Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Visit to Burkina Faso undertaken from 3 to 9 December 2017: recommendations and observations addressed to the State party
Report of the Subcommittee * , **
Contents
Page
I.Introduction3
II.Facilitation of the visit and cooperation3
III.Report methodology and structure4
IV.National preventive mechanism4
A.Institutional framework4
B.Principles to be observed in setting up a national preventive mechanism5
C.Recommendations5
V.Field visits6
A.Police and gendarmerie stations6
B.Prisons12
C.Health care15
VI.Legislative reform18
VII.Next steps19
Annexes21
Annexe I – List of entities with which the Subcommittee met21
Annexe II – Places of deprivation of liberty visited by the Subcommittee23
I.Introduction
1.In accordance with its mandate under the Optional Protocol, the Subcommittee carried out its first visit to Burkina Faso from 3 to 9 December 2017. Burkina Faso became a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 4 January 1999 and became a party to the Optional Protocol on 7 July 2010.
2.The Subcommittee members conducting the visit were Gnambi Garba Kodjo (head of delegation), Catherine Paulet (country rapporteur for Burkina Faso), Abdallah Ounnir and Emilio Ginés Santidrián. The delegation was assisted by two human rights officers from the Office of the United Nations High Commissioner for Human Rights (OHCHR) and two United Nations security officers.
3.The principal objectives of the visit, in line with the Optional Protocol, were as follows:
(a)To visit a range of places of deprivation of liberty in order to strengthen the protection of persons deprived of their liberty from the risk of torture and ill-treatment;
(b)To provide advice and technical assistance to Burkina Faso on the establishment of its national mechanism for the prevention of torture, taking account of the Subcommittee’s guidelines on national preventive mechanisms (CAT/OP/12/5).
4.The delegation met with individuals and representatives of institutions (see annex I), visited places of deprivation of liberty (see annex II) and interviewed persons deprived of their liberty, law enforcement and detention officers, medical personnel and others. The Subcommittee is grateful to all of these people and institutions for their valuable cooperation.
5.At the end of the visit, the delegation presented its confidential preliminary observations orally to government officials.
6.The present report contains observations, findings and recommendations.
7.The Subcommittee may make comments in addition to those contained in the present report during its discussions with Burkina Faso. The absence of any comment relating to a specific facility or place of detention visited by the Subcommittee does not, by any means, imply that the Subcommittee has a positive or negative opinion of it.
8. The Subcommittee recommends that the present report be distributed to all relevant authorities, departments and institutions, including those to which it specifically refers.
9.The present report will remain confidential until such time as Burkina Faso decides to make it public, in accordance with article 16 (2) of the Optional Protocol. The Subcommittee believes that the publication of the present report would contribute positively to the prevention of torture and ill-treatment in Burkina Faso.
10. The Subcommittee recommends that Burkina Faso request the publication of the present report in accordance with article 16 (2) of the Optional Protocol.
11.The Subcommittee draws the attention of Burkina Faso to the Special Fund established under article 26 of the Optional Protocol and reminds the State party that the recommendations contained in Subcommittee visit reports that have been made public form the basis of applications to the Fund, in accordance with its published criteria.
12.The Subcommittee wishes to express its gratitude to the authorities for their help and assistance relating to the planning and undertaking of the visit, especially Yakouma Jean de Dieu Bambara, the designated liaison officer, whose diligence and responsiveness helped to ensure that the visit ran smoothly. The Subcommittee is also grateful to the United Nations Development Programme office in Burkina Faso for its support.
II.Facilitation of the visit and cooperation
13.The Subcommittee notes with satisfaction that the delegation was granted unrestricted access to places of detention by the Government, in accordance with the Optional Protocol. It appreciated the fact that the credentials needed to access all places of deprivation of liberty, worded in accordance with the Subcommittee’s model, and the relevant legislation and information on gendarmerie and police stations and detention centres, which had been requested prior to the visit, were provided in a timely manner, which greatly facilitated the visit.
14.The Subcommittee appreciated the frank and constructive dialogue held with the authorities. It notes the public authorities’ commitment to fulfilling their obligations under the Optional Protocol.
15.However, the delegation regrets that it was unable to visit the Wemtenga police station because the head of that police station refused categorically to allow it to do so. This refusal constitutes a serious violation of articles 4, 11 (a), 12 (a) and (b) and 14 (1) of the Optional Protocol. Although this isolated case does not cast doubt on the State party’s desire to fulfil its obligations in good faith, the Subcommittee wishes to emphasize the seriousness of this incident, which lends weight to the allegations that persons held in custody at this police station are often subjected to acts of torture and ill-treatment, and undermines the State party’s exemplary cooperation during the visit.
16. The Subcommittee recommends that the State party carry out a prompt inspection of the Wemtenga police station and report its findings to the Subcommittee.
III.Report methodology and structure
17.The present report is divided into three parts: the first part concerns the establishment of the national preventive mechanism, the second part deals with the conditions of detention observed during field visits and the third part concerns legislative reform in Burkina Faso.
18.The Subcommittee notes that the present report addresses structural problems that are intrinsically interlinked and that analysing them together will help to ensure efficiency in the prevention of torture and ill-treatment.
IV.National preventive mechanism
A.Institutional framework
19.Burkina Faso ratified the Optional Protocol on 7 July 2010 and undertook to establish a national preventive mechanism within one year, in accordance with article 17. However, at the time of the visit, the State party had not yet established its mechanism and was therefore on the list of States parties that are not in compliance with their obligations under article 17 of the Optional Protocol.
20.During its visit, the delegation took note of the constitutional, legislative and legal reforms that were under way. Act No. 022-2014/AN of 27 May 2014 on the Prevention and Punishment of Torture and Related Practices provides for the establishment of a national observatory for the prevention of torture and related practices. However, at the time of the visit, this observatory was not operational. The State party informed the delegation that it intended to revise this law in order to link the national preventive mechanism to the National Human Rights Commission, which had recently been overhauled but was not yet operational.
