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1. The author of the
communication is Marcel Mulezi, a national of the Democratic Republic of the
Congo resident in Geneva. The author claims that he and his wife are victims
of violations by the Democratic Republic of the Congo of articles 6,
paragraph 1; 7; 9, paragraphs 1, 2, 4 and 5; 10, paragraph 1; 14, paragraph
3; and 15, paragraph 1, of the International Covenant on Civil and Political
Rights. He is not represented by counsel.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 In July 1997, under pressure from one Commander Mortos (commander of the
Gemena Infantry Battalion in the north-west area of the Democratic Republic
of the Congo), the author, a businessman specializing in coffee and
transport, lent the army one of his trucks. The vehicle was not returned and
the author decided never again to agree to the military authorities'
requests.
2.2 At around 5 a.m. on 27 December 1997, members of a military intelligence
service of the Congolese Armed Forces � known as "Detection Militaire des
Activites Antipatrie" or DEMIAP associated with the regime of Congolese
President Laurent Desire Kabila- called on the author at his home to tell
him that his services were required by Commander Mortos. The author was
taken to the Gemena military camp, where he was immediately placed in
detention. At 9 a.m. he was subjected to an interrogation directed by
Commander Mortos concerning his alleged collaboration with the former
President of the Congo, General Joseph Desire Mobutu, and his associates.
2.3 At around 9.30 a.m., the author was confronted with one of his
employees, known as Mario, who, the author claims, had been tortured (a
broken jaw and other injuries prevented him from speaking or even standing
upright) and forced, during his interrogation, to accuse Mr. Mulezi of
collusion with Mobutu's faction.
2.4 When he contested these accusations, the author was brutally beaten up
by at least six soldiers. In addition to injuries to the nose and mouth, his
fingers were broken. He was tortured again the following day, when he was
tied up and beaten all over his body until he lost consciousness. In the
course of some two weeks of detention in Gemena, the author was tortured
four or five times every day: hung upside down; lacerated; the nail of his
right forefinger pulled out with pincers; cigarette burns; both legs broken
by blows to the knees and ankles with metal tubing; two fingers broken by
blows with rifle butts. Despite his condition, and in particular his loss of
mobility, he was not allowed to see a doctor. Like his fellow-detainees, the
author was unable to leave his cell even for a shower or a walk. He states
that he was in a cell measuring 3 metres by 3, which he shared at first with
8 and, eventually, 15 other detainees. Furthermore, since he was being held
incommunicado, he was not getting enough food, unlike the other prisoners,
who were brought food by their families.
2.5 After about two weeks, the author was transferred by air to the Mbandaka
military camp, where he was held for 16 months. Again, he was unable to see
a doctor, despite his physical condition, notably loss of mobility. He was
never informed of any charge against him; he was never brought before a
judge; and he was not allowed access to a lawyer. He states that he was held
with 20 others in a cockroach-ridden cell measuring roughly 5 metres by 3,
with no sanitation, no windows and no mattresses. His food rations consisted
of manioc leaves or stalks. Two showers a week were permitted and the
soldiers occasionally put the author out in the yard as he could not move by
himself. The author states that he eventually obtained some medicines when
Medecins Sans Frontieres (Doctors without Borders) visited the camp.
2.6 In late December 1998, the author's brother-in-law, Mr. Mungala, managed
to locate Mr. Mulezi through an army acquaintance, and paid him a brief
visit. It was then that the author learned that, the day after his arrest,
soldiers had searched his house and beaten up his wife. Commander Mortos had
refused Mrs. Mulezi's request to travel to the city of Bangui in the Central
African Republic in order to receive medical attention, and she died three
days later.
2.7 On 11 February 1999, when seeing what an appalling condition the author
was in, a soldier took him to hospital on his own initiative, but the
military police intervened, producing a summons from the Military Tribunal.
In actual fact the author was immediately put back in detention in the
military camp without being brought before a judge; the soldier who had
helped him was given a month's imprisonment.
2.8 On 25 May 1999, the author bribed some soldiers to take him to the
harbour next to the military camp, and a boat owner agreed to help him to
leave Mbandaka. The author then managed to escape from Africa to
Switzerland. According to a medical certificate from the Geneva University
Hospital, the author was hospitalized as soon as he arrived in Switzerland
in December 1999, for physical and psychological sequelae of the violence he
had been subjected to in his country of origin. After intensive medical
care, the author has recovered partial mobility, but he requires further
treatment if he is to regain his independence to any satisfactory degree.
THE COMPLAINT
3.1 The author claims that he and his wife are the victims of violations by
the Democratic Republic of the Congo of articles 6, paragraph 1; 7; 9,
paragraphs 1, 2, 4 and 5; 10, paragraph 1; 14, paragraph 3; and 15,
paragraph 1, of the International Covenant on Civil and Political Rights.
3.2 On the question of the exhaustion of domestic remedies, the author
claims that such remedies were inaccessible and ineffective, insofar as (a)
he was unable to apply to a court while he was arbitrarily detained and (b)
he is alive only because he managed to escape from the Mbandaka military
camp and flee to Switzerland.
3.3 Despite the request and reminders sent by the Committee to the State
party asking for a reply to the author's allegations (notes verbales of 8
January 2001, 17 October 2001 and 28 October 2003), the Committee has
received no response.
