HUMAN RIGHTS COUNCIL DISCUSSES REPORTS ON TORTURE, ARBITRARY DETENTION AND INDEPENDENCE OF JUDGES AND LAWYERS

The Human Rights Council this afternoon discussed the reports of its Special Procedures on torture and other cruel, inhuman or degrading treatment or punishment, arbitrary detention, and the independence of judges and lawyers.

Manfred Nowak, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said it was astonishing that the majority of States parties had not found it necessary to take the respective legislative measures and, thereby, convey to their law enforcement officials the message that torture actually did constitute a serious crime which could never be justified and which led to serious consequences. This failure on the part of most legislative bodies contributed to a climate of impunity and a lack of awareness, which in turn constituted one of the major reasons for the continuing practice of torture in many countries and regions of the world. The findings of his recent trip to Jordan illustrated this, but Jordan was by no means the exception in this regard.

The practice of torture in Uzbekistan was systematic, Mr. Nowak said. Torture persisted in Georgia, perpetuated by a culture of impunity. In Mongolia, torture persisted in police stations and pre-trial detention facilities and impunity went unimpeded. In Nepal, torture was systematically practiced by the police forces and the military. In China, the practice of torture, though on the decline - particularly in urban areas - remained widespread.

Leila Zarrougui, Chairperson-Rapporteur of the Working Group Arbitrary Detention, said the Group had received information from reliable sources on the existence of clandestine prisons where individuals were secretly detained in conditions not clear to the Group. Those persons were transferred from the responsibility of one State to the territories of other States. It was revealed that such a practice, which was considered to be a means to fight against terrorism, was to prolong the period of detention and interrogations and was not compatible with international humanitarian law or laws relating to human rights.

Ms. Zerrougui said over the course of 2005, the Working Group had visited South Africa and Canada, and in 2006, Ecuador, Honduras and Nicaragua. It was also scheduled to visit Turkey in 2006. During its visit to Canada, the Group was able to observe the functioning of the institutions within the context of the rule of law, which remained a model of reference. The Group was impressed by the remarkable evolution taking place in South Africa. Human rights and the rights of individuals were entrenched in the country’s Constitution.

Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, said that many countries were suffering from sequels of armed conflict and other situations in which there were massive violations of human rights. There should be trust amongst citizens. The State should carry out measures in this regard, but should do so within the context of legality. Today, best practices were being compiled, with the aim of seeking terms of reference to help countries in transition.

Mr. Despouy said he had visited Kyrgyzstan, and Tajikistan, and carried out a follow-up visit to Ecuador. In Kyrgyzstan and Tajikistan, as in other former Soviet countries, there were problems with naming judges and the limitation of their mandate, and with an imbalance between the prosecution and the judges. Regarding the High Tribunal in Iraq, ever since 10 December 2003, he had been expressing reservations with regards to the legitimacy of this tribunal.

The following countries took the floor as concerned countries by the reports on torture, arbitrary detention and the independence of judges and lawyers: China, Georgia, Jordan, Nepal, Canada, South Africa, Ecuador and Algeria.

Argentina, Tunisia, United States, Uruguay, Uzbekistan, Switzerland, Finland, Chile, Indonesia, Brazil, Denmark, Iran, New Zealand, Belarus and Mali spoke within the context of interactive dialogue.

Also this afternoon, the Council concluded its debate on violence against women and the human aspects of the victims of trafficking in persons, hearing the conclusions of the two Special Rapporteurs.

Yakin Erturk, the Special Rapporteur on violence against women, said it had been a very fruitful discussion, showing the commitment of the international community on two issues which were closely linked to women’s human rights. Those who had responded to her reports were thanked for their constructive comments, and for recognising the existence of violence against women across the world, which gave much hope for future progress. There were differences of opinion, but as long as the dialogue continued, these could be worked on to improve the situation.

Sigma Huda, the Special Rapporteur on the human rights aspects of victims of trafficking in persons, especially women and children, said cyber space crime had to be dealt with through international law, and by enacting legislation at the national level to punish offenders. In terms of legalizing prostitution, she said that such decisions would put prostitution under the carpet. Rather, she supported keeping prostitution illegal as it provided a better way for survivors and victims to empower themselves by asking for assistance and legal protection.

The Representatives of Indonesia, Netherlands, Liechtenstein, Dominican Republic and United States spoke as part of the interactive dialogue on violence against women and trafficking against persons. Also speaking were non-governmental organizations from Franciscan International in a joint statement with Human Rights Watch, Inter-African Committee on Traditional Practices in a joint statement with several NGO's1, Human Rights Watch, Movement for Abolition of Pornography and Prostitution in a joint statement with Coalition against Trafficking, Global Alliance in Trafficking in Women, and International Educational Development in a joint statement with Interfaith International.

Singapore exercised the right of reply.

When the Council meets at 10 a.m. on Thursday, 21 September, it will first conclude its debate on violence against women and trafficking in persons before hearing the reports of its Special Procedures on freedom of religion, freedom of expression and the joint report on Guantenamo Bay.

