Research Directorate, Immigration and Refugee Board of Canada

1. Overview

In its document entitled [translation] "How to file a legal complaint," the Ministry of Justice of Burkina Faso explains that "a complaint is the act by which the person who is the victim of an offence [1] brings the matter to justice" (Burkina Faso 2019-11-29). According to the same source, a complaint [translation] "may be filed against an identified person or against X, if the identity of the perpetrator is unknown," and "[a]ny person who believes they are the victim of an offence may file a complaint" (Burkina Faso 2019-11-29). The Burkina Faso National Police also explain that police stations are open seven days a week and [translation] "[a]ny citizen may file a complaint there" (Burkina Faso n.d.). In a telephone interview with the Research Directorate, the founder of SPHERE Burkina (Health, Population, Habitat, Environment, Resources and Energy), a regional economic and social development NGO whose Centre for Assistance, Training, Employment, Enterprises and Internships (Centre d'assistance, de formation, d'emploi, d'entreprises et des stages, CAFES) program assists, among other things, in the drafting and submission of complaints to the State Prosecutor, explained that anyone can file a complaint as long as they can prove that they have an interest in the proceeding; they could be a direct victim of the offence, a natural or legal person who has indirectly suffered harm, or a third party intervening in the public interest (Founder of SPHERE Burkina 2022-11-17). The same source also stated that the person filing the complaint may do so on their own or through a lawyer or a consulting firm (Founder of SPHERE Burkina 2022-11-17). According to a report produced by the Centre for Human Rights Information and Training in Africa (Centre d'information et de formation en matière des droits de l'homme en Afrique – CIFDHA), a human rights NGO based in Ouagadougou (CIFDHA n.d.), to be properly processed, the complaint must include the following elements:

• the facts
• the place where the offence was committed
• the perpetrator, if possible
• the harm suffered, including documentary evidence, e.g., medical certificate, prescriptions or photographs
• witnesses, if any (CIFDHA 2022-03-19, 91, 92).

Sources indicate that a complaint may be filed with the police, the gendarmerie, or the State Prosecutor (Burkina Faso 2019-11-29; founder of SPHERE Burkina 2022-11-17). According to the National Police, accusations may be made anonymously at police stations or by dialing 17, the toll-free number for the police (Burkina Faso n.d.). CIFDHA states that complaints may also be lodged directly with the investigating judge (2022-03-19, 70). The Ministry of Justice further notes that there is no fee for filing a complaint with the police, gendarmerie, or prosecutor (Burkina Faso 2019-11-29). According to CIFDHA, there is a fee for lodging a complaint with the investigating judge (2022-03-19, 97).

2. Legal and Regulatory Framework

Law No. 040-2019/AN on the Code of Criminal Procedure (Loi no 040-2019/AN portant Code de procédure pénale) provides the following regarding the complaint process in Burkina Faso:

[translation]

Article 241-6:

Judicial police officers exercise the powers defined in article 241-3 above; they receive complaints and accusations; they conduct preliminary investigations under the conditions set out in articles 252-1 to 252-4 of this law.

In the case of flagrant felonies or misdemeanours, they exercise the powers conferred upon them by articles 251-1 to 251-5 of this law.

They have the right to directly request the support of police to carry out their mission.

…

Article 242-9:

The State Prosecutor receives complaints and accusations and determines what action will be taken. If the file is closed without further action, the prosecutor so notifies the complainant.

Notwithstanding the above, when the reports of public structures mandated to fight corruption or ensure transparency and good governance reveal facts that may constitute one of the offences provided for in Title III of Book III of the Criminal Code, the State Prosecutor is required to initiate the prosecution process.

Any constituted authority, public official or civil servant who in the performance of their duties learns of a felony or a misdemeanour, is required to notify the State Prosecutor of the offence forthwith and to transmit to that prosecutor any relevant information, reports or documents.

…

Article 252-1:

The judicial police officers and judicial police agents mentioned in articles 241-5 and 241-9 of this law conduct preliminary investigations, either on the instructions of the State Prosecutor or on their own initiative.

These operations are under the supervision of the chief State Prosecutor.

…

Article 261-10:

Any person alleging harm from a felony or misdemeanour may petition to become a civil party by filing a complaint with the investigating judge, who prepares a report when the complaint is verbal.

…

Article 261-13:

The investigating judge communicates the complaint and the report drawn up in accordance with the provisions of article 261-12 above to the State Prosecutor for submissions.

The prosecution's submission may be made against a named person or an unnamed person, notably when the complaint is insufficiently grounded or is not substantiated by the evidence produced.

