COMMITTEE AGAINST TORTURE CONCLUDES THIRTY-FIFTH SESSION

The Committee against Torture today concluded its three-week fall session and issued its concluding observations and recommendations on reports from Bosnia and Herzegovina, Nepal, Sri Lanka, Ecuador, Austria, France, and the Democratic Republic of the Congo, which it reviewed during the session.

Those countries are among the 140 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.

Having reviewed the initial report of Bosnia and Herzegovina, the Committee noted with satisfaction the ongoing efforts at the State level to reform legislation in order to ensure better protection of human rights, including the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. In connection with the well documented torture and ill-treatment which occurred during the conflict of 1992 – 1995 in the former Yugoslavia, the Committee was concerned about, among other things, alleged discriminatory treatment in criminal proceedings where the ethnic majority often failed to prosecute alleged criminals of the same ethnic majority, and the failure to recognize survivors of torture including sexual violence during the conflict. Among its recommendations, the Committee said that the State party should take effective measures to ensure prompt and impartial investigations into all allegations of torture and other cruel, inhuman or degrading treatment, the prosecution and punishment of the perpetrators irrespective of their ethnic origin, and the provision of fair and adequate compensation for victims

In connection with the second periodic report of Nepal, the Committee noted the establishment of a number of human rights coordination and monitoring mechanisms, and welcomed the signature by the State party, on 8 September 2000, of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. The Committee was gravely concerned about the exceedingly large number of consistent and reliable reports concerning the widespread use of torture and ill treatment by law enforcement personnel, and the absence of measures to ensure an effective protection of all members of society. The State party should make a public condemnation of the practise of torture and take effective measures to prevent acts of torture in any territory under its jurisdiction, and should also take all measures, as appropriate, to protect all members of society from acts of torture.

Having examined the second periodic report of Sri Lanka, the Committee noted with satisfaction positive developments, including: the signing of the Ceasefire Agreement between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam in February 2002, which led to a considerable decrease in reported cases of torture in relation to the conflict. The Committee was concerned about allegations that fundamental legal safeguards for persons detained by the police, including habeas corpus rights, were not being observed, and expressed its deep concern about continued well-documented allegations of widespread torture and ill-treatment as well as disappearances mainly by the State's police forces. The State party should take effective measures to ensure that the fundamental legal safeguards for persons detained by the police were respected, and should ensure prompt, impartial and exhaustive investigations into all allegations of violations of torture and ill-treatment and disappearances committed by law enforcement officials.

Subsequent to reviewing the third periodic report of Ecuador, the Committee welcomed the adoption of the new Constitution in 1998, which reinforced the protection of human rights. The Committee was gravely concerned about the allegations of torture and ill-treatment with regards to vulnerable groups, in particular members of the indigenous communities, sexual minorities, and women, and also noted the slowness and backlog in judicial procedures, and allegations of torture during periods of secret detention. The Committee also urged the State party to ensure that in-depth investigations were held every time that allegations surfaced that torture and other inhuman or degrading treatment were a habitual practice in the context of penal investigations, and that such practices took place in the offices of the judiciary police, and were committed by officers of the public forces.

In reviewing the third periodic report of Austria, the Committee welcomed the assurances of the State party regarding the relationship between observance of human rights standards and the fight against terrorism, and that it would adhere strictly to the guidelines adopted in 2002 by the Council of Europe on human rights and the fight against terrorism. The Committee was concerned about the reported attitude of racism and intolerance towards foreigners by some law enforcement officials, such as cases of verbal abuses towards Roma and people of African descent. The State party should continue its vigilance to ensure that the relevant existing legal and administrative measures were strictly observed and that training curricula and administrative directives constantly communicated to the staff the message that verbal and physical ill-treatment would not be tolerated, would be sanctioned accordingly and that racial motivations would aggravate the offences.

