Difference between revisions of "Burundi"

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== Background of Burundi ==
 
== Background of Burundi ==
Burundi is an African country located in the Great Lakes region and is one of the six member states of the East African Community (EAC). With a total area of 27,834 km, Burundi is one of the smallest countries in Africa. Landlocked, Burundi shares borders with Tanzania to the East, the Democratic Republic of the Congo to the West, and Rwanda to the North. Burundi contains Lake Tanganyika and other smaller lakes that dot the country. The overall population density compared to the area of the land (not including the lakes) is 435 inhabitants per km2, which is concentrated mainly in the provinces of Gitega, Kayanza, Ngozi, Kirundo, and Muyinga, making Burundi one of the most populous African countries. Burundi officially recognizes three ethnic groups: the Hutu (85% of the population), the Tutsi (14% of the population), and the Twa (1% of the population). The cohabitation of these three ethnic groups caused tensions to rise in the past but after the Arusha Accords were signed in 2000, a much more peaceful atmosphere has existed until the recent political crises crises.
+
Burundi is an African country located in the Great Lakes region and is one of the six member states of the East African Community (EAC). With a total area of 27,834 km, Burundi is one of the smallest countries in Africa. Landlocked, Burundi shares borders with Tanzania to the East, the Democratic Republic of the Congo to the West, and Rwanda to the North. Burundi contains Lake Tanganyika and other smaller lakes that dot the country. The overall population density compared to the area of the land (not including the lakes) is 435 inhabitants per km2 <ref> https://data.worldbank.org/indicator/EN.POP.DNST?locations=BI <ref>, which is concentrated mainly in the provinces of Gitega, Kayanza, Ngozi, Kirundo, and Muyinga, making Burundi one of the most populous African countries. Burundi officially recognizes three ethnic groups: Hutu (85% of the population), Tutsi (14% of the population), and Twa (1% of the population). The cohabitation of these three ethnic groups caused tensions to rise in the past but after the Arusha Accords were signed in 2000, a much more peaceful atmosphere has existed until the recent political crises crises.
  
Historically, Burundi has experienced political crises and repeated civil wars between 1962 and 2008 that caused the deaths of more than 600,000 people. During the years of civil war following Burundi’s independence in 1962, Burundi struggled to grow economically, finally experiencing positive growth in 2005 at a rate of three to five percent. As emphasized by the World Bank, however, Burundi is still suffering the reverberations from previous wars, seeking to bandage wounds that have still not fully healed. Economic progress in Burundi is slowed by the high prices for food and oil, an energy deficit, inflation, excessive population growth, and a strong dependence on international financial aid. According  to a 2019 MSN report using World Bank data, Burundi is the second poorest country in the world, behind the Central African Republic.
+
Historically, Burundi has experienced political crises and repeated civil wars between 1962 and 2008 that caused the deaths of more than 600,000 people. During the years of civil war following Burundi’s independence in 1962, Burundi struggled to grow economically, finally experiencing positive growth in 2005 at a rate of three to five percent. As emphasized by the World Bank, however, Burundi is still suffering the reverberations from previous wars, seeking to bandage wounds that have still not fully healed. Economic progress in Burundi is slowed by the high prices for food and oil, an energy deficit, inflation, excessive population growth, and a strong dependence on international financial aid. According  to a 2019 MSN report using World Bank data, Burundi is the second poorest country in the world, behind the Central African Republic <ref> https://www.msn.com/en-us/money/markets/poorest-countries-in-the-world/ss-AADzihN#image=25 <ref>.
  
 
==National Sources of Law==
 
==National Sources of Law==
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Burundian law is dense in legal texts which can be applied to accused, indicted, condemned and detained individuals. The main texts applicable in criminal matters are:
 
Burundian law is dense in legal texts which can be applied to accused, indicted, condemned and detained individuals. The main texts applicable in criminal matters are:
  
- '''Criminal code''', revisited, 2009;
+
- '''Criminal code''', revised in December 2017 under Law N°1/ 27 of 29 December 2017;
  
- '''Code of Criminal Procedure''', revisited, 2013;
+
- '''Code of Criminal Procedure''', revised in May 2018 under Law N°1/ 09 of 11 May 2018;
  
- '''Constitution of Burundi''', Law N°1/ 010 of the 18 March 2005 promulgating the Constitution of the Republic of Burundi
+
- '''Constitution of Burundi''', Law N°1/ 010 of 18 March 2005 promulgating the Constitution of the Republic of Burundi;
 +
 
 +
-'''Law N°1/13''', September 22, 2016 on prevention, protection of victims and repression of gender based violence
  
 
- '''Act No. 1/014''' of the 29 November 2002 reforming the status of the profession of a lawyer<ref> http://www.burundilegis.com/bl-entrepreneur/avocat-statut.html</ref>
 
