Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 795/2017*,**

Communication submitted by:N.N. (represented by counsel, TRIAL International)

Alleged victim:The complainant

State party:Burundi

Date of complaint:19 December 2016 (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 10 January 2017 (not issued in document form)

Date of adoption of decision:15 July 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; reparation

Articles of the Convention:2 (1) and 11–14, read in conjunction with articles 1 and 16, and 16

1.1The complainant is N.N., a national of Burundi born in 1970. He claims that the State party has violated his rights under articles 2 (1) and 11 to 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 provided for in article 22 (1) of the Convention on 10 June 2003. The complainant is represented by counsel from TRIAL International.

1.2On 10 January 2017, pursuant to rule 114 (1) of its rules of procedure, the Committee requested the State party to effectively prevent, while the case was under consideration, any threat or act of violence to which the complainant and his family might be exposed, in particular as a result of the submission of the present complaint, and to keep the Committee informed of the measures adopted to that end.

Facts as submitted by the complainant

2.1On 8 March 2014, the complainant was arrested as he was attempting to flee from a police attack on the headquarters of his political party, the Mouvement pour la solidarité et la démocratie. He 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 without warrants managed to infiltrate the offices of the party headquarters but were disarmed and overpowered by party activists. Subsequently, other police officers threw tear gas canisters. As he was asthmatic, the complainant quickly shut himself inside an office to avoid contact with the gas. 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 party members and the police failed. The police then launched an attack on the headquarters and the party members began to run in all directions.

2.2The complainant walked out towards a terrace and saw that there were police officers all over the headquarters. He then raised his hands in the air and begged three police officers pointing firearms at him not to kill him. One of the three recognized him as a party spokesperson and shot him. The complainant fell to the ground and began to bleed because the bullet had hit his left hand between the thumb and index finger. Then, the police officer who had shot him moved away, while the other two began to beat him, hitting him all over his body with the butts and barrels of their rifles. When the two police officers saw that he was covered in blood, they moved away, probably believing that he was dead. The complainant then slowly moved towards the entrance of the headquarters to look for help, at which point one of the police officers who had beaten him saw that he was not dead and alerted the other police officers. Two more police officers then whipped him all over his body. The police officers prevented the Burundi Red Cross personnel who were present from providing treatment to the complainant while he was at the party headquarters.

2.3The complainant was then arrested while covered in blood and, instead of being taken to the medical service, was driven with three other injured persons to the National Intelligence Service, where he was forced to lie on the floor and was interrogated and insulted. He stayed there for more than four hours without medical assistance, despite the fact that he had been injured by a bullet and violently beaten. At approximately 10 p.m., following lobbying by some human rights defenders, the complainant was finally taken to the Prince Louis Rwagasore clinic. On 9 March 2014, at around 10 a.m., the police allowed family members of the injured persons to see their relatives for a short while, under the supervision of a police superintendent. On 10 March 2014, the complainant was taken to the radiology department for some X-rays, under police guard. The care provided by the nurses was inadequate because they were afraid of the police officers. Only the complainant’s left hand and two wounds on his right leg, which had been inflicted when he was struck with rifle barrels, were treated. The complainant was also given painkillers. Despite requests made on 30 March and 15 December 2015, the complainant never received a copy of his medical records.

2.4On 15 April 2014, the complainant was taken to the Public Prosecutor’s Office of Bujumbura, based on an arrest warrant issued the same day. He was questioned there in the presence of his lawyers. Then, despite his poor health, he was detained for five hours in a windowless cellar measuring 4 m by 6 m with some twenty other persons. He was not given any food or allowed to contact anyone.

2.5The complainant was then incarcerated at Mpimba central prison, where he received no medical care. However, his family tried to bring him medicines during the few visits that were allowed. On several occasions, he asked for permission to undergo physiotherapy, but this was refused, despite the fact that he had a prescription from the prison doctor for a post-trauma examination of his hand to assess the mobility of his wrist and the appearance of the scar. In the end, the complainant was able to receive such treatment only once. Moreover, the detention conditions of the complainant at Mpimba prison were deplorable. The food was insufficient and of poor quality, which, together with the overcrowding in the prison, was conducive to the spread of diseases.