The State Prosecutor may only send the investigating judge submissions not to investigate where the facts cannot lead to a lawful prosecution for reasons relating to the right to prosecute or where, if the facts were shown to exist, they would not amount to any criminal offence.

An investigating judge who decides otherwise must make a reasoned order. (Burkina Faso 2019, emphasis in original)

Further, the decree establishing regulations for the gendarmerie (Décret no 63-253 du 09 mai 1963 portant règlement sur le service de la gendarmerie) specifies the following:

Article 51.- Judicial police operations are carried out by the personnel of the gendarmerie under the conditions set out in the Code of Criminal Procedure (Code de procédure pénale) and by special laws.

…

Article 54.- The judicial police officers of the gendarmerie receive complaints and accusations. They record all violations of the criminal law, gather evidence of such violations and identify the perpetrators, unless and until a judicial investigation has been initiated.

They undertake preliminary inquiries.

In the event of a flagrant felony or misdemeanour, they act immediately, either by way of summary information or as part of the preliminary inquiry.

They have the right to directly request the assistance of law enforcement for the execution of their mission. (Burkina Faso 1963, emphasis in original)

3. The Complaint Process
3.1 Process for Filing a Complaint with the Police or the Gendarmerie

The Ministry of Justice states that a complaint may be filed at a police station or gendarmerie to be forwarded to the State Prosecutor in the area where the offence was committed (Burkina Faso 2019-11-29). CIFDHA indicates that victims of an offence may file an oral or written complaint [translation] "with a judicial police unit" of the police or gendarmerie (2022-03-19, 91). The Ministry of Justice indicates that the judicial police officer (police or gendarmerie) who received the complaint conducts a [translation] "preliminary inquiry under the direction of the State Prosecutor" (Burkina Faso 2019-11-29). The founder of SPHERE Burkina stated that it is [translation] "common" for people to file a complaint in person at the police station or at the gendarmerie brigade in emergency situations when they prefer making a verbal complaint rather than writing a letter to the State Prosecutor (2022-11-17). According to the same source, the police are generally empowered to receive and investigate complaints under the supervision of the State Prosecutor when the complaint is simple and involves individuals or private companies, while the gendarmerie receives and investigates complex complaints involving state officials or government institutions (Founder of SPHERE Burkina 2022-11-17). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3.2 Process for Filing a Complaint with the State Prosecutor

Sources report that a complaint can also be filed directly with the State Prosecutor (Burkina Faso 2019-11-29; CIFDHA 2022-03-19, 91). According to the Ministry of Justice, when the complaint is filed directly, the prosecutor may refer the complaint to the police or gendarmerie for further investigation or independently initiate a [translation] "prosecutorial investigation" (Burkina Faso 2019-11-29). The same source notes that following the investigation, the prosecutor will decide to either [translation] "prosecute the person involved" or "close the complaint without further action" (Burkina Faso 2019-11-29). The Ministry of Justice further explains that [translation] "[i]f the case appears to be simple, the State Prosecutor may proceed by way of direct summons [2] to bring the case before the court" but "[i]f the case is characterized as a crime or is complex, the State Prosecutor brings the case before the investigating judge" (Burkina Faso 2019-11-29). CIFDHA cites the following as the duties of the prosecutor when a complaint is received from the judicial police or is filed directly with the prosecutor:

[translation]

• File is closed without further action: This may be justified when the prosecutor considers that there is no felony, misdemeanour or petty offence or that there are not sufficient charges. This is an administrative measure of which the prosecutor must inform the complainant, who may then explore other legal avenues such as referral to the investigating judge or the judge with jurisdiction for a direct summons.

…

• Prosecution: The prosecutor may refer the matter to the police court if the facts are deemed to constitute a petty offence, to the correctional court for a misdemeanour, or to the investigating judge with a view to opening a judicial investigation if the matter is deemed to involve a felony. (2022-03-19, 93–94, bold in original)

Furthermore, the Ministry of Justice notes that the prosecutor may decide not to prosecute and will send [translation] "a notice of closure" to the complainant indicating the reasons for the decision in the following cases:

• When the statute of limitations has expired, [i.e.] the deadline for prosecution [3] has passed ... ;
• When the investigation does not support the conclusion that a criminal offence has been committed;
• When prosecution is inappropriate (Burkina Faso 2019-11-29).

