COMMITTEE AGAINST TORTURE CONCLUDES THIRTY-SEVENTH SESSION

The Committee against Torture today concluded its three-week fall session and issued its concluding observations and recommendations on reports from Tajikistan, Mexico, Burundi, the Russian Federation, South Africa, Guyana and Hungary, which it reviewed during the session.

Those countries are among the 142 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.

Among the positive aspects in the initial report of Tajikistan, the Committee noted the transfer of authority over the prison system from the Ministry of Internal Affairs to the Ministry of Justice. Of concern were the extensive resort to pre-trial detention that could last up to 15 months, and the high number of deaths in custody. The Committee recommended that Tajikistan should make every effort to guarantee the independence of the judiciary and establish a fully independent body outside the Procuracy to provide oversight on the proper conduct of investigations.

Following its consideration of the fourth periodic report of Mexico, the Committee welcomed the ratification by the State party of the Optional Protocol to the Convention against Torture in 2005, and Mexico's declaration of 15 March 2002 under article 22 of the Convention, recognizing the competence of the Committee to hear complaints of torture brought by individuals. It was troubled by information received concerning the practice of arbitrary detention in Mexico. The Committee urged Mexico to undertake a prompt, effective and impartial investigation into the incidents which occurred during the public security operations undertaken in San Salvador Atenco on 3 and 4 May 2006 – concerning which there had been numerous allegations of torture and violence against women, including sexual violence.

In its conclusions on the initial report of Burundi, the Committee welcomed the creation of the Ministry for National Solidarity, Human Rights and Gender, the Government Commission on Human Rights and the Centre for the Promotion of Human Rights and the Prevention of Genocide. It was alarmed by information received that torture was a widespread practice in Burundi and that, indeed, there had been hundreds of cases of torture committed between July 2005 and July 2006 – a fact which the State party did not contest. Concerned about the dependency of the judiciary on the executive branch, the Committee urged Burundi to adopt measures to guarantee the independence of the judiciary.

Among positive developments in the fourth periodic report of the Russian Federation, the Committee welcomed the entry into force of the new Code of Criminal Procedure, introducing jury trials, stricter limits on detention and interrogation, exclusion of evidence obtained in absence of a defence lawyer, and limiting detention to 48 hours for criminal suspects. Concerned about reliable reports of harassment and killing of journalists and human rights defenders, including the recent murder of Anna Politkovskaya, the Committee urged Russia to amend its legislation governing the activities of non-governmental organizations to ensure its conformity with international standards on the protection of human rights defenders.

In its conclusions on the initial report of South Africa, the Committee commended the State party for the adoption of the Constitution of 1996, which included a Bill of Rights enshrining the rights “to be free from all forms of violence from either public or private sources”, “not to be tortured in any way” and “not to be treated or punished in a cruel, inhuman or degrading way”, and set legal safeguards for detained persons. While acknowledging with appreciation the work of the Truth and Reconciliation Commission, the Committee noted that de facto impunity persisted regarding persons responsible for acts of torture during apartheid, and that compensation had not yet been given to all victims. The State party should take the necessary measures to strengthen legal aid mechanisms for vulnerable persons or groups.

In its concluding observations on the initial report of Guyana, the Committee noted with satisfaction Guyana’s ratification of most of the core international human rights treaties, and the recent efforts made to reform and strengthen the national legislative base. Among matters of concern were the disciplinary measures used in the treatment of prisoners, in particular those sanctioned by Section 37 of the Prison Act, 1998, which allowed whipping, flogging and reduction of diet. The State party should take effective steps to guarantee the accountability of the Police Force and was urged to take immediate steps to prevent acts such as the alleged practice of extra-judicial killings by members of the police.

In its concluding comments on the initial report of Hungary, the Committee noted with satisfaction ongoing efforts at the State level to reform its legislation, in particular, the 2005 Act on the Assistance to Victims of Crimes and on the Mitigation of Damages by the State and the adoption of the Code of Conduct for Police Interrogations in 2003. It was concerned at the detention policy applied to asylum seekers and other non-citizens, including reports that they often faced lengthy periods of detention for up to 12 months in alien policing jails maintained by the Border Guard. The Committee urged Hungary to further develop educational programmes to ensure that law enforcement officials, prison staff and border guards were fully aware of the provisions of the Convention.
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. It also 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 56 States that have declared the Committee competent to receive complaints under article 22 of the Convention. The Committee also held a brief public meeting, on 22 November, to discuss progress on follow-up to both individual communications and concluding recommendations.

