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A/HRC/WGAD/2021/73

Opinion No. 73/2021 concerning Julienne Sebagabo (Rwanda)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2021-11-19 · en UN

Opinion; Subjects: RWANDA, 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.22-11849(E)

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. 73/2021 concerning Julienne Sebagabo (Rwanda)

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 17 August 2021 the Working Group

transmitted to the Government of Rwanda a communication concerning Julienne Sebagabo.

The Government replied to the communication on 18 October 2021. 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/2021/73

General Assembly

Distr.: General

28 July 2022

Original: English

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Submissions

Communication from the source

4.

Julienne Sebagabo was born in 1973 in Butare, Rwanda. In 1999, she moved to

Norway, where she obtained citizenship and where she lived with her three sons and worked

as a translator. She would frequently travel to Rwanda, for years, without any problem.

5.

According to the information received, prior to her arrest, Ms. Sebagabo was visiting

Rwanda to attend the national dialogue conference, to which she had been invited by the

President. As with her previous visits to Rwanda, she had completed all her papers and the

online form listing all the places that she would visit.

6.

The source explains that Ms. Sebagabo was arrested at Kigali International Airport in

December 2017. She was seized by airport police at passport control, without being shown

an arrest warrant, and taken to an unofficial holding cell. Allegedly, she was interrogated,

beaten frequently and not given food there. Reportedly, the following day, the Ministry of

Foreign Affairs of Norway enquired about the disappearance of Ms. Sebagabo with the

Rwandan authorities, but they allegedly denied that she was being held in detention at the

airport. After approximately two weeks, Ms. Sebagabo was relocated to Kigali central prison.

Only at this point was the Government of Norway notified of her detention. However, during

that initial period of approximately two weeks, Ms. Sebagabo was not permitted to contact

anyone – including a lawyer – despite the fact that she was interrogated frequently. After

being relocated to the central prison, Ms. Sebagabo was transferred to Nyamagabe Prison

and then to Nyarugenge Prison.

7.

According to the source, following Ms. Sebagabo’s arrest, the authorities called in

witnesses and interrogated them about her alleged involvement in the genocide. Ms.

Sebagabo was informed that a gacaca court had allegedly convicted her in 2008, in absentia,

for incitement to genocide. Ms. Sebagabo’s defence lawyers believe that the judgment is

fabricated, because she had frequently travelled back and forth from Rwanda in the years

following the alleged judgment. She was never notified of the proceedings or made aware of

the judgment. The request for a copy of the judgment from the archives has never been

processed.

8.

Ms. Sebagabo was allegedly only given access to a lawyer eight months after her

transfer to Kigali central prison. The defence lawyers have been permitted to speak to her

only with the supervision of a prison officer, and Ms. Sebagabo has to speak to them in

Kinyarwanda. Her defence lawyers have frequently been denied visitation permits, even

when they have travelled from Norway.

9.

Ms. Sebagabo’s case was first heard by the Primary Court of Ndora, a community

court that is based in the area where she used to live. This court concluded that it did not have

jurisdiction over her case, and it was therefore moved to the Intermediate Court of Huye. On

2 November 2018, this court convicted Ms. Sebagabo of the offences of inciting people to

commit genocide, complicity in genocide attacks and dehumanizing treatment of human

bodies, under articles 114, 115 and 132 (3) of Organic Law No. 1/2012 Instituting the Penal

Code, and sentenced her to life imprisonment.

10.

This verdict was appealed to the Appellate Court of Nyanza, where the charges were

changed to a single charge of incitement to genocide and her sentence was reduced to 20

years.

11.

The defence reportedly appealed the conviction for incitement to genocide on the basis

of double jeopardy, as both the alleged judgment of the gacaca court and the judgment of the

Intermediate Court of Huye, as well as the upholding of that judgment by the Appellate Court

of Nyanza, were based on the same facts.

12.

The source claims that the media have not been allowed access to any of the court

proceedings for Ms. Sebagabo. Journalists managed to attend her hearing at the Intermediate

Court of Huye by denying that they were associated with the press.

13.

The source claims that Ms. Sebagabo’s detention is purportedly in response to her

involvement in genocide-related offences. However, it is believed that her detention is a

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response by the authorities to personal grievances, which individuals from the former Butare

Province, where Ms. Sebagabo used to live, have raised through the criminal justice system.

14.

It is suspected that the attendance of Ms. Sebagabo at the national dialogue

conference, which was a leadership forum, would have angered those from the province

where Ms. Sebagabo used to live. As a result, it is believed that individuals from her village

claimed that she might have been involved in the genocide. The authorities used this to arrest

her without a warrant and subsequently to gather witness testimonies once Ms. Sebagabo was

in detention.

15.

The source alleges that the only evidence presented during Ms. Sebagabo’s trial was

witness testimonies from those who lived in the same village as she did during the genocide.

They provided no explanation as to why they waited about 20 years to make these allegations.

In addition, Ms. Sebagabo’s name did not appear on either the 2004 or the 2010 lists that

Rwandan authorities had created when looking for suspects overseas. Moreover, the witness

testimonies reportedly contradicted each other as to the degree of criminal involvement of

Ms. Sebagabo.

16.

According to the source, throughout her detention, Ms. Sebagabo has been neglected

by prison staff. She has never received any medical treatment despite her declining health or

appropriate food to regulate her diabetes. Furthermore, in 2018 at Nyamagabe Prison, Ms.

Sebagabo was informed by prison officers that she had hepatitis, which explained why she

was feeling unwell. However, she was never told which kind of hepatitis it was and she never

received any medical examination or treatment. She was later informed that she did not have

hepatitis.

17.

Reportedly, Ms. Sebagabo has been subjected to significantly harsher treatment in

prison, along with others who have foreign citizenship. She has been subjected to solitary

confinement as a form of punishment and beaten by prison officers. Shortly after the

judgment had been handed down by the Appellate Court of Nyanza, a riot broke out in the

prison and Ms. Sebagabo was wrongly accused of participating in it. She was punished with

solitary confinement and beaten.

18.

The source claims that Ms. Sebagabo’s ability to contact her family or legal counsel

is significantly impeded. She is permitted to make only one phone call per month for five

minutes and must speak in Kinyarwanda or French. Her sons cannot speak Kinyarwanda or

French and therefore her contact with them is minimal. When she has tried to communicate

in English or Norwegian with her defence lawyers, she has been stopped by prison officials.

She is rarely permitted visitation and, when she is, it is closely supervised by prison guards.

