Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 952/2019*,**

Communication submitted by:Cyrille Ndayirukiye (represented by counsel, Jean Claude Ntiburumunsi and Divine Ntiranyuhura)

Alleged victim:The complainant

State party:Burundi

Date of complaint :7 June 2019 (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 4 September 2019 (not issued in document form)

Date of adoption of decision :12 May 2022

Subject matter :Torture or other cruel, inhuman or degrading treatment or punishment; lack of effective investigation and redress

Procedural issue :Exhaustion of domestic remedies

Substantive issues :Torture; cruel, inhuman or degrading treatment or punishment; prevention of torture; prompt and impartial investigation; treatment of prisoners; redress

Articles of the Convention :1, 2, 11–14 and 16

1.1The complainant is Cyrille Ndayirukiye, a national of Burundi born in 1954. He claimed that the State party had violated his 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 pursuant to article 22 (1) of the Convention on 10 June 2003. The complainant is represented by counsel, Jean Claude Ntiburumunsi and Divine Ntiranyuhura.

1.2On 4 September 2019, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party to allow the complainant to have legal assistance through access to the lawyer of his choice; to be examined by a doctor of his choice; to have access to appropriate health care; and, with his representative, to have access to all the documents relating to the judicial proceedings against him, including all previous court decisions.

Facts as submitted by the complainant

2.1The complainant was a former general of the National Defence Force of Burundi and a former Minister of Defence. He was one of the 18 Burundian army and police officers who instigated the attempted coup d’état of 13 May 2015. On 15 May 2015, at approximately 5.30 a.m., the complainant was attacked in a neighbourhood of Bujumbura by a group of soldiers from the presidential guard battalion. He took a severe beating from these soldiers during the attack. With his face to the ground, he was kicked and struck with rifle butts; he was then handcuffed and loaded into a truck, all while repeatedly being hit and having ethnic slurs hurled at him.

2.2The complainant was taken to a basketball court, where a large group of royalist soldiers spat and hurled ethnic slurs at him. He was then taken to the National Intelligence Service detention facility and placed in a cell measuring 4 m by 3 m with three other detainees. He and his cellmates were kept handcuffed together in pairs in this mosquito-ridden cell, without blankets or mattresses. To relieve themselves, they had a single bucket, which they were permitted to empty only once a day.

2.3The same day, during the complainant’s first interview at the premises of the National Intelligence Service, the director of the Service entered the interview room and threatened to kill him if he refused to cooperate.

2.4The day after his arrest, on 16 May 2015, the complainant was forced to appear on camera for a Radio-Télévision nationale du Burundi broadcast to ask the public for forgiveness for having sought to overthrow the regime in power and to send a message of reconciliation to the demonstrators, who at the time were in the streets protesting against President Pierre Nkurunziza’s third term.

2.5On 17 May 2015, during questioning before the public prosecutor, the complainant reported the circumstances of his arrest as well as the torture and ill-treatment to which he was being subjected at that very time; indeed, he appeared handcuffed, barefoot and with a red eye from having been kicked and caned. After the interview, he was sent back to the National Intelligence Service detention facility, where he continued to receive the same treatment.

2.6The complainant was not allowed to receive visits, including from a lawyer, or to see a doctor. In addition, his family was not informed of his place of detention. On 20 May 2015, he was transferred to Gitega prison, where he remained in detention. Between October and late December 2015, the complainant was held in constant confinement in a cell with three other detainees, who were all handcuffed together in pairs, day and night. They relieved themselves in a bucket in the cell. They were allowed a one-hour hygiene break each day to eat and take out the waste from the cell. Following a Supreme Court ruling of late December 2015, however, the conditions of the complainant’s detention improved: he was no longer constantly handcuffed, had the right to communicate with his co-defendants and was able to practise his religion and exercise outside his cell. He also had access to proper toilet facilities.

2.7The Supreme Court sentenced the complainant to life imprisonment on 15 January 2016 and upheld the sentence on appeal on 9 May 2016. The Court of Cassation rejected his appeal in cassation on 20 December 2016. The complainant requested the Minister of Justice to review his case, but no action was taken in response.

2.8On several occasions, the complainant reported the circumstances of his arrest and the ill-treatment to which he had been subjected; he did so when he was first brought before the public prosecutor on 17 May 2015, then before the judges of the Supreme Court at a hearing in chambers on 14 October 2015, during his pleadings in response to the prosecution’s charges on 4 January 2016 and during the appeal before the Appellate Division of the Supreme Court on 11 April 2016. No action was taken in response. His lawyer was threatened by State officials and had to leave the country for Rwanda after he reported the torture inflicted upon the complainant to local and international media after the 17 May 2015 hearing.