Also during its session, the Committee held two meetings on the topic of treaty body reform. On 6 November, the Committee discussed follow-up to the Fifth Inter-Committee Meeting and the Eighteenth Meeting of Chairpersons of the Human Rights Treaty Bodies, and appointed Committee Experts Felice Gaer to the Working Group on Treaty Body Reform. On 16 November, the Committee considered the results of the International Meeting of Experts on Treaty Body Reform, which took place on 14 and 15 July 2006. At its last meeting, a draft proposal, containing recommendations for submission to the Working Group on the Harmonization of Working Methods of the Human Rights Treaty Bodies, was presented.

Finally, at its last meeting, the Committee completed its first reading of a draft General Comment on Article 2 of the Convention, which requires States parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. The General Comment addressed Article 2 requirements of an absolute prohibition of torture; the content of the obligation to take effective measures, including by incorporating the definition of torture set out in the Convention in the laws and Constitution of parties; the scope of State obligations and responsibility under the Convention; other preventive measures required to be taken by State parties, as set out in Articles 3 and 12; and the issue of superior orders, i.e. the non-derogable nature of torture such that torturers could not seek refuge in superior orders.

The Committee’s next session will be held from 7 to 26 May 2007 during which it is scheduled to examine reports from Italy, Ukraine, Denmark, the Netherlands, Luxembourg, Poland, Japan.

Conclusions and Recommendations on Country Reports

Tajikistan

Among the positive aspects in the initial report of Tajikistan, the Committee noted the ratification of the major international human rights treaties, as well as of the Rome Statute of the International Criminal Court and the United Nations Convention against Corruption; the establishment of the Government Commission on Ensuring Compliance with International Human Rights Obligations and the Office for Constitutional Guarantees of Citizens’ Rights; the transfer of authority over the prison system from the Ministry of Internal Affairs to the Ministry of Justice; the opening to international scrutiny in authorizing the visit from the Special Rapporteur on independence of judges and lawyers in 2000; and the current policy of commuting of all existing death sentences in the State Party.

The Committee was concerned, however, that the definition of torture provided in domestic law was not fully in conformity with that in the Convention, particularly with regard to its applicability to those acting in an official capacity. It was also concerned that there had been numerous allegations concerning widespread routine use of torture and ill-treatment by law enforcement and investigative personnel, particularly to extract confessions to be used in criminal proceedings, and there was an absence of preventive measures to ensure effective protection of all members of society from torture and ill treatment. Of further concern was the lack of a legal obligation to register detainees immediately, and the lack of regular independent medical examinations; numerous and continuing reports of hampered access to legal counsel, independent medical expertise and contacts with relatives in the period immediately following arrest; the lack of fundamental guarantees to ensure judicial supervision of detentions; the extensive resort to pre-trial detention that could last up to 15 months; and the high number of deaths in custody.

Tajikistan should take the necessary steps to protect juveniles from breaches of the Convention. The State party should also make every effort to guarantee the independence of the judiciary, fully in line with the Basic Principles on the Independence of the Judiciary, and establish a fully independent body outside the Procuracy to provide oversight on the proper conduct of investigations, and empowered to receive and investigate individual complaints. Further, Takjikistan should ensure that no recourse was made by law enforcement personnel to interrogation methods that constituted torture or ill-treatment. It was urged to take effective legislative, administrative and judicial measures to ensure that all allegations of acts of torture and ill-treatment by State agents were investigated, prosecuted and the perpetrators punished, including for acts of torture and ill treatment that occurred during the years 1995-1999.

Mexico

Following its consideration of the fourth periodic report of Mexico, the Committee welcomed the ratification by the State party of the Optional Protocol to the Convention against Torture on 11 April 2005. It also welcomed Mexico's declaration of 15 March 2002 under article 22 of the Convention, recognizing the competence of the Committee to hear complaints of torture brought by individuals against Mexico. The Committee appreciated the training programmes put in place regarding the prohibition against torture and to raise awareness about human rights in general, as well as the establishment of human rights units in various sections of the Office of the Attorney-General of the Republic. The Committee further welcomed Mexico's implementation of the Istanbul Protocol at both the Federal level as well as in several states, and the creation of the Committee to Monitor and Evaluate the Medical/Psychological Certificate of Possible Torture or Ill-Treatment.

