The complainant is André-Palice Ndimurukundo, a national of Burundi born in 1970. He claims that his brother, Pascal Ndimurukundo, born in 1973, also a national of Burundi, is a victim of enforced disappearance attributable to the State Party, in violation of articles 2 (1) and 11 to 14, read in conjunction with article 1 or, in the alternative, with article 16 of the Convention. The complainant also claims that he himself is a victim of a violation of his rights under articles 12 to 14, read in conjunction with article 1 or, in the alternative, article 16 of the Convention. 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.
On 22 January 2020, 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, his brother, Pascal Ndimurukundo, and their family might be exposed, in particular as a result of the submission of the present complaint, and to keep it informed of the measures adopted to that end.
On 26 February 2024, the Committee, acting through its Rapporteur on new complaints and interim measures, decided to examine the admissibility of the communication together with its merits.
Facts as submitted by the complainant
The complainant was a journalist by profession, working for Radio publique africaine, among other media outlets.4 He is currently in exile in Rwanda. At the time of the events, he was living in Bujumbura. His brother, Pascal Ndimurukundo, was a businessman, married with four children, who at the time of his disappearance in 2015 held a prominent position in the Mouvement pour la solidarité et la démocratie (Movement for Solidarity and Democracy), an opposition party. In 2010, Pascal Ndimurukundo stood as a candidate for this party in the legislative elections in Cibitoke Province. He was arrested in the midst of the campaign and detained in Mpimba Central Prison. He was released three months later, after the electoral process had ended, without a record of his arrest being kept.
- The complainant points out that this radio station was active in broadcasting information about the April 2015 demonstrations in Bujumbura against Pierre Nkurunziza’s third term. ↩
In 2015, Pascal Ndimurukundo took part in the organized protests against Pierre Nkurunziza’s third term. He stood again as a candidate in the legislative elections as chief candidate in the list of the Mouvement pour la solidarité et la démocratie in Cibitoke Province, before the party withdrew from the electoral process. In November and December 2015, Pascal Ndimurukundo was tailed on several occasions by unknown persons in vehicles with tinted windows. On 4 December 2015, he told the complainant of his concerns for his safety.
On 21 December 2015, the complainant received a telephone call from his brother, informing him of his arrest by an officer of the National Intelligence Service, Joseph-Mathias Niyonzima, alias Kazungu, reputed to be the perpetrator of numerous human rights violations in Burundi.5 Later, witnesses6 told the family that Pascal Ndimurukundo had been seen at north station in Bujumbura at around 5.30 p.m. in a double-cabin vehicle identified as belonging to the National Intelligence Service. Witnesses added that, once the vehicle had stopped, Pascal Ndimurukundo tried to escape, but was quickly caught by the police officers in the vehicle, who beat him severely. The vehicle then reportedly headed for Iwabo w’abantu, a bar once owned by the late General Adolphe Nshimirimana.7 On 22 December 2015, Pascal Ndimurukundo’s wife received a phone call demanding a ransom of 2 million Burundi francs (approximately US$ 1,670) for her husband’s release, which she refused to pay. Pascal Ndimurukundo’s relatives have also been the target of acts of intimidation, forcing some, including the complainant, into exile.
- The complainant explains that Joseph-Mathias Niyonzima, alias Kazungu, is regularly cited in reports on the human rights situation in Burundi and has been the subject of sanctions by the European Union since 2015; see Council Decision (CFSP) 2015/1763 of 1 October 2015 concerning restrictive measures in view of the situation in Burundi, Official Journal of the European Union, L 257, 2 October 2015, p. 37. ↩
- These are shopkeepers who knew Pascal Ndimurukundo because they had done business with him. ↩
- The complainant points out that this place was described by the Commission of Inquiry on Burundi as a place of torture; see the 2017 conference room paper of the Commission of Inquiry on Burundi, available on the web page of the Commission (www.ohchr.org/en/hr-bodies/hrc/co-i-burundi/co-i-burundi), para. 429. ↩
The day after Pascal Ndimurukundo’s arrest, his family joined forces to search various detention centres in Bujumbura, but to no avail. They also alerted the Office of the United Nations High Commissioner for Human Rights in Burundi and the Independent National Human Rights Commission to carry out investigations, but they were informed that the investigations had yielded no results. Between 21 and 29 December 2015, unidentified persons visited Pascal Ndimurukundo’s home. His wife and children had to take refuge in another commune.8 The enforced disappearance of Pascal Ndimurukundo was also the subject of a denunciation campaign on Burundian social networks on the part of civil society,9 and was mentioned on various occasions during the consideration of the State Party’s report by the Committee at its fifty-eighth session, from 25 July to 12 August 2016.10
- They ultimately left the country in January 2016. ↩
- Radio publique africaine, “Exécutions extrajudiciaires : le Ministre Bunyoni tente d’innocenter les forces de sécurité…en vain”, 19 February 2016; and Burundi Daily, “Human rights abuses continue in Burundi”, 11 January 2016. ↩
- CAT/C/BDI/CO/2/Add.1, para. 10; and CAT/C/BDI/CO/2/Add.2, para. 78. ↩
On 1 March 2017, while in exile in Rwanda, the complainant lodged a complaint11 against the alleged perpetrator of the disappearance of his brother, Kazungu, and an investigation file was opened. Since then, no further action was taken by the authorities of Burundi. The complainant explains that he could not have filed a complaint from Burundi for fear of reprisals.