At Nyamagabe Prison, she was permitted visitation only with her lawyer, with supervision

of the prison director.

19.

Nyarugenge Prison has reportedly been described as a coronavirus disease (COVID-

19) hotspot. Following an outbreak in the prison, Ms. Sebagabo was not permitted visitation

at all. While at Nyamagabe Prison, she was crammed in a cell with over 200 people, and she

experiences similar conditions at Nyarugenge Prison. Ms. Sebagabo is at risk of developing

a fatal case of COVID-19 due to the lack of social distancing and her diabetes and

deteriorating health.

20.

The source reports that, although Rwanda has made important strides in relation to

the problem of arbitrary detention, substantial concerns remain regarding excessive pretrial

detention, arrests without legal basis and detaining persons without a court order. The Human

Rights Committee has noted with concern that individuals are frequently held by the military

and the police in unofficial detention centres, often incommunicado, before being transferred

to official places of detention. The Committee has also noted that torture and ill-treatment

have been practiced in these unofficial locations.2

21.

According to the source, the gacaca courts and courts prosecuting genocide offences

have been used as a means of resolving personal grievances, including disputes between

neighbours and relatives. Dozens of such cases have been documented, where individuals

used the courts to file false accusations. In most instances, both the accuser and the accused

2 See CCPR/C/RWA/CO/4.

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have resided in or visited Rwanda multiple times and the accuser offered no reason for having

failed to make the allegations sooner. Such cases have increased since 2007, in part because

people saw how the process worked and felt increasingly confident that they could use it to

address disputes over land, inheritance and local economic inequalities.

22.

Allegedly, hundreds of individuals have been convicted in absentia by the gacaca

courts, often based on ill-founded evidence, for political or personal reasons. In a number of

cases, individuals reportedly learned after the trial that a gacaca court had convicted them in

absentia.

23.

The source reports that, while article 145 of the Constitution guarantees judicial

independence, this has not materialized in practice. In 2016, the Human Rights Committee

expressed concern that unlawful interference of government officials in the judiciary

persisted and that the procedure for the appointment of judges to the Supreme Court and main

courts left those judges vulnerable to political pressure.3

24.

The Human Rights Committee, in 2016, stressed its concern that individuals were

regularly held in unofficial detention centres, where they would be subjected to torture and

degrading treatment to extract a confession, before being moved to an official prison. Once

in an official detention centre, individuals are imprisoned for excessive periods of pretrial

detention, without judicial oversight.4 The source explains that most prisoners in Rwanda are

not sentenced.

Category I

25.

For an arrest and detention to have a legal basis, a warrant applying the law to the

circumstances of the case and informing the individual of the reasons for the arrest is

required. Individuals arrested must then be promptly informed of the charges. Furthermore,

the detained person must be brought promptly before a judge; judicial oversight is essential

in ensuring that the detention has a legal basis and is critical to guaranteeing the right to

challenge the lawfulness of the detention before a court.

26.

According to the information received, an arrest warrant was not read out to Ms.

Sebagabo when she was arrested at Kigali International Airport. For approximately two

weeks, she was held incommunicado and interrogated frequently without being informed of

the charges. It was only when she was relocated to Kigali central prison that the Government

of Norway was notified of her detention; however, neither the Government of Norway nor

Ms. Sebagabo were informed of the charges.

27.

Ms. Sebagabo has allegedly never been presented with an arrest warrant. However,

her lawyers eventually received a “backdated” copy in November 2018, shortly before her

trial. The arrest warrant had been date-stamped to appear as if it had been presented to Ms.

Sebagabo during her arrest. It lists genocide charges, for which the authorities gathered

evidence only after she had been arrested. Every witness, whose testimonies were the only

evidence used by the prosecution, was interrogated after her arrest. Therefore, the authorities

allegedly did not have a legal basis to arrest her.

28.

Furthermore, between her arrest and her trial before the Intermediate Court of Huye,

Ms. Sebagabo reportedly had no opportunity to challenge the lawfulness of her detention.

While she was brought before the Primary Court, this was only to assess whether that court

had the jurisdiction. There was no opportunity during this hearing for Ms. Sebagabo to

challenge the legal basis of her detention. When she was brought before the Intermediate

Court, it was to begin the criminal trial, and she could not challenge the lawfulness of her

detention.

Category III

29.

Article 14 (1) of the Covenant guarantees that those facing criminal charges have the

right to a fair and public hearing by a competent, independent and impartial tribunal

established by law. To qualify as “public”, a trial must be open to everyone, including all

3 CCPR/C/RWA/CO/4, para. 33.

4 See CCPR/C/RWA/CO/4.

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media. Exceptions to this rule are permitted only on the basis of national security, public

order, public morals, privacy or where publicity would prejudice the interest of justice. The

source claims that the information provided during Ms. Sebagabo’s trial proceedings was not

confidential, nor did it pose a risk. The Rwandan genocide and the nature of the attacks that

Ms. Sebagabo had allegedly engaged in had already been widely discussed by courts and

media. There was no justification to restrict media access to the trial.

30.

The right to be heard by an impartial tribunal requires judges not to act in ways that

improperly promote the interests of one of the parties to the detriment of the other. This

requires that each party to the trial have the same procedural rights. Ms. Sebagabo did not

benefit from the same rights as the prosecution, as the court refused to allow her lawyers to

cross-examine the prosecution witnesses, whose testimonies form the basis of the conviction.

Allegedly, as a result, the Intermediate Court of Huye could not have appeared to be impartial

to a reasonable observer.

31.

Moreover, article 14 (2) of the Covenant guarantees that everyone charged with a

criminal offence has the right to be presumed innocent until proven guilty according to law.

32.

The source reports that the Intermediate Court of Huye held against Ms. Sebagabo

that she did not prove whether she had visited the place where she had lived during the

genocide and met the community. The Intermediate Court also held it against her that she

had not proved whether or not she was still in Rwanda shortly after the genocide. This

approach was affirmed by the Appellate Court of Nyanza. For the source, these proceedings

shifted the burden of proof from the prosecution to the accused.

33.

The presumption of innocence requires that the prosecution prove its case against a

defendant beyond reasonable doubt. Where this standard of proof has not been met, a

defendant is entitled to be acquitted, provided that the acquittal has a rational link to the

evidence, lack of evidence or inconsistencies in the evidence.

34.

