State party

Report

Concluding observations

Bosnia and Herzegovina

Second to fifth periodic reports

CAT/C/BIH/2-5

CAT/C/BIH/CO/2-5

Cambodia

Second periodic report

CAT/C/KHM/2 and Corr.1

CAT/C/KHM/CO/2

Ecuador

Fourth to sixth periodic reports

CAT/C/ECU/4-6

CAT/C/ECU/CO/4-6

Ethiopia

Initial report

CAT/C/ETH/1

CAT/C/ETH/CO/1

Mongolia

Initial report

CAT/C/MNG/1

CAT/C/MNG/CO/1

Turkey

Third periodic report

CAT/C/TUR/3

CAT/C/TUR/CO/3

42.The following reports were before the Committee at its forty-sixth session and it adopted the respective concluding observations:

State party

Report

Concluding observations

Finland

Fifth and sixth periodic reports

CAT/C/FIN/5-6

CAT/C/FIN/CO/5-6

Ghana

Initial report

CAT/C/GHA/1

CAT/C/GHA/CO/1

Ireland

Initial report

CAT/C/IRL/1

CAT/C/IRL/CO/1

Kuwait

Second periodic report

CAT/C/KWT/2

CAT/C/KWT/CO/2

Mauritius

Third periodic report

CAT/C/MUS/3

CAT/C/MUS/CO/3

Monaco

Fourth and fifth periodic reports

CAT/C/MCO/4-5

CAT/C/MCO/CO/4-5

Slovenia

Third periodic report

CAT/C/SVN/3

CAT/C/SVN/CO/3

Turkmenistan

Initial report

CAT/C/TKM/1

CAT/C/TKM/CO/1

43.In accordance with rule 68 of the rules of procedure of the Committee, representatives of each reporting State were invited to attend the meetings of the Committee when their report was examined. All of the States parties whose reports were considered sent representatives to participate in the examination of their respective reports. The Committee expressed its appreciation for this in its concluding observations.

44.Country Rapporteurs and alternate Rapporteurs were designated by the Committee for each of the reports considered. The list appears in annex XI to the present report.

45.In connection with its consideration of reports, the Committee also had before it:

(a)General guidelines regarding the form and contents of initial reports to be submitted by States parties under article 19, paragraph 1, of the Convention (CAT/C/4/Rev.3);

(b)General guidelines regarding the form and contents of periodic reports to be submitted by States parties under article 19 of the Convention (CAT/C/14/Rev.1).

46.The Committee has been issuing lists of issues for periodic reports since 2004. This resulted from a request made to the Committee by representatives of the States parties at a meeting with Committee members. While the Committee understands the wish of States parties to have advance notice of the issues likely to be discussed during the dialogue, it nonetheless must point out that the drafting of lists of issues has increased the Committee’s workload. This is particularly significant in a Committee with such a small membership.

B.Concluding observations on States parties’ reports

47.The text of concluding observations adopted by the Committee with respect to the above-mentioned reports submitted by States parties is reproduced below.

48. Bosnia and Herzegovina

(1)The Committee against Torture considered the combined second to fifth periodic reports of Bosnia and Herzegovina (CAT/C/BIH/2-5) at its 961st and 962nd meetings, held on 4 and 5 November 2010 (CAT/C/SR.961 and 962), and adopted the following concluding observations at its 978th meeting (CAT/C/SR.978).

A. Introduction

(2)The Committee welcomes the submission of the combined second to fifth periodic reports of Bosnia and Herzegovina. The Committee also welcomes that the report was submitted in accordance with the new optional reporting procedure of the Committee consisting of replies by the State party to a list of issues prepared and transmitted by the Committee. The Committee expresses its appreciation to the State party for its agreement to report under this new procedure, which facilitates the cooperation between the State party and the Committee.

(3)The Committee notes with appreciation that a high-level delegation from the State party met with the Committee during its forty-fifth session, and also notes with appreciation the opportunity to engage in a constructive dialogue covering many areas under the Convention.

(4)The Committee notes that the State party consists of two entities, but recalls that Bosnia and Herzegovina is a single State under international law and has the obligation to implement the Convention in full at the domestic level.

B. Positive aspects

(5)The Committee welcomes that since the consideration of the initial periodic report, the State party has ratified the following international and regional instruments:

(a)Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 24 October 2008;

(b)Convention on the Rights of Persons with Disabilities and its Optional Protocol on 12 March 2010;

(c)Council of Europe Convention on Action against Trafficking in Human Beings on 11 January 2008.

(6)The Committee notes the State party’s ongoing efforts to revise its legislation in areas of relevance to the Conventions, including:

(a)The adoption of the Law on Movement and Stay of Aliens and Asylum in 2008;

(b)The adoption of the Law on Prevention of Discrimination in 2009;

(c)The adoption of the International Assistance Law in 2009 aimed at strengthening international cooperation, in particular through bilateral agreements with neighbouring countries, to ensure the protection of victims and the prosecution and punishment of alleged perpetrators.

(7)The Committee also welcomes the efforts being made by the State party to amend its policies and procedures in order to ensure greater protection of human rights and give effect to the Convention, including:

(a)The adoption of the Strategy for Dealing with War Crimes Cases in 2008;

(b)The adoption of the revised Strategy for the Implementation of Annex 7 of the Dayton Peace Agreement in 2010 aimed at improving the living standards of the remaining internally displaced persons and returnees in Bosnia and Herzegovina;

(c)The adoption of the third National Action Plan to Combat Human Trafficking and Illegal Migration in Bosnia and Herzegovina for the period 2008–2012;

(d)The adoption of the National Strategy to Combat Violence against Children for the period 2007–2010;

(e)The adoption of the National Strategy for Preventing and Combating Domestic Violence in Bosnia and Herzegovina for the period 2008–2010;

(f)The establishment of a working group to prepare a State strategy for transitional justice aimed at improving the situation and protection of all war victims.

C. Principal subjects of concern and recommendations

Definition and offence of torture

(8)While noting that the State party envisages amending the Criminal Code and harmonizing the legal definition of torture in the State and entity laws, the Committee remains concerned that the State party has still not incorporated into domestic law the crime of torture as defined in article 1 of the Convention and has not criminalized torture inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (arts. 1 and 4).

The Committee, in line with its previous recommendations ( CAT/C/BIH/CO/1, para. 9), urges the State party to speed up the process of the incorporation of the crime of torture, as defined in the Convention, into the State party laws as well as the harmonization of the legal definition of torture in the Republika Srpska and Brcko District with the Criminal Code of Bosnia and Herzegovina. The State party should also ensure that these offences are punishable by appropriate penalties which take into account their grave nature, as set out in article 4, paragraph 2, of the Convention.

War crimes of rape and other forms of sexual violence

(9)The Committee expresses its serious concern that the definition of war crimes of sexual violence in the Criminal Code is not consistent with the definition in international standards and in jurisprudence of international courts and that, in particular, articles 172 and 173 of the Criminal Code may result in impunity for such crimes. In addition, the Committee remains concerned at the lack of accurate and updated data on the number of victims of war-time rape and other acts of sexual violence (arts. 1 and 4).

The Committee recommends that the State party amend the Criminal Code to include a definition of sexual violence in accordance with international standards and jurisprudence related to the prosecution of war crimes of sexual violence and remove the condition of “ force or threat of immediate attack ” from the present definition. Also, the State party should include in its next report the statistical data on the unresolved cases related to war-time rape and other sexual violence.

Fundamental legal safeguards

(10)The Committee notes with concern that, in practice, persons deprived of their liberty are not always afforded all fundamental legal safeguards from the very outset of their detention (art. 2).

The Committee recommends that the State party take all necessary legal and administrative safeguards to ensure that suspects are guaranteed the right to have access to a lawyer and an independent doctor, preferably of their own choice, to notify a relative, to be informed of their rights at the time of detention, and to be brought promptly before a judge in accordance with international standards irrespective of the nature of their alleged crime.

Ombudsman

(11)The Committee, while noting the recent unification of Ombudsman institutions into a single State office of the Human Rights Ombudsman with the broadened scope of functions, is concerned about reports of the alleged lack of independence and the effectiveness of the Ombudsman as well as the need for the allocation of adequate resources in order to fulfil the mandate of the office. The Committee regrets the lack of a clear explanation on the follow-up measures taken by the competent authorities in response to the Ombudsman’s recommendations on various places of detention (CAT/C/BIH/2-5, para. 227) (art. 2).

The State party should increase its efforts to restructure and strengthen the Ombudsman by:

(a) Adopting a more consultative and open process for the selection and appointment of the Ombudsman in order to guarantee the independence of the Ombudsman in line with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles, General Assembly resolution 48/134);

(b) Providing adequate human, material and financial resources;

(c) Developing the Ombudsman ’ s capacity to monitor all places of deprivation of liberty in Bosnia and Herzegovina, especially in the absence of an independent prisons inspectorate;

(d) Ensuring the implementation of the Ombudsman ’ s recommendations.

Impunity

(12)The Committee notes the adoption of the Strategy for Dealing with War Crimes Cases and some progress made in the prosecution of those responsible for acts of torture committed during the 1992–1995 conflict, including war-time rape and other acts of sexual violence. However, the Committee is gravely concerned that, taking into account the number of such war-time crimes, the number of cases prosecuted so far by the Bosnia and Herzegovina judiciary is extremely low and local courts still face serious obstacles in prosecuting war crimes cases. In addition, the Committee expresses its serious concern that a significant number of judgments made by the Constitutional Court are not implemented even several years following their adoption and most of the non-implemented decisions by the Constitutional Court are related to cases of human rights violations, mainly the cases of missing persons (arts. 2, 9 and 12).

The Committee urges the State party to fight impunity by ensuring prompt and effective investigation into all allegations of war-time crimes and prosecuting and punishing the perpetrators with appropriate penalties commensurate with their grave nature. In that regard, the State party is encouraged to provide mutual judicial assistance in all matters of criminal proceedings and to continue to enhance cooperation with the International Criminal Tribunal for the Former Yugoslavia. Furthermore, it is necessary to fully implement the Constitutional Court ’ s judgments without further delay, in particular with regard to cases on enforced disappearances, and to prosecute failure to comply with such judgments.

Violence against women and children, including domestic violence

(13)The Committee, while noting legal and administrative measures undertaken by the State party to combat gender-based violence, including the resolution on the fight against violence against women in the family adopted by the Parliamentary Assembly, expresses its concern about the persistence of violence against women and children, including domestic violence. While appreciating the State party’s intention to amend the elements of crimes of rape by abolishing the requirements of both penetration and active resistance by the victim, it is concerned at insufficient information on the entity laws prohibiting and criminalizing such violence and at the low numbers of investigations and prosecutions of cases of domestic violence. The Committee is concerned at reports about the inadequate provision of protection measures and rehabilitation programmes for victims (arts. 1, 2, 4, 11, 12 and 16).

The Committee recommends that the State party enhance its efforts to prevent, prosecute and punish all forms of violence against women and children, including domestic violence, and ensure effective and full implementation of the existing laws and the national strategies adopted to that end, including the Strategy for Preventing and Combating Domestic Violence and the National Strategy to Combat Violence against Children. The State party should provide support for victims through the establishment of additional shelters, the provision of free counselling services and such other measures as may be necessary for the protection of victims. Furthermore, the State party is encouraged to conduct broader awareness-raising campaigns and training on domestic violence for law enforcement personnel, judges, lawyers and social workers who are in direct contact with the victims as well as for the public at large.

Refoulement

(14)Notwithstanding article 91 of the Law on Movement and Stay of Aliens and Asylum with regard to the principle of prohibition of return (CAT/C/BIH/2-5, para. 76), the Committee remains concerned at reports that the competent authorities of Bosnia and Herzegovina have failed to properly assess the risk of refoulement faced by those who apply for international protection and that persons considered to be a threat to national security are subject to being expelled or returned to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture. It is also concerned at the very low rate of successful asylum applications (art. 3).

The State party should:

(a) Ensure (i) procedural safeguards against refoulement and (ii) effective remedies with respect to refoulement claims in removal proceedings , including review by an independent judicial body concerning rejections;

(b) Ensure that a thorough review of each individual case is provided for asylum claims and that persons whose applications for asylum have been rejected can lodge an effective appeal with the effect of suspending the execution of the decision on the expulsion or deportation;

(c) Revise its current procedures and practices in the area of expulsion, refoulement and extradition and align its interpretation of key concepts of domestic asylum law fully with international refugee law and human rights standards;

(d) Continue to follow up on and keep the Committee informed of the case of the citizen of Bosnia and Herzegovina who remains in detention in Guantanamo Bay military base;

(e) Ensure that national security considerations do not undermine the principle of non-refoulement and that the State party fulfil its obligations to respect the principle of absolute prohibition of torture in all circumstances, in accordance with article 3 of the Convention.

(15)With regard to individuals whose citizenship has been revoked by the State Commission for Revision of Decisions on the Naturalization of Foreign Nationals and who consequently are detained in the deportation centre, the Committee takes note of the State party’s report claiming that legal rights to judicial protection had been provided for them. However, noting the concerns expressed by several international bodies, the Committee remains concerned that reported cases on the prolonged detention in inadequate conditions of those individuals and the denial of their right to effectively challenge the decisions to revoke their citizenship, detain and deport them have not been fully clarified (arts. 3 and 16).

The State party should revise its practice regarding the prolonged detention of those individuals and fully respect their right to effectively challenge the decisions to revoke their citizenship, detain them and deport them. Furthermore, the State party should guarantee key principles related to a fair and efficient asylum procedure, including adequate translation and interpretation services, free legal aid and access of applicants to their case file.

Return of refugees and internally displaced persons

(16)In addition to the problems recognized by the State party, inter aliathe security concerns for the minority returnees and the lack of investigation and prosecution of crimes and acts of violence against refugees and internally displaced persons (CAT/C/BIH/2-5, para. 142), the Committee expresses its concern at persistent reports claiming that existing programmes of property restitution have failed to take into account gender and the psychological needs of the victims of sexual violence. The Committee is also concerned at their lack of economic opportunities and the poor living conditions (arts. 3, 7 and 12).

The Committee recommends that the State party intensify its efforts to facilitate returns of refugees and displaced persons, including by constructing housing and the accompanying infrastructure and addressing the specific situation of those who would otherwise have difficulties in benefiting from the reconstruction assistance. The State party should take all necessary measures to effectively tackle the identified obstacles and ensure that all crimes and acts of violence against refugees and internally displaced persons are properly and promptly investigated and prosecuted. In addition, it is necessary to fully implement the recommendations made by the Representative of the Secretary-General on the human rights of internally displaced persons in the report on his mission to Bosnia and Herzegovina (E/CN.4/2006/71/Add.4).

Witness protection and support

(17)The Committee, while noting some improvement in witness protection in criminal proceedings, remains gravely concerned at the lack of adequate measures of witness protection and witness support before, during and after trials, which has a negative impact on the willingness and ability of witnesses to participate in investigations or to testify in proceedings. The Committee also expresses concern at the reported cases of intimidation against witnesses and of attempts at bribery by perpetrators, and at the insufficient support for witnesses by the competent authorities, such as the State Investigation and Protection Agency (arts. 2, 11, 12, 13 and 15).

The Committee urges the State party to ensure that victims are effectively protected, that they are not further distressed or pressured to withdraw their testimony and that they are not threatened by alleged perpetrators, in particular by:

(a) S trengthening the capacity of the competent organs, in particular the State Investigation and Protection Agency and its Department for Witness Protection (OZS), and ensuring that they respect the right to privacy of the survivors and provide witnesses at serious risk with long-term or permanent protection measures, including changing their identity or relocating them within or outside of Bosnia and Herzegovina;

(b) Giving more attention to the psychological needs of witness in order to minimize possible re-traumatization of survivors in court proceedings ;

(c) Ensuring that witnesses have appropriate means to travel to and from the court and providing escorts for their travel, as necessary.

Redress, including compensation and rehabilitation

(18)The Committee notes that the State party has strengthened its efforts to guarantee the victims’ rights to redress, including the development of the Strategy for Transitional Justice. However, the Committee expresses concern over the slow process of the adoption of the draft law on the rights of victims of torture, the absence of an adequate definition of the status and rights of civil victims of war in domestic legislation and the insufficient medical or psychosocial support and legal protection available to victims, especially victims of war-time sexual violence (art. 14).

The Committee recommends that the State party adopt the draft law on the rights of victims of torture and civil victims of war and the strategy for transitional justice without delay in order to fully protect the rights of victims, including the provision of compensation and as full a rehabilitation as possible, with the aim of obtaining physical and psychological recovery and their social reintegration. To that end, the State party is strongly encouraged to reduce the politicization of these efforts, to finalize a plan of action with clearly identified activities and corresponding responsibilities among State and entity authorities and to ensure the allocation of adequate financial resources.

Conditions of detention

(19)While welcoming the measures taken by the State party to improve considerably the conditions of detention, including the construction of new facilities and the renovation of existing ones, the Committee remains particularly concerned about the current material and hygienic conditions, the use of solitary confinement, the problems of overcrowding and ongoing inter-prisoner violence in some places of deprivation of liberty (arts. 11, 12 and 16).

The State party should intensify its efforts to bring the conditions of detention in places of deprivation of liberty into line with the Standard Minimum Rules for the Treatment of Prisoners (Economic and Social Council resolutions 663 C (XXIV) and 2076 (LXII)) and other relevant international and national law standards, in particular by:

(a) Coordinating the judicial supervision of conditions of detention between competent organs and ensuring thorough investigations of all allegations of abuse or ill-treatment committed in detention facilities;

(b) Drawing up a comprehensive plan to address the issue of inter-prisoner violence and sexual violence in all detention facilities, including Zenica Prison, and ensuring effective investigations into those cases;

(c) Reducing prison overcrowding and considering non-custodial forms of detention;

(d) Ensuring that solitary confinement is used only as a measure of last resort for as short a time as possible under strict supervision;

(e) Strengthening the effort to improve the regime for prisoners, especially vocational and physical activities, and to facilitate their re-integration into society;

(f) Ensuring that minors are detained separately from adults through their whole period of detention or confinement and offering them educational and recreational activities;

(g) Providing adequate accommodation and psychosocial support care for detainees who require psychiatric supervision and treatment.

Psychiatric facilities

(20)While noting the progress made in psychiatric facilities, including Sokolac Psychiatric Clinic, the Committee remains concerned at issues of institutional accommodation of mentally disabled persons, in particular with regard to overcrowding in institutions and lack of adequate psychosocial support by competent organs (art. 16).

The Committee recommends that the State party ensure that adequate psychosocial support by multidisciplinary teams is provided for patients in psychiatric institutions, that all places where mental-health patients are held for involuntary treatment are regularly visited by independent monitoring bodies to guarantee the proper implementation of the existing safeguards, and that alternative forms of treatment are developed. Furthermore, the State party should ensure the full and timely implementation of the recommendations made by the Ombudsmen, as contained in their special report on the situation in institutions for accommodation of mentally disabled persons.

Individual complaints

(21)Notwithstanding the information provided in the State party’s report on the possibility for prisoners and detainees to present complaints, the Committee is concerned that it continues to receive information on the lack of an independent and effective complaint mechanism for receiving and conducting impartial and full investigations into allegations of torture and on the failure to provide prisoners and detainees with the existing complaints procedures (arts. 12 and 13).

The State party should ensure that every individual who alleges that he or she has been subjected to torture or ill-treatment has the right to complain to the competent authorities without any impediment and that such individuals have access to their medical file upon their request. Furthermore, in line with the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, all detainees and prisoners should be provided with information on the possibilities for lodging complaints, including on the right to correspond on a confidential basis with outside judicial and complaints ’ bodies, and closed complaints boxes should be installed in the prisons (CPT/Inf (2010) 10, para. 36).

Training

(22)While welcoming the detailed information provided by the State party on training programmes for law enforcement officials and the judiciary, the Committee remains concerned at the lack of standardized capacity at the State level for training of all public officers and at the insufficient information on monitoring and evaluation of the effectiveness of these programmes in preventing and detecting torture and ill-treatment (arts. 10 and 16).

The Committee recommends that the State party:

(a) Ensure that medical personnel and others involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment are provided on a regular and systematic basis with trainings on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) and that the Manual is translated into all appropriate languages and applied as widely as possible;

(b) Develop and implement a methodology to assess the effectiveness and impact of such educational and training programmes on the reduction of cases of torture and ill-treatment and regularly evaluate the training provided to its law enforcement officials;

(c) Strengthen its efforts to implement a gender-sensitive approach for the training of those involved in the custody, interrogation or treatment of women subjected to any form of arrest, detention or imprisonment ;

(d) Strengthen professional training in social-protection institutions for persons with mental disability and in psychiatric clinics.

Trafficking in persons

(23)The Committee takes note of several measures taken by the State party, including the adoption of the State Action Plan to combat human trafficking and illegal migration (2008–2010), the establishment of a central database on identified victims of trafficking and the issuance by the Ministry of Security of regulations on the protection for trafficking victims. However, the Committee remains concerned at the absence of a provision in the Criminal Code in relation to the legal penalties for persons who have committed or been involved in the crime of trafficking, and at the lenient sentences imposed in cases of trafficking. The Committee also expresses concern over the slowness and the complexity of redress procedures for victims of trafficking (arts. 2, 4 and 16).

The State party should strengthen its efforts to combat trafficking in persons, especially in women and children, in particular by:

(a) Ensuring that trafficking is defined as a crime in all parts of the State party in accordance with international standards, and that these offences are punishable by appropriate penalties which take into account their grave nature;

(b) Improving the identification of trafficking victims and providing them with appropriate rehabilitation programmes, genuine access to health care and counselling;

(c) Providing training to law enforcement personnel and other relevant groups, and raising awareness of the problem among the public.

Enforced disappearances

(24)While acknowledging the State party’s statement that the Institute for Missing Persons is fully functional and noting ongoing cooperation with the International Commission on Missing Persons aimed at the identification of missing persons, the Committee is concerned by the inadequate protection for the rights of relatives of missing persons and the delay in establishing a State-level fund to assist them. The Committee also regrets that the lack of the harmonization in the State party laws makes it difficult to prosecute enforced disappearances as crimes against humanity (arts. 1, 4, 14 and 16).

The Committee recommends that, in line with the preliminary recommendations made by the Working Group on Enforced or Involuntary Disappearances following its fact-finding mission to Bosnia and Herzegovina in June 2010, the State party:

(a) Ensure the full independence of the Institute for Missing Persons and provide the Institute with adequate material, financial and human resources, including available technology necessary to detect and exhume graves;

(b) Ensure that the fund for families of missing persons is established without any further delay and that its financing is entirely secured;

(c) Complete the Central Record of Missing Persons (CEN) without further delay and make it available to the publi c;

(d) Respect the right of families of missing persons, including those who live outside Bosnia and Herzegovina, to know the truth by keeping them informed of the progress made in the processes of exhumation and identification of mortal remains and provide them with psychosocial assistance during the process;

(e) Fulfil its obligation to investigate all cases of enforced disappearances;

(f) Consider ratifying the International Convention for the Protection of All Persons from Enforced Disappearance.

National preventive mechanism

(25)While noting that the State party is preparing the establishment of a national preventive mechanism in collaboration with the Ombudsman and with the support of the Organization for Security and Cooperation in Europe Mission to Bosnia and Herzegovina, the Committee remains concerned about a reported lack of effective legislative and logistic measures taken by the competent authorities in order to establish an independent national preventive mechanism in line with articles 17 to 23 of the Optional Protocol to the Convention against Torture (arts. 2, 11 and 16).

The State party should, in line with the recommendations made by the Working Group on the Universal Periodic Review and accepted by the State party (A/HRC/14/16, para. 90 (recommendation 17) and A/HRC/14/16/Add.1, para. 10), expedite the establishment of the national preventive mechanism, in full compliance with the minimum requirements of the Optional Protocol. The national preventive mechanism should be granted sufficient financial, human and material resources with a view to assuming its mandate effectively.

Data collect ion

(26)The Committee regrets the absence of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment by law enforcement and prison personnel, war-time rape and sexual violence, extrajudicial killings, enforced disappearances, trafficking, domestic and sexual violence and means of redress for victims.

The State party should compile statistical data, disaggregated by crime , ethnicity, age and sex , relevant to the monitoring of the implementation of the Convention at the national level, including data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment by law enforcement and prison personnel, war-time rape and sexual violence, extrajudicial killings, enforced disappearances, trafficking and domestic and sexual violence, and on means of redress, including compensation and rehabilitation, provided to the victims.

(27)The State party is requested to disseminate widely the report submitted to the Committee and the Committee’s concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations.

(28)The Committee requests the State party to provide, within one year, follow-up information in response to the Committee’s recommendations contained in paragraphs 9, 12, 18 and 24 of the present document.

(29)The Committee invites the State party to present its next periodic report in accordance with its reporting guidelines and to observe the page limit of 40 pages for the treaty-specific document. The Committee also invites the State party to submit an updated common core document in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee Meeting of the human rights treaty bodies, and to observe the page limit of 80 pages for the common core document. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(30)The State party is invited to submit its next periodic report, which will be the sixth report, by 19 November 2014.

49. Cambodia

(1)The Committee considered the second periodic report of Cambodia (CAT/C/KHM/2) at its 967th and 968th meetings (CAT/C/SR.967 and 968), held on 9 and 10 November 2010, and adopted, at its 979th and 980th meetings (CAT/C/SR.979 and 980), the following concluding observations.

A . Introduction

(2)The Committee welcomes the submission of the second periodic report of Cambodia but it regrets that the significant delay in its timely submission has prevented the Committee from conducting an ongoing analysis of the implementation of the Convention in the State party.

(3)The Committee also welcomes that the report was submitted in accordance with the new optional reporting procedure of the Committee consisting of replies by the State party to a list of issues (CAT/C/KHM/Q/2) prepared and transmitted by the Committee. The Committee expresses its appreciation to the State party for agreeing to report under this new procedure which facilitates the cooperation between the State party and the Committee.

(4)The Committee also appreciates the dialogue with and the additional oral information provided by the delegation of the State party but it regrets that some of its questions have remained unanswered.

B. Positive aspects

(5)The Committee welcomes the ratification, in March 2007, of the Optional Protocol to the Convention, and the recent visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Cambodia from 3 to 11 December 2009.

(6)The Committee also welcomes that, in the period since the consideration of the initial report, the State party has ratified or acceded to the following international instruments:

(a)The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, in October 2010;

(b)United Nations Convention against Transnational Organized Crime, in December 2005, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention, in July 2007;

(c)The United Nations Convention against Corruption, in September 2007;

(d)The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, in July 2004;

(e)The Rome Statute of the International Criminal Court, in April 2002.

(7)The Committee further notes the ongoing efforts at the State level to reform its legislation, policies and procedures 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 particular the adoption of:

(a)The Anti-Corruption Law, in 2010;

(b)The new Penal Code, in 2009;

(c)The Law on Suspension of Human Trafficking and Commercial Sexual Exploitation, in 2008;

(d)The new Code of Penal Procedure, in 2007;

(e)The Law on Prevention of Domestic Violence and the Protection of Victims, in 2005, including criminalization of marital rape.

(8)The Committee notes with satisfaction the establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in cooperation with the United Nations and the international community. It welcomes the fact that the Trial Chamber has delivered judgment in its first case (No. 001) on 26 July 2010 and that it has delivered indictments in its second case (No. 002), and that victims of torture and other cruel, inhuman or degrading treatment or punishment can participate in the proceedings as civil parties. It also urges the State party to continue its efforts to bring further perpetrators of the Khmer Rouge-related atrocities to justice (Cases Nos. 003 and 004).

(9)The Committee also welcomes the establishment, in 2008, of the Refugee Office within the Immigration Department of the Ministry of the Interior, with the objective of protecting refugees, who may include victims of torture or cruel, inhuman or degrading treatment, as well as the adoption, on 17 December 2009, of the Sub-Decree on the Procedure of Determination of Refugee Status and the Right to Asylum for Aliens in the Kingdom of Cambodia, as the beginning of the development of a legal framework.

C. Principal subjects of concern and recommendations

Incorporation of the Convention into domestic law

(10)The Committee welcomes the guarantees contained in article 31 of the Constitution as well as the July 2007 decision of the Constitutional Council (Decision No. 092/003/2007) that international treaties are part of the national law and that courts should take treaty norms into account when interpreting laws and deciding cases. However, the Committee regrets the lack of information as to any cases where the Convention has been applied by the domestic courts, and it is therefore concerned that in practice, the provisions of international conventions, including the Convention, are not invoked before or directly enforced by the State party’s national courts, tribunals or administrative authorities. In this regard, the Committee notes with concern the lack of effective remedies for violations of human rights, including torture and ill-treatment. This undermines the State party’s ability to meet its obligations under the international human rights treaties that it has ratified, including the Convention (arts. 2, 4 and 10).

The State party should take all appropriate measures to ensure the full applicability of the provisions of the Convention in its domestic legal order. Such measures should include extensive training on the provisions of the international human rights treaties, including the Convention, for its State officials, law enforcement and other relevant officials, as well as judges, prosecutors and lawyers. The Committee also requests the State party to report back on progress made in this respect and on decisions of national courts, tribunals or administrative authorities giving effect to the rights enshrined in the Convention.

Definition and criminalization of torture

(11)The Committee notes the statement by the delegation that the State party refers to the term “torture” in a general context as any acts causing injury to individuals and sets forth “torture” as a criminal offence. While noting the information provided by the State party that the new Penal Code imposes punishment for perpetrating the crime of torture, inciting its exercise, or approval or acquiescence thereof by any official acting in an official capacity, the Committee is concerned that the Penal Code does not contain a definition of torture. The Committee regrets that the State party did not provide it with a copy of the relevant provision on criminalization of torture (arts. 1 and 4).

The State party should incorporate a definition of torture into the Constitution, the Penal Code or other relevant legislation, including all elements of torture as defined by the Convention. Such action would show a real and important recognition of torture as a serious crime and human rights abuse and fight impunity. By naming and defining the offence of torture in accordance with articles 1 and 4 of the Convention and distinct from other crimes, the Committee considers that States parties will directly advance the Convention ’ s overarching aim of preventing torture, inter alia, by alerting everyone, including perpetrators, victims, and the public, to the special gravity of the crime of torture and by improving the deterrent effect of the prohibition itself. The Committee also requests the State party to promptly provide the text of the new Penal Code, as requested during the dialogue.

Corruption

(12)The Committee is deeply concerned at reports of widespread and systemic corruption throughout the country. The Committee considers that the rule of law is the cornerstone for the protection of the rights set forth in the Convention and, while welcoming the new Anti-Corruption Law and other measures taken by the State party, it notes with concern reports of political interference and corruption affecting the judicial bodies and the functioning of some public services, including the police and other law enforcement services. In this respect, the Committee expresses its concern at reports that police officers are promoted for convictions and that police stations are given special incentives for convictions, amounting to a rewards system, as well as reports of police officers benefitting financially from informal arrangements or extrajudicial settlements. The Committee is also concerned that the Anti-Corruption Unit established under the new Anti-Corruption Law has not yet taken any steps against alleged perpetrators of corruption and is not yet fully operational (arts. 2, 10 and 12).

The State party should take immediate and urgent measures to eradicate corruption throughout the country which is one of the most serious impediments to the rule of law and the implementation of the Convention. Such measures should include effective implementation of the anti-corruption legislation and the expeditious operationalization of the Anti-Corruption Unit, which should consist of independent members. The State party should also increase its capacity to investigate and prosecute cases of corruption. The State party should establish a programme of witness and whistle-blower protection to assist in ensuring confidentiality and to protect those who lodge allegations of corruption, and ensure that sufficient funding be allocated for its effective functioning. Furthermore, the State party should undertake training and capacity-building programmes for the police and other law enforcement officers, prosecutors and judges, on the strict application of anti-corruption legislation as well as on relevant professional codes of ethics, and adopt effective mechanisms to ensure transparency in the conduct of public officials, in law and in practice. The Committee requests the State party to report back on progress achieved, and the difficulties encountered, in combating corruption. The Committee also requests the State party to provide information on the number of officials, including senior officials, who have been prosecuted and punished on account of corruption charges.

Independence of the judici ary

(13)The Committee reiterates its grave concern at the lack of independence and effectiveness of the judiciary, including the criminal justice system, which hinders the full enjoyment of human rights, such as the prohibition of torture and other cruel, inhuman and degrading treatment or punishment. The Committee is also concerned that fundamental laws of reform of the judiciary have not yet been enacted. The Committee further expresses its concern at the lack of independence of the Bar Association, the limits on its size and the qualifications for these limits. The Committee regrets the failure of the State party to respond to its questions about provisions of the Anti-Corruption Law that address the independence of the judiciary and to provide examples of cases where those who engaged in exerting and complying with undue pressure on the judiciary were investigated, prosecuted and convicted (art. 2).

The State party should intensify its efforts to establish and ensure a fully independent and professional judiciary in conformity with international standards and ensure that it is free from political interference. Such efforts should include the immediate enactment of all relevant laws of reform, notably the Organic Law on the Organization and Functioning of the Courts; the Law on the Amendment of the Supreme Council of Magistracy; and the Law on the Status of Judges and Prosecutors. The State party should also ensure that those who engage in exerting and complying with undue pressure on the judiciary are investigated, prosecuted and convicted, and provide examples of such cases. In addition, the State party should take the necessary steps to ensure that the Bar Association is independent, transparent and allows for admission of a sufficient number of lawyers. The Committee further requests that the State party provide information on provisions of the Anti-Corruption Law that address the independence of the judiciar y.

