Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Report of the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Argentina * **
II.National preventive mechanism15–164
III.Situation of persons deprived of their liberty17–1025
C.Juvenile detention centres89–9316
IV.Investigations dealing with torture and ill-treatment103–11419
I.List of persons with whom the Subcommittee met22
II.Places of deprivation of liberty visited25
1.In accordance with articles 1 and 11 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as “the Optional Protocol”), the Subcommittee on Prevention of Torture (hereinafter referred to as “the Subcommittee”) visited Argentina from 18 to 27 April 2012.
2.The Subcommittee was represented by the following members: Víctor Rodríguez-Rescia (head of the delegation), Marija Definis-Gojanovic, Emilio Ginés, Zdenek Hajek, Lowell Goddard and Miguel Sarre.
3.The delegation of the Subcommittee was assisted by four human rights officers from the Office of the United Nations High Commissioner for Human Rights (OHCHR) and by United Nations interpreters and security officers.
4.During the visit, the members of the Subcommittee focused their attention on Buenos Aires Province and the City of Buenos Aires.
5.Although this report does not present a detailed discussion of each and every one of the sites that were visited, the Subcommittee reserves the right to refer to any of those locations during its future dialogue with the State party. The absence of comments in the report about any given institution does not mean that the Subcommittee has reached any conclusions, either favourable or unfavourable, about it.
6.In addition to visiting places of deprivation of liberty, members of the Subcommittee met with governmental authorities, representatives of the United Nations system in the country and members of civil society. The Subcommittee wishes to express its appreciation to all those persons for the valuable information which they provided.
7.At the conclusion of the visit, the members of the Subcommittee apprised the Argentine authorities of their preliminary observations in a confidential oral presentation. The State party submitted its comments regarding those observations on 19 and 27 July 2012 and on 16 August 2012. The Subcommittee wishes to express its gratitude to the Argentine authorities for their cooperation and assistance during the visit. Those preliminary observations should be acted upon, as they constitute a supplement to this report. For that reason, those findings are not repeated here except as appropriate.
8.This report presents the Subcommittee’s conclusions and recommendations concerning the prevention of torture and ill-treatment of persons deprived of their liberty in Argentina. The term “ill-treatment” is used here to refer to any form of cruel, inhuman or degrading treatment or punishment.
9. The Subcommittee requests the Argentine authorities to provide a response within six months of their receipt of this report in which they furnish detailed information on the steps taken by the State party to give effect to the recommendations contained herein.
10.This report will remain confidential until such time as the Argentine authorities decide to make it public, as established in article 16, paragraph 2, of the Optional Protocol. The publication of this report would no doubt serve as an additional means of preventing torture and ill-treatment in Argentina. The Subcommittee is of the view that the wide dissemination of its recommendations would contribute to a transparent and productive nationwide dialogue concerning the issues raised here.
11.The Subcommittee wishes to draw the State party’s attention to the Special Fund that has been established pursuant to article 26 of the Optional Protocol. States parties may refer to recommendations made in reports on the Subcommittee’s visits that have been made public to support applications for financing from the Special Fund for specific projects.
12. The Subcommittee recommends that Argentina request that this report be published in accordance with article 16, paragraph 2, of the Optional Protocol.
13.After having visited various places of detention, the Subcommittee is seriously concerned about the possibility that reprisals may be taken against some of the persons subject to deprivation of liberty who were interviewed, especially those involved in incidents mentioned in this report.
14. The Subcommittee categorically condemns any act of reprisal. It reiterates the recommendations made in connection with its preliminary observations and stresses that persons who provide information to national or international agencies or institutions should not be punished or otherwise penalized for having done so. The Subcommittee requests that it be kept informed of the steps taken by the State party to prevent and investigate acts of reprisal.
II.National preventive mechanism
15.June 2007 was the deadline set for the designation of a national preventive mechanism by the State party. Following protracted discussions, consensus was reached on a bill providing for the creation of a national preventive mechanism, and that bill was passed by the Chamber of Deputies in August 2011. In November 2012, the Senate passed the bill after having introduced amendments dealing with the make-up of the National Committee for the Prevention of Torture. In the interim, preventive mechanisms were being created at the provincial level, and some of these mechanisms do not necessarily enjoy the independence required under the terms of the Optional Protocol.
16. The Subcommittee welcomes the completion of the lengthy legislative process involved in creating this mechanism. The Subcommittee also, however, recalls that, in accordance with its guidelines on national preventive mechanisms, the State party should ensure that the national preventive mechanism enjoys operational autonomy and independence and that it should refrain from appointing members to that mechanism who hold positions which could raise questions of conflicts of interest. The Subcommittee trusts that the State party will uphold these principles in the course of its selection of members of the National Committee.
III.Situation of persons deprived of their liberty
(a)Information on the rights of persons held in custody
17.Some of the persons in police custody told members of the Subcommittee that they had not been properly informed of their rights at the time of their arrest or that they had signed a document dealing with their rights but did not understand what they had signed or had not had enough time to read it. Members of the Subcommittee also observed that, in most of the centres that they visited, no information was displayed in visible locations on the rights of persons deprived of their liberty to the protection of their physical and psychological integrity or on minimum due process guarantees (Miranda rights). Informing persons deprived of their liberty of their rights and of the reason for their arrest is a fundamental safeguard against arbitrary detention, torture and ill-treatment.
18. The State party should ensure that arresting officers are instructed to respect, systematically and effectively, the right of all persons deprived of their liberty to be informed, verbally and in writing, of their rights while in custody. They should also be instructed to make certain that this information is conveyed in a language that the persons in question understand, that this is done immediately upon their arrest and that the fact that this has been done is recorded in a register.
19.The Subcommittee notes that the State party has informed it that, after the conclusion of the visit, the State party prepared a model of a poster providing information on the rights of persons in custody which is to be posted in visible locations in police stations where persons are held in custody and in jails.
(b)The right to notify a third party
20.The Subcommittee found that a disturbingly large number of persons held in police custody said that several days had passed before they had been able to notify a third party of their choice that they were under arrest.
21. The State party should take steps to ensure that persons deprived of their liberty are able to notify a person of their choice that they are under arrest and to tell that person where they are being held, or to request the corresponding authorities to do so. Notification is to be provided without delay following the initial arrest and on each occasion that a detainee is transferred from one location to another. If possible, notification is to be made by telephone, with the date and time of the call being recorded in the register along with the name of the person notified.
