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.21-07369 (E) 050721 050721
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninetieth session, 3–12 May 2021
Opinion No. 9/2021 concerning Philbert Niyonkuru (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 14 December 2020, the Working Group
transmitted to the Government of Burundi a communication concerning Philbert Niyonkuru.
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/2021/9
General Assembly
Distr.: General
7 June 2021
English
Original: French
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Submissions
Communication from the source
4.
Philbert Niyonkuru is a Burundian citizen born in 1982. Mr. Niyonkuru is an officer
of the National Police. According to the source, Mr. Niyonkuru was a member of the regular
army when it was fighting against the rebel movements, before the ceasefire and the
integration of the rebels into the regular army. At the time of the facts of the case, Mr.
Niyonkuru was living at the camp of the Higher Police Institute, commonly known as
ENAPO, in Ngagara, Bujumbura Mairie.
a.
Arrest and detention
5.
According to the source, Mr. Niyonkuru was arrested on 18 August 2015 during his
regular shift at the police station in the Bwiza area, in the commune of Mukaza. His superior
told him to accompany him to the National Intelligence Service, explaining that he was
needed by the Service’s officers. Upon arrival, Mr. Niyonkuru was questioned, without the
assistance of counsel, regarding the murder of a lieutenant general and replied that he knew
nothing about the event. He was then placed in a National Intelligence Service cell.
6.
The source explains that, on 16 September 2015, Mr. Niyonkuru was questioned by a
prosecutor from the Public Prosecutor’s Office in Bujumbura Mairie on the basis of reports
from the National Intelligence Service. Mr. Niyonkuru was also not assisted by counsel
during the questioning, after which he was taken back to a National Intelligence Service cell.
7.
According to the source, no warrant was presented to Mr. Niyonkuru at the time of
his arrest. A warrant was issued on 30 September 2015 by the Public Prosecutor’s Office in
Bujumbura Mairie. Mr. Niyonkuru was thereafter transferred to the prison in Gitega.
8.
According to the source, in November 2015, Mr. Niyonkuru was brought before the
judges’ council chamber of the Bujumbura Mairie Tribunal de Grande Instance (court of
major jurisdiction) for a review of the lawfulness of his detention, and the judges’ council
chamber confirmed his detention. Six months later, on 6 May 2016, Mr. Niyonkuru was
brought before the trial court, without the assistance of counsel, and with the prosecution
presenting no witnesses. Further hearings were held on 1 August and 11 October 2016. The
prosecution did not present its witnesses at any of these hearings. At the last hearing, the case
was adjourned for consideration. A month later, Mr. Niyonkuru was summoned, thinking
that he was going to hear the judgment delivered. However, the court reopened the
proceedings to allow the prosecution to conduct a further investigation.
9.
The source also reports that, on 27 December 2016, the Mukaza Tribunal de Grande
Instance (court of major jurisdiction) held a hearing at which the prosecution disclosed that
its witnesses had not appeared because they were not protected, and the case was adjourned
sine die.
10.
Since then, the case has not been scheduled for a public hearing to allow Mr.
Niyonkuru to present arguments in his defence.
b.
Legal analysis
i.
Category I
11.
The source argues that the arbitrary character of Mr. Niyonkuru’s detention arises
from several factors, first and foremost the lack of a legal basis for his detention as required
under article 9 of the Covenant, to which Burundi acceded on 9 May 1990. Similarly, the
source recalls that the Working Group regards detention as arbitrary if it is clearly impossible
to invoke a legal basis justifying it.
12.
First, it is claimed that, in the present case, no arrest procedure was followed. In this
regard, the source claims that no arrest warrant or other document justifying the detention
was presented to Mr. Niyonkuru at the time of his arrest. It was not until 30 September 2015,
41 days after his arrest, that Mr. Niyonkuru learned that an arrest warrant had been issued
against him, was transferred to prison and was charged with murder. The source therefore
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concludes that, between 18 August 2015, the day of his arrest, and 30 September 2015, the
pretrial detention of Mr. Niyonkuru had no legal basis.
13.