Fundamental legal safegua rds

(14)The Committee expresses its serious concern at the State party’s failure in practice to afford all detainees, including juveniles and pretrial detainees, with all fundamental legal safeguards from the very outset of their detention. Such safeguards comprise the right to have prompt access to a lawyer and an independent medical examination, preferably by a doctor of one’s own choice, to notify a relative, and to be informed of their rights at the time of detention, including about the charges laid against them, as well as to appear expeditiously before a judge.The Committee is particularly concerned that the Penal Procedure Code only includes the right for a detainee to consult a lawyer 24 hours after his or her apprehension, and that access to a doctor is reportedly left to the discretion of the relevant law enforcement or prison official. The Committee also expresses its concern at the very limited number of defence lawyers, including legal aid defence lawyers, in the country, which precludes many defendants from obtaining legal counsel. The Committee is further concerned at reports that persons deprived of their liberty are held for significant periods of time in police custody without being registered and that a significant number of police facilities and prisons are failing to adhere to the regulations governing detainee registration procedures in practice (arts. 2, 11 and 12).

The State party should promptly implement effective measures to ensure that all detainees are afforded, in practice, all fundamental legal safeguards from the very outset of their detention. To this end, the State party should amend the Penal Procedure Code so as to guarantee detainees the right to have prompt access to a lawyer from the very outset of their deprivation of liberty and throughout the investigation phase, the whole of the trial and during appeals, as well as access to an independent medical examination, preferably by a doctor of one ’ s own choice, to notify a relative, and to be informed of their rights at the time of detention, including about the charges laid against them, and the right to appear expeditiously before a judge. The State party should, as a matter of urgency, expand the number of defence lawyers, including legal aid defence lawyers, in the country and remove unjustified barriers to entry for individuals who wish to be admitted to the Bar Association. The State party should ensure prompt registration of persons deprived of their liberty and ensure that custody records at police and prison facilities are periodically inspected to make sure that they are being maintained in accordance with procedures established by law.

Impunity for acts of torture and ill-treatment

(15)The Committee remains deeply concerned by the numerous, ongoing and consistent allegations of torture against and ill-treatment of detainees in detention facilities, in particular in police stations. In this respect, the Committee is further concerned at numerous allegations of cases of sexual violence against women in detention by law enforcement and penitentiary personnel. The Committee is also concerned that such allegations are seldom investigated and prosecuted and that there would appear to be a climate of impunity resulting in the lack of meaningful disciplinary action or criminal prosecution against persons of authority accused of acts specified in the Convention. While noting the information provided by the State party that its national laws, especially the Penal Procedure Code, do not contain any provisions that can be used as a justification or means for an excuse for torture, under any circumstances, the Committee is concerned at the lack of a provision in domestic legislation expressly prohibiting the invocation of exceptional circumstances as a justification for torture (arts. 2, 4, 12 and 16).

As a matter of urgency, the State party should take immediate and effective measures to prevent acts of torture and ill-treatment, including sexual violence in detention, throughout the country, including through the announcement of a policy that would produce measurable results in the eradication of torture and ill-treatment by State officials, and through monitoring and/or recording of police interrogation sessions.

The State party should also ensure that all allegations of torture and ill-treatment, including sexual violence in detention, are investigated promptly, effectively and impartially, and that the perpetrators are prosecuted and convicted in accordance with the gravity of the acts, as required by article 4 of the Convention. The State party should enact a sentencing scheme governing convictions of torture and ill-treatment by government officials to ensure that adequate sentences are given to those who are found guilty of such acts.

The State party should ensure that its domestic legislation includes a provision expressly prohibiting the invocation of exceptional circumstances as a justification of torture.

Complaints and prompt, impartial and effective investigations

(16)The Committee expresses its concern at reports that torture and ill-treatment by law enforcement and prison officials are widespread, that few investigations are carried out in such cases and that there are very few convictions. The Committee is also concerned at the absence of an independent civilian oversight body with the power to receive and investigate complaints of torture and ill-treatment by police and other law enforcement officials. The Committee regrets the lack of detailed information provided by the State party, including statistics, on the number of complaints of torture and ill-treatment and results of all the proceedings, both at the penal and disciplinary levels, and their outcomes. Furthermore, the Committee is concerned at the lack of effective mechanisms to ensure the protection of victims and witnesses (arts. 1, 2, 4, 12, 13 and 16).

The State party should strengthen its measures to ensure prompt, impartial and effective investigations into all allegations of torture and ill-treatment of convicted prisoners and detainees, including in police stations, and to bring to justice law enforcement and prison officials who carried out, ordered or acquiesced in such practices. The State party should establish an independent law enforcement complaint mechanism and ensure that investigations into complaints of torture and ill-treatment by law enforcement officials are undertaken by an independent civilian oversight body. In connection with prima facie cases of torture and ill-treatment, the alleged suspect should as a rule be subject to suspension or reassignment during the process of investigation, to avoid any risk that he or she might impede the investigation or continue any reported impermissible actions in breach of the Convention.

Furthermore, the State party should establish a programme of victim and witness protection to assist in ensuring confidentiality and to protect those who come forward to report or complain about acts of torture, as well as ensure that sufficient funding be allocated for its effective functioning.

Prolonged pretrial detention

(17)The Committee notes with concern that the State party’s criminal justice system continues to rely on imprisonment as the default option for defendants awaiting trial and it remains concerned about the unwarranted protraction of the pretrial detention period during which detainees are likely to be subjected to torture and other ill-treatment (arts. 2 and 11).

The State party should adopt effective measures to ensure that its pretrial detention policy meets international standards and that it is only used as an exceptional measure for a limited period of time, in accordance with the requirements under the Constitution and the Code of Penal Procedure. To this end, the State party should reconsider its use of imprisonment as the default option for defendants awaiting trial and consider applying measures alternative to such pretrial detention; that is, supervised release prior to trial. It should also comprehensively apply and further develop legal provisions perm itting non-custodial measures.

Monitoring and inspection of places of detention

(18)The Committee takes note with interest of the information provided by the State party that a number of responsible bodies have the rights and power to conduct regular inspection of prisons. The Committee also notes the information provided by the State party that “relevant” non-governmental organizations (NGOs) are allowed to visit prisons. However, the Committee is concerned at the lack of information with regard to any effective monitoring and inspection of all places of detention, including police stations, prisons, as well as Social Affairs Centres, Drug Rehabilitation Centres and other places where persons may be deprived of their liberty. In this respect, the Committee is particularly concerned at the State party’s failure to provide information as to whether such visits are unannounced or otherwise controlled, as well as information on any follow-up on the results of these visits (arts. 2, 11 and 16).

The Committee calls upon the State party to establish a national system to effectively monitor and inspect all places of detention, including police stations, prisons, Social Affairs Centres, Drug Rehabilitation Centres and other places where persons may be deprived of their liberty, and to follow up to ensure effective monitoring. This system should include regular and unannounced visits by independent national and international monitors, including “ relevant ” NGOs, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

Conditions of detention

(19)The Committee takes note of measures adopted by the State party to improve conditions of detention, including through the Prison Reform Support Programme (PRSP), the issuance of a Sub-decree regulating prisoners’ rations and cell equipment, the development of draft Minimum Design Standards for Prison Construction together with international partners and the construction of new prisons. However, the Committee expresses its concern at the serious overcrowding in places where persons are deprived of their liberty, representing a threat to the safety, physical and psychological integrity and health of detainees. It is further concerned at reports of unhygienic conditions, inadequate food and health care. The Committee notes with concern that the prison population is growing steadily and is concerned at the lack of alternative non-custodial forms of punishment. Furthermore, the Committee notes with serious concern reported cases of deaths in custody and regrets the State party’s failure to provide information on this. The Committee also expresses its serious concern at allegations, to which the State party did not provide information, that the “prisoner self-management committees” are sometimes responsible for violent abuse and ill-treatment of other prisoners in the course of disciplinary actions, frequently ignored or condoned by the General Department of Prisons (GDP). The Committee is further concerned that female and male detainees are at times placed together and that male prison staff continue to guard female detainees, due to the limited number of female prison staff (arts. 1, 2, 4, 11 and 16).

The State party should intensify its efforts to effectively alleviate the overcrowding in places where persons are deprived of their liberty, including police stations and prisons, and to improve the conditions in such places, including with respect to hygiene and food supply. To this end, the Committee recommends that the State party apply alternative measures to imprisonment and ensure sufficient budgetary allocations to develop and renovate the infrastructure of prisons and other detention facilities. Furthermore, the State party should clearly frame and regulate the function and role of the “ prisoner self-management committees ” and ensure that cases of abuse and ill-treatment by such bodies are investigated and perpetrators punished. In addition, the GDP officials ignoring or condoning such acts should be held accountable, with the alleged suspects being subjected to suspension or reassignment during the process of investigation. The Committee also requests updated information on the circumstances surrounding the deaths of Kong La, Heng Touch and Mao Sok as well as information on investigations, prosecutions and convictions arising from these cases.

The State party should also review current policies and procedures for the custody and treatment of detainees, including in police stations, ensure separation of female detainees from males and that female detainees be guarded by officers of the same gender, monitor and document incidents of sexual violence in detention, and provide the Committee with data thereon, disaggregated by relevant indicators. The Committee also recommends that the State party consider compiling a reliable and accurate profile of the prison population, including details as to the length of the sentence, the commitment of offence and the age of the offender, to help inform criminal justice policy decisions.

Social Affairs Centres

(20)The Committee notes the information and clarification provided by the delegation in respect of the Social Affairs Centres, including that the State party has agreed with UNICEF and the OHCHR Cambodia Country Office to conduct an assessment of the existing policies, procedures and practices in the referral, placement, management, rehabilitation and reintegration of children, women and vulnerable persons in Social Affairs Centres and Youth Rehabilitation Centres across the country. However, the Committee expresses its serious concern at continuing reports of round-ups by law enforcement officials in the streets and the subsequent holding of people, including sex workers, victims of trafficking, people who use drugs, homeless people, beggars, street children and mentally ill persons, in the Social Affairs Centres, against their will and without any legal basis and judicial warrant. In addition, the Committee notes with particular concern allegations of a consistent pattern of arbitrary detention and abuse in Prey Speu between late 2006 and 2008, including torture, rape, beatings, reported incidences of suicide, and even reported killings committed by social affairs guards against detainees, The Committee is further concerned at the lack of information as to any initiative on the part of the State party to undertake a thorough investigation into such allegations (arts. 2, 11 and 16).

The Committee urges the State party to put a complete end to any form of arbitrary and unlawful detention of persons, especially in Social Affairs Centres, including Prey Speu. The State party should ensure that all relevant governmental departments respect the right not to be arbitrarily detained on the basis of social status in the view of the Government and without any legal basis and judicial warrant. The State party should also ensure that officials/guards and others involved in arbitrary detention and abuse are immediately investigated and prosecuted for such acts and that redress is provided to victims.

The State party should, as a matter of urgency, conduct an independent investigation into the allegations of serious human rights violations, including torture, in Prey Speu between late 2006 and 2008. Furthermore, the Committee encourages the State party, in cooperation with relevant partners, to find sustainable and humane alternatives for disadvantaged and vulnerable groups, including persons living and working in the streets, and to provide such groups with the type of assistance they require.

Sexual violence, including rape

(21)The Committee expresses its serious concern that, according to the State party’s Neary Rattanak III Five Year Strategic Plan 2009–2013, violence against women remains widely prevalent in Cambodia with indications of increasing incidence of at least some forms of gender-based violence, particularly rape. The Committee is also concerned at reports from non-governmental sources about a growing number of rape reports, including against very young girls and gang rapes, that sexual violence and abuse particularly affect the poor, that women and children who are victims of such violence have limited access to justice, and that there is an acute lack of medical services and psychosocial support to such victims (arts. 1, 2, 4, 11, 13 and 16).

The State party should take effective measures to prevent and combat sexual violence and abuse against women and children, including rape. To this end, the State party should establish and promote an effective mechanism for receiving complaints of sexual violence and investigate such complaints, providing victims with psychological and medical protection as well as access to redress, including compensation and rehabilitation, as appropriate. The Committee requests the State party to provide statistics on the number of complaints of rape as well as information on investigations, prosecutions and convictions in such cases.

Human trafficking

(22)The Committee welcomes the information provided by the delegation on measures taken to repatriate and protect persons subjected to trafficking, the adoption, in 2008, of anti-trafficking legislation and the Second National Plan on Human Trafficking and Sex Trafficking, 2006–2010, the activities of the Department of Anti-Human Trafficking and Juvenile Protection of the Ministry of Interior as well as other legislative, administrative and police measures to combat trafficking. However, the Committee notes with serious concern reports that a high number of women and children continue to be trafficked from, through and within the country for purposes of sexual exploitation and forced labour. The Committee is also concerned at the lack of statistics provided by the State party, including the number of complaints, investigations, prosecutions and convictions of perpetrators of trafficking, and the lack on information on practical measures adopted to prevent and combat such phenomena, including medical, social and rehabilitative measures (arts. 1, 2, 4, 12 and 16).

The State party should intensify its efforts to prevent and combat trafficking in human beings, especially women and children, including by implementing the anti-trafficking legislation, providing protection for victims and ensuring their access to medical, social, rehabilitative and legal services, including counselling services, as appropriate. The State party should also create adequate conditions for victims to exercise their right to make complaints, conduct prompt, impartial and effective investigations into all allegations of trafficking and ensure that those who are found guilty of such crimes are punished with penalties appropriate to the nature of their crimes.

Children in detention

(23)The Committee welcomes the efforts made by the State party to reform its juvenile justice system, including the draft juvenile justice law and the establishment, in 2006, of an inter-ministerial working group on child justice. However, the Committee expresses its concern at reports of a high number of children in detention, and at the lack of alternatives to imprisonment. The Committee is also concerned that children are not always separated from adults in detention facilities (arts. 2, 11 and 16).

The State party should, as a matter of urgency, establish a separate juvenile justice system, adapted to the particular needs of juveniles, their status and special requirements. To this end, t he State party should expeditiously enact the draft Law on Juvenile Justice and ensure that this Law is in conformity with international standards, and develop corresponding guidelines and directives for judges, prosecutors and judicial police on the concept of a child - friendly justice system. The State party should further take all necessary measures to develop and implement a comprehensive system of alternative measures to ensure that deprivation of liberty of juveniles is used only as a measure of last resort, for the shortest possible time and in appropriate conditions. In addition, the State party should take the necessary measures to ensure that persons below 18 years of age are not detained with adults.

Refugees, non-refoulement

(24)While welcoming the State party’s adherence to the 1951 Convention relating to the Status of Refugees, the Committee expresses its concern at the lack of information on domestic legislation guaranteeing the rights of refugees and asylum-seeking persons, including unaccompanied children in need of international protection. It is also concerned at the absence of any legal provisions that would explicitly prohibit the expulsion, refoulement or extradition of a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. The Committee is further concerned that numerous individuals have not been afforded the full protection provided for by article 3 of the Convention in cases of expulsion, return or deportation. Such cases include the 674 Montagnard asylum-seekers who are no longer in the State party and theforcible repatriation of 20 Uighur asylum-seekers to China in December 2009, as well as the lack of information on any measures taken by the State party to follow up on their status (arts. 3, 12 and 13).

The State party should formulate and adopt domestic legislation guaranteeing the rights of refugees and asylum-seeking persons, including unaccompanied children in need of international protection. The State party should also formulate and adopt legal provisions to implement article 3 of the Convention into its domestic law. Under no circumstances should the State party expel, return or extradite a person to a State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or ill-treatment. The Committee requests the State party to ensure appropriate follow-up with regard to the status of the 674 Montagnard and 20 Uighur asylum-seekers and to provide the Committee with information as to these cases.

Training

(25)The Committee takes note of the information included in the State party’s report on training and awareness-raising programmes on human rights for law enforcement personnel, including the police and judicial police, judges and prosecutors. However, the Committee regrets the lack of information on targeted and practical training regarding the obligations under the Convention, notably on the prohibition of torture, the prevention of torture or investigation of alleged cases of torture, including on sexual violence, for these groups as well as penitentiary personnel. The Committee also regrets the lack of information on any training for police and other relevant officials in witness interviewing, witness protection, forensic methods and evidence gathering. Furthermore, the Committee is concerned at the lack of information on targeted training for all relevant personnel, such as forensic doctors and medical personnel dealing with detained persons, including methods to document physical and psychological sequelae of torture, as well as methods to ensure health-related and legal responses. The Committee is further concerned at the lack of information as to whether professional codes of ethics form part of such trainings, and if these include prohibition of torture etc (art. 10).

The State party should further develop and strengthen educational programmes, including in cooperation with NGOs, to ensure that all officials, including law enforcement and penitentiary personnel, are fully aware of the provisions of the Convention, that reported breaches, including cases of sexual violence, will not be tolerated and will be investigated, and that offenders will be prosecuted. Furthermore, police and other relevant officials should receive training in witness interviewing, witness protection, forensic methods and evidence gathering and all relevant personnel should receive specific training on how to identify signs of torture and ill-treatment, including those officials who will investigate and document these cases. Such training should include the use of the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). In addition, the State party should ensure that related professional codes of ethics and the importance of respecting such codes be made an integral part of training activities. Furthermore, the State party should assess the effectiveness and impact of its training/educational programmes.

Redress, including compensation and rehabilitation

(26)While noting that article 39 of the Constitution entitles citizens to claim for damage caused by State organs, social organs, and the staff of these concerned organs, the Committee is concerned at the lack of information and data on fair and adequate compensation awarded to victims of torture. The Committee is also concerned at the lack of information on the provision of treatment and social rehabilitation services, including medical and psychosocial rehabilitation, to all victims of torture (art. 14).

T he Committee underlines that it is the responsibility of the State to provide for redress to victims of torture and their families. To this end, t he State party should strengthen its efforts to provide these victims with redress, including fair and adequate compensation and as full rehabilitation as possible. The State party should further strengthen its efforts to improve the access to medical and psychological services for victims of torture, especially during and after imprisonment, and assure that they receive effective and prompt rehabilitation services; raise awareness on the consequences of torture and the need for rehabilitation for victims of torture among health and social welfare professionals in order to increase referrals of these victims from the primary health-care system to specialized services; and increase the capacity of national health agencies in providing specialized rehabilitation services, based on recommended international standards, to victims of torture, including their family members, specifically in the field of mental health.

(27)The Committee notes with concern that the Internal Rules of the ECCC only provide for moral and collective reparation, precluding individual financial compensation. While noting the existence of the Victims Support Section, the Committee is concerned that rehabilitation and psychosocial support to those testifying in the ECCC is largely provided by NGOs, with limited support from the State, and it regrets the very limited information provided on treatment and social rehabilitation services, including medical and psychosocial rehabilitation, provided to victims of torture under the Khmer Rouge Regime (art. 14).

The State party should strengthen its efforts to provide victims of torture under the Khmer Rouge Regime with redress, including fair and adequate compensation and as full rehabilitation as possible. To this end, the ECCC should amend its Internal Rules to permit reparation to victims consistent with article 14 of the Convention, including, as appropriate, individual financial compensation. Furthermore, the State party should provide information on redress and compensation measures ordered by the ECCC and provided to victims of torture, or their families. This information should include the number of requests made, the number granted, and the amounts ordered and actually provided in each case.

Coerced confessions

(28)The Committee expressed its concern at reports that the use of forced confessions as evidence in courts is widespread in the State party. The Committee is also concerned at the lack of information on any officials who may have been prosecuted and punished for extracting such confessions. (arts. 1, 2, 4, 10 and 15).

The State party should take the necessary steps to ensure inadmissibility in court of confessions obtained as a result of torture in all cases in line with the provisions of article 15 of the Convention. The Committee requests the State party to firmly prohibit admissibility of evidence obtained as a result of torture in any proceedings, and provide information on whether any officials have been prosecuted and punished for extracting such confessions as well as examples of cases that were set aside because of a confession having been coerced. Furthermore, the State party should ensure the provision of training to law enforcement officials, judges and lawyers with regard to identification and investigation of forced confessions.

National h uman rights institution

(29)The Committee notes with concern the absence in the State party of an independent national human rights institution in conformity with the Paris Principles (General Assembly resolution 48/134 of 20 December 1993) (art. 2).

The State party should expedite its efforts to establish an independent national human rights institution that conforms to the Paris Principles. The Committee requests the State party to ensure that the envisioned national human rights institution be mandated to protect and promote the human rights provisions of the Convention, and that adequate financial resources be provided for its independent operation. In this regard, the State party may wish to seek technical assistance from the OHCHR Cambodia Country Office.

National preventive mechanism

(30)The Committee takes note of the creation by Sub-decree, in August 2009, of an inter-governmental committee as a temporary body towards the establishment of a national preventive mechanism (NPM). However, the Committee notes with concern that the inter-governmental committee, consisting of senior officials and chaired by the Deputy Prime Minister and Minister of Interior, does not comply with the requirements of the Optional Protocol, in particular with regard to its independence and the lack of participation from civil society. The Committee is also concerned at the information provided by the delegation that the current NPM mandate does not provide for unannounced visits (art. 2).

The State party should take all necessary measures to e nsure that its NPM will be established in accordance with the Optional Protocol to the Convention. To this end, the State party should ensure that the NPM will be created by constitutional amendment or organic law and that it will be institutionally and financially independent and professional. The State party should also ensure that the law establishing the NPM will specify that the NPM will have the ability to make unannounced visits to all places where persons are or may be deprived of their liberty and conduct private interviews with such persons, and that this law will provide for a transparent selection procedure aimed at appointing independent members to the body.

The Committee encourages the State party to consider the publication of the report of the Subcommittee on Prevention of Torture, following its visit in December 2009.

Cooperation with civil society

(31)While noting the State party’s emphasis on working in partnership with NGOs, the Committee is concerned at the lack of information provided as to whether the draft law regulating NGOs might in any way hinder the operation and activities of civil society monitoring groups and thus their capacity to function effectively, including NGOs working to prevent and combat torture and ill-treatment (arts. 2, 11, 12 and 13).

The State party should ensure that civil society organizations, including NGOs, are not restricted with respect to their establishment and operations and that they are able to function independently of the Government. In particular, the Committee urges the State party to provide an enabling environment for the establishment and active involvement of NGOs in promoting the implementation of the Convention.

Data collection

(32)Despite the Committee’s requests for specific statistical information in the list of issues prior to reporting and the oral dialogue with the State party, the Committee regrets that such information was not provided. The absence of comprehensive or disaggregated data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment by law enforcement and prison personnel, trafficking, and domestic and sexual violence severely hampers the identification of many abuses requiring attention (arts. 2, 12, 13 and 19).

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention at the national level, disaggregated by gender, age and nationality, as well as information on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment, trafficking, and domestic and sexual violence, and outcomes of all such complaints and cases. The State party should, without delay, provide the Committee with the above-mentioned detailed information, including on the number of complaints of torture, assault and other ill-treatment that have been submitted since 2003, the date of the consideration of the previous State party ’ s report, as well as the number of investigations, prosecutions and convictions arising from such complaints .

(33)The Committee recommends that the State party consider making the declarations under articles 21 and 22 of the Convention.

(34)The Committee invites the State party to consider ratifying the core United Nations human rights treaties to which it is not yet a party, namely the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention on the Rights of Persons with Disabilities and the International Convention for the Protection of All Persons from Enforced Disappearance.

(35)The State party is encouraged to disseminate widely the reports submitted by Cambodia to the Committee and these concluding observations, in appropriate languages, through official websites, the media and NGOs.

(36)The Committee requests the State party to provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 12, 14, 16, 26 and 27.

(37)The Committee invites the State party to present its next periodic report in accordance with its reporting guidelines and to observe the page limit of 40 pages for the treaty-specific document. The Committee also invites the State party to submit an updated common core document in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee Meeting of the human rights treaty bodies, and to observe the page limit of 80 pages for the common core document. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(38)The State party is invited to submit its third periodic report by 19 November 2014.

50. Ecuador

(1)The Committee against Torture considered the combined fourth to sixth reports of Ecuador (CAT/C/ECU/4-6) at its 965th and 966th meetings (CAT/C/SR.965 and 966), held on 8 and 9 November 2010. At its 978th and 979th meetings (CAT/C/SR.978 and 979), held on 18 November 2010, the Committee adopted the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission by Ecuador of the combined fourth to sixth periodic reports in reply to the list of issues prior to the submission of reports (CAT/C/ECU/Q/4).

(3)The Committee appreciates the fact that the State party has accepted this new procedure for the presentation of periodic reports, which facilitates cooperation between the State party and the Committee. It also thanks the State party for including information on the various measures adopted in response to the concerns expressed in the previous concluding observations of the Committee (CAT/C/ECU/CO/3), as well as its replies to the letter of 11 May 2009 sent by the Rapporteur on follow-up to concluding observations.

(4)The Committee also appreciates the frank and open discussions it has enjoyed with the State party’s delegation and the additional information the latter provided during consideration of the report.

B. Positive aspects

(5)The Committee notes with satisfaction that since the consideration of its third periodic report the State party has ratified the following international instruments:

(a)Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (20 July 2010);

(b)International Convention for the Protection of All Persons from Enforced Disappearance (20 October 2009);

(c)Convention on the Rights of Persons with Disabilities and its Optional Protocol (3 April 2008).

(6)The Committee takes note of the efforts made by the State party to review its legislation in order to meet the recommendations of the Committee and improve its implementation of the conventions, including:

(a)The entry into force, on 20 October 2008, of the new Constitution of the Republic of Ecuador, which establishes the general framework for the protection of human rights, mainly in its Title II (Rights), the observance of which is strengthened by article 11.3 on the direct and immediate applicability of the rights and guarantees established in the Constitution and in international human rights instruments. The Committee welcomes in particular the provisions on:

(i)The prohibition of torture, enforced disappearance and cruel, inhuman and degrading treatment or punishment (art. 66.3 (c));

(ii)The inadmissibility of evidence obtained in violation of fundamental rights (art. 76.4);

(iii)The incorporation of new legal procedures for the protection of human rights, such as protective action (art. 88), habeas corpus (art. 89) and special protection measures (art. 94);

(iv)The trial of members of the armed forces and the national police by the judiciary (art. 160);

(v)The establishment of the Office of the Ombudsman as an independent judicial organ responsible for providing free legal aid to persons who cannot afford the services of a counsel (art. 191).

(b)Ruling No. 0002-2005-TC of the Constitutional Tribunal (now the Constitutional Court), published in Official Gazette No. 382-S of 23 October 2006, declaring the detención en firme procedure unconstitutional;

(c)Ruling No. 0042-2007-TC of the Constitutional Tribunal, published in Official Gazette No. 371 of 1 July 2008, declaring articles 145 and 147 of the National Security Act, which allow the trial of civilians by military courts for acts committed during states of emergency, unconstitutional; and the interpretative statement No. 001-08-SI-CC of the new Constitutional Court, published in Official Gazette No. 479 of 2 December 2008, confirming that the former military and police courts ceased to exist when the 2008 Constitution took effect.

(7)The Committee welcomes the efforts made by the State party to alter its policies and procedures in order to ensure greater protection for human rights and apply the Convention, in particular:

(a)The adoption, on 8 May 2008, of Ecuador’s Refugee Policy, in which it undertakes to meet the commitments assumed under the 1951 Convention relating to the Status of Refugees, its 1967 Protocol, the 1984 Cartagena Declaration and the 2004 Mexico Declaration and Plan of Action;

(b)The adoption in 2006 of the national plan to combat human trafficking, illegal trafficking of migrants, exploitation for sexual work or other purposes and prostitution of women, children and adolescents, child pornography and the corruption of minors;

(c)The approval of the Criminal Code Reform Act (Act No. 2005-2, Official Gazette No. 45 of 23 June 2005), which defines and punishes the offence of sexual exploitation of minors;

(d)The publication, on 7 June 2010, of the final report of the Truth Commission, giving the results of its investigations into the human rights violations that have occurred in Ecuador, mainly during the period between 1984 and 1988.

(8)The Committee is pleased to note that the State party has admitted tens of thousands of refugees and asylum-seekers, mostly Colombians fleeing from the armed conflict in their country. The State party estimates that there are some 135,000 persons in need of international protection who are present in the country, and had granted refugee status to over 45,000 by 26 November 2009.

(9)The Committee is grateful that the State party maintains an open invitation to all special procedure mandate holders of the Human Rights Council. Since consideration of the State party’s previous report, Ecuador has received the visits of seven special rapporteurs and working groups of the Council.

C. Principal subjects of concern and recommendations

Definition and offence of torture

(10)While noting that the 2008 Constitution, in article 66, paragraph 3 (c), prohibits torture and cruel, inhuman and degrading treatment or punishment, the Committee regrets that the offence of torture as defined in article 1 of the Convention (arts. 1 and 4) has not yet been entered in the State party’s Criminal Code.

The Committee reiterates its earlier recommendation (CAT/C/ECU/CO/3, para. 14) that the State party should ensure that torture is considered an offence in its domestic law and should adopt a definition of torture that includes all the elements contained in article 1 of the Convention. The State party should also ensure that such offences are made punishable by appropriate penalties which take into account their grave nature, in accordance with article 4, paragraph 2, of the Convention.

Guarantees of due process

(11)The Committee welcomes the measures adopted by the State party to ensure compliance with due process in accordance with article 77 of the Constitution. The rules adopted include the right for all detainees to obtain immediate access to a counsel and to undergo a medical examination, to contact a family member or any person of their choice, to be informed of their rights at the time of their arrest, and to appear before a judge within the time prescribed by law. In this respect, the Committee is concerned at the State party’s statement in its report (para. 85) that “before being taken to a prison facility or police cell, arrested persons are seen by the duty doctor or whoever is standing in for the duty doctor at a health clinic operated by the National Police or Office of the Public Prosecutor”. The Committee notes the reference by the State party’s delegation to the shortage of independent forensic experts (arts. 2 and 11).

The State party should guarantee the right of persons held in police custody to have access to an independent medical examination.

Protection of forensic physicians and other human rights defenders

(12)The Committee is appalled at and most vehemently condemns the murder on 6 July 2010 of Dr. Germán Antonio Ramírez Herrera, forensic expert specializing in the investigation of cases of torture and summary executions. According to reports, Dr. Ramírez Herrera received threats after documenting cases of torture and ill-treatment in the Quevedo Social Rehabilitation Centre. The Committee would also request that the State party afford adequate protection to the members of the national network of forensic experts and for all human rights defenders engaged in combating torture and impunity in Ecuador (arts. 2, 12, 13 and 16).

The State party should:

(a) Inform the Committee of the results of the investigations conducted into the murder of Dr. Ramírez Herrera as soon as the proceedings of the case have been made public;

(b) Initiate a programme for the protection of professionals who through their investigations are able to throw light on the facts of alleged cases of torture and ill-treatment.

Non-refoulement and access to a fair and expeditious asylum procedure

(13)The Committee welcomes the efforts made by the State party to respond adequately to the considerable number of persons in need of international protection present within the country (see para. 8 above). It appreciates in particular the launch of initiatives such as the Extended Register, which gave rapid access to procedures undertaken for the determination of refugee status for tens of thousands of Colombians in the most remote border areas. The Committee notes with concern, however, the content of Executive Decree No. 1471 of 3 December 2008, establishing as a requirement for the entry of Colombian citizens to Ecuadorian territory the presentation of a certificate of good conduct or “criminal record”, issued by the Department of National Security (DAS), the intelligence agency which comes under the authority of the executive branch of the Colombian Government. The discriminatory nature of this requirement has been pointed out by the Office of the Ombudsman, as well as by several international organizations, and was partially amended by Executive Decree No. 1522 of 7 January 2009, which excluded from the requirement minors, refugees legally recognized by Ecuador, air crews, governmental or local authorities, diplomats and members of international organizations. The Committee considers that obliging asylum-seekers to meet this requirement would force many persons in need of international protection to place their security at risk (art. 3).

Considering the considerable increase in the number of asylum-seekers in Ecuador in recent years, the Committee recommends that the State party:

(a) Pursue its efforts in conjunction with the Office of the United Nations High Commissioner for Refugees (UNHCR) to identify and protect refugees and asylum-seekers;

(b) Examine the conformity of the current legislation on asylum and immigration with the norms and principles of international human rights law, in particular the principle of non-discrimination. The State party should consider withdrawing the requirement for the submission of “ criminal records ” with asylum applications, which in the opinion of the Committee violates the principles of non-refoulement and confidentiality with respect to the rights of refugees.

Abuse and refoulement of asylum-seekers and refugees

(14)The Committee notes with great concern the deterioration in the situation on the northern border with Colombia stemming from the domestic conflict in that neighbouring country and the presence of groups involved in organized crime, as a result of which the State party has stepped up its military presence in the area. While it appreciates the serious difficulties the State party has to deal with in order to preserve public order in provinces on the border, the Committee is deeply concerned about the reports received of continual abuses and acts of violence against the civilian population, and in particular asylum-seekers and refugees of Colombian nationality, committed by illegal armed groups and members of the Ecuadorian and Colombian security forces (arts. 1–3, 10 and 16).

