COMMITTEE AGAINST TORTURE CONCLUDES THIRTY-FOURTH SESSION
The Committee against Torture today concluded its three-week spring session and issued its concluding observations and recommendations on reports from Canada, Switzerland, Finland, Albania, Uganda and Bahrain which it reviewed during the session.
Those countries are among the 139 States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and are bound by the terms of the treaty to submit periodic reports on efforts to ensure that such human rights violations do not occur on their territories. In addition to submitting the reports, the countries sent delegations before the Committee of 10 independent Experts to answer questions.
The Committee said among positive developments in the fourth and fifth periodic reports of Canada were the definition of torture in the Canadian Criminal Code that was in accordance with the definition contained in article 1 of the Convention, and the exclusion in the Criminal Code of defences of superior orders or exceptional circumstances, including armed conflict, as well as the inadmissibility of evidence obtained by torture. The Committee expressed its concern about the absence of effective measures to provide civil compensation to victims of torture in all cases. Among its recommendations, the Committee urged Canada to provide for judicial review of the merits, rather than simply of the reasonableness, of decisions to expel an individual where there were substantial grounds to believe the person faced a risk of torture.
The Committee cited as positive developments in the fourth periodic report of Switzerland the ban proposed by the draft federal law regulating the use of force by police during deportations and during the transport of detainees. The Committee expressed concern that although torture was prohibited by the Federal Constitution, no specific definition of torture existed in criminal law covering all constituent elements contained in article 1 of the Convention. The Committee recommended that Switzerland undertake efforts to encourage the successful outcome of the ongoing consultations on the draft federal law regulating the use of force by police during deportations and during the transport of detainees ordered by a federal authority regarding the ban on the use of electro-shock instruments.
Cited among positive developments in the fourth periodic report of Finland, the Committee noted the inclusion of a prohibition of torture and other treatment violating human dignity in the new Constitution of Finland. The Committee expressed concern that the “accelerated procedure” under the Aliens Act allowed an extremely limited time for applicants for asylum to have their cases considered thoroughly, and to exhaust all lines of appeal if their application was rejected. Among other things, the Committee recommended that Finland strengthen the legal safeguards for asylum-seekers to ensure that all asylum procedures conformed to article 3 of the Convention and other international obligations in that field.
With regard to the initial report of Albania, the Committee noted with appreciation the ongoing efforts by Albania aimed at strengthening human rights in the country and welcomed, among other things the adoption of a democratic Constitution in 1998, which enhanced protection of human rights, including the prohibition of torture. However, it expressed concern about the non-conformity of the definition of torture of the Criminal Code, with the definition of the Convention, which did not cover all the elements contained in its article 1. The Committee recommended, among other things, that Albania amend the Criminal Code in order to adopt a definition of torture that covered all the elements contained in the Convention; and ensure strict application of the provisions against torture and ill-treatment, adequately qualifying, prosecuting and punishing perpetrators in a manner proportionate to the seriousness of the crimes committed.
Among the positive developments cited by the Committee in the initial report of Uganda were the establishment in 1996 of the Uganda Human Rights Commission; the abolition of corporal punishment; and the generous approach taken by the Ugandan Government in hosting more than 200,000 refugees and in paying full respect to the principle of non-refoulement. The Committee noted with concern the length of pre-trial detention; and the continued allegations of torture and ill-treatment committed in a widespread manner by the State’s security forces and agencies together with the apparent impunity enjoyed by its perpetrators. The Committee recommended, among other things, that Uganda should take all necessary legislative, administrative and judicial measures to prevent acts of torture and ill-treatment in its territory, and in particular that it should adopt a definition of torture which covered all the elements contained in article 1 of the Convention, and amend domestic penal law accordingly.
