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A/HRC/WGAD/2025/51

Opinion No. 51/2025, concerning Jean Léonard Mbarusha (Congo)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2025-08-29 · en UN

Opinion; Subjects: CONGO, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

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GE.25-16846 (E) 061125 071125

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its 103rd session, 25–29 August 2025

Opinion No. 51/2025, concerning Jean Léonard Mbarusha (Congo)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 51/8.

2.

In accordance with its methods of work,1 on 18 March 2025 the Working Group

transmitted to the Government of the Congo a communication concerning Jean Léonard

Mbarusha. The Government replied to the communication on 12 June 2025. 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/2025/51

General Assembly

Distr.: General

27 October 2025

English

Original:

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1.

Submissions

(a)

Communication from the source

4.

Jean Léonard Mbarusha, born in 1960, is a tailor of Rwandan nationality habitually

residing in Brazzaville. He is the holder of a refugee card issued by the Office of the United

Nations High Commissioner for Refugees.

(i)

Arrest and detention

5.

According to the source, Mr. Mbarusha was arrested on 25 May 2015 at his sewing

workshop in Brazzaville by members of the Congolese police enforcing an international

arrest warrant issued by Rwanda.

6.

He was allegedly verbally informed at the time of his detention that his arrest was

conducted pursuant to an international arrest warrant issued by Rwanda, in accordance with

article 11 of Act No. 25-82 of 7 July 1982 on the extradition of foreign nationals.

7.

The source reports that Mr. Mbarusha was placed in detention upon arrest. He has

been held at the remand prison in Brazzaville since 25 August 2015.

8.

According to the source, Mr. Mbarusha did not have access to a lawyer until

4 September 2015, in other words three months after his arrest.

9.

On 7 September 2015, Mr. Mbarusha, through his lawyer, lodged an appeal against

the decision of the General Assembly of the Brazzaville Court of Appeal approving the

extradition request. Although no ruling on this appeal has been made by the competent

authority, Mr. Mbarusha has not yet been extradited. The source notes that Mr. Mbarusha is

being held at the remand prison of Brazzaville, with no new official reason or legal basis

having been provided by the authorities to justify his prolonged detention for over nine years.

The source claims that Mr. Mbarusha was allegedly told informally by senior officials at the

remand prison that he is being held for his own safety.

10.

According to the source, Mr. Mbarusha filed two applications for release, on

19 November 2015 and 31 January 2016, but there has been no response from the competent

judicial authorities.

11.

The source submits that, despite having been detained for nine years, Mr. Mbarusha

has never been brought before a judge. He was only brought before the State prosecutor at

the Regional Court of Brazzaville on 25 August 2015, three months after his arrest.

12.

According to the source, Mr. Mbarusha was not informed of the charges against him

or of the time frame for his release. Moreover, he was not notified of the arrest warrant and,

neither he nor his lawyer, were informed of the legal basis for the warrant’s issuance.

Therefore, Mr. Mbarusha does not know why the Rwandan authorities issued an international

arrest warrant for him.

(ii)

Legal analysis

13.

The source argues that Mr. Mbarusha’s detention is arbitrary under categories I and

III of the Working Group’s methods of work.

a.

Category I

14.

The source notes that Mr. Mbarusha was arrested on 25 May 2015 pursuant to an

international arrest warrant issued by Rwanda and that he was initially detained pending

extradition under article 11 of Act No. 25-82 of 7 July 1982 on the extradition of foreign

nationals. However, Mr. Mbarusha has yet to be extradited. The source stresses that

Mr. Mbarusha has been detained for over nine years, without any new legal basis for his

continued detention. Mr. Mbarusha was allegedly informed informally by senior officials at

the remand prison in Brazzaville that he is being detained for his own safety. The source is

of the view that these grounds are not based on any procedure provided for by law and cannot

be considered compatible with the provisions of article 9 (1) of the Covenant.

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15.

The source underscores that Mr. Mbarusha has appeared only before the State

prosecutor, who, in his capacity as the prosecuting authority, cannot be considered as a

judicial authority within the meaning of article 9 (3) of the Covenant.

16.

Furthermore, the source submits that the failure to respect Mr. Mbarusha’s right to be

brought before a judge within the shortest possible time is contrary to article 9 (3) of the

Covenant and de facto led to his detention for an indefinite period of time.2 The source argues

that any indefinite detention, in law or in practice, is strictly prohibited irrespective of

circumstances, especially when the detention is not based on a criminal conviction.

17.

Mr. Mbarusha has been held for more than nine years, allegedly without knowing the

charges against him nor the time frame within which the Congolese authorities intend to

release him. The source stresses the systematic nature of this practice in the Congo. The

source notes that the Working Group has already stated that prolonged pretrial detention

exceeding the maximum period allowed by domestic law and ordered by the State prosecutor

without a judicial intervention specifying the reasons for extending the period of detention is

contrary to article 9 of the Covenant.3

18.

The source adds that article 9 (4) of the Covenant guarantees the right of everyone

deprived of their liberty to take proceedings before a court, in order that that court may decide

without delay on the lawfulness of the detention and order the individual’s release if the

detention is unlawful. The source submits that judicial review of deprivation of liberty is a

fundamental safeguard of personal liberty and is essential in ensuring that detention has a

legal basis.4 In the present case, in nine years, no judge has ruled on the lawfulness of

Mr. Mbarusha’s detention, despite applications having been made to that end.

