Committee against Torture
Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 843/2017 * , **
Communication submitted by:O.N. (represented by counsel, TRIAL International)
Alleged victim:The complainant
Date of complaint:18 July 2017 (initial submission)
Document references:Decision taken pursuant to rules 114 and 115 of the Committee’s rules of procedure, transmitted to the State party on 20 September 2017 (not issued as a public document)
Date of decision:22 July 2021
Subject matter:Torture or other cruel, inhuman or degrading treatment or punishment; lack of effective investigation and redress
Procedural issues:Exhaustion of domestic remedies
Substantive issues:Torture or other cruel, inhuman or degrading treatment or punishment; measures to prevent acts of torture or cruel, inhuman or degrading treatment or punishment; systematic monitoring of custody and treatment of prisoners; State party’s obligation to ensure that its competent authorities proceed to a prompt and impartial investigation; right to file a complaint; right to redress
Articles of the Convention:Articles 2 (1), 11, 12, 13 and 14, read in conjunction with articles 1 and 16, and article 16
1.The complainant is O.N., a national of Burundi, born on 18 February 1977. She claims that the State party has violated her rights under articles 2 (1) and 11–14 of the Convention, read in conjunction with article 1 or, in the alternative, with article 16, and under article 16 of the Convention, read alone. The State party made the declaration under article 22 (1) of the Convention on 10 June 2003. The author is represented by counsel from TRIAL International.
The facts as submitted by the complainant
2.1On 8 March 2014, the complainant was arrested when she tried to flee from a police assault on the headquarters of her political party, the Mouvement pour la solidarité et la démocratie. She was there to attend a meeting with other party members in Bujumbura. On that day, heavily armed police came to the party headquarters in large numbers. Two police officers slipped into the offices of the party headquarters without a warrant but were disarmed and overpowered by party activists. Other police officers then threw grenades and the party members scattered, seeking shelter. The complainant left the headquarters and, along with other members of the party, hid in a neighbouring house that was under construction. Several attempts at mediation were made by representatives of civil society to obtain the release of the two police officers, but the negotiations between the political party and the police failed. The police thus launched an assault on the headquarters.
2.2The complainant and other party members were still hiding at the construction site when they were discovered by the police, who threw about 10 tear gas grenades into the house. During the assault, the complainant was severely beaten by police officers using rifle butts and nightsticks, and she was kicked in the head, back and abdomen. Any money she had on her person and her telephone were taken from her. Bleeding from the head, neck, arms and other parts of her body after the police beatings, the complainant was held by the police, with other victims, in front of the party headquarters for more than two hours.
2.3Staff of the Burundi Red Cross asked to provide the complainant with first aid, but the police prevented them from doing so. At around 9 p.m., the complainant was taken with the other wounded persons to the National Intelligence Service in Rohero, where she was insulted and subjected to intimidation. Police commissioner G.N. insulted the complainant and the other women in vulgar terms and asked them to tell him what their daily income was from the sex trade. At around 10 p.m., as a result of pressure brought by a civil society organization that the complainant could not identify, she was finally taken to the Prince-Louis-Rwagasore clinic.
2.4At the clinic, four officers from the Judicial Search and Intervention Brigade were stationed around the clock in front of the complainant’s room. She was unable to receive visits from her family during her first day at the hospital. It was only the next day, on 9 March 2014, that her family was able to visit her, thanks to pressure from civil society organizations and messages carried in the media. During these visits, police officers were always present.
2.5The complainant did not receive appropriate medical attention, as the health-care staff avoided caring for her out of fear of reprisals from the police, who were constantly checking on them. It was not until 17 March 2014 that the complainant was able to obtain authorization to have X-rays taken, at another hospital. Despite the submission of requests by the complainant’s lawyer on 30 March and 15 December 2015, he never received copies of elements in her medical file, in particular the hospitalization file, information on any examinations and the discharge ticket, which would have been useful in the context of the legal proceedings which the complainant wanted to bring.