(c)Medical examinations and medical assistance during police custody
22.Some of the detainees who were interviewed by members of the Subcommittee claimed that they had not undergone a medical examination following their arrest. Others said that they had been cursorily examined by a doctor in the presence of police personnel and that the police had been informed of the results of that examination.
23.In the federal and provincial police stations that were visited, members of the Subcommittee noted major shortcomings in terms of access to medical assistance. They also saw that members of health-care teams were unaware of basic principles set forth in the Istanbul Protocol or did not know how to apply them properly and that they lacked procedural protocols for documenting cases that could involve torture or ill-treatment in their medical and psychological reports.
24. The State party should take appropriate steps to ensure that all persons who are arrested are promptly examined by medical personnel free of charge, that doctors are allowed to work independently and that they are trained in how to examine people who may have been subjected to torture or ill-treatment and how to document such cases in accordance with the Istanbul Protocol. The records to be kept on such examinations should include the name of the examining physician and their results. The Istanbul Protocol should be used as a guide for the preparation of medical and psychological reports and as a tool for the prevention of torture.
25. The State party should put a system into place for making certain that persons in policy custody who are in need of medical treatment have rapid access to such treatment free of charge.
26.Members of the Subcommittee met with staff from the Federal Police Force of Argentina and the Police Force of Buenos Aires during their visits to police stations and received complaints from members of both of these bodies about problems related to understaffing, underfunding and substandard material working conditions.
27. The State party should make certain that sufficient funds are budgeted to ensure that the federal and provincial police forces will be staffed by motivated, decently paid personnel who have received proper human rights training. Internal oversight mechanisms should be set up to ensure that the police act in accordance with international human rights standards.
2.Conditions of detention
28.The Subcommittee found that conditions were deplorable in the cells in a number of the provincial and federal police stations. For example, the cells in Federal Police Stations Nos. 3 and 15 in the City of Buenos Aires were poorly lit and poorly ventilated and either there were no bedclothes at all or they were totally unsatisfactory. In Provincial Police Station No. 9 in Lomas de Zamora, physical conditions were dreadful, and the degree of overcrowding was quite serious. In Provincial Police Station No. 5 of Lomas de Zamora, the members of the Subcommittee were told by police personnel that the station was not authorized to house detainees. Members of the Subcommittee visited the cells and saw that they were absolutely unsuitable for use as such. When they checked the records, however, they found that people had been held for hours and even days in the police station. This situation was found to exist in other police stations as well.
29.In a number of police stations, access to toilets was limited and both the ventilation and heating were insufficient. At all the police stations visited by members of the Subcommittee in which persons were being held in custody, the members heard complaints about a lack of sufficient food, lack of access to an outside yard and, in the case of persons held in police custody for lengthy periods of time, the lack of exercise or other activities.
30.In contrast to the situations described above, the members of the Subcommittee found that conditions of detention in the Roberto Pettinato de La Plata Departmental Facility were satisfactory.
31. The Subcommittee recommends that the State party conduct an audit of the material conditions in federal and provincial police facilities where persons are held in custody and that it develop an action plan for cleaning and renovating those in which conditions need to be improved. The State party should take the necessary steps to ensure that conditions of detention in police facilities conform to international standards and are such as to meet the basic needs of persons deprived of their liberty in terms of sanitation, the provision of bedclothes, food, water and exercise. The Subcommittee takes note of the provincial government’s plans to build additional detention facilities as part of a cooperation programme with the Latin American Institute for the Prevention of Crime and the Treatment of Offenders (ILANUD), whose scope is to extend beyond the preparation of a pilot proposal. This is expected to make it possible to phase out the use of existing police stations as places of detention and to furnish integrated services (including public defence services, medical services, etc.) that will provide people with access to justice, as well as improving physical conditions of detention. The Subcommittee commends the provincial government for undertaking this initiative, which may leave less scope for the risk factors associated with detention outside the legal procedural framework and contribute to the prevention of torture and ill-treatment.
32. The Subcommittee considers that, given their condition, Police Stations Nos. 5 and 9 of Lomas de Zamora should be closed or completely remodelled.
3.Torture and ill-treatment
33.The Subcommittee repeatedly received consistent reports of police brutality occurring during detention or at the time that arrests were made. These reports concerned various security forces, including the Federal Police Force of Argentina, the Gendarmería and the Buenos Aires Police Force. Many of the people who were interviewed (both young people and adults, including some pregnant women) said that beatings and police brutality were “usual” and were often used to control detainees or force them to confess or as a reprisal for having complained about their conditions of detention. Police officers kicked detainees and dealt blows to their heads, chests and other parts of the body using their hands, rubber truncheons, rocks or gun butts and would do so even when people were handcuffed. Some said that the police had subjected them to the “submarine” treatment, burned them with cigarettes and even cut off fingers. The Subcommittee also received reports of excessive use of firearms by police officers when making arrests, denial of access to toilets and denial of medical care. Members of the Subcommittee had the opportunity to speak with a number of detainees who had been struck, including a pregnant woman who was being held at the Special Police Unit for Women and the Family in La Plata. All this information notwithstanding, and even though many cases of torture and ill-treatment have been documented in the records kept by federal and provincial agencies (see paragraph 103), the number of such reports far outstrips the small number of investigations undertaken by the public prosecutions services.
34.The Argentine authorities should take effective steps to prevent torture and ill-treatment in police stations and units, to investigate cases in which such practices are used and to punish those responsible. In addition to filing criminal charges in such cases, the authorities should improve the police oversight system so that personal and institutional responsibility for instances of torture and ill-treatment can be established and the appropriate disciplinary penalties can be imposed.
35.During its visits to prisons, the Subcommittee formed the impression that many of the shortcomings in the management and treatment of detainees reflect the markedly military character and corporatist nature of the prison system’s structure, which hampers the introduction of genuine “civil governance” into prisons. In this connection, it takes note of the information provided by the provincial authorities describing the efforts made in recent years further to demilitarize the Buenos Aires Prison Service. The Subcommittee also found a system in which custodial sentences are the norm, limiting the opportunities for many detainees to mix and socialize in a group.
36. The Subcommittee calls for the adoption of rapid and effective measures to achieve civilian governance of the prison service, as is proper to democratic systems, one of whose foundations must be strict respect for the human rights of persons deprived of their liberty.