19.

The source notes that neither of the applications for release filed by Mr. Mbarusha’s

lawyer, on 19 November 2015 and 31 January 2016, contesting the legality of his detention

have received a response from the competent judicial authorities. According to the source,

this silence illustrates the total ineffectiveness of the right to habeas corpus.

20.

Accordingly, the source requests the Working Group to find that Mr. Mbarusha’s

continued detention has no legal basis whatsoever, in violation of article 9 of the Covenant

and articles 6, 8 and 9 of the Universal Declaration of Human Rights.

b.

Category III

21.

The source submits that Mr. Mbarusha’s detention is arbitrary under category III

owing to the seriousness of the Congolese authorities’ infringement of fair trial norms

enshrined in articles 9 and 14 of the Covenant and articles 10 and 11 of the Universal

Declaration of Human Rights.

22.

The source argues that article 14 (3) (b) of the Covenant guarantees the right of

everyone deprived of their liberty to legal assistance from a lawyer of their choosing at any

time, including immediately following arrest; access to legal counsel must be provided

without delay.5 In the present case, Mr. Mbarusha did not have any access to a lawyer

between 25 May and 4 September 2015 and was therefore deprived of this right for the first

three months of his detention.

23.

In addition, the source notes that Mr. Mbarusha was deprived of his right to be tried

without undue delay, in violation of article 14 (3) (c) of the Covenant. In fact, there still is no

prospect of a trial and he has never been brought before a judge in nine years of detention.

2 See revised deliberation No. 5 on deprivation of liberty of migrants, adopted by the Working Group

on 23 November 2017 (A/HRC/39/45, annex), para. 26; A/HRC/13/30, para. 63; and opinions

No. 28/2017, No. 42/2017 and No. 75/2022, para. 68.

3 Opinion No. 75/2022, para. 68.

4 Opinions No. 16/2020, para. 62; No. 75/2022, para. 71; No. 1/2023, para. 67; and No. 50/2023

para. 59.

5 A/HRC/30/37, annex, principle 9 and guideline 8; A/HRC/45/16, para. 51; and Human Rights

Committee, general comment No. 35 (2014), para. 35.

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(b)

Response from the Government

24.

On 18 March 2025, the Working Group transmitted a communication concerning

Mr. Mbarusha to the Government of the Congo, requesting it to provide detailed information

about him by 16 May 2025 and to ensure his physical and mental integrity.

25.

In accordance with paragraph 16 of the Working Group’s methods of work, the

Government requested an extension, which was granted with a deadline of 13 June 2025.

26.

In its response of 12 June 2025, the Government submits that Mr. Mbarusha’s

detention cannot be considered as being arbitrary.

27.

Regarding category I, the Government explains that Mr. Mbarusha was detained

pursuant to an international arrest warrant dated 28 May 2013, issued by the Principal State

Prosecutor of Rwanda, for the crime of genocide and crimes against humanity provided for

under articles 98, 99, 114, 115, 120 (1), (2) and (7), 121 and 140 of the Criminal Code of

Rwanda (Act No. 01/2012 of 2 May 2012). It notes that Mr. Mbarusha was stopped by the

police on 15 May 2015 and brought before the State prosecutor at the Regional Court of

Brazzaville on 25 August 2015, in accordance with articles 11 to 13 of Act No. 25-82 of

7 July 1982 on the extradition of foreign nationals.

28.

The Government specifies that, after informing Mr. Mbarusha of the reason for his

arrest, the State prosecutor ordered his remand at the remand prison of Brazzaville and

informed him of his rights, including his right to legal assistance from a lawyer of his

choosing. The case was subsequently transmitted to the Principal State Prosecutor at the

Court of Appeal.

29.

After questioning Mr. Mbarusha again on 25 August 2015, the Principal State

Prosecutor, in accordance with article 14 of Act No. 25-82, brought the case to the General

Assembly of the Brazzaville Court of Appeal, which approved Mr. Mbarusha’s extradition

in a deliberation dated 3 September 2015.

30.

On 7 September 2015, Mr. Mbarusha’s lawyer lodged an appeal with the President of

the Court of Appeal to have the approval of the extradition request overturned. On

19 November 2015, Mr. Mbarusha’s lawyer also filed an application for provisional release,

which was denied owing to the exceptional seriousness of the allegations against him.

31.

According to the Government, Mr. Mbarusha’s deprivation of liberty therefore has a

solid legal basis, namely, an international warrant issued by a competent judicial authority in

Rwanda and an extradition procedure in line with the provisions of Act No. 25-82 on the

extradition of foreign nationals. Mr. Mbarusha’s case was also subject to judicial review by

a bench of judges in the form of the deliberation by the General Assembly of the Brazzaville

Court of Appeal.

32.

Regarding category III, the Government notes that the extradition procedure was fully

in line with Congolese law and provided Mr. Mbarusha every guarantee of a fair trial,

including access to a bench of judges and respect of the adversarial principle. For example,

Mr. Mbarusha was heard twice by the judicial authorities, with the assistance of a lawyer of

his choosing, and sought legal remedies (appeal and application for provisional release),

which were duly considered.

