ICCPR Case Digest

CCPR/C/130/D/2731/2016

Communication

2731/2016

Submission: 2016.02.08

View Adopted: 2020.11.06

D. Kitumaini & al. v. DR Congo

Violation of the right to life in a case of assassination of a human rights defenders without justice over more than 15 years

Substantive Issues
  • Effective remedy
  • Interference with one's home
  • Liberty and security of person
  • Right to family
  • Right to life
  • Torture / ill-treatment
Relevant Articles
  • Article 17
  • Article 2.3
  • Article 23
  • Article 6.1
  • Article 7
  • Article 9.1
Full Text

Facts

The authors of the communication are the wife and children of Pascal Kabungulu, who was assassinated in 2005. Pascal Kabungulu was a human rights defender who was working to combat impunity and corruption. After years of attempted assaults, threats, and intimidation – after he reported on allegations of corruption and impunity in the armed forces, Pascal Kabungulu was assassinated in July 2005. On the night in question, three armed men wearing masks and uniforms broke into the authors’ home and shot Mr. Kabungulu in front of the authors and other witnesses. The three men then fled, taking the victim’s computer and some of his personal belongings. Given the status and international reputation of Pascal Kabungulu – various non-governmental organisations condemned this attack on an international level.

The next day, investigations began and on the same day, two officers were arrested and placed in detention. In the days that followed, these two officers were smuggled out by their lieutenant. Subsequently, a complaint was filed against the Lieutenant and the officers after their escape. But after the assassination, the authors received various threats and decided to leave the country and moved to Canada.

Once in Canada, the author launched a complaint in the Senior Military Prosecutor’s office concerning the assassination of her husband, the smuggling out of the perpetrators and their upcoming criminal charges and punishment. To this, the author’s legal representation requested a copy of the case file. Once the commission had published its final inquiry on the attack, they identified the three men involved and condemned the officers and the lieutenant for their behaviour. In November 2005, the trial for the murder of the victim started in the Bukavu Military court, where at least 6 individuals were brought forward. Unfortunately, in December 2006, the Court stated that they refused to exercise their jurisdiction over the Lieutenant and the Vice Governor D.K.K – as they could only be tried by the Military Supreme Court. After various disruptions of the judicial proceedings, the Lieutenant received a promotion within the ranks. In May 2007, the Lieutenant complained that he was being detained illegally as he had been detained for over 22 months. In 2008, even though various requests had been made for the trial to be resumed at the Military Supreme Court – the trial resumed at the Military High Court.

In the years that followed, various organisations have applied pressure to the government to expedite this process without success. The authors claim that Pascal Kabungulu was arbitrarily deprived of his life, in violation of article 6(1) of the Covenant. No adequate domestic remedy was provided after 10 years, in violation of the article 2(3) red in conjunction with article 6(1). Additionally, the State party failed to protect the victim against threats, intimation and attempted assault on various occasions, as a human rights defender, claiming a violation of victim’s right of security of person under article 9(1) of the Covenant.

Finally, due to the assassination of their father and husband; the failure by the State party to deliver justice after 10 years and the lack of exacerbated uncertainty the family has faced over the last 10 years – the authors argue that this constitutes as a violation of article 7 of the Covenant, read in conjunction with article 2(3). Additionally, the family were subjected to unlawful interference with their privacy, family and home life in the years before and after the murder. The family was met with various attempts of intimidation and assault before the murder of their father and husband and then had to flee from the State after his death. The authors claim that these events constitute a serious violation and interference with their rights to privacy, family and home – a violation of their rights under article 7 and 17 read in conjunction with article 2(3) and article 23 of the Covenant.

Admissibility

The Committee finds that in relation to exhausting domestic remedies, the State party not only has the duty to investigate alleged violations against human rights defenders but has the obligation to prosecute and punish those responsible for such. The Committee finds that the authors exhausted all possible domestic remedies available to them and have properly substantiated all their claims under articles 2(3), 6(1), 7, 17 and 23 of the Covenant. Therefore, these claims will be declared admissible.

The claim made under article 9(1) of the Covenant, that the State party failed to protect the victim was not appropriately substantiated, as this concern was never raised before the national authorities and cannot be considered admissible in this communication.

Merits

The Committee notes that the State party has not responded to all the allegations made by the authors and has failed to provide further information or case files to substantiate or disregard certain claims. In the absence of such information or any explanations form the State party, due weight will be given to the authors testimony’s.

The Committee notes the authors’ claims of what occurred to Pascal Kabungulu in 2005, and that the trial began that very same year. After 15 years, no real justice has been served from this trial and the State party has deprived the victim of his right to life – in violation of article 6(1) of the Covenant. Additionally, the Committee notes the anguish of such a death on his family members and is in the opinion that this too denotes a violation of article 7 of the Covenant. Furthermore, the State party has failed to provide reasons as to why those 3 men barged entry into the victim and authors home, and then assassinated him. After this, the family experienced various threats and intimidation resulting in them emigrating to Canada. Therefore the Committee finds a violation of article 17 of the Covenant.

The Committee will not assess article 23(1) separately.

When taking all the factors and violations into consideration, the Committee confirms that the State party is under the obligation to provide an effective remedy, and to adequately investigate, prosecute and punish those that commit crimes. Due to the States inability to deliver on justice for the assassination of Pascal Kabungulu, the State has failed the authors in delivering an effective remedy for their violations. In light of this, this inability would be a violation of article 6 read in conjunction with article 2(3) and a violation of article 7, read in conjunction with article 2(3) and article 17 of the Covenant.

Recommendations

The State party is obligated, inter alia, to take appropriate steps to:

  • pursue in a prompt, effective, exhaustive, independent, impartial and transparent manner the investigation and prosecution of the murder of Pascal Kabungulu
  • provide the authors with detailed information on the outcome of these proceedings;
  • prosecute, try and punish those responsible for the violations committed;
  • provide the authors with adequate compensation and appropriate measures of satisfaction.

The State party is also under an obligation to prevent similar violations from occurring in the future.

The Committee wishes to receive information about the measures that have been taken by the State party in effect of the present views. This must be done within 180 days, by 5 may 2021. 

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