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.22-01295 (E) 280322 290322
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-first session, 6–10 September 2021
Opinion No. 31/2021 concerning Fis Murhanzi (Democratic Republic of
the Congo)
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 42/22.
2.
In accordance with its methods of work,1 on 25 February 2021 the Working Group
transmitted to the Government of the Democratic Republic of the Congo a communication
concerning Fis Murhanzi. 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).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/31
General Assembly
Distr.: General
2 February 2022
English
Original: French
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Submissions
Communication from the source
4.
Fis Murhanzi is a citizen of the Democratic Republic of the Congo who was born in
May 1973. Before his arrest, he was a student at the Protestant University of the Congo.
5.
The source explains that Mr. Murhanzi was born and had spent most of his life on the
island of Idjwi in the province of South Kivu. He belongs to the Havu ethnic group.
a.
Arrest and detention
6.
The source reports that, at 5 a.m. on 20 January 2001, a few days after the killing of
President Laurent-Désiré Kabila, Mr. Murhanzi was arrested at his home in Kinshasa by the
presidential guard. He was taken directly to a detention centre run by the presidential guard
in the Groupe Litho Moboti building. He was not shown a warrant at the time of his arrest.
7.
According to the source, during Mr. Murhanzi’s detention at the Groupe Litho Moboti
facility, he was subjected to physical and psychological torture, whose scars he still bears.
The source alleges that Mr. Murhanzi was severely beaten every day in his cell, where he
remained throughout his detention, tied by the hands and feet. This cell had no windows and
he was unable to tell day from night. Officers allegedly used pliers as an instrument of torture,
crushing his toes in order to extract incriminating statements.
8.
The source maintains that Mr. Murhanzi was questioned only about his brother, a
former member of Laurent-Désiré Kabila’s presidential guard, who in 1999 was dismissed
and imprisoned for his alleged involvement in an attempt to overthrow the Government and
for his purported links to the leader of an armed group by the name of Mr. Masasu. Mr.
Murhanzi’s brother was subsequently kidnapped and was killed in 2009 by the head of the
National Intelligence Agency.
9.
The source also reports that Mr. Murhanzi was held incommunicado at the Groupe
Litho Moboti facility between 20 January and 1 March 2001, when he was transferred to
Makala prison in Kinshasa. In this prison, he was continually tortured, with many lasting
after-effects, and was held incommunicado until 13 March 2002.
10.
The source reports that Mr. Murhanzi’s trial opened on 13 March 2002 before the
Military Court, which was composed of a general sitting as presiding judge and four senior
military officers also sitting as judges, who had been appointed by the then President.
11.
The source indicates that Mr. Murhanzi received legal assistance from a local human
rights group which was tasked with representing 135 defendants on trial for their alleged
involvement in the assassination of the President. Most of the defendants were former
members of the National Intelligence Agency and belonged to ethnic groups from South
Kivu.
12.
According to the source, the lawyer for Mr. Murhanzi and the other defendants had
only a few days before the trial to prepare their defence. The lawyer was not allowed to see
his clients’ files – including that of Mr. Murhanzi – until that time and even then only in the
presence of military personnel. He was allowed to speak with Mr. Murhanzi only once before
the trial, in early March, at a group meeting with the other defendants in Makala prison.
13.
The source reports that the trial was closed to the public and some media outlets; only
State-controlled media were allowed to attend. In addition, there was a heavy military and
police presence throughout the trial. The Prosecutor General presented no evidence against
any of the 135 defendants other than testimony. Several witnesses were convicted during the
course of the trial. Furthermore, the prosecution was given more time to present its case than
the defence.
14.
On 7 January 2003, after a 10-month trial in which international standards relating to
the right to a fair trial were allegedly violated, the Military Court delivered its judgment,
which first had to be personally approved by the President. The source claims that the Court
sentenced 30 persons, including Mr. Murhanzi, to death, and 60 to terms of imprisonment
ranging from 6 months to life; 45 persons were acquitted. Mr. Murhanzi has never been
informed of the specific laws under which this sentence was imposed. It has also been
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reported that the Court never published an official version of its judgment, which could not
be appealed at the time it was delivered. While the transitional Constitution, which entered
into force in 2006, created a right of appeal to the Supreme Court, this right is limited to
procedural matters and cannot result in a substantive review of a person’s conviction and
sentence.
15.
Regarding conditions of detention, the source states that, while in theory Mr.
Murhanzi is allowed to receive visits from his family, on whom he depends for food and
other necessities, in reality these visits are hindered by the prison staff, who regularly beat
him after visits and take away the essential items his family has brought him. The source
claims that prison officers often threaten his visitors with death and that some visitors have
been abducted or gone missing.
16.
The source indicates that Mr. Murhanzi has lived in an overcrowded cell since his
arrival in Makala prison. Inmates are regularly denied toilet access and therefore live in their
own filth. There is no bed and they sleep together on the cement floor. For the first few years
of his detention at the prison, Mr. Murhanzi was not allowed to go outside for fresh air or to
see the light of day. Currently, he is only allowed out of his cell for one minute at a time.
17.
The source also reports that Mr. Murhanzi suffers from constant severe body pain,
especially in his back and abdomen, which limits his movements. Despite his worsening
health, he has been refused the necessary medical examinations. In addition, Makala prison
does not provide food to inmates, leaving Mr. Murhanzi in a constant state of malnutrition.
18.
Furthermore, Mr. Murhanzi is said to suffer from severe mental health problems
caused by the trauma of his situation. His death sentence and the fact that he does not know
his execution date have caused his mental health to deteriorate.
19.
The source also indicates that, in 2006, a general amnesty was granted by the then
President to all political prisoners, with the express exclusion of Mr. Murhanzi and other
persons allegedly implicated in the assassination of Laurent-Désiré Kabila.
b.
Legal analysis
20.
The source submits that Mr. Murhanzi’s deprivation of liberty is arbitrary under
categories I, III and V.
i.
Category I
21.
