Judicial Body: UN Working Group on Arbitrary Detention

Mr Pierre-Claver Mbonimpa is a prominent defender of human rights in Burundi. In May 2014, he publicly spoke out against the Burundian government’s policy of recruiting and training youths aligned with the party, who go by the name of “Imbonerakure” and are often accused of abuse perpetrated against civilians (pillage, violence, etc.). The day after taking this stance, Mr Mbonimpa was called in by the judicial police and answered their questions as best he could, sharing the information that he had gathered for his research.

A few days later, while he was getting ready to leave Burundi for work, Mr Mbonimpa was arrested at Bujumbura airport and spent the night in custody. The following day, he was charged with undermining the State’s domestic and international security because of statements made about the “Imbonerakure”. The Regional Court and the Court of Appeal of Bujumbura decided to hold Mr Mbonimpa in detention, accusing him of spreading misleading information, of exposing the country to hostile acts from another State, and of stating inaccurate facts.

It gradually became clear that Mr Mbonimpa’s detention resulted from his work as a defender of human rights and from the expression of his opinions. Numerous NGOs such as Human Rights Watch, Amnesty international, Frontline Defenders and the Observatory for the Protection of Human Rights Defenders called for Mr Mbonimpa’s release.

On 22 May 2014, TRIAL International filed a petition before the United Nations Working Group on Arbitrary Detention on the victim’s behalf. The group handed down an urgent decision on this case, demanding that Mr Mbonimpa be released immediately and that reparations be afforded to him.

 

Watch the testimony of Pierre-Claver Mbonimpa

 

On 17 December 2014, agents of the National Intelligence Agency (ANR) arrested F. at his home, without any arrest warrant. He was immediately locked up in an ANR solitary confinement cell and tortured over a long period of time to make him “confess” to stealing a large sum of money from his former associate, who happened to be very close to the ANR Commander. Despite maintaining that he was innocent, F. was kept in solitary confinement for nearly a month.

He was then transferred to the central prison of Bukavu and placed under preventive detention by the court. Over the course of this period, many of his fundamental rights were violated: his right to have access to a lawyer, to be informed of the grounds for his arrest or to be heard before a competent authority. He was also denied care, water and food, as well as any outside visits. His lawyer’s efforts to have him released were in vain.

In the months that followed, a blatant campaign to intimidate F.’s family ensued: arbitrary detention and arrest, threats, physical assaults, etc. Since then, F. and his family have been living in fear of reprisals.

Besides the actions taken at national level, TRIAL International assisted F. to file a complaint before the Working Group on Arbitrary Detention. In September 2015, the latter acknowledged the arbitrary nature of F.’s detention and the acts of torture committed by the ANR agents. TRIAL International also filed a complaint before the Human Rights Committee, demanding that the perpetrators be punished, that the violations committed against the victim be acknowledged and that some kind of reparation be afforded to him. The proceedings are ongoing.

This case is particularly representative of the violations committed by ANR agents in the DRC, who enjoy considerable impunity.

 

Fred Bauma is one of the most prominent figures of the LUCHA (standing for Lutte pour le Changement, the Fight for Change), a well-known NGO demanding democratic change in DRC.

In March 2015, Fred was arrested by State agents during a peaceful demonstration in Kinshasa. Accused of inciting violence and rebellion, he was immediately placed in detention.

TRIAL International brought the case before the United Nations Working Group on Arbitrary Detention, which in October 2015 declared his detention illegal and condemned the violations committed against him.

Read the full decision (in French)

Despite the group’s recommendations, the Congolese authorities remained inflexible and arbitrarily detained Fred for over a year.

In August 2016, the young activist was released following a Supreme Court order, but the charges against him are still pending.

 

A symbol of political persecution

The arbitrary nature of Fred’s arrest, the abuse he has suffered and the secret nature of his detention are serious violations of the most fundamental human rights.

More generally, Fred Bauma became a symbol of the violence committed with total impunity against human rights defenders in DRC. Just like TRIAL International, many international actors sided with him and fought for his release.

 

Facts

In October 2013, TRIAL and the NGO Stichting Russian Justice Initiative, submitted a communication to the UN Human Rights Committee on behalf of Mr. Tamerlan Yashuyev, Mr. Khamit Barakhayev, Mr. Rizvan Taysumov, Mr. Salman Temirbulatov, Mr. Arzu Yusupov, and Mr. Magamed Alarkanov.

The six men were arrested in different cities of Chechnya and Dagestan, between September 2004 and February 2005, by security agents respectively members of:

– the Kadyrovtsy pro-Moscow Chechen forces under the effective command of Ramzan Kadyrov, Prime Minister of the Chechen Republic at that time;

– the Operational Investigative Bureau (ORB);

– the city police of Khasavyurt.

They were kept in unacknowledged and incommunicado detention for periods varying between three and 25 days, during which they had no contact with the outside world and were placed outside the protection of the law. All the six men were subjected to torture and severe ill-treatment by State agents to extract confessions of their involvement in terrorist activities.

Later on, the six men were prosecuted and found guilty of several counts related to terrorist attacks. Their confessions obtained through torture were invoked and considered as valid evidence during the proceedings.