33.

Concerning the length of detention, the Government submits that the prolonged

detention can be explained by the effective exercise of remedies with suspensive effect by

the person concerned and by the Congolese authorities’ need to obtain additional assurances

from the requesting State, including with regard to the competence of the trial court, access

to an effective defence and the prohibition of the death penalty and inhuman or degrading

treatment.

34.

The Government further explains that Act No. 25-82 on the extradition of foreign

nationals does not establish a maximum duration for extradition procedures.

35.

Lastly, the Government notes that, having received no supplementary information on

the part of the requesting State, the judicial authorities of the Congo will take steps to release

Mr. Mbarusha.

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(c)

Additional information and comments from the source

36.

On 31 March 2025, the source transmitted to the Working Group a copy of the appeal

against the approval of the extradition request, dated 7 September 2015 and addressed by

Mr. Mbarusha’s lawyer to the General Assembly of the Brazzaville Court of Appeal, in which

the lawyer noted that Mr. Mbarusha is accused of committing the following offences in

Rwanda between 1990 and 1994: crimes of genocide, complicity in genocide and conspiracy

to commit genocide, as well as murder, extermination and rape.

37.

The Government’s response was submitted to the source for further comment, which

were provided on 4 August 2025.

38.

In its additional comments, the source notes that the Government did not refute the

lack of legal basis for Mr. Mbarusha’s detention since 2015 or the allegations regarding grave

breaches of international fair trial norms.

2.

Discussion

39.

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

40.

In determining whether Mr. Mbarusha’s detention is arbitrary, the Working Group has

regard to the principles established in its jurisprudence to deal with evidentiary issues. If the

source has established a prima facie case for breach of international human rights law

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

Government if it wishes to refute the allegations.6 Mere assertions by the Government that

lawful procedures have been followed are not sufficient to rebut the source’s allegations.7

(a)

Category I

41.

The Working Group will first consider whether there have been violations under

category I, which concerns deprivation of liberty without legal basis.

42.

The source notes that Mr. Mbarusha was arrested on 25 May 2015, pursuant to an

international arrest warrant issued by Rwanda, with a view to his extradition. However,

Mr. Mbarusha has yet to be extradited and has therefore remained in detention since his

arrest. The source is of the view that these grounds are not based on any procedure provided

for by law and cannot be considered compatible with the provisions of article 9 (1) of the

Covenant.

43.

In its response, the Government submits that Mr. Mbarusha’s deprivation of liberty is

based on an international warrant issued by a competent judicial body authority in Rwanda

and that the General Assembly of the Brazzaville Court of Appeal denied the application for

provisional release filed by Mr. Mbarusha’s lawyer in November 2015.

44.

The source adds that in addition to being detained for nine years, Mr. Mbarusha has

never been brought before a judge; he was brought only before the State prosecutor and not

until 25 August 2015, three months after his arrest. The Government acknowledges that

Mr. Mbarusha was brought before the State prosecutor and the Principal State Prosecutor at

the Court of Appeal and adds that his case was subject to judicial review by a bench of judges

in the form of a deliberation by the General Assembly of the Brazzaville Court of Appeal.

45.

Article 9 (3) of the Covenant states that anyone arrested or detained on a criminal

charge shall be brought promptly before a judge. As stated by the Human Rights Committee,

48 hours is ordinarily sufficient to satisfy this requirement and that any delay longer than

48 hours must remain absolutely exceptional and be justified under the circumstances. 8

Under article 9 (4) of the Covenant, everyone deprived of their liberty by arrest or detention

is entitled to take proceedings before a court, in order that that court may decide without

delay on the lawfulness of the detention and order the individual’s release if the detention is

unlawful.

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

7 Ibid.

8 Human Rights Committee, general comment No. 35 (2014), para. 33.

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46.

The Working Group notes that Mr. Mbarusha has never been brought before a judge.

The Government merely responded that Mr. Mbarusha has been brought before two

prosecutors and that his case was the subject of a deliberation by the General Assembly of

the Brazzaville Court of Appeal. The Working Group does not consider that the deliberation

of the General Assembly can be a substitute for judicial review within the meaning of

article 9 (3) of the Covenant. In any event, the Government has not demonstrated that judicial

review of his detention was exercised without delay after his arrest, as required under

article 9 (4). 9 The Government did not address in detail the claim that neither of the

applications for release filed by Mr. Mbarusha’s lawyer, on 19 November 2015 and

31 January 2016, have received a response from the competent judicial authorities, apart from

indicating that the first application was denied owing to the seriousness of the alleged acts.

Consequently, the legal basis for Mr. Mbarusha’s detention has not been established in

keeping with the requirements of article 9 (3) and (4) of the Covenant.

47.

In the present case, the source submits that, since 2015, Mr. Mbarusha has been

detained without any knowledge whatsoever of the charges against him and the time frame

for his release by the Congolese authorities. The Government replied that Mr. Mbarusha was

informed of the reasons for his arrest and his rights and has had legal assistance.

48.