21.Under article 21 of the bill to amend Act No. 022-2014/AN, the National Human Rights Commission would be empowered to visit places of deprivation of liberty without restriction, to prevent torture and related practices in accordance with international standards and to regularly review the situation of persons deprived of their liberty. However, the delegation noted that this preliminary bill failed to guarantee the conditions required by article 18 of the Optional Protocol, namely independence, adequate resources, professional competence and compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles).
22. The Subcommittee recommends that the State party ensure that the national preventive mechanism is provided by law with a sufficient budget of its own and sufficient qualified staff, and that its members are independent.
B.Principles to be observed in setting up a national preventive mechanism
23.Any entity that serves as a national preventive mechanism must be in compliance with the provisions of the Optional Protocol, as interpreted in the guidelines on national preventive mechanisms, and with the Paris Principles.
24.The institution to be designated as the national preventive mechanism should be identified on the basis of open, transparent and inclusive consultations.
25.The visiting mandate of the national preventive mechanism should be defined in a legislative text as covering any place where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or with its consent or acquiescence, in accordance with article 4 of the Optional Protocol and the advice issued by the Subcommittee on this matter.
26.The term of office of members of the national preventive mechanism should be specified, in accordance with the Optional Protocol. The members and staff of the mechanism should enjoy such privileges and immunities as are necessary for the exercise of their functions, and measures should be taken to prevent reprisals against members of the mechanism or against persons who provide the mechanism with information.
27.The national preventive mechanism should enjoy financial and operational autonomy. The State party should ensure that funds are specifically allocated to the mechanism so as to enable it to carry out its mandate, its programme of visits and its monitoring activities.
28.The national preventive mechanism should have complete freedom to decide how to use its resources.
29.The working methods of the mechanism, the safeguards for ensuring its independence, and its cooperation and sharing of information with the National Human Rights Commission should be governed by internal regulations. The annual report of the mechanism should be separate from that of the Commission and should be published, in accordance with article 23 of the Optional Protocol.
C.Recommendations
30. The amended version of Act No. 022-2014/AN on the Prevention and Punishment of Torture and Related Practices should incorporate the criteria set out in the Optional Protocol and the Paris Principles, should make reference to the Optional Protocol and to the Subcommittee, should explicitly mention the creation or identification of a national preventive mechanism and should refer to the publication of the mechanism’s annual report.
31. Decisions as to the form and structure of the national preventive mechanism should be taken through a transparent, inclusive and participatory process in order to determine the most effective institutional configuration and avoid overlap of mandates and duplication of effort.
32. The same should apply to the process for the nomination and selection of members of the mechanism, which should ensure gender balance and take into account ethnic pluralism. Members should have the capabilities and knowledge necessary to fulfil their mandate, including medical and legal knowledge, and should not hold positions that could give rise to conflicts of interest.
33. The national preventive mechanism should have the right to carry out unannounced visits to all places of deprivation of liberty, with the frequency that it decides. This includes the ability to conduct private interviews with persons deprived of their liberty.
34. The financial and operational autonomy of the national preventive mechanism should be guaranteed by law and in practice. The necessary resources should be allocated to ensure that it operates effectively.
35. Awareness-raising and communication efforts should be undertaken to ensure the visibility of the national preventive mechanism and to distinguish it from the National Human Rights Commission.
V.Field visits
A.Police and gendarmerie stations
36.The delegation visited two National Police stations and three National Gendarmerie stations (see annex II).
1.Physical and sanitary conditions of detention
37.The delegation noted that the conditions in which persons were held in custody at police stations were not in conformity with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), in particular rules 12–17.
38.The cells at the Ouagadougou central police station were in an unacceptable state of disrepair and squalor. The main cell and the other cells lacked ventilation and natural light, were infested with insects and rats and were littered with rubbish. An unused 16 m2 cell adjacent to the main cell was used as a rubbish dump.
39.The detainees lacked personal hygiene products and slept shirtless on the floor, without mattresses, blankets or mosquito protection. The cells smelled of urine and excrement.
40.The main cell, which measured 42 m2 and, according to the authorities, could hold up to 50 people, was equipped with three latrines but had no showers or drinking water. The conditions of hygiene in that cell were unacceptable. A smaller cell nearby, which measured 9 m2 and was reserved for women, was equally unsanitary and had no toilets, showers or drinking water.
41.The Ouagadougou police station was visited twice. At the time of the first visit, the 12 men who were being held in the main cell, 2 of whom were juveniles, were wearing nothing but underwear and were barefoot. At the time of the second visit two days later, some detainees had been released, including the juveniles. The new detainees were all wearing clothes.
42.The police station had nowhere to store the detainees’ clothes and personal belongings, so their clothes were left on the ground outside the building. Furthermore, there was no area set aside for them as an exercise yard.
43.The delegation noted that the food and water provided were inadequate in terms of both quality and quantity. The detainees were allowed a single daily meal of rice and beans, which they had to prepare themselves. Meals were eaten from a large container on the ground, in appallingly unhygienic conditions. The cost of meeting the detainees’ daily needs was borne by their families; those without any family support were dependent on the solidarity of their fellow detainees. Lastly, the detainees were given just two litres of water per day for drinking and washing.
44.The situation seemed to be far worse at the Wemtenga police station, which the delegation was unable to visit. Many of the detainees who were interviewed at the Ouagadougou short-stay prison and correctional facility reported dirty and cramped conditions and a lack of water and light in three of the four cells at that police station. It was also reported that a cell measuring 1 m2 was used to confine detainees for a certain period, before or after questioning.
45.The physical conditions in which the police officers and gendarmes worked were appalling. The delegation noted, for example, that the premises of the investigation and intervention brigade of the National Gendarmerie in Paspanga, especially the offices of the criminal investigation police, were in a state of disrepair.
46.A club and a knotted rope were seen in the interview room. This suggests that these objects might be used inappropriately against persons in custody (intimidation or violence).
47.The police custody cells, whether they were for men or for women and minors, were used by both the investigation and intervention brigade and the territorial brigade of the National Gendarmerie. These facilities were clean and had a courtyard with toilets and a shower room.
