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A/HRC/WGAD/2019/37

Opinion no. 37/2019 concerning Germain Rukuki (Burundi)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2019-08-16 · en UN

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.