- A copy appears in the file. ↩
On 22 March 2017, the complainant’s counsel took the necessary steps to enquire about the progress of the case. The complaint was still at the prosecutor’s office, whereas it should have been transferred to the investigating judge for preliminary inquiry. It was only after the necessary steps were taken on 3 April 2017 that a case file was opened at the public prosecutor’s office, on the same day. The complainant’s counsel took further steps to ensure that the case was scheduled for hearing, but without success. On 11 April 2017, he attempted to speak to the investigating judge to find out how the case was progressing, but to no avail. On 21 June 2017, counsel appeared again before the investigating judge. Despite the steps taken, the alleged perpetrator was never summoned to be heard on the charges against him. In addition, the authorities took no further action for the opening of the case with the public prosecutor’s office. According to the complainant, the judge even made the hearing of the alleged perpetrator, a person regularly cited as one of the main perpetrators of serious human rights violations in Burundi, conditional on a hearing of the complainant or his counsel, which would have placed both of them in serious danger. All the information available to the lawyer was contained in the complaint filed.
Complaint
The complainant claims that his brother, Pascal Ndimurukundo, is a victim of enforced disappearance attributable to the State Party, in violation of articles 2 (1) and 11 to 14, read in conjunction with article 1 or, in the alternative, with article 16 of the Convention. He also claims to be himself the victim of a violation of his rights under articles 12 to 14, read in conjunction with article 1 or, in the alternative, article 16 of the Convention.
The complainant states first of all that, despite his repeated denunciations and the filing of a formal complaint against the alleged person who made the arrest of his brother, no action has been taken by the public prosecutor’s office. More than four years after the events and more than two years and nine months after a complaint was lodged, no measure of investigation has been taken by the public prosecutor’s office: despite the opening of an investigation file more than a month after the complaint was lodged, no measure of investigation has been taken and no one has been questioned about the alleged facts. In the complainant’s view, such an unreasonable delay justifies his failure to exhaust domestic remedies, which have proved ineffective and futile.
The complainant argues that his brother, Pascal Ndimurukundo, has been and continues to be the victim of an enforced disappearance and that, as such, the treatment to which he has been subjected since his arrest constitutes an act of torture.12 To demonstrate that this is indeed an enforced disappearance according to the definition in the preamble to the Declaration on the Protection of All Persons from Enforced Disappearance, the complainant states that his brother was arrested by a group of individuals, including the agent of the National Intelligence Service known as Kazungu, as evidenced by the call made by his brother in the moments following his arrest and the testimony of the shop assistants at north station in Bujumbura. It is also clear that, following his abduction, the Burundian authorities refused to reveal what had happened to him or where he was located, or even to acknowledge that he had been deprived of his liberty. No action was taken by the authorities that were approached to help find him, and access to the National Intelligence Service cells was even denied. Pascal Ndimurukundo has therefore unquestionably been and continues to be subjected to extremely serious ill-treatment that has caused, and is still causing, severe pain and suffering in terms of his mental integrity. These acts of torture were deliberately inflicted by State officials as punishment for his political activism. The complainant maintains that the ill-treatment constitutes acts of torture within the meaning of article 1 of the Convention.