In the present case, the source argues that the charges against Ms. Sebagabo were not

proved beyond a reasonable doubt and there was a lack of evidence and inconsistencies with

that evidence. The only evidence that the Intermediate Court of Huye relied upon to convict

Ms. Sebagabo was witness testimonies. These witnesses waited over 10 years to make these

statements, which casts doubt on their reliability. The testimonies also conflicted with one

another.

35.

Moreover, article 14 (3) (b) of the Covenant guarantees the right to adequate time and

facilities for the preparation of the defence and to communicate with counsel. The Human

Rights Committee has interpreted “adequate time” as requiring the accused to be granted

prompt access to counsel. What is considered “prompt” depends on the circumstances of the

case. Principle 15 of the Body of Principles for the Protection of All Persons under any Form

of Detention or Imprisonment stipulates that communication with counsel is not to be denied

for more than a matter of days. The accused must also be able to meet with counsel in private

conditions that fully respect the confidentiality of their communications. The right to

communicate with counsel requires that lawyers are able to represent their clients without

restrictions, influence, pressure or under interference from any quarter.5

36.

According to the source, following her arrest, Ms. Sebagabo was held incommunicado

for approximately two weeks before being relocated to Kigali central prison. She was

detained there for eight months before being granted initial access to legal counsel. Therefore,

she was not granted “prompt” access to counsel.

37.

The source alleges that, even when Ms. Sebagabo was granted access to legal counsel

in July 2018, her ability to communicate with counsel and assist in the preparation for her

trial was significantly impeded. Her lawyers were denied visitation permits. When the

defence was permitted entry to the prison, which was rare, the visits were always supervised

by an officer, who ensured that she spoke to them only in Kinyarwanda, a language that most

of her legal team did not speak. On the day of the court proceedings, Ms. Sebagabo’s counsel

was not allowed to speak to her.

5 Human Rights Committee, general comment No. 32 (2007), para. 34.

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38.

The source reaffirms that article 14 (3) (c) of the Covenant states that any individual

has the right to be tried without undue delay. This provision complements article 9 (3), which

requires an individual to be brought promptly before a judge and tried within a reasonable

time frame. What is considered a reasonable time depends on the individual circumstances

of the case, including its complexity and the conduct of those involved.

39.

Article 9 (3) states that it is not to be the general rule that persons awaiting trial are to

be detained in custody. If such detention is imposed, it must be based on an individualized

determination that is reasonable and necessary taking into account all the circumstances.6

The Human Rights Committee has explained that pretrial detention must be ordered for as

short a time as possible.7 Thus, when pretrial detention is imposed, an individual must be

tried as quickly as possible.

40.

The source alleges that Ms. Sebagabo was held in pretrial detention until her trial in

November 2018. Prior to these proceedings, she had been brought before the Primary Court,

which concluded that it did not have the jurisdiction to hear her case. However, during neither

of those proceedings did she have the opportunity to challenge her pretrial detention and,

thus, there was no individualized determination made by a judicial authority to justify this

lengthy period of pretrial detention. Owing to her lengthy pretrial detention without

justification, Ms. Sebagabo was not tried within a reasonable amount of time, contrary to

article 9 (3) of the Covenant.

41.

Furthermore, article 14 (7) of the Covenant states that an individual is not to be tried

or punished again for an offence for which that person has already been finally convicted.

Even where an individual is being tried for a different offence, the right not to be subjected

to double jeopardy is still to be engaged where the prosecution is relying upon the same facts.

42.

In Ms. Sebagabo’s case, the source reports that she was convicted on three charges

before the Intermediate Court of Huye; however, the Appellate Court of Nyanza reduced this

to a sentence for the single charge of inciting people to commit genocide. At each of these

proceedings, the only evidence used to substantiate the convictions was witness testimonies

that Ms. Sebagabo had been involved in genocide-related activities at her village roadblock.

43.

According to the information received, Ms. Sebagabo was allegedly convicted in

absentia, in 2008, by a gacaca court, of setting up roadblocks and killing her uncle during

the genocide. For the source, those convictions are directly linked to Ms. Sebagabo’s alleged

conduct at the village roadblock, which is the same conduct that the Intermediate Court of

Huye relied upon to convict her. Therefore, while the charges in the two cases had different

names, they relied on the same facts. Thus, Ms. Sebagabo has been tried and punished twice

for the same conduct.

44.

The source claims that, in the present case, the detention of Ms. Sebagabo is arbitrary

under category III of the arbitrary detention categories referred to by the Working Group

when considering cases submitted to it, in view of the violation of her rights to a fair and

public hearing by a competent, independent and impartial tribunal; to be presumed innocent;

to legal counsel; to adequate facilities for the preparation of a defence; to a trial without undue

delays; and to not be subjected to double jeopardy, under articles 9 and 14 of the Covenant.

Category V

45.

Furthermore, under article 7 of the Universal Declaration of Human Rights and article

26 of the Covenant, every individual has the right to freedom from discrimination, including

based on “other status”, which includes nationality or citizenship. States parties must ensure

that non-citizens enjoy equal protection and recognition before the law. Any differentiation

must be reasonable and objective and the aim must be to achieve a purpose that is legitimate

under the Covenant.8

46.

The source claims that Ms. Sebagabo and others who have obtained foreign

citizenship have been singled out by the authorities and subjected to differential treatment in

6 Human Rights Committee, general comment No. 35 (2014), para. 38.

7 Human Rights Committee, general comment No. 8 (1982), para. 3.

8 Human Rights Committee, general comment No. 18 (1989), para. 13.

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detention. This is allegedly evidenced by their subjection to torture and excessive and

prolonged solitary confinement, compared to those with exclusively Rwandan citizenship, in

the detention centres in which Ms. Sebagabo has been held. Such differential treatment on

the ground of nationality can never be considered objective and reasonable or in pursuit of

any legitimate aim. For these reasons, the source claims that the arrest and detention of Ms.

Sebagabo is arbitrary under category V, as it violates her right to freedom from

discrimination.

Response from the Government

47.

On 17 August 2021, the Working Group transmitted the allegations from the source

to the Government under its regular communications procedure. The Working Group

requested the Government to provide, by 18 October 2021, detailed information about the

case of Ms. Sebagabo and to clarify the legal provisions justifying her detention, as well as

its compatibility with the obligations of Rwanda under international law. The Working Group

called upon the Government to ensure her physical and mental integrity.

48.

On 18 October 2021, the Government submitted a reply in which it informs the

Working Group that, after a thorough review of the allegations, it concluded that the

allegations brought before the Working Group by the source are unfounded, fabricated and

unsubstantiated by facts, and it requests their rejection.

