Committee on Enforced Disappearances reviews report of Burkina Faso

GENEVA (9 March 2016) - The Committee on Enforced Disappearances today concluded its consideration of the initial report of Burkina Faso on how that country implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance.
 
Presenting the report, Bibata Nebie, Director of the Cabinet at the Ministry of Justice, Human Rights and Civic Promotion, stated that in spite of the recent political events in Burkina Faso, including the popular uprisings and the failed military coup in 2014, the country had continued to adhere to the provisions of the Convention.  To that end, the revisions of the Code of Criminal Procedure and the Criminal Code were underway.  Although there were no recorded enforced disappearances in Burkina Faso, national framework had been, to a large extent, aligned with the Convention.  Definition of victims in the Code of Criminal Procedure was practically the same as the one in the Convention.  In line with the Rome Statute of the International Criminal Court, enforced disappearances that included mass abductions were considered as crimes against humanity and there had been no statute of limitations to that type of crimes.  Independent institutions had been established to ensure investigation and appropriate compensations to victims.
 
During the interactive dialogue which ensued, Committee Experts asked for additional clarifications on the work of the independent institutions, most notably on the functioning of the National Human Rights Commission.  Questions on extradition were raised, as well as on the state of revision of the Code of Criminal Procedures.  Experts were interested to hear about the reparation system that had been established, the situation in the detention centres and the right of communication of detainees, the competence of military courts and many procedural aspects of the implementation of the Convention.
 
In conclusion, both country rapporteurs, Emmanuel Décaux and Juan Jose Lopez Ortega provided a very positive assessment of the state of play in Burkina Faso and congratulated the delegation. 
 
Ms. Nebie expressed the satisfaction with the constructive dialogue and emphasized that, in spite of difficult circumstances, there was a strong political will in the country to continue with the revision of the legal framework to fully adhere to the international standards.
 
The delegation of Burkina Faso included representatives of the Ministry of Justice, Human Rights and Civic Promotion, the Ministry of Foreign Affairs and Regional Cooperation, the Ministry of National Defense and Former Combatants, the Ministry of Women Affairs, National Solidarity and the Family, the Ministry of Territorial Administration, Decentralization and Security and the Permanent Mission of Burkina Faso to the United Nations Office at Geneva.  
 
The Committee will next meet in public at 3 p.m. today to discuss the initial report of Kazakhstan (CED/C/KAZ/1).

Report 

The initial report of Burkina Faso can be read here: CED/C/BFA/1.    
 
Presentation of the Report
 
BIBATA NEBIE, Director of the Cabinet at the Ministry of Justice, Human Rights and Civic Promotion, stated that Burkina Faso had ratified the International Convention on the Protection of All Persons from Enforced Disappearance in 2009 and explained that the current report, adopted in June 2014, had been drafted in line with the Committee’s guidelines.  The first part of the report contained general provisions and the second part dealt with the legislative, administrative and policy measures taken to address the issue of enforced disappearances.
 
Two major events that had affected the current political climate in Burkina Faso had been the uprisings in October 2014 which had caused the resignation of Burkina Faso’s President and the failed military coup.  The transitional period had ended with the organization of free and fair elections on 29 November 2014.  A national assembly had been established as well as the High Council on National Reconciliation and the Independent Inquiry Commission.  Legal proceedings had been initiated against persons who have committed human rights violations.
 
As for the legal framework for the enforced disappearances, there was no specific definition for that crime.  However, within the national legislation and in line with the Act implementing the Rome Statute of the International Criminal Court, enforced disappearances that included mass abductions and systematic kidnapping had been considered as crimes against humanity.  It was important to emphasize that crimes against humanity had no statute of limitations, whereas the statute of limitations for major offences had been ten years and for lesser offences three years.  Article 15 of the Constitution clearly stipulated that no legal instrument could allow for justification for offences.  Criminal liability of superiors who had been giving orders was punishable by imprisonment of five to ten years.
 
The definition of victims in the Code of Criminal Procedure was practically the same as the one in the Convention.  According to the national legislation, secret detention was forbidden.  All police chiefs were required to keep up-to-date registers on detainees and were subject to disciplinary sanctions if they failed to keep records. No complaints had been recorded on enforced disappearances thus far.
 
Under the Convention and national laws, Burkina Faso did not require an extradition treaty in order to extradite a person accused of committing crime of enforced disappearance.  In line with the African Charter on Human and Peoples’ Rights, the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Burkina Faso banned extradition and expulsion of the accused to a country where their safety could not be guaranteed.
 