2.6On 21 March 2014, the Bujumbura State Prosecutor went to the hospital and presented the complainant with an arrest warrant in her name, without giving her a copy, and informed her of her arrest. The complainant was forced to leave the hospital – in a wheelchair – and was taken to the Bujumbura State Prosecutor’s Office, where she was interrogated and confined to a cell for hours, despite the fact that she had serious and visible wounds, before being transferred to the Mpimba central prison. During the interrogation, the complainant did not have access to a lawyer.
2.7While in prison, the complainant was forced to share a tiny bed with another inmate in a room that housed 46 other women. The food was insufficient and of poor quality, which, together with the overcrowding in the prison, was conducive to the spread of contagious diseases and consequently caused serious health problems for the complainant.
2.8The complainant remained in detention at the Mpimba prison until 12 June 2015, when she was taken to an emergency room because of her serious health problems, thanks to the intervention of the Association burundaise pour la protection des droits humains et des personnes détenues and the International Committee of the Red Cross. The complainant was hospitalized until 24 June 2015, in part to set up a treatment for diabetes, which she did not have prior to her detention.
2.9On 24 June 2015, the complainant left the hospital in order to flee from Burundi. On 9 July 2015, she was granted refugee status in Rwanda. On 15 February 2016, she was sentenced by the Bujumbura tribunal de grande instance (court of major jurisdiction) to 3 years and 6 months of deprivation of liberty for resisting the police.
2.10During the procedure brought against her, the complainant reported the torture she had undergone, and it was also reported in a formal complaint lodged on 14 March 2014 with the Bujumbura State Prosecutor’s Office on behalf of the complainant and the other members of the Mouvement pour la solidarité et la démocratie who had been subjected to the same treatment. Despite numerous representations, the authorities did not follow up on the reports that were filed. No investigation was conducted by the Burundian authorities and the complainant was never heard or even called about the acts of torture to which she was subjected, even though they were widely known. In a press conference on 9 May 2014, the lawyers who signed the complaint denounced the fact that two months after its submission, the prosecutor had not yet started the investigation of the case and that the victims had been forced to leave the hospital before they had fully recovered. The case involving the complainant has received much media attention both nationallyand internationally. Moreover, although the perpetrators were expressly identified in the complaint, they have never been punished by the State party.
2.11Apart from the clear refusal of the authorities to establish responsibilities in this case, the complainant also draws attention to the general climate of impunity in Burundi, particularly with regard to acts of torture, which has been the subject of numerous reports by United Nations bodies. Furthermore, in its conclusions on the initial report of Burundi adopted on 20 November 2006, the Committee expressed concern about the judiciary’s de facto dependence on the executive. Then, in its concluding observations on the second periodic report of Burundi, the Committee expressed concern about the slow pace and limited scope of the investigations and judicial proceedings that have been opened in this connection, which would appear to corroborate claims that the perpetrators of acts of torture and extrajudicial killings by the Burundian National Police and the National Intelligence Service enjoy impunity. Lastly, in its concluding observations of August 2016 on the special report of Burundi, the Committee stated that Burundi should put an end to impunity and ensure that all cases and allegations of torture and ill-treatment are promptly investigated in an effective and impartial manner.
2.12Consequently, the complainant claims that: (a) she gained no satisfaction from the available domestic remedies, as the authorities did not respond to her reports whereas they should have opened a criminal investigation on the basis of her allegations; (b) the remedies took an unreasonably long time, given that three years and four months after the acts of torture were reported, on 14 March 2014, no investigation had been opened; and (c) it was dangerous for her to take further steps, as she fled Burundi with her family while she was still supposed to be in detention and the perpetrators of the acts of torture were police officers and persons close to the current Government.
3.1The complainant claims that Burundi has violated her rights under articles 2 (1) and 11–14, read in conjunction with article 1 or, in the alternative, with article 16 of the Convention, and under article 16 of the Convention, read alone.