49.

Turning to the substance of the response, the Government informs the Working Group

that Ms. Sebagabo was arrested in accordance with Rwandan law. She was arrested on 21

January 2017, as it is shown by the arrest warrant that she reportedly signed on that date. The

arrest was based on Law No. 30/2013 relating to the Code of Criminal Procedure in its article

37. Ms. Sebagabo was informed of the charges against her on the day of her arrest. Her

provisional detention was based on a provisional detention court order of the Primary Court

of Nyarugung and the provisional detention court order of 3 April 2017 of the Intermediate

Court of Nyarugenge, which Ms. Sebagabo had the right to challenge.

50.

Based on these provisional detention court orders, the Government notes that the

claim that Ms. Sebagabo’s arrest was illegal is false and baseless. It also clarifies that Ms.

Sebagabo was arrested on 21 January 2017 and not in December 2017, as stated by the source.

These inconsistencies call into question the credibility of the allegations.

51.

Turning to the allegations concerning access to legal counsel, the Government submits

that Rwandan law recognizes the right to due process of law, which includes the right to be

informed of the nature and cause of charges and the right to a defence and legal representation

(art. 29 (1) of the Constitution).

52.

To implement these constitutional rights, and based on article 38 of Law No. 30/2013

relating to the Code of Criminal Procedure, “any person held in custody by the Judicial Police

shall be informed of the charges against him/her and his/her rights including the right to

inform his/her legal counsel or any other person of his/her choice thereof. Such prerogative

shall be indicated in the statement signed by both the Judicial Police Officer and the suspect”.

Articles 39 and 61 of the same law provide for the right to legal counsel and the rights of the

suspect during interrogation by the prosecution.

53.

In the case of Ms. Sebagabo, these prerogatives were fully observed. During the first

interrogation following her arrest on 21 January 2017, she was informed of her right to be

interrogated in the presence of her legal counsel. She declined this right, informing the

investigator that she would respond to the questions by herself. The statement was recorded

and duly signed by Ms. Sebagabo. Before the prosecution, on 26 January 2017, Ms. Sebagabo

was again informed by the prosecutor of her right to be interrogated in the presence of her

legal counsel. She again declined this right. However, Ms. Sebagabo was represented by legal

counsel in other proceedings.

54.

Considering that Ms. Sebagabo declined her right to be represented by legal counsel

at the preliminary interrogation phase, the Government of Rwanda considers that there has

not been a violation of the relevant rights of the person concerned.

55.

The Government proceeds to address the allegations of detention in an unofficial

holding cell and submits that, according to article 40 of Law No. 30/2013 relating to the Code

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of Criminal Procedure, custody facilities in Rwanda are known and gazetted. There are no

unofficial holding cells. Upon her arrest, Ms. Sebagabo was detained at Remera Police

Station in Kigali. Then, after the provisional detention court order had been issued, she was

transferred to Nyamagabe Prison and then to Nyarugenge Prison, where she is currently

detained.

56.

Addressing the allegations of torture, beatings and denial of food, the Government

submits that acts of torture and ill-treatment are prohibited and punishable under the Law

Determining Offences and Penalties in General. The Law allows the person alleging the acts

of torture and ill-treatment to seek remedy through courts. No such claim was brought to the

attention of the responsible administrative authorities throughout the court proceedings, nor

was a case filed in court. Ms. Sebagabo has never indicated in court that such acts have been

perpetrated against her. The Government states that these claims are mere allegations with

no evidence to substantiate them.

57.

Concerning the allegation that the gacaca court judgment against Ms. Sebagabo in

2008 was fabricated, the Government explains that the traditional gacaca courts were revived

in Rwanda in 2002 to establish the truth about how the genocide had been planned and

executed, to speed up delivery of justice, to eradicate the culture of impunity, to strengthen

unity and reconciliation, and to strengthen the capacity of the society to solve its own

problems. The courts are credited with laying the foundation for peace, reconciliation and

unity in Rwanda. The gacaca courts officially finished their work in June 2012 after having

tried a total of 1,958,634 genocide-related cases.

58.

The gacaca courts were established by a law that guided their implementation

throughout the 10 years of their existence. They were not established or used as a means of

resolving personal grievances and/or disputes between neighbours and relatives. The

Government claims these are allegations fabricated by the source aimed at undermining the

credibility of the gacaca courts and the initiatives of Rwanda to solve its own problems. The

Government strongly rejects these allegations.

59.

Particularly with regard to the allegation that the charges on which Ms. Sebagabo was

convicted were fabricated, the Government states that the case against Ms. Sebagabo

regarding her role in the genocide in 1994 against the Tutsi was duly conducted and the

judgment rendered in accordance with the law. The case against Ms. Sebagabo was heard by

the gacaca court of Nyange Sector in Gisagara District, Southern Province. The original file

is in the archives of the gacaca courts, which are in the custody of the National Commission

for the Fight against Genocide. The file was part of the court dossier produced by the

Intermediate Court of Huye and the High Court; thus, Ms. Sebagabo and the prosecution

referred to it during the hearing and the former did not attempt to challenge its authenticity

before the court during any stage of the proceedings.

60.

In response to the allegations concerning Ms. Sebagabo’s health, the Government

contends that prisons in Rwanda are under the management of the Rwanda Correctional

Service. All facilities are operated in line with international human rights standards, and

prison management is trained to handle inmates accordingly.

61.

According to the Government, in relation to the claim of neglect by prison staff, Ms.

Sebagabo has been treated the same as other inmates and has not been neglected in any way.

She has been satisfied with all basic requirements provided for by the law, including shelter,

food, and access to water and electricity, recreational facilities, communication facilities, and

medical and legal services.

62.

According to the Government, in relation to the claim of not receiving any medical

treatment despite her declining health, Ms. Sebagabo has been given access to medical and

health services as provided to all inmates. The prisons possess fully equipped health centres.

Medical cases that need special attention beyond the capacity of the health centres are

referred to appropriate hospitals. Ms. Sebagabo has been afforded access to medical checks

and treatment whenever the need has arisen, as is the case for all inmates.

63.

According to the Government, in relation to the claim of a lack of appropriate food to

regulate her diabetes, prison authorities provide all inmates with meals that meet basic

nutritional requirements. In addition, inmates are able to order food from a private restaurant

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that operates within the prison facilities in case they have special dietary needs. Inmates are

allowed to buy food from the restaurant using money deposited in their individual accounts.