48. The Subcommittee recommends that the authorities of Burkina Faso:
(a)Improve hygiene and sanitation in police custody facilities;
(b) Provide persons in police custody with mattresses, bedding and mosquito nets;
(c) Provide police and gendarmerie stations with a budget for the purchase of sufficient food for persons in custody;
(d) Ensure that persons in police custody have access to clothes, drinking water, a toilet, a shower and personal hygiene products;
(e) Set aside an area for storing the personal belongings of persons in police custody and establish a system for the registration and safekeeping of these items;
(f) Ensure that police custody cells have sufficient light and ventilation;
(g) Ensure that each detainee is allowed at least one hour a day of outdoor exercise;
(h) Ensure that there are separate cells reserved for women and minors;
(i) Make sure that there are no unauthorized, non-regulation blunt objects in interview rooms.
2.Fundamental legal safeguards
(i)Right of persons in custody to be informed of their rights and the reasons for their arrest
49.The Code of Criminal Procedure does not contain provisions on the right of persons in police custody to be informed of their rights and the reasons for their arrest. However, these rights are mentioned in the police report, which is written in French by the criminal police officer. Article 61 of the Code stipulates that persons in custody are to read the police report themselves, unless they state that they do not know how to read, in which case the report is to be read out and, if necessary, translated into their language for them by an interpreter or a criminal police officer. However, it was revealed during the interviews that several persons in custody had signed the police report concerning them, in some cases under duress, without knowing what it contained. Most of the persons interviewed by the delegation stated that they had not been informed of their rights or their penal status.
50.During its visit, the delegation heard many allegations from detainees that there had been a failure to safeguard their fundamental rights during detention, including the right to consult a lawyer, the right to undergo a medical examination and the right to contact family members and/or diplomatic representatives, in the case of foreign nationals.
51. The Subcommittee recommends that the State party:
(a) Adopt the necessary legislative and administrative measures to ensure that all persons deprived of their liberty are informed, upon arrest, of their rights and the reasons for their arrest, both orally, in a language that they understand, with the assistance of an interpreter if necessary, and in writing;
(b) Ensure that police and gendarmerie stations display posters specifying the rights of detainees.
(ii)Right to legal counsel
52.The Subcommittee is concerned to note that the Code of Criminal Procedure does not guarantee access to a lawyer from the moment of arrest. This right is not guaranteed, according to article 111 of the Code, until the arrested person first appears before a judge. This is contrary to Regulation No. 05/CM/UEMOA on the harmonization of the rules governing the legal profession in the West African Economic and Monetary Union, which provides for access to a lawyer from the moment of arrest. The interviews conducted by the delegation revealed that most of the persons in police custody had not been informed of their right to be assisted by a lawyer and had not asserted this right.
53.The delegation received information showing that the total number of lawyers in Burkina Faso is insufficient; in 2014 there were only 137 registered lawyers and 28 trainee lawyers. The shortage of lawyers, particularly outside Ouagadougou, and the fact that individuals have difficulty gaining access to defence counsel as soon as they are taken into custody, are sources of concern.
54.The delegation was informed that a legal assistance fund had been set up. An assistance commission has been established within each tribunal de grande instance (court of major jurisdiction) to issue certificates of financial hardship in order to allow eligible applicants to make use of the fund. However, it appeared from the interviews conducted with detainees that the fund was not actually being used for their benefit.
55. The Subcommittee recommends that the State party:
(a) Make legislative changes in order to guarantee the right of persons in police custody to be assisted by a lawyer of their choice or an officially appointed lawyer from the moment of arrest and during initial questioning;
(b) Set up an effective legal aid system for indigent persons.
(iii)Right to a medical examination
56.The Code of Criminal Procedure guarantees the right of persons in police custody to undergo a medical examination, upon request, after 72 hours. However, according to article 63 of the Code, it is the public prosecutor who has the right to designate a doctor to carry out an examination at any time during the custody period. The Subcommittee is concerned about the fact that no medical examination is performed during the first 72 hours of police custody and that, after that period, exercise of the right to a medical examination is subject to a judicial decision.
57.Burkina Faso does not have a universal health insurance scheme. Medication is paid for by detainees and their families. Most of the persons in custody who were interviewed had not been informed of their right to a medical examination, and some reported that their requests to see a doctor had been refused.
58. The Subcommittee recommends that the State party:
(a) Make legislative changes in order to guarantee the right of persons in police custody to undergo a medical examination from the moment of arrest;
(b) Ensure that medical examinations are conducted properly and as a matter of course at the beginning of the custody period;
(c) Ensure that medical examinations are performed by a doctor chosen by the person in custody, or by an independent doctor who has been trained to detect cases of torture and ill-treatment in accordance with the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).
(iv)Notification of family members
59.The Subcommittee is concerned about the fact that the Code of Criminal Procedure does not establish the right of persons in police custody to notify their family of their detention and that this right is not respected in practice, according to the persons interviewed by the delegation.
60. The Subcommittee recommends that the State party ensure that all persons in police custody have the right to contact their family or other persons of their choice from the moment they are deprived of their liberty. This measure would contribute significantly to the prevention of torture and ill-treatment.
(v)Duration of police custody and fundamental safeguards
61.Articles 62 and 75 of the Code of Criminal Procedure provide that police custody may last for up to 72 hours and that the public prosecutor or the investigating judge may extend that period by an additional 48 hours; these provisions are a source of concern for the Subcommittee. The delegation noted, on the basis of its interviews and the registers, that custody periods were almost always extended and that there was no way of knowing whether these extensions had been authorized by the public prosecutor.
62.A detainee at the Ouagadougou short-stay prison and correctional facility reported that he had been kept in custody at the Wemtenga police station for 40 days. At the central police station, four detainees had been in custody for 12 days. Many other people informed the delegation that they had been held in police custody for much longer than the legal time period, in some cases for more than a month.
63.The Subcommittee is also concerned about the fact that, under Act No. 017-2009/AN of 5 May 2009 on Organized Crime, police custody may last for up to 15 days.