Second, the source alleges that Mr. Niyonkuru did not have access to judicial review
mechanisms until approximately three months into his detention. At the first hearing, in
November 2015, the authorities did not provide any legal basis to justify the pretrial detention
of Mr. Niyonkuru. The source therefore concludes that, as the lawfulness of Mr. Niyonkuru’s
detention was not confirmed within the time prescribed by law, in accordance with article
111 (3) of the Code of Criminal Procedure, which provides that “the appearance before the
judge must take place no later than 15 days after the issue of the arrest warrant”, the
deprivation of liberty of Mr. Niyonkuru has no legal basis.
14.
Moreover, according to article 110 of the Code of Criminal Procedure, “freedom being
the rule and detention the exception, the accused may be remanded in custody only if there
is sufficient evidence of guilt and the acts of which he or she is accused appear to constitute
an offence punishable by law with a penalty of imprisonment for at least 1 year”. In the
present case, the source notes that Mr. Niyonkuru was arrested without the slightest evidence
that he was guilty of involvement in the lieutenant general’s murder. The source also notes
that the lack of such proof of guilt is based on a lack of findings against the defendant during
the judicial investigation.
15.
In the light of the above, the source concludes that Mr. Niyonkuru’s detention must
be considered arbitrary under category I.
ii.
Category III
16.
The source recalls that, according to articles 8, 9, 10 and 11 of the Universal
Declaration of Human Rights and articles 9 and 14 of the Covenant, everyone has the right:
(a) to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him or her; (b) not to be deprived of his or her liberty except in
accordance with such procedure as is established by law; (c) to be brought promptly before
the competent judicial authority; and (d) to trial within a reasonable time. Lastly, pretrial
detention should not be the rule and may be allowed only to ensure the appearance of the
person concerned for trial and for execution of the judgment.
17.
According to the source, it seems that the proceedings against Mr. Niyonkuru were
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. Niyonkuru enjoys no protection
of the law and constitute violations of such gravity that his detention must be considered
arbitrary.
18.
First, the source alleges that, with regard to the violation of procedural rules and
safeguards surrounding arrest, Mr. Niyonkuru’s arrest was carried out in violation of several
procedural requirements. In particular, no document justifying his arrest was presented to
him.
19.
Second, the source maintains that the authorities failed to respect the requirement to
bring Mr. Niyonkuru before a competent court within the statutory time limit, namely 15
days after the issue of the arrest warrant, as stipulated in article 111 (3) of the Code of
Criminal Procedure. In the present case, a warrant for Mr. Niyonkuru’s arrest was not issued
until 30 September 2015, and he was brought before the judge for a detention review in
November 2015, three months after he had been placed in detention and two months after the
arrest warrant had been issued.
20.
In this context, the source recalls that article 112 (2) of the Code of Criminal Procedure
provides that “release from pretrial detention shall be ordered by the court on its own motion
in the event of wrongful detention”. However, the irregularities of detention, including the
exceeding of time limits, were not punished by either the procedural or the trial judge, in
violation of article 158 of the Code of Criminal Procedure, which provides that “the court
has the authority to declare null and void any part of the proceedings before it”.
21.
Third, the source reports that Mr. Niyonkuru was deprived of the fundamental right
to legal assistance in judicial proceedings. Indeed, during questioning, Mr. Niyonkuru was
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not assisted by counsel, even though the assistance of counsel is a legal requirement under
article 95 of the Code of Criminal Procedure. This requirement continued to be violated
during the questioning before the investigating judge and during the judges’ council chamber
hearing.
22.
Furthermore, the source asserts that the case is being processed at an inordinately slow
pace, as there has been no progress since Mr. Niyonkuru’s arrest in August 2015. Yet,
according to article 38 of the Constitution, “every person has the right in judicial or
administrative proceedings to have his or her case treated fairly and settled within a
reasonable time”. The source notes that despite this constitutional provision, Mr.
Niyonkuru’s case has been before a court of first instance for more than four years. The last
public hearing took place on 27 December 2016, when the prosecution requested a
postponement of the case to allow it to present its witnesses, once they could be afforded
protection, and the court adjourned the case sine die.
23.
In the light of the elements considered above, the source concludes that the procedural
irregularities of which Mr. Niyonkuru was a victim seriously affected his right to a fair trial
and are of such gravity that his detention must be considered arbitrary under category III.
Response from the Government
24.
