The Working Group on Enforced or Involuntary Disappearances concludes its visit to the Republic of the Congo

BRAZZAVILLE - A delegation of the United Nations Working Group on Enforced or Involuntary Disappearances (*) concluded its visit to the Republic of the Congo. The visit took place from 24 September to 3 October 2011. The delegation of the Working Group was composed of Mr. Olivier de Frouville, Vice-Chair of the Working Group, and Mr. Osman El-Hajjé, member of the Working Group. The purpose of this visit was to study the country’s efforts in dealing with the issue of enforced disappearances, including how it is addressing cases of enforced disappearances which occurred in the past.

 The Working Group would like to thank the Congolese authorities for the invitation to undertake this visit, which is the result of several years of good cooperation between the Working Group and the Congolese authorities. The Working Group is also grateful to the Government of the Republic of the Congo for its welcome and its cooperation during the preparation as well as during the course of the mission.

The Working Group also wishes to thank the United Nations Secretariat for the invaluable support it has provided to it in the fulfillment of its mandate.

During the mission, the Working Group visited Brazzaville and Pointe Noire. In Brazzaville, the Working Group visited the port on the river (usually called "the Beach of Brazzaville"), the Centre Sportif de Makélékélé, the Central Directorate of Military Intelligence, the Central Police Station of Brazzaville and the Police Station of Ouenzé II.

The Working Group was received by the State Minister, Coordinator of the division of sovereignty, Chancellor, Minister of Justice and Human Rights. It also met the Minister of Communications and of Relations with the Parliament, Spokesperson of the Government; the Minister of Social Affairs, Humanitarian Action and Solidarity; as well as the Legal Advisor of the President of the Republic, and senior officials of the Government pertaining to several ministries, including the Ministry of Foreign Affairs and Cooperation, the Ministry of the Interior and Decentralization, and the Ministry in charge National Defense.

The Working Group also held meetings with the President of the Senate and the Vice-President of the National Assembly. It also met the Vice-Chair and a member of the Constitutional Court, the President and the Attorney General of the Supreme Court, the Prosecutor of the Tribunal de Grande Instance of Brazzaville, as well as the First President of the Court of Appeal of Brazzaville and a judge at the Supreme Court who served, respectively, as President of the Chamber and Prosecutor General at the trial held in the Congo in 2005 before the Criminal Chamber of the Court of Appeal Brazzaville in the case known as " the disappeared of the Beach."

In Pointe Noire, the Working Group was received by the Mayor of Pointe Noire, the Prefects of Kouilou and Pointe-Noire, and met the President of the County Council of Kouilou, who was also the former President of the Parliamentary Commission of Inquiry established in 2001 to investigate the disappearances which occurred in the Republic of the Congo since 1992.

The Working Group also met the President and members of the National Human Rights Commission, as well as members of the Follow-Up Committee of the Convention for peace and reconstruction of Congo. It met with non-governmental organizations, lawyers and other civil society stakeholders.

The Working Group also met with several families of victims of enforced disappearances.

With regard to international organizations, the Working Group met the UN Resident Coordinator in the Republic of the Congo as well as representatives of the United Nations High Commissioner for Refugees and the International Committee of the Red Cross (ICRC) delegate in Brazzaville.

 As part of its humanitarian mission, which is to assist families to clarify the fate of their loved ones, the Working Group is currently considering 94 cases. Most of these cases relate to enforced disappearances which reportedly took place in 1999. The Working Group thanks the Government for the information provided during the mission and wishes to continue its cooperation with the aim to resolve the cases which remain outstanding.

The Working Group welcomes the fact that the Republic of the Congo has signed the 2006 International Convention for the Protection of All Persons from Enforced Disappearance. The Working Group encourages the Government to accelerate the process of ratification of this Convention and to accept the competence of the Committee under Articles 31 and 32 of the Convention.

The Working Group would like to share its preliminary findings and recommendations at the conclusion of its visit. These will be completed in the report to be presented at a later stage to the United Nations Human Rights Council.

The observations of the Working Group will first concentrate on the general context of the phenomenon of enforced disappearances in Congo (I), before focusing on the case of the disappeared of the Brazzaville Beach (II). The observations will then deal with certain aspects of the legislation and practice of the Republic of the Congo concerning the UN Declaration on the Protection of All Persons from Enforced Disappearance (III).

I. Background

Between the early 1990s and the mid-2000s, the Republic of the Congo has experienced a series of political crises that led to the outbreak of several deadly armed conflicts. During these conflicts, the State security services, the army, the police and the special services, as well as the various armed groups and militias which were part of the conflict, have been accused of engaging in repeated attacks against the civilian population, during which serious violations of human rights occurred, such as summary executions, rape, torture and enforced disappearances.