Statements on Reports on Violence against Women and Trafficking in Persons

JONNY SINAGA (Indonesia) said both Special Rapporteurs were thanked for their reports, and Sigma Huda, the Special Rapporteur on trafficking in persons, in particular for her recent visit to Indonesia, which was affected both by violence against women and trafficking, and was committed to seeking the best solutions to these issues. Socio-economic, cultural and economic conditions played a role in both situations, and the need for a multi-faceted approach in tackling the issue and the collaborative efforts of all stakeholders was clear. Indonesia had taken numerous steps to combat and prosecute both phenomena, and would like to know if the Special Rapporteur on trafficking would focus more attention on the role of receiving States in the combat against sexual trafficking.

PIET DE KLERK (Netherlands) was pleased to have received Yakin Erturk, the Special Rapporteur on violence against women, in the country. The Netherlands had taken important steps in terms of internal and external policies to eliminate violence against women. The Netherlands would react in due time to her report. National policies had been in place for the last 20 years, and a pragmatic approach had been followed at the local level. At the national level the Government had instituted a national emancipation plan to eliminate violence against women. The Netherlands asked Sigma Huda, the Special Rapporteur on trafficking in persons, why she had limited her report only to forms of trafficking related to sexual exploitation while the Palermo Declaration applied a wider concept, and if she could expand with reference to her paragraph 42 of the report in which she made references to the fact that abuse of power was always present in the path to prostitution.

ANDREA HOCH (Liechtenstein), referring to the report on violence against women, said that the extension of the due diligence concept on non-state actors had indeed some merits and should be studied further. In her report, the Special Rapporteur on violence against women had criticized cultural relativism which was often used as justification for not implementing international human rights standards and in particular for violating women’s rights. What policies or concepts could be helpful to overcome cultural relativism?

YSSET ROMAN MALDONADO (Dominican Republic) said Ms. Huda’s report pointed out that the Dominican Republic had not replied to an urgent appeal, and there should be a corrigendum, as this request was submitted on 14 February 2006, and had been replied to.

VELIA DE PIRRO (United States) said the United States strongly supported the mandates of both Special Rapporteurs. These were among the mandates that the Government considered most essential. Effective action on the important issue of trafficking in persons was strongly supported, and amendments to legislation in the United States had been made to this effect. Information campaigns were held on sex tourism, providing training and outreach, both at home and abroad, to combat trafficking in persons. Attention paid to the crucial issue of the demand side of trafficking was important. The report on violence raised serious issues that required further examination, such as due diligence. Extensive action had been taken domestically to combat violence against women.

ALESSANDRA AULA, of Franciscans International, asked Ms. Huda with reference to her last visit to Lebanon if she had noticed any implementation of her recommendations on the amendment of the Penal Code so as to criminalize all forms of trafficking as defined in the Palermo Protocol, the extension of the protection provisions contained in the Labour Code to domestic workers and women holding employment contract as nightclub dancers and models, and the need to create specific identification guidelines for trafficked persons and stop the practice to have individual general security officers in charge of it.

RAS WORK, of Inter-African Committee on Traditional Practices affecting the Health of Women and Children, in a joint statement with severals NGOs1, said violence against women as a universal phenomenon affected millions of women and girls cutting across religion and cultural differences with roots deeply entrenched in the prevailing patriarchal system. At the international level sufficient awareness had been raised through advocacy, lobbying and study reports which demonstrated the serious nature of violence again women. Women were systematically raped at home or in zones of conflict. The infanticide of girls and feticide following sex selection were current practices observed in clinics and hospitals of some countries in Asia. Female genital mutilation as a traditional practice continued to take its toll. Millions of girls were subjected to that inhuman practice with their healthy body butchered. The adoption of the “Protocol to the African Charter on Human and People’s Rights on the rights of Women in Africa” was a welcome sign in terms of showing political will to stop violence against women. But that should be promptly followed by national and international mobilization and actions. Among other things, special national and regional bodies to monitor government actions in implementing the relevant instruments to prohibit violence against women should be set up

SEBASTIEN GILLIOZ, of Human Rights Watch, said violence against women was a particularly ubiquitous type of human rights violation which manifested itself in multiple manners, most shrouded in impunity. How would the Special Rapporteur characterise the need to prevent and punish this violence as a human rights crisis, and how could the Human Rights Council and all its special mechanisms contribute to preventing violence against women as this related to women’s enjoyment of all their human rights, the speaker asked, also inquiring whether promoting gender equality helped to prevent violence against women.

LAURA CHAVEZ , of Movement for Abolition of Pornography and Prostitution in a joint statement with Coalition against Trafficking in Women, said the report of the Special Rapporteur on trafficking had reminded that the three pillars supporting trafficking were the buyers, the bought, and the business, and all three needed to be emphasised in considering the human rights aspects of the victims. The report addressed a key human rights aspect of protection for victims of trafficking, which was that the burden of proof should not be on the victim to prove that she was forced, and that the consent of the victim could not be used as a defence for traffickers.

MS. MARKOVICH, of Global Alliance Against Trafficking in Women, which comprised over 200 organizations from all continents, said the Alliance provided grassroots assistance to women affected by trafficking. Trafficking occurred in all industries, and its root causes had to be found in poverty, sexual inequality and exploitation of cheap labour. References made by Ms. Huda to trafficking in the sex industry also applied to all other industries. The Global Alliance Against Trafficking in Women asked Ms. Huda if the voices of the communities could be given a larger voice in the fight to end trafficking in women.