On 14 December 2020, the Working Group transmitted to the Government a
communication concerning Mr. Niyonkuru. The Working Group requested the Government
to provide detailed information about Mr. Niyonkuru by 12 February 2021 at the latest.
Specifically, the Working Group requested the Government to clarify the legal provisions
justifying Mr. Niyonkuru’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. Niyonkuru.
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. 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.
Discussion
26.
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.
27.
In determining whether Mr. Niyonkuru’s deprivation of liberty is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
requirements constituting arbitrary detention, the burden of proof should be understood to
rest upon the Government if it wishes to refute the allegations.3 In the present case, the
Government has chosen not to challenge the prima facie credible allegations made by the
source.
28.
The source argues that Mr. Niyonkuru’s arrest and detention are arbitrary under
categories I and III. The Working Group will examine each of the source’s allegations in
turn. Although the Working Group examines each case on the merits, it cannot but note that
these allegations are similar to those examined in recently adopted opinions concerning
Burundi.4
2 See opinions 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.
4 Opinions No. 56/2020, No. 55/2020 and No. 25/2020.
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Category I
29.
The source states that Mr. Niyonkuru was arrested on 18 August 2015 by his superior,
who told him to accompany him to the National Intelligence Service, explaining that he was
needed by the Service’s officers. No arrest warrant or other document justifying arrest was
presented to Mr. Niyonkuru at the time of his arrest. Upon arrival, Mr. Niyonkuru was
questioned about the murder of a lieutenant general. It was not until 30 September 2015, 41
days after his arrest,5 that Mr. Niyonkuru learned that an arrest warrant had been issued
against him, was transferred to prison and was charged with murder. The Government has
not contested these allegations.
30.
According to 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.
Article 9 (2) 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. As the Working Group has previously stated, in order for a deprivation of liberty to
have a legal basis, it is not sufficient for there to be a law authorizing the arrest. The
authorities must invoke that legal basis and apply it to the circumstances of the case through
an arrest warrant.6 The Working Group concludes that Mr. Niyonkuru’s arrest without a
warrant constitutes a violation of his right under article 9 (1) of the Covenant. Furthermore,
the Working Group considers that the fact that Mr. Niyonkuru was informed by his supervisor
that he was needed at the National Intelligence Service but not that he was under arrest
indicates that the arrest was carried out in violation of legal procedures. Moreover, Mr.
Niyonkuru was not informed of the charges against him until 30 September 2015, 43 days
after his arrest, in violation of article 9 (2) of the Covenant.7
31.
The source also reports that, on 16 September 2015, Mr. Niyonkuru was questioned
by a public prosecutor. However, he was not brought before the judges’ council chamber of
the Bujumbura Mairie court of major jurisdiction for a review of the lawfulness of his
detention until November 2015, approximately three months after his arrest. The judges’
council chamber confirmed his continued pretrial detention. The Government has not
contested these allegations either.
32.
Furthermore, article 9 (3) of the Covenant provides that anyone arrested or detained
on a criminal charge must be brought promptly before a judicial authority so that he or she
has the opportunity to challenge the lawfulness of his or her detention. As the Human Rights
Committee has stated, 48 hours is ordinarily sufficient to satisfy the requirement of bringing
a detainee “promptly” before a judge following his or her arrest, and any longer delay must
remain absolutely exceptional and be justified under the circumstances.8 In the present case,
Mr. Niyonkuru was not brought before a judge until three months into his detention. In the
absence of such justification, the Working Group finds that the Government violated its
obligation under article 9 (3) of the Covenant. Although Mr. Niyonkuru was questioned by a
public prosecutor on 16 September 2015, 29 days after his arrest, the Working Group has
previously emphasized that a prosecutorial body cannot be considered a judicial authority for
the purposes of article 9 (3) of the Covenant.9
33.
In reaching this conclusion, the Working Group takes note of the source’s assertion
that Mr. Niyonkuru’s detention was not confirmed within the time prescribed by law, namely
article 111 (3) of the Code of Criminal Procedure, which provides that the appearance before
a judge must take place no later than 15 days after the issue of the arrest warrant. This time
limit under national law was clearly not respected in the present case. In any event, the
5 The source notes that this period was 41 days. However, if the warrant was issued on 30 September
2015, the time between the arrest and the issue of the warrant was in fact 43 days.
