COMMITTEE AGAINST TORTURE STARTS REVIEW OF INITIAL REPORT OF BURUNDI

The Committee against Torture this morning started its consideration of the initial report of Burundi on how that country implements the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Francoise Ngendahayo, Minister for National Solidarity, Human Rights and Gender of Burundi, introducing the report, said one of the reasons for its late submission was that Burundi had been mired in a terrible civil war. After ratifying the Convention, Burundi had adopted the definition of torture as per the treaty, but there was still no definition of torture as such in the penal code. Acts of torture were covered in the criminal code, and certain acts of torture could be punishable by the death penalty. With regards to punishment of acts of torture, there were shortfalls in the national legislation concerning this issue and perpetrators of torture were punished under other criminal charges in the criminal code.

During the armed conflict, Ms. Ngendahayo said there had been a loss of moral references, especially for those participating in the conflict, and these unfortunately included officers of the State who had violated human rights and the provisions of the Convention against Torture. After the 2005 elections, the Government had decided to commit itself to the promotion and protection of human rights and it had already taken actions, including the proposals to revise the 1981 criminal code, and the organization of courses for prison administration staff and others to ensure the conduct of officers in applying the law and to ensure the prohibition of torture and the respect for human rights.

Fernando Marino Menendez, the Committee Expert who served as Rapporteur for the report of Burundi, said the Committee noted the difficulties facing Burundi in preparing and submitting the report, resulting in a delay of 12 years. The report stated that there was no definition of torture in the criminal code as such, and the description of punishable acts which could be considered as torture was not sufficient. These acts should include serious suffering, specifically undertaken by an officer of the State, and aggravation of responsibility as requested by the Convention. There were reports of State security services being responsible for forced disappearances and summary executions. Apparently some security bodies were uncontrollable and acted outside of the law. Within the framework of the reforms which were being considered, Mr. Marino Menendez hoped that these security bodies would be reformed and put in a situation so that their actions could be monitored and controlled.

Guibril Camara, the Committee Expert who acted as Co-Rapporteur for the Report of Burundi, said it seemed to him that the fundamental issue for Burundi was to establish what the role of international instruments was in its judicial system. Was the legal system of Burundi monistic or dualist. According to what he had read, the Convention and other international systems were an integral part of the Constitution, and thus of the legal system of Burundi. So he was a bit surprised about the difficulties Burundi faced because of the absence of a legal definition of torture in the penal and criminal codes which would ensure the punishment of the perpetrators of torture in the way that they should be punished. Were international treaties ratified by Burundi an integral part of the legal system, or was it necessary to take measures to integrate them into law so that they could be applied.

Other Experts raised questions on issues relating to training on human rights and the prohibition of torture; whether there was any estimated timeframe for the integration of treaties and the international obligations of the State into domestic legislation; if there had been any indictments or prosecutions relating to the massacre in 2004 in Gatumba and what was the status of the investigation; and the situation of sexual violence in the armed conflict and outside it against women and children.

The delegation of Burundi also included Paul Mahwera, the Permanent Representative of Burundi to the United Nations Office at Geneva, Cecile Ndabirinde, the Director-General for human rights and peace education, and representatives of the Ministry of Foreign Affairs of Burundi, among others.

The delegation of Burundi will respond to the questions raised by the Committee Experts at 3 p.m. on Friday, 10 November. As one of the 142 States parties to the Convention against Torture, Burundi is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

The Committee will submit its conclusions and recommendations on the report of Burundi towards the end of the session on Friday, 24 November 2006.

When the Committee reconvenes at 3 p.m. this afternoon, it is scheduled to hear the response of the delegation of Mexico to questions raised on the fourth periodic report of Mexico which Committee Experts raised on Wednesday, 8 November.

Report of Burundi

The initial report of Burundi (CAT/C/BDI/1) states that one of the reasons for the late submission of the report is the crisis Burundi has been experiencing since 21 October 1993. A succession of Governments since 1994 have been unable to restore a sustainable and permanent peace. Moreover, it is common knowledge that this period has been characterized by political instability, as evidenced by the various socio-political events which have punctuated Burundian politics since the 1993 crisis. The drafting of this initial report has enabled the Government to pinpoint gaps in Burundian legislation with regard to the prevention of torture. Quite apart from the fact that torture is not even defined in Burundian legislation, it has not yet been made a criminal offence under Burundian criminal law. It is merely an aggravating circumstance in the crimes of homicide and intentional bodily injury (cf. articles 145 and 147 of the Criminal Code). There is a need for a national law defining torture as a crime in order to implement the Convention against Torture, which has been ratified by Burundi. The main challenge facing Burundi in respect of the implementation of articles 1 to 16 of the Convention is the absence of a specific law against torture and other cruel, inhuman or degrading treatment or punishment. Not only must the Criminal Code and Code of Criminal Procedure be revised and updated, provisions on this subject must also be incorporated in the Prison System Act, the Genocide Act, the Regulations governing the Judicial Police of the State Counsel’s Office, and other relevant regulations. The same is true of the other provisions contained in articles 1 to 16 of the Convention.