64. The Subcommittee recommends that the State party ensure that the maximum duration of police custody does not exceed 72 hours. Any extension of that period should not exceed 48 hours. The total duration of police custody should therefore never exceed 120 hours, and any decision to keep a person in custody for the maximum period must be duly justified by exceptional circumstances, confirmed in writing and recorded in the registers. The Subcommittee encourages the State party to consider limiting police custody to a maximum of 48 hours, in accordance with international instruments, including the Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (Luanda Guidelines), as part of its ongoing legislative reform.
65. In addition, the Subcommittee recommends that the State party take all the necessary measures to ensure that, in practice, all the fundamental legal safeguards set out above are provided to all persons in police custody from the moment they are deprived of their liberty, including the right to legal counsel and the right to be informed of these fundamental safeguards.
(vi)Independence of the judiciary
66.The Subcommittee is concerned about the fact that judicial oversight of police custody is exercised by the public prosecutor, who is attached to the Ministry of Justice, rather than by an independent judicial authority.
67. The Subcommittee recommends that the State party ensure that the judicial authority responsible for overseeing police custody is independent of the political authorities, so as to fully guarantee its operational independence.
(vii)Habeas corpus
68.The Subcommittee is concerned about the fact that persons in pretrial detention do not have the right to challenge the legality of their detention before an independent judicial authority (habeas corpus).
69. Emphasizing that all detainees must be brought before an independent and impartial judge to allow them to challenge the legality of their detention, the Subcommittee encourages the authorities to take effective measures to institute the remedy of habeas corpus.
(viii)Right of persons in custody to notify the consular authorities of their detention
70.The delegation met with detainees who were foreign nationals, most of whom were from neighbouring countries. All of them claimed that they had not been informed of their right to notify the consular authorities of their detention. Since this right is not enshrined in the Code of Criminal Procedure, none of the foreign detainees who were interviewed had been allowed to contact their embassy at any point during or after the period of police custody.
71. The Subcommittee recommends that the State party take the necessary measures to ensure that consular authorities are notified whenever one of their nationals is taken into custody and that such notifications are recorded in the custody register.
3.Registers
72.The Subcommittee is concerned about the discrepancies between the number of persons in police custody and the number that is recorded in the custody register. The delegation noted that two people were being held in custody on the premises of the investigation and intervention brigade without having been registered. This suggests that the time limits applicable to police custody are not being observed.
73.The delegation also noted that persons in police custody never signed in the column of the register listing the personal belongings seized by the arresting authority and that there were no registers for recording complaints, the use of methods of restraint or disciplinary measures, visits from family members or lawyers, deaths, or transfers to a hospital or a place of detention.
74.While visiting the premises of the investigation and intervention brigade of the National Gendarmerie in Paspanga, the delegation noted that there were inconsistencies between the custody register and the events register. The custody register, which is checked by the public prosecutor when he or she visits the facility two or three times a year, listed fewer persons in custody than the events register, which is checked by the brigade commander but never by the public prosecutor and in which all detainees were scrupulously registered. At the central police station, two armed police officers, who were posted in the courtyard, facing the cells, were responsible for guarding and keeping watch on the persons in custody. They supervised the movement of arrested persons from the cells to the room where they were questioned. The registers that were kept merely listed the names of the people in custody, without any mention of the reason for their detention or the date and time of the beginning and end of the custody period.
75. The Subcommittee recommends that the State party ensure that police and gendarmerie stations are provided with more detailed registers in which to record medical examinations of new detainees, consultations, transfers for medical treatment and deaths, and that these registers are kept scrupulously up to date and are standardized, in compliance with national and international standards.
4.Allegations of torture and ill-treatment
76.The Subcommittee is concerned to note that some detainees claimed to have been subjected to acts of torture and ill-treatment, committed mainly by police officers during their arrest, while they were being transported to the police station and while they were in custody, including punches and beatings with power cables. Some detainees, including juveniles who had been arrested for theft, also complained that they had been handcuffed very tightly.
77.In Ouagadougou, one individual was reportedly arrested by plain-clothes police officers who did not identify themselves and who used excessive force and violence. They immediately handcuffed him with his hands behind his back and put him in a police car, where he was hit repeatedly during the journey to the Wemtenga police station. He was then interrogated for two days, while handcuffed and on his knees, and was constantly beaten all over his body. The detainee in question reported that, at the entrance to the police station, there was a cell (second door on the left) where detainees were locked up and beaten with clubs and power cables. Several detainees in other places of detention gave similar accounts.
78.It was reported that, at that same police station in Wemtenga, very loud music is used to drown out the screams of detainees. The aim of these acts of torture is allegedly to obtain confessions. The detainees concerned were reportedly neither examined nor treated by a doctor, despite their injuries.
79. The Subcommittee recommends that the State party:
(a) Hold regular training courses for public officials who are authorized to make arrests, in order to raise awareness of the need not to use torture and to remind them forcefully of the absolute prohibition on torture and cruel, inhuman or degrading treatment;
(b) Carry out prompt and impartial investigations whenever there are consistent indications that acts of torture or ill-treatment may have been committed;
(c) Prohibit the use of handcuffs as a tool of police violence and the inappropriate or prolonged use of handcuffs;
(d) Carry out an inspection of the Wemtenga police station as a matter of urgency and transmit the inspection report to the Subcommittee.
5.Personnel
80.The delegation noted that there was a lack of regular training aimed at raising awareness of human rights among police and security officers. It also noted, however, that the directors of the places of detention visited generally had a good knowledge of the Nelson Mandela Rules.
81.The delegation noted that there was little awareness of Act No. 022-2014/AN, particularly among senior police officers.
82.The delegation is concerned about the working conditions of police officers, who are forced to share cramped offices. It is also concerned to note that head officers of police stations have to use their own allowances to purchase medicines and food for persons in custody because there are no budgetary allocations for this purpose.