Firstly, the source considers that the Mr. Murhanzi’s detention is arbitrary because the
military tribunal has not demonstrated its competence, in accordance with article 14 (1) of
the Covenant, to convict him, to order his detention or to impose the death penalty. According
to the source, the Covenant does not expressly prohibit the trial of civilians by military courts,
but it does require that this practice be exceptional and that military courts not be competent
to impose the death penalty.
22.
In the present case, the source claims that the authorities have never explained why it
was necessary to try Mr. Murhanzi, a civilian, in a military court. Considering that civilian
courts existed at the time of his detention and trial, the source believes that the authorities
may have proceeded in this manner because of the President’s discretionary power to appoint
judges to the Military Court and to approve its final judgment.
23.
Secondly, the source considers that the detention of Mr. Murhanzi is arbitrary owing
to the absence of an arrest warrant or of any judicial review of the detention, as required by
article 9 (1), (3) and (4) of the Covenant.
24.
Indeed, no arrest warrant was shown to Mr. Murhanzi when he was arrested on 20
January 2001. After his arrest, he was reportedly held incommunicado at the Groupe Litho
Moboti facility until 1 March 2001. He was not informed of the charges against him at any
time during this period. In Makala prison, he was held incommunicado from 1 March 2001
until a few days before the start of his trial before the military tribunal on 13 March 2002. As
a result, he was not brought before a judicial authority and could not challenge the legality
of his detention.
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25.
Thirdly, the source considers that Mr. Murhanzi’s detention is arbitrary as it does not
conform to the procedure established by law, in violation of articles 9 (1) and 15 (1) of the
Covenant and article 11 (2) of the Universal Declaration of Human Rights.
26.
The source recalls that Mr. Murhanzi was sentenced to death by the Military Court.
His detention is based on that sentence. The Court handed down its judgment on 7 January
2003 but has never provided an official transcript of the judgment to the 135 defendants. In
addition, this judgment was based on a national law authorizing the use of the death penalty,
although this law had been repealed at the time the judgment was rendered. Thus, the source
considers that Mr. Murhanzi’s detention is illegitimately based on a heavier penalty than the
one provided for by law at the time of the alleged offence. Moreover, the source refers to a
decision of the African Commission on Human and Peoples’ Rights, which concluded that
the right to a lighter penalty under article 15 (1) of the Covenant had been violated,2 as a law
providing for less severe measures had entered into force after the trial. However, the
authorities did not review Mr. Murhanzi’s sentence.
27.
For these reasons, the source argues that Mr. Murhanzi’s detention is arbitrary under
category I.
ii.
Category III
28.
The source argues, firstly, that Mr. Murhanzi did not receive a public trial even though
the information adduced during the trial was not confidential and did not present any risk
given that the assassination of Laurent-Désiré Kabila had already received extensive media
coverage. The source notes that only State-controlled media were allowed to attend the trial
and that other media outlets and the public were excluded without any justification. The
source considers that the Military Court did not provide for adequate facilities for the
attendance of interested members of the public and explains that, even in cases in which the
public is excluded from the trial, the judgment, including the essential findings, evidence and
legal reasoning, must be made public. In this case, the Court failed to make public the official
version of its judgment.
29.
The source reports that the Military Court was not impartial but was intrinsically
linked to the executive branch, since the President at the time had the discretionary power to
appoint its judges and to oversee its functioning. All the judges appointed by the President
were army officers.
30.
The sources also maintains that, during his trial, Mr. Murhanzi’s defence did not enjoy
the same rights as the prosecution, which was given much more time to present its case.
Therefore, the source considers that the Military Court could not have appeared to a
reasonable observer to be impartial, in violation of article 14 (1) of the Covenant and article
10 of the Universal Declaration of Human Rights.
31.
Secondly, the source contends that Mr. Murhanzi’s detention is arbitrary because his
right to be presumed innocent has been violated. In this regard, the source notes that the
Attorney General and the presiding judge of the Military Court agreed that the investigation
into the assassination of Laurent-Désiré Kabila should continue after the conclusion of the
trial. The source also notes that a search warrant was issued in a view to gathering evidence
related to the President’s death. According to the source, Mr. Murhanzi was presumed guilty
despite the absence of evidence proving his guilt beyond reasonable doubt.
32.
Furthermore, the source recalls that, under article 14 (2) of the Covenant, defendants
should not be presented to the court in a manner indicating that they may be dangerous
criminals. The source believes that the heavy military and police presence during Mr.
Murhanzi’s trial reinforced the presumption of guilt by presenting those on trial as dangerous
individuals.
33.
Thirdly, the source argues that Mr. Murhanzi’s detention is arbitrary owing to the
violation of his right to have adequate facilities for the preparation of his defence and his
2 African Commission on Human and Peoples’ Rights, Interights, ASADHO and Madam O. Disu v.
Democratic Republic of the Congo, decision on communications No. 274/03 and No. 282/03, para.
80.
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right to counsel, enshrined in article 14 (3) (b) and (d) of the Covenant and article 11 of the
Universal Declaration of Human Rights.
34.
In the present case, the source reports that despite being held in incommunicado
detention for more than a year, from 20 January 2001 to 13 March 2002, Mr. Murhanzi was
allowed to meet with his lawyer only once, a few days before the trial. This meeting took
place at Makala prison in the context of a group meeting with the other defendants
represented by the defence lawyer. Thus, Mr. Murhanzi was not granted prompt access to his
lawyer and was unable to consult him in private. Moreover, despite being assigned to
represent all 135 people allegedly involved in the assassination of Laurent-Désiré Kabila, the
lawyer did not have access to the files of each of these persons – including that of Mr.
Murhanzi – until just a few days before the start of the trial and was under military
surveillance while he read them. The lawyer was unable to effectively represent and prepare
the defences of each individual, including Mr. Murhanzi, within the time given.
35.