The Committee recommends that the State party:

(a) Adopt the necessary measures to guarantee the physical integrity of the civilian population in the provinces on the border with Colombia, including the refugees and asylum-seekers under its jurisdiction;

(b) Ensure that investigations are carried out into the murders and abuses committed in this region and that the perpetrators of such acts are brought before the courts;

(c) Continue mandatory in-service training programmes on human rights, asylum and migration for members of the State party ’ s armed and security forces, and give priority to those police and military personnel serving or due to serve in border areas;

(d) Conduct a periodic review of the contents of the Guide to Human Rights and Human Mobility for members of the State party ’ s armed and security forces.

(15)The Committee notes with deep concern the wealth of documentation received about acts of abuse and sexual assaults on female refugees and asylum-seekers, allegedly committed by members of the State security forces and the Ecuadorian armed forces. The Committee has received information on women and girls, most of whom are of Colombian nationality, who are sexually assaulted or compelled to have sexual relations under threat of expulsion. The Committee draws the attention of the State party to recent cases in which Colombian asylum-seekers were returned in June 2010 and the summary expulsion of another in October 2010 before a decision had been handed down on his appeal (arts. 1–4 and 16).

The State party should:

(a) Ensure that thorough investigations are carried out into abuses committed against refugees and asylum-seekers, and in particular women and girls;

(b) Ensure that such acts do not go unpunished and that the appropriate criminal, civil and administrative liabilities are determined;

(c) Take the measures necessary to ensure that persons under its jurisdiction are fairly treated at all stages of the asylum procedure, and in particular that they receive an effective, impartial and independent review of the decision to expel, return or deport them;

(d) Ensure compliance with and proper application by the police commissioner (the provincial police authority) and provincial migration police chiefs of the protocol applicable to deportation procedures and, failing this, hand down the appropriate penalties;

(e) Take the legislative or other measures necessary to facilitate the integration of refugees and asylum-seekers;

(f) Strengthen campaigns to raise awareness of the conflict in Colombia and the situation of persons who come to Ecuador in search of refuge, as well as awareness-raising measures that could help eliminate discriminatory or xenophobic attitudes.

Impunity for acts of torture and ill-treatment

(16)The Committee notes with concern that, according to the information provided by the State party in its periodic report (para. 181), the Internal Affairs Unit of the National Police has apparently submitted to the ordinary and police courts only 59 of the 299 complaints of alleged ill-treatment, torture or physical assault brought to its attention between May 2005 and December 2008. In addition, the State party’s periodic report indicates (paras. 164–166) that between 2003 and 2008 “only two trials for offences against individual freedom and torture have resulted in convictions”. The Committee is also concerned that, according to the information provided by the State party’s delegation, during the current year only five specific complaints have been lodged concerning ill-treatment in the State party’s prison system, all of them relating to centres for youth offenders. The Committee considers that these data contrast with the persistent reports and wealth of documentation received from other sources concerning cases of torture and ill-treatment of persons deprived of their liberty. At the same time, the Committee notes with interest Ministerial Decision No. 1435, issued by the Ministry of the Interior on 9 June 2010, instructing the Internal Affairs Unit that “even if the procedural deadline for investigation has expired, all cases involving human rights violations which are found to have been closed or filed without a proper investigation and/or those in which new elements come to light which potentially reveal civil, criminal or administrative liability on the part of members of the police forces shall be reopened and submitted to the appropriate authorities” (arts. 2, 12, 13 and 16).

The Committee recommends that the State party:

(a) Take appropriate measures to ensure that a prompt and impartial investigation is made into all complaints of torture or ill-treatment. In particular, such investigations should be the responsibility of an independent body, not under the authority of the police;

(b) Review the effectiveness of the internal complaints system available to detainees and consider establishing an independent complaints system for all persons deprived of their liberty;

(c) Duly bring to trial the alleged perpetrators of acts of torture or ill-treatment and, if they are found guilty, sentence them to penalties that are consistent with the seriousness of their acts;

(d) Provide the victims with proper compensation and focus its efforts on their fullest possible rehabilitation.

The Truth Commission

(17)The Committee takes note with satisfaction of the final report of the Truth Commission (see para. 7 (d) above), and in particular of the conclusions and recommendations reached after investigations into 118 cases of human rights violations committed in Ecuador between 1984 and 2008, several of which were collective in nature, and which concerned a total of 456 recognized victims. The final report confirms that 269 persons were unlawfully deprived of their liberty; 365 were tortured; 86 were sexually assaulted; 17 were victims of enforced disappearance; 68 were summarily executed; and 26 others were victims of “attempts on their life”. On 8 June 2010, the Truth Commission presented, with the support of the Ombudsman and in compliance with article 6 of Executive Decree No. 305 of 3 May 2007, a proposal concerning mechanisms to follow up on its recommendations, set forth in the “bill to provide reparation for victims and ensure the prosecution of serious human rights violations and crimes against humanity committed in Ecuador between 4 October 1983 and 31 December 2008”. The Committee also takes note of the establishment, by the Office of the Public Prosecutor, of a special unit to exercise jurisdiction over the 118 cases investigated by the Truth Commission as a prior step to their trial (arts. 2, 4, 12, 14 and 16).

The Committee requests the State party to submit full information on:

(a) The response to the 115 recommendations made in the final report of the Truth Commission concerning satisfaction, restitution, rehabilitation, compensation and assurances of non-repetition;

(b) The outcome of the examination by the National Assembly ’ s Commission on Justice and Structure of the State and the subsequent proceedings for the adoption of the bill for reparation of victims proposed by the Truth Commission;

(c) The outcome of any investigations and criminal trials, including the sentences handed down, that may result from the information submitted by the Truth Commission to the Office of the Public Prosecutor.

Violence against children, abuse and sexual violence against minors

(18)The Committee expresses its deepest concern about the numerous and consistent reports received describing the scale of the problem of abuse and sexual violence against minors in educational establishments in Ecuador. While it takes note of the existence of a plan to eradicate sexual offences in educational establishments, the Committee considers that there has not yet been an adequate institutional response by the State party, and that this is one reason why victims frequently prefer not to report instances of abuse. The Committee is particularly concerned about the information on cases in which the victims have allegedly identified their aggressor among the teaching staff. In this regard, the Committee is closely following the proceedings of the Paola Guzmán v. Ecuador case, which was accepted for consideration by the Inter-American Commission on Human Rights on 17 October 2008 (Report No. 76/18) after an examination of the complaint lodged by the plaintiffs concerning alleged violations of articles 4, 5, 8, 19, 24 and 25 of the American Convention on Human Rights. The Committee is also concerned that corporal punishment is legal within the home (arts. 1, 2, 4 and 16).

The Committee urges the State party, in view of the seriousness of the acts concerned, to:

(a) Step up its efforts to eradicate abuse and sexual violence against minors in schools;

(b) Take all measures necessary to investigate, bring to trial and punish the perpetrators of such acts;

(c) Make available resources to eliminate the persistent pattern of abuse and sexual violence against minors in educational establishments;

(d) Make complaints mechanisms available to victims and their families in educational establishments and other institutions;

(e) Strengthen awareness-raising and in-service training programmes on the subject for teaching staff;

(f) Guarantee that victims have full access to health services specialized in family planning and the prevention and diagnosis of sexually transmitted diseases. In addition, the State party should redouble its efforts to provide victims with redress, including fair and adequate compensation, and the fullest possible rehabilitation;

(g) Establish a consultative mechanism that involves civil society, including parents ’ associations;

(h) Expressly prohibit corporal punishment of children in the home.

Lynchings and the actions of the peasant defence networks

(19)While noting that the delegation of the State party has made it plain that the Ecuadorian State does not promote, support or back the activities of the “peasant defence networks”, the Committee is concerned at reports that such networks are active in the maintenance of security in rural areas and that some of their members have perpetrated abuses. It condemns the recent lynchings in the provinces of Pichincha, Los Ríos, Guayas, Azuay, Cotopaxi and Chimborazo (arts. 2 and 16).

The State party should:

(a) Take all necessary steps to improve civilian security in rural areas, ensuring that State security forces and bodies have a presence throughout the country;

(b) Ensure that incidents are investigated and that those responsible are brought to justice.

Indigenous justice

(20)The Committee takes note of the information from the State party on the preparation of a draft bill on cooperation and coordination between the indigenous and ordinary justice systems, setting out, in articles 4 and 19, the principle of reviews for constitutionality. It is nevertheless concerned that neither the periodic report nor the answers given by the delegation of the State party give sufficient information on how conflicts of jurisdiction between the two systems will be resolved (arts. 2 and 16).

The State party must take the steps necessary to ensure that conflicts of jurisdiction between the ordinary and indigenous justice systems are resolved through a procedure laid down by law that guarantees respect for fundamental rights and liberties, including the prohibition of torture and cruel, inhuman or degrading treatment or punishment.

Training

(21)The Committee takes note of the information in the report of the State party (paras. 82 to 88) on training schemes for members of the national police but regrets that so little information is available on the evaluation of those schemes and their effectiveness in reducing the incidence of torture and ill-treatment. The State party indicates in its report (para. 206) that the Permanent Commission for the Evaluation, Follow-up and Adjustment of Human Rights Operating Plans, in cooperation with international non-governmental organizations, carried out a project between February 2007 and 2008 on the implementation of the Istanbul Protocol. According to information received by the Committee, this is a project of the International Rehabilitation Council for Torture Victims (IRCT) designed and run by the Foundation for the Integral Rehabilitation of Victims of Violence (PRIVA), with European Union funds, which the Permanent Commission has backed (para. 10).

The State party should:

(a) Continue to provide training programmes so as to ensure that all public servants, in particular members of the police forces and other security workers, are fully aware of the provisions of the Convention, that [breaches] are not tolerated but investigated, and that the perpetrators are brought to trial;

(b) Assess the effectiveness and impact of training schemes and education on the incidence of torture and ill-treatment;

(c) Continue to support training on the use of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol).

Conditions in detention

(22)The Committee takes note of the information provided by the State party on the marked reduction in the numbers of people behind bars and on steps taken to deal with the problem of prison overcrowding, notably the introduction of a new inmate benefit calculation system with the reform of the Sentencing Implementation Code. It notes the reprieves granted in 2008 to 2,228 persons detained for being in possession of small quantities of narcotic or psychotropic drugs, and of 13 detainees in the terminal phases of illness. It also notes that since 2006 additional budgetary allocations have been made for the construction, expansion and outfitting of penitentiaries and remand facilities. The Committee is nevertheless concerned at the high levels of occupancy recorded at most detention facilities, mainly as a result of the slow processing of court cases, and reiterates its concern at persistent reports of poor health and hygiene conditions, a lack of staff, inadequate health-care services and a shortage of drinking water and food (art. 11).

The State party should:

(a) Make greater efforts to alleviate overcrowding in prisons, in particular by resorting to alternatives to custodial sentences, in order to reach its stated objective of resolving the problem of prison overcrowding within 18 months;

(b) Continue to put into effect plans to improve and expand the prison infrastructure;

(c) Take steps to improve staffing levels generally and increase the number of prison officials in particular;

(d) Augment the health-care resources available in penitentiary institutions and ensure that the medical assistance given to detainees is of high quality.

Free legal assistance

(23)The Committee notes the positive impact of efforts by the Public Defence Service to reduce the numbers of people held in pretrial detention – 501 on 31 August 2010. As stipulated in article 191 of the Constitution, the Public Defence Service “shall have human and material resources and working conditions equivalent to those of the Office of the Public Prosecutor” (arts. 2 and 11).

The State party should assign to the Public Defence Service the human, financial and material resources it needs to accomplish its objectives in order to extend the scope of its efforts and make the system more efficient.

Redress, including compensation and rehabilitation

(24)The Committee takes note of Decree No. 1317 of 9 September 2008 making the Ministry of Justice and Human Rights responsible for “coordinating the execution of sentences, precautionary measures, provisional measures, amicable settlements, recommendations and resolutions originating in the inter-American human rights system and in the universal system of human rights”. It regrets, however, the slowness of the State party in giving full effect to the amicable settlements and decisions reached in the inter-American human rights system and the shortage of information about the redress and compensation, including rehabilitation, awarded to victims of human rights violations.

The State party should ensure that the appropriate steps are taken to provide the victims of torture and ill-treatment with redress, including fair and adequate compensation, and the fullest possible rehabilitation.

In its next periodic report, the State party is asked to provide the Committee with statistics and full details of cases in which victims have obtained full redress, including investigation and punishment of the perpetrators, compensation and rehabilitation.

Optional Protocol and national preventive mechanism

(25)The Committee takes note of the legal and constitutional proceedings which will give rise to the establishment or designation of a national mechanism to prevent torture and other cruel, inhuman or degrading treatment or punishment in conformity with the Optional Protocol to the Convention.

The State party should accelerate the designation of the national preventive mechanism and ensure it has the resources it needs to pursue its mandate independently and effectively throughout the country.

(26)The Committee also recommends that the State party include in its next periodic report information on compliance with obligations incumbent under the Convention on Ecuadorian armed forces deployed abroad.

(27)The State party is urged to disseminate widely the report it has submitted to the Committee, and the Committee’s concluding observations, through official websites, the media and non-governmental organizations.

(28)The Committee requests the State party to provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 12, 14, 15, 18 and 22 of the present document.

(29)The Committee invites the State party to present its next periodic report in accordance with its reporting guidelines and to observe the page limit of 40 pages for the treaty-specific document. The Committee also invites the State party to submit a core document in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee Meeting of human rights treaty bodies, and to observe the page limit of 80 pages for such core documents. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(30)The State party is invited to submit its seventh periodic report by 19 November 2014 at the latest.

51. Ethiopia

(1)The Committee against Torture considered the initial report of Ethiopia (CAT/C/ETH/1) at its 957th and 958th meetings (CAT/C/SR.957 and 958), held on 2 and 3 November 2010, and adopted, at its 974th and 975th meetings (CAT/C/SR.974 and 975), the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the initial report of Ethiopia which generally follows the Committee’s guidelines for reporting. However, the Committee regrets that the report lacks statistical and practical information on the implementation of the provisions of the Convention and that it was submitted 14 years late, which prevented the Committee from conducting an analysis of the implementation of the Convention in the State party following its ratification in 1994.

(3)The Committee notes with appreciation that a high-level delegation from the State party met with the Committee during its forty-fifth session, and also notes with appreciation the opportunity to engage in a constructive dialogue covering many areas under the Convention.

B. Positive aspects

(4)The Committee welcomes the efforts and progress made by the State party since the downfall of the military regime in 1991, including a process of legislative reform designed to combat torture and other cruel, inhuman or degrading treatment or punishment.

(5)The Committee welcomes the fact that, in the period since the entry into force of the Convention for the State party in 1994, the State party has ratified or acceded to the following international and regional instruments:

(a)The Convention on the Rights of Persons with Disabilities, in 2010;

(b)The African Charter on Human and Peoples’ Rights, in 1998.

(6)The Committee notes the efforts undertaken by the State party to reform its legislation 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 particular:

(a)The adoption in 1994 of a Federal Constitution which prohibits all forms of torture and other cruel, inhuman or degrading treatment or punishment, provides for humane treatment of persons deprived of their liberty, and bars the application of the statute of limitation to crimes such as torture; and

(b)The adoption in 2004 of the revised Criminal Code which criminalizes all acts of torture and cruel, inhuman or degrading treatment or punishment, sexual violence and harmful traditional practices.

(7)The Committee notes the adoption by the State party of specific directives and regulations guiding the conduct of law enforcement officers, the breach of which entails disciplinary sanctions, dismissal or criminal prosecution:

(a)The Federal Prosecutor Administration Council of Ministers Regulations No. 44/1998;

(b)The Federal Police Commission Administration Regulations No. 86/2003;

(c)The Federal Wardens Administration Council of Ministers Regulations No. 137/2007;

(d)The Treatment of Federal Prisoners Council of Ministers Regulations No. 138/2007; and

(e)The Defence Forces Administration Directive/Regulation.

(8)The Committee notes with appreciation that the State party was able to submit its overdue reports to United Nations human rights treaty bodies under a joint treaty reporting project of the Ministry of Foreign Affairs, the Ethiopian Human Rights Commission and the Office of the United Nations High Commissioner for Human Rights.

C. Principal subjects of concern and recommendations

Definition of torture

(9)The Committee notes that the Federal Constitution of Ethiopia prohibits torture and that article 424 of the revised Criminal Code contains a definition of the “use of improper methods”. However, the Committee is concerned that this definition is more limited in scope than the definition of torture in article 1 of the Convention, as it covers only some of the purposes envisaged in article 1 and applies only to acts committed in the performance of duties by public servants charged with the arrest, custody, supervision, escort or interrogation of a person under suspicion, arrest, detention or summoned to appear before a court or serving a sentence. The Committee notes that acts of torture falling outside the definition in article 424 of the revised Criminal Code are punishable only under the offence of “abuse of power”, although the Convention forms part of the domestic law in Ethiopia (arts. 1 and 4).

The State party should include torture as an offence in its Criminal Code, which must be punishable by appropriate penalties taking into account its grave nature, and incorporate a definition of torture that covers all of the elements contained in article 1 of the Convention. By naming and defining the crime of torture in accordance with the Convention and distinct from other crimes, the Committee considers that States parties will directly advance the Convention ’ s overarching aim of preventing torture by, inter alia, alerting everyone, including perpetrators, victims and the public to the special gravity of the crime of torture, and by improving the deterrent effect of the prohibition itself.

Widespread use of torture

(10)The Committee is deeply concerned about numerous, ongoing and consistent allegations concerning the routine use of torture by the police, prison officers and other members of the security forces, as well as the military, in particular against political dissidents and opposition party members, students, alleged terrorist suspects and alleged supporters of insurgent groups such as the Ogaden National Liberation Front (ONLF) and the Oromo Liberation Front (OLF). It is concerned about credible reports that such acts frequently occur with the participation, at the instigation or with the consent of commanding officers in police stations, detention centres, federal prisons, military bases and in unofficial or secret places of detention. The Committee also takes note of consistent reports that torture is commonly used during interrogation to extract confessions when the suspect is deprived of fundamental legal safeguards, in particular access to legal counsel (art. 1, 2, 4, 11 and 15).

The Committee urges the State party to take immediate and effective measures to investigate, prosecute and punish all acts of torture and to ensure that torture is not used by law enforcement personnel, including by unambiguously reaffirming the absolute prohibition of torture and publicly condemning practices of torture, especially by the police, prison officers and members of the Ethiopian National Defense Force (ENDF), 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 will be subject to criminal prosecution and appropriate penalties.

Impunity for acts of torture and ill-treatment

(11)The Committee is deeply concerned at numerous consistent reports about the State party’s persistent failure to investigate allegations of torture and prosecute perpetrators, including members of ENDF and military or police commanders. In this regard, it notes the absence of information on cases where soldiers and police or prison officers were prosecuted, sentenced or subjected to disciplinary sanctions for having committed acts or torture or ill-treatment. The Committee is also concerned about the reported exercise of police functions by ENDF in the Somali Regional State and by private militia groups (arts. 2, 4, 12, 13 and 16).

The State party should ensure that all allegations of torture and ill-treatment are promptly and impartially investigated, and that the perpetrators are prosecuted and convicted in accordance with the gravity of the acts, as required by article 4 of the Convention, without prejudice to appropriate disciplinary actions and sanctions.

The State party should ensure that law enforcement functions are exercised by the police rather than ENDF, including in areas of armed conflict where no state of emergency has been declared. The State party should prevent the circumvention by private militia groups of legal safeguards and remedies against torture and cruel, inhuman or degrading treatment or punishment.

Fundamental legal safeguards

(12)The Committee is seriously concerned about information on the State party’s failure in practice to afford all detainees with all fundamental legal safeguards from the very outset of their detention. Such safeguards comprise the right of detainees: to be informed of the reasons for their arrest, including of any charges against them; to have prompt access to a lawyer and, when needed, legal aid and an independent medical examination, if possible by a doctor of their choice; to notify a relative; to be brought promptly before a judge; and to have the lawfulness of their detention reviewed by a court, in accordance with international standards. In this respect, the Committee is concerned that, under article 19 (3) of the State party’s Constitution, the maximum period of 48 hours within which anyone arrested or detained on a criminal charge must be brought before a judge “shall not include a reasonable time taken in the journey to a court of law” and that, under article 59 (3) of the Criminal Procedure Code, remand in custody may be repeatedly prolonged for periods of 14 days each time. The Committee also notes with concern reports about the inadequacy of legal aid services provided by the Public Defenders Office and about frequent non-compliance by police officers with court orders to release suspects on bail (arts. 2, 12, 13, 15 and 16).

The State party should take prompt and effective measures to ensure that all detainees are, in practice, afforded all fundamental legal safeguards from the very outset of their detention. These include, in particular, the rights of detainees: to be informed of the reasons for their arrest, including of any charges against them; to have prompt access to a lawyer and, when needed, legal aid and an independent medical examination, if possible by a doctor of their choice; to notify a relative; to be brought promptly before a judge; and to have the lawfulness of their detention reviewed by a court, in accordance with international standards. The State party should also consider amending article 19 (3) of its Constitution and article 59 (3) of its Criminal Procedure Code, with a view to ensuring that anyone arrested or detained on a criminal charge is brought promptly before a judge and preventing prolonged remand in custody, respectively.

The Committee recommends that the State party provide mandatory training to police officers on the rights of detainees, ensure that court orders to release suspects on bail are strictly enforced, and strengthen the capacity of the Public Defenders Office to provide legal aid services, as well as the quality of such services.

Monitoring and inspection of places of deprivation of liberty

(13)The Committee notes the information provided by the State party that regular inspections and evaluations of detention and prison facilities and other places of deprivation of liberty are conducted by the prison management and Parliamentarians, as well as by the Ethiopian Human Rights Commission and non-governmental organizations (NGOs) such as “Justice For All – Prison Fellowship Ethiopia”. However, the Committee is concerned about the lack of implementation of the recommendations contained in the 2008 Correctional Facilities Monitoring Visit Report of the Ethiopian Human Rights Commission, and notes the lack of information about any unannounced visits to places of deprivation of liberty by independent mechanisms. The Committee is seriously concerned that, contrary to the information provided in the State party’s report (paras. 21 and 56), the International Committee of the Red Cross has no access to ordinary detention centres and prisons and was expelled from the Somali Regional State in 2007 (arts. 2, 11 and 16).

The Committee calls upon the State party to establish an effective independent national system to monitor and inspect all places of deprivation of liberty and to follow up on the outcome of such systematic monitoring. It should strengthen the mandate and encourage the Ethiopian Human Rights Commission (EHRC) to undertake unannounced visits to prisons, police stations and other places of detention, and implement the recommendations contained in the Commission ’ s 2008 Correctional Facilities Monitoring Visit Report. The State party should also strengthen its cooperation with and support to NGOs to enable them to independently monitor the conditions in places of deprivation of liberty. In addition, the State party should grant the International Committee of the Red Cross and other independent international mechanisms access to prisons, detention centres and any other places where persons are deprived of their liberty, including in the Somali Regional State.

The State party is requested to include in its next periodic report detailed information on the place, time and periodicity of visits, including unannounced visits, to places of deprivation of liberty and on the findings and the follow-up on the outcome of such visits.

Anti-terrorism measures

(14)The Committee is concerned about provisions of the Anti-terrorism Proclamation No. 652/2009 which unduly restrict legal safeguards against torture and ill-treatment for persons suspected or charged with a terrorist or related crime, in particular:

(a)The broad definitions of incitement to terrorism and of terrorist acts and related crimes (arts. 2 to 7 of the Proclamation);

(b)The broad powers of the police to arrest suspects without a court warrant (art. 19);

(c)The admissibility in court in terrorism cases of hearsay and indirect evidence and confessions of suspects of terrorism in writing or in recorded form (art. 23), the permitted use of anonymous witnesses (art. 32), and other procedural provisions undermining the rights of defence; and

(d)The determination of the status of a prisoner, captured by the Defence Forces during war, as a prisoner of war or other by the Primary Military Court rather than an ordinary court (art. 31) (arts. 2 and 16).

The State party should ensure respect for fundamental legal safeguards and take all necessary measures to ensure that the provisions of the Anti-terrorism Proclamation No. 652/2009 are compatible with the provisions of the Convention, in particular that no exceptional circumstances whatsoever can be invoked as a justification for torture.

Extrajudicial killings, enforced disappearances and arbitrary arrests and detention

(15)The Committee is gravely concerned about numerous allegations of extrajudicial killings by security forces and ENDF, particularly in the Somali, Oromiya and Gambella Regional States, of civilians alleged to be members of armed insurgent groups. It is also gravely concerned at reports about high numbers of disappearances, as well as about the widespread practice of arrests without a warrant and arbitrary and prolonged detention without charges and judicial process of suspected members or supporters of insurgent groups and political opposition members. The Committee stresses that arrests without a warrant and the lack of judicial oversight on the legality of detention can facilitate torture and ill-treatment (arts. 2 and 11).

The State party should take effective steps to investigate promptly and impartially all allegations of involvement of members of security forces and ENDF in extrajudicial killings and other serious human rights violations in different parts of the country, in particular in the Somali, Oromiya and Gambella Regional States.

The State party should take all necessary measures to counter enforced disappearances and the practice of mass arrest without a warrant and arbitrary detention without charges and judicial process. The State party should take all appropriate steps to ensure the application of relevant legislation, to reduce further the duration of detention before charges are brought. The State party is requested to provide detailed information on any investigations, and on their outcome, into reported cases of disappearances.

Rape and other forms of sexual violence in the context of armed conflict

(16)The Committee is concerned about reports of rape and other forms of sexual violence against women and girls allegedly committed by members of the security forces and ENDF in the context of armed conflict, in particular in the Somali Regional State (arts. 2, 12, 13 and 14).

The Committee calls on the State party to investigate, prosecute and punish members of the security forces and ENDF responsible for rape and other forms of sexual violence in the context of armed conflict. The State party should take immediate steps to adequately compensate and rehabilitate the victims of such violence.

Investigations

(17)Notwithstanding the explanations provided by the State party during the dialogue, the Committee continues to be concerned at numerous and consistent reports about:

(a)The lack of a full investigation of the arrest of 3,000 students at Addis Ababa University in April 2001, many of whom were reportedly ill-treated at the Sendafa police camp;

(b)The prosecution and sentencing of only a small number of low-ranking army officials involved in the killings and torture, including rape, of hundreds of Anuak in Gambella town in December 2003 and the State party’s failure to investigate the subsequent killings, torture and rape of Anuak in the Gambella Regional State in 2004;

(c)The absence of an independent and impartial investigation of, and the lack of prosecutions and sentences for, the use of lethal force by members of the security forces during the post-election riots in 2005, when 193 civilians and 6 police officers were killed; and

(d)The lack of an independent and impartial investigation into the extrajudicial killings, torture, including rape, other forms of sexual violence, as well as arbitrary arrests by ENDF during its counter-insurgency campaign against ONLF in the Somali Regional State in 2007 (arts. 12 and 14).

The State party should urgently institute independent and impartial investigations of the above incidents in order to bring the perpetrators of violations of the Convention to justice. The Committee recommends that such investigations be undertaken by independent experts to examine all information thoroughly, reach conclusions as to the facts and measures taken and provide adequate compensation, including the means for as full rehabilitation as possible, to the victims and their families. The State party is requested to provide the Committee with detailed information on the outcome of those investigations in its next periodic report.

Complaint mechanism

(18)Notwithstanding the information provided in the State party’s report on the possibility for prisoners and detainees to present complaints to the prison administration at various levels, e.g., by using suggestion boxes, as well as to the courts, the federal crime investigation department and the Ethiopian Human Rights Commission, the Committee regrets the lack of a dedicated, independent and effective complaint mechanism for receiving complaints and conducting prompt and impartial investigations into allegations of torture, in particular of prisoners and detainees, and for ensuring that those found guilty are appropriately punished. The Committee also notes the absence of information, including statistics, on the number of complaints, investigations, prosecutions and sanctions imposed on perpetrators of torture and ill-treatment, at both the penal and disciplinary levels (arts. 2, 12, 13 and 16).

The State party should take urgent and effective measures to establish a specifically dedicated, independent and effective complaint mechanism to receive and ensure prompt and impartial investigations into all allegations of torture and ill-treatment committed by law enforcement, security, military and prison officials, and to initiate the prosecution of perpetrators. In particular, such investigations shall not be undertaken by or under the authority of the police or military, but by an independent body. The State party should ensure in practice that complainants are protected against any ill-treatment or intimidation that could arise as a consequence of their complaint or any evidence given. The Committee requests the State party to clarify whether acts of torture and ill-treatment are subject to ex officio investigation and prosecution and to provide information, including statistics, on the number of complaints filed against public officials on torture and ill-treatment, as well as information about the results of the proceedings, at both the penal and disciplinary levels. This information should be disaggregated by sex, age and ethnicity of the individual bringing the complaints and indicate which authority undertook the investigation.

Refugees and asylum-seekers

(19)While acknowledging the State party’s generous policy to admit and grant permission to stay to a significant number of nationals from Eritrea, Somalia and Sudan, the Committee notes with concern that decisions taken by the National Intelligence and Security Service (NISS) denying refugee status or ordering deportation can only be appealed to the Grievance Hearing Committee or the Appeal Hearing Council, respectively, both of which are composed of representatives of various Government departments. The Committee also notes with concern that the State party has not acceded to the Convention relating to the Status of Stateless Persons or to the Convention on the Reduction of Statelessness (arts. 2, 3, 11 and 16).

The State party should ensure that foreign nationals whose refugee or asylum applications have been rejected by the National Intelligence and Security Service (NISS) can appeal such decisions and deportation orders against them to court. The Committee recommends that the State party consider becoming a party to the Convention relating to the Status of Stateless Persons and to the Convention on the Reduction of Statelessness.

Abductions

(20)The Committee is concerned at reports that, under the pretext of fighting terrorism, the State party has allegedly abducted terrorism suspects from other countries, including Somalia, in breach of the Convention (art. 3).

The State party should refrain from abducting terrorism suspects from other countries where they may enjoy the protection of article 3 of the Convention. The State party should allow for an independent investigation into allegations of such abductions, in particular when followed by secret detention and torture in the State party, and inform the Committee of the outcome of such investigation in its next periodic report.

Training

(21)The Committee takes note of the information on training, seminars and courses on human rights for judges, prosecutors, police and prison officers and soldiers included in the State party’s report and provided during the oral presentation. At the same time, it notes with concern the information in the report (para. 14) concerning the lack of awareness about the Convention on the part of law enforcement officials, the prevailing view that a certain degree of coercion is a necessary means of interrogation and the lack of forensic expertise and skills and knowledge on adequate investigation techniques in the State party (art. 10).

The State party should further develop and strengthen educational programmes to ensure that all officials, including j udges, law enforcement, security, army, intelligence and prison officials are fully aware of the provisions of the Convention, especially the absolute prohibition of torture, and of the fact that breaches of the Convention will not be tolerated and will be promptly and impartially investigated, and that offenders will be prosecuted. Furthermore, all relevant personnel, including medical personnel, should receive specific training on how to identify signs of torture and ill-treatment, including training on the use of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), published by the United Nations in 2004. In addition, the State party should assess the effectiveness and impact of such training/educational programmes.

Judicial proceedings and independence of the judiciary

(22)While noting that the Constitution provides for an independent judiciary, the Committee expresses concern about reports on frequent interference by the executive branch with the judicial process, in particular in criminal proceedings, and reported cases of harassment, threats, intimidation and dismissal of judges resisting political pressure, refusing to admit confessions extracted by torture or ill-treatment in court proceedings, and acquitting or ordering the release of defendants charged with terrorist or State crimes. The Committee is also concerned at reports about unfair court proceedings in politically sensitive cases, including violations of the right of defendants to have adequate time for the preparation of their defence, access to a lawyer and defence witnesses examined under the same conditions as witnesses of the prosecution, and to appeal their sentence (arts. 2, 12 and 13).

The State party should take the necessary measures to ensure the full independence and impartiality of the judiciary in the performance of its duties in conformity with international standards, notably the Basic Principles on the Independence of the Judiciary. In this respect, the State party should ensure that the judiciary is free from any interference, in particular from the executive branch, in law and in practice. The State party should promptly and impartially investigate and prosecute cases where judges were harassed, intimidated or unfairly dismissed, take effective measures, including training on the State party ’ s obligations under the Convention, to strengthen the role of judges and prosecutors with regard to the initiation of investigation and prosecution of cases of torture and ill-treatment and the legality of detention, and encourage judges and prosecutors to observe fair trial guarantees, in accordance with relevant international standards, including in political cases.

(23)The Committee notes with concern that the jurisdiction of Sharia and customary law courts in family law matters, although subject to the consent of both parties, may expose women victims of domestic or sexual violence to undue pressure by their husbands, families and to have their case adjudicated by customary or religious rather than by ordinary courts (arts. 2 and 13).

The State party should provide for effective procedural safeguards to ensure the free consent of parties, in particular women, to have their case adjudicated by Sharia or customary courts, and ensure that all decisions taken by those courts can be appealed to higher courts (courts of appeal and Supreme Court).