The information in the following paragraph was provided by the founder of SPHERE Burkina:

The State Prosecutor is [translation] "normally" the starting point for filing a criminal complaint. The State Prosecutor may be engaged by way of a complaint filed directly with the prosecutor's office by the complainant or filed at the police station or gendarmerie brigade and subsequently referred to the prosecutor. The State Prosecutor may even self-refer the matter without a complaint being filed, where there is a finding of an offence that the State Prosecutor is responsible for prosecuting in court. After the complaint is filed, the State Prosecutor may have the investigation conducted internally by the prosecutorial services or have it carried out by the police or gendarmerie services, which report only to the State Prosecutor. Following the investigation, the State Prosecutor decides either to close the complaint without further action, or to refer the matter to the investigating judge or directly to the competent court or tribunal, depending on the nature of the offence (Founder of SPHERE Burkina 2022-11-17).

An example of a notice of closure without further action can be found on CIFDHA's website (2022-03-19, 94).

3.3 Process for Filing a Complaint with the Investigating Judge

Sources indicate that the victim of a crime may file a [translation] "complaint with a petition to become a civil party" directly with the investigating judge (CIFDHA 2022-03-19, 95; Burkina Faso 2019-12-08). The Ministry of Justice explains that the complainant may petition the investigating judge to become a civil party (Burkina Faso 2019-11-29). CIFDHA also notes that this type of complaint [translation] "is often used to counteract the refusal of the Public Prosecutor's Office to initiate public action" (2022-03-19, 95). However, the founder of SPHERE Burkina stated that it is not possible to file a complaint directly before the investigating judge and that the latter can only be engaged by or through the State Prosecutor (2022-11-17).

CIFDHA indicates that complaints filed with the investigating judge must be in writing (2022-03-19, 95). However, the Ministry of Justice notes that the investigating judge prepares a report [translation] "when the complaint is verbal" (Burkina Faso 2019-12-08). According to sources, the complainant must pay the court clerk the costs of the proceedings [determined by the judge (Burkina Faso 2019-12-08)] within a time limit fixed by the judge by means of an order (Burkina Faso 2019-12-08; CIFDHA 2022-03-19, 97).

In addition, the Ministry of Justice indicates that the complaint with a petition to become a civil party [translation] "differs from the simple complaint filed with the State Prosecutor" in that "[t]o file a complaint with a petition to become a civil party, the complainant must have personally suffered harm as a result of the offence being prosecuted" (Burkina Faso 2019-12-08). According to CIFDHA, once the investigating judge has received the complaint and proof of payment for the costs of the proceedings, the judge [translation] "sends the complaint and the report on civil party status to the State Prosecutor for submissions" and the latter may in turn decide either to close the case without further action or to open a judicial investigation (2022-03-19, 99-100).

Examples of a complaint with a petition to become a civil party, an order fixing the amount of the deposit for the civil party action, a notice of payment and a model report of civil party status can be found on CIFDHA's website (2022-03-19, 96, 97, 98, 99).

3.4 Process for Filing a Complaint with the Court

The Ministry of Justice indicates that [translation] "victims may also bring their cases before the court by way of direct summons" (Burkina Faso 2019-11-29). However, the founder of SPHERE Burkina noted that victims can only seize the court through the State Prosecutor, whether via direct summons or voluntary appearance, unless the victim successfully petitions to become a civil party to the case (2022-11-17).

3.5 Process for Filing a Complaint with a Non-Judicial Organization

CIFDHA explains that it is possible to file a complaint in the context of non-judicial proceedings, including before:

• the National Commission on Human Rights (Commission nationale des droits humains, CNDH) for accusations by victims or third parties of human rights violations;
• the Superior Authority for State Control and Anti-Corruption (Autorité supérieure de contrôle d'État et de lutte contre la corruption, ASCE-LC) for [translation] "any citizen" wishing to denounce "corruption and related practices";
• the High Council of the Judiciary (Conseil supérieur de la magistrature, CSM) for reporting failures by individual judges to fulfil their obligations in the handling of judicial files or any other disciplinary lapse committed by a judge, and finally;
• the Bar Association of Burkina Faso (Barreau des avocats du Burkina Faso) for people who believe themselves to be victims of [translation] "legal misconduct" (CIFDHA 2022-03-19, 122, 124, 129, 131, 135, 136).