COMMITTEE'S DECISION ON ADMISSIBILITY
4.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
4.2 In accordance with article 5, paragraph 2 (a), of the Optional Protocol,
the Committee has ascertained that the same question is not being examined
under another procedure of international investigation or settlement.
4.3 In the light of the author's arguments concerning the exhaustion of
domestic remedies and the complete lack of cooperation from the State party,
the Committee considers that the provisions of article 5, paragraph 2 (b),
of the Optional Protocol are not an impediment to examination of the
communication.
4.4 The Committee considers that the author's complaint that the facts as
submitted constitute a violation of articles 14, paragraph 3; and 15,
paragraph 1, of the Covenant has not been sufficiently substantiated for the
purposes of admissibility. This part of the communication is therefore
inadmissible under article 2 of the Optional Protocol.
4.5 The Committee considers that, in the absence of any information from the
State party, the complaints submitted by the author may raise issues under
articles 6, paragraph 1, 7; 9, paragraphs 1, 2, 4 and 5; 10, paragraph 1,
and 23, paragraph 1 and should therefore be examined as to the merits.
EXAMINATION OF THE MERITS
5.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
required under article 5, paragraph 1, of the Optional Protocol. It notes
that the State party has not, despite the reminders sent to it, provided any
replies on either the admissibility or the merits of the communication. The
Committee notes that, under article 4, paragraph 2, of the Optional
Protocol, a State party is under an obligation to cooperate by submitting to
it written explanations or statements clarifying the matter and indicating
the measures, if any, that may have been taken to remedy the situation. As
the State party has failed to cooperate in that regard, the Committee had no
choice but to give the author's allegations their full weight insofar as
they have been substantiated.
5.2 With regard to the complaint of a violation of article 9, paragraphs 1,
2 and 4, of the Covenant, the Committee notes the author's statement that no
warrant was issued for his arrest and that he was taken to the Gemena
military camp under false pretences. Mr. Mulezi also maintains that he was
arbitrarily detained without charge from 27 December 1997 onwards, first at
Gemena, for two weeks, and then at the Mbandaka military camp, for 16
months. It is clear from the author's statements that he was unable to
appeal to a court for a prompt determination of the lawfulness of his
detention. The Committee considers that these statements, which the State
party has not contested and which the author has sufficiently substantiated,
warrant the finding that there has been a violation of article 9, paragraphs
1, 2 and 4, of the Covenant. On the same basis, the Committee concludes,
however, that there has been no violation of article 9, paragraph 5, as it
does not appear that the author has in fact claimed compensation for
unlawful arrest or detention.
5.3 As to the complaint of a violation of articles 7 and 10, paragraph 1, of
the Covenant, the Committee notes that the author has given a detailed
account of the treatment he was subjected to during his detention, including
acts of torture or ill-treatment and, subsequently, the deliberate denial of
proper medical attention despite his loss of mobility. Indeed, he has
provided a medical certificate attesting to the sequelae of such treatment.
Under the circumstances, and in the absence of any counter-argument from the
State party, the Committee finds that the author was a victim of multiple
violations of article 7 of the Covenant, prohibiting torture and cruel,
inhuman and degrading treatment. The Committee considers that the conditions
of detention described in detail by the author also constitute a violation
of article 10, paragraph 1, of the Covenant.
5.4 With regard to alleged violations of articles 6, paragraph 1 and 23,
paragraph 1, of the Covenant, the Committee notes the author's statement
that his wife was beaten by soldiers, that Commander Mortos refused her
request to travel to Bangui to receive medical attention, and that she died
three days later. The Committee considers that these statements, which the
State party has not contested although it had the opportunity to do so, and
which the author has sufficiently substantiated, warrant the finding that
there have been violations of articles 6, paragraph 1 and 23, paragraph 1,
of the Covenant as to the author and his wife.
6. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it reveal violations by the
Democratic Republic of the Congo of articles 6, paragraph 1;7; 9, paragraphs
1, 2 and 4; 10, paragraph 1; and 23, paragraph 1, of the Covenant.
7. Under article 2, paragraph 3 (a), of the Covenant, the State party has an
obligation to ensure that the author has an effective remedy available. The
Committee therefore urges the State party (a) to conduct a thorough
investigation of the unlawful arrest, detention and mistreatment of the
author and the killing of his wife; (b) to bring to justice those
responsible for these violations; and (c) to grant Mr. Mulezi appropriate
compensation for the violations. The State party is also under an obligation
to take effective measures to ensure that similar violations do not occur in
future.
8. The Committee recalls that, by becoming a State party to the Optional
Protocol, the Democratic Republic of the Congo recognized the competence of
the Committee to determine whether there has been a violation of the
Covenant or not and that, under article 2 of the Covenant, the State party
has undertaken to ensure to all individuals within its territory and subject
to its jurisdiction the rights recognized in the Covenant and to provide an
effective and enforceable remedy in the event that a violation is
established. Consequently, the Committee wishes to receive from the State
party, within 90 days of the transmission of these findings, information
about the measures taken to give effect to its views. The State party is
also requested to make these findings public.
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[Adopted in English, French and Spanish, the French text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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