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.22-01639 (E) 230322 240322
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-second session, 15–19 November 2021
Opinion No. 65/2021 concerning Fabien Banciryanino (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 42/22.
2.
In accordance with its methods of work,1 on 20 August 2021 the Working Group
transmitted to the Government of Burundi a communication concerning Fabien
Banciryanino. 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/2021/65
General Assembly
Distr.: General
8 February 2022
English
Original: French
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Submissions
Communication from the source
4.
Fabien Banciryanino is a Burundian citizen born in 1960. He holds a passport issued
by the General Commissariat for Migration. According to the source, Mr. Banciryanino
represented the people of Burundi as a member of the National Assembly from 2015 to 2020.
At the time of the events in question, he was living in the industrial district in Ngagara,
Bujumbura Mairie.
(a)
Arrest and detention
5.
According to the source, on 2 October 2020, Mr. Banciryanino was arrested at his
home by 13 police officers and a senior officer from the Ngagara municipal police station as
he was preparing to hold a press conference to deny social media reports that he had insulted
the then Head of State. Following his arrest, he was detained for six days in the cells of the
Special Investigation Bureau and underwent questioning. He was then brought before the
public prosecutor of the Ntahangwa Tribunal de grande instance (court of major
jurisdiction), in Bujumbura Mairie, before an arrest warrant was served on him.
6.
The source explains that, while serving as a member of parliament, Mr. Banciryanino
made remarks that the authorities considered to be contrary to articles 39, 267 (2) and 625 of
the Criminal Code. He is alleged to have undermined the internal security of the State by
remarking that then President Pierre Nkurunziza had governed the country poorly and bore
responsibility in relation to crimes against humanity and by opposing the conferral of the title
of Supreme Guide of Patriotism upon the President during the plenary meeting of the
National Assembly in which a bill to confer such a title on him was put to a vote.
7.
The source adds that Mr. Banciryanino is also accused of blaming the Government of
Burundi for the persecution of Burundian refugees repatriated from the Democratic Republic
of the Congo and attempting to organize an illegal meeting.
8.
According to the source, no warrant was presented to Mr. Banciryanino at the time of
his arrest. An arrest warrant was not issued by the public prosecutor of the Ntahangwa court
of major jurisdiction until Mr. Banciryanino had spent six days in detention in the cells of the
municipal police. On 8 October 2020, Mr. Banciryanino was transferred to Mpimba central
prison, where he was subjected to treatment that was inhuman and degrading given that his
health is poor as a result of chronic conditions including hypertension and diabetes. He has
foot problems as a result of the lack of exercise. Despite doctor’s orders addressed to the
prison management, no decision was taken to improve the conditions of Mr. Banciryanino’s
detention.
(b)
Legal analysis
(i)
Category I
9.
The source argues that the arbitrary character of Mr. Banciryanino’s detention arises
from several factors, beginning with the lack of a legal basis for the detention, which is
required under article 9 of the Covenant.
10.
The source claims that, in his capacity as a member of the National Assembly, Mr.
Banciryanino voted against a law conferring the official title of Supreme Guide of Patriotism
upon the then President and asserted that the President should be brought to justice owing to
his responsibility for the commission of murders, mutilation of corpses and disposal of dead
bodies in rivers in Burundi.
11.
The source alleges that Mr. Banciryanino was arrested and detained in violation of all
judicial rules and procedures in force in Burundi and all the international instruments that
Burundi has ratified.
12.
First, the source explains that the prosecution of Mr. Banciryanino is a violation of his
right to freedom of expression. Moreover, the source specifies that article 155 of the
Constitution and rule 13 of the rules of procedure of the National Assembly of Burundi
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establish total immunity (non-liability) for members of parliament in respect of votes cast
and opinions expressed in the exercise of their functions.
13.
In addition, the source recalls that article 39 of the Constitution provides that: “No
one may be deprived of his or her liberty except in accordance with the law.”
14.
The source therefore concludes that, as no compelling evidence was put forward to
link Mr. Banciryanino’s acts and statements to the serious charges against him and to justify
his detention, he should have been released.