Today, all the interlocutors of the Working Group welcome the return to peace throughout the territory of Congo, which constitute a condition for the promotion and protection of the human rights of the population without discrimination of any kind.

The Working Group welcomes this state of peace, resulting from the reconciliation between the military and civilian parties, as well as the spirit of national unity which drives today the actors of the Congolese political life. This spirit is expressed in the highest ranks of the State and was reflected in the establishment of an inclusive national dialogue and of the Follow-Up Committee of the Convention for peace and reconstruction of Congo, which are tangible manifestations of the desire for reconciliation and peace in the Republic of the Congo.

The Working Group would also like to stress that the harm caused to civilians by the conflict is far from being healed. In particular, families still want to know the truth about what happened to their relatives, victims of enforced disappearances.

Enforced disappearance is a "suspended-time crime." The family and relatives of the disappeared persons suffer slow mental torture because they do not know if the victim is still alive and, if so, where he or she is detained, under what circumstances and in which health conditions. In addition, they believe it could be dangerous to seek the truth.

The distress of the family is often aggravated by the material difficulties arising from the disappearance. In many cases, the disappeared person is the main financial support of the family. He or she is perhaps the only member capable of leading the family business. The emotional upheaval is thus exacerbated by the material harm, which is felt even harder if the family decides to undertake researches and must therefore incur in costs. In addition, the family does not know whether the loved one will return one day, so it is difficult to adapt to this new situation. Sometimes, according to the laws of the country concerned, the family cannot claim any pension or other benefits, without having proved the death of the disappeared person. The family thus often finds itself economically and socially marginalized.

II. The case of the disappeared of the Brazzaville Beach

In the context of the armed conflict raging in the territory of the Republic of the Congo since 1997, thousands of Congolese civilians fled, seeking safety and peace within the country or beyond the borders of their State. In 1999, the Government appealed for the return of these refugees. In this context, a tripartite agreement was signed between the Republic of the Congo, the Democratic Republic of Congo (DRC) and the United Nations High Commissioner for Refugees, to facilitate the return to Congo of those refugees who were on the territory of the DRC. Numerous and consistent allegations from families and witnesses state that enforced disappearances were perpetrated against the refugees in the three humanitarian corridors which had been opened for their return. In particular, when they arrived at the river port of Brazzaville, refugee families were separated, women and children were left free to leave, while the men were detained by armed persons who were present on the scene. These men were then subjected to enforced disappearance.
 
In 2005, a trial was held before the Criminal Chamber of the Court of Appeals of Brazzaville. It was broadcasted live by Congolese television and radio. The defendants were senior officials of various State security services (police, army, presidential guard, special services). Eighty-four families were allowed to constitute themselves as civil parties while the requests of other families were rejected. The accused appeared at the hearings in liberty. After the hearing - which took place in an atmosphere of great tension, given the sensitivity and seriousness of the case - the accused were acquitted. However, the Criminal Chamber, deliberating on the civil action, awarded compensation to the civil parties. It estimated that the State was responsible on the basis of a presumption of fault.
 
"[T] hese operations of repatriation were carried out in a period of recrudescence of attacks by the Ninjas militias, the State should have scrupulously organized general security measures justified by the state of war. "
 
Acting on an appeal, the Supreme Court partially overturned the decision of the Criminal Chamber and adjusted upward most of the compensations awarded to the civil parties.
 
According to various interlocutors of the Working Group, the trial of Brazzaville had a pedagogic effect on the population, bringing to light a particularly tragic episode of the civil war. According to some, the mere sight of senior officers at the dock would have been at the origin of a general awareness on the need to adopt effective measures to prevent future violations. Others believe that the trial had the only purpose of definitively exonerating the accused so as to prevent any future prosecution, thus creating a de facto amnesty.
 
Nevertheless, the trial has established, on the one hand, the certainty that people were victims of enforced disappearances and, on the other hand, the administrative responsibility of the State on the matter.
 
The Working Group regrets that the judicial process could not lead to the identification and punishment of those responsible for enforced disappearances and recalls that Article 13 § 6 of the Declaration states:
 
"An investigation (...) should be able to be conducted for as long as the fate of the victim of enforced disappearance remains unclarified."
 
Moreover, Article 7 of the Declaration states that "No circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances."
 
In this regard, the Working Group welcomes the fact that instructions have been given to the Prosecutor of the Tribunal de Grande Instance of Brazzaville to open an investigation into twenty-three cases of enforced disappearances that have not been taken into consideration in the 2005 process.
  