Imposition of the death penalty

(24)While noting the information provided by the State party concerning the de facto non-application of the death penalty and the “extreme reluctance” of the courts to impose such penalty and “only in cases of grave crimes and on exceptionally dangerous criminals … as a punishment for completed crimes and in the absence of extenuating circumstances” (see common core document (HRI/CORE/ETH/2008), paras. 86 and 87), the Committee notes with concern reports about the recent increase in death sentences. In this regard, it refers to the so-called “Ginbot 7” case where the Federal High Court sentenced to death five officials of the former opposition party Coalition for Unity and Democracy, four of them (Andargachew Tsigie, Berhanu Nega, Mesfin Aman and Muluneh Iyoel Fage) in absentia and one (Melaku Teffera Tilahun) in his presence, after allegedly having subjected him to torture, for “conspiring to undermine the constitution and violently overthrow the government”. The Committee stresses that the conditions of detention of convicted prisoners on death row may amount to cruel, inhuman or degrading treatment, in particular owing to the excessive length of time on death row (arts. 2 and 16).

The Committee recommends that the State party consider ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights on the abolition of the death penalty. The Committee also recommends that the State party consider extending its de facto moratorium on the execution of the death penalty and commuting death sentences for prisoners on death row. The State party should ensure that all persons on death row are afforded the protection provided by the Convention and are treated humanely. The Committee requests the State party to indicate the current number of persons on death row, disaggregated by sex, age, ethnicity and offence.

National human rights institution

(25)The Committee notes with interest the information provided by the State party concerning the mandate of the Ethiopian Human Rights Commission (EHRC) to undertake visits to places of deprivation of liberty and to examine complaints about alleged violations of human rights, including those protected by the Convention. The Committee notes the lack of follow-up on the suggestions and recommendations made by EHRC in its Correctional Facilities Monitoring Visit Report and the limited powers of EHRC to initiate prosecutions in cases where torture or ill-treatment is found to have occurred (arts. 2, 12, 13 and 16).

The State party should strengthen the role and mandate of the Ethiopian Human Rights Commission (EHRC) to undertake regular and unannounced visits to places of deprivation of liberty and to issue independent findings and recommendations on such visits. It should also give due weight to the conclusions of EHRC on individual complaints, including by communicating such conclusions to the public prosecutor ’ s office in cases where torture or ill-treatment is found to have occurred. The State party is requested to provide information, including statistical data, on the complaints examined by EHRC in relation to alleged torture and other cruel, inhuman or degrading treatment or punishment, and to indicate whether any such cases have been submitted to the competent authorities for prosecution. Furthermore, the State party should intensify its efforts to ensure that EHRC is in full compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles).

Conditions of detention

(26)The Committee notes the State party’s efforts to reflect the Standard Minimum Rules for the Treatment of Prisoners, the Basic Principles for the Treatment of Prisoners, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the Code of Conduct for Law Enforcement Officials in its legislation and administrative regulations for the treatment of prisoners and detainees (see State party report, paras. 54–55). However, the Committee remains seriously concerned about consistent reports of overcrowding, poor hygienic and sanitary conditions, lack of sleeping space, food and water, the absence of adequate health care, including for pregnant women and HIV/AIDS and tuberculosis patients, the absence of specialized facilities for prisoners and detainees with disabilities, co-detention of juveniles with adults, and inadequate protection of juvenile prisoners and children detained with their mothers from violence in prisons and places of detention in the State party (arts. 11 and 16).

The State party should take urgent measures to bring the conditions of detention in police stations, prisons and other places of detention into line with the Standard Minimum Rules for the Treatment of Prisoners, as well as with other relevant standards, in particular by:

(a) Reducing prison overcrowding, including by considering non-custodial forms of punishment and, in the case of juveniles, by ensuring that detention is only used as a measure of last resort;

(b) Improving the quality and quantity of food and water as well as the health care provided to detainees and prisoners, including children, pregnant women and HIV/AIDS and tuberculosis patients;

(c) Improving the conditions of detention for minors and ensuring that they are detained separately from adults, in accordance with international standards for the administration of juvenile justice, and enabling incarcerated and detained mothers to stay together with their dependent infants, if appropriate beyond the age of 18 months;

(d) Ensuring that sufficient adequate facilities are available for prisoners and detainees with disabilities;

(e) Strengthening the judicial supervision of conditions of detention.

Children in detention

(27)The Committee is concerned that, under articles 52, 53 and 56 of the revised Criminal Code, criminal responsibility starts at the age of 9 years and offenders above the age of 15 years are subject to the ordinary penalties applicable to adults and can be kept in custody with adult criminals (arts. 2, 11 and 16).

The State party should raise the minimum age of criminal responsibility according to international standards and classify persons above 15 and under 18 years of age as “ young persons ” who are subject to the lighter penalties in articles 157–168 of the Criminal Code and may not be kept in custody with adult criminals. It should ensure that its juvenile justice system is in conformity with international standards such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules).

Corporal punishment of children

(28)The Committee notes with concern that, while corporal punishment is prohibited in schools, childcare institutions and as a penal or disciplinary sanction in the penal system, it is not prohibited as a disciplinary measure in the home or alternative care settings for purposes of “proper upbringing”, under article 576 of the revised Criminal Code (2005) and article 258 of the revised Family Code (2000) (arts. 2, 10 and 16).

The State party should consider amending its revised Criminal Code and Family Code, with a view to prohibiting corporal punishment in child-rearing in the home and alternative care settings and raise public awareness on positive, participatory and non-violent forms of discipline.

Deaths in custody

(29)The Committee expresses its concern about the markedly high number of deaths in custody, while taking note of the State party’s explanation that such deaths are caused by the health condition of detainees rather than by the conditions of detention (arts. 12 and 16).

The State party should promptly, thoroughly and impartially investigate all incidents of death in custody and, in cases of death resulting from torture, ill-treatment or wilful negligence, prosecute those responsible. It should also provide adequate health care to all persons deprived of their liberty. The State party should provide the Committee with information on any such cases, ensure independent forensic examinations and accept their findings as evidence in criminal and civil proceedings.

Redress, including compensation and rehabilitation

(30)The Committee notes the information on modalities of compensation for victims of torture and ill-treatment by the State party contained in the State party’s report (para. 60) and its common core document (paras. 184–186). It nevertheless regrets the lack of information on civil court decisions awarding compensation to victims of torture and ill-treatment, or their families, and the amounts awarded in such cases. The Committee also regrets the lack of information on treatment and social rehabilitation services and other forms of assistance, including medical and psychosocial rehabilitation, provided to victims (art. 14).

The State party should strengthen its efforts to provide victims of torture and ill-treatment with redress, including fair and adequate compensation, and as full rehabilitation as possible. Furthermore, the State party should provide information on redress and compensation measures ordered by the courts and provided to victims of torture, or their families. This information should include the number of requests made and of those granted and the amounts ordered and actually provided in each case. In addition, the State party should provide information on any ongoing rehabilitation programmes for victims of torture and ill-treatment and allocate adequate resources to ensure the effective implementation of such programmes.

Coerced confessions

(31)While noting that constitutional guarantees and provisions of the Criminal Procedure Code prohibit the admissibility of evidence obtained through torture, the Committee is concerned at reports of cases of confessions obtained through torture and the lack of information on any officials who may have been prosecuted and punished for extracting such confessions (arts. 2 and 15).

The State party should take the steps necessary to ensure that, in practice, confessions obtained under torture are not admitted in court proceedings, including in cases falling under the Anti-terrorism Proclamation, in line with relevant domestic legislation and the provisions of article 15 of the Convention. The Committee requests the State party to submit information on the application of the provisions prohibiting admissibility of evidence obtained through torture, and to indicate whether any officials have been prosecuted and punished for extracting such confessions.

Violence against women and harmful traditional practices

(32)The Committee takes note of the criminalization of harmful traditional practices, such as female genital mutilation, early marriage and abduction of girls for marriage in the revised Criminal Code, and the information given by the State party during the dialogue concerning the establishment of special prosecution teams within the Ministry of Justice and in regional justice departments to investigate cases of rape and other forms of violence against women and children. However, the Committee is concerned about the lack of implementation of criminal law provisions criminalizing violence against women and harmful traditional practices. It is particularly concerned that the revised Criminal Code fails to criminalize spousal rape. It also regrets the lack of information on complaints, prosecutions and the sentences imposed on perpetrators, as well as on victim assistance and compensation (arts. 1, 2, 12, 13 and 16).

The State party should strengthen its efforts to prevent, combat and punish violence against women and children and harmful traditional practices, in particular in rural areas. The State party should consider amending its revised Criminal Code, with a view to criminalizing spousal rape. It should also provide victims with legal, medical, psychological and rehabilitative services, as well as with compensation, and create adequate conditions for them to report incidents of harmful traditional practices and domestic and sexual violence without fear of reprisal or stigmatization. The State party should provide training to judges, prosecutors, police, and community leaders on the strict application of the revised Criminal Code and on the criminal nature of harmful traditional practices and of other forms of violence against women. The Committee also requests the State party to provide in its next periodic report updated statistical data on the number of complaints, investigations and prosecutions and on the sentences imposed on perpetrators, as well as on victim assistance and compensation.

Human trafficking

(33)The Committee expresses concern about the low prosecution and conviction rates in relation to child abduction and human trafficking, in particular internal trafficking of women and children for forced labour and sexual and other forms of exploitation. It is also concerned at the general lack of information on the extent of trafficking in the State party, including the number of complaints, investigations, prosecutions and convictions of perpetrators of trafficking, and on the practical measures taken to prevent and combat human trafficking (arts. 1, 2, 12 and 16).

The State party should increase its efforts to prevent and combat, in particular, child abduction and internal trafficking of women and children and provide protection for victims and ensure their access to legal, medical, psychological and rehabilitative services. In this regard, the Committee recommends that the State party adopt a comprehensive strategy to combat trafficking in human beings and its causes. The State party should also investigate all allegations of trafficking, and ensure that perpetrators are prosecuted and punished with penalties appropriate to the nature of their crimes. The State party is requested to provide information on measures taken to provide assistance to victims of trafficking and statistical data on the number of complaints, investigations, prosecutions and sentences in relation to trafficking.

Restrictions on NGOs working in the field of human rights and the administration of justice

(34)The Committee expresses serious concern about reliable information on the negative impact of Proclamation No. 621/2009 for the Registration of Charities and Societies, which bars foreign NGOs and those which receive more than 10 per cent of their funds from foreign sources from working on human rights and the administration of justice (Proclamation, art. 14), on the capacity of local human rights NGOs to facilitate prison visits and to provide legal aid and other assistance or rehabilitation to victims of torture and ill-treatment. The Committee notes with concern that local human rights NGOs previously active in those areas, including the Ethiopian Human Rights Council, the Ethiopian Women Lawyers Association, the Ethiopian Bar Association and the Rehabilitation Centre for Victims of Torture in Ethiopia, are no longer fully operational (arts. 2, 11, 13 and 16).

The Committee calls on the State party to acknowledge the crucial role of NGOs in preventing, documenting and assisting victims of torture and ill-treatment, consider lifting the funding restrictions on local human rights NGOs, unblock any frozen assets of those NGOs and ensure their freedom from harassment and intimidation, with a view to enabling them to play a meaningful role in the implementation of the Convention in the State party, thereby assisting the State party in fulfilling its obligations under the Convention.

Data collection

(35)The Committee regrets the absence of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions in cases of torture and ill-treatment by law enforcement, security, military and prison personnel, and extrajudicial killings, enforced disappearances, trafficking and domestic and sexual violence (arts. 12 and 13).

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention at the national level, including data on complaints, investigations, prosecutions and convictions in cases of torture and ill-treatment, extrajudicial killings, enforced disappearances, trafficking and domestic and sexual violence, and on means of redress, including compensation and rehabilitation, provided to the victims. The State party should include such data in its next periodic report.

Cooperation with United Nations human rights mechanisms

(36)The Committee recommends that the State party strengthen its cooperation with United Nations human rights mechanisms, including by permitting visits of, inter alia, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Working Group on Arbitrary Detention, and the Special Rapporteur on the situation of human rights defenders.

(37)Noting the commitment made by the State party in the context of the universal periodic review (A/HRC/13/17/Add.1, para. 3), the Committee recommends that the State party consider ratifying the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as soon as possible.

(38)The Committee recommends that the State party consider making the declarations envisaged under articles 21 and 22 of the Convention.

(39)The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet a party, namely the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention for the Protection of All Persons from Enforced Disappearance and the Optional Protocols to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities.

(40)The Committee recommends that the State party consider ratifying the Rome Statute of the International Criminal Court.

(41)The State party is encouraged to disseminate widely the report submitted to the Committee and the Committee’s concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations.

(42)The Committee requests the State party to provide, within one year, follow-up information in response to the Committee’s recommendations contained in paragraphs 12, 16 and 31 of the present document.

(43)The Committee invites the State party to present its next periodic report in accordance with its reporting guidelines and to observe the page limit of 40 pages for the treaty-specific document. The Committee also invites the State party to regularly update its common core document in accordance with the requirements of the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee Meeting of human rights treaty bodies, and to observe the page limit of 80 pages for the updated common core document. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(44)The State party is invited to submit its next periodic report, which will be the second periodic report, by 19 November 2014.

52. Mongolia

(1)The Committee considered the initial report of Mongolia (CAT/C/MNG/1) at its 963rd and 964th meetings (CAT/C/SR.963 and 964), held on 5 and 8 November 2010, and adopted at its 976th meeting (CAT/C/SR./976) the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the initial report of Mongolia, which, while generally following the Committee’s guidelines for reporting, lacks statistical and practical information on the implementation of the provisions of the Convention. The Committee regrets that the report was submitted six years late, which has prevented the Committee from monitoring the implementation of the Convention in the State party since it ratified the treaty. It also regrets that no civil society organizations participated in the preparation of the report.

(3)The Committee welcomes the frank and constructive dialogue with the delegation of the State party and the extensive oral responses to the questions posed by the Committee members, which provided the Committee with important additional information.

B. Positive aspects

(4)The Committee welcomes that since the accession to the Convention by the State party on 24 January 2002 it has ratified or acceded to the following international instruments:

(a)Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, in March 2002;

(b)Rome Statute of the International Criminal Court, in April 2002;

(c)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in June 2003;

(d)Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, in October 2004;

(e)United Nations Convention against Transnational Organized Crime and its Protocols, in May 2008;

(f)Convention on the Rights of Persons with Disabilities, in May 2009;

(g)Optional Protocol to the Convention on the Rights of Persons with Disabilities, in May 2009;

(h)Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, in July 2010.

(5)The Committee notes the ongoing efforts of the State party to reform its legislation in order to ensure better protection of human rights, in particular:

(a)The adoption of the Criminal Code in 2002;

(b)The adoption of the Law on Combating Domestic Violence in 2005;

(c)The amendment of the Court Decision Enforcement Law on 3 August 2007;

(d)The amendment to the Criminal Code enacted on 1 February 2008.

(6)The Committee notes with appreciation the new measures and policies adopted by the State party in order to ensure better protection of human rights, in particular:

(a)The adoption in 2003 of the National Human Rights Action Programme of Mongolia, and the establishment in 2005 of the Implementing Committee of the National Programme;

(b)The standing invitation issued to special procedures mandate holders since 2004;

(c)The adoption of the National Programme on Fighting against Domestic Violence in 2007;

(d)The adoption of the 2005–2015 National Programme on Protection from Trafficking in Children and Women with the Purpose of Sexual Exploitation;

(e)The opening of legal aid centres in all districts of the capital and in all 21 provinces to provide legal advice to vulnerable persons involved in criminal, civil and administrative cases;

(f)The declaration by the President of Mongolia on 14 January 2010 of a moratorium on the use of the death penalty and his indication that the moratorium should constitute the first step towards its abolition.

C. Principal subjects of concern and recommendations

Definition and criminalization of torture

(7)While the Committee takes note that certain amendments to the Criminal Code and Criminal Procedural Code have been introduced in 2008 to harmonize domestic legislation in line with the Convention, the Committee is concerned that there is no definition of torture in the State party’s legislation in accordance with the definition in article 1 of the Convention, as pointed out also by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in his report on his mission to Mongolia in 2005 (E/CN.4/2006/6/Add.4, para. 39) (arts. 1 and 4).

The State party should adopt a definition of torture with all the elements of article 1 of the Convention in its national criminal legislation. The State party should include torture as a separate crime in its legislation, in line with article 4 of the Convention, and should ensure that penalties for torture are appropriate for the gravity of this crime.

Fundamental legal safeguards

(8)The Committee is concerned at information that arbitrary arrests and detentions occur frequently, with some two thirds of pretrial detentions taking place without court orders. The Committee is also concerned that arrested suspects often do not have prompt access to a judge, a lawyer, a medical doctor and their family as prescribed by law, and that pretrial detention is not used as a last resort (arts. 2, 11 and 12).

The State party should take prompt and effective measures to ensure that all detainees are afforded all fundamental legal safeguards from the very outset of their detention. These include the rights of detainees to be informed of the reasons of their arrest, to have prompt access to a lawyer and, when necessary, to legal aid. They should also have access to an independent medical examination, preferably by a doctor of their own choice, to notify a relative and to be brought promptly before a judge, and to have the lawfulness of their detention reviewed by a court, in accordance with international standards.

Impunity for acts of torture

(9)The Committee is concerned at reports that law enforcement officials and interrogators are not always prosecuted and adequately punished for acts of torture and ill-treatment. This was also referred to by the Special Rapporteur on the question of torture, who stated that “impunity is the principal cause of torture and ill treatment”. The Special Rapporteur concluded that torture persists, particularly in police stations and pretrial detention facilities, and that “the absence in the Criminal Code of a definition of torture in line with the Convention and the lack of effective mechanisms to receive and investigate complaints provides shelter to perpetrators” (ibid.) (arts. 1, 2, 4, 12 and 16).

The State party is urged to bring impunity to an end and ensure that torture and ill-treatment by public officials will not be tolerated and that all alleged perpetrators of acts of torture will be investigated and, if appropriate, prosecuted, convicted and punished with penalties appropriate to the gravity of the crime. The State party should ensure that efficient and independent investigative mechanisms be established against impunity regarding torture and ill-treatment. Article 44.1 of the Criminal Code, which stipulates that “ causing harm to the rights and interests protected by this Code in the course of fulfilling mandatory orders or decrees shall not constitute a crime ” , should be immediately repealed. The State party legislation should also clearly stipulate that a superior order may not be invoked a s a justification for torture.

Ill-treatment and the excessive use of force during the 1 July 2008 events

(10)The Committee is concerned at reports that during the riots on 1 July 2008 in Sukhbaatar Square and during the state of emergency police resorted to unnecessary and excessive use of force. The Committee is concerned at reports that most cases of unnecessary and excessive use of force by police occurred after the declaration of the state of emergency. It is also concerned about the results of a survey conducted by the National Human Rights Commission showing that of 100 detained people who were interviewed, 88 replied that they were ill-treated by being beaten or assaulted during arrest and interrogation. The Committee is concerned at reports that arrested persons were detained in overcrowded facilities, with lack of access to food, water and toilets for 48 to 72 hours, and without the possibility to contact lawyers and families (arts. 2, 12 and 16).

The State party should ensure that law enforcement officials receive clear instructions regarding the use of force and are informed of the liabilities they incur if the use of force is unnecessary or excessive. Existing laws, including those informing the public about the imposition of a state of emergency, should be applied. The State party should ensure that law enforcement officials apply the law with regard to persons deprived of their liberty, including fundamental legal safeguards upon arrest, with strict adherence to the Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment (adopted by the General Assembly through resolution 43/173 of 9 December 1988) and that persons deprived of their liberty should have access to a lawyer, a medical doctor and their family. In order to prevent impunity and abuse of authority, law enforcement officials found guilty of such offenses should be sanctioned with appropriate legal and administrative penalties.

Complaints and prompt, impartial and effective investigations

(11)The Committee is gravely concerned that since 2002, only one person has been sentenced for inhumane and cruel treatment and that only one person was convicted out of 744 torture-related cases since 2007, therefore creating an environment of impunity for perpetrators. This was echoed by the Special Rapporteur on the question of torture, who stated that “while a legal framework for victims to make complaints and have them addressed currently exists, this system does not work in practice” (E/CN.4/2006/6/Add.4, para. 41) and that “consequently, victims have no effective recourse to justice, compensation and rehabilitation for torture and other forms of ill-treatment” (ibid., p. 2). The Committee is also concerned that in the aftermath of the 1 July 2008 events, all 10 complaints submitted to the National Human Rights Commission (four of which concern torture) and the 11 complaints submitted to the Prosecutor’s Office were dismissed for lack of evidence (arts. 2, 12 and 13).

The State party should ensure that independent and effective mechanisms to receive complaints and conduct prompt, impartial and effective investigations into allegations of torture and ill-treatment are in place. The State party should address impunity and ensure that those found guilty of committing acts of torture and ill-treatment should be promptly convicted. The State party should take measures to protect complainants, lawyers and witnesses from intimidation and reprisals, in accordance with article 13 of the Convention. The State party should provide information with regard to any investigation carried out into allegations of torture submitted by Mr. Ts. Zandankhuu, who was arrested on 2 July 2008 and taken to the Denjiin Myanga detention centre.

National Human Rights Commiss ion

(12)The Committee notes that the National Human Rights Commission enjoys “A” status as a national human rights institution established in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles) and can initiate proposals and transmit orders and recommendations to other entities with respect to human rights issues. However, the Committee is concerned that in relation to the 1 July 2008 events in Sukhbaatar Square, the Commission issued a statement indicating that “human rights were not infringed” during the state of emergency. The Committee is concerned that this statement was subsequently used by the judiciary to dismiss complaints about torture and ill-treatment and to force people to sign self-incriminating confessions on the basis of which they were then sentenced (arts. 1, 2, 4, 13, 15 and 16).

The State party should ensure that the appointment process of the National Human Rights Commission governing body is transparent and that consultations should be comprehensive and open, including an enhanced engagement with civil society. The State party should strengthen the independence and capacity of the Commission and ensure that it is not restricted in its activities. The Commission should be provided with human, financial and material resources enabling it to fully comply with its mandate. The Commission should have the capacity and powers to systematically visit all places of detention, also on an unannounced basis, should be able to address allegations of torture and should ensure that measures of redress and rehabilitation are taken in appropriate cases. The Commission should be included in trainings on the absolute prohibition of torture for law enforcement personnel and staff of the criminal justice system. The Commission should also be involved in conducting awareness-raising campaigns on human rights issues for the general public.

Non-refoulement obligations

(13)The Committee is concerned that from 2000 to 2008, Mongolian authorities implemented deportation decisions for 3,713 citizens from 11 countries. The Committee is also concerned that no deportation order was suspended or not implemented because the person to be deported was under the threat of being tortured in the country of destination. It is concerned further that in October 2009 an asylum-seeker and his family were deported to China against their will before a final decision on the asylum claim was made (art. 3).

The State party should take all legislative, judicial and administrative measures to comply with its obligations under article 3 of the Convention. When determining its non-refoulement obligation, the State party should assess the merits of each individual case. The State party should introduce amendments in its legislation that deal with forced deportations of foreign citizens. The State party should consider acceding to the 1951 Convention relating to the Status of Refugees (adopted by the General Assembly on 28 July 1951) and its 1967 Protocol. The State party should provide training to all law enforcement and immigration officials in international refugee and human rights law, emphasizing the principle of non-refoulement, and ensure that appeals to courts against deportation orders have a suspensive effect.

Training of the judiciary

(14)While noting that international instruments become effective as domestic legislation upon the entry into force of the laws on their ratification or accession, the Committee is concerned by the delegation’s statement that judges have limited knowledge of international instruments, including the Convention. This concern is also referred to by the Special Rapporteur on the question of torture, who noted a “basic lack of awareness, primarily on behalf of prosecutors, lawyers and the judiciary, of the international standards relating to the prohibition of torture” (E/CN.4/2006/6/Add.4, para. 40). The Committee is particularly concerned by the information it received that clients of lawyers who referred to international treaties and conventions in their defence were sentenced to longer prison terms (art. 10).

The State party should ensure that mandatory training for judges, prosecutors, court officials, lawyers, and other related professions includes all the provisions of the Convention, especially the absolute prohibition of torture. The State party may wish to consider international assistance with regard to the training. Public officials and medical personnel dealing with detainees and all professionals involved in the documentation and investigation of torture should receive training on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol).

Training of law enforcement officials

(15)The Committee is concerned by reports that police are inadequately trained in crowd control and the use of equipment, and that often they do not have instruction on the appropriate use of firearms and on the prohibition to use excessive force (art. 10).

The State party should ensure that law enforcement officials receive proper training on how to exercise their duties, including on the use of equipment, on the use of force that is appropriate for the type of manifestation and that such force is employed only exceptionally and proportionally. Police should be trained in and comply with the Code of Conduct for Law Enforcement Officials (adopted by the General Assembly through resolution 34/169 of 17 December 1979) and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment o f Offenders, held 27 August–7 September 1990).

Conditions of detention

(16)The Committee is concerned about conditions of detention in some facilities, such as overcrowding, poor ventilation and heating, inadequate toilet facilities and water supply and the spread of infectious diseases. In addition, the Committee is concerned with ill-treatment such as the mixing of convicted prisoners and pretrial detainees, arbitrary room changes, and prison guards encouraging convicted prisoners to be abusive towards certain detainees. The Committee is also concerned by the special isolation regime consisting of solitary confinement for prisoners serving 30-year sentences, some of whom told the Special Rapporteur on the question of torture that they would have preferred the death penalty to isolation. The Committee is particularly concerned by reports that death row prisoners are detained in isolation, kept handcuffed and shackled throughout their detention and denied adequate food. Such conditions of detention were described by the Special Rapporteur as constituting additional punishments which can only be qualified as torture as defined in article 1 of the Convention (arts. 11 and 16).

The Committee recommends that the State party abolish the special isolation regime and ensure that all prisoners are treated humanely and in accordance with the Standard Minimum Rules for the Treatment of Prisoners (approved by the Economic and Social Council in its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977) and the Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment. The State party should continue improving conditions of detention in all detention facilities to bring them in line with international standards. The State party should ensure that prison guards and other officials abide by the law and adhere strictly to rules and regulations. The State General Prosecutor ’ s Office, the National Human Rights Commission and other authorized independent bodies should be allowed to carry out regular and unannounced visits to places of detention.

Redress and compensation

(17)The Committee is concerned that there is no effective and adequate means for victims of torture and ill-treatment to obtain justice, compensation and rehabilitation. The Committee is also concerned that provisions for compensation in Mongolian law do not specify torture as a basis for compensation. This was also noted by the Special Rapporteur on the question of torture after his visit to Mongolia (art. 14).

The State party should ensure that victims of torture can obtain redress and have an enforceable right to fair and adequate compensation, and should enact comprehensive legislation which includes torture and ill-treatment as a basis fo r compensation and reparation.

Statements made under torture

(18)The Committee is seriously concerned that statements and confessions obtained under torture and ill-treatment continue to be used in courts in Mongolia, which is also referred to by the Special Rapporteur on the question of torture. He stated that the criminal justice system relies heavily on obtaining confessions for instituting prosecutions and that this “makes the risk of torture and ill-treatment very real” (E/CN.4/2006/6/Add.4, para. 36). In this respect, the Committee is also concerned at reports that persons arrested in connection with the 1 July 2008 events were interrogated under torture, and that confessions signed under such circumstances were later used as evidence in court (art. 15).

The State party should ensure that no statement which is established to have been made as a result of torture shall be invoked as evidence in any proceedings. The State party should introduce systematic video and audio monitoring and recording of all interrogations, in all places where torture and ill-treatment are likely to occur, and provide the necessary financial, material and human resources to that end. The State party should ensure that any statement or confessions made by persons in custody ascertained to have been made as a result of torture or ill-treatment should not be admissible as evidence against the person who made the confession. Such statements and confessions should be invoked only as evidence in proceedings against the person accused of torture or ill-treatment.

Prisoners on death row and the death penalty

(19)The Committee is concerned that information on the death penalty is classified as a State secret and that not even the families of executed persons are informed about the date of execution or given their mortal remains. The Committee is also concerned about the fate and conditions of detention of 44 prisoners remaining on death row (arts. 2, 11 and 16).

The State party should render public statistics relating to the death penalty, provide the Committee with information on the 44 persons remaining on death row, should consider commuting all death sentences and should provide relevant information to the families of persons who were executed. The State party should declassify information on the death penalty, and is encouraged to continue its efforts towards its abolition, including by ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights. The State party should ensure that death row prisoners are treated in accordance with international standards.

Violence against wo men

(20)While welcoming the efforts of the State party to combat violence against women, the Committee is concerned about reports that the incidence of violence, in particular domestic violence against women, rape and sexual harassment remains high. The Committee is also concerned that domestic violence continues to be seen as a private matter, including by law enforcement personnel, and that the rate of prosecution is very low. In addition, the Committee is concerned at reports that only a small number of rape cases are reported, and that post-rape medical examination in remote areas and the provision of shelters and rehabilitation services by qualified personnel are frequently not available. The Committee regrets that the State party has not as yet criminalized marital rape and sexual harassment (arts. 1, 2, 4, 12 and 16).

The State party should fully combat violence against women, in particular rape, domestic violence and sexual harassment. It should also criminalize marital rape and sexual harassment. In addition, it should ensure that public officials are fully familiar with applicable relevant legal provisions, and sensitized to all forms of violence against women and adequately respond to them. The State party should also ensure that all women who are victims of violence have access to immediate means of redress and protection, including protecting orders, access to safe shelters, medical examination and rehabilitation assistance in all parts of the country. Perpetrators of violence against women should be duly prosecuted and, if found guilty, convicted and senten ced with appropriate penalties.

Trafficking in persons

(21)While welcoming the signature, on 18 October 2010, of the Agreement on Cooperation to Combat Trafficking in Persons with the Macao Special Administrative Region of China, as well as other efforts by the State party to combat trafficking in persons, the Committee is concerned at reports that there is a rise in human trafficking. It is also concerned at reports that the majority of victims are young girls and women, in particular poor and street children, as well as victims of domestic violence, who are trafficked for the purpose of sexual and labour exploitation and fraudulent marriages. In addition, the Committee is concerned that the legal framework to protect victims and witnesses of trafficking remains inadequate. It is also concerned that trafficking is seldom prosecuted under article 113 of the Criminal Code on sales and purchase of humans, which carries higher penalties than those under article 124 on inducing others to engage in prostitution and organizing prostitution. The Committee is also concerned at reports that 85 to 90 per cent of investigated cases are reportedly rejected for lack of evidence or lack of grounds to consider that the victim was deceived, and at reports that law enforcement officials were directly involved in or facilitating trafficking crimes and that there have been no investigations of those reports (arts. 2, 12, 13 and 16).

The State party should enact comprehensive anti-trafficking laws which address the issues of prevention and the protection of victims and witnesses of human trafficking, and ensure to all victims of trafficking the means for compensation and as full a rehabilitation as possible. The State party should conduct appropriate trainings for law enforcement officials, investigators and prosecutors on the laws and practices of trafficking in human beings. Trafficking in persons should be prosecuted under article 113 of the Criminal Code. The State party should establish independent mechanisms with sufficient and appropriate human and financial resources to monitor the implementation of measures to combat trafficking in persons. The State party should also conduct independent, thorough and effective investigations into all allegations of trafficking in persons, including allegations against law enforcement officials. The State party should also continue and increase international, regional and bilate ral cooperation on this issue.

Labour exploitation and child labour

(22)The Committee is concerned at reports that some artisanal (informal) miners, including minors, (also known as “ninja” miners) work in informal mining communities in very precarious conditions which are incompatible with international labour standards. It is also concerned at reports about the exploitation of children, including in hazardous labour conditions. In addition, the Committee is concerned at reports about the situation of street children and the lack of effective measures to improve their situation (art. 16).

The State party should combat all forms of forced labour and should take all necessary measures to ensure that children do not work in hazardous labour conditions, including artisanal (informal) mines, and ensure also that adults who work in such facilities have improved conditions in accordance with international standards and in particular with the International Labour Organization conventions ratified by the State party. The State party should take measures to monitor and address child labour and combat it, including by criminalizing employers who exploit child labour and bringing them to justice. The State party should conduct campaigns to raise awareness about the negative effects of child labour. The State party should also enhance measures with regard to the situation of street children.

Corporal punishment of children

(23)The Committee is concerned at information about the high prevalence of corporal punishment of children in schools, children’s institutions and in the home, in particular in rural areas (art. 16).

The State party should take urgent measures to explicitly prohibit corporal punishment of children in all settings. The State party should also ensure, through appropriate public education and professional training, positive, participatory and non-violent forms of discipline.

Juvenile justice

(24)The Committee is concerned at information provided by the Committee on the Rights of the Child that the juvenile justice system is not in harmony with the principles and provisions of the Convention on the Rights of the Child and that there is no comprehensive policy framework for juvenile justice. The Committee is also concerned that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, adopted by the General Assembly on 29 November 1985) are not applied and that children in both pretrial and regular detention are not separated from adults (arts. 2 and 16).

The State party should continue and complete the process of harmonization of its national legislation in line with applicable international standards and should improve the legal framework for juvenile justice, should not resort to pretrial detention except in cases prescribed by law, and should ensure that children are detained separately from adults in all circumstances and that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) are applied. The State party should establish specialized juvenile courts with trained juvenile judges and other judicial staff. If need be, the State party should seek international assistance in this regard.