2.9The complainant was assisted by a lawyer during questioning before the prosecutor from the Public Prosecution Service at his second appearance, before the judges in chambers and at his first appearance before the trial judge on 14 December 2015. At this hearing, his lawyers again reported the torture and ill-treatment to which the complainant had been subjected and requested a postponement so that they could consult the case file. They were subsequently subjected to intimidation by the judiciary and were removed from the case by a court decision before being disbarred. His foreign lawyer was initially denied access to the country before being accused of involvement in the coup. Thereafter, the complainant had no legal assistance for the remainder of the judicial proceedings.

Complaint

3.1The complainant claimed that the State party had violated his 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. The abuse that he had endured during his arrest and the conditions of his detention had caused him severe physical and psychological suffering.

3.2The complainant noted that the violent beating inflicted by presidential guard soldiers, the degrading remarks made during his arrest, the threats made against him and his forced appearance on television had left him in a state of great psychological distress. He had been made to continue suffering as a result of the lack of appropriate care, the unsanitary conditions of his detention and inadequate food. These acts of torture, inflicted by members of the presidential guard and the National Intelligence Service, had clearly been aimed at punishing him for his participation in the attempted coup d’état of 13 May 2015 and exerting pressure on him. According to the complainant, this abuse therefore constituted torture as defined in article 1 of the Convention.

3.3The complainant, invoking article 2 (1) of the Convention, argued that the State party had not taken effective measures to prevent acts of torture in the territory under its jurisdiction. The complainant had not been assisted by a lawyer at every stage of the judicial proceedings. Despite the amendment of the Criminal Code, torture remains subject to a statute of limitations of 20 or 30 years, which constitutes a legal obstacle to the effective prevention of acts of torture.

3.4Invoking article 11 of the Convention and the Committee’s practice, the complainant claimed that his relatives had not been informed of the place of his detention and that he had not been entitled to receive visits until his trial. He had not been assisted by a lawyer at every stage of the proceedings and had not been allowed to consult the case file in order to properly prepare his defence, in violation of the principle of equality of arms.

3.5With regard to article 12 of the Convention, the complainant argued that, although the torture to which he had been subjected had repeatedly been brought to the attention of the authorities, at the hearings on 17 May 2015, 14 October 2015, 4 January 2016 and 11 April 2016, the Burundian authorities had not conducted a prompt and effective investigation into the allegations of torture, in violation of their obligation under article 12 of the Convention. He also argued that the State party had not respected his right to bring a complaint so as to have his allegations examined promptly and impartially, in violation of article 13 of the Convention.

3.6By depriving the complainant of a number of procedural safeguards, the State party also deprived him of the legal means of obtaining compensation for the material and immaterial harm caused by the acts of torture inflicted. Furthermore, after the torture to which he was subjected, the complainant received no rehabilitation assistance of any kind to help him to recover as fully as possible, either physically or mentally, or in social and financial terms. In addition, by failing to prosecute the perpetrators of the acts of torture, the State party neglected its duty to adopt the measures necessary to guarantee the non-repetition of such acts. In 2014, while taking note of the fact that the new Code of Criminal Procedure of Burundi 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. The Burundian authorities thus failed to fulfil their obligations under article 14 of the Convention, as, on the one hand, the violations perpetrated against the complainant remained unpunished owing to their passivity, and, on the other hand, the complainant received no compensation and benefited from no rehabilitation measures.

3.7The complainant reiterated that the violence inflicted upon him constituted torture, in accordance with the definition set out in article 1 of the Convention. He maintained that, should the Committee not agree to qualify it as such, the abuse that he had endured constituted cruel, inhuman or degrading treatment and that, on that basis, the State party had also had an obligation, under article 16 of the Convention, to prevent State officials from committing, instigating or tolerating such acts and to punish them if they had done so. The State party also had an obligation to provide redress for the harm caused by this treatment.

State party’s observations on admissibility and the merits

4.1The State party was invited to submit its observations on admissibility and the merits on 4 September 2019. Reminders were sent on 27 March and 29 May 2020. On 29 June 2020, the State party submitted comments on the admissibility of the complaint. The State party argues that the Committee should reject the communication under article 22 (2) and (5) (b) of the Convention as an abuse of right, since the complainant did not exhaust the remedies available under domestic law.

4.2The State party explains that torture has been established as a severely punished offence under the Criminal Code; article 138 defines torture as a crime and states that the applicable penalties are to be imposed without the possibility of parole. Article 206 of the Code defines torture in the criminal sense, and article 207 establishes the penalties applicable to the offence. Consequently, the State party considers that the complaint constitutes an abuse of process within the meaning of rule 113 (b) of the Committee’s rules of procedure. As the time limit specified in article 148 of the Criminal Code for proceeding in the national courts had yet to elapse, the State party invited the complainant to first bring his case before the Burundian courts.