- '''Act No. 1/014''' of the 29 November 2002 reforming the status of the profession of a lawyer<ref> http://www.burundilegis.com/bl-entrepreneur/avocat-statut.html</ref>
  
  
==International sources of Law==
+
==International Sources of Law==
 +
 
 +
Burundi's '''Constitution''' recalls it's commitment and respect for the Universal Declaration of Human Rights of the 10 December 1948, the International Covenant on Economic, Social and Cultural Rights of the 16 December 1966, the African charter on Human and Peoples' Rights of the 18 June 1981, and the National Unity charter. Additionally, considering that relations between people characterised by peace, friendship and collaboration in accordance to the Charter of the United Nations of 26 June 1945; Burundi's commitment to the Africain Unity in accordance with the Charter of the organization of African Unity (OUA), later known as The African Union (AU), of 25 May 1963 is reaffirmed. Furthermore, Burundi has ratified a multitude of treaties related to human rights which are the following: <ref> http://www.arib.info/A_HRC_33_37_Unofficial%20translation_.pdf</ref> <ref>http://lib.ohchr.org/HRBodies/UPR/Documents/Session3/BI/A_HRC_WG6_3_BDI_1_Burundi_F.pdf</ref>
 +
 
 +
'''- UDHR''' - Universal Declaration of Human Rights (1948) <ref>https://www.un.org/en/universal-declaration-human-rights/ <ref>
 +
 
 +
'''- ICCPR''' - International Covenant on Civil and Political Rights (1990) <ref> https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en <ref>
  
Burundi's '''constitution''' recalls it's commitment and respect for the Universal Declaration of Human Rights of the 10 December 1948, the International Covenant on Economic, Social and Cultural Rights of the 16 December 1966, the Africain charter on Human and Peoples' Rights of the 18 June 1981, and the National Unity charter. Additionally, considering that relations between people characterised by peace, friendship and collaboration in accordance to the Charter of the United Nations of 26 June 1945; Burundi's commitment to the Africain Unity in accordance with the Charter of the organization of Africain Unity of 25 May 1963 is reaffirmed. Furthermore, Burundi has ratified a multitude of treaties related to human rights which are the following: <ref> http://www.arib.info/A_HRC_33_37_Unofficial%20translation_.pdf</ref> <ref>http://lib.ohchr.org/HRBodies/UPR/Documents/Session3/BI/A_HRC_WG6_3_BDI_1_Burundi_F.pdf</ref>
+
'''- ICESCR''' - International Covenant on Economic, Social and Cultural Rights (1990) <ref> https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx <ref>
  
'''- UDHR''' - Universal Declaration of Human Rights (1948 was when Burundi joined the UDHR)
+
'''- African Charter on Human and Peoples' Rights''' (1989) <ref> http://www.humanrights.se/wp-content/uploads/2012/01/African-Charter-on-Human-and-Peoples-Rights.pdf <ref>
  
'''- ICCPR''' - International Covenant on Civil and Political Rights (1990)
+
'''- Convention on the Prevention and Punishment of the Crime of Genocide''' (1996) <ref> https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx <ref>
  
'''- ICESCR''' - International Covenant on Economic, Social and Cultural Rights (1990)
+
'''- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment''' (1992) <ref> https://www.ohchr.org/en/professionalinterest/pages/cat.aspx <ref>
  
'''- African Charter on Human and Peoples' Rights''' (1989)
+
'''- Convention on the Rights of the Child''' (1997) <ref> https://www.ohchr.org/en/professionalinterest/pages/crc.aspx <ref>
  
'''- Convention on the Prevention and Punishment of the Crime of Genocide''' (1996)
+
'''- AU Convention Governing Specific Aspects of Refugee Problems in Africa''' (1975) <ref> https://au.int/en/treaties/oau-convention-governing-specific-aspects-refugee-problems-africa <ref>
  
'''- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment''' (1992)
+
'''- Convention on the Political Rights of Women''' (1992) <ref> https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVI-1&chapter=16&lang=en <ref>
  
'''- Convention on the Rights of the Child''' (1997)
+
'''- International Convention on the Elimination of All Forms of Racial Discrimination''' (1977) <ref> https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx <ref>
  
'''- AU Convention Governing Specific Aspects of Refugee Problems in Africa''' (1975)
+
'''- Convention on the Elimination of All Forms of Discrimination against Women''' (1991) <ref> https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx <ref>
  
'''- Convention on the Political Rights of Women''' (1992)
+
'''-- International Convention for the Protection of All Persons from Enforced Disappearance''' (2007) <ref> https://www.ohchr.org/en/hrbodies/ced/pages/conventionced.aspx <ref>
  
'''- International Convention on the Elimination of All Forms of Racial Discrimination''' (1977)
+
'''- Optional Protocol on the Rights of the Child on the involvement of children in armed conflict''' (2008) <ref> https://www.ohchr.org/en/professionalinterest/pages/opaccrc.aspx <ref> <ref> https://unchrd.org/index.php?option=com_content&view=article&id=119&Itemid=115 <ref>
  
'''- Convention on the Elimination of All Forms of Discrimination against Women''' (1991)
 
  
 
==The Rights of the Accused and Detained==
 
==The Rights of the Accused and Detained==
  
A certain number of fundamental rights and principles prevail all the steps of the procedure from the arrest to the final hearing. They are:
+
A certain number of fundamental rights and principles prevail all the steps of the procedure from the arrest to the final hearing.  
  