Ms. Sebagabo regularly uses her funds to order food that she desires or prefers. She also uses

the same account to buy other provisions that she needs beyond what is provided to all

inmates. Her account is regularly replenished by her family or friends.

64.

In relation to the claim that Ms. Sebagabo was informed by prison staff that she had

hepatitis but never received any medical inspection or treatment for it and later was informed

that she did not have hepatitis, the Government states that she has been checked for

communicable and non-communicable diseases as is regularly done for all inmates. All

medical records and communications regarding her health have been given to her. She has

no upsetting health conditions, as claimed by the source. All health communications in

prisons are handled by health professionals and no contradicting or confusing messages have

been given to Ms. Sebagabo concerning her health. Any health issues relating to Ms.

Sebagabo have been handled in line with the best health practices and ethics.

65.

The Government thus submits that these allegations have been investigated and

established to be unfounded and they therefore should be rejected.

66.

Turning to the claims of Ms. Sebagabo’s harsh treatment in prison, the Government

argues that none of these claims has ever been brought to the attention of any relevant

Rwandan authorities, either by Ms. Sebagabo herself or by other independent actors who

conduct regular prison visits to monitor compliance with human rights standards.

67.

In relation to the claim that Ms. Sebagabo has been subjected to significantly harsher

treatment in prison, along with others who have foreign citizenship, the Government claims

that she has been treated with respect for her human rights in all correctional facilities. All

inmates, whether foreigners or nationals, are treated the same in line with the law. Neither

Ms. Sebagabo nor any other inmates have been treated harshly. Therefore, her right to be free

from discrimination has not been violated.

68.

The Government claims that Ms. Sebagabo has not been subjected to solitary

confinement at any time in any prison. She lives with other inmates in a shared facility. She

interacts with other inmates and engages in social activities. She also freely practices her

religion and attends church services in the prison. Rwandan law does not provide or recognize

solitary confinement as a form of punishment.

69.

According to the Government, Ms. Sebagabo has not been subjected to any beatings

during her time in detention facilities.

70.

Turning to the allegation relating to the rights to visitation, contact with family and

legal counsel, the Governments explains that Ms. Sebagabo received communication from

the Embassy of Norway regarding her family in Norway, and the prison authorities facilitated

the signature of some papers. All claims in this regard are unfounded and untrue.

71.

According to the Government, from the time Ms. Sebagabo was handed over to the

prison authorities, she has been allowed to be visited by her family and friends, like any other

inmates, in accordance with the law, which is aligned to international human rights standards.

However, after the outbreak of COVID-19, the Government put containment measures in

place that limited visitations for all inmates to only their legal counsel. These measures were

put in place to reduce the risk of exposing inmates to COVID-19. Visiting legal counsel also

have to ensure they have been tested for COVID-19 and have a negative result. Ms. Sebagabo

has been granted access to legal counsel like all other inmates. Her lawyers frequently visit

her whenever they want, within the limits imposed by guidelines on COVID-19. She meets

with her legal counsel in full confidentiality and privacy, as required by the law.

72.

According to the Government, Ms. Sebagabo is granted the same amount of time as

other inmates for calling her family and friends. She makes these calls without interference.

She is allowed to communicate in any of the official languages of Rwanda, including English,

during telephone calls.

73.

In relation to the allegations concerning Ms. Sebagabo’s risk of contracting COVID-

19, the Government submits that these claims are all false. It is not true that Nyarugenge

Prison is a COVID-19 hotspot, as it has had a limited number of cases. Containment measures

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10

have been put in place, such as wearing masks, regularly washing hands or using hand

sanitizers. There have been zero new infections over the last couple of months.

74.

In relation to the claim that, while at Nyamagabe Prison, Ms. Sebagabo was crammed

in a cell with over 200 people, and currently experiences similar conditions at Nyarugenge

Prison despite the risks of COVID-19, the Government asserts that this is not true. Inmates

have shared facilities, but each inmate has a designated space to ensure sufficient privacy and

adequate healthy living conditions.

75.

According to the Government, the prison authorities have been implementing

COVID-19 containment measures and guidelines issued nationally since the outbreak of the

virus. These guidelines include social distancing. As such, the claim that Ms. Sebagabo is at

a potentially fatal risk of contracting COVID-19 is not true.

76.

Turning to the allegations of excessive pretrial detention and arresting persons without

a legal basis and without a court order, the Government rejects all claims as unfounded and

false. It submits that any inmate brought to prison facilities can only be admitted with a valid

court order. These standards were respected in the case of Ms. Sebagabo. The procedure for

an arrest and the conditions under which a person can be put in pretrial detention are

determined by Law No. 027/2019 relating to the criminal procedure, under articles 35, 36,

37, 74, 75, 76, 77, 78 and 79.

77.

Addressing the allegations of the targeting of inmates with foreign citizenship, the

Government submits that the claim that Ms. Sebagabo and others who have obtained foreign

citizenship have been singled out by the authorities and subjected to differential treatment in

detention is untrue. All prisoners have equal rights as provided for by the law and are treated

in the same way.

78.

In relation to the claims of torture and excessive and prolonged solitary confinement,

the Government affirms that Rwandan laws do not allow torture of any kind in any detention

facility. No acts of torture or degrading treatment have been inflicted on Ms. Sebagabo or

any other inmate in any detention facility. All claims made in relation to this are

unsubstantiated. The claims are aimed at portraying Ms. Sebagabo as a different person with

a different status, which does not hold any truth. She is an inmate like any other and receives

the same treatment as other inmates, in accordance with the law.

79.

Turning to the allegation of double jeopardy, the Government submits that Ms.

Sebagabo has filed a case with the appellate court, where she is challenging the ruling of the

High Court on the ground of double jeopardy and the judgment of the gacaca court in 2008.

The Government therefore finds that it would be inappropriate to discuss the matter, which

is still sub judice.

80.

The Government states that it is committed to its obligations under the Covenant and

other relevant international treaties and to the principles enshrined in its Constitution and

national laws. This is because Rwanda firmly believes these obligations to be in the primary

interest of Rwandans and that, as a Government, it is accountable first and foremost to the

citizens. The judiciary in Rwanda is independent and the Government of Rwanda makes sure

that due process and fair trial principles are respected.

Further comments from the source

81.