15.
Second, it is claimed that no arrest procedure was followed in the present case. The
source asserts that no arrest warrant or other document justifying the detention was presented
to Mr. Banciryanino at the time of his arrest. It was not until 8 October 2020, six days after
his arrest, that Mr. Banciryanino learned that the public prosecutor of the Ntahangwa court
of major jurisdiction had issued a warrant. He was then transferred to Mpimba central prison.
The source therefore concludes that, between 2 October 2020, the day of his arrest, and 8
October 2020, the pretrial detention of Mr. Banciryanino lacked a legal basis.
(ii)
Category II
16.
The source alleges that Mr. Banciryanino was arrested and detained for having
exercised his freedom to express his opinions. The source notes that, in the present case, Mr.
Banciryanino was persecuted for two of his statements.
17.
On the one hand, Mr. Banciryanino reportedly criticized the then President for his
poor governance and responsibility in relation to crimes against humanity and expressed his
opposition to the conferral of the title of Supreme Guide of Patriotism upon the President
during the plenary meeting of the National Assembly in which the corresponding law was
passed.
18.
On the other, Mr. Banciryanino is said to have blamed the Government of Burundi for
the persecution of Burundian refugees repatriated from the Democratic Republic of the
Congo.
19.
For having expressed his views on these matters, Mr. Banciryanino was allegedly
arrested at his home and then detained for six days in the cells of the municipal police before
being transferred to Mpimba central prison on 8 October 2020.
(iii)
Category III
20.
According to the source, it seems that the proceedings against Mr. Banciryanino are
marred by numerous irregularities that constitute violations of Burundian law and
international standards relating to the right to liberty and security of person and the right to a
fair trial. Taken together, these irregularities suggest that Mr. Banciryanino enjoys no
protection of the law and constitute violations of such gravity that his detention must be
considered arbitrary.
21.
First, the source alleges that Mr. Banciryanino’s arrest on 2 October 2020 was carried
out in violation of several procedural requirements and safeguards, particularly as he was not
presented with a warrant and was not informed of the charges against him.
22.
Second, the source reports that Mr. Banciryanino was deprived of the fundamental
right to be assisted by a lawyer in judicial proceedings. When he was questioned while
detained in the Special Investigation Bureau cells, Mr. Banciryanino was not assisted by the
lawyers he had appointed.
23.
Third, the source claims that, for the duration of his detention in the Special
Investigation Bureau cells, Mr. Banciryanino was denied the right to visits from his family.
Response from the Government
24.
On 20 August 2021, the Working Group transmitted to the Government a
communication concerning Mr. Banciryanino. The Working Group requested the
Government to provide detailed information about Mr. Banciryanino by 19 October 2021 at
the latest. Specifically, the Working Group requested the Government to clarify the legal
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provisions justifying Mr. Banciryanino’s continued detention and their compatibility with the
obligations of Burundi 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. Banciryanino.
25.
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.
26.
The Working Group 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 in recent years. 2 In fact, the
Government has not responded to the Working Group under its regular communications
procedure since 2012. The Working Group invites the Government to engage constructively
with it on all allegations relating to the arbitrary deprivation of liberty.
Further information from the source
27.
The source has provided further information on Mr. Banciryanino’s current situation.
He was reportedly tried for rebellion and undermining the internal security of the State and
was found guilty on both counts. He was sentenced to 1 year’s imprisonment on 7 May 2021
and was released on 1 October 2021 after serving his full sentence.
Discussion
28.
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.
29.
At the outset, the Working Group notes that Mr. Banciryanino was released on 1
October 2021, at the end of his sentence. In accordance with paragraph 17 (a) of its methods
of work, the Working Group reserves the right to render an opinion on whether the
deprivation of liberty was arbitrary, notwithstanding the release of the person concerned. In
the present case, Mr. Banciryanino is said to have been the victim of serious human rights
violations, particularly as he was detained without a legal basis and after having exercised
his right to freedom of expression and did not enjoy his right to a fair trial. In these
circumstances, the Working Group considers it important to render an opinion on his case.