The Working Group notes that article 9 (2) of the Covenant provides that anyone who

is arrested is to be informed, at the time of arrest, of the reasons for the arrest and is to be

promptly informed of any charges against him or her. Respect for these rights is essential for

the exercise of other rights set out in article 9 of the Covenant, since all individuals must

know the reasons for their arrest in order to challenge it effectively and must be brought

before a court or judge in order to lodge an appeal.

49.

Having considered the information received, it is clear from the documents provided

by the source that Mr. Mbarusha was, in all likelihood, aware of the nature of the allegations

against him, at least since September 2015. Indeed, in the appeal of 7 September 2015 against

the approval of the extradition request, addressed to the General Assembly of the Brazzaville

Court of Appeal, his lawyer noted that Mr. Mbarusha is accused of committing the following

offences in Rwanda between 1990 and 1994: crimes of genocide, complicity in genocide and

conspiracy to commit genocide, as well as murder, extermination and rape.

50.

Furthermore, the Working Group takes the view that Mr. Mbarusha would have been

informed that his arrest was pursuant to a red notice issued by the International Criminal

Police Organization, as he was brought before the State prosecutor, followed by the Principal

State Prosecutor in August 2015, which would indicate that he was informed, at least in

general terms, of the nature of the charges against him. This contradicts the source’s

statement that Mr. Mbarusha remains unaware of the nature of the charges against him after

nine years in detention. Consequently, the Working Group is not in a position to find that

article 9 (2) of the Covenant was violated.

51.

In the light of these findings, the Working Group considers that Mr. Mbarusha’s

detention has no legal basis, in violation of article 9 of the Covenant and article 9 of the

Universal Declaration of Human Rights. His detention is therefore arbitrary under category I.

(b)

Category III

52.

The source submits that Mr. Mbarusha’s detention is arbitrary owing to the

seriousness of the Congolese authorities’ infringement of fair trial norms.

53.

The Working Group notes that, as the arguments put forward by the source under

category III raise questions regarding procedural safeguards in extradition procedures rather

than in criminal proceedings sensu stricto, it is important to specify the legal basis for the

Working Group to consider the allegations. In this regard, the Working Group emphasizes

that the scope of category III, as defined in its methods of work, is not exclusively limited to

criminal proceedings but also extends to other judicial procedures involving a person’s

detention. In line with this interpretation, the Working Group has already, in several of its

9 Ibid., paras. 39 and 40.

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opinions,10 examined under category III procedures relating to the detention of persons with

a view to their expulsion or extradition.

54.

For example, in its opinion No. 12/2022, which related to pre-expulsion

administrative procedures, the Working Group applied article 13 of the Covenant, interpreted

in the light of the safeguards contained in article 14, such as the principle of equality of arms,

the right to legal assistance and the right to review of deprivation of liberty, under category

III. It found that the victims’ rights under articles 13 and 14 (1) of the Covenant had been

violated. 11 The procedural safeguards provided for in article 14 (1) are necessary in

proceedings relating to article 9 (4) in order to enable a person deprived of liberty to

effectively exercise their right to challenge the lawfulness of his or her detention and obtain

an effective remedy under article 8 of the Universal Declaration of Human Rights and article

2 of the Covenant.12

55.

The Human Rights Committee has taken the same approach. In its general comment

No. 32, it stated the following:

The procedural guarantees of article 13 of the Covenant incorporate notions of

due process also reflected in article 14 and thus should be interpreted in the light of

this latter provision. Insofar as domestic law entrusts a judicial body with the task of

deciding about expulsions or deportations, the guarantee of equality of all persons

before the courts and tribunals as enshrined in article 14, paragraph 1, and the

principles of impartiality, fairness and equality of arms implicit in this guarantee are

applicable.13

56.

The Inter-American Court of Human Rights has taken a similar approach and has

recognized the applicability of fair trial guarantees to extradition procedures, determining

that article 8 (1) of the American Convention on Human Rights also extends to these

situations. The Court emphasized in particular that fundamental safeguards, such as the right

to be tried without undue delay, the right to a hearing, the right to a defence and the right to

access to one’s file, must be respected in the context of extradition procedures.14

57.

The Working Group recalls in this regard that the Inter-American Court of Human

Rights considers that the safeguards provided for in article 8 of the American Convention on

Human Rights apply to any proceedings conducted by State authorities that might affect

individual rights rather than only to criminal cases. Thus, article 8 (1) provides for a range of

basic safeguards that must be respected in all types of proceedings, irrespective of whether

they are of a judicial or administrative nature. Moreover, the Court has interpreted

article 8 (2) broadly, applying it not only to criminal proceedings, but also to civil,

administrative, labour and other procedures where a person’s rights are at stake.15

58.

The jurisprudence of the European Court of Human Rights provides only limited

insight into the relevance of fair trial guarantees enshrined in the Covenant in the context of

extradition given that the provisions of the Convention for the Protection of Human Rights

and Fundamental Freedoms (European Convention on Human Rights) and those of the

Covenant govern extradition differently.16 Nevertheless, the Court has determined that the

issues regarding fair trials under article 6 of the European Convention on Human Rights are

admissible in extradition procedures when there is a risk of a flagrant denial of a fair trial in

10 Opinions No. 57/2013, para. 54; No. 2/2015, para. 20; No. 11/2018, para. 53; No. 10/2019, para. 71

and 77; No. 48/2020, para. 87; No. 12/2022, paras. 78–86; and No. 59/2022, para. 61.