- Guerrero Larez v. Bolivarian Republic of Venezuela (CAT/C/54/D/456/2011), paras. 6.4 and 6.6. ↩
As far as he is personally concerned, the complainant asserts that he has suffered and continues to suffer acute mental suffering since the enforced disappearance of his brother, as he is in a perpetual state of anxiety and distress affecting his mental integrity. The Committee has clearly established that the enforced disappearance of a loved one can also constitute an act of torture for his or her family.13 The Human Rights Committee and the Inter-American Court of Human Rights have adopted the same approach.14 The fact that one of the most notorious torturers in Burundi had arrested his brother only served to increase the complainant’s concern about his own arrest and heighten his fears about how he would be treated. Furthermore, the complainant’s distress increased when it became apparent that his brother could not be found and that the State apparatus would not take any steps or conduct any investigation to try to find him. Moreover, the complainant’s suffering was increased by the fact that he also feared for his life, which forced him to flee the country. Four years after the events, the complainant still did not know whether his brother had been executed or whether he was still being held somewhere, in an unofficial location.
The complainant, invoking article 2 (1) of the Convention, claims that the State Party had not taken effective measures to prevent acts of torture in the territory under its jurisdiction. After Pascal Ndimurukundo’s arrest, no registration procedure was carried out, and he was unable either to contact his relatives or receive legal assistance. Moreover, despite the complaints from his family, the State Party failed to fulfil its obligations to investigate his disappearance and bring the persons 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.
Invoking article 11 of the Convention and referring to the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 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. This failure is reflected in the fact that, at the time of his deprivation of liberty, Pascal Ndimurukundo was never notified of his rights, that he was unable to exercise his right to receive visits and that he was not able to receive legal assistance.
Furthermore, the complainant submits that, although the Burundian authorities were informed of the disappearance of Pascal Ndimurukundo through reports and a formal complaint lodged on 1 March 2017, they did not conduct a prompt and effective investigation into the allegations of enforced disappearance, in violation of the obligations imposed on the State Party by article 12 of the Convention with regard to the complainant and Pascal Ndimurukundo. The complainant also alleges that the State Party did not respect his right and that of Pascal Ndimurukundo to complain to, and to have the case of enforced disappearance promptly and impartially examined by, the competent authorities, in breach of its obligations under article 13 of the Convention.
With regard to article 14 of the Convention, the complainant considers that, by failing to conduct a criminal investigation, the State Party has also deprived them – himself and Pascal Ndimurukundo – of their right to obtain redress and their right to fair and adequate compensation. In this regard, neither the complainant nor Pascal Ndimurukundo received rehabilitation assistance of any kind following the torture to which they were subjected or the means for as full rehabilitation as possible, as provided for by article 14 of the Convention. In view of the inaction of the judicial authorities, other remedies to obtain redress, such as a civil suit for damages, have no realistic prospect of success. In 2014, the Committee specifically expressed its concern about the failure to apply the article of the Code of Criminal Procedure providing for compensation for victims of torture, in violation of article 14 of the Convention;15 in 2016, it reiterated its concerns about the need to guarantee adequate compensation in accordance with article 14.16
The complainant reiterates that the violence inflicted on them – on Pascal Ndimurukundo and on himself – constitutes torture in accordance with the definition set out in article 1 of the Convention. Should the Committee not accept this characterization, he maintains that the abuse he and Pascal Ndimurukundo 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 perpetrating, instigating or tolerating such acts and to punish them if they do.
State Party’s observations on admissibility
On 27 January 2023, the State Party challenged the admissibility of the communication. It maintains that the Committee should reject it under article 22 (5) (b) of the Convention since there is no evidence that the complainant has brought the acts of which he claims to be a victim to the attention of the Burundian judicial authorities. His complaint on 1 March 2017 does not appear among those registered with the public prosecutor’s office in Ntahangwa on this date, as he claims. Furthermore, while he states that an investigation file has been opened, the complainant does not specify the file number.
The State Party notes that, on the document which, according to the complainant, shows that he referred the matter to the Ntahangwa public prosecutor’s office, it is written that he applied to the public prosecutor at the Bujumbura Mairie Tribunal de Grande Instance (court of major jurisdiction). However, in March 2017, this judicial institution no longer existed. Even if he had been mistaken and had had the idea of addressing the Mukaza public prosecutor’s office, the records of this office show that the reference numbers on the document were those of another letter received on that date. In the State Party’s view, the complainant deliberately failed to avail himself of domestic remedies, whereas the State Party has established mechanisms for the protection and defence of human rights so that any citizen who considers that his or her rights have been violated can bring the matter before them and obtain a solution to the problem at hand.