  
 
'''The right to be informed of your rights and motives for the arrest'''
 
'''The right to be informed of your rights and motives for the arrest'''
  
The right of any person arrested to be informed of the reasons for their arrest is a procedural safeguard which can not be restricted, at any time or under any circumstances.  
+
The right of any person arrested to be informed of the reasons for their arrest is a procedural safeguard which cannot be restricted, at any time or under any circumstances. This right is provided for in the Code of Criminal Procedure. Article 10 states that before being interrogated, the person to be interrogated must be informed of their rights, especially the right to remain silent in the absence of a lawyer. In Article 35, a judicial police officer must inform the accused person of their rights and give them an ability to exercise their rights during police custody. 
  
  
'''Presumption of innocence'''
+
'''The Right to the Presumption of innocence'''
  
The right of accused and detained persons to be presumed innocent is clearly affirmed in '''article 40''' of the '''Constitution''', which states that ''"all persons accused of a derelict act is presumed innocent until his or her guilt is legally established by a public process during which all the necessary guarantees for his or her free defense has been assured."''
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The right of accused and detained persons to be presumed innocent is clearly affirmed in '''Article 40''' of the '''Constitution''', which states that ''"all persons accused of a derelict act is presumed innocent until his or her guilt is legally established by a public process during which all the necessary guarantees for his or her free defense has been assured."'' This right also appears in '''Article 90''' and '''Article 154''' of '''The Code of Criminal Procedure''' that states, “Freedom is the rule and detention the exception”. The presumption of innocence is also thought to be the motivating factor to Article 110 of the Code of Criminal Procedure, which requires the prosecutor to investigate the crime for proof that the accused person should be convicted along with sufficient explanations and reasonings.
  
  
 
'''The right to be assisted by a lawyer'''
 
'''The right to be assisted by a lawyer'''
  
The right to be assisted by a lawyer is recognised by the '''Code of Criminal Procedure'''. Under '''Article 95''' of the Convention, it is stated that the alleged offender is entitled to all necessary guarantees for the exercise of the right to defense.
+
The right to be assisted by a lawyer is recognised by the '''Code of Criminal Procedure'''. Under '''Article 222''', every accused person has the right to be assisted by a lawyer or a specially agreed upon representative by the tribunal. Unless the accused person objects, the judge can ask the president of the Bar to appoint a Bar-certified lawyer to represent the defendant. Every accused person that is a minor or who has been accused of a crime with a punishment over 20 years imprisonment must be represented by a lawyer.
  
  
 
'''The right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment'''
 
'''The right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment'''
  
The '''Constitution''' recognizes in '''Article 25''' that no one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment. Therefore, the '''Constitution''' of Burundi prohibits any use of torture or cruel, inhuman or degrading treatment or punishment. Torture is also defined in '''Article 204''' of the '''Penal Code''' as any act by which acute physical pain, mental pain or suffering is intentionally inflicted on a person for the purpose of obtaining information or a confession; punishing an individual for an act they have or are suspected of having committed; intimidating and putting pressure on an individual; or any other reason based on discrimination inflicted by a public official is a punishable violation. This in backed up by '''Article 205''' of the '''Penal Code''' which states that anyone who subjects a person to torture or other cruel, inhuman or degrading treatment shall punished with penal servitude of ten to fifteen years and with a fine of one hundred thousand to one million"
+
The '''Constitution''' recognizes in '''Article 25''' that no one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment. Therefore, the '''Constitution''' of Burundi prohibits any use of torture or cruel, inhuman or degrading treatment or punishment. Torture is defined in '''Article 206''' of the '''Penal Code''' as any act by which acute physical pain, mental pain or suffering is intentionally inflicted on a person for the purpose of obtaining information or a confession; it punishes an individual for an act they have or are suspected of having committed; intimidating and putting pressure on an individual; or any other reason based on discrimination inflicted by a public official. This in backed up by '''Article 207''' of the '''Penal Code''' which states that anyone who subjects a person to torture or other cruel, inhuman or degrading treatment shall be punished with penal servitude of ten to fifteen years and with a fine of one hundred thousand to one million".
 +
However, under Article 208, the accused person can be punished for up to twenty years if they commit torture against a minor, a vulnerable person or a witness or victim to prevent him from going to authorities; they commit the act with multiple people acting as complices; or they use or threaten to use a weapon. Under Article 209, the person can be imprisoned for up to twenty years if the torture results in mutilation or a permanent injury or is accompanied by sexual aggression, and if the victim dies, the accused can be subject to imprisonment for life. The order of a superior or a public authority to partake in torture is not a defense under Article 210. Under Article 90 of the Code of Criminal Procedure, if any evidence, confession or other information regarding the case is obtained through torture, by constraint or by any other illegal means, the evidence cannot be admitted before a court of law. Furthermore, under Article 239, confessions cannot be admitted as evidence if it was obtained by “coercion, violence, threat or against a promise of any advantage or by any other means detrimental to the free will of the confessor.”
  