3.2According to the complainant, the mistreatment inflicted on her caused her severe pain and suffering, with a lingering impact on her physical and psychological health. Among the after-effects of the torture she underwent in March 2014, the complainant reports physical pain, but also anxiety, insomnia, hallucinations and depressive disorders. The objective of the police officers who brutally beat her was precisely to cause such suffering: they beat her on the most sensitive areas for a woman, such as her back, kidneys and breasts. What is more, she was denied access to care from the Red Cross personnel who were on the scene, and instead of being rushed to hospital to receive the medical treatment she clearly needed, she was taken to the National Intelligence Service, where she was insulted and subjected to intimidation. These acts of torture, inflicted by members of the national police, were aimed at intimidating, punishing and putting pressure on her because of her political affiliation. The complainant maintains that the mistreatment constituted acts of torture under the meaning of article 1 of the Convention.
3.3The complainant, invoking article 2 (1) of the Convention, submits that the State party has not taken effective measures to prevent acts of torture under its jurisdiction. Specifically, throughout her detention, the complainant did not receive appropriate medical care. On the contrary, the presence of police officers at the hospital and the unhealthy conditions at the Mpimba prison contributed to the deterioration of her physical and psychological health. The complainant did not have access to a lawyer until the closed hearing on 25 April 2014, i.e., more than a month and a half after her arrest, with no lawyer present during the questioning at the public prosecutor’s office on 21 March 2014. Secondly, despite the reports and a formal complaint submitted by the complainant, the State party did not meet its obligation to investigate the torture that was inflicted on her and to bring those responsible for those acts to justice. Lastly, the complainant points out that in Burundian law, apart from the special circumstances of war crimes, crimes against humanity and crimes of genocide, acts of torture committed outside such specific contexts are subject to a statute of limitations of 20 or 30 years, depending on the circumstances. Accordingly, the complainant submits that the State party failed to take the measures, including the legislative measures, required under article 2 (1) of the Convention.
3.4Invoking article 11 of the Convention and the Committee’s practice, the complainant submits that despite her critical state of health at the time of arrest, she did not receive appropriate medical care. She was arrested without being informed of the charges against her; she did not have effective remedies to take action against the acts of torture; and she was detained in deplorable conditions at the Mpimba prison, despite her critical state of health.
3.5Furthermore, the complainant submits that, although they were informed of the torture to which she was subjected through a complaint lodged on 14 March 2014 and her reports of torture at the hearing of 25 April 2014, the Burundian authorities did not conduct a prompt and effective investigation into the allegations of torture, in violation of the obligation imposed by article 12 of the Convention. She also alleges that the State party did not respect her right to bring a complaint so as to have her allegations examined promptly and impartially, in violation of article 13 of the Convention.
3.6By depriving the complainant of criminal proceedings, the State party has at the same time deprived her of any remedy to obtain compensation for such serious crimes as torture. Furthermore, she received no rehabilitation assistance of any kind to help her to recover as fully as possible physically or mentally, or in social and financial terms. In view of the passivity of the judicial authorities, other remedies to obtain redress, such as a civil suit for damages, are entirely unlikely to be successful. The Burundian authorities have taken few measures to compensate victims of torture, a point raised by the Committee in its concluding observations concerning the initial report of Burundi, in 2006. In 2014, while taking note of the fact that the new Code of Criminal Procedure provided for the compensation of victims of torture, the Committee expressed its concern about the failure to apply this provision, in violation of article 14 of the Convention. Lastly, in 2016 the Committee reiterated the State party’s obligation to ensure access to adequate reparation for victims of torture and cruel, inhuman or degrading treatment. The Burundian authorities have thus failed to fulfil their obligations under article 14 of the Convention, as, on the one hand, the violations perpetrated against the complainant went unpunished owing to the passivity of the State, and, on the other hand, the complainant received no compensation and benefited from no rehabilitation measures.
3.7The complainant repeats that the violent acts inflicted on her constitute torture, as defined in article 1 of the Convention. Should the Committee not agree to qualify it as such, she maintains that the abuse endured by her constitutes cruel, inhuman or degrading treatment, and on that basis, the State party also has an obligation, under article 16 of the Convention, to prevent public officials from committing, instigating or tolerating such acts and to punish them if they do. In addition, she recalls the conditions of detention that she had to endure in the National Intelligence Service cells and at the Mpimba central prison. The complainant refers again to the Committee’s concluding observations on the initial report of Burundi, in which it noted that conditions of detention in Burundi amount to inhuman and degrading treatment. Lastly, the complainant recalls that she received no medical treatment while in detention, despite her critical state of health, and she therefore concludes that the conditions of detention she experienced constitute a violation of article 16 of the Convention.