2.6On 11 March 2016, the Bujumbura tribunal de grande instance (court of major jurisdiction) sentenced the complainant to 6 years and 4 months’ imprisonment for violent resistance to representatives of authority, insults and violence against the police and intentional serious bodily harm.

2.7On 5 September 2016, the complainant was transferred to Rumonge prison with 13 other prisoners. All of them were removed from Mpimba prison by police officers who, based on a list they had on them, separated the prisoners out and took them to Rumonge without informing anyone. Most of the transferred prisoners were members of the Mouvement pour la solidarité et la démocratie who had been arrested at the demonstration of 8 March 2014. Moreover, the complainant’s spouse, also a member of the party, was arrested on 13 December 2015 and detained in Mpimba prison because she had refused to denounce her husband.

2.8The complainant remained in Rumonge prison until 5 August 2017, when he was transferred back to Mpimba central prison. The previous day, together with other prisoners at Rumonge prison, the complainant had been violently beaten by police officers and members of the Imbonerakure. In January 2018, the complainant was pardoned and his release was scheduled for 16 March 2018. However, at the ceremony for the release of prisoners, the complainant was apprehended by guards, who prevented him from taking part in it, confiscated his certificate of discharge from prison and reincarcerated him. He is currently still in Mpimba central prison.

2.9The complainant reported the torture he had suffered during the proceedings brought against him and in a formal complaint lodged on 14 March 2014 with the Bujumbura Public Prosecutor’s Office on behalf of the complainant and the other members of the Mouvement pour la solidarité et la démocratie who had suffered the same treatment. Despite numerous representations, the authorities did not follow up on the reports. No investigation was conducted by the Burundian authorities and the complainant was never heard or even summoned for an interview about the acts of torture to which he had been subjected, even though they were widely known. The case involving the complainant received much media attention both nationally and internationally. Moreover, although the perpetrators were expressly identified in the complaint, they have never been punished by the State party.

2.10Besides the authorities’ clear refusal to establish liabilities 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 its concern about the judiciary’s de facto dependence on the executive. Subsequently, in its concluding observations on the second periodic report of Burundi, adopted in November 2014, the Committee expressed concern about the slow pace and limited scope of the investigations and prosecutions, which would appear to corroborate claims that impunity is enjoyed by the perpetrators of acts of torture and extrajudicial killings, including those involving the Burundian National Police and the National Intelligence Service. Lastly, in its concluding observations of August 2016 on the special report of Burundi, the Committee once again expressed its concern about the increase in acts of torture and urged Burundi to put an end to impunity and ensure that all cases and allegations of torture or ill-treatment, including those committed by persons occupying positions of authority, were promptly investigated in an effective and impartial manner.

2.11The complainant therefore argues that he gained no satisfaction from the available domestic remedies as the authorities did not open a prompt and impartial investigation into his claims and that it was dangerous for him to take further steps because he was at risk of reprisals owing to his transfer from Mpimba prison to Rumonge prison, where his life was at risk, and also owing to the detention of his spouse and the threats received by his lawyers.

Complaint

3.1The complainant claims that the State party has violated his rights under articles 2 (1) and 11 to 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 abuse to which he was subjected caused him severe pain and suffering, with a lingering impact on his physical and psychological health. Among the after-effects of the torture he suffered in March 2014, he still has no feeling between the thumb and index finger of his left hand in the place where he was hit by a bullet, and he suffers from pain in his legs and back and can only stand up properly with great effort. He still has many visible scars on his legs and back. The aim of the police officers who shot him and violently beat him was to cause him such suffering. What is more, he 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 he clearly needed, he was taken to the National Intelligence Service to be interrogated. These acts of torture, inflicted by members of the national police, were aimed at intimidating, punishing and putting pressure on him because of his political affiliation. The complainant maintains that this abuse constituted acts of torture within the meaning of article 1 of the Convention.