The information in the following paragraph was provided by the founder of SPHERE Burkina:

Victims may file a complaint with the State Mediator, who can resolve the matter through an amicable settlement before resorting to lengthier and more costly legal proceedings. Victims may refer matters to the State Mediator on their own initiative or on the advice of the State Prosecutor, particularly in cases involving torts or quasi-criminal offences. It is possible to apply to the State Mediator when the complaint has a commercial component, or to the Ouagadougou Arbitration, Mediation and Conciliation Centre (Centre d'arbitrage, de médiation et de conciliation de Ouagadougou, CAMC-O), which is akin to a chamber of commerce. In cases involving commercial disputes, the State Mediator does not charge a fee, unlike the CAMC-O, which is often used by large companies. Any citizen of Burkina Faso or member of the diaspora may file a complaint against the government with the ministry responsible for national reconciliation (Founder of SPHERE Burkina 2022-11-17).

4. Documents Provided to the Complainant

Information on the documents provided to complainants was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

According to CIFDHA, the complainant should [translation] "always request a document proving that the complaint has been filed. This may be a copy of the complaint signed by the judicial official who received it or any other acknowledgement of receipt" (2022-03-19, 92).

The information in the following paragraph was provided by the founder of SPHERE Burkina:

The police or gendarmerie stamp affixed to the copy of the complaint sent to the State Prosecutor may be used as proof of the filing of a complaint, but the prosecutor's office may also provide a formal acknowledgement of receipt. The State Mediator can also issue a receipt for a complaint filed with that service, just as the investigating judge always issues a report on the stage reached and actions taken in the complaint investigation. The bailiff, whose services are used by offices to facilitate expeditious forwarding of complaints, particularly to the State Prosecutor, may also provide a receipt that can be considered proof of the filing of the complaint (Founder of SPHERE Burkina 2022-11-17).

An example of a complaint addressed to the Public Prosecutor's Office or the judicial police can be found on CIFDHA's website (2022-03-19, 92).

5. Process for Questioning and Summoning Suspects

Information on the process for questioning and summoning suspects was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

The information in the following paragraph was provided by the founder of SPHERE Burkina:

Generally, the police and gendarmerie services have sole responsibility for questioning and summoning suspects who are under the supervision of the State Prosecutor. They usually summon suspects by telephone or SMS, but may also use written summonses in some cases. Regardless of the method of summons, the police and gendarmerie always allow the person being summoned a 72-hour window. When a suspect does not appear at the place and time indicated after three summonses, the police or gendarmes go to the suspect's last known official address to bring the person in, but they do not always have a warrant to apprehend or arrest the person unless it is a public figure, such as a politician or a company director (Founder of SPHERE Burkina 2022-11-17).

According to the US Department of State's Country Reports on Human Rights Practices for 2021, the police and gendarmes must have a warrant before questioning and arresting a suspect, but authorities "did not always follow these procedures" and detainees were not always informed of the charges against them (US 2022-04-12, 5). The same source reports that according to local rights groups, security forces arbitrarily arrested individuals for suspected involvement in terrorist activities (US 2022-04-12, 6).

A report by the Friedrich Ebert Foundation [4] (Friedrich-Ebert-Stiftung, FES) indicates that in the face of rising insecurity, local self-defence militias consider themselves more capable of protecting property and individuals than the official forces of law and order, and are therefore substituting themselves in some regions for the police and the judiciary by questioning and arresting suspects and organizing trials in local languages (FES 2021, 15–16). According to the founder of SPHERE Burkina, these local self-defence militias are generally not authorized to question and arrest suspects unless they are supervised by the police or the gendarmerie (2022-11-17).

5.1 Documents Provided at Questioning and Summoning

Information on the documents provided at questioning and summoning was scarce among sources consulted by the Research Directorate within the time constraints of this Response and no samples were found.

According to the founder of SPHERE Burkina, templates of summonses and police and gendarmerie warrants to apprehend and arrest exist, although they are not always used when suspects are questioned or arrested (2022-11-17).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes

[1] The Centre for Human Rights Information and Training in Africa (Centre d'information et de formation en matière des droits de l'homme en Afrique – CIFDHA) defines offence as follows:

[translation]

An offence is an act or omission that violates a standard of conduct that is clearly and strictly defined by the Criminal Code or other criminal statute, such as the Code of Military Justice, and thereby incurs the criminal liability of the perpetrator. If you are the victim of an offence or have witnessed the commission of an offence, you should refer the matter to the Public Prosecutor's Office or to an investigation unit. (CIFDHA 2022-03-19, 17)

[2] According to the Ministry of Justice, [translation] "[t]he direct summons is the act by which the accused is directly summoned to appear before the correctional court" (Burkina Faso 2019-11-29).