6 Opinions No. 40/2020, para. 26; No. 25/2020, para. 34; No. 46/2018, para. 48; No. 36/2018, para. 40;
and No. 10/2018, para. 45.
7 Opinion No. 25/2020, para. 37 (in which the fact that the accused was not informed of the charges
against him for 33 days was found to constitute a violation of article 9 (2) of the Covenant).
8 General comment No. 35 (2014), para. 33.
9 Ibid., para. 32. See also opinions No. 56/2020, para. 31; No. 55/2020, para. 48; No. 41/2020, para. 60;
No. 40/2020, para. 29; No. 5/2020, para. 72; and No. 14/2015, para. 28. In addition, see
A/HRC/45/16/Add.1, para. 35.
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Working Group also recalls the recommendation of the Human Rights Committee, in its
concluding observations on the second periodic report of Burundi,10 that Burundi should
amend the Code of Criminal Procedure in order to align it with the Covenant by setting the
allowable period of police custody at 48 hours.11
34.
According to the source, at the first hearing in November 2015, the authorities
provided no legal basis and no indication of Mr. Niyonkuru’s involvement in the murder of
a lieutenant general to justify his pretrial detention. The Working Group recalls that, once the
individual has been brought before the judge, the judge must decide whether the individual
should be released or remanded in custody for additional investigation or to await trial.12 The
Government has not provided any evidence to support the review of the lawfulness of the
detention by the judges’ council chamber of the court of major jurisdiction, and the Working
Group must assume, in the circumstances, that no consideration was given to this issue, in
violation of article 9 (3) of the Covenant.13
35.
Moreover, the Working Group considers that Mr. Niyonkuru was not able to challenge
his detention under article 9 (4) of the Covenant, as he was not assisted by counsel when he
was brought before the judges’ council chamber. Access to a lawyer from the outset of
detention is an essential safeguard to enable the detainee to challenge the legal basis for his
or her detention.14 Consequently, the legal basis for Mr. Niyonkuru’s detention was not
established under either article 9 (3) or article 9 (4) of the Covenant. Given that Mr.
Niyonkuru was unable to challenge his continued detention, his right to an effective remedy
under article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant
was also violated.
36.
The Working Group therefore concludes that Mr. Niyonkuru’s arrest and detention
have no legal basis and are arbitrary under category I.
Category III
37.
With regard to category III, the source explains that Mr. Niyonkuru was deprived of
the right to legal assistance during the judicial proceedings. The source states that Mr.
Niyonkuru was not assisted by counsel during his questioning at the premises of the National
Intelligence Service, his questioning by the public prosecutor or his hearing before the trial
court. In the absence of any rebuttal from the Government, the Working Group considers that
the facts presented by the source are credible.
38.
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 that such assistance must be provided
without delay.15 In the light of the facts, the Working Group concludes that Mr. Niyonkuru’s
right to have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing, as provided for in article 14 (3) (b) of the
Covenant, has been violated, as has his right to mount an effective defence through counsel
of his own choosing, as provided for in article 14 (3) (d) of the Covenant.
39.
Furthermore, the source explains that Mr. Niyonkuru’s trial has been unreasonably
slow. According to the source, Mr. Niyonkuru was brought before the trial court on 6 May
2016, and further hearings were held on 1 August and 11 October 2016. At the last hearing,
the case was adjourned for consideration. A month later, Mr. Niyonkuru was summoned,
thinking that he was going to hear the judgment delivered. However, the court reopened the
proceedings to allow the prosecution to conduct a further investigation. On 27 December
10 CCPR/C/BDI/CO/2 and Corr.1, para. 17.
11 See also opinion No. 25/2020, para. 40; and A/HRC/45/32, annex III, para. 116 (c) and (d)
(recommendations made by the Commission of Inquiry on Burundi in 2018).
12 Human Rights Committee, general comment No. 35, para. 36.
13 Opinion No. 25/2020, para. 40.
14 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 9
and guideline 8; and opinions No. 40/2020, para. 29, and No. 25/2020, para. 41.