30.
To determine whether Mr. Banciryanino’s detention was 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.3 In the present case, the
Government has chosen not to challenge the prima facie credible allegations made by the
source.
31.
The source argues that Mr. Banciryanino’s detention was arbitrary under categories I,
II and III. The Working Group will examine each of the allegations in turn.
Category I
32.
The source reports that Mr. Banciryanino was arrested at his home on 2 October 2020,
without being presented with a warrant, held for six days in the Special Investigation Bureau
cells and then brought before the prosecutor of the Ntahangwa court of major jurisdiction and
served with an arrest warrant. The Government has not provided any information or
explanation in response to these allegations.
33.
Under article 9 (1) of the Covenant, no one may be deprived of his or her liberty except
on such grounds and in accordance with such procedure as are established by law. The
Working Group considers that the source has provided credible information that Mr.
2 See opinions No. 9/2021, No. 56/2020, No. 55/2020, No. 40/2020, No. 25/2020, No. 37/2019, No.
7/2018, No. 54/2017, No. 8/2016, No. 30/2015, No. 33/2014 and No. 14/2013.
3 A/HRC/19/57, para. 68.
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Banciryanino was arrested without a warrant, in violation of article 9 (1) of the Covenant,4
and the Government has not contested this information. Mr. Banciryanino was arrested for
remarks that he had made in his capacity as a member of the National Assembly, yet nothing
suggests that there were reasonable grounds for an arrest in flagrante delicto.5 The authorities
therefore failed to establish a legal basis for Mr. Banciryanino’s arrest, as required under the
Covenant, and thus acted in violation of article 9 of the Universal Declaration of Human
Rights.
34.
The source claims that Mr. Banciryanino was not informed of the charges against him.
Article 9 (2) of the Covenant provides that anyone who is arrested must be informed, at the
time of arrest, of the reasons for his or her arrest and must be promptly informed of any
charges against him or her. However, as the source did not specify at what point Mr.
Banciryanino was informed of the charges against him, the Working Group is not in a
position to determine whether he was the victim of a violation of articles 9 (2) and 14 (3) of
the Covenant for not having been promptly informed of those charges.6
35.
The source also alleges that, after his arrest on 2 October 2020, Mr. Banciryanino was
detained for six days in the Special Investigation Bureau cells, where he was questioned by
the authorities, before being brought before the prosecutor of the Ntahangwa court of major
jurisdiction, served with an arrest warrant and then transferred to Mpimba central prison on
8 October 2020. It seems that, during this six-day period, Mr. Banciryanino was not brought
before a judge competent to rule on the lawfulness of his detention.
36.
In accordance with article 9 (3) of the Covenant, anyone arrested or detained on a
criminal charge must be brought promptly before a judge or other officer authorized by law
to exercise judicial power. As the Human Rights Committee has noted, an appearance within
48 hours is ordinarily sufficient to fulfil that obligation, while any longer delay longer must
remain absolutely exceptional and be justified under the circumstances.7 As the Government
has not contested the source’s allegations, the Working Group considers that Mr.
Banciryanino was not brought promptly before a judicial authority and was thus the victim
of a violation of article 9 (3) of the Covenant. The detention must be monitored by a judge
and not a prosecutorial body. 8 The authorities therefore failed to establish that Mr.
Banciryanino’s detention had a legal basis, as required under the Covenant.9
37.
The Working Group notes that Mr. Banciryanino was denied the right to take
proceedings before a court in order that it may decide without delay on the lawfulness of his
detention, in violation of article 9 (4) of the Covenant. The right to bring proceedings applies
in principle from the moment of arrest, and it is impermissible not to allow a person deprived
of his or her liberty to promptly challenge the lawfulness of the detention.10 In the present
case, the source did not specify at what point Mr. Banciryanino had initially been brought
before a court competent to rule on the lawfulness of his detention. Nevertheless, the Working
Group believes that, for at least six days, from 2 to 8 October 2020, during which time he
4 It is not sufficient that there is a law which authorizes the arrest. The authorities must invoke the law
in question and apply it to the circumstances of the case by issuing 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.