Complainant’s comments on the State Party’s observations on admissibility
On March 13, 2023, the complainant submitted his comments on the State Party’s observations on admissibility. He disputes the State Party’s claims, which were sent after the deadline, noting that he had indeed specified in his initial application the number of the investigation file that had been opened following his complaint. Furthermore, according to checks carried out with the Ntahangwa public prosecutor’s office following receipt of the State party’s observations, it is clear from the register of the public prosecutor’s office that an investigation file was indeed opened under the number indicated, which proves that the complainant brought the acts of which he maintains to have been a victim to the attention of the Burundian judicial authorities and thus attempted to exhaust the available domestic remedies, even though his efforts were futile. According to these latest checks, it would appear that the case was opened at the Ntahangwa public prosecutor’s office on 28 March 2017. Furthermore, it would appear that, nearly six years after the case was opened, no measure of investigation has been taken.
The complainant admits the error in his complaint lodged on 1 March 2017, given that it was formally addressed to the public prosecutor at the Bujumbura Mairie Tribunal de Grand Instance, a judicial institution which, as the State Party explains, no longer existed at that time. However, it should be noted that this error of form does not affect the substance of the complaint which, as the initial complaint to the Committee clearly indicates, was effectively lodged with an existing judicial institution, namely the Ntahangwa public prosecutor’s office, one of the three public prosecutor’s offices established in Bujumbura Mairie to replace the former public prosecutor’s office in Bujumbura Mairie.
State Party’s observations on the merits
On 19 April 2024, the State Party submitted observations on the merits. It informed the Committee that the case file opened at the public prosecutor’s office in Ntahangwa had finally been found. The State Party notes that, in his complaint and civil claim for damages, received by the public prosecutor on 22 March 2017, the complainant nowhere mentioned that he had suffered torture, but sought damages for the abduction of his brother. With regard to the substance of the complainant’s complaint, the State Party explains that there are countless people known as “Kazungu” in the city of Bujumbura, with at least two or more in every neighbourhood.
The State Party considers that the complainant’s lawyer willingly obstructed the truthfinding process in this case because, apart from the claims made against a certain Joseph-Mathias Niyonzima, without a shred of evidence made available to the judicial authority considering the case to enable it to carry out a proper investigation, no evidence was attached to the complaint. Furthermore, the State Party cannot find anywhere in the complaint where the complainant denounces acts by which severe pain or suffering, physical or mental, were allegedly intentionally inflicted on him for the purpose of obtaining from him or a third person information or a confession, or punishing him for an act he purportedly committed or was suspected of having committed. Through a straightforward process of mathematical exclusion, the State Party indicates that the complainant does not meet any of the necessary conditions to be considered a victim of torture. Moreover, membership of a political party was not mentioned in the complaint to the public prosecutor.
With regard to the ransom demand made to Pascal Ndimurukundo’s wife, the State Party points out that the abductor’s aim, far from being to extract information or a confession from him or simply punish him, was solely to obtain a ransom, which he made conditional on the release of his hostage. The question that remains unanswered concerns the identity of Pascal Ndimurukundo’s abductor. The State Party makes clear that the prosecutor spared no effort to seek the truth by summoning and organizing a hearing of the person named Joseph Niyonzima, because his name was confused with that mentioned in the initial complaint, especially as he was an intelligence officer at the time.
In the course of the investigation, the person questioned pointed out his military rank, which gave him exemption from jurisdiction; the case was therefore ultimately referred to the principal public prosecutor’s office for resolution. This person was thus questioned by a deputy public prosecutor, who was competent to do so, and preliminary inquiry reports were drawn up.17 As part of this preliminary inquiry, the person questioned demonstrated to the investigating judge that, from 20 to 31 December 2015, he had been on a 10-day service mission in Ngozi Province, located in the north of the country, more than 170 km from Bujumbura.18 This led the investigating judge to drop the case, as there were no other leads to investigate.
The State Party notes that, while in his complaint to the public prosecutor the complainant stated that Pascal Ndimurukundo’s wife had been called by an anonymous number, he also stated in the same complaint that the wife had then tried to call the aforementioned number, but it could not be reached. On the one hand, the State Party points out that it is not possible to call back an anonymous number; on the other, if this number was called back by the wife, the State Party wonders why it was not given to the public prosecutor’s office to give it an investigative lead that would enable it to track down the abductor. The State Party cites a failure to cooperate on the part of the complainant’s counsel, who was the only person who could have provided leads for a successful investigation.