(a)Assignment of detainees to prisons
37.Many persons deprived of their liberty complained that they were imprisoned far from their families, perforce isolating them from a vital source of support and restraint. Frequent transfers to remote locations in the provinces and to different places in the country affect both inmates and their families, hinder the progress made by inmates in their prison activities and could constitute a form of ill-treatment. The information and complaints received also indicate that transfers are used as a form of punishment or reprisal, as they take place without the families being informed and under degrading conditions because of the poor state of repair of the prison vehicles and the long periods inmates have to spend in them, sometimes without food.
38.The Subcommittee takes note of the information provided by the State according to which a number of measures have been taken to ensure that inmates are detained closer to their families; these include the “60 por 7” programme. Moreover, according to the State, the infrastructure building programme undertaken since 2008 has focused on providing places in greater Buenos Aires.
39. The State party should take measures to ensure that persons deprived of their liberty may be held in prisons close to their homes. To that end, feasibility studies will need to be carried out taking into account the necessary resource and space requirements. Measures should also be taken to guarantee the right of persons deprived of their liberty to object to transfers and to be heard in that connection by the competent authority, without the risk of reprisal.
40.In some of the prisons visited, the Subcommittee observed the persistence of ideas and practices whereby persons deprived of their liberty are considered as persons deserving graduated treatment which may exceed the sentence or judicial measure imposed. Examples of this are forcing inmates to have haircuts, assigning wings to a specific religion and authorizing inmates to impose corrective measures on other inmates and clinical-criminological studies that violate inmates’ privacy and freedom of conscience.
41.The Subcommittee takes note of the information provided by the State party, according to which following the visit the Buenos Aires Prison Service issued a decision in which it expressly recalled the prohibition on forcing inmates to have their hair cut, as well as on any other measures affecting their personal appearance, and stipulating that failure to respect the ban would constitute serious misconduct.
42.At the federal level, the Subcommittee was informed about the periodic assessments carried out to assign inmates a classification by “category” (an assessment of their potential for reinsertion in society). This assessment, together with behaviour in prison, is used to assign a quarterly classification to each inmate, and this has an impact both on their status in prison and on the possibility of release through conditional or assisted release. The Subcommittee is concerned about the classification by “category”, because it entails legal consequences based on assessments of the person’s future behaviour.
43. The Subcommittee considers that the classification of prison inmates should be based on their conduct and not on a notion of “category”. The Subcommittee calls on the State party to analyse the compatibility of this criminological practice with protection of the human rights of persons deprived of their liberty.
44.A large proportion of prison inmates are in pretrial detention, although the situation may vary considerably from one facility to another. For example, at the Olmos prison, on the day of the Subcommittee’s visit there were 1,865 prisoners on remand and 202 convicted prisoners, whereas in Unit 30, there were 1,065 convicted prisoners and 335 remand prisoners. According to official statistics, 55 per cent of inmates in federal prisons have not received a definitive sentence. The Subcommittee observed that prisoners on remand and convicted prisoners usually share the same premises.
45.Both the provincial and the federal authorities acknowledged the excessive use of pretrial detention as well as serious shortcomings in penal procedure as regards processing cases within the time limits and in the manner laid down by law, despite the measures taken in recent years to ease the backlog of the courts. The excessive length of pretrial detention leads to situations in which detainees spend as long or even longer in pretrial detention than the sentence finally handed down.
46. The Subcommittee endorses the recommendation made by the Human Rights Committee that the State party should take measures, without delay, to reduce the number of persons held in pretrial detention and the length of pretrial detention by taking steps such as wider recourse to precautionary measures or greater use of bail or of electronic bracelets. The Subcommittee recommends that an evaluation be made of the use of pretrial detention and of its duration, with a view to reorienting the practice of the courts towards the elimination of subjective assessments based on “category” or dangerousness.
47. The State party should ensure that prisoners on remand are separated from convicted prisoners, in conformity with the requirements of the relevant international instruments.
48.The Subcommittee noted with concern the inadequacy of medical services in both federal and provincial prison facilities. The lack of health services was manifest, for example, at Unit 28, Judicial Detention Centre (U28 of the Federal Prison Service), as was the lack of medical staff at U46, where not even emergency medical care appeared to be assured. One detainee at the Olmos facility, whom the Subcommittee interviewed, had undergone a colostomy one year previously and had been waiting months for an operation. Since his arrival in the Unit several weeks earlier, his requests to be examined by a doctor had been ignored and the conditions of hygiene in his cell were deplorable.
49.At No. 1 penal facility in Ezeiza, the Subcommittee received complaints from inmates about the lack of respect for their privacy, as examinations on admission were conducted in the presence of persons other than medical staff. The Subcommittee noted that neither inmates nor their lawyers received copies of any medical examinations made of injuries and that the forms provide no space for the physician to make comments.
50. The State should guarantee effective round-the-clock medical assistance in all prisons, seven days a week. Any medical examination, including examinations on admission to prison, should strictly observe the right to privacy and confidentiality. Medical reports should include a reference to the possible cause of any injury reported by the person deprived of liberty.
51.The Subcommittee is concerned about the lack of adequate medical services for women. At U46 and U3, for example, there was no proper gynaecological unit and inmates complained that examinations were conducted in the corridors, in a humiliating manner. Nor did the children of inmates who lived with them receive regular medical care.
52. The State should adopt measures to ensure that all women, and in particular pregnant women, have regular access to confidential medical care from qualified health professionals. It should guarantee that children living in prisons with their mothers have access to health-care services and that their development is monitored by specialists.
53.The Subcommittee observed that despite progress towards ensuring the independence of the medical service by separating it from the prison service, it is still under the authority of the Ministry of Justice and Security and works in close collaboration with the Prison Service. This seems to restrict the capacity of health professionals independently to record possible signs of torture and ill-treatment on any detainees they are called on to examine.
54. The Subcommittee recommends that medical services be provided directly by the Ministry of Health at both the federal and provincial levels. It also recommends that the State party establish a system of independent examinations, in conformity with the Istanbul Protocol, by virtue of which qualified forensic physicians and psychologists carry out exhaustive examinations whenever there are any signs that a detainee may have been subjected to torture or ill-treatment.