With regards to the third periodic report of France, the Committee took note of the creation of a National Commission to control the centres and places of detention; the reform introduced by the law of 10 December 2003, which gave subsidiary protection to any person not fulfilling the conditions to be granted the status of refugee; and the mechanism allowing victims of terrorism to obtain compensation even when the acts were committed outside French territory. The Committee was concerned by the asylum procedure currently implemented in the State Party which did not currently distinguish between requests for asylum based on article 3 of the Convention from any other request, and by the number and gravity of the allegations that had reached it with regards to the ill-treatment of detained persons by public order officials and other persons implicated in their situation. The State party should take all necessary measures to ensure that any public official or any other person acting in an official capacity or at the instigation of a public official, or with their consent, who was responsible of acts of torture be investigated and punished proportionally to the gravity of the acts committed.

Subsequent to its review of the initial report of the Democratic Republic of the Congo, the Committee took note with satisfaction of the ratification by the State party of the majority of the main international conventions relating to human rights and of the will expressed by the State party to remedy the lateness of the presentation of its reports to different treaty bodies. The Committee was concerned by repeated allegations of generalised torture and ill-treatment committed by the armed forces and State security forces, as well as the apparent impunity enjoyed by the perpetrators of these acts, as well as by the existence of military justice which could try civilians, and took note with concern of the large number of security forces and services which had powers of arrest, detention, and investigation. The Committee urged the State party to take effective measures to prevent any act of torture and ill-treatment in its territory, and to take energetic measures to eliminate the impunity of the presumed authors of acts of torture and ill-treatment, to investigate promptly, impartially and fully all reports, and to ensure that the authors of such acts be brought to trial.

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 competent to receive complaints under article 22 of the Convention.

The Committee’s next session will be held from 1 to 19 May 2006, during which it is scheduled to examine reports from Georgia, Guatemala, the Republic of Korea, Qatar, Peru, the United States and Togo. The situation in Equatorial Guinea will be considered in absentia and in the absence of a report.

Conclusions and Recommendations on Country Reports

Bosnia and Herzegovina

While welcoming the initial report of Bosnia and Herzegovina and the information presented therein, the Committee noted the State Party’s extensive ratification of the major international treaties protecting the human rights of its citizens, and the accession to or ratification of a number of regional instruments. The Committee noted with satisfaction the ongoing efforts at the State level to reform its legislation in order to ensure better protection of human rights, including the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. The Committee further welcomed the establishment of the State Court of Bosnia and Herzegovina, and the Special War Crimes Chamber of the State Court and the Special War Crimes Department of the Prosecutors Office of Bosnia and Herzegovina. The Committee also welcomed the establishment of the Srebrenica Commission.

The Committee was concerned by the lack of congruity between the State and entity laws encompassing the definition of torture. In connection with the well documented torture and ill-treatment which occurred during the conflict of 1992 – 1995 in the former Yugoslavia, the Committee was concerned about reported failure by the State party to carry out prompt and impartial investigations, to prosecute the perpetrators and to provide fair and adequate compensation to victims; alleged discriminatory treatment in criminal proceedings where the ethnic majority often failed to prosecute alleged criminals of the same ethnic majority; failure to recognize survivors of torture including sexual violence during the conflict, a status which would enable them to obtain redress and exercise their right to fair and adequate compensation and rehabilitation; and inadequate cooperation with the International Criminal Tribunal on Former Yugoslavia, in failing to arrest and transfer persons indicted for genocide, torture and other international crimes.

The Committee recommended that the State party should incorporate the crime of torture, as defined in the Convention, into the domestic law throughout the State. The State party should also take effective measures to ensure prompt and impartial investigations into all allegations of torture and other cruel, inhuman or degrading treatment, the prosecution and punishment of the perpetrators irrespective of their ethnic origin, and the provision of fair and adequate compensation for victims; extend full cooperation to the International Criminal Tribunal for the Former Yugoslavia; enforce relevant legislation, and ensure that testimonies by victims of torture and ill-treatment were provided with fair treatment at all stages of the proceedings; and, develop legal and other measures, to be enforceable throughout the State, including an official programme for the rehabilitation of victims of torture including sexual violence, providing them recognition and the capacity to pursue redress and their right to fair and adequate compensation and rehabilitation in accordance with the requirements of the Convention.