15 Human Rights Committee, general comment No. 32 (2007), paras. 32 and 34; A/HRC/30/37, annex,
principle 9 and guideline 8; A/HRC/45/16, para. 51; and CCPR/C/BDI/CO/2 and Corr.1, para. 19.
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2016, the Mukaza court of major jurisdiction held a hearing at which the prosecution
disclosed that its witnesses had not appeared because they were not protected, and the case
was adjourned sine die. Since then, the case has not been scheduled for a public hearing to
allow Mr. Niyonkuru to present arguments in his defence. Mr. Niyonkuru was arrested on 18
August 2015, and his case has now been pending for nearly six years. The Government has
offered no explanation for the delay.
40.
The Working Group recalls that the reasonableness of any delay in bringing a case to
trial has to be assessed in the circumstances of each case, taking into account the complexity
of the case, the conduct of the accused and the manner in which the matter was dealt with by
the authorities.16 In the present case, the Working Group considers, taking into account the
fact that the last hearing took place in December 2016 and the case was adjourned sine die,
that the right to trial within a reasonable time, as provided for in article 9 (3) of the Covenant,
and the right to be tried without undue delay, as provided for in article 14 (3) (c) of the
Covenant, have been violated. Moreover, the fact that Mr. Niyonkuru believed that he was
going to hear the delivery of the judgment suggests that he had not been informed of the
status of the proceedings against him and that the authorities failed to ensure equality of arms,
in violation of article 14 (1) of the Covenant.
41.
The Working Group concludes that these violations are of such gravity as to give the
deprivation of liberty of Mr. Niyonkuru an arbitrary character under category III.
Category V
42.
Lastly, the Working Group recalls its jurisprudence, including opinions No. 56/2020,
No. 55/2020 and No. 25/2020, in which it found that the persons concerned had been victims
of political discrimination because they were members of the former regular army, which had
been opposed to the rebel movements. Although the source has not submitted any
observations concerning category V, and noting that the Government has not provided any
explanation as to the reasons for Mr. Niyonkuru’s detention, the Working Group considers
that Mr. Niyonkuru was a victim of political discrimination because of his association with
the regular army and was detained for this reason, in violation of articles 2 and 7 of the
Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant. His
detention is therefore arbitrary under category V.
Concluding remarks
43.
The present case is one of many cases brought before the Working Group in recent
years concerning arbitrary detention in Burundi.17 The Working Group recalls that, under
certain circumstances, widespread or systematic imprisonment or other severe deprivation of
liberty in violation of the rules of international law may constitute crimes against humanity.18
44.
The Working Group would welcome the opportunity to conduct a visit to Burundi. In
this context, it recalls that the Government extended a standing invitation to all special
procedure mandate holders on 6 June 2013.
Disposition
45.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Philbert Niyonkuru, being in contravention of articles 2,
7, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 9, 14
and 26 of the International Covenant on Civil and Political Rights, is arbitrary and
falls within categories I, III and V.
16 Human Rights Committee, general comment No. 35, para. 37; general comment No. 32, para. 35; and
opinions No. 56/2020, para. 40; No. 55/2020, para. 57; and No. 25/2020, para. 46.
17 See opinions 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.
18 See, for example, opinion No. 47/2012, para. 22, and A/HRC/38/10, paras. 137.101, 137.102,
137.114, 137.115 and 137.117.
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46.
The Working Group requests the Government of Burundi to take the steps necessary
to remedy the situation of Mr. Niyonkuru 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.
47.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Niyonkuru immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.19 In the current context of the global coronavirus disease (COVID-19) pandemic and the
threat that it poses in places of detention, the Working Group calls upon the Government to
take urgent action to ensure the immediate release of Mr. Niyonkuru.
48.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Niyonkuru and to take appropriate measures against those responsible for the violation of his
rights.
49.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
50.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Niyonkuru has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Niyonkuru;
(c)
Whether an investigation has been conducted into the violation of Mr.
Niyonkuru’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Burundi with its international obligations in line with
the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
51.
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.
52.
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.
53.
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.20
[Adopted on 4 May 2021]
19 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/45/32, annex III, para. 122 (i) (recommendation made by the Commission of Inquiry on
Burundi in 2018 to establish a compensation fund for victims of arbitrary and unlawful detention).
20 Human Rights Council resolution 42/22, paras. 3 and 7.