Lastly, the State Party argues that the complainant’s complaint and civil claim for damages are not dated, with the result that the only date that can be taken as authoritative is the one on which the public prosecutor acknowledged receipt of the complaint by signing it, namely on 22 March 2017. Given the complainant’s assertion that the case file was opened on 3 April 2017, it can safely be said, the State Party asserts, that a period of 11 days, from 22 March to 3 April 2017, cannot in any way be considered an unreasonable period of time in a developing country such as Burundi.
Complainant’s comments on the State Party’s observations on the merits
On 23 January 2025, the complainant submitted his comments on the State Party’s observations on the merits. He recalls that the established jurisprudence of the Committee and many other international and regional human rights protection mechanisms indicates that the enforced disappearance of a loved one can also constitute an act of torture for his or her family, given the anguish and distress that such disappearance causes to his or her nearest relatives.
The complainant states that his complaint submitted to the Burundian judicial authorities and the communication submitted to the Committee contain many facts and details about the circumstances of Pascal Ndimurukundo’s abduction, such as the date, time, place and witnesses’ names, and also the identity of one of those responsible. The complainant draws the Committee’s attention to the supposed difficulty put forward by the State Party in identifying one of the alleged perpetrators of Pascal Ndimurukundo’s disappearance, namely Joseph-Mathias Niyonzima, alias Kazungu. Joseph-Mathias Niyonzima is a well-known personality throughout the country and he is a member of the National Intelligence Service. He has been sanctioned by the European Union and the United States of America since 2015 for his involvement in several cases of extrajudicial executions, torture and other human rights violations in Burundi.19 The fact that the State Party is not clear about his identity remains very hard to believe.
- See https://pfi.public.lu/dam-assets/pdf/blanchiment/secteur-financier/ue-liste-consolide-des-sanctions-financires-internationals-jour-au-29102024.pdf. ↩
According to the complainant, the person named Joseph Niyonzima, the minutes of whose hearing of 8 September 2017 are annexed to the State Party’s response and who is said to be in the investigation file, does not appear to correspond to Kazungu. First of all, this person, who was interviewed by the public prosecutor, was born in 1975 in Kamenge, commune of Ntahangwa, Bujumbura Mairie Province, while Kazungu was born several years earlier, in the commune of Kanyosha, Mubimbi, Bujumbura Rural Province. Furthermore, when the public prosecutor mentioned the alias Kazungu20 to the interviewee, he replied: “What I am saying is that, first of all, the person mentioned in the letter does not look like me, Niyonzima Joseph.” The complainant considers that the interviewee seems to deny the identity put forward by the prosecutor, that is to say Joseph-Mathias Niyonzima, alias Kazungu. This finding should normally have prompted the investigating authorities to pursue other leads to identify the said Kazungu, rather than resulting in the discontinuance of proceedings.
- According to the complainant, the question is translated into French as follows: “Comme vous pouvez le voir dans la lettre d’accusation que nous vous avons montrée, vous êtes accusé d’avoir, comme Joseph-Mathias Niyonzima alias Kazungu, enlevé Ndimurukundo Pascal en utilisant votre voiture alors qu’il se trouvait à Gihosha avec un autre ami, qu’en penses-tu ?” [As you can see from the charge sheet we showed you, you are accused of having, like Joseph Mathias-Niyonzima, alias Kazungu, abducted Ndimurukundo Pascal using your car while he was in Gihosha with another friend. What do you think about that?] ↩
Lastly, the complainant notes that the State Party does not contest the specific arguments put forward to demonstrate violations of the Convention against him and Pascal Ndimurukundo.
Consideration of admissibility
Before 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.
The Committee notes that the State Party initially contested the admissibility of the complaint on the grounds of non-exhaustion of domestic remedies, as the complainant had not lodged a complaint with the public prosecutor. However, in its observations on the merits, the State Party admitted to having found the complainant’s complaint. In the light of this information, the Committee considers that the State Party’s plea of inadmissibility has become moot and that it is not precluded from considering the communication under article 22 (5) (b) of the Convention.
In the absence of any other obstacle to the admissibility of the communication, the Committee proceeds to its consideration of the merits of the claims submitted by the complainant under articles 2 (1) and 11 to 14, read in conjunction with article 1 or, in the alternative, with article 16 of the Convention.