83. The Subcommittee recommends that the State party:
(a) Organize regular training sessions for law enforcement officers, in accordance with articles 10 and 11 of the Convention against Torture, so as to ensure that they properly understand and effectively implement the provisions of national and international law, including the Nelson Mandela Rules, the Convention and the Optional Protocol;
(b) Ensure that police stations are allocated enough financial resources to provide their personnel with appropriate premises, with a view to the proper functioning of all units, and to provide the necessary food and health care to detainees.
B.Prisons
1.Physical conditions of detention
(i)Ouagadougou maximum security prison
84.The maximum security prison in Ouagadougou houses persons who have been convicted of terrorism, persons who have been sentenced to death and juveniles.
85.The Subcommittee is concerned about the fact that, although this facility is not overcrowded, juveniles are not kept separate from adults.
86.Visits generally took place on weekends (15 minutes of direct contact in the presence of a guard). However, such visits were a rare occurrence: only 30 prisoners, at most, were regularly visited by their families and even fewer were visited by their lawyers. The courtyard was not used, owing to the risk of escape; the prisoners were therefore unable to exercise in the open air. Instead, they walked along the corridors of the cell blocks.
87.The prisoners’ food was insufficient (one meal per day, mainly rice and beans), unbalanced (no vegetables or fruit) and of poor quality.
(ii)Ouagadougou short-stay prison and correctional facility
88.In November 2017, there were 2,369 detainees in the Ouagadougou short-stay prison and correctional facility; the occupancy rate stood at approximately 316 per cent of capacity. Four persons who had been sentenced to death were held in single-occupancy cells. Convicted prisoners were not kept separate from pretrial detainees.
89.One part of the old building was closed because of its dilapidated state, while the new building was poorly designed in terms of space and ventilation. The other part of the old building, although unsuitable for housing prisoners, remained open because the rest of the facility was overcrowded. The Subcommittee is concerned about this overcrowding.
90.In the part of the old building that was being used for collective detention, the amount of space available to each prisoner was insufficient (between 1.4 m2 and 2 m2 per detainee). There were shared toilets, which the prisoners could not use during the night. The windows of the cells on the top floor were nothing but tiny holes.
91.The prisoners slept on thin mats on the ground, in appallingly unhygienic conditions (dirty toilets, some of which were out of order, rubbish on the ground, stagnant water, foul smells).
92.The women’s wing had the same problems (insufficient, poor-quality water and food). The women who were interviewed reported that the conditions of hygiene were poor, that they lacked access to medicines and to social services for their children and that they relied heavily on associations for both food and legal assistance.
93.The juvenile wing, which was separate from the others, had a small courtyard and a dirty and dilapidated classroom.
94.The Subcommittee noted that there were several areas in the Ouagadougou short-stay prison and correctional facility where prisoners could have engaged in activities, such as a fitness room, classrooms and workshops, but that those areas were not being used for lack of resources.
95.The delegation observed that the food provided by the facility was inadequate in terms of both quantity and quality; the prisoners therefore relied on their families to provide food. Likewise, basic hygiene products, such as soap, were not always available to the prisoners. Women did not have access to feminine hygiene products.
96. The Subcommittee recommends that the State party improve the conditions of detention in the maximum security prison and the short-stay prison and correctional facility in Ouagadougou, including by:
(a) Ensuring that prisoners have enough cell space and are separated by category;
(b) Providing mattresses, bedding and mosquito nets;
(c) Ensuring that the cells are ventilated and have sufficient natural and artificial light;
(d) Improving hygiene and sanitation in the cells and courtyards;
(e) Allowing prisoners to use the toilets at any time of day or night.
97. The State party should ensure access to sufficient food of adequate quality, drinking water and the necessary toilet articles, taking into account, in particular, the needs of women and children who are in detention with their mothers.
98. The State party should renovate the dilapidated part of the old building of the Ouagadougou short-stay prison and correctional facility.
99. The Subcommittee encourages the State party to adopt a policy of non-custodial measures and sentence adjustment in order to reduce prison overcrowding. In this connection, it would like to draw the State party’s attention to the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules).
100. The State party should ensure that the provisions of Act No. 010-2017/AN of 10 April 2017 on the Prison System in Burkina Faso regarding the education, vocational training and social reintegration of prisoners are properly applied. It should ensure that a continuing education programme is effectively implemented in prisons and should facilitate access to vocational training and a library.
101. Recreational, sporting and cultural activities should be organized more frequently and there should be a system of equitable remuneration of the work of prisoners.
2.Torture and ill-treatment; complaints system
102.The Subcommittee notes that article 24 of Act No. 010-2017/AN prohibits torture and other cruel, inhuman or degrading treatment or punishment of prisoners.
103.The delegation heard allegations of torture and ill-treatment from prisoners who claimed to have been beaten with clubs or whipped with cords by prison guards. It was also told that there was an atmosphere of verbal abuse between prisoners and staff. According to several prisoners, corporal punishment is sometimes inflicted in front of all the other prisoners, to serve as an example.
104.Some prisoners also mentioned that ill-treatment and torture occurred most often during arrest, transport, police custody and interrogation.
105.The delegation was further informed that public prosecutors ignored any complaints of torture that they received from prisoners and detainees. In addition, some members of the bar association informed the Subcommittee that they had encountered great difficulty in visiting, even as lawyers, people who were being held at the Ouagadougou maximum security prison in connection with terrorism-related offences.
106. The Subcommittee recommends that the State party:
(a) Ensure that the judicial authorities (investigating judges, sentence enforcement judges and prosecutors) visit places of detention regularly, with the frequency required by Act No. 010-2017/AN, so as to be able to deal with prisoners’ requests;
(b) Provide prison staff, on a regular basis, with training and with clear and specific instructions reminding them of the absolute prohibition on all forms of torture and ill-treatment;
(c) Ensure that there is a properly functioning mechanism whereby any prisoner may submit a confidential complaint to independent oversight bodies, pursuant to Act No. 010-2017/AN;
(d) Ensure that such complaints are examined by the visiting mechanisms established;
(e) Introduce procedures to protect complainants against reprisals;
(f) Ensure that the mechanism independently and impartially investigates all such complaints within a reasonable time frame, in accordance with articles 12 and 13 of the Convention against Torture;
(g) Increase access to legal counsel and legal aid.