Discrimination and violence against vulnerable groups

(25)The Committee is concerned:

(a)About reports that there is no comprehensive domestic law against discrimination and that hate crimes and speech is not an offence under the law. The Committee is also concerned at reports that vulnerable groups such as lesbian, gay, bisexual and transgender (LGBT) persons are subjected to violence and sexual abuse, both in public and domestic settings, owing to widespread negative social attitudes. The Committee welcomes the official registration of the LGBT Centre and notes with appreciation the indication by the State party of the need for a public awareness-raising campaign regarding LGBT persons;

(b)About reports concerning the discrimination against persons with HIV/AIDS, especially with regard to housing and pre-screening prior to employment;

(c)That, while taking note of the enactment in 2002 of the new Civil Code which stipulates that non-citizens have the same rights as citizens in civil and legal matters, some foreigners may be subjected to organized violence based on ethnic origin (arts. 2 and 16).

The State party should establish a comprehensive legal framework to combat discrimination, including hate crimes and speech. The State party should take measures to bring perpetrators of such crimes to justice. The State party should ensure the protection of vulnerable groups such as sexual minorities, persons living with HIV/AIDS, and some foreigners. The State party should establish effective policing, enforcement and complaints mechanisms with a view to ensuring prompt, thorough and impartial investigations into allegations of attacks against persons on the basis of their sexual orientation or gender identity in line with the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. The State party should adopt legislation to combat violence caused by organizations which promote and incite racial, ethnic and other forms of discrimination.

Persons with mental disabilities and psychological problems

(26)The Committee regrets the lack of information provided by the State delegation with regard to legal safeguards, including monitoring and oversight, in relation to the hospitalization of persons with mental illnesses and intellectual disabilities. The Committee is further concerned at reports of the frequent use of hospitalization and that few alternative treatment options are in place, and at the very low number of professionals specialized in working with persons with mental illnesses and disabilities.

The State party should, as a matter of urgency, strengthen the legal provisions in relation to the rights of persons with disabilities, including persons with mental illnesses and intellectual disabilities, and should establish monitoring and oversight mechanisms for places of hospitalization. The State party should strengthen alternative methods of treatment and care and should give priority to increasing the number of psychologically/psychiatrically skilled professionals.

Data collect ion

(27)The Committee regrets the absence of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment by law enforcement, security, military and prison personnel, as well as on death row prisoners, ill-treatment of migrant workers, trafficking in humans and domestic and sexual violence.

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention at the national level, including data on complaints, investigations, prosecutions and convictions of persons guilty of torture and ill-treatment, ill-treatment of migrant workers, death row prisoners, trafficking in humans and domestic and sexual violence, disaggregated by age, sex, ethnicity and type of crime, as well as on means for redress, including compensation and rehabilitation, provided to the victims.

(28)The Committee recommends that the State party consider ratifying the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as soon as possible.

(29)The Committee recommends that the State party consider making the declarations envisaged under articles 21 and 22 of the Convention.

(30)The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet a party, namely, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the International Convention for the Protection of All Persons from Enforced Disappearance.

(31)The State party is requested to disseminate widely the report submitted to the Committee and the Committee’s concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations.

(32)The Committee requests the State party to provide, within one year, follow-up information in response to the Committee’s recommendations contained in paragraphs 9, 11, 16 and 19 of the present document.

(33)The Committee invites the State party to present its next periodic report in accordance with its reporting guidelines and to observe the page limit of 40 pages for the treaty-specific document. The Committee also invites the State party to submit a common core document in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee Meeting of the human rights treaty bodies, and to observe the page limit of 80 pages for the common core document. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(34)The State party is invited to submit its next periodic report, which will be the second periodic report, by 19 November 2014.

53. Turkey

(1)The Committee against Torture considered the third periodic report of Turkey (CAT/C/TUR/3) at its 959th and 960th meetings, held on 3 and 4 November 2010 (CAT/C/SR.959 and 960), and adopted the following concluding observations and recommendations at its 975th meeting (CAT/C/SR.975).

A. Introduction

(2)The Committee welcomes the submission of the third periodic report of Turkey but regrets that it was submitted four years late, which hinders the Committee from ongoing analysis of the implementation of the Convention.

(3)The Committee also welcomes that the report was submitted in accordance with the new optional reporting procedure of the Committee consisting of replies by the State party to a list of issues prepared and transmitted by the Committee. The Committee expresses its appreciation to the State party for agreeing to report under this new procedure which facilitates the cooperation between the State party and the Committee. The Committee appreciates that the replies to the list of issues were submitted within the requested deadline. The Committee welcomes the constructive dialogue conducted with the high-level delegation and its efforts to provide explanations during the discussion of the report.

B. Positive aspects

(4)The Committee welcomes that, in the period since the consideration of the second periodic report, the State party has ratified or acceded to the following instruments:

(a)International Covenant on Economic, Social and Cultural Rights, in 2003;

(b)International Covenant on Civil and Political Rights, in 2003, and its Optional Protocols, in 2006;

(c)Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict, in 2004;

(d)International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, in 2004;

(e)Convention on the Rights of Persons with Disabilities, in 2009.

(5)The Committee notes with appreciation the State party’s comprehensive reforms in the field of human rights and ongoing efforts to revise its legislation in order to ensure stronger protection of human rights, including the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. The Committee welcomes in particular:

(a)The amendment to article 90 of the Constitution according to which international treaties on human rights and fundamental freedoms prevail over national laws in case of conflict;

(b)The adoption of the new Criminal Procedure Code (Law No. 5271) in 2005 and the new Penal Code (Law No. 5237) in 2004. In particular, the Committee welcomes the provisions regarding:

(i)Increased penalties for the crime of torture (3–12 years imprisonment) (Penal Code, art. 94);

(ii)Criminal liability for any individual who prevents or restricts the right of access to a lawyer (Criminal Procedure Code, art. 194);

(iii)The right of the suspect or accused to appoint one or more lawyers at any stage of investigation (Criminal Procedure Code, art. 149);

(iv)The obligatory assistance of a lawyer when an order for pretrial detention is made (Criminal Procedure Code, art. 101(3));

(c)Elements of the constitutional reform package adopted in September 2010 pursuant to a national referendum which provides, inter alia, for:

(i)The right of petition as a constitutional right which establishes an Ombudsman institution (Constitution, art. 74);

(ii)The right to appeal to the Constitutional Court with regard to fundamental rights and freedoms (Constitution, art. 148);

(iii)The guarantee that civilians will not be tried before military courts, except in times of war (Constitution, arts. 145 and 156).

(6)The Committee also welcomes efforts being made by the State party to amend its policies in order to ensure greater protection of human rights and give effect to the Convention, including:

(a)The announcement of a “zero tolerance for torture” on 10 December 2003;

(b)The preparation of a Second National Action Plan in the Fight against Trafficking;

(c)The standing invitation extended to United Nations special procedures mechanisms and the State party’s acceptance of visits by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (2006), the Working Group on Arbitrary Detention (2006), and the Special Rapporteur on violence against women, its causes and consequences (2008);

(d)The commitment by the State party to ratify the Optional Protocol to the Convention, which it signed in 2005, and to establish a national preventive mechanism in consultation with representatives of civil society, which will be part of a national human rights institution to be established in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles).

C. Principal subjects of concern and recommendations

Torture and impunity

(7)The Committee is gravely concerned about numerous, ongoing and consistent allegations concerning the use of torture, particularly in unofficial places of detention, including in police vehicles, on the street and outside police stations, notwithstanding information provided from the State party that combating torture and ill-treatment has been a “priority item” and while noting the reported decrease in the number of reports on torture and other forms of cruel, inhuman or degrading treatment and punishment in official places of detention in the State party. The Committee is furthermore concerned by the absence of prompt, thorough, independent and effective investigations into allegations of torture committed by security and law enforcement officers which are required by article 12 of the Convention and at the pattern of failure to conduct these. It is also concerned that many law enforcement officers found guilty of ill-treatment receive only suspended sentences, which has contributed to a climate of impunity. In this respect, it is a matter of concern to the Committee that prosecutions into allegations of torture are often conducted under article 256 (“excessive use of force”) or article 86 (“intentional injury”) of the Penal Code, which prescribe lighter sentences and the possibility for suspended sentences, and not under articles 94 (“torture”) or 95 (“aggravated torture due to circumstances”) of the same Code (art. 2).

The State party should take immediate measures to end impunity for acts of torture. In particular, the State party should ensure that all allegations of torture are investigated promptly, effectively and impartially. In connection with prima facie cases of torture and ill-treatment, the State party should ensure that the alleged suspect is subject to suspension or reassignment during the process of investigation, to avoid any risk that he or she might impede the investigation or continue any impermissible actions in breach of the Convention. The State party should also ensure that guidelines are in place to determine when articles 256 and 86 of the Penal Code will be required to prosecute ill-treatment instead of article 94. Further, the State party should immediately establish effective and impartial mechanisms to conduct effective, prompt and independent investigations into all allegations of torture and ill-treatment, and ensure that perpetrators of torture are prosecuted under article 94 ( “ torture ” ) and 95 ( “ aggravated torture ” ) so as to ensure that torture is punished by appropriate penalties as required b y article 4 of the Convention.

Absence of effective, prompt and independent investigations into complaints

(8)The Committee is concerned at the continuing failure of authorities to conduct effective, prompt and independent investigations into allegations of torture and ill-treatment. In particular, the Committee is concerned at reports that prosecutors face obstacles in effectively investigating complaints against law enforcement officers and that any such investigations pursued are commonly conducted by law enforcement officers themselves, a procedure which lacks independence, impartiality and effectiveness, notwithstanding Circular No. 8 of the Ministry of Justice pursuant to which investigations concerning allegations of torture and ill-treatment shall be conducted by the Public Prosecutor and not by law enforcement officers. In this respect, the Committee is further concerned at the lack of clarity surrounding the current system of administrative investigation into allegations of police abuse, which lacks impartiality and independence, and that prior authorization for investigating the highest level law enforcement officers is still permitted under the Criminal Procedure Code. The Committee is also concerned by reports that independent medical documentation of torture are not entered into evidence in court rooms and that judges and prosecutors only accept reports by the Ministry of Justice’s Forensic Medicine Institute. Furthermore, while noting the project launched in 2006 to introduce an “Independent Police Complaints Commission and Complaints System for the Turkish Police and Gendarmerie”, the Committee is concerned that no independent police complaints mechanism is yet in place. The Committee is concerned about a pattern of delays, inaction and otherwise unsatisfactorily handling by authorities of the State party of investigations, prosecutions and conviction of police, law enforcement and military personnel for violence, ill-treatment and torture offences against its citizens (arts. 12 and 13).

The Committee calls on the State party to strengthen ongoing efforts to establish impartial and independent mechanisms to ensure effective, prompt, and independent investigations into all allegations of torture and ill-treatment. As a matter of priority, the State party should:

(a) Strengthen the efficiency and independence of public prosecution by increasing the number, authority and training of investigating p rosecutors and judicial police;

(b) Ensure preservation of evidence until the arrival of the prosecutor and instruct courts to consider the possibility of tampered or missing evidence as centra l factors in trial proceedings;

(c) Ensure that prosecutors and judicial officers read and evaluate all medical reports documenting torture and ill-treatment from medical personnel and forensic doctors, irrespective of institutional affiliation, who are competent and have specialized training on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol);

(d) Establish an independent police complaint mechanism, as planned for by the Ministry of Interior;

(e) Amend article 161, paragraph 5, of the Criminal Procedure Code, as amended by article 24 of Law No. 5353 of 25 May 2005, in order to ensure that special permission is not needed to prosecute high level officials accused of torture or ill-treatment. To the same effect, the State party should repe al article 24 of Law No. 5353.

Failure to investigate disappearances

(9)The Committee is concerned at the lack of information from the State party on progress made in the investigation into cases of disappearances. In particular, the Committee is concerned at: (a) the number of outstanding cases of disappearances identified by the Working Group on Enforced and Involuntary Disappearances (63 cases as of 2009), and (b) at the lack of information on progress in investigating disappearances cases for which the State party has been found in violation of articles 2, 3 and 5 under the European Convention of Human Rights (Cyprus v. Turkey and Timurtas v. Turkey of the European Court of Human Rights). The Committee is further concerned at the lack of: (a) information on the effective, independent and transparent investigations into such cases, and, if appropriate, prosecutions and convictions of perpetrators; and (b) due notification of the results of such investigations and prosecutions to family members of individuals who have disappeared. This lack of investigation and follow-up raises serious questions with respect to the State party’s failure to meet its obligations under the Convention and, as concluded by the European Court of Human Rights, constitutes a continuing violation with respect to relatives of the victims (arts. 12 and 13).

The State party should take prompt measures to ensure effective, transparent and independent investigations into all outstanding cases of alleged disappearances, including those cited by the European Court of Human Rights ( Cyprus v. Turkey and Timurtas v. Turkey ) and those identified by the Working Group on Enforced and Involuntary Disappearances. As appropriate, the State party should carry out prosecutions. The State party should notify relatives of the victims of the outcomes of such investigations and prosecutions. The Committee furthermore calls upon the State party to consider signing and ratifying the International Convention for the Protection of All Persons from Enforced Disappearance.

Extrajudicial killings

(10)The Committee is concerned at the scant information provided by the State party with respect to the implementation of the recommendation by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism for the State party to undertake impartial, thorough, transparent and prompt investigations and fair trials in relation to the alleged roles of security forces in incidents of killings in Kiziltepe and Semdinli in 2004 and 2005 respectively (arts. 12 and 13).

The State party should undertake prompt, thorough and independent investigations into all alleged cases of extrajudicial killings by security and law enforcement officers and ensure that perpetrators are brought to justice and punished with penalties appropriate to the nature of their crimes.

Restrictions on fundamental legal safeguards

(11)The Committee is concerned at restrictions in the enjoyment of fundamental legal safeguards against torture and ill-treatment as a result of the introduction of new laws and amendments to the 2005 Code of Criminal Procedure. In particular, the Committee is concerned: (a) at the denial of a suspect’s right to contact a lawyer until 24 hours after arrest under the Law on Combating Terrorism (Law No. 3713); (b) at the denial of legal aid for suspects accused of offences carrying a sentence of less than five years of imprisonment (Law No. 5560); (c) at the absence of a statutory right to an independent medical examination; and (d) that the statutory right to immediate access to a medical doctor is restricted to convicted prisoners (art. 94, Law No. 5275). The Committee is concerned at reports of the presence of a public official during the medical examination of a detainee notwithstanding that this is forbidden by law unless the medical personnel so requests for reasons of personal security (art. 2).

The State party should ensure by law and in practice that all detainees are guaranteed the right to have prompt access to a lawyer, to notify a family member and to an independent medical examination from the very outset of their detention. The State party should ensure that it upholds patient-doctor confidentiality during such medical examinations.

Overarching considerations regarding implementation

(12)The Committee regrets that, despite its request for statistical information in its list of issues prior to reporting and in the oral dialogue with the State party, most of the information requested was not provided. In particular, the absence of comprehensive or disaggregated data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment by law enforcement, security and prison personnel, expulsions of immigrants and asylum-seekers, access to detention records, trial duration, rehabilitation and compensation, and trafficking and sexual violence, severely hampers the identification of non-compliance with the Convention requiring attention.

The State party should compile and provide the Committee with statistical data — disaggregated by gender, age, ethnicity and minority status, geographical location and nationality — relevant to the monitoring of the Convention at the national level and comprehensive information on complaints, investigations, prosecution and convictions of cases of torture and ill-treatment, expulsions, length of trials of alleged perpetrators of torture and ill-treatment, rehabilitation and compensation (including financial indemnification), trafficking and sexual violence, and on the outcomes of all such complaints and cases.

Excessive use of force by law enforcement officers and the use of counter-charges to intimidate persons reportin g torture and ill-treatment

(13)While noting the acknowledgement by the representative of the State party of excessive use of force by law enforcement authorities and information on measures taken to eradicate such practice, including by inscribing identification numbers on the helmets of police officers during demonstrations, the Committee remains concerned at reports indicating an increase in the excessive use of force and ill-treatment of demonstrators by police outside official detention places. In particular, the Committee is concerned at reports of fatal shootings by the police and gendarmerie as well as at reports of the arbitrary application of the June 2007 revisions to the Law on Powers and Duties of the Police (Law No. 2559) authorizing the police to stop any person and request to see his/her identification, which, it is alleged, have led to an increase in violent confrontations. Furthermore, the Committee is concerned at reports that police often resort to counter-charges under the Penal Code against individuals and family members of alleged victims complaining of police ill-treatment, in particular under article 265 on “using violence or threats against a public official to prevent them from carrying out their duty”, article 125 on “defaming the police”, article 301 on “insulting Turkishness”, and article 277 on “attempting to influence the judicial process”. The Committee is concerned that such charges are reportedly employed to deter, and even intimidate, alleged victims of abuse and their relatives from filing complaints (arts. 11 and 16).

The State party should promptly implement effective measures to put an end to excessive use of force and ill-treatment by law enforcement authorities. The State party should, in particular:

(a) Ensure that domestic laws, rules of engagement and standard operating procedures relating to public order and crowd control are fully in line with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, in particular the provision that lethal use of firearms may only be made when strictly unavoidable in order to protect life (Principles, para. 9);

(b) Introduce a monitoring system on the implementation of the Law on Powers and Duties of the Police (Law No. 2559) and to prevent its arbitrary use by police;

(c) Ensure that State officials do not use the threat of counter-charges, such as those under articles 265, 125, 301 and 277 of the Penal Code, as a means to intimidate detained persons, or their relatives, from reporting torture and review convictions during the reporting period under such articles, with a view to identifying any wrongly used for such purposes, and ensure that all valid claims reporting torture were subject to an independent investigation and prosecution, as warranted.

Reparation and compensation, including rehabilitation

(14)The Committee is concerned at the lack of comprehensive information and statistical data on reparation and compensation, including rehabilitation, for victims of torture and other cruel, inhuman or degrading treatment or punishment in the State party, as required by article 14 of the Convention (art. 14).

The State party should strengthen its efforts in respect of reparation, compensation and rehabilitation and provide victims of torture and other cruel, inhuman or degrading treatment or punishment with fair and adequate reparation and compensation, including rehabilitation. The State party should consider developing a specific programme of assistance in respect of victim s of torture and ill-treatment.

Non-refoulement and detention of refugees, asylum-seekers and irregular foreigners

(15)The Committee welcomes information provided by the representative of the State party that three draft laws relating to asylum, a specialized unit dealing with asylum matters and foreigners are about to be submitted to the Parliament. It also notes the issuance of Circulars Nos. 18/2010 (illegal migration) and 19/2010 (asylum and migration) by the Ministry of Interior in March 2010. The Committee nevertheless is concerned that the draft asylum law retains the geographical limitation to the Convention relating to the Status of Refugees, which excludes non-European asylum-seekers from protection under the Convention. It is furthermore concerned at the system of administrative detention of foreigners apprehended due to their illegal entry or stay, or attempts to depart from the State party illegally, in “foreigners’ guesthouses” and other removal centres with limited access to the national procedure for temporary asylum. The Committee is furthermore concerned at reported cases of deportations and refoulement despite the risk of torture. In this respect, the Committee is concerned at the reported lack of access by asylum-seekers to legal aid, shortcomings in the asylum appeal system, lack of suspensive effect of deportation proceedings during the consideration of asylum requests, and at curtailed access to the Office of the United Nations High Commissioner for Refugees (UNHCR) and lawyers to visit individual asylum-seekers in detention. The Committee is furthermore seriously concerned at reported ill-treatment and serious overcrowding in “foreigners’ guesthouses” and other removal centres (art. 3).

The State party should take prompt and effective measures to ensure compliance with its obligation under article 3 of the Convention not to return any person facing a risk of torture and ensure that all individuals in need of international protection have fair and equal access to asylum procedures and are treated with dignity. The Committee calls upon the State party to:

(a) Ensure access by independent monitoring bodies to “ foreigners ’ guesthouses ” and other places of detention and pursue, without delay, with the construction of new shelters that provide safe and healthy living conditions;

(b) Consider lifting the geographical limitation to the Convention relating to the Status of Refugees by withdrawing its reservation to the Convention;

(c) Ensure that all recognized refugees have access to international protection provided by UNHCR;

(d) Ensure effective access to the asylum procedure for apprehended foreigners kept in detention and introduce suspensive effect of deportation proceedings during consideration of asylum requests;

(e) Ensure access of UNHCR personnel, in line with the Ministry of Interior circular on asylum-seekers and refugees, to persons in detention who wish to apply for asylum, so as to ensure their right to do so;

(f) Ensure access of lawyers to asylum-seekers and refugees in detention so as to ensure their right to challenge decisions concerning their asylum application or other aspect of their legal status before appropriate legal tribunals.

Monitoring and inspections of places of detention

(16)While noting information provided by the representative of the State party on the role of the Human Rights Inquiry Commission of the Parliament and welcoming that visits by human rights defenders to places of detention are permitted, the Committee regrets the absence of a formal regulation that allows for independent monitoring and visits by representatives of civil society to such places. The Committee also regrets the lack of information on the implementation of main recommendations and findings by the institutions referred to in paragraphs 58–68 in the State party’s report that are authorized to inspect places of detention (arts. 2, 11 and 16).

The State party should provide information on formal regulations allowing independent visits to places where persons are deprived of their liberty by civil society representatives, lawyers, medical personnel, and members of local bar associations. The State party should also provide the Committee with detailed information on follow-up measures and activities pursuant to findings and recommendations by State institutions, including those referred to in paragraphs 58–68 of the State party ’ s report.

Detention conditions

(17)The Committee is seriously concerned at reported overcrowding in places of detention in the State party and notes the frank acknowledgment by the representative of the State party that the situation is “unacceptable”. In view of information provided by the State party on a total occupancy rate of 120,000 prisoners, half of whom are prisoners on remand, the Committee is concerned at the lack of consideration of alternative measures to deprivation of liberty by judicial authorities and at excessively long pretrial detention, especially of those tried in the new heavy penal courts. The Committee furthermore notes with concern information that certain privileges relating to group activities of prisoners can be restricted for persons accused of, or convicted for, terrorist or organized crime offences and held under solitary confinement in F-type prisons. While welcoming that recording of interrogations can be requested by the judge as evidence in criminal proceedings, the Committee is concerned that at present only 30 per cent of police stations are equipped with video surveillance cameras and that such cameras are alleged to fail in many cases. The reported lack of funding to reduce overcrowding by means of the construction of new penitentiary institutions, the high number of vacancies of prison personnel (approximately 8,000) referred to by representative of the State party, the shortage of medical personnel and reported shortcomings in access to health care of ill prisoners in the State party, are also matters of concern to the Committee. The Committee further notes with concern that information on detention facilities can be subject to restrictions under the Law on the Right to Access Information (Law No. 4982) (arts. 2 and 16).

The State party should take immediate measures to bring an end to the endemic problem of excessive pretrial detention and overcrowding in places of detention. Furthermore, it should continue its efforts to improve the infrastructure of prisons and police stations so as to provide protection against abuses. In particular, the State party should:

(a) Encourage members of the judiciary to consider and implement alternative means to deprivation of liberty as a penal sanction, including by introducing necessary legislation to this effect;

(b) Install video surveillance cameras throughout police stations and make the video recording of interrogations of all persons questioned a standard procedure;

(c) Undertake a legal review of articles 15 – 28 of the Law on the Right to Access Information (Law No. 4982) with a view to assessing their compatibility with the legal obligations under the Convention;

(d) Continue efforts to fill the vacancies in penitentiary institutions so as to ensure adequate staffing of prisons;

(e) Limit restrictions of privileges relating to group activities of prisoners in solitary confinement regimes to exceptional and well-defined situations only;

(f) Address the shortage of medical personnel and ensure access to health care of ill prisoners, including by deferring sentences if necessary.

Registration of detainees

(18)The Committee is concerned at reports that suspects are held in police custody without being officially registered and, in this respect, notes with concern the vague provision in law that registration of detainees shall occur “within a reasonable time” upon arrest (art. 2).

The State party shall ensure prompt registration of persons deprived of their liberty and specify in law the maximum time for when official registration pursuant to apprehension shall take place.

Violence against women

(19)The Committee is concerned at numerous and ongoing reports of rape, sexual violence and other forms of gender-based acts of torture and ill-treatment committed by security agencies, detention officials and law enforcement officers. While noting training and awareness-raising programmes undertaken by the State party to address and prevent such acts, the Committee regrets the lack of information on measures taken to ensure accountability of perpetrators, including investigations, prosecutions and convictions of the perpetrators, as well as information on reparation and compensation, including rehabilitation, for victims as required by article 14 of the Convention.

The State party should take prompt measures to prevent all acts of torture and ill-treatment, including rape and other forms of sexual violence, of women deprived of their liberty and ensure accountability of all perpetrators of such acts by undertaking prompt investigations into complaints, and, as appropriate, prosecutions and convictions with appropriate penalties of perpetrators. The State party should ensure that all victims of gender-based acts of torture and ill-treatment are provided with adequate reparation and compensation, including rehabilitation.

Domestic violence and honour killings

(20)While noting the amendments to the Family Protection Law No. 4320 in 2007 and to the Penal Code in 2005 intended to enhance protection of women against violence and the adoption of a National Action Plan to Combat Domestic Violence Against Women and various training programmes for law enforcement officers, the Committee remains concerned at the reported extent of physical and sexual violence against women. The Committee is concerned at reports that women are rarely inclined to report ill-treatment and violence against them to the police and at the inadequate number of available shelters for women victims of violence, in spite of relevant provisions in the Municipal Law of 2005. In addition, the Committee is concerned at the lack of information on reparation and compensation, including rehabilitation, for victims as required by article 14 of the Convention. The Committee is furthermore concerned at reports of the failure of State authorities to investigate honour killings, and at the lack of comprehensive official statistics on honour killings as well as on domestic violence. Also, the Committee is concerned that under article 287 of the Penal Code judges and prosecutors can order a virginity test in rape cases against the will of the woman (arts. 2 and 16).

The State party shall continue and strengthen its efforts, including in cooperation with the Council of Europe, the European Union and United Nations human rights mechanisms, to prevent and protect women from all forms of violence. The State party should:

(a) Undertake all necessary measures to facilitate and encourage women to exercise their right to lodge complaints on domestic violence to the police, including in the building and staffing of shelters, hotlines and other protective measures;

(b) Ensure prompt and effective investigations into all allegations of honour killings and violence against women and ensure that perpetrators are brought to justice and punished with penalties appropriate to the nature of their crimes;

(c) Ensure that victims are provided adequate reparation and compensation, including rehabilitation;

(d) Introduce a comprehensive system of data collection and statistics on violence against women, including on domestic violence and honour killings, disaggregated by age, ethnicity and minority status, and geographical location.

Children in detention

(21)While welcoming the 2010 amendments to the Law on Combating Terrorism which prohibit trial on charges of terrorism of juveniles who attend illegal meetings and demonstrations or distribute propaganda material for outlawed organizations and reduce penalties applied to those accused of terrorism-related offences, the Committee is concerned at reports that children continue to be detained in unrecorded adult pre-charge facilities following arrest during demonstration, including in the Anti-Terrorism Branch of Security Directorate, rather than in the Children’s Branch. Further, the Committee is concerned at reports of ill-treatment of children while held in unofficial places of detention and that interrogations have occurred without legal assistance or the presence of an adult or legal guardian. While noting information from the representative of the State party that most sentences do not exceed two years’ imprisonment, the Committee is concerned at reports that children allegedly continue to be sentenced to long periods of imprisonment (art. 16).

The State party should develop and implement a comprehensive system of alternative measures to ensure that deprivation of liberty of children is used only as a measure of last resort, for the shortest period possible and in appropriate conditions. The State party should ensure that detention of children is subject to regular review so as to make certain that no child is subject to any form of ill-treatment during detention and that no child is held in unrecorded places of detention. In addition, the State party should strengthen awareness and application of international human rights standards relating to juvenile justice for members of the juvenile courts and increase the number of such courts. Additionally, the Committee urges the State party to consider raising the age of criminal responsibility, currently set at 12 years, to comport with international standards.

Corporal punishment

(22)The Committee, while noting the amendment to the Civil Code in 2002 which removed parents’ right of correction, is concerned at the lack of an explicit prohibition of corporal punishment in the home and in alternative settings in the domestic legislation, and reports that corporal punishment is widely used by parents and is still considered to have educational value in schools (art. 16).

The Committee should clarify beyond doubt the legal status of corporal punishment in schools and penal institutions and, as a matter of priority, prohibit it in the home, alternative settings and, if appropriate, schools and penal institutions.

Treatment of persons requiring psychiatric care

(23)The Committee notes with concern the lack of information provided in the State party’s report on conditions in rehabilitation centres with respect to offenders requiring psychiatric care. While noting information by the representative of the State party on five rehabilitation centres for detainees with psychiatric problems currently within penitentiary institutions, the Committee is concerned at the lack of information on the conditions of these facilities, including the full and effective exercise of the fundamental safeguards of such detainees. The Committee is furthermore concerned at the lack of information on general conditions, legal safeguards and protection against ill-treatment of persons in psychiatric facilities and mental hospitals, and notes with concern the high number of electroconvulsive treatment (ECT) administered in mental hospitals and clinics indicated in the State party’s report (para. 306). Further, the Committee regrets the lack of information on access to such facilities by independent monitoring mechanisms (art. 16).

The State party should undertake a serious review of the application of electroconvulsive treatment (ECT), and should end any other treatment which could amount to acts prohibited under the Convention, of persons requiring psychiatric care. The State party should ensure by law and in practice fundamental legal safeguards for all persons requiring psychiatric care, whether in psychiatric facilities, mental hospitals or penitentiary institutions. The State party should furthermore allow access to psychiatric facilities and mental hospitals by independent monitoring mechanisms in order to prevent any form of ill-treatment.

Statute of limitation

(24)The Committee notes the increase in the statute of limitation for the crime of torture to 15 years, and to 40 years when acts of torture results in death, in the new Penal Code of 2005. Nevertheless, the Committee is concerned that the State party maintains a statute of limitation for the crime of torture (arts. 2, 12 and 13).

The State party should amend its Penal Code to ensure that acts of torture are not subject to any statute of limitation.

Training

(25)While welcoming information provided by the representative of the State party that training for law enforcement officers and gendarmerie includes training on the Istanbul Protocol, the Committee regrets the lack of information on whether and how public inspectors of prisons and other places of detention receive such training. Furthermore, the Committee regrets the lack of information on any training of members of the Village Guards or immigration officials regarding the absolute prohibition of torture (art. 10).

The State party should further develop and strengthen ongoing educational programmes to ensure that all officials, including judges and prosecutors, public inspectors of places of detention, law enforcement personnel, security officers, members of the Village Guards and prison and immigration officials, are fully aware of the provisions of the Convention and the absolute prohibition of torture and that they will be held liable for any actions in contravention of the Convention.

(26)The Committee invites the State party to ratify the Optional Protocol to the Convention and the core United Nations human rights treaties to which it is not yet a party as well as the Rome Statute on the International Criminal Court, the Convention on the Status of Stateless Persons and the Convention on the Reduction of Statelessness.

(27)The State party is requested to disseminate widely the report submitted to the Committee, summary records and the Committee’s concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations.

(28)The Committee requests the State party to provide, within one year, follow-up information in response to the Committee’s recommendations contained in paragraphs 7, 8, 9 and 11 of the present document.

(29)The Committee invites the State party to present its next periodic report in accordance with its reporting guidelines and to observe the page limit of 40 pages for the treaty-specific document. The Committee also invites the State party to submit an updated common core document in accordance with the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), and to observe the page limit of 80 pages for the common core document.

(30)The State party is invited to submit its next periodic report, which will be the fourth report, by 19 November 2014.

54. Finland

(1)The Committee against Torture considered the fifth and sixth combined periodic reports of Finland (CAT/C/FIN/5-6) at its 996th and 999th meetings, held on 18 and 19 May 2011 (CAT/C/SR.996 and 999), and adopted the following concluding observations at its 1011th and 1012th meetings on 27 and 30 May 2011 (CAT/C/SR.1011 and CAT/C/SR.1012).

A. Introduction

(2)The Committee welcomes the timely submission of the fifth and sixth combined periodic reports of Finland submitted in accordance with the optional reporting procedure of the Committee consisting of replies by the State party to the list of issues (CAT/C/FIN/Q/5-6) submitted by the Committee. The Committee expresses its appreciation to the State party for agreeing to report under this new procedure which facilitates the cooperation between the State party and the Committee. The Committee appreciates that the replies to the list of issues were submitted within the requested deadline.

(3)The Committee also appreciated the open and constructive dialogue with the State party’s high-level multisectoral delegation, as well as the additional information and explanations provided by the delegation to the Committee. The Committee thanks the delegation for its clear, straightforward and detailed answers to the questions raised by Committee members.

B. Positive aspects

(4)The Committee notes with satisfaction that, since the consideration of the fourth periodic report of the State party, the latter has acceded to the following international instruments:

(a)Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol);

(b)Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime.