Complainant’s comments on the State party’s observations

5.1On 11 December 2020, the complainant submitted his comments on the State party’s observations. In these comments, he rejected the argument that he had not exhausted domestic remedies. He argued that it would have been dangerous for him to take further action, as he had been tortured by presidential guard soldiers and officers of the National Intelligence Service – who reported to the Office of the President of the Republic and were part of the Burundian law enforcement system – and, in prison, by the prison police under the authority of the police high command. They all enjoyed complete impunity and, as they reported to the Office of the President of the Republic, were able to exert considerable pressure and had numerous contacts prepared to carry out reprisals against the complainant and his relatives. The complainant’s lawyers had also been threatened and intimidated by the police and judicial authorities, and one of them had been forced to leave the country.

5.2In addition, in its concluding observations on the second periodic report of Burundi, the Committee had expressed concern about the slow pace and limited scope of the investigations and judicial proceedings that had been opened in this connection, thereby corroborating claims that the perpetrators of acts of torture and extrajudicial killings involving members of the Burundian National Police and the National Intelligence Service enjoyed impunity.

5.3For the complainant, given the failings of the judicial system and the persistent pattern of abuse and impunity, any remedy that he might have pursued would have been futile, thus justifying the non-exhaustion of domestic remedies.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any complaint 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.

6.2The Committee notes that the State party contested the admissibility of the complaint on the grounds of non-exhaustion of domestic remedies, as the complainant had not formally raised the allegations of torture with the competent authorities. However, the Committee notes the complainant’s claim, which has not been contested by the State party, that he had expressly mentioned the torture to which he had been subjected to the public prosecutor on 17 May 2015, when he had appeared handcuffed, barefoot and bearing visible signs of torture, and later to the judges of the Supreme Court at a hearing in chambers on 14 October 2015. The complainant stated that he had then reported the torture to which he had been subjected to the trial judge on 14 December 2015, during his pleadings on 4 January 2016 and during the appeal on 11 April 2016 but that the authorities had never carried out an investigation. The Committee further notes the complainant’s argument that it would have been dangerous for him to take further action, as the perpetrators of the acts of torture were presidential guard soldiers and officers of the National Intelligence Service reporting to the Office of the President of the Republic and of the prison police under the authority of the police high command. Lastly, the Committee notes that the complainant’s lawyers were threatened and intimidated by the police and judicial authorities for having reported the torture inflicted upon him to the media and that one of them was forced to leave the country.

6.3The Committee notes that, in its observations, the State party alleged merely that torture is punishable under the Criminal Code and that the complainant should take legal action. The Committee observes that, on several occasions, the complainant reported the torture to which he had been subjected to the competent judicial authorities, yet no investigation was carried out. Moreover, the State party has not demonstrated, including through domestic case law, that investigations have been carried out into alleged acts of torture in similar cases following their referral to the courts.

6.4In the absence of any pertinent information from the State party in this regard, the Committee concludes that the State party’s objection to the admissibility of the complaint is not relevant in the present case, as it has failed to demonstrate that existing remedies for reporting acts of torture were, in practice, made available to the complainant to enable him to assert his rights under the Convention.

6.5In the absence of any other obstacle to the admissibility of the communication, the Committee proceeds with its consideration of the merits of the claims submitted by the complainant under articles 2 (1), 11–14 and 16 of the Convention.

State party’s failure to cooperate

7.On 4 September 2019, 27 March 2020, 29 May 2020, 13 August 2020 and 13 January 2022, the State party was invited to submit its observations on the merits of the complaint. The Committee notes that this information has not been received. It regrets the State party’s refusal to communicate any information on the merits of the complainant’s claims. 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.

Consideration of the merits

8.1In 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, which have been properly substantiated.

8.2The Committee notes the complainant’s claim that he was beaten by a group of soldiers from the presidential guard battalion, who kicked him violently and struck him with rifle butts all over his body. The Committee also notes that: (a) the complainant was made to continue suffering as a result of the lack of appropriate care, unsanitary conditions of detention and inadequate food; (b) the soldiers made degrading remarks towards him, threatened him and forced him to appear on television; and (c) between October and late December 2015, he was held in a cell measuring 4 m by 3 m with three other detainees, all handcuffed together in pairs. The Committee further notes that the prison doctor did not comply with the complainant’s requests to be provided with his medical records so that he could show the authorities evidence of the abuse that he had endured. The Committee recalls its jurisprudence according to which any person deprived of his or her liberty must be given access to prompt and independent legal and medical assistance and must be able to contact his or her family in order to prevent torture. The Committee likewise takes note of the complainant’s allegations that the beating to which he was subjected caused him severe suffering, including emotional and psychological suffering, and was deliberately inflicted by State officials to punish and intimidate him. The Committee also notes that these allegations have at no time 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.