11 Opinion No. 12/2022, paras. 79–86.

12 Human Rights Committee, general comment No. 35 (2014), paras. 46 and 47.

13 Human Rights Committee, general comment No. 32 (2007), para. 62. See also Human Rights

Committee, Everett v. Spain (CCPR/C/81/D/961/2000).

14 Inter-American Court of Human Rights, Wong Ho Wing v. Peru, judgment of 30 June 2015

(Preliminary Objections, Merits, Reparations and Costs), paras. 223 and 228–239.

15 Inter-American Court of Human Rights, Exceptions to the exhaustion of domestic remedies

(art. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human Rights), advisory opinion

OC-11/90 of 10 August 1990, para. 28; Constitutional Court v. Peru (Merits, Reparations and Costs),

judgment of 31 January 2001, paras. 69 and 70; and Baena-Ricardo et al. v. Panama (Merits,

Reparations and Costs), judgment of 2 February 2001, para. 125.

16 European Convention on Human Rights, art. 5 (1) (f).

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the requesting State,17 which applies in the present case due to the lack of assurances provided

by Rwanda.

59.

The Working Group notes that extradition proceedings based on criminal charges

make the application of fair trial guarantees all the more important because the detained

person is facing a criminal penalty if the extradition is enforced. Thus, rights violations can

lead to prolonged detention in the requesting State or jurisdiction. Similarly, the Human

Rights Committee has stated that in extradition cases, the first sentence of article 14 (1)

guarantees the right to equality before the courts and thus the principles of impartiality,

fairness and equality.18 Furthermore, while article 13 of the Covenant provides for procedural

safeguards against the expulsion of foreign nationals in a regular situation,19 nationals facing

expulsion, return or extradition procedures must assert their right to a fair and public hearing

before an independent and impartial court competent to rule on criminal charges laid against

them or on their rights and obligations during trial, in keeping with article 14 (1) of the

Covenant, with a view to obtaining similar protection. It would be manifestly discriminatory

and unfair to consider that only nationals may enjoy the right to a fair trial in such procedures.

60.

Turning to the relevant legal provisions in Mr. Mbarusha’s case, it should be noted

that category III refers to protections enshrined in relevant international instruments to which

the States concerned are Parties. The relevant protections (in addition to those contained in

article 9 under category I above) include article 13, on the expulsion of foreign nationals

legally in the territory of a State Party to the Covenant and the right of foreign nationals to

obtain a review of their case by the competent authority and to be represented for this purpose

before the authority or before one or more individuals specially designated by the authority,

and article 14 (1), on the right of everyone to a fair and public hearing by a competent,

independent and impartial tribunal established by law in the context of judicial proceedings

to determine his or her rights and obligations during trial. Other relevant provisions include

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

Imprisonment, in particular principle 17 (right of detained persons to the assistance of a legal

counsel), principle 18 (right to adequate time and facilities for consultation with the legal

counsel) and principle 32 (right to challenge the lawfulness of their detention before a judicial

or other authority).

61.

In the present case, Mr. Mbarusha did not, according to the source, have access to a

lawyer between his arrest on 25 May 2015 and 4 September 2015 and was therefore deprived

of this right for the first three months of his detention. However, the Government notes that

he had the assistance of a lawyer of his choosing but does not provide details on the start or

terms of this assistance.

62.

The Working Group recalls that anyone deprived of liberty is entitled to assistance

from a lawyer of their choosing. This right applies at any point during detention, including

immediately following arrest, and access to a lawyer must be afforded promptly, barring

extraordinary circumstances, as provided for in the above-mentioned provisions, including

principle 9 of 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.20 Any legislation that aims to abolish this right is inherently contrary to international

human rights standards.21

63.

The Working Group notes that Mr. Mbarusha spent three months in detention without

access to a lawyer. He was allegedly brought before the State prosecutor, followed by the

Principal State Prosecutor on 25 August 2015, without the assistance of a lawyer. This

violation of his right to due process, as established in principles 9 and 17 of the Body of

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

17 See, for example, European Court of Human Rights, Soering v. The United Kingdom, Application

No. 14038/88, Judgment, 7 July 1989, para. 113; and Othman (Abu Qatada) v. The United Kingdom,

Application No. 8139/09, para. 258.

18 Human Rights Committee, Griffiths v. Australia (CCPR/C/112/D/1973/2010), para. 5.5.

19 Human Rights Committee, general comment No. 15 (1986), para. 10.

20 A/HRC/30/37, annex, principle 9 and guideline 8; A/HRC/45/16, para. 51; and Human Rights

Committee, general comment No. 35 (2014), para. 35.

21 Opinion No. 75/2021, para. 84.

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and in the other above-mentioned instruments, in particular articles 13 and 14 (1) of the

Covenant and article 10 of the Universal Declaration of Human Rights. This breach impaired

Mr. Mbarusha’s ability to challenge his detention and also harmed him in relation to any

subsequent trial by undermining his ability to maintain his legal standing and the mounting

of a defence.

64.