The source also submits that Mr. Murhanzi’s right to be tried without undue delay,
provided for in articles 9 (3) and (14) (c) of the Covenant and article 11 of the Universal
Declaration of Human Rights, has been violated. There is no evidence that the decision to
hold Mr. Murhanzi in pretrial detention for more than a year was based on an individualized
assessment of his case. Indeed, given that the other 134 defendants were also held
incommunicado for lengthy periods of pretrial detention, it is likely that this decision was not
made on the required individualized basis. After being placed in pretrial detention, Mr.
Murhanzi was not brought to trial within a reasonable time.
36.
The source further submits that Mr. Murhanzi’s right to have his conviction and
sentence reviewed by a higher tribunal according to law, as enshrined in article 14 (5) of the
Covenant, has been violated.
37.
The source explains that the Military Court that heard Mr. Murhanzi’s case was
established by virtue of Decree-Law No. 19, article 5 of which defines it as a court of last
resort whose judgments are not subject to appeal or opposition. By failing to provide for the
right of appeal of the persons tried by this court, the Democratic Republic of the Congo
violated article 14 (5) of the Covenant and acted with a discretion not available to it under
international law.
38.
Following Mr. Murhanzi’s conviction, the transitional Constitution established the
right to have one’s conviction reviewed by the Supreme Court – a right that includes
convictions by the Military Court. However, the Supreme Court can only review compliance
with procedural rules and not the merits of a case. Mr. Murhanzi therefore has only a
theoretical right of appeal, since in practice the Supreme Court cannot conduct a substantive
review of his conviction and sentence.
39.
For these reasons, the source argues that Mr. Murhanzi’s detention is arbitrary under
category III.
iii.
Category V
40.
The source reports that, before and after the assassination of Laurent-Désiré Kabila,
government security officials specifically targeted individuals belonging to ethnic groups
from the Kivu region, including the Havu community of which Mr. Murhanzi is a member.
According to the source, this targeting is evident from the excessive acts of torture to which
these persons are subjected, the appalling conditions of detention – worse than those of other
prisoners – in which they are held in Makala prison and their continued detention and express
exclusion from the amnesty that was granted to political prisoners in 2006.
41.
The source explains that most of the defendants tried alongside Mr. Murhanzi were
from the eastern provinces of North Kivu and South Kivu. He claims that, because Mr.
Masasu recruited child soldiers (kadogos) and members of the National Intelligence Agency
from the Kivu region, the authorities associated people from that region with Mr. Masasu and
systematically persecuted them. Mr. Murhanzi was targeted as part of this constant
persecution because he is from Kivu and thus was treated differently without objective or
reasonable grounds.
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42.
In addition, the source submits that Mr. Murhanzi has been targeted by the authorities
because of his brother, as part of the constant persecution of persons the authorities suspect
of having been associated with Mr. Masasu. According to the source, this was evident at Mr.
Murhanzi’s interrogation, which focused on his brother and his brother’s presumed
association with Mr. Masasu. Therefore, Mr. Murhanzi is a prisoner of conscience, who was
detained in place of his brother. His right not to be discriminated against was restricted not
on reasonable and objective grounds, but on the basis of his family relations.
43.
For these reasons, the source considers that the deprivation of liberty of Mr. Murhanzi
violates the right to non-discrimination under article 7 of the Universal Declaration of Human
Rights and article 26 of the Covenant and constitutes a form of arbitrary detention under
category V.
Response from the Government
44.
On 25 February 2021, the Working Group transmitted a communication to the
Government requesting it to provide detailed information on Mr. Murhanzi by 26 April 2021
at the latest. Specifically, the Working Group requested the Government to clarify the legal
provisions justifying Mr. Murhanzi’s continued detention and their compatibility with the
obligations of the Democratic Republic of the Congo under international human rights law,
in particular with the treaties that the State has ratified. Moreover, the Working Group called
upon the Government to ensure the physical and mental integrity of Mr. Murhanzi.
45.
The Working Group regrets that it did not receive a response from the Government,
nor did the Government request an extension of the time limit for its reply, as provided for
in the Working Group’s methods of work. It notes with concern that the Government has not
taken the opportunity to respond to the allegations made in the present case and in other
communications transmitted under the regular procedure.3 The Working Group invites the
Government to engage constructively with it on all allegations relating to the arbitrary
deprivation of liberty.
Discussion
46.
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.
47.
In determining whether Mr. Murhanzi’s detention is arbitrary, the Working Group has
regard to the principles established in its jurisprudence to deal 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.4 In the present case, the Government has chosen not to
challenge the prima facie credible allegations made by the source.
48.
The source argues that Mr. Murhanzi’s detention is arbitrary under categories I, III
and V. The Working Group will consider each of the source’s allegations in turn. In doing
so, it notes that Mr. Murhanzi has now been in detention for more than 20 years, following
his arrest in January 2001, and has been sentenced to death since January 2003.
Category I
49.
The source asserts that no warrant was shown to Mr. Murhanzi at the time of his arrest.
He was reportedly taken directly to the Groupe Litho Moboti detention centre, run by the
presidential guard, where he was held incommunicado for 40 days. The source alleges that
during this time, Mr. Murhanzi was not informed of the charges against him. The
Government has not provided any information or explanation in response to these allegations.
50.
Article 9 (1) and (2) of the Covenant provides that no one may be deprived of his
liberty except on such grounds and in accordance with such procedure as are established by
law and that anyone who is arrested must be informed, at the time of arrest, of the reasons
3 See opinions No. 23/2018, No. 74/2017, No. 23/2016, No. 37/2015, No. 31/2015, No. 25/2015 and
No. 16/2014.
4 A/HRC/19/57, para. 68.
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for his arrest and must be promptly informed of any charges against him. The Working Group
considers that the source has provided credible information, which has not been rebutted by
the Government, that Mr. Murhanzi was arrested without an arrest warrant, in violation of
article 9 (1).5 Mr. Murhanzi was arrested several days after the assassination of Laurent-
Désiré Kabila and there were no circumstances that would give reasonable cause for an arrest
in flagrante delicto.6 Moreover, Mr. Murhanzi was not promptly informed of the charges
against him, in violation of article 9 (2).7 As a result, the authorities did not establish a legal
basis for his arrest, in violation of article 9 of the Universal Declaration of Human Rights and
article 9 of the Covenant.