The Committee noted the proposal to reform the public security and criminal justice system, but was concerned that those reforms had still not been approved. Furthermore, the Committee expressed its concern over information that in numerous cases greater consideration was given to the first statements made before a public prosecutor than to subsequent statements made before a judge. It was further troubled by information received concerning the practice of arbitrary detention in Mexico. It noted with concern that military personnel accused of torturing civilians in the course of their duties continued to be tried under the military code.

Among other recommendations, the Committee urged Mexico to carry our a prompt, effective and impartial investigation into the incidents which occurred during the public security operations undertaken in San Salvador Atenco on 3 and 4 May 2006 –concerning which there had been numerous allegations of torture and violence against women, including sexual violence – and to ensure that those responsible for the those acts were prosecuted and received appropriate punishments. Furthermore, Mexico should ensure that the victims received just and effective compensation, and that women victims of sexual violence had access to adequate medical and psychological services. Mexico also had to guarantee that no statement made under torture could be used, either directly or indirectly, as proof in any type of proceedings, as set out in Article 15 of the Convention.

Burundi

In its conclusions on the initial report of Burundi, the Committee took note of the proposed amendments to Burundi's Penal Code, and of Burundi's intention to include articles prohibiting acts of torture, and other acts of cruel, inhuman or degrading treatment, including with regard to violence against women and children. Further, it acknowledged the delegation's statement that the Code of Criminal Procedure would be likewise revised over the course of 2007. The Committee welcomed the creation of the Ministry for National Solidarity, Human Rights and Gender, the Government Commission on Human Rights and the Centre for the Promotion of Human Rights and the Prevention of Genocide.

The Committee remained concerned, however, by the lack of specific provisions in Burundi's Penal Code to define and criminalize torture, and the lack of clarity surrounding the status of the Convention in domestic law. It noted with concern that the rules concerning detention did not explicitly require that detainees be notified of their rights, and was alarmed by information received that torture was a widespread practice in Burundi and that, indeed, there had been hundreds of cases of torture committed between July 2005 and July 2006 – a fact which the State party did not contest. +In addition, it was extremely concerned by reports concerning a high number of forced disappearances, arbitrary arrests and secret detentions committed by the National Information Service. The Committee was worried by the double mandate of the Information Service, which was charged both with ensuring State security and judicial police functions, a combination that entailed a high risk that such an entity would be used as an instrument of political repression. It was further alarmed by reports of large scale sexual violence against women and children by State agents and armed groups, as well as recourse to systematized rape as a weapon of war, which was a crime against humanity. The Committee was extremely concerned that the perpetrators of such acts enjoyed apparent impunity.

Concerned by the dependency of the judiciary on the executive branch, the Committee urged Burundi to adopt measures to guarantee the independence of the judiciary. It further recommended that Burundi put in place and promote an effective mechanism mandated to receive complaints of sexual violence, including those occurring within the penitentiary system, and to investigate them. In particular, it urged the State party to look into setting up a national monitoring system for places of detention and to institute a follow-up procedure. As a matter of urgency, Burundi needed to take measures to combat impunity, in particular through the establishment of transitional justice mechanisms – a commission for truth and reconciliation and a special tribunal – as recommended by the Security Council in its resolution 1606 (2005).

Russian Federation

Among positive developments in the fourth periodic report of the Russian Federation, t he Committee welcomed the entry into force of the new Code of Criminal Procedure, introducing jury trials, stricter limits on detention and interrogation, exclusion of evidence obtained in absence of a defence lawyer, authorizing a judge rather than a procurator to order an arrest, and limiting detention to 48 hours for criminal suspects. It also welcomed the new Code of Administrative Offences (2002), as well as the adoption in 2004 of a law that provided for a system of Government protection for crime victims, witnesses and others involved in criminal proceedings and their relatives.