The source submits that Mr. Mbarusha was deprived of his right to be tried within a

reasonable period of time and notes that there are still no prospects of a trial and that he has

never been brought before a judge in nine years of detention. The Government responds that

the prolonged detention can be explained by the effective exercise of remedies with a

suspensive effect by Mr. Mbarusha and by the Congolese authorities’ need to obtain

additional assurances from the requesting State, namely, Rwanda.

65.

The Working Group is of the view that the Government has not sufficiently justified

why assurances have not been obtained in over nine years or satisfactorily explained why the

remedies sought by Mr. Mbarusha would have contributed to the delay. The Government

noted that Rwanda has not provided assurances that, if extradited, Mr. Mbarusha would not

be sentenced to death or be subjected to degrading or inhuman treatment or assurances

concerning the competence of the trial court and Mr. Mbarusha’s access to an effective

defence. However, this delay cannot be ascribed to Mr. Mbarusha and does not justify

keeping him detained for such a long period. In these circumstances, the Working Group

finds that Mr. Mbarusha’s rights, including under principle 32 of the Body of Principles for

the Protection of All Persons under Any Form of Detention or Imprisonment, were violated,

thereby breaching his right to due process under articles 13 and 14 (1) of the Covenant and

article 10 of the Universal Declaration of Human Rights. This violation has had the effect of

impairing Mr. Mbarusha’s ability to promptly challenge the lawfulness of his detention, in

accordance with article 9 of the Covenant and article 9 of the Universal Declaration of Human

Rights, owing to the potential loss of exculpatory evidence.

66.

Owing to the seriousness of the infringement by the Congolese authorities of fair trial

norms, in particular those established in articles 13 and 14 (1) of the Covenant,

Mr. Mbarusha’s detention is arbitrary under category III.

(c)

Concluding remarks

67.

Lastly, the Working Group underscores that nothing in the present opinion should be

interpreted as an expression of its views on Mr. Mbarusha’s criminal responsibility for the

crimes of which he stands accused. In addition, the Working Group points out that, in its

response, the Government noted that Mr. Mbarusha could be released in the absence of a

positive response from Rwanda to its request for assurances. Accordingly, and in the light of

the preceding findings, the Working Group urges the Government of the Congo to proceed

to Mr. Mbarusha’s release without further delay.

3.

Disposition

68.

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

The deprivation of liberty of Jean Léonard Mbarusha, being in contravention

of articles 8, 9 and 10 of the Universal Declaration of Human Rights and articles 2, 9,

13 and 14 of the International Covenant on Civil and Political Rights, is arbitrary and

falls within categories I and III.

69.

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

to remedy the situation of Mr. Mbarusha 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.

70.

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

case, the appropriate remedy would be to release Mr. Mbarusha immediately and accord him

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

law.

71.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

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Mr. Mbarusha and to take appropriate measures against those responsible for the violation of

his rights.

72.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

4.

Follow-up procedure

73.

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

(b)

Whether compensation or other reparations have been made to Mr. Mbarusha;

(c)

Whether an investigation has been conducted into the violation of

Mr. Mbarusha’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of the Congo with its international obligations in line with

the present opinion;

(e)

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

74.

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.

75.

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 of any failure to take action.

76.

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.22

[Adopted on 27 August 2025]

22 Human Rights Council resolution 51/8, paras. 6 and 9.

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Annex I

Individual opinion of Working Group member Ganna

Yudkivska (partially dissenting)

1.

While I share the view of my eminent colleagues according to which Mr. Mbarusha’s

detention falls under category I, I wish to respectfully express my disagreement as to the

application of category III to the extradition procedure in this case. My disagreement is not

purely technical but reflects fundamental concerns as to the scope of our mandate and the

integrity of international jurisprudence in the domain of human rights.

2.

Category III of our mandate concerns total or partial non-observance of the

international norms relating to the right to a fair trial. The key – and restrictive– phrase here

is “fair trial”, a technical term in international human rights law that presupposes that there

has been a trial, in other words, a judicial procedure to determine criminal responsibility or

civil rights and obligations. Mr. Mbarusha was not tried in the Congo. He was the subject of

extradition proceedings which, as important and likely to affect his liberty as they may be,

are fundamentally different by nature and purpose from a criminal trial.

3.

The distinction I am making is not theoretical but reflects the constant jurisprudence

of international human rights mechanisms. The European Court of Human Rights has clearly

established that procedures for the expulsion of foreign nationals do not fall under the section

on criminal charges in article 6 of the Convention for the Protection of Human Rights and

Fundamental Freedoms (European Convention on Human Rights), which governs the right

to a fair trial, even when such procedures may be initiated as part of criminal proceedings.1

This principle has been consistently applied to extradition procedures2 and to procedures

involving European arrest warrants. 3 The reasoning is clear and persuasive: extradition

procedures do not involve determinations of criminal charges against a person. They are

inter-State cooperation procedures in criminal matters, not judgments on guilt or innocence.

4.

Even more important for our purposes, the Human Rights Committee has made this

distinction on a number of occasions. In communication No. 961/2000, the Committee stated

the following:

Recalling its earlier case law the Committee considers that although the

Covenant does not require that extradition procedures be judicial in nature, extradition

as such does not fall outside the protection of the Covenant. On the contrary, several

provisions, including articles 6,7,9 and 13, are necessarily applicable in relation to

extradition. Particularly, in cases where, as in the current one, the judiciary is involved

in deciding about extradition, it must respect the principles of impartiality, fairness

and equality, as enshrined in article 14, paragraph 1, and also reflected in article 13 of

the Covenant. Nevertheless, the Committee considers that even when decided by a

court the consideration of an extradition request does not amount to the determination

of a criminal charge in the meaning of article 14.4

5.