5 Opinion No. 9/2018, para. 38.
6 Human Rights Committee, general comment No. 35 (2014), para. 30 [in which it is noted that article
9 (2) of the Covenant requires that the arrested person be notified promptly of any charges but not
necessarily at the time of arrest]; see also opinions No. 10/2021, para. 53; and No. 3/2018, para. 43.
7 Human Rights Committee, general comment No. 35 (2014), para. 33.
8 Ibid., para. 32. See also opinions No. 65/2020, para. 76; No. 56/2020, para. 31; No. 55/2020, para. 48;
No. 41/2020, para. 60; No. 40/2020, para. 29; No. 33/2020, para. 75; and No. 32/2020, para. 44. See
also A/HRC/45/16/Add.1, para. 35.
9 CCPR/C/BDI/CO/2 and CCPR/C/BDI/CO/2/Corr.1, para. 17 (in which the Human Rights Committee
recommends that Burundi align the Code of Criminal Procedure with the Covenant by setting the
allowable period of police custody at 48 hours). See also opinion No. 25/2020, para. 40; and
A/HRC/48/68, annex III, p. 33, para. 2 (c) and (d) (recommendations made by the Commission of
Inquiry on Burundi in 2018).
10 Human Rights Committee, general comment No. 35 (2014), para. 42; and the United Nations Basic
Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their
Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), principle 8 and guideline 7.
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was arrested without being presented with a warrant and then detained in the Special
Investigation Bureau cells without being brought before a court, Mr. Banciryanino was the
victim of a violation of article 9 (4) of the Covenant.11 Judicial review of detention is a
fundamental safeguard of the right to liberty of the person and ensures the lawfulness of the
deprivation of liberty. 12 In addition, the source alleges that, during this period, Mr.
Banciryanino was not assisted by his chosen lawyers, which the Government does not
dispute. Mr. Banciryanino was thus deprived of an essential safeguard, which, had it been
respected, could have enabled him to bring proceedings before a court.13 Given that Mr.
Banciryanino was unable to challenge the lawfulness of his arrest and detention, he was also
the victim of a violation of the right to an effective remedy under article 8 of the Universal
Declaration of Human Rights and article 2 (3) of the Covenant.
38.
The source maintains that Mr. Banciryanino was prosecuted for remarks that he made
about the then President, now deceased, and the Government of Burundi while serving as a
member of parliament. During the passage of the bill to confer the title of Supreme Guide of
Patriotism upon the President, in a plenary meeting of the National Assembly, Mr.
Banciryanino expressed his opposition to the proposed law.14 The source argues that Mr.
Banciryanino was entitled to the protection offered by article 155 of the Constitution and rule
13 of the rules of procedure of the National Assembly, which guarantee the immunity of
members for votes cast and opinions expressed in the exercise of their functions. The
Government has not provided any information to indicate that this protection does not exist
or was not applicable to the remarks made by Mr. Banciryanino.
39.
In a previous case, the Working Group found that there are two main forms of
parliamentary immunity: one that exempts members of parliament from prosecution for
remarks made in the exercise of their mandate (non-liability) and one that prevents the
national authorities from depriving them of their liberty for acts performed in their capacity
as ordinary citizens (inviolability).15
40.
The principle of non-liability is intended to ensure the proper operation of a
parliament: it confers special rights and privileges on members of parliament, including
freedom of speech, which enables them to raise questions affecting the public good that might
be difficult to voice elsewhere without fear of harassment or prosecution.16 In accordance
with this principle, members of parliament cannot be held liable, except by the parliament
itself and by the people at elections, for votes cast and remarks made in the exercise of their
parliamentary functions.17
41.