Subjects of concern included laws and practices that obstructed access to lawyers and relatives of suspects; the particularly numerous, ongoing and consistent allegations of acts of torture and other cruel, inhuman or degrading treatment committed by law enforcement personnel; that the law enforcement promotion system was based on the number of crimes solved, which appeared to promote torture to obtain confessions; and that representatives of international organizations other than the European Committee for the Prevention of Torture could talk to prisoners only when accompanied by representatives of the administration. The Committee was further concerned about continuing reports of hazing in the military, as well as torture and other cruel, inhuman or degrading treatment or punishment in the armed forces, and documented reports that victims who lodged complaints were subjected to further abuse. The Committee urged the State party, as a matter of priority, to pursue efforts to reform the Procuracy to ensure its independence and impartiality. The Russian Federation should establish effective and independent oversight mechanisms to ensure prompt, impartial and effective investigations into all allegations, and legal prosecution or punishment of those found guilty. Concerned about reliable reports of harassment and killing of journalists and human rights defenders, including the recent murder of Anna Politkovskaya, the Committee urged Russia to amend its legislation governing the activities of non-governmental organizations to ensure its conformity with international standards on the protection of human rights defenders, including the United Nations Declaration on Human Rights Defenders.

With particular regard to the situation in the Chechen Republic, the Committee was concerned about reliable reports of unofficial places of detention in the North Caucasus and allegations that those detained in such facilities faced torture or cruel, inhuman or degrading treatment, as well as the numerous, ongoing and consistent allegations that abductions and enforced disappearances in the Chechen Republic were inflicted by or at the instigation of public officials. The Committee therefore recommended, among other things, that the Russian Federation ensure that no one was detained in any unofficial place of detention under its effective control, and that it investigate and disclose the existence of any such facilities. Furthermore, the State party should take all necessary measures to prohibit and prevent abductions and enforced disappearances in any territory under its jurisdiction, and prosecute and punish the perpetrators and should conduct a thorough and independent inquiry into the methods used in holding facilities in the Second Operational Investigative Bureau of the North Caucasian Operative Administration when questioning prisoners.

South Africa

In its conclusions on the initial report of South Africa, the Committee commended the State party for the peaceful transition from the apartheid regime and the establishment of a democratic South African society, as well as for the adoption of the Constitution of 1996, which included a Bill of Rights enshrining, inter alia, the rights “to be free from all forms of violence from either public or private sources”, “not to be tortured in any way” and “not to be treated or punished in a cruel, inhuman or degrading way”, and set legal safeguards for detained persons. It acknowledged with appreciation the wide ratification of international human rights instruments by South Africa since the end of apartheid, and welcomed the adoption of numerous legislative measures designed to entrench, promote and enforce human rights, including the abolition of the death penalty and solitary confinement, and the adoption of the United Nations Standard Minimum Rules for the Treatment of Prisoners.

Notwithstanding the provisions of the Constitution, the Committee was concerned by the absence of a specific offence of torture, as well as of a definition of torture, in South Africa’s criminal law. It was also concerned by the return of persons to States where there were substantial grounds for believing that they would be in danger of being subjected to torture or sentenced to death. While noting with appreciation the work of the Truth and Reconciliation Commission, the Committee noted that de facto impunity persisted regarding persons responsible for acts of torture during apartheid, and that compensation had not yet been given to all victims. It was concerned with the high number of deaths in detention, and with the lack of investigation of alleged ill-treatment of detainees.

The Committee recommended that the State party should take the necessary measures to strengthen legal aid mechanisms for vulnerable persons or groups, ensuring that all victims of acts of torture may exercise their rights under the Convention. The State party should adopt effective measures to improve the conditions in detention facilities, reduce the current overcrowding and meet the fundamental needs of all those deprived of their liberty, in particular regarding health care, and periodic examinations of prisoners should be carried out. The State party should also ensure that detained children are kept in facilities separate from those for adults in conformity with international standards, reconsider the systematic pre-trial detention for certain crimes, especially for children, and establish an effective monitoring mechanism for persons in police custody. The Committee urged South Africa to adopt legislation and other effective measures in order to adequately prevent, combat and punish human trafficking, especially that of women and children.

Guyana

In its concluding observations on the initial report of Guyana, the Committee acknowledged the ongoing efforts of the State party to reform its legal and institutional system. In particular, it noted with satisfaction Guyana’s ratification of most of the core international human rights treaties, as well as the Rome Statute of the International Criminal Court, and the recent efforts made to reform and strengthen the national legislative base. Among the new legislation was the Combating of Trafficking in Persons Act of 2005; the Witness Protection Bill of May 2006; the Mutual Cooperation in Criminal Matters Bill of April 2006; and the Justice Protection Bill of May 2006.