Consideration of the merits
The 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 detailed information on the merits, due weight must be given to the complainant’s allegations, which have been properly substantiated.21
- See, inter alia, N.N. v. Burundi (CAT/C/74/D/795/2017), para. 6.1. ↩
The Committee recalls that, while the term “enforced disappearance” does not appear expressly in any article of the Covenant, enforced disappearance entails multiple human rights violations and a failure by the State Party concerned to comply with the obligations contained in the Convention. Enforced disappearance itself constitutes for the disappeared person, or could constitute for his or her family and relatives, a form of torture or inhuman treatment contrary to the Convention.22
- Guerrero Larez v. Bolivarian Republic of Venezuela, para. 6.4. ↩
The Committee notes the complainant’s allegation that his brother, Pascal Ndimurukundo – according to his own statements during a telephone conversation – was arrested on 21 December 2015 by an officer of the National Intelligence Service. Witnesses who knew him saw him shortly afterwards in a vehicle belonging to the National Intelligence Service, accompanied by police officers who subdued him when he tried to escape. Since that day, the complainant has never again received any information – official or otherwise – about the fate or place of detention of his brother, despite various attempts to visit the places of detention where he could have been held and despite several successive requests submitted to the judicial and non-judicial authorities. The Committee also notes that Pascal Ndimurukundo did not have access to a lawyer and was unable to contact his family.
The Committee recalls its jurisprudence according to which, in order to prevent torture, all persons deprived of their liberty have the right to be promptly provided with independent legal assistance and medical assistance and must be able to contact their relatives.23 It also takes note of the complainant’s allegations that the disappearance of Pascal Ndimurukundo caused him severe suffering, including emotional and mental suffering, and that this treatment was deliberately inflicted by State officials to punish him. It also notes that the State Party has contested the facts insofar as it considers that Pascal Ndimurukundo’s abductor was only seeking a ransom and that his political activity did not play a role, without however providing any arguments. In these circumstances, the Committee concludes that the facts, as presented by the complainant and not contested by the State Party, constitute torture within the meaning of article 1 of the Convention24 with regard to Pascal Ndimurukundo.
- See Committee against Torture, general comment No. 2 (2007). ↩
- Ndagijimana v. Burundi (CAT/C/62/D/496/2012 and CAT/C/62/D/496/2012/Corr.1), para. 8.2; Ndarisigaranye v. Burundi (CAT/C/62/D/493/2012 and CAT/C/62/D/493/2012/Corr.1), para. 8.2; Kabura v. Burundi (CAT/C/59/D/549/2013), para. 7.2; and Niyonzima v. Burundi (CAT/C/53/D/514/2012), para. 8.2. ↩
The Committee also takes note of the anguish and distress caused to the complainant by the disappearance of Pascal Ndimurukundo for almost 10 years now, coupled with the lack of any steps or investigations on the part of the State apparatus to locate him. In this respect, the Committee considers that the facts before it constitute acts of torture within the meaning of article 1 of the Convention with regard to the complainant.
The Committee notes the complainant’s claim that, if they cannot be classed as acts of torture, the acts and treatment to which he and his brother were 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 the claims under article 16 separately.25
- Ramírez Martínez et al. v. Mexico (CAT/C/55/D/500/2012), para. 17.4; and Ndayirukiye v. Burundi (CAT/C/73/D/952/2019), para. 8.3. ↩
The 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 the State Party 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 a judicial authority to prevent its officials from making arbitrary arrests and engaging in torture.26 In the present case, the Committee notes the complainant’s allegations about the treatment inflicted on his brother, Pascal Ndimurukundo, by State officials, without Pascal Ndimurukundo being able to contact his family or have access to counsel or a doctor. The Committee also notes that the State Party has not taken any measures to protect Pascal Ndimurukundo. Lastly, the state authorities took no measures to investigate the disappearance of Pascal Ndimurukundo or to impose the appropriate sanctions, despite the requests made by the complainant to this effect to the Office of the High Commissioner for Human Rights in Burundi and to the Independent National Human Rights Commission, and subsequently in a formal complaint to the public prosecutor. In this regard, the Committee notes that, while the complainant’s formal complaint led to the opening of an investigation, the public prosecutor closed the case after only one hearing, without the State Party having demonstrated that the person heard was the same as the one denounced by the complainant. In the light of the foregoing, the Committee finds a violation of article 2 (1), read in conjunction with article 1, of the Convention,27 with regard to Pascal Ndimurukundo.