51.
Furthermore, the source claims that, on 1 March 2001, Mr. Murhanzi was transferred
to Makala prison in Kinshasa, where he continued to be held incommunicado for over a year
until a few days before the opening of his trial before a military court. Thus, Mr. Murhanzi
was allegedly held incommunicado for 40 days, from January 20 to 1 March 2001, at the
Groupe Litho Moboti centre, and then for more than a year, from 1 March 2001 to 13 March
2002, at Makala prison. According to the source, Mr. Murhanzi was not brought before a
judicial authority and was unable to challenge the legality of his detention between his arrest
in January 2001 and the opening of his trial on 13 March 2002.
52.
Under article 9 (3) of the Covenant, anyone arrested or detained on a criminal charge
must be brought promptly before a judge. As the Human Rights Committee has noted, 48
hours is ordinarily sufficient to satisfy this requirement; any delay longer than 48 hours must
remain absolutely exceptional and be justified under the circumstances.8 In this case, for
almost 14 months between his arrest and trial, Mr. Murhanzi was not brought before a judicial
authority. The Government has not refuted this allegation or explained why Mr. Murhanzi
was not brought before a judicial authority. The Working Group finds that Mr. Murhanzi was
not brought promptly before a judicial authority, in violation of article 9 (3).
53.
The Working Group underscores that, according to article 9 (3) of the Covenant, any
person arrested or detained on a criminal charge must be brought promptly before a judge or
other officer authorized by law to exercise judicial power. Although he is a civilian, Mr.
Murhanzi was tried by the Military Court. The Working Group reiterates that the review of
a civilian’s detention by a military tribunal does not satisfy the requirement of appearance
before a judge or other officer authorized by law.9 Military tribunals are not competent to
review the lawfulness of the detention of civilians because military judges and military
prosecutors do not meet the requirements of independence and impartiality.10
54.
Moreover, under article 9 (3) of the Covenant, pretrial detention must be the exception
and not the rule and should be as brief as possible.11 It must be based on an individualized
determination that it is reasonable and necessary for such purposes as to prevent flight,
interference with evidence or the recurrence of crime. 12 Courts must examine whether
alternatives to pretrial detention, such as bail, would render detention unnecessary.13 In the
5 It is not sufficient that there is a law which authorizes the arrest. The authorities must invoke that
legal basis and apply it to the circumstances of the case through an arrest warrant. See opinions No.
45/2019, para. 51; No. 44/2019, para. 52; No. 46/2018, para. 48; and No. 36/2018, para. 40.
6 Opinion No. 9/2018, para. 38.
7 CCPR/C/COD/CO/4, paras. 35–36, and CAT/C/COD/CO/2, paras. 12–13.
8 Human Rights Committee, general comment No. 35 (2014), para. 33. See also CAT/C/COD/CO/2,
paras. 12–13.
9 Opinion No. 46/2019, para. 53. See also A/HRC/27/48, para. 66, and Human Rights Committee
general comment No. 35 (2014), para. 32 (in which it is emphasized that judicial power should be
exercised by an independent, objective and impartial authority).
10 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 (A/HRC/30/37, annex), in particular
guideline 4, para. 55, and guideline 17; and Opinion No. 46/2017, para. 20.
11 A/HRC/19/57, paras. 48–58; see also opinions No. 64/2020, para. 58; No. 62/2019, paras. 27–29; and
No. 5/2019, para. 26.
12 Human Rights Committee, general comment No. 35 (2014), para. 38, and Opinion No. 45/2016, para.
51.
13 Human Rights Committee, general comment No. 35 (2014), para. 38; CCPR/C/COD/CO/4, paras.
35–36; and CAT/C/COD/CO/2, paras. 16–17.
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present case, there is no evidence that there was any individualized consideration of Mr.
Murhanzi’s circumstances, nor any ongoing periodic review, to justify his detention in
Makala prison before his trial. As the source points out, the other 134 defendants were also
held incommunicado for lengthy periods before the trial. The Working Group considers that,
in these circumstances, given the large number of defendants, an individualized review of
Mr. Murhanzi’s case was not carried out. The Government has provided no information to
refute this allegation. The Working Group therefore finds a breach of article 9 (3) of the
Covenant and article 9 of the Universal Declaration of Human Rights. The pretrial detention
of Mr. Murhanzi was not properly constituted and therefore had no legal basis.
55.
Finally, as the Working Group has indicated, holding Mr. Murhanzi incommunicado
constitutes a violation of his right to challenge the legality of his detention before a court, as
provided for in article 9 (4) of the Covenant and article 9 of the Universal Declaration of
Human Rights.14 This right applies from the moment of arrest and any substantial waiting
period before a detainee can bring a first challenge to detention is impermissible. 15 Mr.
Murhanzi did not have access to his lawyer until only a few days before his trial in March
2002 and was thus deprived of an essential safeguard that might have assisted him in
challenging the legal basis for his detention.16 Judicial oversight of detention is essential for
it to have a legal basis.17 Given that Mr. Murhanzi was unable to challenge the legality of his
detention, his right to an effective remedy under article 2 (3) of the Covenant and article 8 of
the Universal Declaration of Human Rights was also violated.
56.
For the reasons set out above, the Working Group finds that the Government has failed
to establish a legal basis for Mr. Murhanzi’s detention, which is therefore arbitrary under
category I.
Category III
57.
The source alleges numerous violations of Mr. Murhanzi’s right to a fair trial. In
considering these arguments, the Working Group has taken into account the Government’s
failure to respond to the allegations. The Working Group is mindful of the imposition of the
death penalty, which requires the scrupulous respect of fair trial guarantees.18
a.
Ability to prepare a defence
58.