55.The Subcommittee takes note of the information provided by the State that following its visit, the Buenos Aires Prison Service drafted a model clinical file and set of instructions for professionals, which is to be used in case of injuries, and which incorporates the recommendations of the Istanbul Protocol. The Buenos Aires Prison Service has also organized a series of training sessions for medical professionals on the implementation of the Protocol.
2.Conditions of detention
56.The actual physical conditions in the prison facilities visited varied considerably. In some of them, the cells failed to meet the minimum requirements for accommodating persons deprived of liberty. For example, in wings 3 and 4 of U3, kitchens were in total disrepair and walls uncovered, toilet facilities were broken and hardly any cells had window panes. In U46 and U3, rats could be seen in the yard and cockroaches in the cells. In judicial detention centre U28, operated by the Federal Prison Service in the city of Buenos Aires, in addition to the presence of cockroaches and a lack of ventilation, the Subcommittee observed that as many as 60 people might be held in a cell of approximately 25 m2, with a single toilet and an open shower; many of them were held there beyond the legal 24-hour limit. The Subcommittee also observed the presence of cockroaches, lice and excrement in the isolation cells, where detainees were without access to sanitary facilities. In addition, flooding by overflowing sewers was commonplace and the ventilation was out of order, as a result of which the damp and high temperatures made the living conditions of prisoners and the working conditions of wardens difficult.
57.The Subcommittee was able to observe that some provincial and federal detention facilities lacked proper conditions of personal hygiene. In several facilities, both federal and provincial, the Subcommittee received complaints about the shortage of toiletries, making inmates almost totally dependent on their relatives for supplies.
58. Timely measures must be taken to remedy the shortcomings in respect of ventilation, the presence of vectors of disease and sanitary facilities in those units in which there are deficiencies.
59. The Subcommittee urges the State party to take the necessary measures to ensure that conditions of detention in the country’s prisons are in conformity with the Standard Minimum Rules for the Treatment of Prisoners. To this end, it recommends that a national audit be carried out of the physical conditions, with a view to drawing up a plan for sanitation and rehabilitation. The plan should include measures to prevent overcrowding and fires.
60.The Subcommittee takes note of Agreement 12/12, of 3 July 2012, in which the Supreme Court agreed to limit the maximum number of prisoners in U28, to deal with the situation observed by the Subcommittee. The Subcommittee requests the State party to inform it about the implementation of the measures intended to prevent overcrowding in this unit.
61.In various units, the Subcommittee observed the shortage and poor quality of the food provided. For example, in U28 of the Federal Prison Service, and in U3 and U30 there were complaints that food was provided only twice a day. This confirmed the similar information received by the Subcommittee from different sources.
62. The State party should increase the number of food quality controls and ensure that meals are prepared hygienically and in sufficient quantity and that they are of sufficient quality and nutritive value to maintain the health of persons deprived of their liberty in all units. Monitoring of the system of bidding among firms providing food and proper contractual compliance should be reinforced in order to prevent abuse.
63.Access to educational and work activities varies from one prison to another, although as a rule it leaves much to be desired. For example, in U30 there was only room enough for 20 to 30 per cent of inmates to attend workshops or classes. In other facilities, there were complaints about the poor access to training or work, and especially to those activities that could be decisive in providing prisoners with opportunities after their release. Some prison authorities confirmed that companies that set up workshops in prisons took advantage of the low wages paid. The shortage of teachers, which the Ministry of Education is required to provide, and of classrooms and teaching material seems to account for the small number of inmates pursuing studies.
64. It is recommended that the competent authorities intensify their efforts to improve the programme of educational and work activities available in prisons throughout the country, so that all prisoners may benefit from them and any income they earn may be decent.
65.In several units the Subcommittee observed that inmates are assigned to segregated areas not only as a form of punishment, but also for other reasons, such as when they arrive in the prison, are relocated or as a protective measure. They may remain several weeks or even months in these areas in isolation, without their isolation being related to their behaviour. The Subcommittee considers that only those who have been punished should be kept in such premises, and even then for a limited period and subject to rules of due processes. Segregating persons in need of protection is a violation of their rights. The State is under the obligation to provide protection without the restriction of rights that obtains under segregation.
66.In some provincial facilities, the Subcommittee interviewed persons who said that they had been in round-the-clock isolation for four months as a punishment, in cells with no electricity or proper ventilation. In other cases, the regime varied, with for example one hour a day outside in the yard or 15 minutes a day in the corridor from Monday to Friday. Whatever the case, the Subcommittee is concerned that in practice, the isolation regime is beyond the control of the courts, as the Public Defender has observed.
67. It is urgent for the State to change the existing isolation regime, in both the federal and the provincial systems, so as to guarantee the rights of persons deprived of their liberty. Isolation should be an exceptional measure, strictly limited in time and subject to medical and judicial supervision; it should not be used as a tool for prison management. Isolation cells should provide conditions that respect the physical integrity and dignity of the person deprived of liberty.
68. The Subcommittee understands that for different reasons, some detainees may require tighter security measures. However, it must be understood that these measures may not be transformed into an additional penalty to that handed down by the court, as this would be contrary to the principles of equality before the law and of non-discrimination. This requirement of equal treatment is all the more necessary in respect of those who have not yet been sentenced. For this reason, the Subcommittee considers that any security measure that unreasonably aggravates the conditions of detention constitutes a form of ill-treatment of persons deprived of their liberty.
(e)Contact with the outside world
69.The Subcommittee received complaints that family visits were too short and sporadic and that the regime of visits was not equally applied to all. Some inmates complained of the limits imposed on their right to intimate visits from their partners when they are not married. Some relatives of inmates told the Subcommittee that access formalities to prisons were too long.
70. The State party should ensure that all persons deprived of their liberty are able to receive regular visits, including conjugal visits, regardless of whether the partnership is formally recognized by the State; such visits should not be restricted on grounds of sex, nationality, sexual orientation or for any other discriminatory reason. The issuing of permits to visitors should be speeded up and steps taken to ensure that inmates are able to receive telephone calls from their relatives.
71.The Subcommittee received complaints about harassment and ill-treatment of relatives during visits. The complaints described invasive searches, including full body searches, patting down visitors, even children, babies and pregnant women and forcing them to bend over. They also spoke of insults and threats by the prison staff responsible for the body searches, thereby discouraging any attempt to complain about the treatment for fear of reprisals against relatives deprived of their liberty.