Introduction of Report

FRANCOISE NGENDAHAYO, Minister for National Solidarity, Human Rights and Gender of Burundi, said Burundi ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 31 December 1992 and deposited its instruments of ratification with the Secretary-General of the United Nations on 18 February 1993. Under the terms of article 19 of the Convention, Burundi ought to have produced an initial report on the measures it had taken to give effect to the Convention by 31 December 1993, one year after ratification. Burundi should then have submitted periodic or supplementary reports every four years on any new measures taken and such other reports as the Committee might request. In short, Burundi should have produced a periodic report in 1997 and 2001 and 2005. One of the reasons for the late submission of the report was that during this period, Burundi had been mired in a terrible civil war. So Burundi asked for the indulgence of the Committee. Information presented today would concern developments up to the present day, although the team of experts had finished work on the report in 2004 and it had been received by the Committee in 2005. The report itself did not deal with new developments like the Constitution and the elections in 2005, the changes in the Ministries, the security situation after the Government signed a ceasefire with the Palipehutu FNL.

Ms. Ngendahayo said that with ratifying the Convention, Burundi had adopted the definition of torture of torture as per the treaty, but there was still no definition of torture as such in the penal code. But acts of torture were covered in the criminal code, and certain acts of torture could be punishable by the death penalty. Concerning expulsion and refoulement, the legal provisions on these issues were covered in the Burundian legislative system. Burundi had signed bilateral and multilateral agreements on these issues. With regards to punishment of acts of torture, there were shortfalls in the national legislation concerning this issue and perpetrators of torture were punished under other criminal charges in the criminal code. Concerning the arrest of persons accused of torture, they could be detained under the code of penal procedure. Detention could not exceed seven days unless a Public Prosecutor decided to extend it, but the maximum limit was double this period. Any person accused of torture was tried under the law by the courts and was ensured a fair and equitable process. The system of evidence said such cases were treated as cases of common law crimes. A person convicted of torture could be punished by between 10 and 20 years. If the torture resulted in death, the perpetrator could receive life imprisonment or the death penalty. Compensation could be received if the victim requested it. A confession made during detention was only upheld in court if it was repeated in court and if it was corroborated with other evidence. A judge could declare a confession made during detention null if it was retracted in court.

There was a lack of a specific law to punish torture, and there were loopholes concerning issues of punishment and redress, Ms. Ngendahayo said. During the armed conflict, there had been a loss of moral references, especially for those participating in the conflict, and these unfortunately included officers of the State who had violated human rights and the provisions of the Convention against Torture. After the 2005 elections, the Government had decided to commit itself to the promotion and protection of human rights and it had already taken actions, including the proposals to revise the 1981 criminal code. The Government had also recently ratified the two Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and on children and armed conflict. Courses had been organized for prison administration staff to ensure the conduct of officers in applying the laws and to ensure the prohibition of torture and the respect for human rights.

Questions Raised by Committee Experts

FERNANDO MARINO MENENDEZ, the Committee Expert who served as Rapporteur for the report of Burundi, welcomed the Minister and the members of the delegation as well as the initial report of Burundi. The Committee noted the difficulties facing Burundi in preparing and submitting the report, resulting in a delay of 12 years. The Committee would like to understand how Burundi was facing these difficulties as it had a policy of dialogue with States and making recommendations in order to make progress in eliminating torture. The report of Burundi was sincere and did not conceal the difficulties that the country was facing. It recognized them openly, and recognized the gaps in the legislation and outlined the proposals made to reform legislation. Parliament was also working on the reform of the criminal procedure code and the penal code.

Mr. Marino Menendez said there had been events in recent months which the report did not cover, particularly the ceasefire with the last of the armed movements. The Committee hoped that this would close the circle of violence and create a possibility for the rule of law to be properly enforced. Did the transitional justice programme under Security Council resolution 1606 cover the reform proposals which the Minister had outlined. The transitional justice system was moving in the right direction.

The report stated that there was no definition of torture in the criminal code as such, and the descriptions of punishable acts which could be considered as torture was not sufficient. These acts should include serious suffering, specifically undertaken by an officer of the state, and aggravation of responsibility as requested by the Convention. Did current legislation cover psychological torture and not just physical torture. Were forced disappearances considered a form of torture. The Committee hoped that the definition of torture, the issue of forced disappearances, and the use of torture in cases before the court would be covered by the draft penal code.

Mr. Marino Menendez said according to a report by non-governmental organizations, 600 cases of torture were reported in 2005 and 2006. Could the delegation comment on this.

There were reports of state security services being responsible for forced disappearances and summary executions. Apparently some security bodies were uncontrollable and acted outside of the law. Concerns about these bodies were many and varied. Within the framework of the reforms which were being considered, Mr. Marino Menendez hoped that these security bodies would be reformed and put in a situation so that their actions could be monitored and controlled.