KATERINE MC DONALD, of International Educational Development, in a joint statement with interfaith international said that Falun Gong practitioners continued to suffer a barbaric persecution from the Chinese authorities since 1999. The practitioners, particularly women, had suffered unimaginable ravages, from public rape to gang rape, from forced abortion to live organ extraction. At the time when no government was willing to risk economic repercussions to speak up against the severe and extensive violations in China, the voices of the UN Special Rapporteurs had become the only console of those victims.

Concluding Statements by Special Rapporteurs on Violence against Women and Trafficking in Persons

YAKIN ERTURK, Special Rapporteur on violence against women, said it had been a very fruitful discussion, showing the commitment of the international community on two issues which were closely linked to women’s human rights. Those who had responded to her reports were thanked for their constructive comments, and for recognising the existence of violence against women across the world, which gave much hope for future progress. There were differences of opinion, but as long as the dialogue continued, these could be worked on to improve the situation. With regard to the response of the Representative of the Russian Federation, she regretted the manner in which they had read her report, saying that such an interpretation would impede cooperation on improving the situation of women in Russia. Nowhere in her report did she argue that violence against women was a state policy, and she hoped the Government would engage in a re-reading of the report so that it could contribute to their efforts to improve the situation. Figures could not be overlooked, but if there was wrong information in the report, Ms. Erturk remained at the disposal of countries to correct these.

Ms. Erturk apologised to the Australian Government if the last sentence in paragraph 91 gave the impression it was related to Australia, as it should not be interpreted as such. The Secretary-General’s report was an important occasion, and would be taken up by the General Assembly next month, and it addressed the fragmented approach both on the conceptual and practical approaches. Many comments had referred to the issue of culture, and her next thematic report would be on this issue, and she would soon be appealing to all to send their views and information on this issue. The honour-crime issue would be dealt with in this report, but she noted that this was a particularly sick manifestation of general violence against women. There was a need to understand the universality of violence against women and deal with it in its dialectical formation.

With regards to due diligence, Ms. Erturk said the responsibility of observing international human rights law lay with States, but with globalization many actors had gained incredible space, and there needed to be consideration of the trends in developments through which these new geographies were considered. On State responsibility on preventing, prosecuting, protecting, and providing compensation, a lot had been done on prosecution and protection, but a lot remained to be done in prevention. Violence against women was not seen as a victimisation, but part of disempowerment, and therefore gender equality was an important part of changing the situation.

SIGMA HUDA, Special Rapporteur on the human rights aspects of victims of trafficking in persons, especially women and children, thanked the countries she had visited for their response. In particular, she congratulated the Lebanese Government for its national action plan, which had been adopted. She assured the Government of her support of women in the country in the post-war situation. With reference to a question by Costa Rica, cyber space crime had to be dealt with through international law, and by enacting legislation at the national level to punish offenders. On the question by Norway, on Special Rapporteurs working together, she worked in close cooperation with a number of other Special Rapporteurs and she was, for instance, contemplating a joint mission to Thailand.

On Finland’s question on the most efficient way to discourage demand at the national level, she said that empowerment of women to avoid prostitution and provision of services to assist victims were of great importance. Also relevant were multilateral dialogue and sharing experiences on how to avoid trafficking. She thanked Bosnia and Herzegovina for their positive action, and she committed herself to assist the country with reference to their programme on providing safe housing to victims. In terms of legalizing prostitution, she said that such decisions would put prostitution under the carpet. Rather, she supported keeping prostitution illegal as it provided a better way for survivors and victims to empower themselves by asking for assistance and legal protection. Lastly, on questions posed by the NGO community, she reiterated that legalization of prostitution was not the answer to trafficking. Even though her report dealt in particular with sexual exploitation, she fully recognized other forms of exploitation, and she would deal with them in future reports.

Right of Reply

FAITH GAN (Singapore), in a right of reply, said that the statement made by the International Educational Development had referred to Singapore with regard to the activities of the group. She said any association intending to hold an assembly should first obtain permission from the police. The assembly should not breach the laws of the country. That law equally applied to the Falun Gong practitioners. Those who infringed the law were fined, as it was the case for two members of the group, who were found distributing leaflets without prior permission to do so.

Reports Presented to the Council

The Council is considering the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak (E.CN.4/2006/6), which summarizes in Section I the activities of the Special Rapporteur in 2005, with a particular focus on the period since the submission of his interim report to the General Assembly. In section II, the Special Rapporteur discusses the methods of work related to country visits, particularly the terms of reference for fact-finding missions. He examines the implications of these conditions, specifically with respect to visiting places of detention. According to the Special Rapporteur, the terms of reference are fundamental, common-sense considerations that are essential to ensure an objective, impartial and independent assessment of torture and ill-treatment during country visits. Section III contains a report on recent activities and developments related to diplomatic assurances. The Special Rapporteur draws attention to the importance of maintaining the focus and remaining vigilant on practices such as the use of diplomatic assurances, which attempt to erode the absolute prohibition on torture in the context of counter-terrorism measures. He reiterates that diplomatic assurances are not legally binding and undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore should not be resorted to by States. Section IV examines the distinction between torture and cruel, inhuman or degrading treatment or punishment. He concludes that the distinction relates primarily to the question of personal liberty.