3.Registers
107.Burkina Faso is currently implementing the Identification, Coordination and Police Analysis Project, which involves setting up a system for the computerization of prison data at the Ouagadougou short-stay prison and correctional facility. This project is still in its infancy; the short-stay prison and correctional facility and the maximum security prison in Ouagadougou therefore have logbooks in which day-to-day operations are recorded. The delegation noted with concern that information is not properly recorded in these logbooks. Both facilities keep registers of deaths, but the information they contain is incomplete, as it does not include the cause or the circumstances of death.
108. The Subcommittee recommends that the State party:
(a) Provide prisons with registers in which to record medical examinations of new prisoners, consultations, transfers for medical treatment and deaths;
(b) Standardize all registers in accordance with national and international standards.
4.Disciplinary proceedings and sanctions in prisons
109.The Subcommittee is concerned about reports that prisoners in the Ouagadougou short-stay prison and correctional facility are sometimes placed in disciplinary cells that are very small (5 m2) and have no ventilation other than holes drilled in the doors.
110.The prisoners stated that confinement in such cells could last for up to a month, while the prison management claimed that it was limited to a maximum of 10 days. Other disciplinary measures, such as restrictions on food and visits, were also applied.
111.Persons with mental disorders were placed in solitary confinement, which was likely to aggravate their condition.
112.There were no regulations governing disciplinary proceedings.
113. The Subcommittee wishes to make the following recommendations:
(a) Prison authorities should use solitary confinement only when strictly necessary, in accordance with the Nelson Mandela Rules;
(b) Any person who is to be placed in solitary confinement should be informed immediately and should be able to challenge this decision internally and/or before the courts;
(c) Persons with mental disorders should never be subjected to solitary confinement as a disciplinary measure;
(d) The solitary confinement cells in the Ouagadougou short-stay prison and correctional facility should be remodelled in accordance with international standards so as to provide sufficient ventilation and light, as well as access to toilets and drinking water.
5.Ouagadougou maximum security prison staff
114.The management of the Ouagadougou maximum security prison reported that the facility could not operate properly with the number of staff that it had at the time of the visit (250 officers).
115.The Subcommittee is pleased to note that a national training college for prison officers has been set up and will provide training to a corps of prison officers within the Ouagadougou maximum security prison complex.
116.However, the delegation’s interviews with some staff members revealed that they lacked knowledge of the Nelson Mandela Rules and the relevant international standards, and that they had not been specifically trained to work in a maximum security prison.
117.Many prisoners reported that corrupt practices were used, both within and outside the prison, to obtain services such as medical treatment or hospital access.
118. The Subcommittee recommends that the State party:
(a) Ensure that teaching and information on the prohibition on torture and ill-treatment are an integral part of the training provided to prison staff;
(b) Organize regular training sessions, including for managerial staff, on international standards (the Nelson Mandela Rules, the Convention against Torture and the Optional Protocol);
(c) Introduce an effective policy to combat corruption in prisons.
C.Health care
1.Health care in prisons
(i)Preliminary observations
119.The Subcommittee is pleased to note that medical staff and socio-educational staff working in prisons are under the authority of the Ministry of Health and the Ministry of Social Affairs, respectively. This is bound to improve the quality and the coordination of health care and socio-educational support for prisoners.
120.However, the Subcommittee is deeply concerned about the situation of underprivileged prisoners who cannot afford treatment, given that – aside from the support provided by non-governmental organizations (NGOs) and targeted national programmes concerning tuberculosis, malaria and HIV/AIDS – health care, including emergency care, is not free of charge.
121. The Subcommittee recommends that the State party ensure access to treatment for all prisoners, including those who are indigent, and encourages it to consider setting up a social protection system and a universal health insurance scheme.
(ii)Staff
122.The medical staff at the Ouagadougou short-stay prison and correctional facility were responsible for treating both prisoners and prison staff. This could give rise to conflicts of loyalty, particularly in cases of alleged ill-treatment.
(iii)Premises
123.At the Ouagadougou maximum security prison, the infirmary had two observation beds, which were unoccupied on the day of the visit. At the Ouagadougou short-stay prison and correctional facility, the infirmary had eight beds, four of which were occupied by prisoners who were handcuffed to the bed, a coercive measure that was used routinely and that clearly caused discomfort to the patients.
124. The Subcommittee recommends that any coercive measure be used only as a last resort and on the basis of an individualized risk assessment.
(iv)Medical examination on arrival
125.At the Ouagadougou maximum security prison, each prisoner underwent a medical examination upon arrival and had a medical record that was kept up to date. However, at the Ouagadougou short-stay prison and correctional facility, there was no routine examination of new prisoners.
126. The Subcommittee recommends that a system of routine examinations of new prisoners be introduced at the Ouagadougou short-stay prison and correctional facility.
(v)Access to health care and emergency management
127.Requests for consultations were made through prison staff or prisoners who were working as infirmary assistants, via cell captains. In the men’s wing of the Ouagadougou short-stay prison and correctional facility, difficulties in obtaining a consultation were reported.
128. The Subcommittee recommends that the State party take particular care to ensure that all requests for consultations are passed on to medical staff.
129.A daily record of consultations requested and provided was kept at both the maximum security prison and the short-stay prison and correctional facility in Ouagadougou. Patients were referred to the Yalgado-Ouédraogo university hospital and the Aouissa clinic for specialist consultations and hospitalization (under prison guard). Neither of the two prisons had an ambulance.
130. The Subcommittee recommends that all prisons be provided with an appropriate vehicle for transporting patients.
(vi)Treatment
131.There were national care programmes for the treatment of acute attacks of malaria and protection against mosquitoes, the diagnosis and treatment of tuberculosis, HIV testing and the diagnosis and treatment of AIDS.