Nepal

The Committee welcomed the submission of the second periodic report of the Kingdom of Nepal, and the opportunity afforded to it to resume its dialogue with the State party. The Committee appreciated the constructive dialogue established with the delegation of the State Party. The Committee welcomed the adoption of legislative measures aimed at enhancing the implementation of the Convention. The Committee noted the establishment of a number of human rights coordination and monitoring mechanisms. The Committee commended the generosity of the State party in hosting more than 100,000 Bhutanese and 20,000 Tibetan refugees. The Committee further welcomed the signature by the State party, on 8 September 2000, of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

The Committee noted with concern that the definition of torture in article 2(a) of the Compensation Relating to Torture Act of 1996, the lack of a legal provision in current domestic law to make torture a criminal offence and the Draft Criminal Code were not in line with the definition of article 1 of the Convention against Torture. The Committee was gravely concerned about the exceedingly large number of consistent and reliable reports concerning the widespread use of torture and ill treatment by law enforcement personnel, and in particular the Royal Nepalese Army, the Armed Police Force and the Police, and the absence of measures to ensure an effective protection of all members of society. The Committee expressed concern about the marked weakening of the independence and effectiveness of the judiciary in the State party, and contemptuous non-compliance of court orders by members of security forces, including allegations of re-arrests, including within the premises of the Supreme Court.

The State party should adopt domestic legislation which ensured that acts of torture, including the acts of attempt, complicity and participation, were a criminal offence punishable in a manner proportionate to the gravity of the crimes committed. The State party should make a public condemnation of the practise of torture and take effective measures to prevent acts of torture in any territory under its jurisdiction. The State Party should bring the practice of preventive detention in line with international human rights norms and ensure fundamental rights of persons deprived of liberty were guaranteed, including the right to habeas corpus, the right to inform a relative, access to a lawyer and to a doctor of one’s choice. The State party should ensure that any measure taken to combat terrorism was in accordance with the relevant Security Council resolutions. The State party should make all necessary efforts to guarantee the independence of the judiciary, including ensuring compliance by security forces with court orders.

Sri Lanka

The Committee welcomed the submission of the second periodic report of Sri Lanka, which focused on the Committee’s conclusions and recommendations as well as the recommendations from the article 20 inquiry visit in 2000. The Committee noted with satisfaction positive developments, including the signing of the Ceasefire Agreement between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam in February 2002 which led to a considerable decrease in reported cases of torture in relation to the conflict; the strengthening of the Human Rights Commission of Sri Lanka which enabled it to deal more effectively with violations of human rights in general and cases of torture in particular; and the establishment of human rights directorates in the army, navy and air forces and in the police forces as well as human rights cells in the three branches of the armed forces with the power to investigate human rights violations.

The Committee was concerned about the lack of a comprehensive definition of torture in the domestic law as set out in article 1 of the Convention. The Committee was concerned about allegations that fundamental legal safeguards for persons detained by the police, including habeas corpus rights, were not being observed. The Committee was concerned about the absence in Sri Lankan law of provisions establishing universal jurisdiction for acts of torture. The Committee was concerned about the lack of an effective systematic review of all places of detention, including regular and unannounced visits to such places by the Human Rights Commission of Sri Lanka and other monitoring mechanisms. The Committee expressed its deep concern about continued well-documented allegations of widespread torture and ill-treatment as well as disappearances mainly by the State's police forces. The Committee expressed its concern about continued allegations of sexual violence and abuse of women and children in custody, including by law enforcement officials, as well as the lack of prompt and impartial investigations of these allegations.

Among its recommendations, the Committee said the State party should adopt a definition of torture that covered all the elements contained in article 1 of the Convention. The State party should take effective measures to ensure that the fundamental legal safeguards for persons detained by the police were respected. The State party should ensure that acts of torture became subject to jurisdiction in Sri Lankan law in accordance with article 5 of the Convention, including provisions to bring criminal proceedings under article 7 against non-Sri Lankan citizens who had committed torture outside Sri Lanka, who were present in the territory of Sri Lanka, and who had not been extradited. The State party should ensure prompt, impartial and exhaustive investigations into all allegations of violations of torture and ill-treatment and disappearances committed by law enforcement officials. The State party should ensure that procedures were in place to monitor the behaviour of law enforcement officials and promptly and impartially investigate all allegations of torture and ill-treatment, including sexual violence, with a view to prosecuting those responsible. Furthermore, the State party should take all necessary measures to prevent such acts.