3.3The complainant, invoking article 2 (1) of the Convention, submits that the State party failed to take effective measures to prevent acts of torture under its jurisdiction. In particular, State actors such as police officers and officers of the National Intelligence Service directly participated in the commission of acts constituting torture. Moreover, on 8 March 2014 and throughout his detention, the complainant did not receive appropriate medical care. Secondly, despite the reports and a formal complaint submitted by the complainant, the State failed to fulfil its obligation to investigate the torture that was inflicted on him and to bring those responsible to justice. 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 referring to the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), the complainant argues that the State party has clearly failed in its obligation to keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment. Among other things, this is shown by the fact that, despite his critical condition at the time of his arrest, no measure was in place to ensure that he had prompt access to medical assistance, that he was not immediately informed of the charges against him, that he did not enjoy effective remedies to challenge the treatment he had undergone and that he was detained in deplorable conditions first at Mpimba prison and then at Rumonge prison, despite his critical state of health and the lack of appropriate medical care.

3.5Furthermore, the complainant submits that, although the Burundian authorities were informed of the torture to which he had been subjected, through a complaint lodged on 14 March 2014, they did not conduct a prompt and effective investigation into the allegations of torture, in violation of the obligations imposed on the State party by article 12 of the Convention. He also alleges that the State party did not respect his right to complain to, and to have his case promptly and impartially examined by, its competent authorities, in breach of its obligations under article 13 of the Convention.

3.6With regard to article 14 of the Convention, the complainant considers that, by failing to conduct a criminal investigation, the State party has also deprived him of his right to obtain redress and his right to fair and adequate compensation. In this regard, following the torture to which he was subjected, he did not receive rehabilitation assistance of any kind or the means necessary for the fullest possible rehabilitation, as provided for by article 14. 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. In 2014, the Committee expressed its concern specifically about the failure to apply the provisions of the Criminal Code establishing compensation for victims of torture, in violation of article 14 of the Convention; in 2016 it reiterated its concerns about the need to guarantee adequate compensation in accordance with article 14.

3.7The complainant repeats that the violent acts inflicted on him constitute torture, in accordance with the definition in article 1 of the Convention. Should the Committee not agree to qualify it as such, he maintains that the abuse he endured constitutes cruel, inhuman or degrading treatment and that, on this 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, he recalls the conditions of detention imposed on him in the National Intelligence Service cells, in the Bujumbura Public Prosecutor’s Office, at Mpimba central prison and at Rumonge prison. The complainant refers again to the Committee’s concluding observations on the reports submitted by Burundi under article 19 of the Convention, in which it has noted that conditions of detention in Burundi amount to inhuman and degrading treatment. Lastly, the complainant recalls that he received no medical treatment while in detention, despite being in critical condition, and therefore concludes that the conditions of detention he experienced constitute a violation of article 16 of the Convention.

Issues and proceedings before the Committee

Lack of cooperation by the State party

4.On 10 January 2017, 10 July 2019, 17 December 2020, 19 January 2022 and 28 April 2022, 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.

Consideration of admissibility

5.1Before 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.

5.2The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it will not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes that, in the present case, the State party has not contested that the complainant has exhausted all available domestic remedies. The Committee therefore finds that it is not precluded from considering the communication under article 22 (5) (b) of the Convention.

5.3In 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 to 14 and 16 of the Convention.

Consideration of the merits

6.1The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention. 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.

6.2The Committee notes the complainant’s claim that he was injured by a bullet shot by the police and then beaten by police officers, who violently struck him all over his body with the butts of their rifles and their whips. 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 while he was bleeding from the hand and from other parts of his body that had been damaged during the police beatings; (b) the police officers did not allow Burundi Red Cross personnel to provide the complainant with medical assistance; (c) instead of being taken to hospital, the complainant was taken to the National Intelligence Service, where he was forced to lie on the floor, interrogated and insulted; and (d) it was only as a result of pressure from human rights defenders that the complainant was taken to hospital. The Committee likewise takes note of the complainant’s claims that the blows he received caused him extreme pain and suffering, including physical and psychological suffering, and were reportedly deliberately inflicted by agents of the State with the objective of punishing and intimidating him. The Committee also notes that these claims 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.