According to the source, Mr. Murhanzi was held incommunicado in Makala prison
for more than a year before his trial and was only allowed to meet with his lawyer once during
this period, a few days before the trial commenced.19 This was a group meeting with other
defendants represented by the same lawyer. Consequently, Mr. Murhanzi was unable to
consult his lawyer in private and the latter, who was representing 135 defendants, was unable
to prepare properly for the trial. The lawyer did not have access to each of the defendants’
files, including that of Mr. Murhanzi, until a few days before the trial and he was under
military surveillance while he read the files.
59.
All persons deprived of their liberty have the right to legal assistance by counsel of
their own choosing at any time during their detention, including immediately after their
apprehension. Access to legal counsel must be provided without delay. 20 The failure to
provide Mr. Murhanzi with access to his lawyer from the outset of his detention, except for
one meeting held a few days before the trial, severely impaired his ability to prepare a
defence. The fact that he was sentenced to death makes this violation all the more serious.
Mr. Murhanzi’s rights to have adequate time and facilities for the preparation of his defence,
to communicate with counsel of his own choosing and to defend himself in person or through
14 Opinions No. 36/2020, para. 53, and No. 16/2020, para. 62; see also CAT/C/COD/CO/2, paras. 14–
15.
15 Human Rights Committee, general comment No. 35 (2014), para. 42.
16 Ibid., para. 35. See also opinions No. 61/2020, para. 70, and No. 40/2020, para. 29.
17 A/HRC/30/37, annex, para. 3.
18 Human Rights Committee, general comment No. 32 (2007), para. 59.
19 The Working Group considers that this meeting in no way compensates for the lengthy period of
incommunicado detention to which Mr. Murhanzi was subjected before his trial.
20 A/HRC/30/37, annex, principle 9 and guideline 8.
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legal assistance of his own choosing, guaranteed under article 14 (3) (b) and (d) of the
Covenant and articles 10 and 11 (1) of the Universal Declaration of Human Rights, have been
violated.
60.
Furthermore, Mr. Murhanzi did not meet with his lawyer in circumstances that
allowed for confidential discussion, as the meeting was held in the presence of other
defendants represented by the same lawyer. The Working Group considers that this failure to
ensure the full confidentiality of communications with counsel, as required under
international standards, was attributable to the authorities. 21 It is unlikely that a lawyer
representing 135 defendants could have held individual meetings with his clients when he
was only allowed to meet with them a few days before the trial. Moreover, the lack of a
private meeting with Mr. Murhanzi in all likelihood prevented the development of a legal
strategy specific to his case – which would not normally be divulged to other defendants –
such as a strategy based on the fact that he was being prosecuted because of his brother’s
association with the presidential guard and, allegedly, with Mr. Masasu.
61.
Similarly, the fact that one lawyer represented 135 defendants seriously impeded the
provision of effective legal representation to Mr. Murhanzi and the other defendants. It is
highly unlikely that each defendant received the necessary individual attention that would
have allowed for a fair trial, particularly for those who were sentenced to death. While the
decision to represent the group may initially have been made by the lawyer in consultation
with the defendants, the military court should not have allowed the trial to proceed under
such circumstances.22 The interests of justice required other options to be made available,
such as the appointment of counsel through publicly funded legal aid.
62.
Furthermore, every individual deprived of liberty has the right to have access to all
material related to their detention, including information that may assist the detainee in
arguing that the detention is not lawful or that the reasons for the detention no longer apply.23
The authorities must ensure that lawyers have access to files and documents in sufficient time
to enable them to provide effective assistance to their clients, and such access should be
provided at the earliest appropriate time.24 The failure to provide the lawyer with access to
Mr. Murhanzi’s file until a few days before the trial, and then providing access under military
surveillance, amounted to a further restriction of Mr. Murhanzi’s ability to prepare a
defence.25
63.
By failing to ensure confidentiality of discussions with counsel, effective legal
representation and unrestricted access to the case file, the Government has violated Mr.
Murhanzi’s rights to a fair trial and to equality of arms under article 14 (1) and (3) (b) and
(d) of the Covenant and articles 10 and 11 (1) of the Universal Declaration of Human Rights.
b.
Closed proceedings
64.
The source further alleges that Mr. Murhanzi did not receive a public hearing, as the
trial was closed to the public and only State-controlled media were permitted to attend. The
information adduced during the trial was not confidential and did not present any risk, given
that the assassination of Laurent-Désiré Kabila had already received extensive media
coverage. The lack of transparency is also evident from the fact that the Military Court has
never made public the official version of its judgment.
21 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules),
rule 61 (1); Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, principle 18 (3); and A/HRC/30/37, annex, principle 9 and guideline 8.
22 Human Rights Committee, general comment No. 32 (2007), para. 38 (in which it is stated that in
cases involving capital punishment, the accused must be effectively assisted by a lawyer at all stages
of the proceedings).
23 A/HRC/30/37, annex, principle 12 and guidelines 11 and 13.
24 Basic Principles on the Role of Lawyers, principle 21.
25 Opinions No. 78/2018, paras. 78–79; No. 18/2018, para. 53; No. 89/2017, para. 56; and No. 50/2014,
para. 77.
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65.
As the Government has not contested these allegations, the Working Group is satisfied
that the trial was conducted behind closed doors.26 There is no evidence that any of the
exceptions to the right to a public hearing set out in article 14 (1) of the Covenant were
applicable in this case. Accordingly, the Working Group concludes that the right to a public
hearing under article 14 (1) of the Covenant and articles 10 and 11 (1) of the Universal
Declaration of Human Rights was violated.
c.
Presumption of innocence
66.
According to the source, the Prosecutor General and the presiding judge of the
Military Court agreed that the investigation into the assassination of Laurent-Désiré Kabila
should continue after the conclusion of the trial. A search warrant was issued for the gathering
of evidence related to the President’s death. The source therefore concludes that Mr.
Murhanzi was presumed guilty despite the absence of evidence proving his guilt beyond
reasonable doubt. In addition, the heavy military and police presence at Mr. Murhanzi’s trial
resulted in his being presented to the court in a manner that suggested that he might be a
dangerous criminal.