Did detained persons have access to a lawyer during detention and was there a legal aid system available to them, Mr. Marino Menendez asked? If there was no legal aid system available, then this was a shortcoming as he was sure many in Burundi could not afford a lawyer. Certain government institutions and the office of the prosecutor visited places of detention, but how were these visits organized? There were reports of the detention of persons who were unable to pay their debts, and the detention of patients in hospital if they were unable to pay the fees, and this appeared to be a common practise; could the delegation comment on this. The report talked about the inhuman conditions of prisoners because of overcrowding and the sanitary situation. Prisons required financial resources and the Committee understood this. But did the proposed reforms include the prison system law, and would new prisons be built in the context of the reforms.

Concerning the principle of non-refoulement, what was the policy of the Government on sending back foreign nationals to a country where they might risk torture. In 2005, some 800 Rwandan nationals had been returned to Rwanda without any consideration of their status. Did the proposed legal reforms involve the status of refugees and asylum seekers? According to the Convention against Torture, the principle of non-refoulement did not allow for exceptions. Were rape or other forms of sexual violence used as a form of torture. What was the situation concerning sexual violence in the domestic setting?

Mr. Marino Menendez said with regards to the amnesty law being considered and the transitional justice system, as well as the creation of a court to deal with war crimes, would the amnesty law cover those responsible for acts of torture or of crimes against humanity, and would events up to 2006 be included. If the amnesty law did cover acts of torture and such crimes, this might diminish the power of the transitional legal system.

When a detained person claimed torture, what was the process of lodging a complaint, was a medical examination undertaken, and could the detained person request a doctor of his or her choice. When a person passed from police custody to preventative custody, was a lawyer present?

GUIBRIL CAMARA, the Committee Expert who acted as Co-Rapporteur for the Report of Burundi, said he also wished to welcome the delegation of Burundi and the initial report. He hoped the dialogue starting today could continue for the good of the Burundian people and the international community. After reading all the available documents, it seemed to him that the fundamental issue for Burundi was to establish what the role of international instruments was in the judicial system. He still did not have a satisfactory response and this was an important issue. Was the legal system of Burundi monistic or dualist. According to what he had read, the Convention and other international systems were an integral part of the Constitution, and thus of the legal system. So he was a bit surprised about the difficulties Burundi faced because of the absence of a legal definition of torture in the penal and criminal codes which would ensure the punishment of the perpetrators of torture in the way that they should be punished. Were international treaties ratified by Burundi an integral part of the legal system, or was it necessary to take measures to integrate them into law so that they could be applied.

With regards to training on human rights and the prohibition of torture, Mr. Camara noted that centres and bodies had been set up for this, as well as the Government’s Human Rights Commission. But in addition to the seminar on national and international justice which was held in 2002, what else had been done in terms of training activities by these bodies, especially for lower level officials, but also for higher level officials and judges. Burundi had a problem with its legislation, but there was also a problem of culture and the respect of a culture of human rights, and this could only be created through teaching and training. As Burundi was in a process of reforming its legislation, places of detention had to have records according to international standards to note when persons where detained and why and there was a need to ensure proper monitoring of such detention centres by the authorities and by civil society.

According to articles 12 and 13 of the Convention, the main person responsible for prosecution of an act or torture was not the victim but the State. It was the State which was responsible to undertake the necessary measures in order to facilitate complaints by victims. In conclusion, Mr. Camara wanted to give the delegation of Burundi credit and merit for coming before the Committee and exposing the difficult situation in Burundi to attention from the outside world.

Other Experts raised questions on issues relating to whether there was any estimated timeframe for the integration of treaties and the international obligations of the State into domestic legislation; since Burundi had help from the Office of the High Commissioner for Human Rights, maybe some of it could be channelled to deal with issues relating to torture; could a copy of the draft legislation on the reform of the criminal and penal code by provided; there was a massacre in 2004 in Gatumba, had there been any indictments or prosecutions, and what was the status of the investigation; the Government had created a Commission in 2006 to look into this massacre, what was the status of the Commission’s work; on gender issues, what was Burundi’s policy on evidence required to prove rape, and what was the system in practise to prevent reprisals against women who came forward with charges; what investigations had been carried out involving the sexual abuse of children in detention centres; in Burundi, children above the age of 13 were treated as adults in the criminal procedure and this was against the provisions of the Convention on the Rights of the Child, this age of 13 should be reviewed; what was the situation of sexual violence in the armed conflict and outside it against women and children; the methods of torture set up in paragraphs 12, 13 and 14 in the report which were used by the police, army and security and service were quite disturbing, and there was a need to ensure that detention centres were not secret or remote to help prevent such violations; and had the National Commission of Human Rights according to the Paris Principles actually been established.

An Expert said there was an educational role that could be placed by the Government, not only within the context of the armed conflict but for the local magistrate systems, because there were reports that persons reporting rape and domestic violence were ridiculed by police. On the treatment of refugees, if a person who had committed torture outside of the country fled to Burundi, could Burundi bring that person to trial? An Expert said there was a rather sad situation of human rights in Burundi, and Committee Experts had pointed out situations which had to be rectified. The Committee members all agreed that Burundi would benefit from incorporating the definition of torture, it could use the definition in the Convention or could go beyond it.