The Working Group regrets that the right to the truth of the families about the fate of their loved ones could not be satisfied. Indeed, the right of relatives to know the truth about the fate and whereabouts of the disappeared persons is an absolute right that cannot be subjected to any limitation or derogation.
 
As for the right to reparation, the Working Group notes with appreciation the compensation awarded to the families who were civil parties in the 2005 process as a result of the responsibility of the State. The Working Group believes, however, that this compensation should be supplemented by other forms of reparation, including psychological and social assistance to families often plunged into serious difficulties due to the disappearance of their relatives.
 
The families of the disappeared have expressed the desire to be received by the President of the Republic as a sign of recognition of their sufferance. They also asked to be allowed to hold a ceremony, every 5th of May, to honor those who disappeared at the Brazzaville Beach. The Working Group encourages the Government to meet these legitimate demands, which stem from the right to reparation recognized in the 1992 Declaration.

III. The law and practice in the Republic of the Congo with regard to the 1992 Declaration

As part of the mandate entrusted to the Working Group to promote the UN 1992 Declaration on Enforced Disappearances, it examined in more general terms the law and practice of Congo in the prevention and punishment of the crime of enforced disappearance, as well as the rights of victims to the truth and reparation.

1. Punishment of the crime of enforced disappearance

The Working Group welcomes the fact that the Congolese criminal law defines enforced disappearance as a crime against humanity. Indeed, the law 8-98 of 3 October 1998 incorporated in the Criminal Code the definitions of genocide, crimes against humanity and war crimes, as they result from the Rome Statute establishing the International Criminal Court. Enforced disappearances are among the acts which qualify as crimes against humanity under this definition, when they are committed as part of a widespread or systematic attack against a civilian population.

However, the Congolese Criminal Code does not currently contain enforced disappearance as an autonomous crime, regardless of its qualification as a crime against humanity. Article 4 § 1 of the Declaration states:

"All acts of enforced disappearance shall be offences under criminal law punishable by appropriate penalties which shall take into account their extreme seriousness."

The Working Group therefore invites the Republic of the Congo to integrate into its criminal code the autonomous crime of enforced disappearance.

2. Prevention of enforced disappearances

The national legislation concerning criminal procedure provides the necessary guarantees for the prevention of enforced disappearances. According to various interlocutors of the Working Group, persons taken into police custody or in preventive detention do not encounter, in general, obstacles to contact their families or their lawyers (Article 10 § 2). In addition, prison registries are kept in every place of detention, to ensure the presence of a person or keep track of his or her passage in such place (Article 10 § 3 and 11 of the Declaration). Delays in the period of police custody have been reported, which appear primarily due to lack of resources available to the police and the judiciary. In general, however, police officers and judges the Working Group met with seemed determined to act together to facilitate the presentation to a judge of the persons in police custody within the period established by the law. The Working Group therefore encourages the Republic of the Congo to improve substantially the resources made available to the police and the judiciary.

The Working Group welcomes in this regard the assistance programs funded by the European Union.

The Working Group is however deeply concerned about the detention of some people from the DRC, for almost eight years, at the premises of the Central Directorate of Military Intelligence of Brazzaville, without any legal control and without ever being brought before a judge, exposing these people to the risk of being subjected to enforced disappearance. According to the authorities, these people would be detained with a view to ensure their security pending the outcome of their request for asylum.

Nevertheless, the Working Group recalls that Article 10 § 1 of the Declaration states:

"Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention."

The Working Group therefore requests the authorities of the Republic of the Congo to take without delay all necessary steps to remedy this situation and bring it in conformity with the Declaration.

3. The right of victims to reparation

According to Article 19 of the Declaration, the right to reparation includes the right to benefit of the "means for as complete rehabilitation as possible." This
obligation refers to medical and psychological care and rehabilitation for any form of physical or mental damage as well as to legal and social rehabilitation, guarantees of non-repetition, restoration of personal liberty, family life, citizenship, employment or property, return to one’s place of residence and similar forms of restitution, satisfaction and reparation which may remove the consequences of the enforced disappearance.

The Working Group believes that, while it is to be welcomed that positive steps are taken by different departments and within different governmental programs to support certain sectors of the population, there is not a single integrated and comprehensive program of reparations for the harm caused to civilians during the various conflicts.

Such a program could be established on the basis of the recognition of State responsibility in the matter, taking as basis the jurisprudence of the Criminal Chamber of the Court of Appeals of Brazzaville in the case of “the disappeared of the Beach". In this case, the Criminal Chamber recognized the responsibility of the State for its failure, due to malfunction, to ensure the safety of its citizens. Other similar actions may be brought before national courts by different categories of victims, including families of disappeared persons whose cases were not included in the trial of 2005.