  
 
'''The right to be judged within a reasonable time'''
 
'''The right to be judged within a reasonable time'''
  
The '''Article 40''' of the '''Constitution of Burundi''' guarantees that everyone will be judged within a reasonable time.  
+
''Article 40''' of the '''Constitution of Burundi''' guarantees that everyone will be judged within a reasonable time.  
 +
 
 +
 
 +
'''The Right to a Public Trial'''
 +
 
 +
Publicizing debates promotes fairness. Free defense imposes a duty not to prosecute lawyers for what they may say in their pleadings (see '''Article 35''' of '''The Lawyers' Profession Act'''). The debate must remain free of censorship. Contempt and insult remain criminal and deontological however, the freedom of speech for the lawyer is no longer the same when leaving the courtroom and confronting the press. The publicity of the debates  is a universal tenant of freedom of speech because it provides transparency during the judicial process for the general public to witness. This increases accountability among judges, prosecutors and defense counsel.
 +
 
 +
 
 +
'''The Right to an Interpreter'''
 +
'''Article 115''' in '''The Code of Criminal Procedure''' requires the use of a public interpreter if the accused person is unable to express themselves in or understand the working language of the court. '''Articles 143 to 153''' provide for the necessary requirements of choosing and appointing public interpreters.
 +
 
 +
 
 +
'''The Right to Silence'''
 +
'''Article 10''' of '''The Code of Criminal Procedure''' states that before being interrogated, the person being interrogated must be informed of their rights, specifically the right to remain silent in the absence of a lawyer. '''Article 138''' restates the right to remain silent for defendants in both criminal and civil cases. 
  
  
'''The right to a public trial'''  
+
'''The Right to Know the Content of the Case-File'''
 +
'''Article 135''' and '''Article 136''' of The Code of Criminal Procedure state that an accused person and parties in civil cases have the right, with their lawyer, to know the contents of their case file. They may request to read the contents of  their case file at any time. '''Article 35''' states that upon release, a detainee has the right to have certain information contained in their case file.
  
Publicizing debates promotes fairness. Free defence imposes a duty not to prosecute lawyers for what they may say in their pleadings (see '''Article 35''' of the '''Lawyers' Profession Act''') The debate must remain free of censorship. This principle applies to a double reservation: on one hand, contempt and insult remain criminal and deontological, on the other hand, the freedom of speech of the lawyer is no longer the same when leaving the courtroom and the press. The publicity of the debates is a universal way of taking the audience or the audience witnessed the exchanges of arguments and remarks between the headquarters of the judges, the public prosecutor's office and the defense.
 
  
 
==Police Procedures==
 
==Police Procedures==
 
'''Status and police functions'''
 
'''Status and police functions'''
  
According to '''Article 3''' of the '''Code of Criminal Procedure''', judicial police officers are responsible for investigating the perpetrators of criminal offenses, gathering the indices at their charge and making them available to the public prosecutor and will receive from the Public Prosecutor's Office the task of carrying out any inquiry or supplementary investigation which is deemed necessary. Also, in '''Article 8''' of the '''Code of Criminal Procedure''' and the '''Article 6''' state that they are obliged to inform the Public Prosecutor without delay of the crimes, offences is under penalty of professional sanctions.
+
According to '''Article 3''' of the '''Code of Criminal Procedure''', judicial police officers are responsible for investigating the perpetrators of criminal offenses, gathering the indices at their charge and making them available to the public prosecutor. Judicial police officers, under the authority of the Public Prosecutor's Office, are tasked with carrying out any inquiry or supplementary investigation which is deemed necessary. '''Article 8''' and '''Article 6''' of the '''Code of Criminal Procedure''' state that judicial police officers must inform the Public Prosecutor of the crimes without delay.
 +
 
 +
 
  
 
'''The rights of the accused and the civil party during the pre-jurisdictional phase.'''  
 
'''The rights of the accused and the civil party during the pre-jurisdictional phase.'''  
  