And in the initial report of Bahrain, the Committee cited as positive developments the political, legal and social reforms on which the country had embarked, including the adoption of the National Action Charter in 2001, which outlined reforms aimed at enhancing non-discrimination, due process and prohibition of torture and arbitrary arrest. The Committee was concerned about the persistent gap between the legislative framework and its practical implementation with regard to the obligations of the Convention. The Committee recommended, among other things, that Bahrain adopt in domestic penal law a definition of torture in terms consistent with article 1 of the Convention; and that it take effective measures to prevent and redress the serious problems commonly faced by foreign workers.
In addition to reviewing country reports in public session, the Committee considered in private meetings information appearing to contain well-founded indications that torture was being systematically practiced in the territories of some States parties. And it examined communications from individuals claiming to be victims of violations by States parties of the provisions of the Convention. Such communications are accepted only if they concern the 51 States that have declared the Committee competence to receive complaints under article 22 of the Convention.
During the course of the session, Committee Experts adopted a document containing guidelines for States parties submitting their initial reports to the Committee.
Before closing its session, the Committee said it had decided to postpone consideration of the initial report of Togo, originally scheduled for the current session, because of the grave difficulties facing the country at present that had hindered the sending of a delegation. The Committee decided to take up the Togo report at its May 2006 session, and expressed its hope that social peace would be fully re-established in the country by then as well as consideration of the rule of law and full respect of fundamental rights.
The Committee’s next session will be held from 7 to 25 November 2005 during which it is scheduled to examine reports from Ecuador, Austria, France, Sri Lanka, Nepal, Bosnia and Herzegovina, and the Democratic Republic of the Congo, as well as Guyana as a non-reporting State party.
Conclusions and Recommendations on Country Reports
Canada
The Committee said among positive aspects in the report of Canada were the definition of torture in the Canadian Criminal Code that was in accordance with the definition contained in article 1 of the Convention, and the exclusion in the Criminal Code of defences of superior orders or exceptional circumstances, including armed conflict, as well as the inadmissibility of evidence obtained by torture; the general inclusion, in the Immigration and Refugee Protection Act 2002, of torture within the meaning of article 1 of the Convention ; and the careful constitutional scrutiny of the powers conferred by the Anti-Terrorism Act 2001. The Committee noted the changes to Corrections policy and practice implemented to give effect to the recommendations of the Arbour Report on treatment of female offenders in the federal prison system; and the efforts made by the State party, in response to the issue of over-representation of indigenous offenders in the correctional system previously identified by the Committee, to develop innovative and culturally-sensitive alternative criminal justice mechanisms, such as the use of healing lodges.
The Committee expressed its concern, among other things, at the blanket exclusion by the Immigration and Refugee Protection Act 2002 (section 97) of the status of refugee or person in need of protection, for persons falling within the security exceptions set out in the Convention on the Status of Refugees and its Protocols; the explicit exception of certain categories of persons posing security or criminal risks from the protection against refoulement provided by the Immigration and Refugee Protection Act 2002; Canada's apparent willingness, in the light of the low number of prosecutions for terrorism and torture offences, to resort in the first instance to immigration processes to remove or expel individuals from its territory; the State party's reluctance to comply with all requests for interim measures of protection, in the context of individual complaints presented under article 22 of the Convention; the absence of effective measures to provide civil compensation to victims of torture in all cases; and continued allegations of inappropriate use of chemical, irritant, incapacitating and mechanical weapons by law-enforcement authorities in the context of crowd control.
Among its recommendations, the Committee urged that Canada should unconditionally undertake to respect the absolute nature of article 3 in all circumstances and to fully incorporate the provision of article 3 into the State party's domestic law; remove the exclusions in the Immigration and Refugee Protection Act 2002 and thus extend to currently excluded persons entitlements of status as a protected person and protection against refoulement on account of a danger of torture; provide for judicial review of the merits, rather than simply of the reasonableness, of decisions to expel an individual where there were substantial grounds to believe the person faced a risk of torture; and insist on unrestricted consular access to its nationals who are in detention abroad, with the facility for unmonitored meetings and, if required, appropriate medical expertise. Canada should also provide the Committee with details on how many cases of extradition or removal subject to receipt of "diplomatic assurances" or guarantees had occurred since 11 September 2001. It should also take steps to ensure a progressive decrease in the frequency of "major violent incidents" in its federal corrective facilities.