The summary of communications sent by the Special Rapporteur from 1 December 2004 to 15 December 2005 and the replies received thereto from Governments by 31 December 2005, as well as a number of country-specific observations, are found in addendum 1 to the report. The summary of the information provided by Governments and non-governmental organizations on the implementation of the Special Rapporteur’s recommendations following country visits is found in addendum 2. Addendums 3 to 6 are the reports on the country visits to Georgia, Mongolia, Nepal and China, respectively. Document E/CN.4/2006/120 contains the joint report prepared with the Special Rapporteurs on the right of everyone to the highest attainable standard of physical and mental health, the independence of judges and lawyers, and freedom of religion or belief, and the Chairperson of the Working Group on arbitrary detention concerning the human rights situation of detainees held at the United States of America Naval Base at Guantánamo Bay, Cuba.

The Council is considering the report of the Working Group on arbitrary detention (E/CN.4/2006/7) which says the Working Group visited Canada and South Africa at the invitation of the Governments of those countries. During 2005, the Working Group adopted 48 Opinions concerning 115 persons in 30 countries. In 30 cases, it considered the deprivation of liberty to be arbitrary. Also during the period from 9 November 2004 to 8 November 2005, the Working Group transmitted a total of 181 urgent appeals concerning 565 individuals to 56 Governments; 168 were joint appeals with other thematic or country-oriented mandates of the Commission on Human Rights. Thirty-two (32) concerned Governments informed the Working Group that they had taken measures to remedy the situation of the detainees. In some cases, the detainees were released. In other cases, the Working Group was assured that the detainees concerned would receive fair-trial guarantees.

The report includes the text of the Working Group’s Deliberation No. 8 on deprivation of liberty linked to/resulting from the use of the Internet. Other sections of the report are devoted to the competence of the Working Group with regard to cases of detention linked to an armed conflict and to some issues of concern, such as over-incarceration and the use of secret prisons in the context of the so-called “global war on terror”.

An addendum to the above report (E/CN.4/2006/7/Add.2) contains an account of the Working Group’s visit to Canada. An addendum to the above report (E/CN.4/2006/7/Add.3) contains an account of the Working Group’s visit to South Africa.

Before the Council is the report of the Special Rapporteur on the independence of the judges and lawyers Leonardo Despouy (E/CN.4/2006/52, Add.1 and corr.1, Add.2, Add.3 and Add.4) which describes the activities conducted by the Special Rapporteur on the independence of judges and lawyers in 2005. The themes considered include the administration of justice and the right to the truth, the judicial authorities and justice in transitional situations and the Iraqi Special Tribunal. The report approaches the right to the truth as an independent right as well as a means of achieving the rights to information, to identity, to mourning and especially the right to justice; the report considers the right in both its individual and its collective dimension and analyses the actors and procedures required for its implementation. It deals with issues of active legitimacy for the enforcement of the right and the interactive between the courts and truth commissions. In its recommendations, among other things, the report invites the Council to facilitate the adoption and ratification as soon as possible of the International Convention on the Enforced Disappearance of Persons and the implementation of the Set of Principles for the protection and promotion of human rights through action to combat impunity. The Rapporteur’s missions to Tajikistan, Kyrgyzstan, follow-up mission to Ecuador and the situation in specific countries or territories were described in the addenda to the report.

Presentations by Special Procedures on Torture, Arbitrary Detention and Independence of Judges

MANFRED NOWAK, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said since he assumed his mandate almost two years ago, he had carried out five country missions and various other activities, in particular relating to torture in the context of counter-terrorism strategies. Although most Governments would agree with him that torture constituted one of the most serious human rights violations and a direct attack on the dignity of the human person, he found a surprising lack of awareness among domestic law enforcement officials and politicians in this respect. Despite the fact that the Committee against Torture, in the reporting procedure, repeatedly reminded Governments of this particular obligation, it was astonishing that the majority of States parties had not found it necessary to take the respective legislative measures and, thereby, convey to their law enforcement officials the message that torture actually does constitute a serious crime which could never be justified and which led to serious consequences, i.e. long term prison sentences. This failure on the part of most legislative bodies contributed to a climate of impunity and a lack of awareness, which in turn constituted one of the major reasons for the continuing practice of torture in many countries and regions of the world.

The findings of his recent trip to Jordan illustrated the abovementioned aptly. While torture was defined in the Criminal Code, it was not in line with the definition of torture contained in article 1 CAT, was not treated as a significant crime but rather as a misdemeanor, and it was not subject to penalties appropriate to its gravity. Nevertheless, Jordan was by no means the exception in this regard.

The absolute prohibition of torture, particularly in the context of counter-terrorism measures, remained one of his preoccupations. Mr. Nowak said he continued to emphasize the importance of maintaining the focus and remaining vigilant against practices that undermined the principle of non-refoulement, such as the use of diplomatic assurances, or other bilateral agreements.

The practice of torture in Uzbekistan was systematic. Mr. Nowak said he had received serious allegations of torture by Uzbek law enforcement officials, which he regularly transmitted to the Government for clarification and urgent action.

With reference to his visit to Georgia, he considered his visit to the country to be a model example. He concluded that torture persisted in Georgia, perpetuated by a culture of impunity. In the territories of Abkhazia and South Ossetia, he found the conditions of detention particularly of concern.

