on Civil and Political Rights, is arbitrary and falls
within categories I, II and III.
36.
The Working Group requests the Government of Burundi to take the steps necessary
to remedy the situation of Mr. Rukuki 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.
37.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Rukuki immediately and accord him
an enforceable right to compensation and other reparations, in accordance with
international law.
38.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Rukuki and to take appropriate measures against those responsible for the violation of his
rights.
39.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on the situation of human rights defenders
and the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health for appropriate action.
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40.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
41.
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:
(a)
Whether Mr. Rukuki has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Rukuki;
(c)
Whether an investigation has been conducted into the violation of Mr.
Rukuki’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 Burundi with its international obligations, in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
42.
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.
43.
The Working Group requests the source and the Government to provide the above
information within six months of the date of 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.
44.
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.4
[Adopted on 13 August 2019]
4 Human Rights Council resolution 33/30, paras. 3 and 7.