Switzerland
The Committee cited as positive developments in the report of Switzerland the ban proposed by the draft federal law regulating the use of force by police during deportations and during the transport of detainees; the elaboration of "guidelines relating to forcible deportations by air"; the new draft federal code of criminal procedure on the rights of persons detained in police custody which prohibited incommunicado detention; and the measures contained within the revised law on asylum as well as those taken by the Federal Office for Migration to address cases of gender-based persecution.
The Committee expressed concern that although torture was prohibited by the Federal Constitution, no specific definition of torture exists in criminal law covering all constituent elements contained in article 1 of the Convention; that the draft federal law regulating the use of force by police during deportations and during the transport of detainees ordered by a federal authority authorized the use of electro-shock instruments, including tasers, which can sometimes be used as instruments of torture; and that the Federal Act on Administrative Procedure did not explicitly include the findings of the Committee in respect of an individual complaint concerning a violation of article 3 of the Convention as constituting, in itself, grounds for a review of a case.
The Committee was also concerned that no complete, nor disaggregated statistical information existed, encompassing all cantons, as to the number of complaints received of cases of torture and other cruel, inhuman or degrading treatment or punishment and ill-treatment; and persons granted asylum on the basis of having been victims of, or in danger of being subjected to, torture. In spite of the increase in the number of complaints filed against the police, often by persons of foreign origin, for ill-treatment, only a small part of those complaints resulted in prosecutions or indictments, and even fewer cases resulted in compensation for the victims or their families.
Also, the Committee recommended that Switzerland take measures to ensure compliance with the requirements of article 3, including the proper test of proof, or the risk of torture, when determining whether to expel, return or extradite a person to another State; and ensure that all complaints for acts of ill-treatment were properly and effectively investigated and that the alleged perpetrators were prosecuted and if found guilty sanctioned accordingly. Victims and their families should be informed of their right to pursue compensation and procedures should be made more transparent.
Finland
Among positive developments in the report of Finland, the Committee noted the inclusion of a prohibition of torture and other treatment violating human dignity in Section 7 of the new Constitution of Finland; the measures taken by the State party to implement the Committee's previous recommendations concerning: judicial supervision of the use of isolation in pre-trial detention; the prohibition of organizations which promote and incite racial discrimination; and the prohibition of the dissemination of ideas based on racial superiority or hatred. The Committee noted the overall reform of the system for enforcement of sentences and detention, including changes to the system of parole; the amendment of the Mental Health Act, taking into account human rights conventions binding on Finland; and the creation of a new office of Minority Ombudsman in 2001 to replace the Ombudsman for Aliens, with wider powers under the Minority Ombudsman Act and Aliens Act, including the ability to act for asylum-seekers and deportees.
The Committee expressed concern that although torture was prohibited by the new Constitution, no specific definition of torture existed in criminal law covering all constituent elements contained in article 1 of the Convention; the "accelerated procedure" under the Aliens Act allowed an extremely limited time for applicants for asylum to have their cases considered thoroughly, and to exhaust all lines of appeal if their application was rejected; despite the safeguards in place, the Parliamentary Ombudsman had reported one recent case of an asylum-seeker whose application was rejected and who was subsequently allegedly subjected to torture in his country of origin; and despite the programme of prison renovations currently underway, the practice of "slopping out", which continued in some prisons, would not be finally discontinued until 2010.
The Committee recommended, among other things, that Finland enact specific legislation criminalizing torture in all its forms, as defined in article 1 of the Convention; review the application of the "accelerated procedure" for consideration of asylum requests to ensure that applicants had sufficient time to use all available appeal procedures before irreversible action was taken by the authorities; strengthen the legal safeguards for asylum-seekers to ensure that all asylum procedures conformed to article 3 of the Convention and other international obligations in that field; complete the process of implementing the suggestions made by the working group established to look at the situation of Roma in Finnish prisons; and consider means to accelerate the prison renovation programme and, in the interests of improved hygienic conditions, explore additional alternative interim solutions to the practice of "slopping out".