132.Diseases related to severe nutritional deficiencies were widespread (109 cases of beriberi at the Ouagadougou short-stay prison and correctional facility, for example).
133.The Subcommittee recommends that the State party improve the nutritional quality of the meals provided to prisoners.
134.There were frequent disruptions in the supply of basic medicines such as antibiotics, analgesics and vitamins.
135. The Subcommittee recommends that the State party ensure that there is a regular supply of medicines.
136.Incidents of violence between prisoners or between guards and prisoners were not consistently recorded and reported by medical staff, who limited themselves to providing treatment, if needed.
137. The Subcommittee recommends that medical staff be made aware of the preventive value of consistently recording any allegations of violence and any injuries that are observed.
138.There is no specific support for prisoners serving long sentences, older persons, women, minors, drug addicts or children under 2 years old who are in detention with their mothers.
139. The Subcommittee recommends that the State party adopt a differentiated approach to prison health care, education and policy, taking into account the specific vulnerabilities of the prison population.
2.Psychiatric service of the Yalgado-Ouédraogo university hospital
(i)Preliminary observations
140.The Yalgado-Ouédraogo university hospital serves as both a local hospital for the Ouagadougou region and a referral hospital for the entire country. Only the inpatient unit was visited.
141.Hospital stays and treatment are not free of charge, except for pregnant women and children under 5 years old. This puts indigent persons in a very worrying situation.
142. The Subcommittee recommends that the State party ensure access to treatment for indigent persons and encourages it to consider expanding the social protection system and establishing a universal health insurance scheme.
(ii)Hospital stay conditions
143.Patients were generally admitted to the hospital with an accompanying person. Fees were charged for both single and double rooms (ranging from 500 to 4,500 CFA francs per day, depending on the amenities in the room) and the patient’s family had to find a way to cover the cost, even though most of the patients who were admitted were considered indigent.
144. The Subcommittee recommends that the State party ensure access to hospital care, including both accommodation and treatment, for indigent patients.
145.The two isolation rooms, which were used for all new patients with some exceptions, had no mats, mattresses, toilets or washbasins; they were fitted with iron doors (one of which was sharp-edged and dangerous) and a small window with a grille, which provided little ventilation.
146. The Subcommittee recommends that the two isolation rooms be renovated immediately.
147.When prisoners were admitted to the hospital, as happened once in 2016 and once in 2017, they were accompanied by a prison guard. The length of stay was generally short, averaging around two weeks.
(iii)Staff
148.The various units of the service were staffed by 42 people in total, including 8 practising psychiatrists and 13 trainee psychiatrists, 3 psychologists and 16 specialist State‑registered nurses with the capacity to make diagnoses and prescribe treatment, who were able to partially compensate for the shortage of psychiatrists.
(iv)Treatment
149.Care and treatment with medicines were not free of charge. However, the service had basic medicines, such as diazepam, haloperidol and chlorpromazine, provided by NGOs or purchased using its own funds, with which to treat indigent persons if they suffered an acute episode.
(v)Methods of restraint
150.Isolation was often used, in particular for new arrivals, for an observation period that could last several days. The guards were sometimes called on for assistance. Periods spent in isolation were not recorded, either in the patient’s file or in an ad hoc register. Restraint, on the other hand, was used only in exceptional circumstances.
151. The Subcommittee recommends that the State party develop and implement a policy on the use of restraint and isolation, strictly limiting their use to situations where they are necessary as measures of last resort and establishing accompanying safeguards, including the requirement to record their use in an ad hoc register that is checked regularly.
(vi)Safeguards
152.The vast majority of patients were hospitalized without their consent and had been brought in by their family or by the police pursuant to a detention order. Decisions as to hospitalization and discharge were taken by the psychiatrist on duty or the medical assistant. Since no implementing decrees had been issued in relation to articles 108–110 of the Public Health Code, which concern involuntary hospitalization, there were no regulations governing hospitalization of this kind or related issues such as notification of patients’ rights, periodic review of the situation or judicial remedies.
153. The Subcommittee recommends that, as part of the legislative reform that is under way, the State party amend mental health legislation in order to incorporate, in particular, conditions and safeguards relating to involuntary hospitalization.
VI.Legislative reform
154.The Subcommittee noted that Burkina Faso had initiated a major legislative reform involving the revision of the Constitution, the Criminal Code and the Code of Criminal Procedure.
155. The Subcommittee encourages the State party to carry out this reform in accordance with international standards.
156.The preliminary draft of the new Constitution contains improvements relating to the prevention of torture and inhuman, cruel, degrading or humiliating treatment. It includes safeguards concerning the right to life, safety and physical integrity, abolishes the death penalty and provides that inhuman, cruel, degrading or humiliating treatment and physical or mental torture, among other acts, are prohibited and punishable by law (art. 5). Although a moratorium on the use of the death penalty has been observed since 1988, the courts still hand down death sentences. In 2017, there were 16 people on death row across the country. The Subcommittee commends the State party for including, in the preliminary draft of the new Constitution, provisions to abolish the death penalty, protect persons deprived of their liberty (art. 6) and guarantee the right to a defence and the right to be heard by an independent and impartial tribunal (art. 7). The Subcommittee is also pleased to note the inclusion of provisions relating to the independence of the judiciary (arts. 146–156) and of judges and prosecutors (arts. 157–159).
157.The Subcommittee commends the State party for adopting Act No. 022-2014/AN, which contains a definition of torture and related practices that is in line with article 1 of the Convention against Torture. It also notes with satisfaction the preliminary bill amending this definition (art. 2), which includes a section on the punishment of acts of torture and related practices by terms of imprisonment (arts. 4–10) and a provision stipulating that no exceptional circumstances may be invoked to justify torture or related practices (art. 3).
158.However, it appears from the interviews conducted by the delegation that prosecutors and judges in the State party take into account confessions obtained through torture and that this practice is not prohibited by law.
159. The Subcommittee recommends that the State party adopt legal provisions prohibiting the use of any statement obtained through torture as evidence in judicial proceedings and ensure that these provisions are enforced, in accordance with article 15 of the Convention against Torture.
