Lumbala v. Democratic Republic of the Congo

Key Judgment


Legal Relevance

Keywords: Effective Remedy | Duty to Investigate | Duty to Prosecute | Deprivation of Liberty | Judicial Protection | Juridical Personality | Systemic Practice | Refusal to Disclose Fate

Themes: Characteristics of the Crime | Related Crimes

The Committee found a violation of the victim's right to liberty and security and of his right to be treated with humanity and dignity. The Committee also found an arbitrary and unlawful interference with the victim's privacy, home and family, due to the fact that his arrest was accompanied by acts of violence in the presence of his daughter; that after his escape his home remained under close surveillance and his wife was subjected to intimidation; and that he was forced to flee and to seek refugee status for him and his family.

In their individual opinions, some members of the Committee opposed the decision not to find a violation of the victim's right to be recognised as a person before the law. Recalling that such practices have been documented on several occasions in relation to the Democratic Republic of the Congo, they stated that the victim was subjected not only to arbitrary detention, but to secret detention outside any legal framework, organised so that the person does not have access to any remedy, cannot assert any right and is thus completely at the mercy of the persecutor. They concluded that the non-recognition of the victim's arrest and detention, coupled with his subjective situation, amounted a to violation of Article 16, and that the removal of the person from the protection of the law constitutes in itself a refusal to recognise him/her before the law, regardless of the actual or intended duration of the violation.

Judgment Date

November 5, 2015

Country

Democratic Republic of the Congo

Judicial Body

Human Rights Committee

Articles violated

Article 2(3) [ICCPR], Article 7 [ICCPR], Article 9 [ICCPR], Article 10(1) [ICCPR], Article 17 [ICCPR], Article 23 [ICCPR]

Articles not violated / not dealt with

Article 2(2) [ICCPR], Article 16 [ICCPR], Article 19 [ICCPR]

Facts of the Case

In December 2008, Mr. John-Jacques Lumbala Tshidika, a former bank employee who had previously been subjected to threats after having denounced episodes of mishandling, was arrested at his house by three agents of the National Intelligence Agency dressed in civilian clothing. The agents pointed their guns at him, handcuffed him and forced him into a jeep with tinted glass and no licence plate. Mr. Lumbala was taken to a house that had been requisitioned by the National Intelligence Agency, where he was questioned. He was subsequently transferred to a National Intelligence Agency's detention centre and placed in an isolation cell in dire detention conditions. During the seven days he was detained, Mr. Lumbala had no access to a lawyer, was not brought before a judge, and was not allowed to receive visits or to have any contact with his family. He was also subjected to torture and other ill- treatment and violence, and routinely questioned by agents of the National Intelligence Agency. After a week, he was informed of the accusations made against him. The following day, Mr. Lumbala was taken to a medical centre after having been subjected to sexual violence. From there, he was able to escape and head to the Republic of the Congo. The National Intelligence Agency then issued a public statement claiming that Mr. Lumbala had been set free. After Mr. Lumbala's escape, his family and friends were placed under close surveillance and subjected to acts of intimidation. In October 2009, Mr. Lumbala travelled to the United Kingdom and was granted refugee status there along with his family. Mr. Lumbala's brother filed a complaint against the National Intelligence Agency for abduction and arbitrary detention. As of June 2011, no investigation had been opened yet.

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