More generally, the Working Group acknowledges the efforts of the Government of the Republic of the Congo to restore confidence between the different segments of the Congolese population. The Working Group could notice, however, that it continued to prevail in the population a certain degree of apprehension in testifying and claiming their legitimate rights. The Working Group therefore encourages the Government to continue along this path of restoring confidence, by taking all necessary steps to ensure that all citizens feel protected by the law on an equal footing and without discrimination based on geographical or ethnic origin.

4. The right to the truth of the victims

The right to the truth is both a collective and an individual right. If the truth has to be told at the level of society, as a guarantee of non-repetition of violations, each victim has also the right to know the truth about the violations that have harmed him or her.

The Republic of the Congo has taken, in recent years, positive measures for the realisation of the right to the truth at the level of society.  The Congolese society is cognisant of its past and of the extent of the conflicts that torn apart its social fabric. However, the question of the realisation of the individual right to the truth does not seem to have been yet included in the policies and programs of the State.

The individual right to know the truth about the fate of a victim of enforced disappearance is an absolute right. This right shall include procedural obligations borne by the State, including access to a competent and independent body, and an obligation to investigate until the light is shed on the fate of the disappeared person.

The right to the truth must be recognized as an autonomous right, different from the right to justice. The Working Group underlines in particular that the right to the truth can be achieved by means other than a judicial process. In certain situations, the realization of the right to the truth can affect the right to justice when the criminal proceedings are considered to go against the purpose of reconciliation pursued by the State and the segments of the Congolese society. The Working Group recalls that the pardon should be granted only after a genuine peace process, and negotiations in good faith with the victims, producing as a result apologies and the expression of regret on the part of the State or the perpetrators and safeguards to prevent disappearances in the future.

The proceedings of 2005 were certainly a first step in the realization of the right to the truth. This step, however, requires to be extended through a broader program for the restoration of truth and reconciliation in order to satisfy each victim and cover all serious human rights violations which occurred in Congo.

IV. Recommendations

Based on its preliminary findings, the Working Group recommends the Republic of the Congo to adopt, as a matter of priority, the following measures:

1. Continue to seek the truth about the fate of the disappeared persons.

2. Include enforced disappearance as an autonomous crime in the criminal code.

3. Take action against the impunity of the perpetrators of this crime.

4. Increase the resources available to the police and the judiciary, to allow a better prevention of enforced disappearances.

5. Extend the training programs in the field of human rights and humanitarian law including, in particular, the elements relating to enforced disappearances, to a higher number of officers working in the police, judiciary and army.

6. Develop an integrated and comprehensive reparations program for the harm caused to civilians during the various conflicts that bereaved the Republic of the Congo.

7. Further strengthen the institutions of the Republic of the Congo in charge of reparations and national reconciliation.

The Working Group calls upon the international community to provide the Republic of the Congo appropriate assistance for the strengthening of the technical capacity in the field of the promotion and protection of human rights.

*

The above preliminary findings and recommendations will be developed in detail in the report to be presented to the Human Rights Council in 2012.

(*) The Working Group is comprised of five independent experts from all regions of the world. The Chair-Rapporteur is Mr. Jeremy Sarkin (South Africa), the Vice-Chair is Mr. Olivier de Frouville (France), and the other members are Mr. Ariel Dulitzky (Argentina), Ms. Jasminka Dzumhur (Bosnia and Herzegovina), and Mr. Osman El-Hajjé (Lebanon).

END

The Working Group was established by the United Nations Commission on Human Rights in 1980 to assist families in determining the fate and whereabouts of disappeared relatives. It endeavours to establish a channel of communication between the families and the Governments concerned, to ensure that individual cases are investigated, with the objective of clarifying the whereabouts of persons who, having disappeared, are placed outside the protection of the law. In view of the Working Group's humanitarian mandate, clarification occurs when the fate or whereabouts of the disappeared person is clearly established. The Working Group continues to address cases of disappearances until they are resolved.

The Working Group also provides assistance in the implementation by States of the United Nations Declaration on the Protection of All Persons from Enforced Disappearance.

For more information on the Working Group on Enforced or Involuntary Disappearances, log on to: http://www.ohchr.org/EN/Issues/Disappearances/Pages/DisappearancesIndex.aspx   

OHCHR Country Page – Congo: http://www.ohchr.org/EN/countries/AfricaRegion/Pages/CGIndex.aspx 

For further information on the mission and media requests: Secretariat of the Working Group (+41 79 201 0122 / mpellado@ohchr.org / wgeid@ohchr.org)

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