Message: Abdulrahman Kabura v. Burundi. Message No. 549/2013. The decision was made by the Committee against Torture on November 11, 2016.
In 2013, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Burundi.
Subject of the message: the use of torture by police officers and the lack of investigation and compensation for the harm caused.
Substantive issue: torture and cruel, inhuman or degrading treatment; measures to prevent acts of torture; systematic monitoring of conditions of detention and methods of treatment of prisoners; obligation of the State party to ensure prompt and impartial investigation by competent authorities; right to file complaints; right to compensation; prohibition of the use of testimony during judicial proceedings received under torture.
The Committee's legal position: The Committee reminds the State party of its obligation under article 12 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (hereinafter referred to as the Convention), according to which, if there are sufficient grounds to believe that torture has been committed, it must ex officio.) a prompt and impartial investigation should be conducted (paragraph 7.4 of the Decision).
With regard to the author's claims under article 14 of the Convention, the Committee recalls that this provision not only recognizes the right to fair and adequate compensation, but also imposes an obligation on States parties to ensure that victims of torture receive appropriate compensation... [C] Reparation should cover the totality of the damage caused to the victim and include, among other measures, restitution, compensation, as well as measures designed to ensure that violations cannot be repeated, taking into account the circumstances of each case (paragraph 7.6 of the Decision) (See Communications No. 376/2009, Bendib v. Algeria, Judgment of 8 November 2013, and Niyonzima v. Burundi.).
The general thrust of the provisions of article 15 of the Convention is based on the absolute prohibition of torture and therefore implies the obligation of each State party to verify whether the statements used in the proceedings within its jurisdiction were obtained using torture (paragraph 7.7 of the Judgment) (See communications No. 419/2010, Ktiti v. Morocco, Judgment of 26 May 2011, paragraph 8.8, No. 193/2001, P.E. v. France, Judgment of November 21, 2002, paragraph 6.3, and Niyonzima v. Burundi, paragraph 8.7.).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the applicant's allegations that on 4 May 2007 he was arrested by agents of the National Intelligence Service (NSR) without a warrant and taken to the Service, where he was interrogated and forced to testify against the former Chairman of the National Council for the Defense of Democracy - Forces in defense of Democracy (hereinafter - CNDD-FDD) and admit that he himself tried to destabilize the party in power. The Committee also notes the testimony of the complainant, who stated that after he refused to admit his involvement, he was tortured for about four hours by officers and the deputy head of the NSR, who beat him with batons on various parts of his body, in particular on his back, face, feet and genitals, and squeezed his genitals with their hands and they connected a container with five liters of water to them with an electric wire, that he yielded to pressure and signed a confession of his involvement in attempts to destabilize the ruling party, that he had not received any medical care., that the torture caused him severe pain and suffering and that it was used intentionally in order to extract confessions. The Committee takes note of the evidence provided, including photographs and a medical report, which confirm the complainant's testimony, as well as the findings of the human rights associations that visited him during his detention. The Committee... Notes that the State party has not disputed the fact that State representatives were involved in the use of torture, and has not provided information or evidence to refute the complainant's testimony. In these circumstances, the Committee considers that the author's allegations should be treated with all seriousness and that the facts brought to its attention suggest that torture has occurred in the present case within the meaning of article 1 of the Convention (paragraph 7.2 of the Judgment) (See, for example, communication No. 514/2012, Niyonzima v. Burundi, Judgment, adopted on November 21, 2014.).
The Committee recalls its conclusions and recommendations, in which it urged the State party to take effective legislative, administrative and judicial measures to prevent any acts of torture and ill-treatment, as well as to take urgent measures to ensure that all places of detention are transferred to the jurisdiction of judicial authorities and that representatives of the State They could not commit acts of arbitrary detention or use torture. In view of the above, the Committee concludes that there has been a violation of article 2, paragraph 1, of the Convention, read in conjunction with article 1 of the Convention (paragraph 7.3 of the Judgment) (See communications No. 503/2012, Ntikarahera v. Burundi, Judgment of 12 May 2014, paragraph 6.3, and Niyonzima v. Burundi, paragraph 8.2.).
The complainant also refers to article 2, paragraph 1, of the Convention, according to which the State party must take effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction. In the present case, the Committee notes that the applicant was beaten and detained for 2 months and 20 days in four different locations (the NSR detention facility, the General Commissariat of Criminal Police, Gitega Prison, located more than 100 km from the applicant's home, and Mpimba Prison in Bujumbura) without the right to be visited by a lawyer or doctor. During his detention at the criminal police, the warden beat him with electric wires, striking him on various parts of his body (paragraph 7.3 of the Decision).