On the visit to Mongolia, Mr. Nowak found that torture persisted in police stations and pre-trial detention facilities. He found that impunity went unimpeded because of the absence of a definition of torture in line with the Convention, the lack of effective mechanisms to receive and investigate allegations, and a basic lack of awareness of the standards relating to the prohibition against torture on the part of prosecutors, lawyers and the judiciary.

With reference to his visit to Nepal, Mr. Nowak found torture to be systematically practiced by the police forces and the military. He also received shocking evidence of torture and mutilation carried out by the Maoists for the purposes of extortion, punishment for non-cooperation, and intimidation.

On his visit to China, Mr. Nowak said that taking into account the size and complexity of the country as well as the limited duration of the mission, he acknowledged the limitations in drawing up a comprehensive set of findings and conclusions on the situation of torture and ill-treatment in China. In consequence, he said that he believed that the practice of torture, though on the decline—particularly in urban areas—remained widespread in China. He was particularly concerned about the continuing practice of forced re-education of persons with dissident or non-dissident opinions, aiming at changing their personality and breaking their will, both in special re-education through labor camps, regular prisons, and even in pre-trial detention facilities.

He considered that the most effective way to prevent torture was to expose all places of detention to public scrutiny, and the Optional Protocol to the United Nations Convention Against Torture was the most effective and innovative method for the prevention of torture and ill-treatment worldwide.

LEILA ZERROUGUI, Chairperson-Rapporteur of the Working Group on arbitrary detention, said that during the three sessions it held in 2005, the Working Group had adopted 48 opinions concerning 115 persons living in 30 countries. In 30 out of 48 cases, it was of the view that detention was arbitrary. The Group had also addressed to 56 governments 181 urgent calls concerning 565 persons. Concerning 168 of the calls, the Group reacted jointly with other mandate-holders or country Rapporteurs. Eighteen governments had replied saying that they had taken remedial measures with regard to the detainees. As regards country missions, the Working Group had continued to elaborate a procedure to follow with the view to maintaining a dialogue with the countries where the visit was carried out and for which it had made recommendations for certain changes in the practice of the law pertaining to detainees. The Governments of Iran and Mexico had provided information on follow-up to the recommendations the Working Group made following its visit to those countries. During its forty-fourth session, the Working Group had adopted its deliberation no. 8 relating to detention because of the use of Internet.

The Working Group had received information from reliable sources on the existence of clandestine prisons where individuals were secretly detained in conditions not clear to the Group. Ms. Zerrougui said those persons were transferred from the responsibility of one State to the territory of other States. It was revealed that such practice, which was considered to be a means to fight against terrorism, was to prolong the period of detention and interrogations. The Group noted with concern that such transfers had been carried out without any legal procedures concerning expulsion and extradition, and was not compatible with international humanitarian law or laws relating to human rights. Over the course of 2005, the Working Group had visited South Africa and Canada, and in 2006, Ecuador, Honduras and Nicaragua. It was also scheduled to visit Turkey in 2006. During its visit to Canada, the Group was able to observe the functioning of the institutions within the context of the rule of law, which remained a model of reference. The Group was impressed by the remarkable evolution taking place in South Africa. Human rights and the rights of individuals were entrenched in the country’s Constitution. The institutions that monitored the executive, the legislative and judicial organs had been effectively playing their role in the transition process from apartheid to a mature democracy.

LEANDRO DESPOUY, Special Rapporteur on the independence of judges and lawyers, said he had had a very productive and intense year. He had visited Kyrgyzstan, and Tajikistan, and carried out a follow-up visit to Ecuador. The right to truth was very important, and was part of a struggle on the world scene, and the right to know the truth regarding human rights violations and important infringements of human rights had acquired the character of an inalienable right, obliging States to carry out investigations and ensure redress. The heinous crimes linked to the right to truth went beyond the victims, but had a collective dimension which was applied to society as a whole. The States had the obligation to ensure there were judicial and extrajudicial mechanisms to ensure the right to truth. It was very important that the General Assembly, in its upcoming session, adopt the proposed Convention in the report.

Many countries were suffering from sequels of armed conflict and other situations in which there were massive violations of human rights. There should be trust amongst citizens. The State should carry out measures in this regard, but should do so within the context of legality. Today, best practices were being compiled, with the aim of seeking terms of reference to help countries in transition. Regarding the High Tribunal in Iraq, ever since 10 December 2003, he had been expressing reservations with regards to the legitimacy of this tribunal, namely its time limit and that it was formed to judge only one person, and was concerned about the re-establishment of capital punishment with regards to the Tribunal. The main Justice has also recently been replaced, which was more evidence of the lack of independence of the trial.

There was also concern with regards to a frequent problem, namely that civilians were being judged by military tribunals. The Special Rapporteur said in his report that this took place in many regions, and the Human Rights Council should adopt the Draft Principles on the Administration of Justice by Military Tribunals, which was a very important instrument to guarantee the rights of all to due process, and to see that victims had the right to redress. In Kyrgyzstan and Tajikistan, as in other former Soviet countries, there were problems with naming judges and the limitation of their mandate, and with an imbalance between the prosecution and the judges. A positive reply was hoped for in response to requests to a large number of States for a visit.