As the Working Group has previously stated, for deprivation of liberty to be
considered lawful and not arbitrary, the legal procedures and safeguards provided for by law
must be respected, in accordance with article 9 (1) of the Covenant, including in relation to
the withdrawal of parliamentary immunity.18 Any deprivation of liberty imposed in violation
of the principle of parliamentary immunity lacks a legal basis and therefore falls under
category I of the categories applicable to cases submitted to the Working Group.19
11 Torres v. Finland (CCPR/C/38/D/291/1988), para. 7.2 [in which a period of seven days was found to
be contrary to article 9 (4) of the Covenant]; and Opinion No. 52/2015, para. 46 [in which a period of
eight days was found to be contrary to article 9 (4) of the Covenant].
12 A/HRC/30/37, para. 3.
13 Opinions No. 61/2020, para. 70; No. 40/2020, para. 29; and No. 25/2020, para. 41; see also the
Human Rights Committee, general comment No. 35 (2014), para. 46.
14 The remarks made by Mr. Banciryanino are reported in paragraph 46 below.
15 Opinion No. 36/2017, para. 82.
16 Inter-Parliamentary Union, “Parliamentary immunity: background paper prepared by the Inter-
Parliamentary Union”, working paper, September 2006, p. 2.
17 Ibid., p. 3.
18 See, for example, opinions No. 40/2019, paras. 103–107; No. 33/2018, paras. 55–56; No. 9/2018,
paras. 36–39; No. 5/2018, paras. 36–39; and No. 36/2017, paras. 79–87. While inviolability was the
issue at stake in many of these cases, the Working Group nevertheless considers that the obligation to
respect the procedures and safeguards provided for by law concerns both types of parliamentary
immunity.
19 Opinion No. 31/2016, paras. 114–115 (in which the same finding is made in respect of category III).
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42.
In the present case, the source puts forward the credible argument, which has not been
refuted by the Government, that Mr. Banciryanino was arrested for remarks made in the
exercise of his parliamentary functions, despite the principle of immunity (non-liability) that
was applicable to him. The Working Group considers that Mr. Banciryanino’s arrest and
detention constituted a violation of article 9 of the Universal Declaration of Human Rights
and article 9 (1) of the Covenant and therefore lacked a legal basis.
43.
For the foregoing reasons, the Working Group concludes that Mr. Banciryanino’s
arrest and detention lacked a legal basis and that the deprivation of his liberty was arbitrary
under category I.
Category II
44.
The source argues that Mr. Banciryanino was detained for having exercised his right
to freedom of opinion and expression under article 19 of the Universal Declaration of Human
Rights and article 19 of the Covenant and was charged with having tried to organize an illegal
meeting. The Government has not responded to these arguments.
45.
The Working Group notes that the source does not explain the basis for the allegation
that Mr. Banciryanino was charged with attempting to organize an illegal meeting, nor does
the source specifically claim that Mr. Banciryanino was deprived of his liberty for having
exercised his right of peaceful assembly. The Working Group is therefore unable to make an
assessment of these allegations.
46.
The source argues that Mr. Banciryanino was arrested for having exercised his right
to freedom of opinion and expression in his capacity as a member of the National Assembly
and was charged with rebellion and endangering the internal security of the State. The source
maintains that these charges stem from the fact that Mr. Banciryanino criticized the then
President for governing the country poorly and bearing some responsibility in relation to the
crimes against humanity committed in Burundi. When the National Assembly was called
upon to pass a law conferring the title of Supreme Guide of Patriotism upon the then
President, Mr. Banciryanino expressed his opposition to the text and stated that the President
should be brought to justice for his responsibility for the commission of murders, mutilation
of corpses and disposal of dead bodies in rivers in Burundi. Mr. Banciryanino is also said to
have accused the Government of having persecuted Burundian refugees repatriated from the
Democratic Republic of the Congo.20
47.
Article 19 (2) of the Covenant provides that everyone has the right to freedom of
expression, including freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of his or her choice. This right covers political discourse, commentary on public
affairs and discussion of human rights, 21 and protects the freedom to hold and express
opinions, including those that are critical of the Government or are not in line with its
policies,22 and the expression of views that might be regarded as deeply offensive.23
48.