Lack of cooperation from the State party
4.On 20 September 2017 and on 19 June, 15 November and 17 December 2019 the State party was requested to submit its observations on the admissibility and merits of the communication. The Committee notes that it has received no response and regrets the lack of cooperation from the State party in sharing its observations on the present complaint. It recalls that the State party is obliged, pursuant to the Convention, to submit to the Committee written explanations or statements clarifying the matter and indicating the measures, if any, that may have been taken to remedy the situation. In the absence of a response from the State party, due weight must be given to the complainant’s allegations, which have been properly substantiated.
Issues and proceedings before the Committee
Consideration of admissibility
5.1Before considering any claim submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.
5.2In the absence of any obstacle to the admissibility of the communication, the Committee proceeds to its consideration of the merits of the claims submitted by the complainant under articles 1, 2 (1), 11–14 and 16 of the Convention.
Consideration of the merits
6.1In accordance with article 22 (4) of the Convention, the Committee has considered the communication in the light of all the information made available to it by the parties. As the State party has not provided any observations on the merits, due weight must be given to the complainant’s allegations.
6.2The Committee notes the complainant’s allegation that she was beaten by police officers, who brutally hit her all over her body with the butts of their rifles and nightsticks and kicked her on the head, back and abdomen. The Committee also notes that (a) the police kept the complainant in front of the headquarters of the Mouvement pour la solidarité et la démocratie for more than two hours while she was bleeding from the head, neck, arms and other parts of her body that had been hit during the police beatings; (b) the police officers did not allow Burundi Red Cross personnel to provide the complainant with medical attention; (c) instead of being taken to hospital, the complainant was taken to the National Intelligence Service, where she was insulted and subjected to intimidation; and (d) it was only as a result of pressure from a civil society organization that the complainant was taken to hospital. The Committee notes furthermore that the hospital did not comply with requests from the complainant’s lawyer for her medical records to allow him to present evidence to the authorities of the abuse she had suffered. The Committee likewise takes note of the complainant’s allegations that the blows she received caused her extreme pain and suffering, including anguish and psychological suffering, and were reportedly deliberately inflicted by agents of the State with the objective of punishing and intimidating her. At no time have these allegations been contested by the State party. In these circumstances, the Committee concludes that the facts as presented by the complainant constitute torture within the meaning of article 1 of the Convention.
6.3The complainant also invokes article 2 (1) of the Convention, under which the State party should have taken effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. In this respect, the Committee recalls its conclusions and recommendations concerning the initial report of Burundi, in which it urged the State party to take effective legislative, administrative and judicial measures to prevent all acts of torture and all ill-treatment and to take steps, as a matter of urgency, to bring all places of detention under judicial control and to prevent its officials from making arbitrary arrests and engaging in torture. In the present case, the Committee takes note of the complainant’s allegations that she was beaten by police officers and then detained without an arrest warrant, without any legal basis, and without the possibility of contacting a defence lawyer, for more than one and a half months, leaving her outside the protection of the law. The Committee also notes that the State party did not take any measures to protect the complainant until non-governmental organizations intervened to support her. Lastly, the State authorities have taken no steps to investigate the acts of torture suffered by the complainant and to adopt the appropriate punitive measures, despite the complaints that she had repeatedly presented in this regard. In the light of the foregoing, the Committee finds a violation of article 2 (1), read in conjunction with article 1 of the Convention.