Statements by Concerned Countries

SHA ZUKANG (China), speaking as a concerned country, said the Chinese Government attached great protection to the realization of human rights. During Mr. Nowak’s visit to the country, the Chinese Government did all it could do to assist him, and Mr. Nowak confirmed in his presentation that the terms of reference were respected. In addition, Mr. Nowak had said that on account of the size and complexity of the country as well as the limited duration of the mission, he acknowledged the limitations in drawing up a comprehensive set of findings and conclusions on the situation of torture and ill-treatment in China. Due to that fact, some sections of his report were based on partial information or were not accurate, as was the case with reference to Chinese legislation. It was also not accurate to state that torture was still a common practice, as there were isolated cases and those were tending to decrease in number. The Government had implemented measures, such as investigating criminal cases of abuse of power, and recent changes in the law would allow cases of forced confession to be fully investigated. The Chinese Government had also undertaken training courses for judicial personnel and police officers, including detention facilities officials to increase their human rights awareness. The Government was ready to continue cooperation with the human rights mechanisms, including the work of the Special Rapporteur on the question of torture.

LEVAN MIKCLADZE (Georgia), speaking as a concerned country, thanked the Special Rapporteur on torture for his continued partnership with the Government of Georgia. Georgia underlined the importance of improving pre-trial prison conditions as well as the role of non-custodial measures. In addition to the construction of modern detention facilities in two places in the country, the Government was planning to construct new penitentiary establishments in the capital city and in Guria region, replacing Tblisi Prison N5 as well as the older prisons of Batumi and Zugdidi. The Office of the Procurator General had adopted special guidelines regarding application of detention as a measure of restraint only as a last resort compared to other non-custodial measures, in line with the recommendation of the Special Rappprteur and several international organizations.

As regards prevention of torture and inhumane and degrading treatment, the Government would like to reiterate its commitment taken under the Optional Protocol to the Convention against Torture in establishing a truly independent mechanism to investigate any such cases.

MOUSA BURAYZAT (Jordan), speaking as a concerned country, said the protection and promotion of human rights was a central theme in the reform efforts being undertaken by consecutive Jordanian Governments. On the issue of torture and inhumane and degrading torture, the invitation to Mr. Nowak was part of an effort to deal with gaps. Whatever recommendations and conclusions were, particularly the positive and constructive ones, they would be carefully reviewed by the Jordanian Government. However, in his intervention, regarding the two notions and definitions of torture in the Jordanian Criminal Court and the notion of impunity, the speaker was startled to hear Jordan used as an example of impunity with regards to torture.

Article 208 of the Jordanian Penal Code covered a more exclusive definition of torture than even the Convention Against Torture. The Government was currently examining the possibility of reforming the article, in order to make it in line with the article in the Convention Against Torture. On impunity, the Jordanians had severe penalties for those who encouraged it. If torture resulted in serious injury, then the law provided for serious penalties, however, the Government agreed that there was room for improvement in this regard. The Jordanian Government looked forward to further collaboration with the Special Rapporteur.

GYAN CHANDRA ACHARYA (Nepal), speaking as a concerned country, said that Mr. Nowak had visited the country at a time of conflict. Nepal had engaged in a constructive dialogue, and had provided full access and collaborated with Mr. Nowak in the fulfilment of his mandate. Nepal noted that it was not accurate, as stated in Mr. Nowak’s report, that law enforcement agencies were conducting torture in a systematic fashion. Changes had taken place to make law enforcement officers more sensitive to human rights. In addition, the current peace process would have a direct impact on the human rights situation. The Government had also taken steps to address impunity. A new draft was under consideration to consider torture as a criminal offence. With reference to the military, a draft bill was also under consideration to place the military under civil jurisdiction.

GWYNETH KUTZ (Canada), speaking as a concerned country, said that the Working Group on arbitrary detention had visited various places and institutions during its stay in Canada. The report had confirmed that Canada was a country governed by the rule of law, in which a strong and independent judiciary strove to ensure that trials were fair and exercised a generally vigorous control over the lawfulness of all forms of deprivation of liberty. The report did, however, highlight some areas of concern to the Working Group. The report addressed the issue of the disproportionate representation of Aboriginal Peoples in federal correctional institutions. Canada was expending considerable efforts to remedy that situation, as part of a government-wide strategy focusing on Aboriginal peoples and the issues they faced in Canada today. The Government, through the Correctional Service of Canada, was developing strategies to enhance the capacity to provide effective interventions for First Nations, Métis and Inuit offenders.

Those strategies, instigated in the course of the past year, focused on the development of culturally appropriate and spiritually signifanct initiatives and interventions at every stage of an offender’s sentence, from intake through to warrant expiry. These strategies encouraged the Aboriginal community’s involvement and their active participation in the development of culturally specific community corrections models. They also provided for the improvement of collaboration between existing and future partnerships and opportunities with governable and non-governmental organizations to reinforce and sustain the renewed initiatives.

GLAUDINE MTSHALI (South Africa), speaking as a concerned country, said with regards to the visit of the Working Group on arbitrary detention, it was appreciated that the Working Group had acknowledged the challenges facing the South African system of administration of justice and the backlog it had accumulated since the advent of democracy. The Council would understand that the transformation of the justice system from apartheid to democracy had been most challenging, and had generated many legitimate reasons for the findings of the Working Group.