Ecuador

In its conclusions on the third periodic report of Ecuador, the Committee welcomed the adoption of the new Constitution in 1998, which reinforced the protection of human rights. It also welcomed the adoption of the Code on children and adolescents, and the law on the reform of the Penal Code, which criminalized the sexual exploitation of minors. It also took note of the diminution of the number of complaints presented to the Commission on women and the family.

The Committee noted with concern that despite internal legislation forbidding the recourse to cruel, inhuman or degrading treatment, the Committee remained concerned that the definition of torture in the Penal Code was not fully in conformity with the Convention, and the requirements of article 4 of that instrument. It was also concerned regarding allegations according to which at least 70 per cent of detainees of the Centres of Social Reinsertion for Women of Quito and Varones had been during their period of detention, victims of an excessive and illegitimate use of force, in particular psychological and sexual, by officers of the administration of penal justice and of the public forces. The Committee was equally gravely concerned for the allegations of torture and ill-treatment with regards to vulnerable groups, in particular members of the indigenous communities, sexual minorities, and women. The Committee also noted the slowness and backlog in judicial procedures, and allegations of torture during periods of secret detention.

Among its recommendations, the Committee urged Ecuador to guarantee the implementation of fundamental legal guarantees applicable to persons detained by the police, namely the right to inform a relative, the right to consult a freely chosen lawyer and a doctor, among others. The Committee also urged the State party to ensure that in-depth investigations were held every time that allegations surfaced that torture and other inhuman or degrading treatment were a habitual practice in the context of penal investigations, and that such practices took place in the offices of the judiciary police, and were committed by officers of the public forces. The perpetrators of such acts should be punished. The Committee regretted the existence of military and police jurisdictions in which the field of competence was not exclusively limited to the judging of crimes committed during and in the context of employment, as this was not compatible with the international instruments to which Ecuador was a party. Internal legislation should also be amended to create a mechanism to indemnify the victims of acts of torture, and provide them with compensation.

Austria

The Committee welcomed the assurances of Austria regarding the relationship between observance of human rights standards and the fight against terrorism, that it will adhere strictly to the guidelines adopted in 2002 by the Council of Europe on human rights and the fight against terrorism and that it will work, during its presidency of the European Union (January-June 2006) to further strengthen the commitment towards the absolute nature of the prohibition of torture. The Committee noted with satisfaction the ongoing efforts made by the State party to revise its legislation and adopt other necessary measures in order to ensure better protection of human rights and give effect to the Convention.

The Committee observed that a definition of torture as provided by article 1 of the Convention is still not included in the Penal Code of the State party. The Committee was concerned about information revealing that the new Asylum Law, which entered into force on May 2004, could increase the risk of refugees being sent to supposed safe third countries, that asylum seekers could be deported before a decision on their appeal had been taken and the limited possibility of presenting new evidence during the hearing. The Committee regretted the reported extraditions carried out by the State party after receiving diplomatic assurances from the requesting country. The Committee was concerned about the restrictions on the right of an arrested person to have a counsel present during interrogation if “there was some evidence to suggest that the presence of a counsel would jeopardise further investigative steps”. The Committee was also concerned about the reported attitude of racism and intolerance towards foreigners by some law enforcement officials, such as cases of verbal abuses towards Roma and people of African descent.

The Committee reiterated its previous recommendation that the State party should establish adequate provisions in order to legally define torture in accordance with article 1 of the Convention, and criminalize it in accordance with article 4, paragraph 2 of the Convention. Additionally, the State party should provide the Committee with detailed information on cases of denial of extradition, return or expulsion due to the risk that the person might be subject to torture, ill-treatment or the death penalty. The Committee urged the State party to implement the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment to establish a fully fledged and properly funded system of legal aid. The State party should continue its vigilance to ensure that the relevant existing legal and administrative measures were strictly observed and that training curricula and administrative directives constantly communicated to the staff the message that verbal and physical ill-treatment would not be tolerated, would be sanctioned accordingly and that racial motivations would aggravate the offences.