Albania
In the report of Albania, the Committee noted with appreciation, among other things, the ongoing efforts by Albania aimed at strengthening human rights in the country. In particular, the Committee welcomed the adoption of a democratic Constitution in 1998, which enhanced protection of human rights, including the prohibition of torture; and the ratification of various international and regional conventions against torture. The Committee commended Albania for suspension, since 1992, of the death penalty; the separation of juveniles from adults in all detention facilities; and the involvement of national NGOs in the preparation of the initial report of Albania.
The Committee expressed concern about the non-conformity of the definition of torture of the Criminal Code, with the definition of the Convention, which did not cover all the elements contained in its article 1, especially regarding persons acting in an official capacity; qualification of acts of torture by law enforcement personnel only as "arbitrary acts" and, therefore, the treatment of those acts as less serious criminal offences; a climate of de facto impunity for law enforcement personnel who committed acts of torture or ill-treatment considering: numerous allegations of torture and ill-treatment by law enforcement personnel, especially at the moment of arrest and interrogation, and limited number of complaints regarding torture and ill-treatment, in particular to the Peoples' Advocate.
Further, the Committee was concerned about the difficulties for victims of torture and ill treatment to file a formal complaint with public authorities, to obtain medical evidence in support of their allegations and to present that evidence; allegations of cases of lack of independence of the judiciary; failure to ensure fair and adequate compensation, including rehabilitation for all victims of torture, including ex-political convicted and persecuted persons; and the reported prevalence of violence against women and girls, including sexual and domestic violence, and the reluctance on the part of the authorities to, inter alia, adopt legislative and other measures to counter that phenomenon.
The Committee recommended, among other things, that Albania amend the Criminal Code in order to adopt a definition of torture that covered all the elements contained in article 1 of the Convention; ensure strict application of the provisions against torture and ill-treatment, adequately qualifying, prosecuting and punishing perpetrators in a manner proportionate to the seriousness of the crimes committed; investigate all allegations of ill-treatment and torture by law enforcement personnel; improve mechanisms to facilitate submission of complaints by victims of ill-treatment and torture to public authorities; take all appropriate measures to strengthen the independence of the judiciary; amend domestic legislation to ensure that acts of torture are considered universal crimes; improve conditions in places of detention, ensuring that they conform to international minimum standards; and allow visits to police stations by the Office of the Ombudsman, as well as by other independent bodies, on a regular and unannounced basis.
Uganda
Among the positive developments cited by the Committee in the report of Uganda were the establishment in 1996 of the Uganda Human Rights Commission; the abolition of corporal punishment; the permission granted to many non-governmental organizations to operate freely in the country; the generous approach taken by the Ugandan Government in hosting more than 200,000 refugees and in paying full respect to the principle of non-refoulement; and the ratification of most major international human rights conventions.
The Committee noted with concern that Uganda had neither incorporated the Convention into its legislation nor introduced corresponding provisions to implement several articles, in particular the following: the lack of a comprehensive definition of torture in the domestic law as set out in article 1 of the Convention; the lack of an absolute prohibition of torture in accordance with article 2 of the Convention; the absence of universal jurisdiction for acts of torture in Ugandan law; and the lack of compliance with other articles in the Convention, including articles 6 to 9. The Committee was further concerned about the length of pre-trial detention; the continued allegations of torture and ill-treatment committed in a widespread manner by the State’s security forces and agencies together with the apparent impunity enjoyed by its perpetrators; the pervasive problem of sexual violence, including in places of detention and in camps for internally displaced persons; and the magnitude of the problem of abduction of children by the Lord’s Resistance Army, in particular in Northern Uganda.