72. The Subcommittee recommends that the State party ensure that intimate body searches are carried out only when necessary and that they are reasonable and proportional. If body searches are conducted, they should be performed hygienically by qualified staff of the same sex as the person being searched and should be compatible with human dignity and respect for fundamental rights. Invasive vaginal or anal searches should be prohibited.
73. Staff supervising visits should be informed of the obligation to respect the rights of all persons. An independent system should be introduced for complaints of ill-treatment, and should include independent investigations and penalties.
3.Violence during incarceration
74.The Subcommittee received repeated and consistent accounts according to which persons deprived of their liberty are subject to a form of control under which the prison staff with whom they are in day-to-day contact, headed by the warder in charge of the wing or the warder supervising and dealing with them handles everything to do with the submission of complaints, requests, needs and the disciplinary regime. For this purpose, they rely on inmates known as “limpieza” (cleaners) or “fajineros”, persons deprived of their liberty who serve as go-betweens between the other detainees and the prison administration. In this connection, the Subcommittee received complaints about thefts or removal of belongings; threats; extortion to obtain greater security or better treatment in exchange for money; the supply and sale of drugs; physical assaults; provoking fights and conflicts between inmates, with the connivance of prison staff, to create diversions or maintain control; transfers inside prisons to tougher wings or to isolation wings; reduction of the food ration and the number of visits, and privileged access to education and work programmes.
75.This system of threats and risks, the lack of an effective system for reporting and investigating abuses, combined with the fear of reprisals for reporting them to the prison administration, creates a situation in which persons deprived of their liberty, even if not directly affected, live in a state of constant fear of physical harm coming to themselves or their families, or damage to their belongings. The Subcommittee witnessed a telling episode in Unit No. 1 (Lisandro Olmos), in which prison warders apparently provided a prisoner held in solitary confinement with a home-made weapon (a faca, a type of large knife) and told him to kill another inmate, on pain of reprisals if he failed to do so. When the Subcommittee told the prison authorities of this, a search of the cell was carried out and the weapon was found.
76.The Subcommittee takes note of the information provided by the State party after its visit, according to which an administrative investigation was begun into this incident and that shortcomings were found in body searches, checks on admission, in access to cells and wings and in the mechanisms used to prevent acts of violence. The investigation led to charges being laid against four wardens for disciplinary offences. The Subcommittee observes, however, that the facts were not brought to the attention of the Public Legal Service, but merely remained at the level of an administrative investigation. This would seem to suggest that the prison authorities operate as a state within the State. The Subcommittee looks forward to receiving additional information on the investigation and on the situation of the inmate in question, and in particular on whether he has been or is likely to be a victim of any reprisals.
77.Beyond this particular incident, in U1 the Subcommittee felt a palpable climate of brutality and fear at all levels. Although inmates were as a rule reluctant to talk to the members of the Subcommittee and the attitude of the warders considerably hampered any confidential interviews, some inmates suggested that there were killings that were disguised as suicides. Moreover, the large number of prisoners in this facility, together with its age and the dirtiness and lack of maintenance all help to create inhuman living conditions and an approach to the management of inmates that is no less inhuman.
78. The Subcommittee considers that Unit 1 Lisandro Olmos should be closed down or completely refurbished.
79.The Subcommittee received reports about the use of torture as a disciplinary measure and to prevent prisoners from making complaints. One such report was from a prisoner in a federal facility who had injuries on his arm as a result of a beating by prison staff during a search carried out in the presence of the prison director, the deputy director and medical staff from the unit. He said that he had been beaten on his hands, feet and head and that he had been burned with a hot iron. In one facility operated by the Buenos Aires Prison Service, the Subcommittee received complaints about physical and verbal assaults by guards on women prisoners.
80.The Subcommittee received allegations that during the searches carried out by the guards inside the wings and after visits the prisoners were forced repeatedly to bend over, naked, and that the searches were used as a form of punishment and to frighten inmates.
81.The Subcommittee is concerned about the recurrent and systematic use of weapons and excessive force in the prison system. The Subcommittee witnessed a security swoop in U3 during a search. Several witnesses said that minutes before, the guards had fired rubber bullets directly at the prisoners at close quarters in response to disturbances. The warders forced each prisoner to undress and to lay out their clothes in front of them and the prison authorities.
82.The Subcommittee is also concerned about the number of deaths treated as suicides and those caused by fires, and by the lack of investigations to shed light on them and determine responsibility.
83.This violent picture matches the information obtained from other human rights organizations at the time of the Subcommittee’s visit and is confirmed by the adoption of precautionary measures by the Inter-American Commission on Human Rights on behalf of persons detained in Units 46, 47 and 48 of the Buenos Aires Prison Service.
84. The Subcommittee considers that torture and ill-treatment constitute a situation of structural violence in places of incarceration and are practices that are deeply rooted in the behaviour of prison staff in Argentina . Judicial and governmental authorities in the province of Buenos Aires described to the Subcommittee the measures taken to combat torture and ill-treatment; however, they said that the system of prevention is in its infancy, that much remains to be done and that coordination and cooperation is required between the different institutions competent in the field.
85. The Subcommittee recommends the preparation and implementation of a national plan for prisons to combat such structural violence, which should include:
(a) Improvements in the working conditions and professionalism of prison staff through training and regular refresher courses on human rights in prison, with a view to changing the institutional culture so that questions of security cease to be given priority and an emphasis is placed on support and decent treatment for persons deprived of their liberty. Protocols on training and work in prisons should be revised to the same end and adapted to the doctrine of human rights during incarceration;
(b) Ensuring that the amount allocated in the budget for prison services is sufficient to ensure that the services are made up of motivated, properly paid and sufficiently numerous staff to satisfy the needs of prisons;
(c) An assessment of jobs and performance at all levels, with a particular focus on prison staff who have initial contact with inmates;
(d) Strengthening external control mechanism and effective policies for the protection of the victims and witnesses of acts of violence, torture and ill-treatment. In this connection, the Subcommittee recommends that the Office of the Procurator for Prisons be guaranteed access to reports on administrative responsibility;
(e) The creation of a transparent and secure system enabling all persons deprived of their liberty to file complaints and administrative appeals for cases of torture and ill-treatment or for any other reason. In this connection, the Subcommittee notes that following its visit, the Buenos Aires Prison Service decided to introduce a system of boxes to collect confidential complaints, to which only the director of each unit will have access. The Subcommittee would appreciate information on the results and impact of that system.