Regarding the dissemination of the Convention, a series of trainings and awareness-raising activities had been undertaken for different categories, including judges, police officers and prison guards. While aware of the difficulties in terms of the functioning of the national institutions, Burkina Faso expressed believed that all issues could be overcome with the assistance of the international community.
 
Questions by Experts
 
EMMANUEL DÉCAUX, Committee Chairperson and Country Rapporteur for Burkina Faso, praised Burkina Faso as the first African country to have submitted the report in October 2014, setting an example for other countries.  Burkina Faso had recently reported to the Committee Against Torture and was expected to report to the Human Rights Council later this year.
 
Three series of questions were asked.  The first one related to the Burkina Faso’s answers to the List of issues where it had been stated that any declaration that would recognize the Committee’s competence to receive individual and inter-state communication under  articles 31 and 32 had to be based on consensus among public and private stakeholders that had been working in the human rights field.  With the current political situation in mind, was there a sufficient political will to carry out that procedure?  Were there any legal or political obstacles that would prevent such practice and were there any stakeholders that would be reluctant to recognize the Committee’s competence?
 
The second question related to the Constitution and the direct application of the Convention in the criminal law context.
 
The Expert raised a set of questions on several independent institutions.  The first was the National Human Rights Commission established in March 2013 and, according to the report, had been inactive and exposed to operational difficulties.  What were the reasons for its inactivity?  Had the suggestion to reduce the number of the commissioners from 27 temporary to nine permanent been considered?  How were the reforms proceeding?  What could be done to establish an institution that would have sufficient budget, remain independent and thus become accredited and meet the Paris Principles?
 
Another institution set up in 1997 was the Office of the Ombudsman. Bearing in mind the newly established High Council on National Reconciliation and that, in principle, those institutions overlapped in many human rights issues, the delegation was asked to provide a more elaborate overview of how the stated institutions had been involved in addressing enforced disappearances.
 
What role did the National Observatory for the Prevention of Torture and Related Practices and Related Practices play and how did it function?
 
JUAN JOSE LOPEZ ORTEGA, Committee Member and Country Rapporteur for Burkina Faso, focused his questions on various legislative reforms that were taking place.  Further information was requested on the state of national institutions and the adoption on the Code on Criminal Procedures.
 
Also, the question was raised on what the definition of the offence of enforced disappearance would entail.
 
In the replies to the List of issues, it had been stated that the current legislation recognized aggravating circumstances. It had been suggested that, in addition to aggravating circumstances, there was another circumstance, targeting vulnerable groups, such as  children, pregnant women, or persons with vulnerabilities.  Could that element be added to the aggravating circumstances?
 
Question was raised whether the capital punishment was envisaged as a sentence for the crime of enforced disappearances.
 
As concerns the superior officers, there had been a seeming contradiction between two articles of the Criminal Code, Article 70 and Article 140.  Article 140 stated that a public official involved in the deprivation of liberty had no liability if he had been acting under the orders of his superior.  That notion of obeying orders was not in accordance with the Convention.
 
The Expert asked about the  military courts  which had jurisdiction in investigating cases of enforced disappearances.  What were those cases?  Who appointed judges of military courts?  Were they legal specialists or army officers?  That was particularly relevant, since in its recent meetings the Committee had adopted the view that the practice of military courts investigating enforced disappearances had not been consistent with the Convention.
 
Were victims allowed to participate in investigations, asked the Expert.
 
The report stated that if a member of a law enforcement unit was accused of an offence, other members of that unit could not be involved in the investigation.  The delegation was asked to further elaborate on that matter, since it had not been regulated by law, but rather considered a practice?.
 
Regarding extradition, question was raised on whether the requirement for double incrimination would be a problem, particularly now when the Code on Criminal Procedures did not provide a definition?  Would it be difficulty to agree on extradition?
 
How would privileges connected to immunity reflect on the extradition and which authority would benefit from exceptions in the domestic legal system?  If extradition was not agreed to, what was the extent of jurisdiction, inquired the Expert. 
 
He also wanted to know whether any enforced disappearances were registered.  The report did not acknowledge them, but the Working Group on Enforced Disappearances registered three cases in their report.  Were there any cases, from what period and what was the current status of investigations?
 
Question was asked on the scope of the mandate of the National Human Rights Commission. Could the Commission deal with individual complaints ?
 