As the Human Rights Committee has observed, in circumstances of public debate, the
value placed by the Covenant upon the right to the uninhibited expression of views regarding
politicians and State representatives is particularly high. The fact that remarks are considered
to be insulting to a public figure is not sufficient to justify the imposition of penalties, since
all public figures, including those exercising the highest political authority such as Heads of
State and Government, are legitimately subject to criticism and political opposition.24
49.
The Working Group considers that Mr. Banciryanino’s remarks were protected by the
right to freedom of opinion and expression under article 19 of the Universal Declaration of
Human Rights and article 19 of the Covenant and that he was detained for having exercised
that right. In this context, the Working Group notes that Mr. Banciryanino was arrested on 2
20 For general information on the allegations concerning returnees to Burundi, see A/HRC/48/68, paras.
40–44.
21 Human Rights Committee, general comment No. 34 (2011), paras. 11–12.
22 Opinions No. 8/2019, para. 55; and No. 79/2017, para. 55.
23 Human Rights Committee, general comment No. 34 (2011), para. 11.
24 Ibid., para. 38.
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October 2020 as he was preparing to hold a press conference to deny social media reports
that he had insulted the Head of State at the time, which suggests a concerted effort on the
part of the authorities to prevent him from exercising his right to freedom of opinion and
expression.
50.
Moreover, since Mr. Banciryanino made the remarks in question in the exercise of his
functions as a member of parliament, the Working Group considers that he was also deprived
of his liberty for having exercised the right to take part in the conduct of public affairs under
article 21 (1) of the Universal Declaration of Human Rights and article 25 (a) of the
Covenant.25
51.
There is nothing to suggest – and the Government does not claim – that the restrictions
permitted by articles 19 (3) and 25 of the Covenant were applicable in the present case. The
Government has explained neither why the prosecution of Mr. Banciryanino was necessary
to protect a legitimate interest within the meaning of those provisions nor why trying him
and sentencing him to 1 year’s imprisonment was a penalty proportionate to the acts in
question. Above all, there is no evidence that Mr. Banciryanino’s conduct could reasonably
be considered a threat to national security, public order or public health or morals. Mr.
Banciryanino’s statements might have endangered the rights or reputations of others,
including President Nkurunziza, but the Government did not make this argument. In any
event, as stated above, Mr. Banciryanino’s remarks were clearly covered by parliamentary
immunity. Moreover, the Working Group has previously noted that depriving a person of his
or her liberty for defamation is in no way compatible with freedom of expression.26
52.
According to the Declaration on the Right and Responsibility of Individuals, Groups
and Organs of Society to Promote and Protect Universally Recognized Human Rights and
Fundamental Freedoms, everyone has the right, individually and in association with others,
to promote the protection and realization of human rights and draw public attention to the
observance of human rights. 27 The source has demonstrated that Mr. Banciryanino was
deprived of his liberty for having exercised his rights under the Declaration. The Working
Group has determined that depriving a person of his or her liberty for having defended human
rights violates the right to equality before the law and equal protection of the law under article
7 of the Universal Declaration of Human Rights and article 26 of the Covenant.28
53.
The Working Group concludes that Mr. Banciryanino was arrested and detained for
having peacefully exercised his rights to freedom of opinion and expression and to
participation in the conduct of public affairs, in violation of articles 7, 19 and 21 of the
Universal Declaration of Human Rights and articles 19, 25 and 26 of the Covenant. The
deprivation of his liberty was therefore arbitrary under category II. The Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression.
Category III
54.
Given its finding that Mr. Banciryanino’s detention was arbitrary under category II,
the Working Group considers that no trial should have taken place. However, Mr.
Banciryanino was tried and sentenced to 1 year’s imprisonment on 7 May 2021.
55.
According to the source, Mr. Banciryanino was denied the fundamental right to be
assisted by a lawyer in the proceedings against him. When he was questioned while detained
in the Special Investigation Bureau cells, between 2 and 8 October 2020, he was not assisted
25 A/HRC/48/68, para. 38 [in which the Commission of Inquiry on Burundi notes that Mr. Banciryanino
was prosecuted for having criticized the Government. The Commission recommended that the
Government should guarantee the security of political opponents and human rights defenders,
including in the exercise of their fundamental freedoms (ibid., para. 91 (c)).]