86. The Subcommittee also urges the State party to:
(a) Unambiguously reaffirm the absolute prohibition of torture and publicly condemn such practice of torture, accompanied by a clear warning that anyone committing such acts or otherwise complicit or participating in torture will be held personally responsible before the law for such acts and may engage the international responsibility of the State (objective responsibility);
(b) Guarantee diligent and impartial investigation into all complaints of torture and ill-treatment within the prison system. In this respect it requests the State party to provide it with statistics on administrative and judicial investigations carried out into cases of violent death, torture and ill-treatment;
(c) Ensure that in cases of torture and ill-treatment, suspects are suspended from duty immediately for the duration of the investigation, and dismissed from the service if found guilty;
(d) Amend regulations on searches to guarantee respect for the dignity and human rights both of persons deprived of their liberty and the persons visiting them;
(e) Establish clear rules about the use of weapons within prisons, so as to ensure that they are used in strict conformity with the principles of proportionality and necessity. A register of the use of any means of coercion, including non-lethal means, should be kept.
87.The Subcommittee takes note of the information provided by the State that after its visit, a commission was set up to investigate the role of the so-called “limpieza” (cleaners). The Subcommittee hopes to be informed of the conclusions of the study.
88.The Subcommittee interviewed a number of inmates of facilities in the province of Buenos Aires who were enrolled in the “violence-prevention wings Programme”, under which persons are held in isolation for 23 hours a day for nine months, with one hour outside in an individual yard. However, the Programme does not appear to address the root causes of violence. The Subcommittee takes note of the information provided by the State party, according to which, after its visit an evaluation was carried out of the Programme and it was decided to discontinue it. The inmates enrolled in the Programme have been transferred to the “Provincial Violence-Prevention Programme”, which gives priority to establishing guidelines for coexistence so as to lower levels of conflict, with the help of specialists from different disciplines.
C.Juvenile detention centres
89.The Subcommittee visited the Almafuerte closed centre in La Plata and the closed centre in Lomas de Zamora. In the former, in addition to the poor state of repair of the facilities, the Subcommittee found an oppressive regime of confinement under which the inmates are kept constantly in closed spaces (cell, refectory, school and yard), and are unable to move freely and unhindered between these places. They have only sporadic access to open-air recreation grounds, even though the centre has a field next door. In the common area or canteen, where the young detainees spend much of the day doing virtually nothing, just getting to the bathroom is a problem, given that they must request a member of staff to open the door and go with them. Furthermore, they spend long periods during the day in their single cells. Disciplinary punishment consists of being kept in solitary confinement in their cells for up to 10 days. Inspections, for which they are obliged to strip naked and bend over, take place twice a day.
90.A similar disciplinary regime is in place at the Lomas de Zamora centre. Although the rules on free time in the yard are not as strict as in Almafuerte, they remain excessive, given that inmates are allowed out only every other day. The Subcommittee received information relating to the lack of effective judicial control of the punishments imposed on the young detainees in these centres. Sometimes, the punishments are not even registered, so as not to give lawyers any grounds for intervening.
91.In both centres, it was found that the youth workers lack training and expertise, as they themselves recognized, so that proper basic training programmes with periodic refresher courses need to be set up urgently. It was also found that there was a shortage of professionals, including teachers and psychologists, working in both centres, and that their material working conditions are poor and the equipment available inadequate. In the Lomas de Zamora centre, for example, teaching time is limited to one-and-a-half hours per pupil per day.
92.Many of the young inmates, including minors, whom the Subcommittee interviewed spoke of having been beaten and subjected to other ill-treatment by police at the time of arrest and in police stations. They also said they felt that having committed one offence stigmatized them for life.
93. In conformity with international standards the Subcommittee recommends to the State party that it:
(a) Take measures to amend the punitive culture that prevails in juvenile detention centres and to ensure that the regime in those centres favours social rehabilitation rather than isolation. Daily physical exercise in the open air should be guaranteed;
(b) Expand the training available with a view to facilitating the social reintegration of the young persons;
(c) Maintain and encourage the participation of parents throughout the period of socio-educational measures to allow the young people to remain constantly in contact with their families;
(d) Guarantee that the young peoples may receive free and independent legal representation and have access to an independent and effective complai nts mechanism for ill-treatment;
(e) Draw up a plan to improve, at both the federal and provincial levels, the infrastructure and the training of staff who work with young detainees.
94.The Subcommittee visited psychiatric establishments, including institutions for persons whose confinement had been ordered in connection with criminal proceedings, and establishments accommodating, in addition to those admitted voluntarily, patients sectioned as a result of civil proceedings.
95.The National Mental Health Act (No. 26657), which was adopted in November 2010, applies in all circumstances throughout the national territory. When it was adopted, the Act was widely acknowledged to be an important step towards guaranteeing the rights of persons with mental or psychosocial disorders and towards improving their treatment and situation. Nevertheless, the Act’s enabling legislation has not yet been adopted, and as a result its application is partial and depends on the interpretation, resources and understanding of each institution. The lack of enabling legislation is compounded by unresolved divisions within the profession and by the corporatist interests of sectors that feel excluded from and dissatisfied with the new health-service model introduced by the Act. Many mental-health professionals whom the Subcommittee interviewed did not clearly understand the provisions of the Act. The explanations they gave to the Subcommittee regarding its actual implementation were confused and even contradictory.
96. The Subcommittee recommends that the adoption of the relevant enabling legislation be speeded up to ensure the proper application of the new Act. An important component of this legislation, which should be drawn up expeditiously, is the “Review Board”, which is responsible for monitoring the status of admissions.
97.The Subcommittee is concerned about the lack of intermediate centres to provide gradual social support pending final discharge from an establishment. As a result, many psychiatric hospital patients are not there to receive treatment, but because the hospitals to a large extent operate as social welfare centres for persons without resources or a family to support them.
98. The Subcommittee recommends the adoption of measures such as the establishment of “half-way houses”, to ensure that patients do not remain in psychiatric hospitals for socioeconomic rather than medical reasons.