Question was also raised on reparations, seeing how the report mentioned that reparations were not only financial, but also legal and political.  Were those mechanisms already provided for the victims and had there been an example in the practice where the mechanisms had been utilized?
 
Within the hierarchy of treaties which placed the Convention above the national law, could it be considered that extradition should not be subjected to a treaty, but rather directly applicable according to the Article 15 of the Convention?
 
Replies by the Delegation
 
On the question of political will to reform the Code on Criminal Procedure, the delegation confirmed that there was indeed sufficient political will for such an endeavour, as confirmed by the Prime Minister who insisted that the revision had to be completed until January 2017.  Regarding the state of progress of the revision of Code on Criminal Procedure, the national validation workshop had been held, where the draft had been presented and the judiciary representatives had provided their input.  The draft had been returned to the Ministry of Justice and Human Rights, thus ensuring that all relevant international conventions were incorporated in the Code on Criminal Procedures.
 
The definition of the crime of enforced disappearance corresponded to the definition from the Convention and, according to the draft law, punishment envisaged for the offence of enforced disappearances was from twenty to thirty years, and the maximum penalty had been life imprisonment.
 
The delegation informed that the National Human Rights Commission had been first set up by a decree in 2001 and initially had not met the Paris Principles.  The 2009 law made the National Human Rights Commission more independent financially and politically and more open and inclusive towards civil society.  The actual work had only started in 2013 when all the members had been elected.  Numerous difficulties were encountered in functioning of the National Human Rights Commission, partially due to the large number of members. Thus, consultations had been held to again revise the National Human Rights Commission, by reducing the number of members and ensuring that they were permanent.  The Council of Ministers had adopted that new law and the document was now awaiting adoption in the National Assembly.
 
Regarding the mandate, it was envisaged that the National Human Rights Commission could investigate any human rights violation, establish the facts and recommend to the authorities further steps for investigation or provision of compensation.
 
As for the relationship between the independent institutions, the situation was the following:  the National Human Rights Commission had general powers, while the Office of the Ombudsman served as a buffer between the citizens and the administration. The Office of the Ombudsman, however, had no authority in criminal matters, therefore there was no danger of the overlap with the National Human Rights Commission.  The High Council on National Reconciliation was the newest institution that had emerged after the popular uprisings and had received numerous complaints on human rights violations. Thus far, 5,000 cases of violations of human rights had been submitted to the High Council on National Reconciliation.  Seeing how the High Council on National Reconciliation was more focused on the reparations, there had been no danger of the overlap with the National Human Rights Commission.
 
Military courts consisted of military judges who were trained along with civilian judges and recruited from national school of administration.  The judges all had legal qualifications and were trained in civilian courts prior to becoming judges. Military courts only dealt with crimes committed on military premises.  As for the question whether military courts could judge crimes of enforced disappearances, the delegation would need to further look into it.
 
Regarding the statute of limitation, it had been already mentioned that for misdemeanour it was three years, for serious crimes ten years and for crimes against humanity there was no statute of limitations.
 
On the question whether there were obstacles by some stakeholders or the lack of will to make declaration that would recognize the competence of the Committee to receive individual and inter-state communication, the delegation affirmed that there were no such obstacles and that consultations were ongoing.
 
As concerns the matter of reciprocity and article 151, the delegation noted that reciprocity did not apply to human rights conventions, since they placed obligations on individuals and not States parties.
 
The clarification on Article 70 was provided, and the delegation explained that in cases where the offence of enforced disappearance was committed because the orders were obeyed, the person that was accused had to provide an evidence of the orders received. 
 
Regarding the victim participation in proceedings, there were no trials yet, but victims did actively participate in investigation by providing testimony.  Also, once they would bring the case to court they were interviewed by judges.
 
The National Observatory on the Prevention of Torture had been set up by law in April 2014, in line with the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.  The National Observatory on the Prevention of Torture was a national prevention mechanism, responsible for visiting places of detention, and acting towards prevention of torture.  The institution was supposed to become operational in 2015, but having in mind the political circumstances in the previous year, that had not happened yet.  The delegation expressed hope that it would happen in 2015.
 
The delegation stressed that no complaints had been received on enforced disappearances. However, the delegation would like to receive more information from the Committee on the three cases that were mentioned.
 
As regards the independent institutions, the general comment of the delegation was that many state institutions had indeed not been functioning properly, which had been one of the major complaints behind the uprising. However, with the return of democratic practices, it was expected that that problem would be gradually resolved.
 