This segment is crucial and warrants a close reading. The Committee recognizes that

some protections under the Covenant apply to extradition procedures, as do the principles of

impartiality, fairness and equality. However, it explicitly states that the consideration of an

extradition request does not amount to the determination of a criminal charge in the meaning

of article 14. The Committee then states that the claims relating to specific provisions in

1 European Court of Human Rights, Maaouia v. France, Application No. 39652/98, Judgment,

5 October 2000, para. 39.

2 European Court of Human Rights, Peñafiel Salgado v. Spain, Application No. 65964/01, decision on

admissibility, 16 April 2002.

3 European Court of Human Rights, Monedero Angora v. Spain, Application No. 41138/05, decision on

admissibility, 7 October 2008.

4 Human Rights Committee, Everett v. Spain (CCPR/C/81/D/961/2000), para. 6.4.

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paragraphs 2 and 3 of article 14 are incompatible ratione materiae and are therefore

inadmissible.

6.

The Committee has always maintained this position. In a recent case, it reaffirmed the

following:

Observing that the author is not a national of New Zealand, the Committee

refers to its jurisprudence according to which proceedings relating to the extradition,

expulsion and deportation of aliens do not fall within the ambit of a determination of

“rights and obligations in a suit at law” within the meaning of article 14, but are

governed by article 13 of the Covenant, which applies to all procedures aimed at the

obligatory departure of an alien. The author did not invoke article 13 of the Covenant

in his submissions. The Committee recalls that, although aliens shall be equal before

the courts and tribunals, and shall be entitled to a fair and public hearing by a

competent, independent and impartial tribunal established by law in the determination

of any criminal charge or of rights and obligations in a suit at law, even when decided

by a court, the consideration of an extradition request does not amount to the

determination of a criminal charge within the meaning of article 14. The Committee

therefore considers that the author’s various claims in relation to article 14 of the

Covenant, insofar as those claims relate to alleged deficiencies in the proceedings in

New Zealand relating to his extradition, are inadmissible ratione materiae.5

7.

The Committee’s reasoning is clear and consistent: extradition procedures, even when

decided by a court, do not amount to the determination of a criminal charge or civil rights

and obligations. Therefore, the fair trial guarantees provided for in article 14 do not all apply.

On the contrary, extradition procedures are mainly governed by article 13, which provides

for procedural safeguards but not for the right to a fair trial established in article 14 (2)

and (3).

8.

My colleagues’ attempt to apply category III to these procedures is, in my view, an

incorrect interpretation of the scope of our mandate. Category III refers to violations of “the

international norms relating to the right to a fair trial”. If extradition procedures do not

amount to a decision on a criminal charge within the meaning of article 14 – both the

European Court of Human Rights and the Human Rights Committee have always maintained

that they do not – then breaches of procedural rules in such procedures cannot constitute

violations of fair trial norms for the purposes of category III.

9.

The fact that the majority decision is based on the statement by the Human Rights

Committee in its general comment No. 32 (2007), according to which the protections

provided for in article 13 must be interpreted in the light of article 14, does not support the

conclusion. The general comment specifies that some implicit principles of article 14 (1) –

impartiality, fairness and equality of arms – apply when domestic law confers on a judicial

body jurisdiction over decisions regarding expulsion and returns. This interpretation concerns

the limited application of general principals, not the full incorporation of the detailed fair trial

guarantees established in article 14. Moreover, as the Committee clearly noted in

communications No. 961/2000 and No. 4170/2022, even this limited application of the

principles of article 14 (1) does not transform extradition procedures into determinations on

criminal charges that are subject to the full range of components of the right to a fair trial.

10.

The approach taken by a majority of the members creates a precedent that threatens

the consistency of the category framework. If category III applies to all procedures that

involve detention and require a degree of procedural fairness, then what distinguishes it from

category I? The answer is that category III was specially designed to deal with violations of

fair trial norms in criminal proceedings, in other words, contexts in which a person’s guilt,

innocence or legal rights and obligations are effectively determined. Extradition procedures,

however, entail only compliance with the formal legal requirements relating to surrenders

between States. It is for the requesting State, not the requested State, to determine the person’s

guilt or innocence.

5 Human Rights Committee, Kim v. New Zealand (CCPR/C/139/D/4170/2022), para. 7.13.

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11.

Furthermore, the drafters of the categories chose precise language, namely, norms

relating to a fair trial. If they had wanted category III to encompass all detention-related

administrative or judicial procedures, they could easily have specified as much. The

deliberate use of the term “fair trial” – a term whose meaning is well established in

international human rights law – was designed to limit, not to expand, the scope of the

category. Interpreting category III as applying to extradition procedures amounts to adopting

precisely the type of broad interpretation that the Human Rights Committee has repeatedly

rejected.

12.