99.The Subcommittee found shortcomings in the maintenance of the mental health-care centres it visited. The situation in the Borda Interdisciplinary Psychiatric Care Hospital is of particular concern owing to the woeful state of the building. The admissions area and sections set aside for doctors and duty staff are extremely decrepit. Cuts in gas supplies have been a frequent occurrence for more than a year in many sections and the bathroom areas have been left in a state of complete abandon. Staff members reported that food given to patients was insufficient and of extremely poor quality. The furniture and bed linen were also threadbare. The fact that the land occupied by the Borda hospital is considered ideal for the building of a community centre, making its closure appear likely, may well go part of the way to explaining the little or total lack of interest shown in improving its facilities and equipment and the reigning sense of ill-ease about possible job losses if it does close. There was a similar situation of disrepair at the Moyano hospital.
100.Other major problems include staff shortages and the lack of activities planned for patients. There are too few doctors, psychologists and occupational therapists. Nurses often have to cope with a great many patients and it was reported that patients were sometimes left to their own devices. The Subcommittee was informed that doctors do less than half a full day’s work and that at the Borda hospital, 90 per cent of staff are present only in the mornings. It was also alleged that, because of the lack of staff, excessive medication was used to keep patients under control.
101.The Subcommittee visited Central I prison hospital in Ezeiza, where the PRISMA programme is being implemented. Under this programme, while medical care is provided by outside staff, keeping order and security is the responsibility of prison staff who, according to the information received, do not hesitate to resort to physical means of constraint such as tying patients to their bed, or the use of threats and beating. The fear felt by some of the detainees interviewed by the Subcommittee was palpable. One of them showed a scar on his neck caused by a rope when he had tried to hang himself because of ill-treatment by the security staff. Another patient said he had been beaten up by the guards who claimed he had insulted them, leaving boot marks. He had filed a complaint about the incident.
102. The Subcommittee recommends that the State carry out an investigation into the treatment by prison staff of detainees receiving psychiatric care. The State should also ensure that prison staff are properly trained to work with this category of detainee.
IV.Investigations dealing with torture and ill-treatment
103.The Subcommittee found a considerable discrepancy between the statistics on the number of cases of torture reported and actually investigated by the courts and those in the databases of public inspection bodies, such as the Office of the Ombudsman for the Prison System or other institutions concerned with access to justice, including the Public Criminal Defence Service at the federal level and some provincial Public Defender’s Offices, such as that of Buenos Aires. The same is true of other records, such as those of the Committee Against Torture of the Buenos Aires Provincial Memory Commission. This important oversight function, which relies on visits, and is complementary to the Subcommittee’s preventive remit, should be reinforced and not threatened by budgetary or other cutbacks that might undermine the work of preventing and protecting persons from torture and ill-treatment. The Subcommittee attaches great importance to the task of gathering data and registering cases of torture and ill-treatment. However, it believes that the above-mentioned bodies should also endeavour to reinforce institutional control mechanisms, including judicial mechanisms, with a view to improving prevention and reducing impunity.
104.The Subcommittee received a wealth of information both from authorities and civil-society organizations, concerning failure to investigate cases of torture and the impunity to which this gives rise. Impediments to the investigation of cases of torture include:
The lack of administrative or judicial complaints in prisons owing to the victims’ fear of being exposed to reprisals. Officials from the Public Legal Service said that they experienced considerable difficulty in gathering evidence for this reason. They said that victims sometimes file complaints but then fail to confirm them and that the prison codes prevent inmates from filing complaints confidently;
The lack of effective legal representation for victims in criminal proceedings;
The failure of prosecutors to follow a protocol on investigations into cases of torture, despite the fact that the protocol was issued by National Directorate of Prosecution Services;
The lack of a systematic approach to investigations capable of dismantling the network of perpetrators within both the police and the prison service, who use torture and ill-treatment as a means of extortion to obtain financial or other benefits;
The limited role actually played by the judges responsible for the enforcement of penalties, notwithstanding the provisions of article 25, paragraph 3 of the Buenos Aires Code of Criminal Procedure, which vests them with responsibility for monitoring the treatment of convicted inmates.
105.The shortcomings in guarantees afforded to the institutional independence of all actors responsible for making criminal justice accessible, in particular the public prosecution and public criminal defence services constitute a further impediment to investigation of cases of torture. The Subcommittee was concerned to find that some provinces in Argentina still maintain a structure whereby public defence and public prosecution services are subordinated to a single authority in the form of an attorney-general’s office. This impedes the introduction of institutional policies specific to each of those services and reduces their functional and budgetary autonomy. It also constitutes an obstacle to due process, through failure to observe the principle of equality between the prosecution and the defence. This is true, despite the fact that the public defence services assist a large proportion of persons facing criminal proceedings.
106.With regard to applications for habeas corpus as a means of improving conditions of detention and dealing with cases of torture and ill-treatment, the Subcommittee was informed that in practice, this swift and simple measure was frequently misused by the courts hearing applications. Both the procedure (which requires a hearing and the appearance of the person before the judge), and its purpose and objective are undermined by failure to hear the application in due time or to provide an appropriate response. Failure to monitor compliance with the decisions of the courts, which is often somewhat perfunctory or only done months later, is also commonplace. In Buenos Aires province, use of this tool to improve conditions of detention has been hindered by the reform of article 417 of the Code of Criminal Procedure, which empowers the executive branch to appeal against decisions of the courts in respect of habeas corpus. Currently, such appeals are common and as a result decisions of the courts granting habeas corpus are not implemented or held pending for months.
107.Another source of concern for the Subcommittee is the classification by the courts of acts of torture as other offences, such as bodily harm, coercion, abuse of authority, excessive use of force, extortion, etc. which carry far lighter penalties and shorter prescription limits. As well as leading to impunity, this practice is responsible for under-recording of cases of torture by the courts.
108.The Subcommittee notes that following the adoption of Decree No. 168/11, the Inspection and Control Directorate, which reports to the Under-Secretariat for Crime Policy and Judicial Investigations of the Ministry of Justice and Security of Buenos Aires province, is responsible for procedure relating, inter alia, to acts of torture and ill-treatment in penal establishments. As a result, the earlier procedure under which these were handled by the prison service has fallen into abeyance. The Subcommittee would like to receive information on the outcome of any procedures undertaken by the Directorate and on the manner in which they are conducted.
109. The Subcommittee is of the view that, in order to combat impunity in torture cases, it is of fundamental importance that the State party implement a policy of criminal investigation based, inter alia, on the improvement of administrative complaint mechanisms in prisons.