67.
The Working Group considers that the agreement to continue the investigation after
the trial and the issuance of a search warrant to gather evidence suggest that Mr. Murhanzi
was not afforded the presumption of innocence and was found guilty and sentenced to death
before the events surrounding the President’s death had been clarified. Indeed, the gathering
of further evidence appears to be a tacit acknowledgement by the authorities that the evidence
against Mr. Murhanzi was insufficient for a guilty verdict.27
68.
Moreover, as the Working Group has emphasized, defendants in criminal cases should
not be presented to the court in a manner indicating that they may be dangerous criminals.28
Even if Mr. Murhanzi faced serious allegations in relation to the assassination, he was entitled
to be presumed innocent during his trial. The heavy military and police presence undermined
that presumption of innocence, in violation of article 14 (2) of the Covenant and article 11
(1) of the Universal Declaration of Human Rights.
d.
Mass trial before a military court
69.
The source submits that Mr. Murhanzi’s detention is arbitrary because he was tried by
the Military Court, which was composed of a general sitting as presiding judge and four
senior military officers also sitting as judges, who had been appointed by the President. The
authorities have not explained why it was necessary to try Mr. Murhanzi, a civilian, before a
military court, given that the ordinary civilian courts could have heard the case. Moreover,
the Court demonstrated its lack of impartiality by giving the prosecution more time to present
its case than the defence.
70.
The Working Group reiterates that military tribunals should only be competent to try
military personnel for military offences and must not try civilians under any circumstances,
whatever the charges. A court composed of military personnel, as in this case, cannot be
considered a “competent, independent and impartial tribunal” under international law.29 As
the source points out, the executive branch influenced the functioning of the Military Court,
since its judges were appointed by the President, and the judgment of 7 January 2003 by
which Mr. Murhanzi and others were sentenced to death required the personal approval of
26 Opinions No. 9/2018, para. 43; No. 36/2018, para. 53; No. 79/2017, para. 61; and No. 75/2017, para.
53.
27 African Commission on Human and Peoples’ Rights, Interights, ASADHO and Madam O. Disu v.
Democratic Republic of the Congo, decision on communications No. 274/03 and No. 282/03, paras.
73–74.
28 Human Rights Committee, general comment No. 32 (2007), para. 30; see also opinions No. 59/2020,
para. 81; No. 83/2019, para. 73; No. 36/2018, para. 55; No. 79/2017, para. 62; No. 40/2016, para. 41;
and No. 5/2010, para. 30.
29 A/HRC/27/48, paras. 66–71 and 85–86. See also opinions No. 46/2019, para. 66; No. 4/2019, para.
58; No. 73/2018, para. 61; and No. 3/2018, para. 57; CCPR/C/COD/CO/4, paras. 37–38, and
CAT/C/COD/CO/2, paras. 26–27.
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the President. As the Working Group has emphasized, military tribunals should never be
competent to impose the death penalty.30
71.
The trial of Mr. Murhanzi before a military court constituted a serious violation of his
right to a fair hearing by an independent and impartial tribunal under article 14 (1) of the
Covenant and article 10 of the Universal Declaration of Human Rights. The Working Group
is not convinced that the acquittal of 45 defendants demonstrates the independence and
impartiality of the court, as 30 people were sentenced to death and 60 were sentenced to terms
ranging from 6 months to life imprisonment for their alleged involvement in the assassination
of Laurent-Désiré Kabila.31 That the Military Court reportedly gave the prosecution more
time to present its case than the defence, which the Government has not contested, lends
weight to the Working Group’s conclusion that Mr. Murhanzi was not tried by an
independent and impartial tribunal.32 Consequently, the Working Group refers the case to the
Special Rapporteur on the independence of judges and lawyers.
72.
It appears that the Military Court tried 135 defendants together in the same
proceedings. The source does not specifically raise this issue, but refers to a judgment handed
down against the 135 defendants in January 2003. The Working Group recalls that mass trials
do not meet the standards of a fair trial, given that it is impossible in such proceedings to
determine individual criminal responsibility beyond reasonable doubt.33 In the present case,
the mass trial constituted a further violation of Mr. Murhanzi’s right to a fair trial.
e.
Undue delay
73.
The source argues that the delay in bringing Mr. Murhanzi to trial was excessive, since
he was detained for more than a year between his arrest on 20 January 2001 and the opening
of his trial on 13 March 2002.
74.
The reasonableness of any delay in bringing the case to trial has to be assessed in the
circumstances of each case, taking into account the complexity of the case, the conduct of
the accused during the proceeding and the manner in which the matter was dealt with by the
executive and judicial authorities.34 This guarantee relates not only to the time between the
formal charging of the accused and the time by which a trial should commence, but also the
time until the final judgment on appeal. All stages, whether in first instance or on appeal,
must take place without undue delay.35
75.
In the case at hand, almost two years elapsed between Mr. Murhanzi’s arrest on 20
January 2001 and the delivery of the first-instance judgment on 7 January 2003. While the
case concerned the alleged involvement of 135 individuals in the assassination of a former
President, it is unclear why Mr. Murhanzi was held in detention for almost 14 months before
a trial that lasted 10 months. There is no information to suggest that the authorities made any
effort to ensure that the proceedings were conducted in a timely manner. In fact, the
authorities may well have contributed to the prolongation of the pretrial detention and trial
by not allowing Mr. Murhanzi to meet with his lawyer until a few days before his trial. Such
a meeting could have facilitated discussion of the charges, consideration of the evidence and
clarification of any issues in dispute. The Working Group considers that the unexplained
delay of two years in adjudicating this case was unreasonable and that Mr. Murhanzi’s right
to be tried within a reasonable time and without undue delay, under articles 9 (3) and 14 (3)
(c) of the Covenant, was violated.36
30 A/HRC/27/48, para. 69 (e).
31 Opinion No. 46/2019, para. 65.
32 Opinion No. 83/2019, paras. 74–75.
33 Opinions No. 5/2020, para. 86, and No. 65/2019, para. 75.
34 Human Rights Committee, general comment No. 35 (2014), para. 37 and general comment No. 32
(2007), para. 35.