[3] From the day the act was committed, the statute of limitations is 10 years for crimes, 3 years for misdemeanours and 12 months for petty offences, [translation] "if in this interval there have been no investigative or prosecutorial acts" (Burkina Faso 2019-11-29).

[4] Friedrich Ebert Foundation is a "political foundation" linked to Germany's Social Democrat party that promotes democracy and social programs (Reuters 2022-04-11). The Foundation is funded by the German government (FES n.d.)

References

Burkina Faso 2019-12-08. Ministère de la Justice, des Droits humains et de la Promotion civique (MJDHPC). "La plainte avec constitution de partie civile." [Accessed 2022-11-10]

Burkina Faso. 2019-11-29. Ministère de la Justice, des Droits humains et de la Promotion civique (MJDHPC). "Comment porter plainte en justice ?" [Accessed 2022-11-04]

Burkina Faso. 2019. Loi no040-2019/AN portant Code de procédure pénale. [Accessed 2022-04-04]

Burkina Faso. 1963. Décret no 63-253 du 09 mai 1963 portant règlement sur le service de la gendarmerie. [Accessed 2022-11-14]

Burkina Faso. N.d. Police nationale. "Plainte et dénonciation." [Accessed 2022-11-04]

Centre d'information et de formation en matière de droits humains en Afrique (CIFDHA). 2022-03-19. Guide à l'usage du justiciable en matière pénale au Burkina Faso. [Accessed 2022-11-04]

Centre d'information et de formation en matière de droits humains en Afrique (CIFDHA). N.d. "Présentation du CIFDHA." [Accessed 2022-11-08]

Founder, SPHERE Burkina. 2022-11-17. Telephone Interview with the Research Directorate.

Friedrich-Ebert-Stiftung (FES). 2021. Antonin Tisseron. Une boîte de Pandore. Le Burkina Faso, les milices d'autodéfense et la loi sur les VDP dans la lutte contre le jihadisme. [Accessed 2022-11-04]

Friedrich-Ebert-Stiftung (FES). N.d. FES USA and Canada. "Friedrich-Ebert-Stiftung." [Accessed 2022-11-10]

Reuters. 2022-04-11. Maria Sheahan. "German Foundation Expelled from Russia Says Will Continue Democracy Work." [Accessed 2022-11-10]

United States (US). 2022-04-12. Department of State. "Burkina-Faso." Country Reports on Human Rights Practices for 2021. [Accessed 2022-11-04]

Additional Sources Consulted

Oral sources: Association burkinabè pour la survie de l'enfance; Association Keoogo; Association Koom pour l'auto promotion des femmes du Burkina Faso; Association Nodde Nooto; Association pour la promotion féminine de Gaoua; Association pour l'éducation et l'environnement; Association pour l'œuvre et la prospérité sociale; Association pour la paix et la solidarité; Association Sœur Emmanuelle; Association Zoodnooma pour le développement; BIBIR/OHG; Burkina Faso – Embassy of Burkina Faso in Ottawa; Centre d'information, de formation et d'études sur le budget; Centre d'information et de formation en matière de droits humains en Afrique; Christian Relief and Development Organization; Coalition burkinabè pour les droits des femmes; Conseil national des organisations de la société civile; Eau vive; Fédération nationale des organisations paysannes; Fondation pour le développement communautaire du Burkina Faso; Mouvement burkinabè des droits de l'homme et des peuples; Mouvement burkinabè pour l'émergence de la justice sociale; ONG Wuro-Yiré pour le développement; Réseau africain jeunesse santé et développement au Burkina Faso; Réseau pour le développement et la promotion des méthodes actives de recherche et de planification participative au Burkina Faso; Réseau national de lutte anti-corruption; Secrétariat permanent des ONG; SOS Villages d'enfants Burkina-Faso; West Africa Regional Alliance.

Internet sites, including: Agence France-Presse; Al Jazeera; Associated Press; Austrian Red Cross – ecoi.net; BBC; Belgium – Commissariat général aux réfugiés et aux apatrides, Cedoca; Bertelsmann Stiftung; EU – EU Agency for Asylum; Factiva; FasoAmazone; Fédération internationale pour les droits humains; Le Figaro; France – Office français de protection des réfugiés et apatrides; France 24; Freedom House; The Guardian; Human Rights Watch; International Crisis Group; Jeune Afrique; Journal de Montréal; Le Monde; L'Observateur; L'Opinion; Radio-Canada; Radio France internationale; Le Reporter; Transparency International; TV5Monde; UN – Refworld; US – Library of Congress, Overseas Security Advisory Council; Voice of America.