26 Opinions No. 6/2021, para. 61; No. 37/2020, para. 56; No. 25/2012, para. 60; and No. 35/2008, para.
36. See also the Human Rights Committee, general comment No. 34 (2011), para. 47.
27 A/RES/53/144, annex, arts. 1 and 6 (c). See also A/RES/74/146, para. 12.
28 See, for example, opinions No. 16/2020, No. 15/2020, No. 45/2019, No. 44/2019, No. 9/2019, No.
46/2018, No. 45/2018 and No. 36/2018.
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9
by lawyers of his choice. Since the Government has not denied these allegations, the Working
Group finds them to be credible.
56.
The Working Group recalls that all persons deprived of their liberty have the right to
legal assistance by counsel of their choice, at any time during their detention, including
immediately after the moment of apprehension, and must be given access to such assistance
without delay.29 By preventing Mr. Banciryanino from being assisted by his lawyers as soon
as he was taken into police custody, the authorities also deprived him of the means of
challenging the lawfulness of his detention and preparing his defence. Therefore, they
violated his right to have adequate time and facilities for the preparation of his defence and
to communicate with counsel of his choosing, in violation of articles 10 and 11 (1) of the
Universal Declaration of Human Rights and article 14 (3) (b) of the Covenant.
57.
The Working Group considers that the violation of Mr. Banciryanino’s right to a fair
trial was of sufficient gravity as to render his deprivation of liberty arbitrary under category
III. The right to be assisted by counsel is a fundamental safeguard against arbitrary detention
and must be strictly adhered to by all States.30 However, at a critical stage in the proceedings
against him, namely, when under questioning, Mr. Banciryanino was not assisted by lawyers
of his choice. Moreover, while in police custody, he was not assisted by counsel and therefore
could not challenge the lawfulness of his detention. By denying Mr. Banciryanino access to
counsel as soon as he was arrested, the authorities violated the principle of equality of arms,
placing him at an unfair disadvantage in the judicial process.
Category V
58.
Although the source does not make the case that the deprivation of Mr. Banciryanino’s
liberty falls under category V, the Working Group believes that the matter should be
considered.
59.
The Working Group has already established that Mr. Banciryanino was arrested and
detained for having peacefully exercised his rights under international law and that the
deprivation of his liberty falls under category II. In such circumstances, there is a strong
presumption that the detention also constitutes a violation of international law on the grounds
of discrimination based on political or other opinion.31 The Government has not provided any
information to rebut this presumption.
60.
Mr. Banciryanino was arrested by 14 members of the police, which seems
disproportionate to the risk that he might have posed. On the face of it, it was hardly likely
that a well-known 60-year-old deputy and human rights defender with chronic health
problems would flee or commit a crime. As noted above, Mr. Banciryanino was arrested as
he was preparing to deny social media reports that he had insulted the Head of State at the
time and was subsequently detained for remarks that he had made in the exercise of his
functions, despite his parliamentary immunity. There is therefore every reason to believe that
Mr. Banciryanino’s arrest and detention were based on his political or other opinions, which
he expressed in the exercise of his parliamentary functions by demanding that the State
acknowledge the human rights violations that, he claimed, it had committed. This included
criticism of the then President for his alleged responsibility in relation to crimes against
humanity.
61.
The Working Group considers that Mr. Banciryanino was deprived of his liberty on
discriminatory grounds, owing to his political or other opinions and status as a human rights
defender, in violation of articles 2 and 7 of the Universal Declaration of Human Rights and
articles 2 (1) and 26 of the Covenant. It concludes that Mr. Banciryanino’s detention was
29 A/HRC/30/37, annex, principle 9 and guideline 8; and A/HRC/45/16, para. 51. See also opinion No.
7/2021, paras. 81–82 [in which it is noted that denial of access to a lawyer during police custody
constitutes a violation of article 14 (3) (b) of the Covenant]. See also CCPR/C/BDI/CO/2 and
CCPR/C/BDI/CO/2/Corr.1, para. 19; and the Human Rights Committee, general comment No. 35
(2014), para. 35.