110. The public prosecution and public criminal defence services must each be structurally and functionally independent. They must also be vested with the power to properly investigate cases of torture with full guarantees of due process and to remove hindrances to the filing of complaints and subsequent substantive investigation of the facts. That investigative work would be further strengthened by the establishment of an independent judicial police force, as provided for in the Constitution, under the authority of the Attorney-General’s Office. This police force should be able to investigate the responsibility of police and prison officers in cases of torture and ill-treatment.
111. The Subcommittee recommends the adoption of measures for the purpose of amending the appeal procedure in habeas corpus proceedings so that appeal does not nullify effective and timely compliance with the decisions handed down.
112. The Subcommittee is of the view that it is important to strengthen the powers of enforcement judges to enable them to perform their role in monitoring the conditions of detention of persons deprived of their liberty.
113. The Subcommittee considers as a positive development the existence of registers of torture at the federal and provincial levels. In order for these registers to serve as effective tools in combating torture and the impunity associated with it, the bodies responsible should coordinate their efforts to draw up common guidelines for registering cases.
114. The Subcommittee takes note with interest of the measures adopted by the Supreme Court of Buenos Aires province in respect of monitoring the conditions of detention in penal establishments and would like to receive information on its evaluation of that monitoring, on interaction with the executive branch and prospects for action in the future. It would also like to receive information on the status of the draft project for a register of convictions for acts of torture, cruel and inhuman treatment.
List of persons with whom the Subcommittee met
Luis Alén, Under-Secretary for Protection of Human Rights, Human Rights Secretariat;
Andrea Gualde, National Director of Legal Affairs in respect of Human Rights, Human Rights Secretariat;
Federico Villegas Beltran, Minister, Ministry of Foreign Affairs and Worship;
Laura Lopresti, Under-Secretariat for Prison Management;
Víctor Hortel, Director, Federal Prison Service;
Jorge Cevallos, National Directorate, Federal Prison Service;
Carlos Fagalde, Under-Secretary for the Rights of Children, Adolescents and the Family;
Natalia Federman, Director for Human Rights, Ministry of Security;
Daniela Moreno, National Directorate for Mental Health and Addiction;
Graciela Natela, National Directorate for Mental Health and Addiction;
Stella Maris Martínez, Chief Public Defender, Public Defender’s Office;
Silvia Martínez – Official Defender in charge of the Prison Commission;
Marcos Filardi – Head of the Human Rights Commission;
Nicolás Laino – Human Rights Commission;
Augusto Aguer, Head, Area of Human Rights and Administration of Justice, National Ombudsman;
Francisco Mugnolo, Prison System Ombudsman;
Mariana Sheehan, Coordinator, International Relations, Prison System Ombudsman.
B.Buenos Aires province
Ricardo Casal, Minister of Justice and security;
Cesar Albarracín, Under-Secretary for Criminal Policy and Judicial Investigations;
Emiliano Baloira, Operational Under-Secretary;
Christina Fioramonti, Provincial Senator;
Emilio López Muntaner, Provincial Senator;
Sergio Alejandre, Under-Secretary for Health, Ministry of Health, Buenos Aires province;
Mario Calvo, Provincial Director, Prison Health Service;
Florencia Piermarini, Head, Buenos Aires Prison Service;
Pablo Navarro, Secretary for Children and Adolescents;
Yanina Estévez, Under-Secretariat for Juvenile Criminal Responsibility, Secretariat for Children and Adolescents;
Gustavo Nahmias, Under-Secretary for Human Rights;
Natalia Savichevich, Provincial Director for Prison Policy;
Marcos Erregue, Director, Inspection and Monitoring;
Ignacio Nolfi, Under-Secretary, Department of Human Rights, Prison Policy and Complaints, Attorney-General’s Office, Buenos Aires Province;
Maximiliano Pagani, Rapporteur, Attorney-General’s Office, Buenos Aires province;
Carlos Bonicatto, Ombudsman, Buenos Aires province;
Guillermo Gentile, Secretary, Office to Address and Prevent Institutional Violence, Ombudsman’s Office;
Carlos Martiarena, Secretary for Human Rights and Guarantees, Ombudsman’s Office;
Supreme Court of Justice, Buenos Aires province.
Paolo Balladelli, Representative, Pan American/World Health Organization (PAHO/WHO) in Argentina;
Hugo A. Cohen, PAHO/WHO Sub-regional Mental Health Adviser for South America;
Juan Carlos Domínguez Lostalò, Representative, Latin American Institute for the Prevention of Crime and the Treatment of Offenders (ILANUD) in Argentina;
Nora Luzi, Coordinator, Democratic Governance, United Nations Development Programme (UNDP).
Permanent Assembly for Human Rights (APDH);
Asociación Civil La Cantora;
Asociación Civil Pensamiento Penal;
Asociación de Familiares de Detenidos;
Asociación por los Derechos en Salud Mental (ADESAM);
Centro de Estudios Legales y Sociales (CELS);
Centro de Estudios en Política Criminal y Derechos Humanos (CEPOC);
Comité Contra la Tortura – Comisión Provincial por la Memoria;
Grupo de Mujeres de la Argentina;
Instituto de Estudios Comparados en Ciencias Penales y Sociales (INECIP).
Places of deprivation of liberty visited
Federal Prison Service
Complejo Penitenciario Federal I – Ezeiza;
Complejo Penitenciario Federal II – Marcos Paz;
Centro de Detención Judicial (Unidad 28).
Buenos Aires Prison Service
Unidad 1 Lisandro Olmos;
Unidad 3 San Nicolás;
Unidad 30 General Alvear;
Unidad 46 San Martín.
Argentine Federal Police
Buenos Aires province police
Comisaría Ensenada 3ª, El Dique;
Comisaría Ensenada 2ª, Puna Lara;
Comisaría Lomas de Zamora 9ª, Parque Barón;
Comisaría Lomas de Zamora 5ª, Villa Fiorito;
Comisaría de la Mujer y la Familia, La Plata;
Alcaidía Departamental Roberto Pettinato, La Plata.
Buenos Aires city police
III.Centres for children and adolescents
Centro de Recepción Lomas de Zamora;
Hospital Neuropsiquiátrico José Tiburcio Borda;
Hospital Neuropsiquiátrico Braulio Moyano;
Hospital Neuropsiquiátrico Alejandro Korn;
Servicio Psiquiátrico Central de Varones (Unidad 20).