35 Human Rights Committee, general comment No. 32 (2007), para. 35.
36 Opinion No. 46/2019, para. 63 (in which a 17-month delay between arrest and first-instance
judgment, which had been explained by the Government, was not found to be unreasonable). See also
African Commission on Human and Peoples’ Rights, Interights, ASADHO and Madam O. Disu v.
Democratic Republic of the Congo, decision on communications No. 274/03 and No. 282/03, paras.
76 and 78.
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f.
Imposition of the death penalty
76.
The source submits that Mr. Murhanzi was sentenced to death despite the fact that the
national law authorizing the use of the death penalty had been repealed at the time the
judgment was handed down. Mr. Murhanzi was therefore sentenced to a harsher penalty than
that provided for by law at the time of the alleged offence. A law providing for a lighter
penalty entered into force after the trial, but the authorities did not commute Mr. Murhanzi’s
sentence and have never informed him of the law under which he was convicted.
77.
Under international human rights law, no one may be sentenced to a heavier penalty
than the one that was applicable at the time when the criminal offence was committed. If,
subsequent to the commission of the offence, provision is made by law for the imposition of
a lighter penalty, the offender should benefit thereby. Mr. Murhanzi remains in detention
under sentence of death despite the amendments to the law mentioned by the source, in
violation of articles 9 (1) and 15 (1) of the Covenant and article 11 (2) of the Universal
Declaration of Human Rights.
g.
Appeal and judgment
78.
According to the source, the Military Court was established by decree as a court of
last resort and its judgments cannot be appealed. Following Mr. Murhanzi’s conviction, the
transitional Constitution established the right to have one’s conviction – including
convictions by the Military Court – reviewed by the Supreme Court. However, the Supreme
Court cannot review Mr. Murhanzi’s conviction and sentence on the merits of the case, as
such appeals are limited to compliance with procedural rules. Furthermore, the Military Court
never published the official version of its judgment.
79.
Review of conviction and sentence by a higher tribunal is a fundamental aspect of the
right to a fair trial.37 The State has a duty to review substantively, both on the basis of
sufficiency of the evidence and of the law, the conviction and sentence, such that the
procedure allows for due consideration of the nature of the case.38 This right is of particular
importance in death penalty cases.39 In the present case, Mr. Murhanzi has never had the
opportunity to appeal on the merits, in violation of his right to have his conviction and
sentence reviewed by a higher tribunal under article 14 (5) of the Covenant and his right to
an effective remedy under article 2 (3) of the Covenant and article 8 of the Universal
Declaration of Human Rights.40
80.
The Working Group recalls that a convicted person is entitled to have access to a duly
reasoned, written judgment of the trial court. The failure of the Military Court to render a
formal judgment is a further denial of Mr. Murhanzi’s right to have his conviction and
sentence reviewed by a higher tribunal and his right to an effective remedy.41
81.
The Working Group concludes that the violations of the right to a fair trial were of
such gravity as to give Mr. Murhanzi’s detention an arbitrary character under category III.
Category V
82.
The source alleges that Mr. Murhanzi was detained as a result of discrimination based
on three grounds: (a) his ethnic origin; (b) his status as a person from the Kivu region; and
(c) his family relationship with his brother.
83.
The source reports that, before and after the assassination of Laurent-Désiré Kabila,
government security officials specifically targeted persons belonging to ethnic groups from
the Kivu region, including the Havu community of which Mr. Murhanzi is a member. This
37 See opinions No. 65/2020 and No. 27/2019.
38 Human Rights Committee, general comment No. 32 (2007), para. 48.
39 Ibid., para. 51.
40 Opinions No. 61/2020, para. 90; No. 31/2020, para. 61; No. 55/2019, para. 41; No. 21/2017, para. 54;
No. 60/2013, para. 23; and No. 34/2011, para. 11.
41 Opinions No. 46/2020, para. 61; No. 83/2019, para. 76; No. 27/2019, paras. 78–79; and No. 14/2017,
para. 55. See also article 14 (1) of the Covenant and Human Rights Committee, general comment No.
32 (2007), para. 29.
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targeting has consisted in torture, the holding of persons in worse conditions of detention
than those of other prisoners and the express exclusion of persons allegedly involved in the
assassination, including Mr. Murhanzi, from the general amnesty that was granted to political
prisoners in 2006.
84.
Mr. Murhanzi and most of the defendants tried alongside him are from the eastern
provinces of North Kivu and South Kivu. The fact that child soldiers and members of the
National Intelligence Agency were recruited by Mr. Masasu especially in this region has led
to the constant persecution of people originally from the region by the authorities. The source
also considers that Mr. Murhanzi was targeted because of his brother’s alleged association
with Mr. Masasu. The source claims that Mr. Murhanzi is a prisoner of conscience who was
detained in place of his brother.
85.
There is no information before the Working Group to suggest that Mr. Murhanzi had
ever been involved in violent criminal activities or that he was involved in the assassination
of Laurent-Désiré Kabila. The Working Group takes note of the source’s allegation, which
was not refuted by the Government, that Mr. Murhanzi’s initial interrogation after his arrest
focused solely on his brother’s association with Mr. Masasu. In these circumstances, and in
the absence of any response from the Government, the Working Group considers that the
source has credibly demonstrated that Mr. Murhanzi’s detention resulted from discrimination
based on his birth and family ties, given his brother’s presumed association with Mr. Masasu,
and on his ethnic and social origin, given that he is a member of the Havu ethnic group and
comes from the Kivu region. It appears that Mr. Murhanzi was considered guilty by
association – either directly with Mr. Masasu, based on his origins in the Kivu region, or
indirectly through his brother.42 The Working Group reaffirms that no one should be deprived
of his or her liberty for the crimes, real or not, committed by his or her family member by
birth or marriage, in a free, democratic society.43
86.