On 19 October 2021, the Government’s reply was transmitted to the source for further

comments, which the source submitted on 2 November 2021, accepting that Ms. Sebagabo

had been arrested in January 2017 instead of December 2017. However, the source argues

that the error in the initial communication emphasizes that Ms. Sebagabo’s legal team faced

difficulties in obtaining information about her situation, including when and where she was

initially arrested, and in sourcing evidence to carry out her defence effectively. They have

faced significant hurdles in communicating with her, such as language restrictions and

supervision, which were directly imposed by the prison authorities.

82.

The source argues that Ms. Sebagabo was held incommunicado in an unknown

detention centre before being transferred to Kigali central prison, that she was detained

without legal counsel until July 2018 and that her trial still took place in November 2018.

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11

83.

While the Government of Rwanda seeks to undermine the credibility of the claims by

pointing to a lack of evidence, the source highlights the documented restrictions on the right

to counsel and incommunicado detention. As a result, Ms. Sebagabo’s legal team have had

great difficulties in communicating with her. This should be taken as evidence of arbitrary

detention, due to the unlawful restrictions placed on access to legal counsel.

84.

While the Government alleges that Ms. Sebagabo was informed of the charges against

her and presented with an arrest warrant on the date of her arrest, the source rejects the claim.

Ms. Sebagabo was not presented with an arrest warrant when she was first arrested, in

violation of article 9 of the Covenant. The only arrest warrant that has ever been presented to

the legal team was not provided until November 2018, despite efforts to obtain the document

earlier. For the source, the warrant was produced after Ms. Sebagabo had been arrested.

85.

The source rejects the Government’s claim that Ms. Sebagabo had the right to

challenge her pretrial detention, arguing that it was impossible, as her access to legal counsel

has been extremely restricted throughout, and she was only brought before a court for the

beginning of her trial proceedings.

86.

The source maintains that the Government has failed to submit any evidence proving

that Ms. Sebagabo signed a waiver allowing her to be interrogated without a lawyer.

Furthermore, the source submits that, even if a signed waiver exists, Ms. Sebagabo’s denial

would not have been voluntary, nor would it have been informed. Considering the

circumstances of Ms. Sebagabo’s arrest – she was in an unofficial holding cell, denied any

communication with the outside world and tortured – any denial to speak to counsel was

made out of fear and without the knowledge that the interrogation would be used against her.

87.

The source also states that Ms. Sebagabo was held in an unknown detention facility

close to Kigali International Airport following her arrest, for approximately two weeks, prior

to being transferred to Kigali central prison. During these initial weeks of incommunicado

detention, when the Ministry of Foreign Affairs of Norway attempted to locate her, the

authorities denied that she was detained in Rwanda.

88.

With regard to the gacaca court’s judgment of 2008, the source emphasizes that, in

spite of an alleged conviction in 2008 for genocide-related offences, Ms. Sebagabo travelled

to Rwanda on several occasions with a granted visa, including from 22 November to 21

December 2012, without being inconvenienced by the authorities while in the country.

89.

Ms. Sebagabo has not received any medical treatment despite her declining mental

and physical health. The source emphasizes that Ms. Sebagabo was informed by prison

officials that she was suffering from hepatitis. Despite feeling lethargic and seriously unwell,

she was not provided with any further information about her diagnosis, nor was she able to

speak to a doctor or receive any medication.

90.

The source emphasizes that Ms. Sebagabo and others with foreign citizenship have

been singled out by the authorities and subjected to differential treatment in detention. This

is evidenced by her subjection to torture and excessive and prolonged solitary confinement,

compared to those with only Rwandan citizenship. Such differential treatment can never be

considered objective and reasonable nor in pursuit of any legitimate aim.

91.

The source reiterates that Ms. Sebagabo’s conviction constitutes a violation of her

right not to be subject to double jeopardy under article 14 (7) of the Covenant.

Discussion

92.

The Working Group thanks the source and the Government for their submissions.

93.

In determining whether Ms. Sebagabo’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 law constituting

arbitrary detention, the burden of proof should be understood to rest upon the Government,

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12

if it wishes to refute the allegations. Mere assertions that lawful procedures have been

followed are not sufficient to rebut the source’s allegations.9

Category I

94.

The source asserts that no warrant was shown to Ms. Sebagabo when she was initially

arrested at the airport. She was held incommunicado for over two weeks, during which time

she was interrogated frequently without being informed of the charges. The Government of

Norway was reportedly notified of her detention after she had been relocated to Kigali central

prison, in January 2017. Even then, she was not informed of the charges against her.

95.

To date, Ms. Sebagabo has allegedly never been presented with a warrant, although

her lawyers eventually received a “backdated” copy in November 2018, shortly before her

trial. It lists genocide charges, for which the authorities gathered evidence only after she had

been arrested. The source further states that every witness, whose testimonies were the only

evidence used by the prosecution, was interrogated after her arrest. Therefore, the authorities

allegedly did not have a legal basis to arrest her in January 2017. The arrest warrant cannot

be considered evidence that the arresting authorities complied with Ms. Sebagabo’s right,

under article 9 (2) of the Covenant, to be informed of the charges against her.

96.

In its response, the Government dismisses the allegations as unfounded, fabricated

and unsubstantiated. It maintains that Ms. Sebagabo was arrested in accordance with the

Rwandan law in force during the time of her arrest. She was informed of the charges against

her on the day of her arrest. According to the Government, that is confirmed by the arrest

warrant that Ms. Sebagabo herself signed on the same date. Her provisional detention was

based on a court order, which she had the right to challenge.

97.

For a deprivation of liberty to have a legal basis, the authorities must invoke it and

apply it to the circumstances of the case through an arrest warrant. Guarantees protecting

against arbitrary detention under international law include the right to be presented with an

arrest warrant to ensure the exercise of effective control by a competent, independent and

impartial judicial authority. That is procedurally inherent in the right to liberty and security

and the prohibition of arbitrary detention, under articles 3 and 9 of the Universal Declaration

of Human Rights and principles 2, 4 and 10 of the Body of Principles for the Protection of

All Persons under Any Form of Detention or Imprisonment.10

98.

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 affirms

that the right to challenge the lawfulness of detention before a court is a self-standing human

right, essential to the preservation of legality in a democratic society. That right applies to all

forms and situations of deprivation of liberty. Judicial oversight is a fundamental safeguard

of personal liberty and is essential in ensuring that detention has a legal basis.

99.

The information supplied to the Working Group by the source and the response by the

Government substantially contradict each other as to whether or not a warrant was exhibited

to Ms. Sebagabo at the time of her arrest or whether she was otherwise notified of the reasons

for her detention.

100.