  
'''Article 95 CCP'''. The alleged offender is entitled to all the necessary guarantees for the exercise of the right to defense. To that end, it shall be guaranteed the following rights:
+
'''Article 138'''. The alleged offender is entitled to all the necessary guarantees for the exercise of the right to defense. The following rights must be respected:
  
 
(1) to choose a council; (2) communicate freely with him and in confidence; (3) to be assisted in the drafting of corrections and in the production of exculpatory evidence; (4) to be assisted by his or her counsel during investigative proceedings; (5) the right to remain silent in the absence of his Council. The accused and his counsel shall have the right to take cognizance if the record of the proceedings.  
 
(1) to choose a council; (2) communicate freely with him and in confidence; (3) to be assisted in the drafting of corrections and in the production of exculpatory evidence; (4) to be assisted by his or her counsel during investigative proceedings; (5) the right to remain silent in the absence of his Council. The accused and his counsel shall have the right to take cognizance if the record of the proceedings.  
  
 +
'''Article 96''' The civil party may be assisted by a counsel of his choice during the investigative proceedings. They are also entitled to access the file of their proceedings.
 +
 +
'''Article 143 and 144''' Any person who is legally required by a public prosecutor or by a judge is obliged to lend his expertise as an interpreter, translator or expert. These individuals are bound by the duty of confidentiality.
  
'''Article 96''' The civil party may be assisted by a counsel of his choice during the investigative proceedings. She is also entitled to access to the file of proceedings.
 
  
'''Article 100''' Any person who is legally required by a Public Prosecutor or by a judge is obliged to lend his ministry as an interpreter, translator or expert. The latter are bound by the duty of confidentiality.  
+
'''Article 140''' The investigating magistrate shall in no case forward the file to the counsel. He may, nevertheless, consult the whole file on the spot, or issue copies of certain documents of the proceedings to the counsel .  
  
'''Article 97''' The investigating magistrate shall in no case forward the file to the Council. He may nevertheless appreciate the opportunity either to let him consult the whole file on the spot; or to issue copies of certain documents of the proceedings to the Council.
 
  
 +
'''The rights of the accused during police custody'''
  
'''The guard saw'''
+
Police custody is defined in '''Article 32''' of the '''Code of Criminal Procedure'''as the detention of a person for a reason determined by law and for a short period on the very place of the accused person’s arrest or , police or security offices, for the purposes of a judicial mission. In addition, police custody can only be carried out by a Judicial Police Officer who is clearly identified in a specified the verbal process. The police officer must ensures the control and assumes responsibility for the detention and the defendant while he is in custody. Men and women must be separated in police custody. In addition, they must be monitored by police officers of the same sex.
Police custody is defined in '''Article 32''' of the '''Code of Criminal Procedure''' as the detention of a person for a reason and for a short period determined by law on the very place of his arrest, police or security offices, for the purposes of a judicial police or judicial mission. In addition, police custody can only be carried out by Judicial Police Officer who is clearly identified in the verbal process and who ensures the control and assumes responsibility for it. Men and women must be separated in police custody. In addition, they must be monitored by police officers of the same sex. ('''Article 32 CCP''')
 
  
 +
It is important for a lawyer to verify that every police custody is accompanied by a police custody record drawn up by the judicial police officer. Under Article 35 of the Code of Criminal Procedure, the report must contain all of the following information: the police officer’s name, surname, and position; the identity of the person in custody, the day time, duration and place of arrest, the reasons for the custody, the conditions under which the detained person was arrested, and an assurance that the detainee was aware of their rights and placed in a position to exercise them. The original copy of the report must be given to the public prosecutor, a copy must be given to the person in custody, and a duplicate shall be kept on the spot. The record must be entered in a register containing all cases of police custody.
  
It is important for a lawyer to verify that every police custody is accompanied by a police custody record drawn up by a judicial police officer. The latter must contain all of the following information: his name, surname, position, quality, the identity of the person in custody, the day, the time and place of arrest, the reasons for the custody, the conditions under which the detained person was presented, that the detainee was aware of their rights and placed in a position to exercise them, the day and hour of the custody and the duration of the custody. The report must also indicate the place or places where the police custody took place. ('''Article 35 CCP'''). The latter must be transmitted in original to the Public Prosecutor and a copy must be given to the person in custody, and a duplicate shall be kept on the spot. A record must be entered in a register containing all cases of Police custody. ('''Article 35 CCP''')
+
Under '''Article 36''' of '''The Code of Criminal Procedure''', every judicial police officer is obliged to inform the family of the person in custody or any other interested person. Moreover, under Article 34, the public prosecutor may order the end of a custody that he deems no longer deems justifiable.
  