Turning to articles 12 and 13 of the Convention, the Committee takes note of the complainant's allegations, according to which he was detained without any legal grounds for the period from 4 to 17 May 2007, when he appeared before an investigating judge and was formally charged with attempted murder. Despite the fact that on 27 June 2007 the applicant filed a complaint with the Prosecutor of the Republic, with copies to the Prosecutor General of the Republic and the Prosecutor General of the Bujumbura Court of Appeal, that his complaint was supported by photographs and a medical report dated 12 June 2007, from which it follows that he was most likely subjected to torture, that this was known and a variety of subjects reported that on November 15, 2012, his lawyer filed a second complaint of torture, and no investigation had been conducted in the nine years since the events. The Committee considers that such a time limit is obviously difficult to justify. It also rejects the State party's argument that the lack of progress in the investigation was due to the applicant's unwillingness to cooperate while he was outside the country (paragraph 7.4 of the Decision).
By failing to comply with this obligation, the State party also failed to comply with its obligation under article 13 of the Convention, according to which it was obliged to guarantee the complainant the right to file a complaint, assuming that the authorities would respond appropriately to this complaint by conducting a prompt and impartial investigation (See Ntikarahera v. Burundi, paragraph 6.4.). In addition, the Committee notes that the complainant and his family have become the target of threats and that the State party has not taken any measures to protect the complainant after his release from prison so that he would not be intimidated by going to court. The State party has not provided any information that could refute this part of the communication. The Committee concludes that article 13 of the Convention has also been violated (paragraph 7.5 of the Judgment).
In the present case, the Commission takes into account the fact that, according to the applicant, he suffers from injuries and serious physical consequences of torture, and that, in particular, he cannot stand for more than an hour without experiencing severe back pain. At the same time, he was not offered any treatment or rehabilitation measures. The Committee considers that, in the absence of a prompt and impartial investigation, the complainant was deprived of the opportunity to exercise his right to compensation under article 14 of the Convention (paragraph 7.6 of the Judgment) (A similar approach can be found, for example, in the case of Niyonzima v. Burundi).
With regard to article 15 of the Convention, the Committee takes note of the complainant's allegations that the trial for attempted murder was initiated against him on the basis of statements he gave under duress, as evidenced by the results of a medical examination. The State party has not provided any arguments to refute this claim... In the present case, the Committee notes that the statements signed by the complainant under torture became the basis for the charges against him and for his detention for 2 months and 20 days (from 4 May to 27 July 2007); that the fact of his ill-treatment was confirmed by a medical report; that on 24 July 2007 the applicant was released from pre-trial detention due to lack of evidence; and that, through his lawyer, he tried, but unsuccessfully, to challenge the evidentiary value of the confessions he had given under torture. The Committee notes that the State party has not refuted any of these allegations and has not provided any information in its observations to the Committee either on this issue or on the termination of the case against the complainant. The Committee considers that even if the complainant was absent from the country, the State party had an obligation to verify the validity of his claims that his confessions were obtained under torture and that, having failed to carry out such verification and using the evidence obtained in this way in the criminal case initiated against the complainant, during which he was released from prison.-In pre-trial detention, the State party violated its obligations under article 15 of the Convention (paragraph 7.7 of the Judgment).
With regard to the complaint of a violation of article 16 [of the Convention], the Committee takes note of the applicant's allegations that he was held for 17 days with ten other detainees in a 12-square-foot cell at the Main Criminal Police Station. m without windows and without light, without water, food and medical care. In order to survive, he was forced to drink water from the toilet and sleep on the floor in unsanitary conditions; despite his request and his alarming state of health, he did not have access to a doctor until June 12, 2007. The applicant also claims that on 3 July 2007 he was transferred to Mpimba Prison, which is notorious for its appalling unsanitary conditions and constant overcrowding. In addition, according to the applicant, the apparent absence of any monitoring mechanisms for conditions in the NSR detention facility, Gitega Central Prison and Mpimba prison, where he was detained, undoubtedly exposed him to an increased risk of torture. In the absence of any constructive information from the State party on this issue, the Committee concludes that the facts before it indicate a violation by the State party of its obligations under article 16 [of the Convention], read in conjunction with article 11 of the Convention (paragraph 7.8 of the Judgment) (See Ntikaraera v. Burundi, paragraph 6.6.).
The Committee's conclusions: The Committee against Torture considers that the facts before it disclose a violation of article 2, paragraph 1, of the Convention, read in conjunction with articles 1, 12, 13, 14, 15 and 16 [of the Convention], as well as additionally in conjunction with article 11 of the Convention (paragraph 8 of the Judgment).