6.4The Committee also notes the complainant’s argument that article 11 of the Convention was violated because the State party failed to properly oversee the treatment she received while in detention. She alleges, in particular, that; (a) despite her critical state of health at the time of arrest, she did not receive appropriate care; (b) she was not given access to a lawyer until a month and a half after her arrest, without being assisted during her interrogation at the public prosecutor’s office on 21 March 2014; (c) she was arrested without being informed of the charges against her; (d) she did not have effective remedies to take action against the acts of torture; and (e) she was detained in “deplorable conditions” at the Mpimba prison, despite her critical state of health. The Committee recalls its concluding observations regarding the second periodic report of Burundi, in which it expressed concern at the excessive length of time during which people can be held in police custody, numerous instances in which the allowable duration of police custody has been exceeded, failures to keep registers with information on persons in custody or failures to ensure that such records are complete, failures to comply with fundamental legal safeguards for persons deprived of their liberty, the absence of provisions that guarantee access to a doctor and access to legal assistance for persons of limited means and the excessive use of pretrial detention in the absence of regular reviews of its legality and of any limit on its total duration. In the present case, the complainant appears to have been deprived of any form of judicial oversight. In the absence of any compelling evidence from the State party that it did supervise the complainant’s detention, the Committee finds that the State party has violated article 11 of the Convention.
6.5In respect of articles 12 and 13 of the Convention, the Committee has taken note of the complainant’s allegations that, on 8 March 2014, she was beaten by police officers during a police intervention at the headquarters of the Mouvement pour la solidarité et la démocratie. Although she filed a complaint on 14 March 2014 with the Bujumbura State Prosecutor and also reported the torture she had suffered before the judge at a closed hearing on 25 April 2014, no investigation had been conducted, almost six years after the events. The Committee considers that so long a delay in initiating an investigation into allegations of torture is patently unjustified. In this regard, it draws attention to the State party’s obligation under article 12 of the Convention to ensure that its competent authorities proceed automatically to a prompt and impartial investigation wherever there is reasonable ground to believe that an act of torture has been committed. The Committee therefore finds a violation of article 12 of the Convention.
6.6By failing to meet this obligation, the State party has also failed to fulfil its responsibility under article 13 of the Convention to guarantee the right of the complainant to lodge a complaint, which presupposes that the authorities provide a satisfactory response by launching a prompt and impartial investigation. The Committee therefore also finds a violation of article 13 of the Convention.
6.7Regarding the complainant’s claims under article 14 of the Convention, the Committee recalls that this article not only recognizes the right to fair and adequate compensation but also requires States parties to ensure that the victim of an act of torture obtains redress. The Committee recalls that redress should cover all the harm suffered by the victim and should encompass, among other measures, restitution, compensation and guarantees of non-repetition of the violations, taking into account the circumstances of the individual case. In the present case, in the absence of a prompt and impartial investigation, despite clear material evidence that the complainant was the victim of acts of torture which have gone unpunished, the Committee concludes that the State party has also failed to fulfil its obligations under article 14 of the Convention.
6.8As for the claim under article 16 of the Convention, the Committee has taken note of the complainant’s allegations that she was detained from 21 March 2014 to 12 June 2015 at the Mpimba central prison, which is characterized by unsanitary conditions and overcrowding amounting to inhuman and degrading treatment. In the absence of any relevant information from the State party in this regard, the Committee concludes that the facts in the present case disclose a violation by the State party of its obligations under article 16 of the Convention.
7.The Committee, acting under article 22 (7) of the Convention, concludes that the facts before it disclose a violation of articles 2 (1), and 11–14, read in conjunction with article 1, and of article 16 of the Convention.
8.Insofar as the State party has failed to respond to the Committee’s requests to submit observations on this complaint, thereby refusing to cooperate with the Committee and preventing it from effectively considering the elements of the complaint, the Committee, acting under article 22 (7) of the Convention, decides that the facts before it constitute a violation by the State party of article 22 of the Convention.
9.Pursuant to rule 118 (5) of its rules of procedure, the Committee urges the State party to launch an impartial investigation into the events in question, with a view to bringing those allegedly responsible for the victim’s treatment to justice, and to inform it, within 90 days of the date of transmittal of this decision, of the steps it has taken in response to the above observations, including adequate and fair compensation encompassing the means for as full a rehabilitation as possible of the victim.