Individuals in custody have rights as stated in '''Article 36''': Every Judicial Police Officer is obliged to inform the family of the person in custody or any other interested person. Moreover, the Public Prosecutor may order the end of a custody that he deems no longer justifiable. ('''Article 34 of the CPP''')
+
Under '''Article 33''' of '''The Code of Criminal Procedure''', police custody is judicial when the detainee is arrested for the execution of a justice mandate, a custodial sentence or constraint of body and is immediately placed in custody.  
  
 
There are different types of police custody: Police custody is refereed to as the Criminal Investigation Department for the purposes of a preliminary investigation or the execution of a rogatory letter. Police custody is judicial when the arrested individual is addressed for the execution of a justice mandate, deprivation of liberty or imprisonment is immediately placed in custody. ('''Article 33 CPP''')
 
There are different types of police custody: Police custody is refereed to as the Criminal Investigation Department for the purposes of a preliminary investigation or the execution of a rogatory letter. Police custody is judicial when the arrested individual is addressed for the execution of a justice mandate, deprivation of liberty or imprisonment is immediately placed in custody. ('''Article 33 CPP''')
  
 
Custody is limited. According to '''Article 34''' of the '''Code of Criminal Procedure''' it cannot exceed seven days, unless the prorogation is decided by the Public Prosecutor with a maximum limit of twice that period.
 
Custody is limited. According to '''Article 34''' of the '''Code of Criminal Procedure''' it cannot exceed seven days, unless the prorogation is decided by the Public Prosecutor with a maximum limit of twice that period.
 +
 +
  
 
==More Information==
 
==More Information==

Revision as of 09:26, 18 August 2020

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BURUNDI CRIMINAL DEFENSE MANUAL

  1. Fundamental Principles
  2. Interviews with Clients
  3. Hearing Strategies
  4. Defense Strategies
  5. The Nullity Procedure
  6. Nullification Proceedings Request (PDF)
  7. Manual on Arrest and Detention Procedures Established by the Code of Criminal Procedure of Burundi

CODES

LEGAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

Background of Burundi

Burundi is an African country located in the Great Lakes region and is one of the six member states of the East African Community (EAC). With a total area of 27,834 km, Burundi is one of the smallest countries in Africa. Landlocked, Burundi shares borders with Tanzania to the East, the Democratic Republic of the Congo to the West, and Rwanda to the North. Burundi contains Lake Tanganyika and other smaller lakes that dot the country. The overall population density compared to the area of the land (not including the lakes) is 435 inhabitants per km2 Cite error: Closing </ref> missing for <ref> tag


International Sources of Law

Burundi's Constitution recalls it's commitment and respect for the Universal Declaration of Human Rights of the 10 December 1948, the International Covenant on Economic, Social and Cultural Rights of the 16 December 1966, the African charter on Human and Peoples' Rights of the 18 June 1981, and the National Unity charter. Additionally, considering that relations between people characterised by peace, friendship and collaboration in accordance to the Charter of the United Nations of 26 June 1945; Burundi's commitment to the Africain Unity in accordance with the Charter of the organization of African Unity (OUA), later known as The African Union (AU), of 25 May 1963 is reaffirmed. Furthermore, Burundi has ratified a multitude of treaties related to human rights which are the following: [1] [2]

- UDHR - Universal Declaration of Human Rights (1948) <ref>https://www.un.org/en/universal-declaration-human-rights/ <ref>

- ICCPR - International Covenant on Civil and Political Rights (1990) <ref> https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en <ref>

- ICESCR - International Covenant on Economic, Social and Cultural Rights (1990) <ref> https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx <ref>

- African Charter on Human and Peoples' Rights (1989) <ref> http://www.humanrights.se/wp-content/uploads/2012/01/African-Charter-on-Human-and-Peoples-Rights.pdf <ref>

- Convention on the Prevention and Punishment of the Crime of Genocide (1996) <ref> https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx <ref>

- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1992) <ref> https://www.ohchr.org/en/professionalinterest/pages/cat.aspx <ref>

- Convention on the Rights of the Child (1997) <ref> https://www.ohchr.org/en/professionalinterest/pages/crc.aspx <ref>

- AU Convention Governing Specific Aspects of Refugee Problems in Africa (1975) <ref> https://au.int/en/treaties/oau-convention-governing-specific-aspects-refugee-problems-africa <ref>

- Convention on the Political Rights of Women (1992) <ref> https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVI-1&chapter=16&lang=en <ref>

- International Convention on the Elimination of All Forms of Racial Discrimination (1977) <ref> https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx <ref>

- Convention on the Elimination of All Forms of Discrimination against Women (1991) <ref> https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx <ref>

-- International Convention for the Protection of All Persons from Enforced Disappearance (2007) <ref> https://www.ohchr.org/en/hrbodies/ced/pages/conventionced.aspx <ref>

- Optional Protocol on the Rights of the Child on the involvement of children in armed conflict (2008) <ref> https://www.ohchr.org/en/professionalinterest/pages/opaccrc.aspx <ref> <ref> https://unchrd.org/index.php?option=com_content&view=article&id=119&Itemid=115 <ref>


The Rights of the Accused and Detained

A certain number of fundamental rights and principles prevail all the steps of the procedure from the arrest to the final hearing.