6.3The Committee takes note of the complainant’s claims based on article 2 (1) of the Convention and recalls its conclusions and recommendations in respect of the reports submitted by Burundi under article 19 of the Convention, 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 to prevent its officials from making arbitrary arrests and engaging in torture. In the present case, the Committee takes note of the complainant’s claims that he was injured by a bullet and 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 month, leaving him effectively outside the protection of the law. The Committee also notes that the State party did not take any measures to protect the complainant until human rights defenders intervened to support him. 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 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, has been violated. In particular, the complainant claims that: (a) despite his critical condition at the time of arrest, he did not receive appropriate medical care; (b) he was not given access to a lawyer until more than one month after his arrest, including during the interrogation on the premises of the National Intelligence Service on 8 March 2014; (c) he was arrested without being informed of the charges against him; (d) he did not have effective remedies to challenge the acts of torture; and (e) he was detained in “deplorable conditions”, first at Mpimba prison and then at Rumonge prison, despite his critical state of health. 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 can be held in police custody, numerous instances in which the permissible duration of police custody has been exceeded, failures to keep registers on persons in custody or 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 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.

6.5Regarding articles 12 and 13 of the Convention, the Committee takes note of the complainant’s claims that, although he filed a complaint on 14 March 2014 with the Bujumbura Public Prosecutor for acts of torture to which he had been subjected on 8 March 2014, no investigation has been conducted. 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.

6.6In the same way, the State party failed to meet its obligation, under article 13 of the Convention, to uphold the complainant’s right to complain to, and to have his case promptly and impartially examined by, its competent authorities. 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 recognizes the right to fair and adequate compensation, including the means for the fullest possible rehabilitation. 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, given the absence of a prompt and impartial investigation despite clear material evidence that the complainant was a victim of acts of torture, which have gone unpunished, and the fact that any attempt to obtain reparation through a civil suit for damages would have no realistic prospect of success, the Committee concludes that the State party has failed to meet its obligations under article 14 of the Convention.

6.8Regarding the claim under article 16 of the Convention, the Committee takes note of the complainant’s claims about the detention conditions in Mpimba central prison and Rumonge prison. In the absence of any relevant information from the State party in this regard, the Committee concludes that the information provided shows that the conditions constitute inhuman and degrading treatment and discloses 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 reveal a violation by the State party of articles 2 (1) and 11 to 14, read in conjunction with article 1, and of article 16 of the Convention.

8.As the State party has failed to respond to the Committee’s requests to submit observations on the present 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, is of the view that the State party’s decision to refuse to cooperate with the Committee and resulting hindrance to the Committee’s ability to effectively consider the elements of the communication constitute a violation by the State party of article 22 of the Convention. The Committee deeply regrets that the State party has not responded to the Committee’s repeated requests to submit observations on the present communication, which hindered the Committee’s consideration of the case and the resolution of the issues raised by the communication under the Convention. The Committee further regrets that the failure to respond to the Committee’s requests fits into a consistent pattern of a lack of cooperation with the Committee in other cases. The lack of response in this and other cases is interfering with the Committee’s capacity to discharge its responsibilities in considering individual communications and constitutes a clear, repeated and flagrant violation of the State party’s obligations under article 22 of the Convention.

9.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; (b) provide the complainant with fair and adequate compensation, including the means for the fullest rehabilitation possible; (c) allow the complainant to receive legal assistance from the lawyer of his choice; (d) allow the complainant to be examined by a doctor of his choice; (e) allow the complainant to have access to appropriate health care; (f) grant the complainant and his representative access to all the documents relating to the judicial proceedings against him, including all previous court decisions; and (g) ensure that no similar violations occur in the future.

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