The Government maintains a consistent position of referring only to the official

detention, which was effected in January 2017. However, there are verifiable facts that the

Government could have refuted and clarified to counter the source’s version of the events,

for example, by providing supporting court documents. More importantly, the Government

could, in its response, have explained where Ms. Sebagabo was first arrested and where she

was relocated. Those gaps in the Government’s narrative do, in the Working Group’s view,

give credence to the source’s explanation. It is on this basis that the Working Group is

inclined to accept the source’s narrative regarding the absence of the arrest warrant during

the initial arrest and the incommunicado detention itself.

9 A/HRC/19/57, para. 68.

10 See opinions No. 11/2020, para. 38; No. 13/2020, para. 47; No. 14/2020, para. 50; No. 31/2020, para.

41; No. 32/2020, para. 33; No. 33/2020, para. 54; and No. 34/2020, para. 46.

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13

101.

The Working Group observes that, during the initial stage of her detention, Ms.

Sebagabo was not afforded the right to be brought before a court so that it could decide

without delay on the lawfulness of her detention, in accordance with articles 3, 8 and 9 of the

Universal Declaration of Human Rights and principles 11, 32, 37 and 38 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

The Working Group finds a violation of those articles and principles.

102.

The Working Group has also repeatedly asserted that holding persons at secret,

undisclosed locations and in circumstances unrevealed to the person’s family violates their

right to contest the legality of their detention before a court or tribunal under article 9 (4) of

the Covenant. Judicial oversight of any detention is a central safeguard for personal liberty

and is critical in ensuring that the detention has a legitimate basis. In the circumstances

attending the incarceration of Ms. Sebagabo at the secret location, she was unable to

challenge her detention before a court. Consequently, her rights to an effective remedy under

article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant were

violated.

103.

Ms. Sebagabo was kept at a location unknown to her family, lawyers and the

Norwegian National Criminal Investigation Service. The deprivation of liberty that entails a

wilful refusal to disclose the fate or whereabouts of the persons concerned or to acknowledge

their detention lacks any valid legal basis under any circumstance. It is also inherently

arbitrary, as it places such person outside the protection of the law, in violation of article 6

of the Universal Declaration of Human Rights. Moreover, enforced disappearances constitute

a particularly aggravated form of arbitrary detention, while violating numerous substantive

and procedural provisions of the Covenant. 11 The Government’s failure to provide

notification of the arrest and location of detention to Ms. Sebagabo also violated principle 16

(1) of the Body of Principles for the Protection of All Persons under Any Form of Detention

or Imprisonment.

104.

In addition, the Working Group has reiterated that, according to article 9 (3) of the

Covenant, pretrial detention should be the exception rather than the norm and should be

ordered for the shortest time possible. Put differently, liberty is recognized under article 9 (3)

of the Covenant as the core consideration, with detention merely as an exception. Detention

pending trial must thus 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.

105.

Consequently, the Working Group finds that the Government failed to establish a legal

basis for Ms. Sebagabo’s detention. Her detention was thus arbitrary under category I.

Category III

106.

The source claims that the deprivation of liberty of Ms. Sebagabo, as well as her trial,

falls within category III, as there was total or partial non-observance of the international

norms relating to the right to a fair trial, which is alleged to be of such gravity as to give the

deprivation of liberty an arbitrary character. More precisely, the source alludes to the denial

of Ms. Sebagabo’s right to a fair and public hearing by a competent, independent and

impartial tribunal established by law; the right to the presumption of innocence; the right to

adequate time and facilities for the preparation of the defence and to communicate with

counsel; and the right to be tried without undue delay, among others.

107.

With regard to the right to a fair and public hearing, the source submitted that there

was unjustified restriction to media access to the proceedings for Ms. Sebagabo’s case at both

the Intermediate Court of Huye and the Appellate Court of Nyanza. The courts did not

provide adequate facilities for the attendance of the media, who are critical to the

documentation of trial proceedings and disseminating this information to the public. This was

despite the fact that Ms. Sebagabo’s trial proceedings were never of a confidential nature,

nor did they pose a risk to any exceptional ground to a public trial. Notably, the Government

does not address this issue in its reply.

11 Human Rights Committee, general comment No. 35 (2014), para. 17.

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14

108.

The Working Group is mindful that article 14 (1) of the Covenant guarantees that

those facing criminal charges have the right to a fair and public hearing by a competent,

independent and impartial tribunal established by law. It also recognizes the right to equality

before courts and tribunals. A “public” trial is one open to the public and all media. There

are exceptions to this general rule permitted only on the basis of national security, public

order, public morals, privacy or where publicity would prejudice the interest of justice.

109.

There was no information to suggest that any of the exceptions to the right to a public

hearing under article 14 (1) of the Covenant applied in the present case. Ms. Sebagabo’s trial

proceedings were never of a confidential nature because the information relating to the

Rwandan genocide and Ms. Sebagabo had already been widely discussed in courts and the

media. There was no justification to restrict media access to the trial.

110.

The source alleges that the court before which Ms. Sebagabo was tried was not

impartial and independent as, during her trial before the Intermediate Court of Huye, the

Court refused to permit her lawyers to cross-examine the prosecution witnesses, whose

testimonies formed the basis of her convictions, and were used during the appeal. This

approach seems to contradict the Covenant with regard to the right to be heard by an impartial

tribunal, which demands that judges act in ways that properly promote the interests of all the

parties in justice.

111.

Furthermore, the source reports that the Intermediate Court of Huye proceeded on the

premise that it was incumbent upon Ms. Sebagabo to prove whether she had visited the place

where she had lived during the genocide and met the community, when she introduced the

fact that she had visited Rwanda several times prior to her arrest as exculpatory evidence of

her innocence. The Court also held it against her when determining her guilt that she had not

proved whether or not she had still been in Rwanda shortly after the genocide so that she

could refute any allegation made back then. This was confirmed on appeal. This shifting of

the burden of proof undermined the presumption of innocence. The Government has not

addressed these issues.

112.

The Working Group notes that article 14 (2) of the Covenant guarantees that everyone

charged with a criminal offence is to have the right to be presumed innocent until proven

guilty according to law. This was not the case in Ms. Sebagabo’s trial. It thus considers that

the source has established that Ms. Sebagabo’s trial did not meet the standards of a fair and

public hearing by a competent, independent and impartial tribunal, in violation of article 10

of the Universal Declaration of Human Rights and article 14 (1) and (2) of the Covenant. The

Working Group refers this case to the Special Rapporteur on the independence of judges and

lawyers.

113.

