Déogratias Niyonzima v. Burundi

Communication No. 514/2012; U.N. Doc. CAT/C/53/D/514/2012
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Niyonzima was secretary general of the Peoples Reconciliation Party in Burundi. On August 1, 2006 Niyonzima was arrested outside his home by 20 armed police men. No reason was given for his arrest. Niyonzima was taken first to the National Intelligence Service and then back to his home. His home was searched and items were seized.

Niyonzima was taken back to the Intelligence Service offices. He was questioned about what his involvement had been regarding planning a coup d’état and a plot to assassinate the president of Burundi, Pierre Nkurnuziza. He was threatened and told he would be beaten. Niyonzima responded that he did not know anything about a coup d’état or planned assassination.  He was taken into a small room and beaten with steel chains, iron bars, and other instruments by six officers.  He was beaten so hard that he bled all over and nearly passed out.  When the questioning resumed, Niyonzima said that he knew nothing and was beaten again and given a stone which was forcibly placed in his mouth to stifle his cries. He admitted to his involvement in the planning of a coup d’état when the officers threatened to put the stone in a bag of excrement and then back in his mouth.

The three-hour beating was filmed by an intelligence officer. After his confession, Niyonzima was moved to a cell with 16 other prisoners who had all been tortured. There were no washing facilities in the cell.

On the evening of his arrest, Niyonzima received a visit from his wife and his lawyer as a result of an error by the prison warden. His wife was able to see the signs of torture and consequently alerted the media and human rights organizations. On 2nd of August the Complainant’s lawyer was arrested and also subjected to torture.

Niyonzima was held in a cell for one week and then charged with involvement in a coup d’état and transferred to prison. Despite requests, he was not allowed to see a doctor. He was held in prison for 5 months in appalling conditions. He was acquitted of the attempted coup d’état for lack of evidence on 16th January 2007. The day after his release, Niyonzima and his family received death threats. He fled to Kenya in February 2007 and then moved to the United States with his family as refugees.

Niyonzima filed a complaint alleging violations of articles 2, 11, 12, 13, 14, and 15, read in conjunction with Article 1, of the Convention against Torture.

The Committee held that Niyonzima had been subject to torture within the meaning of article 1 of the Convention against Torture (Convention).

The Committee further held that to the delay in starting an investigation into allegations of torture was clearly unjustified and constituted a breach of article 12 of the Convention.

The Committee found that the state of Burundi did not have effective measures for the prevention of torture, in breach of article 2 of the Convention.

The Committee also found that the state of Burundi did not provide a right of Niyonzima to file a complaint or receive redress for his suffering, in breach of articles  13 and 14 of the Convention.

The Committee urged the State of Burundi to launch an impartial investigation  into the acts in question with a view to bringing those involved to justice and to inform it within 90 days of the steps taken, including to allow for full compensation for Niyonzima.

“As to articles 12 and 13 of the Convention, the Committee has taken note of the complainant’s claims that he was detained without legal grounds from 1 to 9 August 2006, when he was brought before the public prosecutor and formally charged with involvement in a coup d’état. Notwithstanding the fact that he filed a complaint on 17 August 2006 with the Attorney General’s Office, that the complaint was supported by a medical certificate from a government doctor stating that he had probably been subjected to torture (para. 2.13) and that the facts were widely known and reported by various people, including a Minister of the Government of the State party (paras. 2.19 and 2.20), no investigation has been carried out, more than eight years after the events. The Committee considers that to delay so long before opening an investigation into allegations of torture is clearly unjustified. It also rejects the State party’s argument that the lack of progress in the investigation can be put down to a lack of cooperation on the part of the complainant, who is not in the country. The Committee recalls the State party’s obligation under article 12 of the Convention to proceed automatically to a prompt and impartial investigation wherever there is reasonable ground to believe that an act of torture has been committed. In this respect, the Committee finds a violation of article 12 of the Convention.” Para. 8.4.

“With regard to article 15, the Committee has noted the complainant’s claim that the judicial proceedings against him for an attempted coup d’état were brought on the basis of confessions that were extracted from him under torture, as certified by a medical examination. The State party has provided no argument to counter this claim. The Committee recalls that the general nature of the provisions of article 15 derives from the absolute nature of the prohibition of torture and therefore implies an obligation for any State party to verify that statements included in a proceeding under its jurisdiction were not made under torture.24 In this case, the Committee notes that, according to the complainant, the statements that he signed under torture served as the grounds for the charges against him and as justification for keeping him in detention for more than 5 months (from 1 August 2006 to 16 January 2007); that the ill-treatment was confirmed in an expert examination by a government doctor with a mandate from the investigating judge; that the complainant was acquitted on 15 January 2007 for lack of material evidence (para. 2.15); and that, through his counsel, he has disputed the probative value of the confession signed under torture at each stage of the proceedings against him, without success. The Committee notes that the State party has neither refuted any of these allegations nor included any information on this question in its observations to the Committee. The Committee considers that the State party was under an obligation to verify the substance of the author’s claims that his confessions had been obtained under torture, and that by not carrying out such verification and by using those confessions in the judicial proceedings against the complainant, in which he was eventually acquitted, the State party violated its obligations under article 15 of the Convention.” Para. 8.7.