160.The Subcommittee commends the State party for adopting Act No. 010-2017/AN on the prison system, which had previously been regulated by Decree No. AN VI-103/FP/MIJ of 1 December 1988.
161. The Subcommittee encourages the State party to ensure that Act No. 010 ‑ 2017/AN is effectively implemented in order to improve the conditions in prisons.
162.The Subcommittee was informed that the Criminal Code and the Code of Criminal Procedure were being revised in compliance with the recommendations made by the Committee against Torture in paragraphs 8 and 11 (b) of its concluding observations on the initial report of Burkina Faso (CAT/C/BFA/CO/1).
163. The Subcommittee encourages the State party to make sure that the Criminal Code and the Code of Criminal Procedure are brought into line with international standards and to guarantee the right of persons in police custody to have access to a lawyer from the moment of arrest, to notify family members or relatives and to have access to a doctor.
164.The Subcommittee notes the State party’s concern about so-called “self-defence groups” that regularly carry out acts of torture and ill-treatment with impunity. It welcomes the State party’s attempts to regulate the activities of these groups that are plaguing certain areas of the country, including through Decree No. 2016-1052/PRES/PM/MATDSI/MJDHPC/MINEFID/MEEVCC, which regulates public participation in community policing. Article 12 of the Decree prohibits, among other things, the use of detention, physical abuse and cruel, inhuman, degrading or humiliating treatment by neighbourhood security groups.
165. The Subcommittee recommends that the State party take all the necessary measures to put an end to the activities of “self-defence groups” and to restore order in the areas of the country where these groups operate in order to prevent them from committing further acts of torture and ill-treatment, and ensure that the perpetrators of such acts are brought to justice.
VII.Next steps
166. The Subcommittee requests that a reply to the present report be provided within six months from the date of its transmission to the Permanent Mission of Burkina Faso to the United Nations Office and other international organizations in Geneva.
167. The reply should respond directly to all the recommendations and requests for further information made in the present report, giving a full account of action that has already been taken or is planned (including timescales) in order to implement the recommendations.
168. It should include details concerning the implementation of institution-specific recommendations and concerning general policy and practice.
169. Article 15 of the Optional Protocol prohibits all forms of sanction or reprisal, from any source, against anyone who has been, or who has sought to be, in contact with the Subcommittee. The Subcommittee reminds Burkina Faso of its obligation to ensure that no such sanctions or reprisals take place and requests that in its reply it provide detailed information concerning the steps it has taken to ensure that it has fulfilled that obligation.
170. The Subcommittee recalls that prevention of torture and ill-treatment is a continuing and wide-ranging obligation.
171. The Subcommittee considers both its visit and the present report to form part of an ongoing process of dialogue. It stands ready to assist Burkina Faso in fulfilling its obligations under the Optional Protocol.
172. The Subcommittee recommends that, in accordance with article 12 (d) of the Optional Protocol, the national authorities of Burkina Faso enter into dialogue with the Subcommittee on the implementation of the Subcommittee’s recommendations, within six months of the Subcommittee’s receipt of the reply to the present report. The Subcommittee also recommends that Burkina Faso initiate discussions with the Subcommittee on the arrangements for such a dialogue at the time of the submission of its reply to the present report.
Annexes
[French only]
Annexe I
Liste des entités rencontrées par le Sous-Comité
1.Autorités gouvernementales
Ministère de la justice, des droits humains et de la promotion civique
•Secrétaire général
•Directeur général de la défense des droits humains
•Conseiller en droits humains du Cabinet
•Directeur du suivi des accords internationaux
•Direction générale de la garde de sécurité pénitentiaire
•Inspection technique des services
•Direction générale de la politique criminelle et du sceau
•Direction générale de la promotion des droits humains
Ministère de l’administration territoriale, de la décentralisation et de la sécurité intérieure
•Direction générale de la Police nationale
Ministère de la femme, de la solidarité nationale et de la famille
Ministère de la défense nationale et des anciens combattants
2.Commission des affaires générales, institutionnelles et des droits humains de l’Assemblée nationale
•Député-Président
•Députée adjointe du Président
•Cinq députés
3.Cour d’appel de Ouagadougou
•Procureur général
4.Organismes des Nations Unies
•Coordonnatrice résidente et représentante résidente du Programme des Nations Unies pour le développement
•Directeur de pays et troisième personne du Programme des Nations Unies pour le développement
•Organisation mondiale de la Santé
•Programme alimentaire mondial
•Haut-Commissariat des Nations Unies pour les réfugiés
5.Commission nationale des droits humains
•Président
•Secrétaire général
•Conseiller
•Attaché
6.Société civile
Ordre des avocats du Burkina Faso
•Deux représentants
Ordre national des médecins du Burkina Faso - Conseil régional de l’ordre des médecins de Ouagadougou
•Président et deux médecins
Organisations non gouvernementales
•Association SOS Pénitencier
•Centre pour la qualité du droit et la justice
•Centre d’information et de formation en matière de droits humains en Afrique
•ACAT
•Mouvement burkinabé des droits de l’homme et des peuples
•Association Semfilms
•Femmes et prisons d’Afrique
•Amnesty International Burkina Faso
7.Organisations internationales
•Délégation de l’Union européenne au Burkina Faso
Annexe II
Lieux de privation de liberté visités par le Sous-Comité
Gendarmeries
•Groupe départemental de la Gendarmerie nationale de Ouagadougou
•Brigade de recherche et d’intervention de la Gendarmerie nationale de Paspanga
•Brigade territoriale de la Gendarmerie nationale de Paspanga
Commissariats de police
•Commissariat central de la police de Ouagadougou
•Commissariat de police de Wemtenga - Brigade de recherche et d’intervention de la Police nationale
Maisons d’arrêt
•Prison de haute sécurité de Ouagadougou
•Maison d’arrêt et de correction de Ouagadougou
Hôpital
•Service psychiatrique du Centre hospitalier universitaire Yalgado-Ouédraogo