30 A/HRC/45/16, para. 50. See also opinion No. 37/2019, para. 31.
31 See opinions No. 4/2021, No. 59/2019, No. 13/2018 and No. 88/2017.
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arbitrary under category V and refers the case to the Special Rapporteur on the situation of
human rights defenders.
Concluding remarks
62.
The Working Group notes the source’s claim that, after his transfer to Mpimba central
prison on 8 October 2020, Mr. Banciryanino was subjected to treatment that was inhuman
and degrading in view of his poor health. According to the source, Mr. Banciryanino has
chronic conditions, including hypertension and diabetes, and had foot problems caused by
the lack of exercise while in detention. Despite the doctor’s orders addressed to the prison
authorities, nothing was done to improve the conditions of his detention. In addition, while
he was detained in the Special Investigation Bureau cells, Mr. Banciryanino was unable to
receive visits from his family.
63.
The Working Group urges the Government to ensure that conditions of detention in
all places of deprivation of liberty in Burundi meet international standards,32 including those
set out in the United Nations Standard Minimum Rules for the Treatment of Prisoners, first
and foremost rules 12 to 27 on living conditions, exercise and health care and rules 43 (3)
and 58 on contact with the outside world. In addition, the Working Group takes the
opportunity to remind the Government of its obligation under article 10 (1) of the Covenant
to ensure that all persons deprived of their liberty are treated with humanity and respect for
the inherent dignity of the human person. The Working Group refers the case to the Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health.
64.
The case of Mr. Banciryanino is one of many brought before the Working Group in
recent years concerning arbitrary detention in Burundi.33 The Working Group recalls that,
under certain circumstances, widespread or systematic imprisonment or other severe
deprivation of liberty in violation of the fundamental rules of international law may constitute
crimes against humanity.34
Disposition
65.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Fabien Banciryanino, being in contravention of articles
2, 7, 8, 9, 10, 11 (1), 19 and 21 (1) of the Universal Declaration of Human Rights and
articles 2 (1) and (3), 9, 14, 19, 25 (a) and 26 of the International Covenant on Civil
and Political Rights, was arbitrary and falls within categories I, II, III and V.
66.
The Working Group requests the Government of Burundi to take the steps necessary
to remedy the situation of Mr. Banciryanino 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.
67.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Banciryanino an enforceable right to
compensation and other reparations, in accordance with international law.35
68.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
32 CCPR/C/BDI/CO/2 and CCPR/C/BDI/CO/2/Corr.1, para. 18.
33 See opinions No. 9/2021, No. 56/2020, No. 55/2020, No. 40/2020, No. 25/2020, No. 37/2019, No.
7/2018, No. 54/2017, No. 8/2016, No. 30/2015, No. 33/2014, No. 57/2012, No. 18/2012 and No.
17/2012.
34 Opinion No. 47/2012, para. 22; and A/HRC/38/10, paras. 137.101–137.102, 137.114–137.115 and
137.117.
35 Working Group on Arbitrary Detention, deliberation No. 10 (A/HRC/45/16, annex I) (identifying the
comprehensive reparations to which victims of arbitrary deprivation of liberty are entitled); and
A/HRC/48/68, annex III, p. 33, para. 2 (i) (recommendation made by the Commission of Inquiry on
Burundi in 2018 to establish a compensation fund for victims of arbitrary and unlawful detention).
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GE.22-01639
11
Banciryanino and to take appropriate measures against those responsible for the violation of
his rights.
69.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, 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.
70.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
71.
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 compensation or other reparations have been made to Mr.
Banciryanino;
(b)
Whether an investigation has been conducted into the violation of Mr.
Banciryanino’s rights and, if so, the outcome of the investigation;
(c)
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;
(d)
Whether any other action has been taken to implement the present opinion.
72.
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.
73.
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.
74.
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.36
[Adopted on 17 November 2021]
36 Human Rights Council resolution 42/22, paras. 3 and 7.