The right to be informed of your rights and motives for the arrest

The right of any person arrested to be informed of the reasons for their arrest is a procedural safeguard which cannot be restricted, at any time or under any circumstances. This right is provided for in the Code of Criminal Procedure. Article 10 states that before being interrogated, the person to be interrogated must be informed of their rights, especially the right to remain silent in the absence of a lawyer. In Article 35, a judicial police officer must inform the accused person of their rights and give them an ability to exercise their rights during police custody.


The Right to the Presumption of innocence

The right of accused and detained persons to be presumed innocent is clearly affirmed in Article 40 of the Constitution, which states that "all persons accused of a derelict act is presumed innocent until his or her guilt is legally established by a public process during which all the necessary guarantees for his or her free defense has been assured." This right also appears in Article 90 and Article 154 of The Code of Criminal Procedure that states, “Freedom is the rule and detention the exception”. The presumption of innocence is also thought to be the motivating factor to Article 110 of the Code of Criminal Procedure, which requires the prosecutor to investigate the crime for proof that the accused person should be convicted along with sufficient explanations and reasonings.


The right to be assisted by a lawyer

The right to be assisted by a lawyer is recognised by the Code of Criminal Procedure. Under Article 222, every accused person has the right to be assisted by a lawyer or a specially agreed upon representative by the tribunal. Unless the accused person objects, the judge can ask the president of the Bar to appoint a Bar-certified lawyer to represent the defendant. Every accused person that is a minor or who has been accused of a crime with a punishment over 20 years imprisonment must be represented by a lawyer.


The right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment

The Constitution recognizes in Article 25 that no one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment. Therefore, the Constitution of Burundi prohibits any use of torture or cruel, inhuman or degrading treatment or punishment. Torture is defined in Article 206 of the Penal Code as any act by which acute physical pain, mental pain or suffering is intentionally inflicted on a person for the purpose of obtaining information or a confession; it punishes an individual for an act they have or are suspected of having committed; intimidating and putting pressure on an individual; or any other reason based on discrimination inflicted by a public official. This in backed up by Article 207 of the Penal Code which states that anyone who subjects a person to torture or other cruel, inhuman or degrading treatment shall be punished with penal servitude of ten to fifteen years and with a fine of one hundred thousand to one million". However, under Article 208, the accused person can be punished for up to twenty years if they commit torture against a minor, a vulnerable person or a witness or victim to prevent him from going to authorities; they commit the act with multiple people acting as complices; or they use or threaten to use a weapon. Under Article 209, the person can be imprisoned for up to twenty years if the torture results in mutilation or a permanent injury or is accompanied by sexual aggression, and if the victim dies, the accused can be subject to imprisonment for life. The order of a superior or a public authority to partake in torture is not a defense under Article 210. Under Article 90 of the Code of Criminal Procedure, if any evidence, confession or other information regarding the case is obtained through torture, by constraint or by any other illegal means, the evidence cannot be admitted before a court of law. Furthermore, under Article 239, confessions cannot be admitted as evidence if it was obtained by “coercion, violence, threat or against a promise of any advantage or by any other means detrimental to the free will of the confessor.”


The right to be judged within a reasonable time

Article 40' of the Constitution of Burundi guarantees that everyone will be judged within a reasonable time.


The Right to a Public Trial

Publicizing debates promotes fairness. Free defense imposes a duty not to prosecute lawyers for what they may say in their pleadings (see Article 35 of The Lawyers' Profession Act). The debate must remain free of censorship. Contempt and insult remain criminal and deontological however, the freedom of speech for the lawyer is no longer the same when leaving the courtroom and confronting the press. The publicity of the debates is a universal tenant of freedom of speech because it provides transparency during the judicial process for the general public to witness. This increases accountability among judges, prosecutors and defense counsel.


The Right to an Interpreter Article 115 in The Code of Criminal Procedure requires the use of a public interpreter if the accused person is unable to express themselves in or understand the working language of the court. Articles 143 to 153 provide for the necessary requirements of choosing and appointing public interpreters.


The Right to Silence Article 10 of The Code of Criminal Procedure states that before being interrogated, the person being interrogated must be informed of their rights, specifically the right to remain silent in the absence of a lawyer. Article 138 restates the right to remain silent for defendants in both criminal and civil cases.


The Right to Know the Content of the Case-File Article 135 and Article 136 of The Code of Criminal Procedure state that an accused person and parties in civil cases have the right, with their lawyer, to know the contents of their case file. They may request to read the contents of their case file at any time. Article 35 states that upon release, a detainee has the right to have certain information contained in their case file.