(5)The Committee welcomes the State party’s ongoing efforts to revise its legislation in order to give effect to the Committee’s recommendations and to enhance the implementation of the Convention, including:

(a)Amendment of the Criminal Code which entered into force on 1 January 2010 that criminalizes torture and establishes the absolute prohibition of torture in all circumstances, in compliance with the recommendations of the Committee to bring the code into accordance with articles 1 and 4 of the Convention;

(b)Amendment, adopted on 20 May 2011, to the Parliamentary Ombudsman Act (197/2002), which will enter into force on 1 January 2012, establishing the Centre for Human Rights as the national human rights institution, in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles);

(c)Adoption of the Pre-Trial Investigation Act, the Coercive Measures Act and of the Police Act in 2011;

(d)Adoption by Parliament in March 2011 of a legal reform whereby persons identified in the Child Welfare Act are required to report suspicions of sexual abuse to the police;

(e)Amendments to the Finnish Aliens Act (301/2004) which came into force on 1 April 2011;

(f)Entry into force of the New Act on Imprisonment (767/2005), the Act on Remand Imprisonment (768/2005) and of the Act on the treatment of persons held in police custody (841/2006);

(g)Amendments to the Act on the Ombudsman for Minorities and the Discrimination Board which entered into force on 1 January 2009, under which the Ombudsman for Minorities acts as the National Rapporteur for Trafficking in Human Beings;

(h)Amendments to the Criminal Code making petty assaults on minors, persons close to the perpetrator, including marital spouse or registered civil partners, the subject of public prosecution since the beginning of 2011; and

(i)Reduction in the number of prisoners since the introduction in 2006 of the possibility of probationary liberty under supervision under the Act on Imprisonment.

(6)The Committee also welcomes the efforts being made by the State party to amend its policies, programmes and administrative measures in order to ensure greater protection of human rights and give effect to the Convention, including:

(a)The unification at the beginning of 2010 of the Criminal Sanctions Agency, the Prison Service and the Probation Service in a single organization called the Criminal Sanctions Agency, which is preparing a pilot survey for the end of 2012 of inmates and prison personnel;

(b)The revision of the National Plan of Action against Trafficking in Human Beings and the adoption on 11 June 2010 of the Programme on the Prevention of Violence Against Women comprising 60 measures;

(c)That the State party has continued to contribute regularly to the United Nations Voluntary Fund for Victims of Torture since 1984.

C. Principal subjects of concern and recommendations

Statute of limitations for the crime of torture

(7)The Committee is concerned that the Criminal Code contains a statute of limitations for the crime of torture (art. 4).

The Committee recommends that the State party ensure that acts of torture are not subject to any statute of limitations .

Fundamental legal safeguards

(8)The Committee is concerned that fundamental legal safeguards were not always ensured for persons deprived of their liberty — in particular for those having committed “minor offences”, including juveniles — from the very outset of their detention, such as meeting with a lawyer, preferably of their choice, notifying their next of kin even in the case of short stays in police custody and being examined by an independent doctor, preferably of their own choice, within the detention premises (arts. 2 and 16).

The Committee recommends that the State party ensure that all persons deprived of liberty are provided with fundamental legal safeguards from the very outset of detention, such as access to a lawyer, preferably of their choice, notifying their family of their detention and being examined by an independent doctor, preferably of their choice.

(9)The Committee is concerned that interrogations of persons who have been arrested and detained and the investigations of persons before trial are not systematically subject to audio- or video-recording (arts. 2 and 16).

The Committee recommends that the State party allocate the funds required to equip places where persons are interrogated and where pretrial investigations occur, and in particular police stations, with the necessary audio- and video-recording equipment.

Non-refoulement

(10)The Committee is concerned that available legal safeguards and the time frame prescribed by law are not always guaranteed to all asylum-seekers (especially under the accelerated asylum procedure) and aliens pending deportation; for example, the right to lodge a judicial appeal with suspensive effect to the Helsinki Administrative Court and the Supreme Administrative Court. The Committee has no information on whether deportation operations are monitored by an independent body (art. 3).

The Committee recommends that the State party guarantee a suspensive in-country right of appeal and respect for all safeguards and interim measures with regard to asylum and deportation procedures pending the outcome of the appeals to the Helsinki Administrative Court and the Supreme Administrative Court. The Committee would like to request information on whether deportation operations are monitored by an independent body.

Involuntary psychiatric hospitalization and treatment

(11)The Committee is concerned that the provisions of the Mental Health Act governing involuntary psychiatric hospitalization and treatment have not been amended. The Committee is concerned further that an independent psychiatric opinion is not included as part of the procedure for involuntary hospitalization, and that a decision for involuntary hospitalization can be based on a referral from a single doctor, frequently a general practitioner. Furthermore, the Committee notes with concern that a court review of involuntary hospitalizations is often not in place. In addition, the Committee is concerned that patients’ consent is not sought with regard to electroconvulsive therapy and that there is no specific register for recording recourse to that therapy (arts. 2, 12, 13 and 16).

The Committee recommends that the State party amend the Mental Health Act and pass clear and specific legislation rescinding the provisions governing involuntary psychiatric hospitalization and treatment, and enacting clear and specific legislation ensuring basic legal safeguards, such as requiring an independent psychiatric opinion as part of the procedure regarding the initiation and review of involuntary hospitalization and ensuring that a meaningful and expedient court review of the measure of involuntary hospitalization is provided, which includes the possibility for complaints. The State party should ensure that mental health care and services provided to all persons deprived of their liberty, including in prisons, psychiatric hospitals and social institutions, are based on the free and informed consent of the person concerned. The State party should ensure that any administering of electroconvulsive therapy to patients deprived of their liberty is based on free and informed consent. It also recommends the establishment of an independent body to monitor hospitals and places of detention, including with the authority to receive complaints.

Violence against women

(12)While appreciating the reply from the representatives of the State party regarding acceptance of the principle of due diligence with regard to the application of the Convention, particularly whereby State parties exercise their duty to prevent, investigate, and punish acts of violence against women and take effective action concerning acts of violence against women, whether perpetrated by the State, private persons, or armed groups, the Committee recommends that the State party redouble its efforts to prevent and eradicate all forms of violence against women (arts. 2, 4 and 16).

The Committee in particular urges the State party to include information about the prohibition against torture under the Convention in the education and training of law enforcement and other personnel involved in combating violence against women including domestic violence and trafficking. It would appreciate receiving information from the State party concerning the sentences given to persons convicted of rape, and whether the punishments are commensurate with the gravity of the offence. It also recommends that the State party adopt legislation with a view to increasing the number of shelters for victims of violence, including trafficked persons, which should be allocated appropriate funding and specialized staff.

Train ing

(13)The Committee is concerned that all police training is monitored, evaluated and accepted by the National Police Board. It is also concerned that medical personnel who come into contact with persons deprived of their liberty, asylum-seekers and other aliens are not systematically trained in the provisions of the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) (art. 10).

The Committee recommends that all training of public officials be assessed and evaluated by a qualified independent body such as the envisaged independent evaluation body attached to the Ministry of Education and Culture which will start work in 2011. It also recommends that training on the provisions of the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) be introduced into the basic training curriculum for medical personnel.

Conditions of detention

(14)The Committee is concerned that occasional overcrowding continues to exist in some prisons and detention centres. While noting that prisoners have access to toilets during all hours of the day, the Committee is concerned at reports by the State party that 222 prison cells in three different prison facilities still lack appropriate sanitary equipment, including toilet facilities, and that the practice of “slopping out” continues to exist, a situation which is scheduled to end only in 2015 (arts. 11 and 16).

The Committee recommends that the State party remedy the situation of overcrowding, including by way of redistributing prisoners, accelerating the judicial procedures and using the system of probationary liberty under supervision introduced in 2006. The Committee urges the State party to accelerate the renovation of the Mikkeli and Kuopio prisons, as well as Helsinki and Hameenlinna prisons, in addition to installing sanitary equipment in all places of detention as soon as possible.

(15)The Committee is concerned that while the total number of prisoners has fallen, the number of remand, female and foreign prisoners has increased. It remains concerned about the situation of remand prisoners and preventive detention of aliens held in police and border-guard detention facilities and the length of pretrial detention. In addition, it is concerned that some 10 per cent of Roma prisoners are accommodated in closed wards. The Committee is also concerned at the reported slowness of the State party’s judicial apparatus and whether there are any members of ethnic minorities among the judiciary (arts. 11 and 16).

The Committee recommends that the State party limit to the extent possible the stay of remand prisoners and aliens in preventive detention, in particular in police and border-guard detention facilities, and comply with the recommendations made in November 2010 by the working group set up by the Ministry of Justice to introduce a legislative amendment allowing for remand prisoners to be moved more quickly from police stations to regular prisons than is the case at present. It recommends that the Parliamentary Ombudsman monitor the conditions of detention of Roma prisoners, including the implementation of ethnic equality, and ensure that prison staff intervene in all incidents of discrimination against Roma brought to their attention. The Committee recommends that legislation be adopted to reduce pretrial detention and to accelerate the pending civil and criminal procedures. The Committee would appreciate receiving statistics on the number of members of ethnic minorities among the judiciary.

Monitoring of places of deprivation of liberty

(16)The Committee is concerned that the Deputy Parliamentary Ombudsman dealing with prison matters was unable to carry out frequent and unannounced visits to places of deprivation of liberty owing to their heavy workload and processing of complaints (art. 11).

The Committee recommends that the State party allocate sufficient human and financial resources to the Parliamentary Ombudsman in order to enable them to carry out frequent and unannounced visits to places of deprivation of liberty under their mandate. In this context, the Committee notes with satisfaction that the State party has signed the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and recommends that the State party complete the process of ratification of the Optional Protocol at the earliest appropriate time, so that the Parliamentary Ombudsman may act as the national preventive mechanism.

Detention and ill-treatment of asylum-seekers, irregular immigrants and other aliens

(17)The Committee is concerned about information regarding the frequent use of administrative detention with regard to asylum-seekers, irregular immigrants, unaccompanied or separated minors, women with children and other vulnerable persons, including those with special needs, as well as with their numbers and the frequency and length of their detention. In addition, the Committee is concerned that the Aliens Act allows for preventive detention not for a crime already committed but if a person is suspected of the possibility of committing a crime (arts. 11 and 16).

The Committee recommends that the State party consider alternatives to the frequent detention of asylum-seekers and irregular immigrants, including minors and other vulnerable persons, and that it establish a mechanism to examine the frequent detention of such persons. It recommends that the State party consider increasing the use of non-custodial measures, use detention as a last resort and ensure that administrative detention of unaccompanied children is not practised. The Committee requests the State party to ensure that the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment be applied to asylum-seekers in administrative detention. In addition it would appreciate receiving information on the number of asylum-seekers and irregular immigrants in detention, how frequently they are detained and the average length of their detention.

(18)The Committee is concerned at the conditions and length of detention of asylum-seekers and irregular immigrants at the detention unit for foreigners at Metsälä and the lack of legal safeguards regarding the length of detention. It is also concerned that such persons are detained not only in the Metsälä detention centre, which has a small capacity, but also in police and border-guard detention facilities which are not suitable for holding persons detained under legislation on aliens. The Committee is concerned that men and women are held together in such facilities, that children are held with adults when families with children are placed in migration-related detention and that a total of 54 children were detained in 2010 under the Aliens Act (arts. 2 and 11).

The Committee recommends that steps be taken to increase the capacity of the Metsälä detention centre or establish a new detention centre for foreigners. It also recommends that the State party review the detention, including length, of asylum-seekers, irregular immigrants and other foreigners in the Metsälä centre as well as in police and border-guard detention facilities, provide them with fundamental legal safeguards and set up a complaints mechanism regarding conditions of detention, and use non-custodial measures.

(19)The Committee is also concerned at allegations concerning the rise in physical and psychological ill-treatment of asylum-seekers and irregular immigrants, including their harsh treatment by the police and other law enforcement authorities (arts. 10, 11 and 16).

The Committee recommends that the State party ensure that specialized training and internal guidelines for police, border guards and other law enforcement authorities make them aware of their obligations under human rights and refugee law so that they may treat asylum-seekers in a more humane and culturally sensitive manner and that perpetrators of ill-treatment are investigated, prosecuted and convicted.

Redress, including compensation and rehabilitat ion

(20)The Committee is concerned that, although persons are entitled to compensation under the Act on Compensation from State Funds for the Arrest or Detention of an Innocent Person and the Parliamentary Ombudsman sometimes provides limited compensation for non-pecuniary damage caused by torture or ill-treatment, according to the legal order of the State party the authorities do not have a general obligation to pay compensation to a person whose rights have been violated (art. 14).

The Committee recommends that the State party adopt all necessary measures in order to comply with the full scope of article 14 of the Convention according to which the State party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible, that in the event of the death of the victim as a result of an act of torture his dependants shall be entitled to compensation and that nothing shall affect any right of the victim or other persons to compensation which may exist under national law. In addition, while it welcomes the existence of two rehabilitation units for torture survivors in the State party, the Committee recommends that full rehabilitation be made available to all victims of torture and ill-treatment, in all settings.

Non-admissibility of evidence

(21)While noting that it has not received any information that evidence obtained under torture has been accepted, the Committee is concerned that criminal law in the State party does not contain any specific provisions on the prohibition of use of statements obtained under torture, as set out in article 15 of the Convention. It is also concerned that the prosecution service has not issued any instructions or orders with regard to the prohibition of using a statement obtained under torture as an element of proof (art. 15).

The Committee recommends that the State party enact legislation specifically prohibiting the use of statements obtained under torture as evidence and elements of proof in conformity with article 15 of the Convention.

Ill-treatment

(22)The Committee is concerned that, according to the Deputy Parliamentary Ombudsman, persons who were arrested for participating in a demonstration were tied by the police to the seats of their bus and to each other and were not allowed to use the toilet while in the bus, in violation of Ministry of the Interior Decision 1836/2/07 of 28 November 2007, summary 2007, pages 41–44 (art. 16).

While taking note of the measures taken by the State party to remedy the situation and prevent such incidents in the future, as stated during the dialogue with the delegation, the Committee recommends that the State party issue clear guidelines to be followed by the police when arresting and dealing with persons deprived of their liberty, in order to prevent any ill-treatment of those detained, as outlined in the Code of Conduct for Law Enforcement Officials.

Information and statistical data

(23)While taking note of the information about the basis of the compilation of statistics by the Parliamentary Ombudsman, the Committee recommends that the State party provide the Committee with data disaggregated by age, gender and ethnicity on: complaints, investigations of and prosecutions and convictions in cases, if any, of torture and ill-treatment by law enforcement, security, military and prison personnel, as well as persons who are not public servants. It would also appreciate receiving disaggregated data on trafficking in human beings, the forced clandestine prostitution and exploitation of immigrant women, violence against women, including domestic and sexual violence, and means of redress, including compensation and rehabilitation, provided to the victims

(24)While taking note with satisfaction that the State party committed itself to making the recommendations made under the universal periodic review an integral part of its Government’s comprehensive human rights policy, the Committee would appreciate receiving information regarding the measures in force to prevent violence against women, compile information on violence against children, provide the same coverage in national legislation and anti-discrimination training activities on grounds of sexual orientation and disability as for other grounds of discrimination in areas such as the provision of services and health care and to consider using the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity as a guide to assist in the development of its policies.

(25)The Committee would further welcome information concerning the implementation of the Convention in territories where its Armed Forces are deployed, including in United Nations missions.

(26)The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet party, namely, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; the Convention on the Rights of Persons with Disabilities and its Optional Protocol, and the International Convention for the Protection of All Persons from Enforced Disappearance.

(27)The Committee invites the State party to present its next treaty-specific report within the limit of 40 pages. The Committee also invites the State party to update its common core document (HRI/CORE/1/Add.59/Rev.2)in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee Meeting of the human rights treaty bodies, and to observe the page limit of 80 pages for the common core document. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(28)The Committee requests the State party to provide, within one year, information on the implementation of the Committee’s recommendations contained in paragraphs 8, 15, 17 and 20 above.

(29)The Committee recommends that the State party widely disseminate throughout its territory, in all official languages, the report submitted to the Committee and the Committee’s concluding observations through official websites, the media and non-governmental organizations.

(30)The State party is invited to submit its next report, which will be the seventh periodic report, by 3 June 2015.

55. Ghana

(1)The Committee against Torture considered the initial report of Ghana (CAT/C/GHA/1) at its 992nd and 995th meetings (CAT/C/SR.992 and 995), held on 16 and 17 May 2011, and adopted, at its 1011th meeting (CAT/C/SR.1011), the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the initial report of Ghana. However, it regrets that the report does not follow generally the Committee’s Guidelines on the form and content of initial reports (CAT/C/4/Rev.3), and that it was submitted nearly eight years late, which prevented the Committee from conducting an analysis of the implementation of the Convention in the State party, following its ratification in 2000. The Committee also regrets that the report lacks statistical and practical information on the implementation of the provisions of the Convention.

(3)The Committee appreciates the frank and open discussions it enjoyed with the State party’s delegation, and the additional information that was provided during the consideration of the report.

B. Positive aspects

(4)The Committee welcomes the efforts and progress made by the State party since the return to democratic rule in January 1993.

(5)The Committee welcomes the fact that in the period since the entry into force of the Convention for the State party in 2000, Ghana has ratified or acceded to the following international and regional instruments:

(a)The International Covenant on Economic, Social and Cultural Rights, in 2000;

(b)The International Covenant on Civil and Political Rights and its Optional Protocol on individual complaints, in 2000;

(c)The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, in 2000;

(d)The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, in 2011.

(6)The Committee notes the efforts undertaken by the State party to reform its legislation to ensure better protection of human rights, in particular:

(a)The adoption in 2003 of the Juvenile Justice Act (Act 653);

(b)The adoption in 2005 of the Human Trafficking Act (Act 694), and its 2009 amendment;

(c)The adoption in 2007 of the Domestic Violence Act (Act 732);

(d)The adoption in 2007 of the amended Criminal Code (Act 741), which criminalizes the practice of female genital mutilation.

(7)The Committee welcomes the fact that on 9 February 2011, Ghana made the declaration under article 34, paragraph 6, of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights accepting the competence of the Court to receive and examine cases from individuals and non-governmental organizations, in accordance with article 5, paragraph 3, of the Protocol.

(8)The Committee notes with appreciation that the State party has issued a standing invitation to the special procedures mechanisms of the Human Rights Council and welcomes the recent visit of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

C. Principal subjects of concern and recommendations

Definition and offence of torture

(9)While noting that article 15, paragraph (2)(a) of the 1992 Constitution prohibits torture and cruel, inhuman or degrading treatment or punishment, the Committee regrets that the offence of torture as defined in article 1 of the Convention has not yet been included in the State party’s Criminal Code. The Committee welcomes the information provided by the State party’s delegation that the Attorney General’s Office is in the process of seeking Cabinet approval for the domestication of the Convention, which will then be submitted to Parliament for consideration, in accordance with article 106 of the Constitution (arts. 1 and 4).

The State party should take the necessary measures to ensure that torture is established as an offence in its domestic law, and should adopt a definition of torture that includes all the elements contained in article 1 of the Convention. The State party should also ensure that such offences are made punishable by appropriate penalties which take into account their grave nature, in accordance with article 4, paragraph 2, of the Convention.

Fundamental legal safeguards

(10)The Committee notes the measures adopted by the State party to ensure compliance with due process, including the right for all detainees to obtain immediate access to a counsel, to undergo a medical examination, to be informed immediately of their rights in a language they understand, and to appear before a judge within 48 hours of arrest. It also notes the establishment of pilot interrogation rooms in some police stations where fixed closed-circuit television (CCTV) cameras have been installed. However, the Committee expresses concern about reports that police fail to bring suspects before a judge within 48 hours of arrest, and that some police officers allegedly sign remand warrants themselves and take suspects directly to prison. The Committee also expresses concern at the very limited number of legal aid defence lawyers which precludes many defendants from obtaining legal counsel. Furthermore, it is concerned at the content of sections 10 to 13 of the Police Service Instruction 171, which provides for medical examinations to be conducted under the control of Government Medical Officers, who shall be requested to be present during independent medical examinations (arts. 2, 11 and 12).

The State party should take effective measures to guarantee that the fundamental legal safeguards for persons detained by the police are respected, including the right to be promptly informed of reasons for arrest and of any charges against him or her, the right to appear before a judge within the time limit prescribed by law and the right to an independent medical examination or a doctor of their own choice.

The State party should also:

(a) Ensure that all detained persons are guaranteed the possibility to challenge effectively and expeditiously the lawfulness of their detention through habeas corpus;

(b) Make audio and video recording of interrogations of all persons questioned a standard procedure;

(c) Expand the number of legal aid defence lawyers;

(d) Ensure prompt registration of all persons deprived of their liberty and ensure that custody records at police and prison facilities are periodically inspected to make sure that they are being maintained in accordance with procedures established by law;

(e) Guarantee the privacy and confidentiality of medical information: public officials should not be present during medical examinations of persons under custody, save under exceptional and justifiable circumstances.

Absolute prohibition of torture

(11)While noting the information provided by the State party on the relevant constitutional precepts governing the declaration and administration of a state of emergency, the Committee is concerned at the absence of clear legal provisions ensuring that the absolute prohibition against torture is not derogated from under any circumstances (art. 2, para. 2).

The State party should incorporate in the Constitution and other laws the principle of absolute prohibition of torture, whereby no exceptional circumstances whatsoever may be invoked to justify it.

Death penalty

(12)The Committee notes with interest the information provided by the delegation stating that the death penalty has not been applied in the State party since the military regime that ended in 1993.

The Committee invites the State party to consider the possibility of abolishing the death penalty, or failing that, to formalize the current de facto moratorium on the death penalty. The Committee strongly encourages the State party to consider ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.

Coerced confessions

(13)The Committee values the information and clarification given by the representative of the State party in respect of the 1975 Evidence Decree (NRCD 323), which regulates the taking of evidence in legal proceedings, and which renders inadmissible as evidence statements made in the absence of “an independent witness approved by the person other a police officer or a member of the Armed Forces”. However, the Committee is concerned that the regulation does not refer explicitly to torture. It is also concerned at the lack of information on decisions taken by the Ghanaian courts to refuse confessions obtained under torture as evidence (art. 15).

The State party should ensure that legislation concerning evidence to be adduced in judicial proceedings is brought in line with the provisions of article 15 of the Convention, so as to explicitly exclude any evidence obtained as a result of torture.

The Committee requests the State party to submit information on the application of the 1975 Evidence Decree, and on whether any officials have been prosecuted and punished for extracting a confession under torture.

National human rights institution

(14)While noting that during the universal periodic review of Ghana in 2008 the State party accepted to further strengthen the capacities of the Commission on Human Rights and Administrative Justice (CHRAJ) by increasing its funding and resources, the Committee is concerned that, according to the information provided by the delegation of the State party, which included a CHRAJ representative, the Commission does not receive adequate funding for its programmed activities.

The State party should strengthen the independence of the Commission, including by providing it with an adequate operating budget and intensifying its efforts to ensure that it is in full compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles).

Torture and cruel, inhuman or degrading treatment of detainees (arts. 2, 4, 11 and 15)

(15)The Committee is gravely concerned at the State party’s statement that the likelihood that torture occurs in detention centres is high. The Committee has raised questions as to what will be done to stop this practice, including holding prison staff accountable and providing redress for those tortured. The Committee is concerned at the existence of legislation that allows caning or flogging, but takes note of the low frequency of such incidences.

The Committee urges the State party to take immediate and effective measures to investigate, prosecute and punish all acts of torture, and to ensure that torture is not used by law enforcement personnel, including by unambiguously reaffirming the absolute prohibition of torture and publicly condemning practices of torture, especially by the police and prison officers, and issuing 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 will be subject to criminal prosecution and appropriate penalties.

Conditions of detention

(16)The Committee takes note of the information provided by the State party on steps taken to deal with the problems of overcrowding and prolonged pretrial detention, notably by the construction of a new penitentiary at Ankaful, and the introduction of the Justice for All programme in 2007. The Committee is nevertheless concerned at the high levels of occupancy recorded in most detention centres, which are described in the State party’s report as “in very deplorable state” and “not suitable for habitation”. It further notes with particular concern persistent reports of the lack of staff, poor health and hygiene conditions, inadequate health-care services, shortage of bedding and food. In this regard, the Committee notes that inmates are fed by the State only once a day because the stipend for their upkeep is below US$ 1.The Committee also expresses concern at reports about the limited number of remand homes for juvenile offenders, and the poor conditions in such institutions. The Committee takes positive note of the marked decrease in the number of deaths in prison (from 118 in 2008 to 55 in 2010), but regrets the lack of information on the causes of these deaths. It also regrets the lack of information on the conditions of detention for migrants with irregular administrative status (art. 11).

The State party should:

(a) Ensure that conditions of detention in the country ’ s prisons are compatible with the Standard Minimum Rules for the Treatment of Prisoners;

(b) Increase its efforts to remedy prison overcrowding, in particular by instituting alternatives to custodial sentences;

(c) Continue to put into effect plans to improve and expand the prison infrastructure and the remand centres, including those for juvenile offenders;

(d) Take steps to increase the number of prison officials;

(e) Examine the adequacy of health-care resources available in penitentiary institutions, and ensure that the medical assistance given to detainees is of high quality;

(f) Review all legal provisions which authorize the practice of caning or flogging with a view to abolishing them as a matter of priority.

The State party should include in its next periodic report statistical data regarding reported deaths in custody, disaggregated by location of detention, sex, age, ethnicity of the deceased and cause of death.

Psychiatric facilities

(17)The Committee is concerned at reports about the inadequate treatment of mental health patients and poor living conditions in psychiatric institutions, in particular at Accra Psychiatric Hospital. The Committee notes with concern the reports of severe overcrowding, lack of qualified staff and poor material and hygienic conditions in this psychiatric facility. It is also deeply concerned at the situation of persons admitted by reason of a court order, who have allegedly been abandoned for years. In this regard, the Committee notes with interest the information provided by the State party’s delegation on existing proposals for expanding mental health facilities in the country, and on the draft mental health bill before Parliament, which would include an individual complaint system. The Committee is seriously concerned at reports regarding persons remaining in hospital long after they should have been discharged, for lack of appropriate after-care or alternative and secure settings. It takes note of the explanation given by the delegation that efforts to reintegrate persons declared fit faced a number of obstacles, including social stigma, but points out that this can never be held as a reason for not initiating alternative care facilities after hospitalization (art. 16).

The State party should:

(a) Improve the living conditions of patients in psychiatric institutions;

(b) Ensure that no psychiatric confinement takes place unless strictly required, that all persons without full legal capacity are placed under guardianship that genuinely represents them and defends their interests, and that an effective judicial review of the lawfulness of the admission and detention of all persons in health institutions takes place in each case;

(c) Ensure that all places where mental-health patients are held for involuntary treatment are visited by independent monitoring bodies to guarantee the proper implementation of the safeguards set out to secure their rights;

(d) Develop alternative forms of treatment, especially community-based treatment, in particular with a view to receiving persons discharged from hospitals.

Monitoring and inspection of places of deprivation of liberty

(18)The Committee takes note of the information provided by the State party that the Auditor General and a number of independent bodies conduct regular inspections of penitentiary institutions. However, and notwithstanding the explanations given by the delegation, the Committee remains concerned at the fact that a visit request made by the non-governmental organization Amnesty International in March 2008 was refused by the Ghanaian government due to “unsafe” circumstances (art. 2).

The Committee calls upon the State party to establish an effective independent national system to monitor and inspect all places of deprivation of liberty and to follow-up on the outcome of such systematic monitoring.

The State party should strengthen its cooperation with, and support to non-governmental organizations that undertake monitoring activities.

The Committee recommends that the State party provide detailed information on the place, time and periodicity of visits, including unannounced visits, to places of deprivation of liberty, and on the findings of and action taken on the outcome of such visits.

Prompt, thorough and impartial investigation s

(19)The Committee is concerned about reports of impunity in cases of torture and ill-treatment, including cases of police brutality and excessive use of force. While noting the information provided by the State party on a few highly publicized cases, the Committee remains concerned at the fact that law enforcement officials and military personnel responsible for alleged acts of torture are seldom prosecuted. It is further concerned that the State party was unable to provide information about some of the specific incidents to which the Committee drew attention, and at the lack of statistical data on allegations of torture and ill-treatment and on the results of the investigations undertaken in respect of those allegations. The Committee notes the existence of a proposal to create an independent prosecution service (arts. 12 and 13).

The State party should take appropriate measures to ensure that:

(a) All allegations of torture or ill-treatment are thoroughly and impartially investigated, perpetrators are duly prosecuted and, if found guilty, convicted to penalties taking into account the grave nature of their acts, and that the victims are adequately compensated, including their full rehabilitation;

(b) Clear and reliable data are compiled on acts of torture and ill-treatment in police and prison custody and in other places of deprivation of liberty;

(c) All law enforcement officials and military personnel are thoroughly trained in international human rights standards, particularly those contained in the Convention.

Refugees and asylum-seekers

(20)The Committee notes, based on reports, that due to the post-election crisis in Côte d’Ivoire, over 14,178 Ivorians (including 6,036 children) have sought asylum in the State party since 16 May 2011. Among the new arrivals, are persons who might have been subjected to direct threats and abuse due to their perceived political affiliation.The Committee is particularly concerned about information received concerning the suspected presence of combatants among those fleeing Côte d’Ivoire in refugee hosting areas, which could generate serious security concerns for refugees, asylum-seekers and communities, as well as threaten to undermine the civilian and humanitarian character of asylum. The Committee appreciates the efforts of the State party in responding to this massive influx and encourages it to establish procedures required for the identification and separation of combatants, and to promptly determine the refugee status of Ivorian asylum-seekers. The Committee also notes with concern that 11,000 refugees from Liberia have been living in Ghana for over 20 years and that, according to the information provided by the delegation, the State party is planning to either relocate them or return them to their place of origin (arts. 3 and 16).

The Committee calls on the State party to take a more active approach in relation to its obligations at the international and regional levels under international refugee law. In this respect, the State party should:

(a) Pursue its efforts, in cooperation with the Office of the United Nations High Commissioner for Refugees (UNHCR), to continue to identify refugees and asylum-seekers and ensure their protection in accordance with international law, including, in particular, respect for the principle of non-refoulement ;

(b) Consider granting refugee status on a prima facie basis to Ivorians fleeing their country, except for those who may be considered combatants, until it is established that they have genuinely and permanently renounced military activities;

(c) Take measures to effectively screen arrivals and to separate combatants and non-combatants in order to ensure the civilian nature of refugee camps and/or sites, including through strengthening existing screening mechanisms and enhancing the capacity of the Ghana Refugee Board at the border;

(d) Reinforce the capacity of the Ghana Refugee Board to process refugee claims of asylum-seekers in the country other than those who may benefit from recognition on a prima facie basis;

(e) Ensure that Liberian refugees in Ghana are not forcibly returned to their country of origin in a manner that would be inconsistent with the non-refoulement obligations under the Convention or other internat ional human rights instruments.

Human traffick ing

(21)The Committee takes note of the adoption in 2005 of the Human Trafficking Act, and its 2009 amendment, which brought the definition of trafficking in line with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. However, the Committee expresses its concern at persistent reports of internal and cross-border trafficking of women and children for the purpose of sexual exploitation or forced labour as, for example, domestic workers or head-load carriers (kayaye). The Committee is also concerned at the lack of statistics in the State party’s report on, inter alia, the number of prosecutions, convictions and sentences of perpetrators of trafficking, including for child labour, and the absence of practical measures taken to prevent and combat this phenomenon. It also notes with concern that there is no formal referral process to transfer victims in protective custody to other facilities (arts. 2, 12 and 16).

The State party should:

(a) Intensify its efforts to prevent and combat trafficking in human beings, especially women and children, including by implementing the anti-trafficking legislation, providing protection for victims and ensuring their access to medical, social, rehabilitative and legal services, includi ng counselling, as appropriate;

(b) Ensure adequate conditions for victims to exercise their rights to make complaints;

(c) Conduct prompt, impartial investigations of trafficking and ensure that those who are found guilty for such crimes are punished with penalties appropriate to the nature of their crimes;

(d) Conduct nation-wide awareness-raising campaigns and conduct training for law enforcement officials;

(e) Provide detailed information on the number of investigations and complaints of human trafficking, as well as prosecutions and convictions in such cases.

Violence against wom en, including domestic violence

(22)The Committee takes note of the adoption in 2007 of the Domestic Violence Act and the statistics presented by the State party during the dialogue on the domestic violence cases that occurred in 2010. However, the Committee is concerned at reports of widespread violence against women, including domestic violence; the partial implementation of the Domestic Violence Act; and that the Domestic Violence and Victim Support Unit (DOVVSU) of the Police Service is inadequately resourced. The Committee is concerned at the reluctance of the State party to criminalize marital rape, and the lack of information in the State party’s report on the number of complaints, investigations, prosecutions, convictions and sentences imposed in cases of violence against women during the period under review (arts. 2, 12, 13 and 16).

The C ommittee urges the State party:

(a) To investigate, bring to trial and punish the perpetrators of such acts;

(b) To take more effective measures to protect and assist the victims;

(c) To allocate sufficient financial resources to ensure the effective functioning of DOVVSU;

(d) To strengthen awareness-raising and educational efforts on violence against women and girls for officials in direct contact with the victims (law enforcement officers, judges, social workers, etc.), as well as for the public at large;

(e) To enact legislation criminalizing marital rape.