The Committee regretted the lack of information on the compliance by the State party with article 3 of the Convention, and reminded Guyana of the absolute nature of the prohibition to expel, return or extradite a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. It was concerned about the reduced presence of persons of Indo-Guyanese origin in the police force, which would appear to be among the causes of the high number of deaths in custody of persons of Indo-Guyanese origin. In that connection, the Committee was also concerned about reports on the excessive length of pre-trial detention, which could occasionally last between three and four years. The disciplinary measures used in the treatment of prisoners were another matter of concern, in particular Section 37 of the Prison Act, 1998, which allowed whipping, flogging and reduction of diet. The Committee was particularly concerned about reports of widespread police brutality, the use of force and firearms by the police, as well as the lack of accountability of the Guyana Police Force.

The Committee recommended that the State party should take effective steps to guarantee the accountability of the Police Force and urged it to take immediate steps to prevent acts such as the alleged practice of extra-judicial killings by members of the police. In that regard, Guyana should guarantee that prompt and impartial inquiries were conducted, perpetrators were prosecuted and effective remedies were provided to victims. The Committee recommended that Guyana raise the minimum age of criminal responsibility from 10 years of age to an internationally acceptable level, as already recommended by the Committee on the Rights of the Child. The State party was also urged to take effective and comprehensive measures to combat sexual violence in the country, inter alia, through establishing and promoting an effective mechanism for receiving complaints of sexual violence, including in custodial facilities; ensuring that law enforcement personnel were instructed on the absolute prohibition of violence and rape in custody as a form of torture, as well as trained to deal with charges of sexual violence; and by establishing a monitoring mechanism to investigate and deal with cases of sexual violence in the country.

Hungary

In its concluding comments on the initial report of Hungary, the Committee noted with satisfaction ongoing efforts at the State level to reform its legislation, in particular, the 2005 Act on the Assistance to Victims of Crimes and on the Mitigation of Damages by the State; the 2001 Act on the Entry and Stay of Foreigners;
the adoption of the Code of Conduct for Police Interrogations in 2003; the establishment of a shelter for unaccompanied minors in 2003, in conjunction with the United Nations High Commissioner for Refugees; and the publication in June 2006 of the last report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and Hungary’s responses to it.


The Committee expressed its concern at the length of the initial pre-trial detention phase (up to 72 hours), as well as ongoing pre-trial detentions on police premises, and it greatly regretted that pre-trial detention of up to three years was provided for under the Criminal Procedure Act. The Committee was also concerned at allegations that fundamental legal safeguards for persons detained by the police or Border Guard staff, including the rights of access to a lawyer and medical examination, were not being observed in all situations. Furthermore, it was concerned at the detention policy applied to asylum seekers and other non-citizens, including reports that they often faced lengthy periods of detention, including in the context of the so-called “alien policing procedure”, with detention for up to 12 months in alien policing jails maintained by the Border Guard.
Among its recommendations, the Committee urged Hungary to further develop educational programmes to ensure that law enforcement officials, prison staff and border guards were fully aware of the provisions of the Convention. The Committee recommended that the Istanbul Protocol of 1999 become an integral part of the training provided to physicians. Furthermore, Hungary should develop a methodology to assess the effectiveness and impact of such training programmes on the reduction of cases of torture, violence and ill-treatment. Hungary also should give higher priority to efforts to promote a culture of human rights by ensuring that a policy of zero tolerance was developed and implemented at all levels of the police-force hierarchy, as well as for all staff in penitentiary establishments. Such a policy should identify and address the problems, and should include the new Code of Conduct for Police Interrogations and introduce a code of conduct for all officials as well as regular monitoring by an independent oversight body.

Membership and Officers

The Committee's members are elected by the States parties to the Convention and serve in their personal capacity. The current members of the Committee are: Essadia Belmir (Morocco); Luis Benigno Gallegos Chiriboga (Ecuador); Guibril Camara (Senegal); Felice Gaer (the United States); Claudio Grossman (Chile); Fernando Mariño Menendez (Spain); Andreas Mavrommatis (Cyprus); Nora Sveaass (Norway); Xuexian Wang (China); and Alexander Kovalev (Russian Federation).

Mr. Mavrommatis is the Committee Chairman; Mr. Camara, Mr. Grossman and Mr. Kovalev are Vice Chairmen; and Ms. Gaer is the Committee Rapporteur.


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