Police Procedures

Status and police functions

According to Article 3 of the Code of Criminal Procedure, judicial police officers are responsible for investigating the perpetrators of criminal offenses, gathering the indices at their charge and making them available to the public prosecutor. Judicial police officers, under the authority of the Public Prosecutor's Office, are tasked with carrying out any inquiry or supplementary investigation which is deemed necessary. Article 8 and Article 6 of the Code of Criminal Procedure state that judicial police officers must inform the Public Prosecutor of the crimes without delay.


The rights of the accused and the civil party during the pre-jurisdictional phase.


Article 138. The alleged offender is entitled to all the necessary guarantees for the exercise of the right to defense. The following rights must be respected:

(1) to choose a council; (2) communicate freely with him and in confidence; (3) to be assisted in the drafting of corrections and in the production of exculpatory evidence; (4) to be assisted by his or her counsel during investigative proceedings; (5) the right to remain silent in the absence of his Council. The accused and his counsel shall have the right to take cognizance if the record of the proceedings.

Article 96 The civil party may be assisted by a counsel of his choice during the investigative proceedings. They are also entitled to access the file of their proceedings.

Article 143 and 144 Any person who is legally required by a public prosecutor or by a judge is obliged to lend his expertise as an interpreter, translator or expert. These individuals are bound by the duty of confidentiality.


Article 140 The investigating magistrate shall in no case forward the file to the counsel. He may, nevertheless, consult the whole file on the spot, or issue copies of certain documents of the proceedings to the counsel .


The rights of the accused during police custody

Police custody is defined in Article 32 of the Code of Criminal Procedureas the detention of a person for a reason determined by law and for a short period on the very place of the accused person’s arrest or , police or security offices, for the purposes of a judicial mission. In addition, police custody can only be carried out by a Judicial Police Officer who is clearly identified in a specified the verbal process. The police officer must ensures the control and assumes responsibility for the detention and the defendant while he is in custody. Men and women must be separated in police custody. In addition, they must be monitored by police officers of the same sex.

It is important for a lawyer to verify that every police custody is accompanied by a police custody record drawn up by the judicial police officer. Under Article 35 of the Code of Criminal Procedure, the report must contain all of the following information: the police officer’s name, surname, and position; the identity of the person in custody, the day time, duration and place of arrest, the reasons for the custody, the conditions under which the detained person was arrested, and an assurance that the detainee was aware of their rights and placed in a position to exercise them. The original copy of the report must be given to the public prosecutor, a copy must be given to the person in custody, and a duplicate shall be kept on the spot. The record must be entered in a register containing all cases of police custody.

Under Article 36 of The Code of Criminal Procedure, every judicial police officer is obliged to inform the family of the person in custody or any other interested person. Moreover, under Article 34, the public prosecutor may order the end of a custody that he deems no longer deems justifiable.

Under Article 33 of The Code of Criminal Procedure, police custody is judicial when the detainee is arrested for the execution of a justice mandate, a custodial sentence or constraint of body and is immediately placed in custody.

There are different types of police custody: Police custody is refereed to as the Criminal Investigation Department for the purposes of a preliminary investigation or the execution of a rogatory letter. Police custody is judicial when the arrested individual is addressed for the execution of a justice mandate, deprivation of liberty or imprisonment is immediately placed in custody. (Article 33 CPP)

Custody is limited. According to Article 34 of the Code of Criminal Procedure it cannot exceed seven days, unless the prorogation is decided by the Public Prosecutor with a maximum limit of twice that period.


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QUICK FACTS

  • Prison Statistics (August 10, 2015)
Prison Population = 8,689
Prison Population Rate (Per 100,000 people) = 77
Pre-Trial Detainees / Remand Prisoners (Percentage of Prison Population) = 56.7%
Female Prisoners (Percentage of Population) = 4.0%
Juveniles / Minors (Percentage of Population) = 3.4%
Foreign Prisoners (Percentage of Population) = 1.2%
Number of Prisons = 11:#Official Capacity of Prison System = 4050
Occupancy Level (Based on Official Capacity) = 214.5%
  • Prison Population Trend (Year / Prison Population / Prison Population Rate)
2001 / 9,013 / 130
2002 / 8,647 / 121
2004 / 7,526 / 98
2006 / 7,332 / 89
2008 / 9,114 / 104
2010 / 9,481 / 100
2012 / 10,422 / 103
2014 / 8,646 / 79
2015 / 8,689 / 77
  • General Information
Capital = Bujumbura
Ethnic Groups = 85% Hutu / 14% Tutsi / 1% Twa
President = Pierre Nkurunziza
Area = 27,834 km2
Population = 11,178,921
GDP = $3.247 billion
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