The Committee requests the State party to provide in its next periodic report statistics on the number of complaints of violence against women, including rape, as well as information on investigations, prosecutions and convictions in such cases.

Harmful traditional practices

(23)The Committee takes note of the positive actions of the Government in criminalizing harmful traditional practices, such as female genital mutilation and trokosi (ritual or customary slavery). It also notes the 25 per cent decrease in the number of reported cases of female genital mutilation between 1999 and 2010, although there were still a total of 123,000 reported cases during that period. The Committee remains concerned at the clear incompatibility between certain aspects of Ghana’s customary law and traditional practices and the respect for fundamental rights and liberties, including the prohibition of torture and cruel, inhuman or degrading treatment or punishment. In this regard, the Committee is concerned at reports that some women have been accused of practicing witchcraft, and subjected to severe violence, including mob violence, burning and lynching, and forced to leave their communities. Many such women have been sent to so-called “witch camps” through a system that lacks minimal due legal process, and from which the possibility of returning to society is uncertain. The Committee also expresses concern about reports of cases of violence against widows who are often deprived of their inheritance and, in some cases, subjected to humiliating and abusive widowhood rites. The Committee regrets the lack of information on prosecutions and sentences imposed on perpetrators of such acts, as well as on assistance and compensation to the victims. It also regrets the lack of information on the steps taken to ensure that customary law in Ghana is not incompatible with the State party’s obligations under the Convention (arts. 2 and 16).

The State party should:

(a) Strengthen its efforts to prevent and combat harmful traditional practices, including female genital mutilation, in particular in rural areas, and ensure that such acts are investigated and that the alleged perpetrators are prosecuted and convicted;

(b) Provide victims with legal, medical, psychological and rehabilitative services, as well as compensation, and create adequate conditions for them to report complaints without fear of reprisal;

(c) Provide training to judges, prosecutors, law enforcement officials and community leaders on the strict application of the relevant legislation criminalizing harmful traditional practices, and other forms of violence against women.

In general, the State party should ensure that its customary law and practices are compatible with its human rights obligations, especially under the Convention. The State party should also provide information on the hierarchy between customary and domestic law, especially with regard to forms of discrimination against women.

The Committee further requests the State party to provide, in its next periodic report, detailed information and updated statistical data on complaints, investigations, prosecutions, convictions and sentences imposed on perpetrators of criminal conduct related to harmful traditional practices, including murder, as well as on assistance and co mpensation provided to victims.

Corporal punishment

(24)While noting that the Juvenile Justice Act (2003) and the Children’s Act (1988) explicitly prohibit corporal punishment as a disciplinary measure in prisons, the Committee expresses its concern at the still widespread use of corporal punishment, in particular within the family, schools and alternative care settings (arts. 11 and 16).

The State party should:

(a) Explicitly prohibit corporal punishment of children in all settings, including through the repeal of all legal defences for “ reasonable ” and “ justifiable ” corporal punishment;

(b) Engage in the promotion of alternative forms of discipline to be administered in a manner consistent with the child ’ s dignity, and in conformity with the Convention;

(c) Develop measures to raise awareness on the harmful effects of corporal punishment.

Training

(25)The Committee regrets the scant information provided by the State party on human rights training schemes for medical and law enforcement personnel, judicial officials and other persons involved with custody, interrogation or treatment of persons deprived of their liberty on matters related to the prohibition of torture and ill-treatment. It notes with concern that the human rights training activities for police personnel, organized through the UNDP Access to Justice programme in Ghana, ended in 2010 due to lack of funding.

The State party should:

(a) Continue to provide mandatory training programmes so as to ensure that all public servants, in particular members of the Police and other law enforcement officials are fully aware of the provisions of the Convention, that breaches are not tolerated, but investigated, and that perpetrators are brought to trial;

(b) Assess the effectiveness and impact of training schemes and education on the incidence of torture and ill-treatment;

(c) Support training on the use of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) for all relevant personnel, including medical personnel.

Data collection

(26)The Committee regrets the absence of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions in cases of torture and ill-treatment by law enforcement, security, military and prison personnel, as well as on violence against women, trafficking and harmful traditional practices.

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention at the national level, including data on complaints, investigations, prosecutions and convictions in cases of torture and ill-treatment by law enforcement, security, military and prison personnel, as well as violence against women, trafficking and harmful traditional practices, including compensation and rehabilitation provided to victims. The State party should include such data in its next periodic report.

(27)While welcoming the signing of the Optional Protocol to the Convention on 6 November 2006, the Committee encourages the State party to accelerate the ratification process, as well as the designation of a national preventive mechanism.

(28)Noting the commitment made by the State party in the context of the universal periodic review (A/HRC/8/36), the Committee recommends that the State party consider ratifying the Convention on the Rights of Persons with Disabilities, as well as the new International Convention for the Protection of All Persons from Enforced Disappearance.

(29)The State party is encouraged to disseminate widely the report submitted to the Committee and the present concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations.

(30)The Committee invites the State party to present its next periodic report in accordance with its reporting guidelines and to observe the page limit of 40 pages for the treaty-specific document. The Committee also invites the State party to submit an updated common core document in accordance with the requirements of the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee Meeting of human rights treaty bodies, and to observe the page limit of 80 pages for the updated common core document. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(31)The Committee requests the State party to provide, within one year, follow-up information in response to the Committee’s recommendations contained in paragraphs 10 (c) and (d), 17(d) and 23(a) of the present document.

(32)The State party is invited to submit its next report, which will be the second periodic report, by 3 June 2015.

56. Ireland

(1)The Committee against Torture considered the initial report of Ireland (CAT/C/IRL/1), at its 1002nd and 1005th meetings (CAT/C/SR.1002 and 1005), held on 23 and 24 May 2011. At its 1016th meeting (CAT/C/SR.1016), held on 1 June 2011, it adopted the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the initial report by the State party but regrets that it was submitted after a delay of eight years, which has prevented the Committee from monitoring the implementation of the Convention in the State party. The Committee also notes that the State party report generally followed the guidelines but that it lacked specific information on the implementation of the Convention.

(3)The Committee notes with appreciation that a high-level delegation from the State party met with the Committee during its forty-sixth session, and also notes with appreciation the opportunity it had to engage in a constructive dialogue covering many areas under the Convention. The Committee also commends the State party for the detailed written replies that it provided during the consideration of the State party report.

B. Positive aspects

(4)The Committee welcomes the ratification by the State party of the following international and regional instruments:

(a)International Covenant on Civil and Political Rights, on 8 December 1989;

(b)International Convention on the Elimination of All Forms of Racial Discrimination, on 29 December 2000;

(c)Convention on the Rights of the Child, on 28 September 1992;

(d)Convention on the Elimination of All Forms of Discrimination against Women, on 23 December 1985;

(e)United Nations Convention against Transnational Organized Crime, on 17 June 2010;

(f)Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, on 17 June 2010;

(g)Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, on 18 June 1993;

(h)Council of Europe Convention on Action against Trafficking in Human Beings, on 13 July 2010.

(5)The Committee welcomes the enactment of the following legislation:

(a)Criminal Law (Human Trafficking) Act of 2008;

(b)International Criminal Court Act of 2006.

(6)The Committee also welcomes the development of the National Action Plan to Prevent and Combat Trafficking of Human Beings in Ireland, 2009–2012.

(7)The Committee further welcomes the development of the National Strategy on Domestic, Sexual and Gender-Based Violence, 2010–2014.

C. Principal subjects of concern and recommendations

Reduction of financial resources for human rights institutions

(8)While welcoming the commitment by the State party to provide resources for human rights institutions, the Committee expresses concern at information received on the disproportionate budget cuts to various human rights institutions mandated to promote and monitor human rights, such as the Irish Human Rights Commission (IHRC), in comparison to other public institutions. Furthermore, while noting the decision to move IHRC from the Department of Community, Equality and Gaeltacht Affairs to the Department of Justice and Equality, the Committee regrets that IHRC does not have direct accountability to Parliament and lacks financial autonomy (art. 2).

The Committee recommends that the State party should ensure that the current budget cuts to human rights institutions, in particular the Irish Human Rights Commission, do not result in the crippling of its activities and render its mandate ineffective. In this regard, the State party is encouraged to strengthen its efforts in ensuring that human rights institutions continue to effectively discharge their mandates. Furthermore, the Committee recommends that the State party should strengthen the independence of IHRC by, inter alia, ensuring its direct accountability to Parliament and financial autonomy in line with the principles relating to the status of national institutions for the promotion and protection of human rights ( Paris Principles).

Rendition flights

(9)The Committee is concerned at the various reports of the State party’s alleged cooperation in a rendition programme, where rendition flights use the State party’s airports and airspace. The Committee is also concerned at the inadequate response by the State party with regard to investigating these allegations (art. 3).

The State party should provide further information on specific measures taken to investigate allegations of the State party ’ s involvement in rendition programmes and the use of the State party ’ s airports and airspace by flights involved in “ extraordinary rendition ” . The State party should provide clarification on such measures and the outcome of the investigations, and take steps to ensure that such cases are prevented.

Refugees and international protection

(10)While taking note that asylum applications falling under the Dublin II Regulation are subject to appeal before the Refugee Appeals Tribunal in the State party, the Committee is concerned that the lodging of an appeal does not have suspensive effect on the impugned decisions. The Committee is also concerned that while the draft immigration, residence and protection bill of 2008 contains a prohibition on non-refoulement, the bill does not set out the procedure to be followed. Furthermore, the Committee takes note of reports indicating the considerable drop in positive determinations for refugee status (arts. 3 and 14).

The Committee recommends that the State party pursue efforts aimed at strengthening the protection of persons in need of international protection. In this regard, the State party should consider amending the draft immigration, residence and protection bill in order to bring it into line with the requirements of the Convention, in particular with regard to the rights of migrants to judicial review over administrative actions as also recommended by the Committee on the Elimination of Racial Discrimination (CERD/C/IRL/CO/3-4, para. 15). The Committee also recommends that the State party consider amending its legislation so that the lodging of an appeal before the Refugee Appeals Tribunal has suspensive effect on the impugned decision. Furthermore, the Committee recommends that the State party investigate the considerable drop in positive determinations for refugee status to ensure that applications are processed following due process.

Prison conditions

(11)The Committee notes the State party’s efforts to alleviate overcrowding in prisons through, inter alia, the construction of new accommodation in existing prison facilities and the upgrading of some of these facilities, as well as through the adoption of alternative non-custodial measures to reduce the number of individuals who are being sent to prison, such as the adoption of the Fines Act of 2010. The Committee, however, remains deeply concerned at reports that overcrowding remains a serious problem (arts. 11 and 16).

The Committee recommends that the State party:

(a) Adopt specific time frames for the construction of new prison facilities which comply with international standards. In this regard, the Committee requests the State party to inform it of any decisions taken with regard to the Thornton Hall prison project;

(b) Adopt a policy focusing on the development of alternative, non-custodial sanctions, including the enactment of the bill amending the Criminal Justice (Community Service) Act 1983, which provides that judges will be required to consider community service as an alternative to custody in all cases where a custodial sentence of 12 months or less is appropriate;

(c) Expedite the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the establishment of a national preventive mechanism.

(12)While noting the efforts by the State party to provide all cells with in-cell sanitation, the Committee is deeply concerned at the continuing practice of “slopping out” in some of the prisons in the State party, which amounts to inhuman and degrading treatment (arts. 11 and 16).

The Committee recommends that the State party strengthen its efforts to eliminate, without delay, the practice of “ slopping out ” , starting with instances where prisoners have to share cells. The Committee further recommends that until such a time as all cells possess in-cell sanitation, concerted action should be taken by the State party to ensure that all prisoners are allowed to be released from their cells to use toilet facilities at all times.

(13)The Committee notes the clarification provided by the State party on the use of special observation cells. The Committee also notes with interest that, following a recommendation by the Inspector of Prisons, the Prison Service is in the process of designating safety observation cells for medical reasons only, which will be covered by an amendment to the prison rules (arts. 11 and 16).

The Committee recommends that the State party ensure that it follows the guidance given by the Inspector of Prisons in his report dated 7 April 2011 that appropriate use should be made of safety observation cells and close observation cells.

(14)The Committee is concerned at reports that deficiencies have been identified in the standard of health care provided in a number of prisons in the State party (arts. 11 and 16).

The Committee recommends that the State party improve health care in all prisons, taking into account the guidance provided by the Inspector of Prisons as stated in his report dated 18 April 2011.

Inter-prisoner violence

(15)The Committee notes the measures taken by the State party to address inter-prisoner violence. However, it remains concerned at the continued high rates of incidents in some of the prisons, and at reports of allegations by prisoners from the Traveller community in Cork Prison that they are consistently subjected to acts of intimidation by other prisoners (arts. 11 and 16).

The Committee recommends that the State party intensify its efforts to tackle inter-prisoner violence by, inter alia:

(a) Addressing the factors contributing to inter-prisoner violence, such as the availability of drugs, the existence of feuding gangs, lack of purposeful activities, lack of space and poor material conditions;

(b) Providing sufficient members of staff who also receive training on the management of inter-prisoner violence;

(c) Addressing the issue of intimidation of the Traveller community and investigating all allegations of such intimidation.

The Committee also recommends that the State party provide statistical data so as to enable the Committee to evaluate the effectiveness of the State party ’ s measures to tackle inter-prisoner violence.

Separation of remand prisoners

(16)While welcoming the efforts by the State party to keep sentenced and remand prisoners in separate accommodation areas in so far as possible, the Committee is concerned at the continued lack of separation of such persons (arts. 11 and 16).

The Committee recommends that the State party take urgent measures to house remand prisoners separately from sentenced prisoners.

Detention of refugees and asylum-seekers

(17)The Committee is concerned at the placement of persons detained for immigration-related reasons in ordinary prison facilities together with convicted and remand prisoners (arts 11 and 16).

The Committee recommends that the State party take measures to ensure that all persons detained for immigration-related reasons are held in facilities that are appropriate to their status.

Complaint and investigation mechanisms

(18)The Committee notes the information provided by the State party with regard to the investigation of complaints by prisoners against prison staff relating to incidents which allegedly occurred in the following prisons: Portlaoise, on 30 June 2009; Mountjoy, on 15 June 2009 and 12 January 2010; Cork, on 16 December 2009; and Midlands, on 7 June 2009. The Committee notes with concern that in all these cases there have been no independent and effective investigations into the allegations of ill-treatment by prison staff. The Inspector of Prisons, in his report of 10 September 2010 entitled “Guidance on best practice for dealing with prisoners’ complaints”, concluded that there is no independent complaints and investigation body to investigate prisoners’ complaints and that present procedures followed do not accord with best practice, and recommended the establishment of an independent mechanism to receive and investigate complaints against prison staff (arts. 2, 12, 13 and 16).

The Committee recommends that the State party:

( a) Establish an independent and effective complaint and investigation mechanism to facilitate the submission of complaints by victims of torture and ill-treatment by prison staff and ensure that in practice complainants are protected against any intimidation or reprisals as a consequence of the complaints;

(b) Institute prompt, impartial and thorough investigations into all allegations of torture or ill-treatment by prison staff;

(c) Ensure that all officials who are allegedly involved in any violation of the Convention are suspended from their duties during the conduct of the investigations;

(d) Provide the Committee with information on the number of complaints made concerning allegations of torture and ill-treatment by prison staff, the number of investigations carried out and the number of prosecutions and convictions, as well as on the redress awarded to victims.

(19)The Committee welcomes the establishment of the Garda Síochána Ombudsman Commission (GSOC) in 2005, the members of which cannot be serving members or former members of the Garda Síochána (Police Force). GSOC is empowered to investigate complaints of torture and ill-treatment against members of the Garda Síochána. However, the Committee regrets that GSOC can also refer complaints to the Garda (Police) Commissioner, who can proceed with the investigations independently or under the supervision of GSOC, except complaints concerning the death of or serious harm to a person in police custody. The Committee is also concerned at the information that GSOC has submitted proposals for the amendment of the Garda Síochána Act of 2005 in a number of areas, including the power to allow GSOC to refer investigations back to the Garda Síochána, thereby allowing the police to investigate itself (arts. 2, 12, 13 and 16).

The Committee recommends that the State party ensure by law that all allegations of torture and ill-treatment by the police are directly investigated by the Garda Síochána Ombudsman Commission and that sufficient funds are allocated to the Commission so as to enable it to carry out its duties promptly and impartially and to deal with the backlog of complaints and investigations which has accumulated. The Committee also requests the State party to provide it with statistical data on (a) the number of complaints of torture and ill-treatment filed against prison officers, the number of investigations instituted, and the number of prosecutions and convictions imposed; and (b) the number of cases that have been referred to the Garda Síochána.

Follow-up to the Ryan Report

(20)The Committee notes the efforts made by the State party concerning the plan it had adopted in 2009 in order to implement the recommendations of the report of the Commission to Inquire into Child Abuse, known as the Ryan Report. However, the Committee is concerned that, according to a statement made by the Ombudsman for Children in March 2011, significant commitments under the plan have yet to be implemented. The Committee is also gravely concerned that despite the findings of the Ryan Report that “physical and emotional abuse and neglect were features of the institutions” and that “sexual abuse occurred in many of them, particularly boys’ institutions”, there has been no follow-up by the State party. The Committee is also concerned that, despite the extensive evidence gathered by the Commission, the State party has forwarded only 11 cases to prosecution, out of which 8 were rejected (arts. 12, 13, 14 and 16).

The Committee recommends that the State party:

(a) Indicate how it proposes to implement all the recommendations of the Commission to Inquire into Child Abuse and indicate the time frame for doing so;

(b) Institute prompt, independent and thorough investigations into all cases of abuse as found by the report and, if appropriate, prosecute and punish perpetrators;

(c) Ensure that all victims of abuse obtain redress and have an enforceable right to compensation, including the means for as full rehabilitation as possible.

Magdalene Laundries

(21)The Committee is gravely concerned at the failure by the State party to protect girls and women who were involuntarily confined between 1922 and 1996 in the Magdalene Laundries, by failing to regulate and inspect their operations, where it is alleged that physical, emotional abuses and other ill-treatment were committed, amounting to breaches of the Convention. The Committee also expresses grave concern at the failure by the State party to institute prompt, independent and thorough investigations into the allegations of ill-treatment perpetrated on girls and women in the Magdalene Laundries (arts. 2, 12, 13, 14 and 16).

The Committee recommends that the State party institute prompt, independent and thorough investigations into all complaints of torture and other cruel, inhuman or degrading treatment or punishment that were allegedly committed in the Magdalene Laundries and, in appropriate cases, prosecute and punish the perpetrators with penalties commensurate with the gravity of the offences committed, and ensure that all victims obtain redress and have an enforceable right to compensation, including the means for as full rehabilitation as possible.

Children in detention

(22)The Committee takes note of the policy of the State party to detain children in Children Detention Schools under the supervision of the Irish Youth Justice Service. However, the Committee is gravely concerned that 16- and 17-year-old males are still detained in St Patrick’s Institution, which is a medium-security prison that is custodial rather than a care facility designed for children. The Committee is also concerned that despite its commitment to end the detention of young children in St Patrick’s Institution, the State party has not yet finalized its decision to proceed with the construction of the new national children detention facilities (arts. 2, 11 and 16).

The Committee recommends that the State party proceed, without any delay, with the construction of the new national children detention facilities at Oberstown. In the meantime, the Committee recommends that the State party take appropriate measures to end the detention of children in St Patrick ’ s Institution and move them into appropriate facilities.

(23)The Committee expresses deep concern that the Ombudsman for Children has no mandate to investigate allegations of acts in violation of the Convention at St Patrick’s Institution, leaving children at that institution without access to any mechanism for lodging complaints (arts. 12 and 13).

The Committee recommends that the State party review its legislation on the establishment of the Ombudsman for Children with a view to including in the mandate the power to investigate complaints of torture and ill-treatment of children held at St Patrick ’ s Institution.

Corporal punishment

(24)While taking note that corporal punishment is prohibited in schools and in the penal system, the Committee is gravely concerned that such punishment is lawful in the home under the common law right to use “reasonable and moderate chastisement” in disciplining children and also in certain alternative care settings (arts. 2 and 16).

The Committee recommends that the State party prohibit all corporal punishment of children in all settings, conduct public campaigns to educate parents and the general public about its harmful effects, and promote positive non-violent forms of discipline as an alternative to corporal punishment.

Prohibition of female genital mutilation

(25)The Committee notes the intention of the State party to restore to the Seanad (parliament) Order Paper the Criminal Justice (Female Genital Mutilation) Bill which criminalizes female genital mutilation (FGM) and provides for related offences, some of which confer on courts extraterritorial jurisdiction. However, the Committee regrets the lack of legislation prohibiting FGM, even though data based on a 2006 census indicates that about 2,585 women in the State party have undergone FGM (arts. 2 and 16).

The Committee recommends that the State party:

(a) Expedite the restoration of the Criminal Justice (Female Genital Mutilation) Bill to the new Seanad Order Paper;

(b) Implement targeted programmes with a view to sensitizing all segments of the population about the extremely harmful effects of FGM;

(c) Explicitly define under the law that FGM amounts to torture.

Abort ion

(26)The Committee notes the concern expressed by the European Court of Human Rights about the absence of an effective and accessible domestic procedure in the State party for establishing whether some pregnancies pose a real and substantial medical risk to the life of the mother (case of A, B and C v. Ireland), which leads to uncertainty for women and their medical doctors, who are also at risk of criminal investigation or punishment if their advice or treatment is deemed illegal. The Committee expresses concern at the lack of clarity cited by the Court and the absence of a legal framework through which differences of opinion could be resolved. Noting the risk of criminal prosecution and imprisonment facing both the women concerned and their physicians, the Committee expresses concern that this may raise issues that constitute a breach of the Convention. The Committee appreciates the intention of the State party, as expressed during the dialogue with the Committee, to establish an expert group to address the Court’s ruling. The Committee is nonetheless concerned further that, despite the already existing case law allowing for abortion, no legislation is in place and that this leads to serious consequences in individual cases, especially affecting minors, migrant women, and women living in poverty (arts. 2 and 16).

The Committee urges the State party to clarify the scope of legal abortion through statutory law and provide for adequate procedures to challenge differing medical opinions as well as adequate services for carrying out abortions in the State party, so that its law and practice is in conformity with the Convention.

Violence against women, including domestic violence

(27)The Committee welcomes measures taken by the State party to prevent and alleviate gender-based violence, including the adoption of the National Strategy on Domestic, Sexual and Gender-based Violence, 2010–2014. However, the Committee is gravely concerned at reports on the continued high rates of domestic violence against women and at the cuts in funding, in 2009 and 2010, for refuge and support services for victims of violence.

The Committee urges the State party:

(a) To strengthen its efforts to prevent violence against women through, inter alia, the effective implementation of the National Strategy on Domestic, Sexual and Gender-based Violence, including the collection of relevant data;

(b) To enhance its support and funding of refuge and support services provided for victims of domestic violence;

(c) To institute prompt, impartial and thorough investigations into allegations of domestic violence, and where appropriate, prosecutions and convictions;

(d) To amend the Domestic Violence Act of 1996 so as to include clear criteria to grant safety and barring orders and extend eligibility for all parties who are or have been in an intimate relationship, regardless of cohabitation, in line with internationally recognized best practice;

(e) To ensure that migrant women with dependent immigration status who are experiencing domestic violence be afforded independent status under legislation.

Treatment of persons with mental disabilities

(28)The Committee expresses concern at the fact that the definition of a voluntary patient is not sufficiently drawn to protect the right to liberty of a person who might be admitted to an approved mental health centre. The Committee further regrets the lack of clarity on the reclassification of mentally disabled persons from voluntary to involuntary (arts. 2 and 16).

The Committee recommends that the State party review its Mental Health Act of 2001 in order to ensure that it complies with international standards. The Committee, therefore, recommends that the State party report on the specific measures taken to bring its legislation into line with internationally accepted standards in its second periodic report.

Protection of separated and unaccompanied minors

(29)While taking note of information provided by the State party regarding the procedure to protect separated and unaccompanied minors under the mandate of the Health Service Executive, the Committee is deeply concerned that between 2000 and 2010, a total of 509 children went missing and only 58 were accounted for. The Committee further regrets the lack of information from the State party on the measures taken to prevent this phenomenon and to protect these minors from other forms of exploitation (arts. 2 and 16).

The State party should take measures to protect separated and unaccompanied minors. It should also, in this regard, provide data on specific measures taken to protect separated and unaccompanied minors.

Training of law enforcement personnel

(30)While welcoming the information provided by the State party on the general training programmes for the Garda Síochána, the Committee is concerned at the lack of specific training of both law enforcement personnel, with regard to the prohibition of torture and ill-treatment, and medical officers, on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) (arts. 2, 10 and 16).

The Committee recommends that the State party:

(a) Ensure that law enforcement personnel are provided, on a regular and systematic basis, with the necessary training on the provisions of the Convention, especially with regard to the prohibition of torture;

(b) Ensure that medical personnel and others involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment, as well as other professionals involved in the documentation and investigation of torture, are provided, on a regular and systematic basis, with training on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) and that the Manual is translated into all appropriate languages. The State party should also ensure that such training is also provided for individuals involved in asylum determination procedures;

(c) Develop and implement a methodology to assess the effectiveness and impact of such educational and training programmes on the prevention of torture and ill-treatment and regularly evaluate the training provided for its law enforcement officials;

(d) Strengthen its efforts to implement a gender-sensitive approach for the training of those involved in the custody, interrogation or treatment of women subjected to any form of arrest, detention or imprisonment;

(e) Strengthen its efforts to ensure the training of law enforcement personnel and others on the treatment of vulnerable groups at risk of ill-treatment, such as children, migrants, Travellers, Roma and other vulnerable groups;

(f) Strengthen professional training in hospitals, medical and social institutions .

(31)The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet a party, namely, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention on the Rights of Persons with Disabilities, and the International Convention for the Protection of All Persons from Enforced Disappearance.

(32)The State party is requested to disseminate widely the report submitted to the Committee, summary records and the present concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations.

(33)The Committee requests the State party to provide, within one year, follow-up information in response to the Committee’s recommendations contained in paragraphs 8, 20, 21 and 25 of the present document.

(34)The Committee invites the State party to submit its next treaty-specific report within the limit of 40 pages. The Committee also invites the State party to update its common core document (HRI/CORE/1/Add.15/Rev.1) in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee Meeting of the human rights treaty bodies, and to observe the limit of 80 pages. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(35)The State party is invited to submit its next report, which will be the second periodic report, by 3 June 2015.

57. Kuwait

(1)The Committee against Torture considered the second periodic report of Kuwait (CAT/C/KWT/2) at its 986th and 989th meeting (CAT/C/SR.986 and 989), held on 11 and 12 May 2011, and adopted, at its 1007th meeting (CAT/C/SR.1007), the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the second periodic report of Kuwait, which has been submitted in accordance with the new optional procedure of the Committee consisting of replies of the State party to a list of issues prepared and transmitted by the Committee (CAT/C/KWT/Q/2) to allow for a more focused dialogue. However, the Committee regrets the lack of detailed information of the report, including statistical data, as well as that the report was submitted nine years late. This has prevented the Committee from conducting an on-going analysis on the implementation of the Convention in the State party.

(3)The Committee notes with appreciation that a high-level delegation from the State party met with the Committee, and also notes with appreciation the opportunity to engage a constructive dialogue covering various areas of concern under the Convention.

B. Positive aspects

(4)The Committee welcomes the fact that since the consideration of the initial report, the State party has ratified or acceded to the following international instruments:

(a)Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict;

(b)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

(5)The Committee welcomes the establishment of the Higher Committee on Human Rights in 2008 which is in charge of reviewing existing laws and regulations and proposing amendments, to integrate fundamental concepts of human rights into school and university curricula.

(6)The Committee notes with satisfaction that on 12 May 2010 the State party has extended invitations to all special procedures mechanisms of the Human Rights Council.

C. Principal subjects of concern and recommendations

Definition and criminalization of torture

(7)The Committee welcomes the commitment of the State party made by its representatives during the dialogue to enact a specific law to adopt a definition of torture in full conformity with article 1 of the Convention as well as to amend its national legislation in order to ensure appropriate penalties for torture and ill-treatment. However, the Committee notes with concern that current legal provisions fail to give a definition of torture and to ensure appropriate penalties applicable to such acts, as they set the maximum penalty of three years and/or a fine of 225 dinars for arrest, imprisonment or detention not prescribed by law and seven years only if such acts are combined with physical torture or threats of death (arts. 1 and 4).

The Committee reiterates its previous recommendation (A/53/44, para. 230) that a crime of torture, as defined in article 1 of the Convention, be incorporated into the penal domestic law of the State party ensuring that all the elements contained in article 1 of the Convention are included.

The State party should revise its national legislation to ensure that acts of torture are offences under criminal law and are punishable by severe penalties which take into account the grave nature of these acts, as required by article 4, paragraph 2, of the Convention.

Fundamental legal safeguards

(8)While noting that the Code of Criminal Procedure (17/60) and the Prison Regulation Act (26/1962) contain provisions providing some legal safeguards to detainees such as the right to have access to a lawyer, to notify a relative, to be informed about the charges laid against them and to appear before a judge within a time limit in accordance with international standards, the Committee notes with concern that these provisions are little respected. In addition, while noting that article 75 of the Code of Criminal Procedure guarantees to an accused person the right to hire a lawyer to defend him or her and attend the interrogation session, the Committee is concerned that the lawyers may only speak with the permission of the investigator (art. 2).

The State party should promptly take effective measures to ensure that all detainees are afforded, in practice, all fundamental legal safeguards from the very outset of the detention, including the rights to have prompt access to a lawyer and an independent medical examination, to notify a relative, to be informed of their rights at the time of detention, including about the charges laid against them, and to appear before a judge within a time limit in accordance with international standards.

Monitoring and inspection of places of detention

(9)The Committee takes note of the statement in the replies to the list of issues that, according to the Judiciary Reorganization Act (23/1990), Act No. 26 of 1962 and article 56 of decree-law No. 23 of 1990, the Kuwaiti legislation guarantees several types of control and supervision over prisons. However, the Committee is concerned at the lack of systematic and effective monitoring of all places of detention, including regular and unannounced visits to such places by national and international monitors (art. 2).

The Committee calls upon the State party to establish a national system to effectively monitor and inspect all places of detention and follow up on the outcome of such systematic monitoring. This system should include regular and unannounced visits in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. The State party is encouraged to accept monitoring of places of detention by relevant international mechanisms.

Complaints and prompt, thorough and impartial investigations

(10)While noting that, according to the information provided to the Committee during the dialogue, the Kuwaiti Ministry of Interior has set up a special department to record public complaints and to follow up on grievances of abuse of authority filed against any officer working at the Ministry of Interior, the Committee regrets the lack of an independent complaint mechanism for receiving and conducting prompt, thorough and impartial investigations of torture reported to the authorities, and for ensuring that those found guilty are appropriately punished (art. 13).

T he State party should establish a fully independent complaint mechanism, ensure prompt, impartial and full investigations into all allegations of torture and prosecute alleged perpetrators and punish those who have been found guilty.

(11)While noting that for the period of 2001–2011 there were 632 trials on cases of torture, ill-treatment and corporal punishment, and that in 248 cases sentences perpetrators were punished, the Committee however notes that the State party failed to provide information on the exact types of penalties applied to the convicted perpetrators (arts. 4, 12 and 13).

The Committee requests the State party to provide information, including statistics, on the number of complaints filed against public officials on torture and ill-treatment, as well as about the results of the proceedings, at both the penal and disciplinary levels, with examples of relevant sentences.

(12)The Committee deeply regrets the death of Mohamed Ghazi Al-Maymuni Al-Matiri, subjected to torture in January 2011 by the law enforcement officials while he was in police custody. The Committee takes note of the indictment of 19 persons who participated in acts of torture related to this case (art. 12).

The Committee requests the State party to provide detailed information on the judicial developments concerning this case, as well as on measures of compensation to the relatives of the victim.

(13)The Committee expresses its concern at the case of eight persons released from Guantanamo Bay and returned to Kuwait who were allegedly arrested and tried in Kuwait upon their return.

The Committee requests the State party to provide information on the exact circumstances of this case, as well as on any new judicial development.

(14)The Committee notes that in the concluding observations of the Human Rights Committee of 2000 (CCPR/CO/69/KWT, para. 11) reference was made to a list of 62 persons detained in 1991 in the aftermath of the war, who had subsequently disappeared. The Committee notes that the State party acknowledged only one case. The Committee is concerned that the information about disappearance of persons detained following the 1991 war is recurrent and the issue has been raised by a non-governmental organization during the examination of the report of Kuwait by the universal periodic review mechanism in May 2010.

The State party should provide detailed information to clarify cases of detained and disappeared persons following the 1991 war brought to its attention.

Non-refoulement

(15)The Committee regrets the lack of information to item 5 (CAT/C/KWT/2, para. 18) of the State party’s responses to the Committee’s list of issues (CAT/C/KWT/Q/2), on statistical information for the past five years (2005–2010) on asylum applications, in particular, those submitted by asylum-seekers who had been tortured or might be tortured if returned to their country of origin (art. 3).