My position does not leave Mr. Mbarusha without protection. As agreed with my

colleagues with regard to category I, his detention is arbitrary owing to the serious violations

of article 9 identified by the Working Group. Furthermore, any concern regarding torture,

inhuman treatment and flagrant denial of justice in the requesting State relates to the principle

of non-refoulement and articles 6 and 7 of the Covenant. I am not saying that extradition

procedures should escape all oversight but that they must be examined in the light of the

appropriate legal norms.

13.

Extradition is a form of inter-State cooperation governed by specialized legal systems

with their own protection frameworks. To overlay all rights relevant to criminal proceedings

on such procedures amounts to fundamentally disregarding their nature. The fact that

extradition may lead to the person concerned being subjected to criminal proceedings

elsewhere does not turn the extradition procedure itself into a criminal trial.

14.

For these reasons, I respectfully oppose the application, in the majority decision, of

category III to this case.

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Annex II

Individual opinion of Working Group members Matthew

Gillett and Ethan Hee-Seok Shin (concurring)

1.

We are drafting this concurring opinion to explain why we support the majority

decision in this case. More specifically, we do not share the views contained in the partially

dissenting opinion, as we would not limit the application of category III to criminal trials.

2.

There is no doubt whatsoever that Mr. Mbarusha’s detention is arbitrary. The point

on which our colleague’s view diverges from that of the majority is more the question of

whether the violations can be addressed under category III of the Working Group’s methods

of work.

3.

We underscore that nothing in the wording of the scope of category III limits it to

criminal proceedings. Rather, the wording refers to violations of “the international norms

relating to the right to a fair trial”. The choice of this wording has a purpose, as there are

other procedures in which a person may be detained and due process guarantees may be

violated. One of these procedures, such as in the present case, is detention pending

extradition.1

4.

We note that the Working Group applied category III in a number of extradition cases

in which it found violations of articles 13 and 14 of the Covenant, among others.2 No reason

was provided to justify deviating from established jurisprudence. Indeed, the approaches of

other human rights protection mechanisms support the Working Group’s position.

5.

For example, the Human Rights Committee notes in its general comment No. 32

(2007) that “insofar as domestic law entrusts a judicial body with the task of deciding about

expulsions or deportations, the guarantee of equality of all persons before the courts and

tribunals, as enshrined in article 14 (1), and the principles of impartiality, fairness and

equality of arms implicit in this guarantee are applicable.” 3 Although it considered

admissibility on a case-by-case basis depending on the basis of the arguments raised,4 the

Human Rights Committee found that violations of article 14 (1) in the context of an

extradition procedure are admissible and constitute a violation of the Covenant.5

6.

In addition, the position of the Inter-American Court of Human Rights closely mirrors

that of the Working Group. The Court has confirmed that fair trial guarantees apply in

extradition procedures, including the right to a prompt hearing and to representation, both of

which were violated in the Mbarusha case. 6 While the jurisprudence relating to the

Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights) is of limit use given the explicit reference to extradition in

article 5 of the Convention, the European Court of Human Rights has applied the provision

on the right to a fair trial (art. 6) in the context of extradition procedures, albeit on an

exceptional basis.7 Ironically, this means that Member States have stricter obligations in the

context of judicial proceedings in foreign jurisdictions than in the context of their own

procedures concerning the same person.

1 Conversely, judicial procedures that do not involve detention would not fall under the mandate of the

Working Group, irrespective of any concerns regarding the fairness of the trial.

2 See opinion No. 12/2022. See also paragraphs 53 and 54 of the majority opinion.

3 Human Rights Committee, general comment No. 32 (2007), para. 62.

4 See, for example, Human Rights Committee, Kim v. New Zealand (CCPR/C/139/D/4170/2022),

finding of inadmissibility on the grounds that the author had not invoked article 13.

5 Human Rights Committee, Weiss v. Austria (CCPR/C/77/D/1086/2002), paras. 9.6 and 10; and

Everett v. Spain (CCPR/C/81/D/961/2000).

6 Inter-American Court of Human Rights, Wong Ho Wing v. Peru, judgment of 30 June 2015

(Preliminary Objections, Merits, Reparations and Costs), paras. 223 and 228–239. See also the

sources cited in the majority opinion.

7 European Court of Human Rights, Othman (Abu Qatada) v. The United Kingdom, Application

No. 8139/09.

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7.

It is important to ensure some procedural safeguards for detained persons, even

outside criminal proceedings, as these safeguards play a dual role. They make it possible to

both challenge the detention and preserve rights with a view to a possible trial. If extradition

procedures before a court are not subject to the protections provided for under article 14 (1),

they may render illusory the prospects of receiving a fair trial after extradition. The present

case demonstrates this. Mr. Mbarusha has been detained in the Congo for over nine years on

the basis of an arrest warrant issued by Rwanda. He has been denied access to a lawyer for

long periods of time. In these circumstances, over the years, his capacity to defend himself

at any subsequent trial has been undermined, as has his capacity to challenge his detention.

These are serious concerns from a due process standpoint that fall under the usual parameters

of category III and worsen the violations under category I.

8.

While stressing that nothing in the present opinion must be construed as the expression

of an opinion on Mr. Mbarusha’s criminal responsibility, we consider that his detention is

arbitrary under categories I and III, in line with the majority opinion.