8.3The Committee notes the complainant’s allegation that, if they cannot be classed as acts of torture, the acts and treatment to which he was subjected constitute cruel, inhuman or degrading treatment or punishment in accordance with article 16 of the Convention. However, the Committee considers that these allegations relate to acts that constitute torture within the meaning of article 1 of the Convention. Accordingly, the Committee does not consider it necessary to examine separately the claims under article 16.

8.4The complainant also invoked 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 in order to prevent its officials from making arbitrary arrests and engaging in torture. In the present case, the Committee notes the complainant’s allegations about the treatment inflicted on him by State officials when he was arrested, without being able to contact his family or have access to counsel or a doctor. The Committee also notes that the State party did not take any measures to protect the complainant. Lastly, the State authorities have taken no steps to investigate the acts of torture to which the complainant was subjected and to adopt the appropriate punitive measures, despite the complaints that he repeatedly presented in this regard to the public prosecutor and the courts. In view of the above, the Committee finds a violation of article 2 (1), read in conjunction with article 1, of the Convention.

8.5The Committee further notes the complainant’s argument that article 11 of the Convention, which requires the State party to keep under systematic review arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction with a view to preventing any occurrence of torture, was violated. In particular, the complainant alleged that: (a) despite his critical condition at the time of arrest, he had not received appropriate medical care; (b) he had not had access to a lawyer during his first interview at the premises of the National Intelligence Service, during his initial questioning before the public prosecutor and after his first appearance before the trial judge; (c) he had not had effective remedies to challenge the acts of torture; and (d) between October and late December 2015, he had been held in constant confinement at Gitega prison in a cell that he had shared with three other detainees, all handcuffed together in pairs. The Committee recalls its concluding observations on the second periodic report of Burundi, in which it expressed concern at the excessive length of time during which people could be held in police custody, numerous instances in which the allowable duration of police custody had been exceeded, failures to keep registers on persons in custody or failures to ensure that such records were complete, failures to comply with fundamental legal safeguards for persons deprived of their liberty, the absence of provisions that guaranteed 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 relevant information to the contrary from the State party, the existence of such deplorable conditions and treatment is sufficient to establish that the State party failed in its obligation to keep under systematic review arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture, and that this violation resulted in harm to the complainant. The Committee therefore finds a violation of article 11 of the Convention.

8.6With regard to articles 12 and 13 of the Convention, the Committee takes note of the complainant’s allegations that, on 15 May 2015, he was attacked and beaten by a group of soldiers from the presidential guard battalion, that death threats were made against him during the first interview at the premises of the National Intelligence Service and that he continued to be subjected to acts of torture during his detention. Although he had reported the torture to the public prosecutor and the courts on several occasions and had appeared bearing visible signs of torture, no investigation had been carried out seven years after the events in question. 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 a prompt and impartial investigation is carried out wherever there is reasonable ground to believe that an act of torture has been committed. In the present case, the Committee therefore finds a violation of article 12 of the Convention.

8.7In view of the foregoing findings, the State party 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 notes that article 13 does not require either the formal lodging of a complaint of torture under the procedure laid down in national law or an express statement of intent to bring a criminal case; it is enough for the victim simply to bring the facts to the attention of an authority of the State for the latter to be obliged to consider it a tacit but unequivocal expression of the victim’s wish that the facts should be promptly and impartially investigated, as prescribed by this article of the Convention. The Committee concludes that the facts of the present case also constitute a violation of article 13 of the Convention.

8.8Regarding 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 must cover all the harm suffered by the victim and encompass, among other measures, restitution, compensation and guarantees of non-repetition of the violations, taking into account the circumstances of each individual case. In the present case, in the absence of a prompt and impartial investigation, despite clear material evidence that the complainant had been the victim of acts of torture, which had gone unpunished, the Committee concludes that the State party also failed to fulfil its obligations under article 14 of the Convention.

9.The Committee, acting under article 22 (7) of the Convention, concludes that the facts before it reveal a violation by the State party of articles 2 (1) and 11–14, read in conjunction with article 1, of the Convention.

10.As the State party did not respect the interim measures requested by the Committee and did not respond to the Committee’s requests to submit its observations on the present complaint, thereby refusing to cooperate with the Committee and preventing it from considering the complaint effectively, 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.

11.The Committee urges the State party to: (a) initiate a thorough and impartial investigation into the incidents in question, in full conformity with the guidelines of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), with a view to bringing those responsible for the complainant’s treatment to justice; and (b) provide the complainant’s family with fair and adequate compensation.

12.Pursuant to rule 118 (5) of its rules of procedure, the Committee invites the State party to inform it, within 90 days of the date of transmittal of the present decision, of the steps it has taken to respond to the above observations.