It was well known that South Africa had become a receiving country for refugees and irregular migrants, most of whom did not declare themselves upon entry to the country. The continuous influx of high volumes of migrants and refugees, and the various steps required to process their applications, combined with other resource constraints, had created a sub-optimal situation. The Government of South Africa looked forward to enhanced interaction with the Working Group in future.

GALO LARENAS SERRANO (Ecuador), speaking as a concerned country, said that Ecuador had faced a crisis in juridical matters, and it had taken the necessary action to make corrections upon recommendation of various institutions, including the United Nations, Inter American States, and the European Union. Some of actions taken dealt with reforms in the Supreme Court with the participation of civil society and some international presence. Other measures had to do with changes in the Electoral Supreme Court on legal procedures, and the Office of the Prosecutor.

IDRISS JAZAÏRY (Algeria), speaking as a concerned country referring to the report of the Special Rapporteur on torture, said that he regretted the fact that the Rapporteur did not wait for the response of Algeria before dealing with the issue of a case in the country, where during a demonstration individuals were taken to prison and then released. The Rapporteur did not realize that individuals had to exhaust domestic legal means before resorting to international instruments.

Interactive Dialogue

SERGIO CERDA (Argentina) said with regards to the report submitted by Mr. Despouy, Argentina had taken note of the proposals and the various tasks that would have to be undertaken by the Human Rights Council, and the development of relations between Truth Commissions and Tribunals, so that the right to truth was added to justice, and the need to extend legitimacy for the right to trial to all peoples and organisations. This last should be deepened in the future. On torture, there was an important new mechanism, the Sub-Commission on Torture, and it was hoped the Special Rapporteur would be able to work hand in hand with it.

SAMIR LABIDI (Tunisia) said the three speakers were thanked, and matters related to the administration of justice, torture and impunity were essential issues in the protection and promotion of human rights. The Constitution of Tunisia ensured the protection of human rights, with transparent equitable justice enshrined in the Penal Legislation, with strengthening of controls over custody, and the provision of legal aid. Funds and a system creating judges to monitor how sentences were served had been created. There was provision for disciplinary and legal sanctions against civil servants who carried out functions that harmed the physical integrity of persons. Disciplinary measures had been taken against several policemen, some of whom had been stripped of their functions. Essential guarantees consolidated the rule of law, and allowed to bring the courts and those subject to justice closer together, thus combating impunity.

WARREN W. TICHENOR (United States), responding to the three reports, said that in many societies it was difficult to balance both freedom and security – it was particularly true in time of war, as one sought to ensure security. The United States supported the efforts of all three Special Rapporteurs to hold States accountable. As to the Special Rapporteur on torture, the delegation of the United States shared his commitment to combat torture worldwide. There was an ongoing debate in the international community related to a number of legal issues raised in the report. While the United States shared his concern about the potential for misuse of diplomatic insurances, it could not concur that States should be prohibited outright from resorting to credible assurances in appropriate cases.

With regard to the report of the Working Group on arbitrary detention, the United States was pleased that the Group recognized the need to provide States with the opportunity to redress alleged violations through domestic legal frameworks, prior to intervention by the Group. The five Cubans mentioned in the report were arrested and convicted in a United States court for their involvement in a long-term and entrenched covert network in Cuban intelligence services. The report also mentioned the subject of secret prisons. As the United States explained yesterday, on 6 September, President Bush announced that 14 prisoners under United States control in the war against al-Qaida had been transferred to the facility at Guantanamo Bay, where the ICRC would have access to them. The President then announced that there were currently no detainees in the CIA detention programme. These individuals were extremely dangers and once Congress approved the necessary legislation establishing military commissions, they would be tried for their crimes. As to the Special Rapporteur on the independence of judges and lawyers, the United States appreciated his report.

RICARDO GONZALEZ (Uruguay) said Mr. Nowak’s report showed clearly that notwithstsanding the immense efforts deployed by the international community, there still remained examples of torture and degrading treatment throughout the world. The abuse of power and impunity were scourges that should be combated. There was concern at the lack of cooperation reported by Mr. Nowak - countries should provide vital cooperation, as otherwise the entire system would be weakened, setting a very negative precedent. The Special Rapporteur was asked what were his ideas regarding the ways for improving the cooperation with the Office of the High Commissioner for Human Rights so that national mechanisms were truly effective, and could play a preventative role against torture and degrading treatment.

On the report submitted by Mr. Despouy, there were a number of measures linked to establishing the independence of judges and lawyers. Great importance was attached to the right to truth both by the Special Rapporteur and by Uruguay. It was an important part of obtaining justice and also redress. The recommendations put forward by the Special Rapporteur should be examined carefully. What were the Special Rapporteur’s suggestions on increasing coverage of juvenile justice in future reports, the speaker asked?

BADRIDDIN OBIDOV (Uzbekistan) said the Government of Uzbekistan was decisive in combating torture, and had shown full cooperation with the Special Rapporteur, Theo van Boven, during his visit to the country. In addition, the Government abided by national and international obligations. It was not accurate, as stated by Mr. van Boven in his report, that torture was systematic in the country. The Government had taken decisive steps to combat torture. Current legislation prohibited the practice of torture. With reference to the principle of non-refoulement, Uzbekistan was surprised to note that the Special Rapporteurs Leandro Despouy and Manfred Nowak did not have the latest information concerning the return of several citizens. Uzbekistan agreed with various other speakers who had voiced a request to reform the mandate of the Special Rapporteurs and create a coordinating mechanism with the High Commissioner to avoid the Special Rapporteurs lacking objective information of the reality on the ground.