The Working Group considers that Mr. Murhanzi was deprived of his liberty on
discriminatory grounds, namely his birth, his family ties and his ethnic and social origin, in
violation of articles 2 (1) and 26 of the Covenant and articles 2 and 7 of the Universal
Declaration of Human Rights. His detention is therefore arbitrary under category V.
Conclusions
87.
The Working Group is deeply concerned for the well-being of Mr. Murhanzi, who has
now been detained for more than 20 years in circumstances in which his rights have been
manifestly violated, as can be seen from the above analysis.
88.
The information provided by the source also suggests that Mr. Murhanzi’s dignity as
a human being has not been respected. He has allegedly been tortured, physically and
psychologically, on many occasions and held in appalling conditions of detention. He has
reportedly been denied medical examinations despite living in constant pain and suffering
from malnutrition. According to the source, contact with his family has been restricted by
prison staff, who beat Mr. Murhanzi after visits and take away essential items brought by his
relatives. Prison staff have allegedly threatened visitors with death, and some have reportedly
been abducted or gone missing after their visit.
89.
The Government has not responded to any of these allegations. However, international
human rights mechanisms have widely documented that, in the detention centres of the
Democratic Republic of the Congo, torture and ill-treatment are widespread, conditions of
detention are deplorable, and prisoners have little contact with the outside world.44
90.
The Working Group urges the Government to implement the recommendations of
human rights mechanisms to address torture and ill-treatment in detention centres, including
by investigating allegations such as those made in the case of Mr. Murhanzi. The Government
42 Opinions No. 65/2019, para. 85; No. 83/2017, paras. 87–88; No. 33/2017, para. 98; and No. 1/2017,
para. 59.
43 Opinions No. 2/2021, para. 82, and No. 65/2019, para. 83.
44 See, for example, CCPR/C/COD/CO/4, paras. 31–36; CAT/C/COD/CO/2, paras. 12–13 and 20–23;
A/HRC/42/5, paras. 119.49–119.55; and A/HRC/30/32, A/HRC/30/32/Corr.1 and
A/HRC/30/32/Corr.2, paras. 36–43.
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must also take urgent steps to ensure that the conditions in all places of deprivation of liberty
meet minimum internationals standards, including the United Nations Standard Minimum
Rules for the Treatment of Prisoners (the Nelson Mandela Rules), in particular rules 12–27
and 111–118 on living conditions and health care. Furthermore, detainees’ contact with the
outside world must be maintained, in accordance with rules 43 (3) and 58 of the Nelson
Mandela Rules and principles 15, 16 and 19 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment.
91.
Mr. Murhanzi is currently under sentence of death and does not know when, if at all,
he will be executed. His mental health has reportedly deteriorated. He may be experiencing
death row phenomenon, which itself can amount to torture or cruel, inhuman or degrading
treatment or punishment.45 The Working Group requests the Government to immediately and
unconditionally release him and ensure that he receives medical care. It refers the present
case to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, the Special Rapporteur on extrajudicial, summary or arbitrary executions, and
the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.
92.
The present opinion addresses the specific circumstances of Mr. Murhanzi’s arrest
and detention. However, the Working Group urges the Government to immediately open a
judicial or other independent inquiry into the detention of all 135 persons who were tried for
their alleged involvement in the assassination of Laurent-Désiré Kabila.46 The aim of such an
inquiry should be to establish whether the detention of each of these individuals complied
with international human rights law and standards, including those outlined in this opinion,
with a view to ordering their release and granting other forms of reparation where
appropriate.47 In this regard, it must be emphasized that both the Working Group and the
African Commission on Human and Peoples’ Rights have concluded that the 135 persons
were detained and tried in circumstances that involved numerous human rights violations.
Disposition
93.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Fis Murhanzi, being in contravention of articles 2, 7, 8,
9, 10 and 11 of the Universal Declaration of Human Rights and articles 2 (1) and (3),
9, 14, 15 (1) and 26 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I, III and V.
94.
The Working Group requests the Government of the Democratic Republic of the
Congo to take the steps necessary to remedy the situation of Mr. Murhanzi 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.
95.
The Working Group considers that, taking into account all the circumstances of the
case, in particular the risk of harm to Mr. Murhanzi’s health, the appropriate remedy would
be to release Mr. Murhanzi immediately and accord him an enforceable right to compensation
and other reparations, in accordance with international law.48 In the current context of the
global COVID-19 pandemic and the threat that it poses in places of detention, the Working
Group calls upon the Government to take urgent action to ensure the immediate release of
Mr. Murhanzi.
96.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
45 A/67/279, paras. 42–51 and A/HRC/30/18, paras. 30–31. See also opinion No. 4/2021, para. 110.
46 While 45 of the 135 individuals were acquitted, they had reportedly been held incommunicado in
pretrial detention for lengthy periods.
47 See Working Group deliberation No. 10 (A/HRC/45/16, annex I), which specifies the forms of
reparation available for arbitrary detention, including examples of measures of restitution,
rehabilitation, satisfaction, compensation and guarantees of non-repetition.
48 Ibid.
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Murhanzi and to take appropriate measures against those responsible for the violation of his
rights.
97.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
this case to the Special Rapporteur on the independence of judges and lawyers, the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the
Special Rapporteur on extrajudicial, summary or arbitrary executions 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.
98.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
99.
The Working Group requests the Government to establish an official moratorium on
all executions, with a view to abolishing the death penalty, and to accede to the Second
Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the
abolition of the death penalty.49
Follow-up procedure
100.
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. Murhanzi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Murhanzi;
(c)
Whether an investigation has been conducted into the violation of Mr.
Murhanzi’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.
101.
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.
102.
The Working Group requests the source and the Government to provide the above-
mentioned 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.
103.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has 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.50
[Adopted on 8 September 2021]
49 CCPR/C/COD/CO/4, paras. 23–24, and CAT/C/COD/CO/2, paras. 36–37.
50 See Human Rights Council resolution 42/22, paras. 3 and 7.