Follow-up Questions
 
JUAN JOSE LOPEZ ORTEGA, Committee Member and Country Rapporteur for Burkina Faso, asked the delegation whether they would agree to include the safeguard that obeying orders could in no way be considered as an excuse for committing human rights violations.
 
He further asked which authority was governing the civil and military courts. Was it a magistrate council or the Ministry of Justice?
 
EMMANUEL DÉCAUX, Committee Member and Country Rapporteur for Burkina Faso, asked whether the consultations had been held regarding the making a declaration for articles 31 and 32.
 
Taking into account that there were 5,000 cases of violations of human rights in front of the High Council on National Reconciliation, was there a possibility to include broader human rights violations within the definition?
 
Replies by the Delegation
 
The delegation said that they could incorporate elements into the definition that would take into account human rights violations, but they needed to consult with other institutions first.
 
It was explained that military courts were governed by the Ministry of Defence.
 
Concerning the idea of a specialized body that would conduct investigations, a delegate said that it was accepted as a good idea.  However, restrictions that had to be taken into account included limited resources and the need for trainings that would be necessary for the staff that would do the investigations.
 
Witness protection was part of the protection measures that had been adopted under the Law on trafficking, but currently, as concerns enforced disappearances, there were no specially structured witness protection programmes.
 
Consultations on making a declaration for articles 31 and 32 would be held before any decision had been taken.
 
Questions by Experts
 
An Expert asked why there were no warranties in the law to prevent refoulement and wanted to know more about who would determine whether the principle of non-refoulement should be invoked.
 
Question was asked on whether there had been a common law remedy to determine if detention had been legal.
 
The Expert further sought a clarification on the right of detainees to communicate.  According to the Convention, even when the person had been held in incommunicado detention, theright of communication could not be suspended.  The Code of Criminal Procedure envisaged that a person could be kept up to ten days in detention, a time which could be extended for up to fifteen days.  Which rights could be suspended in such circumstances? Would it be just the right to communicate or also the right of family members to receive information about the detainee?  Moreover, in concluding observations of the Committee against Torture, it had been noted that the right of communication of detainees had not been always respected in Burkina Faso. What progress had been made in the meantime on that matter?
 
The Expert suggested that, in addition to disciplinary sanctions that had been applied for the failure of police staff to provide information, there should be criminal sanctions as well, in cases when police staff deliberately decided not to provide information.
 
Regarding the registers, question was asked on whether the registers contained all the necessary information.  Had the registers been kept in the institutions for juveniles or in centres where persons waiting for refoulement were residing?
 
How many visits had the Ministry of Justice, Human Rights and Civil Promotion and other competent institutions undertaken to detention centres in 2015?
 
Another Expert asked for additional information on trainings that had been organized.
 
Concerning the victims, he asked about the means of compensational reparation.  Did the judge decide on the reparations and what were the criteria defined by the law?
 
Question was raised on whether the search for disappeared person would continue after the declaration of absence had been issued?  The Personal and Family Code seemed to be a rather general document to cover all the issues stemming from the disappearance.
 
A follow-up question on the effects of the declaration of absence was raised by another Expert, who asked what consequences such a declaration produced regarding property rights and inheritance.
 
Another Expert required further elaboration on the system of political reparation.   What type of political reparations had been provided and how had the mechanism been linked to the judicial mechanism?
 
Replies by the Delegation
 
Responding to the question on how the extradition could take place in the absence of an extradition treaty, the delegation explained that in case when the requesting State was a State party to the Convention, the basis of the extradition had to be found in the Convention.  It was reiterated that the country had fully taken into account not to extradite persons to places their safety might be endangered.
 
Concerning the competence of military courts to recognize the offence of enforced disappearances, it was elaborated that that military courts had been in charge of prosecuting crimes either committed by members of the armed forces in performing their duties or the offences that had been committed in military establishments.
 
On the universal competence, the delegation confirmed that courts in Burkina Faso did not have universal jurisdiction.  The courts were competent to hear cases involving offences committed in the country or when offences were committed in another country by nationals of Burkina Faso.
 
With respect to refoulement, seeing how it was an administrative decision, the administrative authority would be the one to assess the risk prior to retuning the individual to the country of origin.  However, it was further explained that administrative remedies were available and if the individual had claimed the remedies, the administrative judge could confirm or reject the decision on refoulement.
 
Regarding the remedies, a delegate stated that it was possible for individuals to lodge the complaint questioning whether their detention had been arbitrary and legal.
 