The Committee also 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 cases of torture – has been violated with regard to Pascal Ndimurukundo. The complainant alleged, in particular, the following: (a) Pascal Ndimurukundo was arrested without being informed of the charges against him; (b) he did not have access to a lawyer; and (c) he did not have effective remedies to report the acts of torture. The Committee recalls its concluding observations on the second periodic report of Burundi, adopted in 2014, and those on the third periodic report of Burundi, adopted in 2023, 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 allowable 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.28 In the present case, Pascal Ndimurukundo 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 to fulfil 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 Pascal Ndimurukundo. The Committee therefore finds a violation of article 11 of the Convention.29
With regard to articles 12 and 13 of the Convention, the Committee takes note of the complainant’s allegations that, on 21 December 2015, Pascal Ndimurukundo was arrested by an officer of the National Intelligence Service and was subsequently seen in a vehicle belonging to the same Service, accompanied by police officers, who took him to an unknown destination. Nearly 10 years after his abduction, his fate remains unknown. Although the complainant reported the disappearance of Pascal Ndimurukundo during searches of Bujumbura detention centres the day after his disappearance, during the extrajudicial proceedings and then through a formal complaint, an investigation was opened in April 2017, only following his formal complaint of March 2017, and quickly closed only after one hearing of a person who the State Party does not even demonstrate was the alleged perpetrator expressly denounced by the complainant. The Committee considers that a period of more than one year and three months before the opening an investigation into allegations of enforced disappearance 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.30 In the present case, the Committee therefore finds a violation of article 12 of the Convention in respect with regard to Pascal Ndimurukundo and with regard to the complainant.
- Ndagijimana v. Burundi, para. 8.5; Ndarisigaranye v. Burundi, para. 8.5; Kabura v. Burundi, para. 7.4; and Niyonzima v. Burundi, para. 8.4. ↩
In view of the above findings, the State Party has also failed to fulfil its responsibility under article 13 of the Convention to guarantee the right of Pascal Ndimurukundo and the complainant to lodge a complaint, which presupposes that the authorities provide a satisfactory response by launching a prompt and impartial investigation.31 The Committee notes that article 13 does not require the formal lodging of a complaint of torture under the procedure laid down in national law, nor does it require an express statement of desire that criminal proceedings be instituted; it is enough for the victim simply to come forward and bring the facts to the attention of a State authority for the State to be obliged to consider this a tacit but unequivocal expression of the victim’s wish to have an immediate and impartial investigation initiated, as prescribed by this article of the Convention.32 The Committee also notes that, after an investigation was opened following the formal complaint by the complainant, only one hearing was held before the case was closed. The Committee concludes that the facts of the present case also constitute a violation of article 13 of the Convention with regard to Pascal Ndimurukundo and with regard to the complainant.
Regarding 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 should cover all the harm suffered by the victim and encompasses, among other measures, restitution, compensation and guarantees of non-repetition of the violations, taking into account the circumstances of each case.33 In the present case, in the absence of a prompt and impartial investigation, despite the existence of clear direct testimony that Pascal Ndimurukundo was the victim of enforced disappearance, which has gone unpunished, the Committee concludes that the State Party has also failed to fulfil its obligations under article 14 of the Convention with regard to Pascal Ndimurukundo and with regard to the complainant.34
The Committee, acting under article 22 (7), 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, of the Convention, with regard to Pascal Ndimurukundo. It also finds a violation by the State Party of articles 12 to 14, read in conjunction with article 1, of the Convention, with regard to the complainant.
The Committee urges the State Party to: (a) initiate a thorough and impartial investigation into the enforced disappearance of Pascal Ndimurukundo, taking also into account the guidelines set out in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), as revised, and provide the complainant with detailed information concerning the results of this investigation; (b) prosecute and punish those responsible for the disappearance of Pascal Ndimurukundo; (c) release Pascal Ndimurukundo immediately if he is still being held incommunicado; (d) in the event that Pascal Ndimurukundo is deceased, to hand over his remains to his family in a dignified manner, in accordance with the cultural norms and customs of the victims; (e) provide the complainant and Pascal Ndimurukundo, if he is alive, or his beneficiaries with appropriate redress, including compensation for material and nonmaterial damage, restitution, rehabilitation, satisfaction and guarantees of non-repetition; and (f) ensure that no similar violations occur in the future. The State Party is also requested to publish the present decision and disseminate it widely in its official languages.
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.