JEAN-DANIEL VIGNY (Switzerland), in reference to the report on torture, asked the Special Rapporteur about the impact of the entry into vigour of the Optional Protocol to the Convention against Torture to his work. It was also noted the tendency that would compromise the common efforts to fight against torture, such as the measures taken within the context of the fight against terrorism or recourse to diplomatic insurances concerning torture. How could the Rapporteur control the effectiveness of the diplomatic insurance with regard to torture?

LASSE KEISALO (Finland), on behalf of the European Union, asked what States could do to improve the response to the requests of the Special Rapporteurs, and addressed the question to Mr. Nowak, who had also issued interesting recommendations, and the speaker asked how Governments, the international community and civil society could work together to implement these. The Government of Uzbekistan claimed to have fully implemented the recommendations contained in the previous report, and further clarification should be given on whether this was the case. To Ms. Zerrougui, he asked for good practices that could be applied with regards to migratory policy. To Mr. Despouy, he asked whether there had been any practical follow-up to a particular series of meetings, and whether the situation in Iran with regards to judges prosecuting journalists had been considered.

PATRICIO UTRERAS (Chile) thanked the Special Rapporteurs for their respective reports. With reference to Mr. Despouy, Special Rapporteur on the independence of judges and lawyers, Chile was in agreement with him on his remarks on the link between truth and justice. In addition, Chile also considered that it was key to have the right to truth to attain meaningful redress, and also a guarantee that the violations in questions would not be repeated. Chile in its national experience had embarked on a search for truth and the establishment of a truth commission played a main role in such a search. Truth, justice and redress were key elements in democratic societies. Chile asked the Special Rapporteur to also focus on the administration of justice in emerging States in his future reports.

GUSTI AGUNG WESAKA PUJA (Indonesia), referring to the reports on torture and the independence of judges and lawyers, said the substance of the reports was thought provoking, because they were a reminder that the commitments undertaken by the States parties of core conventions imposed on them limits on obligations that were binding. Indonesia welcomed the clear and unequivocal guidelines contained in the reports with regard to war situations, to terrorism and to the fact that torture was unacceptable.

CLODOALDO HUGUENEY (Brazil) said the Special Rapporteur on the independence of judges and lawyers was to be congratulated on his report. The relationship between Mr. Despouy and the judicial system in Brazil had been growing closer and more fruitful, and work had been done to consolidate the independence of the judiciary. The National Council of Justice had been created, and this was an important step in improving the legal system. The possibility had also been taken into account that certain international legal instruments on human rights would be incorporated into law in the future. One of the most important steps taken to combat impunity was the federalisation of crimes, so that grave violations of human rights that had been previously combated at the state level could be considered at a higher level.

MARIE LOUISE OVERVAD (Denmark) said in Mr. Nowak’s report he reflected at some length on the relationship between the concepts of torture and other cruel inhuman or degrading treatment, and asked whether it would be useful if the international community elaborated on these concepts and their relationship in order to provide greater clarity.

FOVOUZADEH VADIATI (Iran) said Ms. Zerrougui's report was appreciated, and it was hoped that more information would be provided in the next report. Did the Working Group have any plans to examine the issue of secret detention centres that were used for the transport of terrorists, and if it had raised the issue with the European Union and received a response, the speaker asked?

HILDA HILL (New Zealand) said that the Government of New Zealand had issued a standing invitation to all Special Rapporteurs, including the one on torture. She was pleased that the Special Rapporteur on torture had received an invitation from Indonesia. She regretted, however, that the Special Rapporteur did not receive invitations from many other States.

ANDREI MOLCHAN (Belarus) said the reports submitted were very interesting, and a great deal of attention was attached to cooperation with thematic procedures, and it was in that spirit that the Working Group on arbitrary detention had been able to visit in 2004. The Government of Belarus was working hard to implement the recommendations made subsequently, with, among other things, the adoption of a code on the administration of justice and the status of judges. There were continuing efforts to improve the criminal procedure code. Controls over decisions of the courts had been increased, and the principle of enhanced legal protection for juveniles had been incorporated. There was also careful consideration of measures to implement the recommendations of the Working Group with regards to two persons.

FATOUMATA DIALL (Mali) said justice was a particularly sensitive area, and its denial frustrated and caused revolt. The issues raised by the Special Rapporteurs were a cruelty which should be acted upon to change. People who handed down the law should be intellectual and moral, and the international community should assist States to provide continuous training for judicial staff. The United Nations system should also help with the harmonisation of domestic legislation with regards to the defence in preliminary investigations, as this helped to prevent abuse. The slowness of legal proceedings could lead to another form of arbitrary detention in custody, and this was due to a lack of resources rather than to an intent to harm. Judicial cooperation should help to bridge gaps and remove failings.

1Joint statement: Inter-African Committee on Traditional Practices affecting the Health of Women and Children, International Movement for Fraternal Union among Races and Peoples, Pan Pacific and South East Asia, Women's Association International, World Movement of Mothers, International Alliance of Women and Women's World Summit Foundation.

For use of the information media; not an official record

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