Detailed provisions on the right of communication were incorporated in the Code of Criminal Procedure.  The judge could not, under any circumstances, forbid the right of communication.  However, communication with others could be prohibited to the individual who was charged under the Law on Organized Crime.
 
The delegation emphasized that restrictions on the right of detainee to communicate with others could in no way affect the provision of information by the authorities to the family members of a detainee.
 
Regarding the minors, there was an obligation for judicial police officer to inform family members about the investigation.  If they had failed to do so, the proceedings would be suspended.
 
Following the concluding observations of the Committee against Torture in 2013, certain progress had been made and the legal counsel could now assist the detainee while in custody and during the primary inquiry, which had not been the case before.
 
Political reparations, unlike the legal reparation system, were done on ad-hoc basis for victims of political violence.  That had been mostly the case for people who had been victims of human rights violations, submitted to the High Council for National Reconciliation.  Victims of political violence and members of their families could receive financial compensation from a compensation fund, if they would reject the possibility of pursuing other forms of compensations.  While political reparations were not a systemic solution, they  offered an additional compensation mechanism to victims.
 
The content of registers was uniform and consistent with what was prescribed in the article 17 of the Convention.  The registers were kept up-to-date, but if it had been found that the police officer had not kept the register in line with the prescribed standards, an inquiry would be launched. Sanctions were usually of administrative nature. However, if the investigation pointed out to deliberate attempts of a police officer to hide some of the contents of register, the criminal inquiry could be initiated.
 
The National Human Rights Commission conducted monitoring on the detention centres. In 2015, the National Human Rights Commission had conducted three visits.  Also, the Ministry of Justice, Human Rights and Civic Promotion had conducted monitoring missions in 2015, in all thirteen regions of the country.  Total of 216 places of detention and  25 prisons around the country had been visited.  In addition, the Prosecutor’s office had conducted visits as well.
Regarding the declaration of absence, the delegation said that the Personal and Family Code was a mechanism designed to manage inheritance of the missing person.  The search for the missing person had never been abandoned following the issue of the declaration of absence.   Although Burkina Faso had no experience with enforced disappearances, there were cases of missing persons, most notably children. The child protection brigade would receive information on missing children and the search would then be initiated, lasting until the children had been found.
 
With regard to the concealment or destruction of documents, that was mostly done in cases of trafficking.  Concealment of documents was punishable, but destruction of the document was not an offence under the current law, unless it had been done because the person wanted to commit another offence. For example, if the destruction had been done in order to conceal the age of the child by traffickers, that would be considered an offence.
 
Concluding Remarks
 
JUAN JOSE LOPEZ ORTEGA, Committee Member and Country Rapporteur for Burkina Faso, thanked the delegation for the information provided and for their honest answers. He congratulated the delegation for a genuinely constructive dialogue, and said that both the report and the approach of the delegation could be an example for other countries. Mr. Ortega underscored, as the principal conclusion of the dialogue, that Burkina Faso had been undertaking significant efforts to modernize its legislation and adapt it to contemporary challenges.   Some issues remained to be tackled, such as the regulation of criminal procedures, additional warranties for non-refoulement and establishing the witness protection system.
 
EMMANUEL DÉCAUX, Committee Member and Country Rapporteur for Burkina Faso, also affirmed that the dialogue should be considered as a model for all other countries and expressed his appreciation for the honest and professional approach of the delegation, as well as their straightforward and succinct answers. He praised the country’s determination to implement the national human rights policy for the period from 2013 to 2021, in spite of the difficult political circumstances in the country.  Mr. Décaux advised that protective and preventive measures had to be further implemented to assist tackling the enforced disappearances in a wider context.  The independent institutions such as the National Observatory for the Prevention of Torture and Related Practices and the National Human Rights Commission were essential for the functioning of the legal system. For that reason, he expressed hope that the National Human Rights Commission would be reformed and brought in line with the Paris Principles.
 
BIBATA NEBIE, Director of the Cabinet at the Ministry of Justice, Human Rights and Civic Promotion, conveyed the satisfaction of the delegation with the dialogue and expressed her appreciation to the members of the Committee for their recognition of the efforts to improve the report and legal framework in the country.  The delegation was aware that there were shortcomings in the current system and procedures.  In spite of the difficult circumstances, the strong civil society in Burkina Faso and the political will to protect human rights continued to be main pillars for continuous reforms and improvements of the legal framework for human rights.

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