Despite the complaints filed by the six men, Russian authorities did not carry out a prompt, independent, impartial, effective and thorough investigation.

To date, no one has been sanctioned for the torture inflicted to the six authors of the complaint, who are currently held in different high security prisons in the Russian Federation.

The six authors of the complaint request the Human Rights Committee:

– to find that they are victims of a violation of Art. 7 (prohibition of torture), read alone and in conjunction with Art. 2, para. 3 (right to an effective remedy), of theInternational Covenant on Civil and Political Rights, because of the torture and ill-treatment they have been subjected to and the failure of Russian authorities to carry out an independent, impartial, thorough and effective investigation on their allegations and to judge and sanction those responsible;

– to find that they are victims of a violation of Art. 9, paras. 1, 2, 3 and 4 (right to personal liberty and security) of the Covenant, because they were subjected to arbitrary arrest and detention; they were not informed, at the time of arrest, of the reasons for their respective arrest nor were they promptly informed of the charges against them; and they were not brought promptly before a judge or other officer authorized by law to exercise judicial power;

– to find that they are also victims of a violation of Art. 14, paras. 2, 3 (a), 3 (b) and 3 (g), of the Covenant (right to fair trial), because they were not presumed innocent until proved guilty according to law; they were not informed promptly and in detail in a language which they understand of the nature and cause of the charges against them; and they did not have adequate time and facilities for the preparation of their defence and to communicate with their respective counsels. Moreover, they were all compelled to testify against themselves and to confess guilt;

– to request the Russian Federation to promptly and effectively investigate and prosecute and sanction those responsible for their torture; to carry out without delay a new trial, ensuring that they can fully enjoy their right to a fair trial; and to ensure that they receive adequate compensation for the harm suffered and integral reparation, including restitution, rehabilitation, satisfaction and guarantees of non-repetition.

On 11 May 2020, the Human Rights Committee gave a positive decision in the case. Russian authorities must now provide the victims with an effective remedy, including the conduct of an investigation, full redress and taking all steps necessary to prevent similar violations from occurring in the future.

The General Context

In Chechnya and North Caucasus, unlawful detentions and torture are widespread practices mainly aimed at coercing confessions from persons deprived of liberty, and leading to court convictions. Members of the Kadyrovtsy and of the former Second Operational Investigative Bureau (ORB-2) are responsible for the abuses in many of these cases. But to date, perpetrators of these crimes enjoy almost complete impunity.

 

Civil society seeks justice for the first time before the African Commission for cases of extrajudicial killings that remained unpunished before the national judicial authorities. NGOs have submitted four complaints to the African Commission on Human and Peoples’ Rights. These include several cases of extrajudicial killings committed between 2010 and 2012.

Several extrajudicial killings mainly targeting political opponents have been committed in Burundi between 2010 and 2012. Such violations of the right to life which occurred outside the scope of any legal proceedings and involved State agents (referring here to the internationally accepted definition of extrajudicial killings) still remain largely unpunished. In this context, a group of NGOs composed of ACAT-Burundi, APRODH,FOCODE, FORSC and TRIAL and supported by Human Rights Watch submitted four complaints to the African Commission regarding the extrajudicial killings perpetrated against:

  • Mr. Jackson Ndikuriyo, found dead on August 27, 2010, near the Police station of Musigati, in the province of Bubanza, after being arrested by the police. He had been the subject of death threats emanating from State agents which intensified in the months leading up to his execution.
  • Mr. Audace Vianney Habonarugira, found dead on July 15, 2011 on the hill of Gasamanzuki in the town of Isare, province of Bujumbura rural, after being the target of an attempted assassination in March 2011 and receiving death threats orchestrated by state agents during several months.
  • Mr. Médard Ndayishimiye found dead on October 7, 2011 in the province of Rutana after being kidnapped and severely beaten in Gitega. His body showed signs of torture. He had been intensively harassed by police officers and had received death threats from State agents during the months prior to his execution.
  • Mr. Jean-Claude Ndimumahoro, found beheaded on July 3, 2012 in the town of Bugarama, province of Muramvya, after being detained for several days by the intelligence services in Gitega. He had been the subject of intense persecution and death threats by State agents in the months before his execution.

On behalf of the victims, the civil society seeks justice for the first time before the African Commission for cases of extrajudicial killings that remained unpunished before the national judicial authorities.

In light of the commemoration of the fifth anniversary of the assassination of the anti-corruption activist Ernest Manirumva on April 9, it is all the more necessary to continue the fight against impunity for such human rights violations in order to prevent crimes of this gravity to be committed again and preserve the hard-won peace in Burundi.

These NGOs have formally requested the African Commission to adopt provisional measures to protect the families of victims, witnesses and their supporters. The NGOs also urge the Burundian authorities to duly assume their responsibilities in protecting these people and respect their rights.

Since November 2011, fourteen cases revealing serious human rights violations in Burundi have been submitted to UN treaty-bodies protecting human rights, namely to the Committee against Torture and the Working Group on Arbitrary Detention, due to the passivity of the national judicial authorities to examine the victims’ allegations. While eleven cases are still pending before the Committee against Torture, the Working Group on Arbitrary Detention has already held in 2012 that the detention of Mr. François Nyamoya was arbitrary, thereby requiring that he be afforded a compensation and that other restrictions to his freedom of movement be lifted.