The source says that Ms. Sebagabo was detained at Kigali central prison for eight

months before being granted initial access to legal counsel, arranged by the Ministry of

Foreign Affairs of Norway. Therefore, Ms. Sebagabo was not granted “prompt” access to

counsel. Besides denying the incommunicado detention of Ms. Sebagabo, the Government

has not specifically responded to those claims.

114.

The source alleges that Ms. Sebagabo was held in pretrial detention from her arrest in

January 2017 until her trial at the Intermediate Court of Huye in November 2018. Prior to

those proceedings, she was brought before the Primary Court, which concluded that it did not

have the jurisdiction to hear her case. However, at neither of the proceedings did Ms.

Sebagabo have the opportunity to challenge her pretrial detention and, thus, there was no

individualized determination made by a judicial authority to justify the lengthy period of

pretrial detention. Having spent more than 20 months in pretrial detention without

justification, Ms. Sebagabo was not tried within a reasonable amount of time, contrary to the

requirement under article 9 (3) of the Covenant.

115.

The source alleges that, even when Ms. Sebagabo was granted access to legal counsel,

in July 2018, her ability to communicate with her lawyers and assist in their preparation for

trial was significantly impeded. Her lawyers were frequently denied visitation permits. When

Ms. Sebagabo’s defence was permitted entry to the prison, which was rare, the visits were

always supervised by a prison officer, who ensured that she spoke to them only in

Kinyarwanda – a language that most of her legal team did not speak. On the day of court

proceedings, Ms. Sebagabo’s counsel was not allowed to speak to her.

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116.

The response of the Government with respect to access to legal counsel is that

Rwandan law recognizes the rights to due process of the law, which includes the right to legal

representation (art. 29 (1) of the Constitution). According to Law No. 30/2013 relating to the

Code of Criminal Procedure, in its article 38, any person held in custody by the Judicial

Police is to be informed of his or her rights, including the right to legal counsel or any other

person of his or her choice.

117.

The Government states that the right to counsel was explained to Ms. Sebagabo during

what the Government calls the first interrogation following her arrest on 21 January 2017.

Ms. Sebagabo, however, declined that right, informing the investigator that she would

respond to the questions by herself. The statement was recorded and duly signed by Ms.

Sebagabo. On 26 January 2017, she was again informed by the prosecutor of her right to be

interrogated in the presence of her legal counsel. Ms. Sebagabo, however, declined to avail

herself of that right. She was represented by legal counsel in subsequent proceedings.

118.

Article 14 (3) (b) of the Covenant guarantees the right to adequate time and facilities

for the preparation of the defence and to communicate with counsel. The Human Rights

Committee has interpreted “adequate time” as requiring the accused to be granted prompt

access to counsel, while what is considered “prompt” depends on the circumstances of the

case. Principle 15 of the Body of Principles for the Protection of All Persons under any Form

of Detention or Imprisonment stipulates that communication with counsel is not to be denied

for more than a matter of days. The accused must also be able to meet with counsel in private

conditions that fully respect the confidentiality of their communication. The right to

communicate with counsel also requires that lawyers are able to represent their clients

without restrictions, influences, pressure or under interference from any quarter. In addition,

the gravity of the alleged offence, which in this case was genocide, is important in

determining if counsel should be mandatory in the interest of justice.12

119.

Article 14 (3) (c) of the Covenant states that any individual has the right to be tried

without undue delay. This provision complements article 9 (3), which requires an individual

to be brought promptly before a judge and tried within a reasonable time frame. What is

considered a reasonable time depends on the individual circumstances of the case, including

its complexity and the conduct of the accused, the prosecutor and the court.

120.

Article 9 (3) states that it is not to be the general rule that persons awaiting trial are to

be detained in custody. If such detention is imposed, it must be based on an individualized

determination that is reasonable and necessary taking into account all the circumstances. The

Human Rights Committee has explained that pretrial detention must be ordered for as short

a time as possible. Thus, according to articles 9 (3) and 14 (3) (c), where pretrial detention is

imposed, an individual must be tried as quickly as possible; this was not the case for Ms.

Sebagabo.

121.

In view of these considerations, the Working Group is of the view that the detention

of Ms. Sebagabo is arbitrary under category III, due to the non-observance of the international

norms relating to the right to a fair trial.

Category V

122.

Regarding the deprivation of Ms. Sebagabo’s liberty being a violation of international

law on the grounds of discrimination, the source claims that Ms. Sebagabo and others who

have obtained foreign citizenship have been singled out by the authorities and subjected to

differential treatment in detention. This is allegedly evidenced by their subjection to torture

and excessive and prolonged solitary confinement, compared to those with exclusively

Rwandan citizenship. The source claims that the arrest and detention of Ms. Sebagabo is

arbitrary under category V.

123.

The Government’s response is that the source’s claim is untrue, as all prisoners have

equal rights as provided for by Rwandan laws and are treated in the same way.

124.

The Working Group notes that, under article 7 of the Universal Declaration of Human

Rights and article 26 of the Covenant, every individual has the right to freedom from

12 Human Rights Committee, general comment No. 32 (2007), para. 38.

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16

discrimination, including based on “other status”, which includes nationality and citizenship.

Any detention based on discriminatory treatment would thus be arbitrary.

125.

In the present situation, however, there is not sufficient information provided by the

source to establish that the nationality of Ms. Sebagabo was a primary reason for the

detention.

Disposition

126.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Julienne Sebagabo, being in contravention of articles 3,

6, 8 and 9 of the Universal Declaration of Human Rights and articles 2, 4, 9 and 14 of

the International Covenant on Civil and Political Rights, is arbitrary and falls within

categories I and III.

127.

The Working Group requests the Government of Rwanda to take the steps necessary

to remedy the situation of Ms. Sebagabo 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.

128.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Ms. Sebagabo immediately and accord her

an enforceable right to compensation and other reparations, in accordance with international

law. 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 unconditional release of Ms. Sebagabo.

129.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms.

Sebagabo and to take appropriate measures against those responsible for the violation of her

rights.

130.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the independence of judges and lawyers.

131.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

132.

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 Ms. Sebagabo has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Ms. Sebagabo;

(c)

Whether an investigation has been conducted into the violation of Ms.

Sebagabo’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 Rwanda with its international obligations in line with

the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

133.

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.

134.

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

A/HRC/WGAD/2021/73

17

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.

135.

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.13

[Adopted on 18 November 2021]

13 Human Rights Council resolution 42/22, paras. 3 and 7.