The Committee recommended, among other things, that Uganda should take all necessary legislative, administrative and judicial measures to prevent acts of torture and ill-treatment in its territory, and in particular that it should adopt a definition of torture which covers all the elements contained in article 1 of the Convention, and amend domestic penal law accordingly. The Committee also recommended that measures to reduce the length of pre-trial detention; enhance the effectiveness and accessibility of habeas corpus; take vigorous steps to eliminate the impunity of the alleged perpetrators of acts of torture and ill-treatment; and abolish the use of “ungazetted” or unauthorized places of detention or “safe houses”, and immediately provide information about all places of detention.
Further, the Committee recommended that Uganda allow independent human rights monitors, including the Uganda Human Rights Commission, full access to all places of detention, official and non-official, without notice; strengthen the Uganda Human Rights Commission and ensure that its decisions are fully implemented, in particular concerning awards of compensation to victims of torture and prosecution of perpetrators; and take effective steps to ensure that all persons reporting acts of torture or ill-treatment are protected from intimidation and from any unfavourable consequence of their action in making such a report; take effective measures, including judicial measures, to prevent mob justice; and take immediate and effective steps to put an end to customary torture in the area of Karamuja.
Bahrain
Among the positive developments in the report of Bahrain, the Committee cited the political, legal and social reforms on which the country had embarked, including the adoption of the National Action Charter in 2001, which outlined reforms aimed at enhancing non-discrimination, due process and prohibition of torture and arbitrary arrest; the promulgation of the amended Constitution; the creation of the Constitutional Court in 2002; the establishment of the new bi-cameral parliament; abolishing the jurisdiction of the State Security Court over offences against internal and external security of the State; repealing the State Security Law; the withdrawal of its reservation to article 20 of the Convention; and reports that systematic torture no longer takes place following the 2001 reforms.
The Committee was concerned about the persistent gap between the legislative framework and its practical implementation with regard to the obligations of the Convention; the lack of a comprehensive definition of torture in the domestic law as set out in article 1 of the Convention; the large number of allegations of torture and other cruel, inhuman or degrading treatment or punishment of detainees committed prior to 2001; the apparent failure to investigate promptly, impartially and fully the numerous allegations of torture and ill-treatment and to prosecute alleged offenders; the inadequate availability in practice of civil compensation for victims of torture prior to 2001; lack of access by independent monitors to visit and inspect places of detention without prior notice; and the rejection of the House of Deputies in March 2005 of the establishment of an independent National Human Rights Commission.
The Committee recommended, among other things, that Bahrain adopt in its domestic penal law a definition of torture in terms consistent with article 1 of the Convention; respect the absolute nature of article 3 in all circumstances and fully incorporate it into domestic law; consider steps to amend Decree 56 of 2002 to ensure there was no impunity to officials who had perpetrated or acquiesced in torture or other cruel and inhuman or degrading punishment; ensure that any measure taken to combat terrorism, including the draft law, be in accordance with Security Council resolutions; fully ensure the independence of the judiciary; and consider adopting a Family Code including measures to prevent and punish violence against women.
Also, the Committee recommended that Bahrain ensure that all detained persons had immediate access to a doctor and a lawyer, take effective measures to prevent and redress the serious problems commonly faced by foreign workers; consider the establishment of a national human rights institution in accordance with the Paris Principles; and remove inappropriate restrictions on the work of non-governmental organizations, especially dealing with issues related to the Convention.
Membership of the Committee
The Committee’s members are elected by States parties to the Convention and serve in their personal capacity. The current members of the Committee are: Guibril Camara (Senegal); Sayed Kassem el Masry (Egypt); Felice Gaer (United States); Claudio Grossman (Chile); Fernando Mariño Menendez (Spain); Andreas Mavrommatis (Cyprus); Julio Prado Vallejo (Ecuador); Ole Vedel Rasmussen (Denmark); Wang Xeuxian (China); and Alexander M. Yakovlev (Russian Federation).
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