 

Update: Two complaints have been declared admissible by the African Commission on Human and Peoples’ Rights: the case concerning Mr. Médard Ndayishimiye in 2016 and the case concerning Mr. Jackson Ndikuriyo in 2018.

On December 11, 2013, TRIAL completed its first training program in Burundi on how to submit individual complaints before the UN treaty bodies. The eight lawyers and Human Rights defenders who graduated from this 15-month long training received their training diploma during an event organised in their honour with the support of the Human Rights and Justice Section of the United Nation Office in Burundi (BNUB).

This practical and demanding training began in June 2012, and enabled participants to develop a keen understanding of the various procedures before the UN bodies dealing with Human Rights protection. These Human Rights defenders prepared and drafted real cases concerning 24 victims for submission before the UN Committee against Torture and the UN Working Group on Arbitrary Detention.RTEmagicC_Burundi-formation_02.png

It is the first time ever that lawyers and Human Rights defenders from Burundi undertake legal proceedings before UN bodies. Backed by their knowledge of these procedures, they now represent the new legal forefront of those taking up the defence of victims of human rights violations.

Attorney Janvier Bigirimana, one of the training graduates, explained that “this training essentially contributed to strengthen national capacity to give Burundi new impetus in the fight against human rights violations.”

Orlane Varesano, TRIAL legal advisor in charge of TRIAL’s Burundi program declared: “this training represented a unique opportunity to convey expertise in victims’ defence through a practical and dynamic approach. The program required a significant commitment on the part of TRIAL but it was really needed. The encouraging results have prompted us to continue our efforts in this direction.”

The President of the Independent National Commission on Human Rights (CNIDH), the Representative of the UN High Commissioner for Human Rights in Burundi and Head of the Human Rights Section of the Justice from the BNUB – who opened the ceremony – the representatives of the diplomatic corps but also members of the Burundian civil society were all present to greet the participants’ successful involvement in the training program in the fight against impunity of serious human rights violations.

The first cases ever brought against Burundi to the UN Committee against Torture were recently submitted by TRIAL. Already seven victims of torture and arbitrary detention have, with the support of TRIAL, handed their case to the UN to seek justice. In Burundi, TRIAL also works to strengthen the civil society capacities by organising training courses for lawyers and NGO representatives.

Despite the end of the civil war in Burundi, serious violations of human rights such as torture and extrajudicial executions are still regularly documented in the country and access to justice remains difficult for victims. The persistent impunity observed for the most serious crimes is a sign that the judicial system in Burundi needs to be strengthened.

The voice of the victims: “For hours, they beat me violently over my entire body with different objects. The pipes with which they beat my lower back seem to cut in half my body covered in blood. I seised the Committee against Torture in the hope of getting justice. I also want to be the spokesperson of the other victims of torture to end this scourge and to fight against impunity”.Concerning the legal trainingprovided by TRIAL, a local attorney voices his position: “The training provided by TRIAL to Burundian lawyers and human rights defenders is a rare opportunity to be informed, trained, and take concretely part in the fight against torture. After this valuable training, I am convinced that TRIAL contributes effectively to building the national capacities that are necessary to provide Burundi with a new momentum in the fight against human rights violations in general and torture in particular”.

At the request of a Burundian NGO, in 2011 TRIAL launched a project in this country in order to enable victims of torture and other crimes to assert their rights and obtain redress for their suffering. To this aim, TRIAL offers free legal support to victims of human rights violations, whose cases haven’t been handled in an effective manner by national courts, by submitting complaints on their behalf to the UN Committee against Torture (CAT), the Working Group of the United Nations on Arbitrary Detention (WGAD) and other international mechanisms for human rights protection. Within the framework of this project, TRIAL is currently representing seven victims before those institutions, six victims of torture before the CAT and one victim of arbitrary detention before the WGAD. With the support of TRIAL, other victims will shortly file their complaints to obtain justice before these bodies.

Moreover, TRIAL works for the strengthening of the capacity of Burundian civil society, lawyers and NGOs by organising legal trainings on international human rights law and the submission of complaints before international mechanisms for the protection of human rights.

In doing so, TRIAL’s project aims at reinforcing the rule of law in Burundi and in particular its judicial system by identifying shortcomings and by working towards an effective respect of international human rights law by Burundi. As part of the review of the situation in Burundi by international human rights mechanisms, such as the Human Rights Council, TRIAL submits concrete recommendations aiming in particular at strengthening the judicial system and improving the legal and institutional framework necessary for the fight against impunity.

For more informations in the media:

In April 2012, TRIAL and 9 local associations working with former camp detainees from all sides, submitted a report (called ‘general allegation’ in the UN jargon) to the Special Rapporteur on Torture and other Cruel, Inhumane and Degrading Treatment or Punishment and the Working Group on Arbitrary Detention in order to highlight the remaining obstacles preventing Bosnia and Herzegovina’s full implementation of international obligations in regards to the issue of former camp detainees.