France

The Committee welcomed with satisfaction the third periodic report of France, and took note of the written answers provided by the State party to the list of issues, as well as the information provided orally during the presentation, and the constructive dialogue that took place with the high-level delegation. The Committee also took note of the creation of a National Commission to control the centres and places of detention; the participation of the Ministry of Health, in collaboration with the Association for the Victims of Repression in Exile, in the publication of a guide for the medical corps on the detection of the effects of torture; the reform introduced by the law of 10 December 2003, which gave subsidiary protection to any person not fulfilling the conditions to be granted the status of refugee; and the mechanism allowing victims of terrorism to obtain compensation even when the acts were committed outside French territory.

The Committee was concerned by the absence in the French Penal Code of a definition of torture in conformity with article 1 of the Conference. The Committee was also concerned by the asylum procedure currently implemented in the State Party which did not distinguish between requests for asylum based on article 3 of the Convention from any other request, which increased the risk of return of certain persons to States where they could be subjected to torture. The Committee was seriously concerned by the declarations of the Minister of the Interior asking prefects to order the immediate expulsion of people condemned during the recent riots, independently of their administrative status. The Committee was also concerned by the number and gravity of the allegations that had reached it with regards to the ill-treatment of detained persons by public order officials and other persons implicated in their situation.

Among its recommendations to the State party, the Committee recommended that it consider instituting a procedure which would allow for a distinction to be made between requests for asylum based on article 3 of the Convention and other requests, in order to ensure full protection to any person who could be subjected to torture were they returned to a third party State. The State party should take all necessary measures to ensure that no expulsion take place of any person who could be submitted to torture if returned to a third party State, and these persons should also have access to a fair trial. The State party should also take all necessary measures to ensure that any public official or any other person acting in an official capacity or at the instigation of a public official, or with their consent, who was responsible of acts of torture, be investigated and punished proportionally to the gravity of the acts committed.

Democratic Republic of the Congo

The Committee welcomed the initial report of the Democratic Republic of the Congo, in particular its honesty, as the State party recognised lacunae in the implementation of the Convention. The Committee also took note with satisfaction of the ratification by the State party of the majority of the main international Conventions relating to human rights; the will expressed by the State party to remedy the lateness of the presentation of its reports to different treaty bodies; the existence of a proposal for a law modifying and changing the Penal Code so that the Convention be fully integrated into national legislation; and the creation of institutions for the promotion and protection of human rights, and the growing cooperation between governmental authorities and civil society in the promotion and protection of human rights, in particular with regards to the fight against torture.

The Committee was concerned by repeated allegations of generalised torture and ill-treatment committed by the armed forces and State security forces, as well as the apparent impunity enjoyed by the perpetrators of these acts. The Committee was concerned about the qualitative and quantitative deficiencies in the judiciary power and the Public Ministry. The Committee was also concerned for the existence of military justice which could try civilians, and took note with concern of the large number of security forces and services which had powers of arrest, detention, and investigation. The Committee also took note of the worrying conditions of detention which were current in the State party. The Committee was also concerned by the general situation of vulnerability with regards to torture and other cruel and inhuman treatment to which abandoned children were exposed, in particular the children used as combatants by the armed groups acting on the territory of the State party.

Among its recommendations and suggestions, the Committee urged the State party to take effective measures to prevent any act of torture and ill-treatment in its territory, and to take energetic measures to eliminate the impunity of the presumed authors of acts of torture and ill-treatment, to investigate promptly, impartially and fully all reports, and to ensure that the authors of such acts be brought to trial and, if recognised as guilty, be sentenced appropriately and the victims compensated. The State party should ensure that military jurisdictions only judge military personnel for military infractions, and should strictly limit to the minimum the number of security forces and services with powers of arrest, detention and investigation, and ensure that the police be the principal institution charged with the application of the law. Urgent legislative and administrative measures should be adopted and applied to protect children, in particular abandoned children, from sexual violence and ensure that all child combatants be demobilised.

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).

For use of the information media; not an official record

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