Under no circumstances should the State party expel, return or extradite a person to a State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or ill-treatment. The Committee requests the State party to provide information, in detail, on the precise number of asylum applications received, the number of successful asylum applications, the number of asylum-seekers whose applications were accepted because they had been tortured or might be tortured if returned to their country of origin and the number of deportations with an indication of (a) the number of deportations relating to asylum-seekers, and (b) the countries to which deportations have been carried out. The data should be disaggregated by age, sex and nationality.

Refugees

(16)The Committee notes that despite the existing cooperation with UNHCR, the State party has not yet ratified the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

The State party is encouraged to consider becoming a party to the 1951 Refugee Convention and its 1967 Protocol.

Imposition of the death penalty

(17)While noting the information provided by the delegation that the death penalty has not been applied in the State party since 2006, the Committee is concerned at the lack of information provided on the number of persons executed before 2006. It is also concerned at the wide number of offences for which death penalty is imposed, as well as the lack of information on the number of persons currently on death row. The Committee is further concerned at the provisions of article 49 of the Code of Criminal Procedure which allows for the use of excessive force on death row detainees (arts. 2 and 16).

The Committee recommends that the State party consider ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. In the meantime, the State party should review its policy with a view to restricting to the most serious crimes the imposition of the death penalty. The State party should ensure that all persons on death row are afforded the protection provided by the Convention against Torture and treated humanely and that no discriminatory measures and ill-treatment are applied to these persons. The Committee requests the State party to provide information on the precise number of persons executed since the consideration of the previous report in 1998 and for which offences. The State party should also indicate the current number of persons on death row, disaggregated by sex, age, ethnicity and offence.

Training

(18)The Committee notes with appreciation that the State party organized several trainings of law enforcement officials on human rights. However, the Committee is concerned at the lack of specific training of law enforcement officials, security personnel, judges, prosecutors, forensic doctors and medical personnel dealing with detained persons, on the provisions of the Convention and on how to detect and document physical and psychological sequelae of torture and other cruel, inhuman or degrading treatment or punishment. The Committee also regrets the lack of information on trainings on human trafficking, domestic violence, migrants, minorities and other vulnerable groups, as well as on monitoring and evaluation of the impact of any of its training programmes in reducing incidents of torture and ill-treatment (art. 10).

The State party should further develop and strengthen educational trainings and programmes to ensure that all officials, including law enforcement, security and prison officials, are fully aware of the provisions of the Convention, that breaches of the Convention will not be tolerated and will be promptly and effectively investigated, and that offenders will be prosecuted. Furthermore, all relevant personnel, including medical personnel, should receive specific training on how to identify signs of torture and ill-treatment. To this effect, the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), should be included in the training material. The State party should also develop educational trainings for all officials on human trafficking, domestic violence, migrants, minorities and other vulnerable groups. In addition, the State party should assess the effectiveness and impact of training/educational programmes on the absolute prohibition of torture.

Conditions of detention

(19)The Committee welcomes that a bill has been submitted to amend article 60 of the Criminal Law Procedure of 1960 in order to reduce the maximum period of police custody without written order from four days to 48 hours maximum. However, the Committee is seriously concerned at the general conditions of detention in all types of detention facilities (arts. 11 and 16).

The Committee requests the State party to provide detailed information on general conditions of detention, including the rate of occupancy in all types of detention facilities. The State party should take urgent measures to bring the conditions of detention in all detention facilities into line with the Standard Minimum Rules for the Treatment of Prisoners, improving the food and the health care provided to detainees and strengthening the judicial supervision and independent monitoring of conditions of detention.

Conditions in psychiatric hospitals

(20)The Committee takes into account the information provided during the dialogue about persons with mental disabilities. The Committee regrets, however, that little information was provided on the conditions and legal safeguards for persons placed in involuntary treatment in psychiatric facilities (art. 16).

The Committee recommends that the State party take all necessary measures to ensure that persons in involuntary treatment have access to complaint mechanisms. The Committee requests the State party to provide information on conditions for persons in psychiatric hospitals.

Redress, including compensation and rehabilitation

(21)While noting that the legislation of the State party contains general provisions that arguably provide possibilities for victims of torture to obtain compensation by the State, including restitution of his or her rights, adequate and equitable financial remedies, medical care and rehabilitation, the Committee is concerned at the lack of a specific programme to implement the rights of victims of torture and ill-treatment to receive adequate reparation and compensation. The Committee is also concerned at the lack of available information regarding the number of victims of torture and ill-treatment who may have received compensation and the amounts awarded in such cases, as well as the lack of information on other forms of assistance, including medical or psychosocial rehabilitation, provided to these victims (arts. 12 and 14).

The State party should ensure that the victims of torture and ill-treatment obtain the enforceable right to redress, including fair and adequate compensation and as full rehabilitation as possible. Furthermore, the State party should provide information on redress and compensation measures ordered by the courts and provided to victims of torture. This information should include the number of requests made, the number granted, and the amounts ordered and actually provided in each case. In addition, the State party should provide information on any on-going reparation programmes, including treatment of trauma and other forms of rehabilitation provided to victims of torture and ill-treatment, as well as the allocation of adequate resources to ensure the effective functioning of such programmes.

Migrant domestic workers

(22)The Committee expresses its concern at reports referring to widespread abuse of migrant domestic workers, and in particular, women. It appears that this fragile group is constantly exposed to ill-treatment in complete impunity and without legal protection. The Committee also regrets the lack of statistics regarding the number and type of complaints filed with authorities that assume supervision of domestic labour, and on how these complaints are resolved. The Committee takes note of the State party’s commitment made by its representatives during the consideration of its report at the eighth session of the universal periodic review in May 2010, to make efforts to create legislation against human trafficking and the smuggling of migrants in line with the United Nations Convention against Transnational Organized Crime and the Protocol thereto (arts. 1, 2 and 16).

The State party should adopt, as a matter of urgency, labour legislation covering domestic work and providing legal protection to migrant domestic workers, in particular, women, in its territory against exploitation, ill-treatment and abuse. The State party should also provide the Committee with statistics, including on the number and type of complaints filed with authorities, as well as the action taken to solve cases that caused these complaints.

Violence against women

(23)The Committee notes with concern numerous allegations of violence against women and domestic violence, on which the State party has not provided information. The Committee is concerned at the absence of a specific law on domestic violence, as well as the lack of statistical information on the overall complaints of domestic violence reported and the number of investigations, convictions and punishments meted out (arts. 2 and 16).

The Committee:

(a) Calls upon the State party to enact, as a matter of urgency, legislation to prevent, combat and criminalize violence against women, including domestic violence;

(b) Recommends that the State party carry out research and data collection on the extent of domestic violence, and provide the Committee with statistical data on complaints, prosecutions and sentences;

(c) Encourages the State party to organize the participation of its public officials in rehabilitation and legal assistance programmes and to conduct broad awareness campaigns for officials such as judges, law officers, law enforcement agents and welfare workers, who are in direct contact with victims. The population at large should be made aware of those programmes.

Human trafficking

(24)The Committee is concerned at the lack of specific legislation to prevent, combat and criminalize human trafficking. The Committee is further concerned at the lack of information on trafficking in persons, including the existing legislations and statistics, particularly the number of complaints, investigations, prosecutions and convictions of perpetrators of trafficking, and the lack of information on practical measures adopted to prevent and combat such phenomena, including medical, social and rehabilitative measures (arts. 2, 4 and 16).

The State party should combat trafficking in human beings through the adoption and implementation of specific anti-trafficking legislation ensuring that trafficking is defined as a crime in the State party in accordance with international standards. These offences should be punishable by appropriate penalties. The State party should provide protection for victims and ensure their access to medical, social, rehabilitative, counsel l ing and legal services.

Discrimination and violence against vulnerable groups

(25)The Committee is concerned at reports that vulnerable groups such as lesbian, gay, bisexual and transgender (LGBT) persons are subjected to discrimination and ill-treatment, including sexual violence, both in public and domestic settings (arts. 2 and 16).

The State party should investigate crimes related to discrimination directed towards all vulnerable groups and pursue ways in which hate crimes can be prevented and punished. The State party should also promptly, thoroughly and impartially investigate all cases of discrimination and ill-treatment of these vulnerable groups, and punish those responsible for these acts. The State party should conduct awareness-raising campaigns for all officials who are in direct contact with victims of such violence, as well for the population at large.

Situation of “ Bidun ” persons

(26)The Committee expresses its concern at the situation of at least 100,000 people, who are not legally recognized by the State, known as the “Bidun” (without nationality) and who are allegedly victims of various types of discrimination and ill-treatment (art. 16).

The State party should enact specific legislation in order to protect “ Bidun ” people and recognize their legal status. The State party should adopt all adequate legal and practical measures to simplify and facilitate the regularization and integration of these persons and their children. It should ensure that these persons enjoy all human rights without discrimination of any kind. The State party should also adopt the necessary measures to guarantee that these persons are informed of their rights in a language they understand and have access to the fundamental legal safeguards from the moment they are deprived of their liberty, without any discrimination.

Na tional human rights institution

(27)The Committee notes with concern that the State party has not yet established a national human rights institution to promote and protect human rights in the State party, in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles) (General Assembly resolution 48/134, annex) (art. 2).

The State party should establish an independent national human rights institution, in accordance with the Paris Principles .

Data collection

(28)The Committee regrets the absence of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment by law enforcement, security, intelligence and prison personnel, as well as on trafficking, ill-treatment of migrant workers, and domestic and sexual violence.

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention at the national level, including data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment, trafficking, ill-treatment of migrant workers and domestic and sexual violence as well as on compensation and rehabilitation provided to the victims.

(29)The Committee recommends that the State party consider ratifying the Optional Protocol to the Convention.

(30)The Committee welcomes the commitment of the State party made during the dialogue to withdraw its reservation to article 20 of the Convention.

(31)The Committee recommends that the State party consider making the declarations envisaged under articles 21 and 22 of the Convention.

(32)The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet a party, namely, the Convention on the Rights of Persons with Disabilities, the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the Convention for the Protection of All Persons from Enforced Disappearance.

(33)The Committee invites the State party to ratify the Rome Statute on the International Criminal Court, the Convention on the Status of Stateless Persons and the Convention on the Reduction of Statelessness.

(34)The Committee invites the State party to present its next periodic report accordance with its reporting guidelines and to observe the page limit of 40 pages for the treaty-specific document. The Committee also invites the State party to update its common core document in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee meeting of the human rights treaty bodies, and to observe the page limit of 80 pages for the common core document. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(35)The State party is encouraged to disseminate widely the reports submitted to the Committee and the present concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations.

(36)The Committee requests the State party to provide, within one year, follow-up information in response to the Committee’s recommendations contained in paragraphs 10, 11 and 17 and to provide information on the follow-up to its commitment referred to in paragraph 6 of the present concluding observations.

(37)The State party is invited to submit its next periodic report, which will be the third report, by 3 June 2015.

58. Mauritius

(1)The Committee against Torture considered the third periodic report of Mauritius (CAT/C/MUS/3), submitted in accordance with the new optional reporting procedure, at its 998th and 1001st meetings, held on 19 May and 20 May 2011 (CAT/C/SR.998 and 1001), and adopted, at its 1015th meeting, held on 31 May (CAT/C/SR 1015), the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the third periodic report of Mauritius in accordance with the new optional reporting procedure of the Committee consisting of replies by the State party to a list of issues prepared and transmitted by the Committee. The Committee expresses its appreciation to the State party for agreeing to report under this new procedure which facilitates the dialogue between the State party and the Committee. However, the Committee regrets that the report was submitted eight years late, which hinders the Committee from ongoing analysis of the implementation of the Convention.

(3)The Committee appreciates that the replies to the list of issues were submitted within the requested deadline. It also appreciates the open and constructive dialogue with the State party’s high-level delegation, as well as the additional information and explanations provided by the delegation to the Committee.

B. Positive aspects

(4)The Committee welcomes the ratification of the following international instruments:

(a)Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on 21 June 2005;

(b)Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, on 12 February 2009;

(c)Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, on 24 September 2003;

(d)Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, on 24 September 2003;

(e)Rome Statute of the International Criminal Court, on 5 March 2002;

(f)United Nations Convention against Transnational Organized Crime, on 21 April 2003.

(5)The Committee notes with satisfaction the efforts being made by the State party to amend its legislation in order to ensure greater protection of human rights and welcomes the adoption of:

(a)The Criminal Code (Amendment) Act (article 78), in 2003, which incorporates in national law the definition of torture set out in article 1 of the Convention against torture;

(b)The Amendments, in 2004, to the Protection from Domestic Violence Act of 1997;

(c)The Amendments, in 2005 and 2008, to the Child Protection Act 1994;

(d)The Combating of Trafficking Act on 21 April 2009;

(e)The Criminal Procedure (Amendment) Act 2007 (section 5(1)) to abolish mandatory sentences in relation to offences under the Criminal Code and the Dangerous Drugs Act and to restore the sentencing discretion of the Court in 2007;

(f)The Imprisonment for Civil Debt (Abolition) Act 2006;

(g)The Sex Discrimination Act 2002 which creates a Sex Discrimination Division within the National Human Rights Commission;

(h)The Transfer of Prisoners Act passed in 2001.

(6)The Committee welcomes the efforts made by the State party to operationalize the National Human Rights Commission in April 2001 and to establish an Office of Ombudsperson for children.

C. Principal subjects of concern and recommendations

Incorporation of international law

(7)While noting that the State party has a dualist system of reception of international treaties, the Committee is concerned that the State party has not yet fully incorporated the Convention in its domestic law (art. 2).

The State party should, in the context of the forthcoming constitutional review announced by the delegation, consider fully incorporating the provisions of the Convention in its domestic legislation in order to allow the application by domestic courts of obligations set out in the Convention.

Appropriate penalties for acts of torture

(8)While noting that penalties foreseen in Section 78, as revised, of the amended Criminal Code (2008), provide for a maximum fine of 150,000 rupees and for an imprisonment for a term not exceeding 10 years for the offence of torture, the Committee is remains concerned that some aggravating circumstances, such as the permanent disability of the victim, are not taken specifically into account. It also notes with concern that penalties for other crimes, such as drug trafficking, are higher than those for torture (arts. 1 and 4).

The State party should revise its Criminal Code to make acts of torture offences punishable by appropriate penalties that take into account their grave nature, in accordance with article 4 of the Convention.

Absolute prohibition of torture

(9)While noting that “courts in Mauritius are unlikely to find that exceptional circumstances can justify torture” (CAT/C/MUS/3, para. 15), the Committee is concerned about the absence in the legislation of the State party of a provision to guarantee that no exceptional circumstances whatsoever may be invoked as a justification of torture, as prevented by article 2, paragraph 2, of the Convention.

The State party should incorporate in its legislation a provision on the absolute prohibition of torture and that no justification may be invoked in any circumstances.

Fundamental legal safeguards

(10)While noting the information provided by the State party, the Committee is concerned at the lack of clarification as to whether arrested and detained persons in police custody have access to a doctor, if possible, of their choice, at the outset of their detention and preserving the right to privacy. The Committee is also concerned at the lack of clear information as to whether detained persons are promptly informed on their right to contact their family or a person of their choice. The Committee is further concerned about the appropriate registration of persons between their arrest and the moment they are brought before a judge (art. 2).

The State party should take measures to ensure that:

(a) Persons arrested and detained in police stations have access at the outset their detention, to a doctor, if possible, of their choice;

(b) Visits by a doctor are conducted in a confidential manner;

(c) They can inform their family or a person of thei r choice about their detention.

The State party should also set clear and appropriate rules and procedures on the registration of persons from the outset of their detention and on ensuring that they are brought before a judge within a short period of time.

Complaint mechanisms

(11)While noting that different mechanisms are charged to receive and inquire on complaints against police officers for excessive use of force, such as the National Human Rights Commission and the Complaints Investigations Bureau, the Committee is concerned about the independence of the Complaints Investigation Bureau, as it remains under the administrative control of the Commissioner of Police. The Committee regrets the lack of information on the implementation of recommendations made by the National Human Rights Commission in its report of 2007 regarding the police (arts. 2, 12 and 13).

The State party should take concrete measures to ensure that complaints lodged against the police are addressed promptly, thoroughly and impartially by independent complaint mechanisms and that those responsible can be prosecuted, convicted and punished. In this regard, the State party should rapidly adopt and implement the draft Police Complaints Bill under preparation and establish the Independent Police Complaints Bureau; adopt a new Police Act and a Police Procedures and Criminal Evidence Act, as well as Codes of Practice to regulate the conduct of persons entrusted to investigate offences. The State party should also ensure the implementation of recommendations made by the National Human Rights Commission in 2007 regarding the conduct of the police and inform the Committee on its concrete results .

Non-refoulement

(12)The Committee is concerned that the legislation of the State does not clearly and fully guarantee the principle of non-refoulement set out in article 3 of the Convention, as requested by the Committee in its concluding observations (A/54/44, para. 123 (c)). It is also concerned about the lack of sufficient information regarding the process followed in cases of requests for extradition as well as the procedural guarantees the person extradited enjoys, including the right to appeal against the extradition, with suspensive effect (art. 3).

The State party should revise its legislation guaranteeing the principle of non-refoulement. The State party should review its Extradition Act to make it in full compliance with article 3 of the Convention, in particular, it should clarify the process under which extradition is requested and decided, the guarantees offered, including the possibility to challenge the decision with suspensive effect in order to ensure that persons expelled, returned or extradited are not in danger of being subject to torture. The State party should also provide detailed statistical data on the number of requests received, the requesting States and the number of persons extradited or not.

Human rights education and training

(13)While noting efforts undertaken by the State party to provide human rights education and training to police officers and other personnel, including on the prevention of torture, the Committee regrets the lack of information about the concrete results of such training programmes. The Committee is also concerned about the fact that training programmes for medical personnel do not include the Manual on the Effective Investigation and Documentation on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) (art. 10).

The State party should reinforce its training programmes to law enforcement and medical personnel, and to those involved in documenting and investigating acts of torture, on the provisions of the Convention, as well as on other instruments, such as the Manual on the Effective Investigation and Documentation on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). The State party should also set out a methodology to assess the concrete impact of such training programmes and inform the Committee on their results. In this regard, the State party is encouraged to seek technical assistance from international bodies and organizations.

Conditions of detention

(14)The Committee takes note of the information provided by the State party regarding its efforts to improve conditions of detention, including the construction on a new Prison for 750 detainees at Melrose. However, the Committee is concerned about the overcrowding in some prisons of the State party (in particular in the Beau Bassin, Petit Verger and GRNW prisons), and that prison conditions are inadequate, that separation between remand and convicted detainees is not always guaranteed, as well as about a high rate of inter-prisoner violence.The Committee is also concerned about the high rate of remand detainees (arts. 11 and 16).

The State party should take additional appropriate measures to reduce overcrowding and improve conditions in all prisons. The Committee also urges the State party to make use of alternative and non-custodial measures and to reduce pretrial detention periods. The State party should also take measures to ensure the separation of remand detainees and adopt a plan to reduce inter-prisoner violence.

Complaints, investigations and prosecutions

(15)The Committee is concerned that only few complaints for torture, excessive use of force or ill-treatment by law enforcement or prison officers or cases of death occurred in police custody are investigated and prosecuted and do not usually lead to compensation (arts. 12, 13 and 14).

The State party should systematically conduct impartial, thorough and effective inquiries into all allegations of violence committed by the police or prison officers, and prosecute and punish the perpetrators in proportion to the seriousness of their acts. It should also ensure that victims or their families obtain redress and fair and adequate compensation, including means for as full rehabilitation as possible. The State party should inform the Committee of the outcome of current proceedings and on the results of the appeal lodged by the Director of Public Prosecutions against the case dismissing four police officers accused.

Violence against women, including domestic violence

(16)The Committee notes efforts undertaken by the State party to combat domestic violence, in particular violence against women and children, such as the amendment brought in 2004 to the Protection from Domestic Violence Act and a number of plans and strategies adopted and implemented as well as mechanisms established.However, the Committee is concerned that domestic violence, in particular violence against women and children, including sexual violence persists in the State party and that marital rape is not criminalized (arts. 2 and 16).

The State party should continue to effectively address domestic violence, including violence against women and children. In this regard, the State party should ensure the entry into force of the amendments brought to the Protection from Domestic Violence Act in 2007; continue to conduct awareness-raising campaigns and training of its officials on domestic violence, including sexual violence. The State party should also take measures to facilitate complaints by victims and inform them about recourse available. It should investigate, prosecute and punish those responsible. Moreover, the State party should specifically criminalize marital rape in its Criminal Code and adopt, as soon as possible, the Sexual Offences Bill which is under preparation.

Corporal punishment and child abuse

(17)While taking note of the information supplied by the State party, according to which section 13 of the Child Protection Act makes it an offence to expose any child to harm, the Committee is concerned that corporal punishment is not fully prohibited in the legislation of the State party, including in penal institutions and in alternative care settings.The Committee is also concerned at information provided by the State party that some cases of “molestation”, including sexual abuses, are reported every year to the appropriate authorities. These cases are referred to the police, who take disciplinary measures against the culprits, but no information is provided about the penal consequences of such abuses (art. 16).

The State party should adopt legislation to prohibit corporal punishment, in particular in social institutions and in alternative care settings. To that end, the State party should incorporate this issue in its Children ’ s Bill under preparation. The State party should also pursue awareness campaigns on the negative effects of corporal punishment. Finally, it should strengthen its efforts to combat child abuse, including by investigating, prosecuting and punishing those responsible. The State party should provide the Committee with statistical data regarding cases of child abuse, the investigations, prosecutions, sentences imposed and redress or rehabilitation offered to victims.

Adoption of draft human rights bills

(18)While noting the explanation provided by the delegation of the State party on the difficulties faced in finalizing and adopting draft bills, the Committee is concerned that a number of draft human rights bills aiming at preventing torture, such the draft Independent Police Complaints Commission Bill, the Victims Right Act and the Victims Charter, the new Police Act and a Police Procedures and Criminal Evidence Act, have been under preparation or consideration before the Parliament for long periods of time, in some cases for many years, not to be adopted (arts. 2 and 4).

The State party should take the necessary steps to speed up the process of adoption of draft bills on human rights, especially those aiming at preventing torture and other cruel, inhuman and degrading treatment, and implement them as soon as adopted.

National Preventive Mechanism

(19)While noting that the National Human Rights Commission has been entrusted to act as the National Preventive Mechanism to implement the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Committee is concerned at the fact the draft National Preventive Mechanism Bill is still in the process of finalization and that the National Preventive Mechanism has not yet been established despite the ratification of the Optional Protocol by the State party in 2005 (art. 2).

The Committee recommends that the State party:

(a) Finalize the draft National Preventive Mechanism Bill, and adopt and establish the mechanism, as soon as possible. The National Preventive Mechanism should be provided with necessary human and financial resources, in compliance with the requirements of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as well as with the principles relating to status of national human rights institutions for promotion and protection of human rights (the Paris Principles) (General Assembly resolution 48/134, annex).

(b) Make public the report of the Sub-Committee following its visit in 2007.

National Plan of Action for Human Rights

(20)While noting the information provided by the State party and its delegation that a Plan Action on Human Rights will be shortly finalized, the Committee regrets that this Plan aimed at providing a general framework for the promotion and the protection of human rights in the State party, including prevention and protection against torture, has not yet been adopted (art. 2).

The State party should speed up the adoption of the Plan of Action on Human Rights and implement it in order to afford effective protection of human rights, including against torture. The State party should take into account the recommendations made by the Committee and consult the civil society when drafting and implementing such plan.

Data collection

(21)The Committee regrets the absence of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment by law enforcement, security, military and prison personnel, as well as on death row prisoners, ill-treatment of migrant workers, trafficking in humans and domestic and sexual violence.

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention at the national level, including data on complaints, investigations, prosecutions and convictions of persons guilty of torture and ill-treatment, ill-treatment of migrant workers, death row prisoners, trafficking in humans and domestic and sexual violence, disaggregated by age, sex, ethnicity and type of crime, as well as on means for redress, including compensation and rehabilitation, provided to the victims.

(22)The Committee invites the State party to consider ratifying the core United Nations human rights treaties to which it is not yet party, namely, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; the International Convention for the Protection of All Persons from Enforced Disappearance; the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty; the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights; the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; and the Optional Protocol to the Convention on the Rights of Persons with Disabilities.

(23)The Committee recommends that the State party adopt the Criminal Court Bill aiming at incorporating the provisions of the Rome Statute on the International Criminal Court in domestic law.

(24)The Committee invites the State party to consider making the declaration required under article 22 of the Convention relating to individual complaints.

(25)The Committee invites the State party to present its next periodic report in accordance with its reporting guidelines and to observe the page limit of 40 pages for the treaty-specific document. The Committee also invites the State party to update its common core document in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee meeting of the human rights treaty bodies, and to observe the page limit of 80 pages for the common core document. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(26)The State party is urged to ensure wide circulation, in all its official languages, of the report submitted to the Committee and of the Committee’s concluding observations through official websites, the media and non-governmental organizations.

(27)The Committee requests the State party to report, within one year, on its follow-up to the Committee’s recommendations contained in paragraphs 11, 14, 19 (a) and 19 (b) of the present document.

(28)The Committee invites the State party to submit its next periodic report, which will be the fourth report, by 3 June 2015.

59. Monaco

(1)The Committee against Torture considered the fourth and fifth periodic reports of Monaco (CERD/C/MCO/4-5) at its 1000th and 1003rd meetings (CAT/C/SR.1000 and 1003), held on 20 and 23 May 2011, and adopted the following concluding observations at its 1015th meeting (CAT/C/SR.1015).

A. Introduction

(2)The Committee welcomes the fourth and fifth periodic reports of Monaco and the fact that they were submitted in accordance with the new optional reporting procedure, under which the State party replies to a list of issues sent to it by the Committee (CAT/C/MCO/Q/4). The Committee thanks the State party for agreeing to submit its report under this new optional procedure, which facilitates cooperation between the State party and the Committee.

(3)The Committee welcomes the frank and constructive dialogue with the State party’s high-level delegation, which it thanks for its clear, specific and detailed answers during the dialogue, and also for the additional written replies provided.

B. Positive aspects

(4)The Committee notes with satisfaction that the State party has ratified the following international human rights instruments during the reporting period:

(a)Convention on the Elimination of All Forms of Discrimination against Women, in 2005;

(b)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in 2008.

(5)The Committee takes note with satisfaction of:

(a)The entry into force of Act No. 1,343 of 26 December 2007 on justice and liberty, amending certain provisions of the Code of Criminal Procedure, which guarantees the rights of persons held in police custody or pretrial detention. The Act also establishes a system of compensation for unjustified pretrial detention;

(b)The entry into force of Act No. 1,344 of 26 December 2007, on increased penalties for crimes against children;

(c)The entry into force of Act No. 1,312 of 29 June 2006 on the obligation to justify administrative decisions, including refoulement decisions, failing which they will be deemed null and void;

(d)Sovereign Ordinance No. 605 of 1 August 2006, giving effect to the United Nations Convention against Transnational Organized Crime and its two additional protocols.

(6)The Committee also takes note with satisfaction of the organization of various training and awareness-raising activities in the field of human rights, inter alia for judges and police officers.

C. Principal subjects of concern and recommendations

Definition and criminalization of torture

(7)The Committee notes that article 8 of the Code of Criminal Procedure, which establishes the jurisdiction of the courts for acts of torture committed abroad, refers to article 1 of the Convention. However, it remains concerned that the Criminal Code, despite having recently been revised, does not include a definition of torture that fully accords with article 1 of the Convention. The Committee is also concerned at the lack of any specific provision making torture an offence (arts. 1 and 4).

The State party should incorporate in its criminal law a definition of torture that is fully consistent with article 1 of the Convention. The Committee considers that States parties, by naming and defining the offence of torture in accordance with articles 1 and 4 of the Convention and by making it distinct from other crimes, will directly advance the Convention ’ s overarching aim of preventing torture, inter alia, by alerting everyone, including perpetrators, victims and the public, to the particular gravity of the crime of torture and by increasing the deterrent effect of the prohibition of torture.

Absolute prohibition of torture

(8)While noting that articles 127 to 130 of the Criminal Code, on abuse of authority, severely punish unlawful orders issued by public authorities, the Committee is concerned that the recent revisions of the State party’s Criminal Code do not include provisions expressly prohibiting the invocation of exceptional circumstances or an order from a superior officer or public authority as a justification of torture (art. 2).

The State party should adopt specific provisions prohibiting the invocation of exceptional circumstances or an order from a superior officer as a justification of torture, as recommended by the Committee in its previous concluding observations. The State party should take effective legislative, administrative, judicial and other measures to prevent acts of torture, including by strengthening safeguards for any officer who refuses to carry out an illegal order given by a superior officer.

Non-refoulement

(9)The Committee regrets that an appeal to the Supreme Court against a return (refoulement) or expulsion order has suspensive effect only if combined with a motion to stay execution. Moreover, given that the granting of refugee status in Monaco is subject to approval by the French Office for the Protection of Refugees and Stateless Persons (OFPRA), the Committee regrets the lack of follow-up by the State party to asylum applications dealt with by the French authorities, and also notes the practical difficulties facing asylum-seekers in Monaco who wish to appeal against a rejection of their application (art. 3).

The State party should establish a mechanism for following up on the cases of asylum-seekers dealt with by the French Office for the Protection of Refugees and Stateless Persons. It should also ensure that appeals against return (refoulement) or expulsion orders automatically have suspensive effect, in order to uphold the principle of non-refoulement. Moreover, although foreigners are expelled or returned only to France, which is also a party to the Convention, the Committee is particularly concerned at the lack of follow-up in cases of expulsion concerning, inter alia, non-European nationals who could subsequently be expelled to a State where they might be in danger of being subjected to torture or ill-treatment.

Monitoring detention conditions

(10)The Committee notes that the State party has entered into negotiations with the French authorities on an agreement that will set out the details of a “right to visit” for prisoners convicted by the Monegasque courts and serving their sentence in a French penal institution. However, the Committee is concerned at the lack of monitoring in the case of prisoners held in France, and regrets that the practice of obtaining the express consent of a person convicted in Monaco to his/her transfer to France is not formally enshrined in law (art. 11).

The State party should establish a body that reports directly to the Monegasque authorities to facilitate monitoring of the treatment of such prisoners and the conditions in which they are held. The State party is encouraged to incorporate in the agreement with France a clause requiring the express consent of convicted prisoners to their transfer.

Domestic violence

(11)The Committee notes that Bill No. 869, on efforts to combat and prevent specific forms of violence against women, children and persons with disabilities, was submitted to the National Council in October 2009. It remains concerned, however, at the delay in the process of adopting this important legislation (arts. 2, 13, 14 and 16).

The State party should ensure that Bill No. 869 is adopted quickly in order to prevent and combat all forms of violence against women, children and persons with disabilities. It should also ensure that corporal punishment for children is explicitly prohibited in all areas of life and that domestic violence is punished. The Committee further recommends that the State party should organize training or awareness-raising campaigns aimed specifically at informing victims of domestic violence about their rights.

Redress for victims of torture

(12)Despite the fact that there were no allegations of torture during the reporting period, the Committee is concerned about the absence of specific provisions on redress and compensation for victims of torture or ill-treatment (art. 14).

The Committee recommends that the State party should include in its bill on specific forms of violence explicit provisions on compensation for victims of torture or ill-treatment, in accordance with article 14 of the Convention, which also stipulates that, in the event of the death of the victim as a result of an act of torture, his or her dependants shall be entitled to compensation.

Training

(13)The Committee takes note of the information the State party has provided on the various training programmes for judges and police officers. Nevertheless, it regrets that the training provided was not entirely as specified in the Convention (art. 10).

The Committee encourages the State party to continue to organize training sessions on human rights and recommends that the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) should be incorporated in training programmes for medical personnel and other professionals. The State party should also assess the effectiveness and impact of these programmes.

Measures to combat terrorism

(14)Although no cases of terrorism were recorded during the reporting period, the Committee reiterates the concerns expressed by the Human Rights Committee (see CCPR/C/MCO/CO/2) about the broad, ill-defined definition of terrorist acts contained in the Criminal Code, including the lack of clarity in the definition of “environmental” terrorism (arts. 2 and 16).

The State party should adopt a more precise definition of terrorist acts while ensuring that all measures taken to combat terrorism comply with all its obligations under international law, including article 2 of the Convention.

National human rights institution

(15)While noting the work done by the Human Rights Unit and the Mediator, and the bill currently under consideration to strengthen the mandate of the latter, the Committee regrets the State party’s reluctance to establish a national human rights institution (arts. 2, 12, 13 and 16).

The Committee encourages the State party to establish an independent national human rights institution in accordance with the Principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles, in the annex to General Assembly resolution 48/134) and to provide that institution with the human and financial resources needed for it to effectively fulfil its role, including the investigation of allegations of torture.

(16)The Committee invites the State party to consider ratifying the core human rights instruments to which it is not yet a party, namely, the Optional Protocol to the Convention against Torture, the Convention on the Rights of Persons with Disabilities, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the International Convention for the Protection of All Persons from Enforced Disappearance, and the Rome Statute of the International Criminal Court.

(17)The State party is encouraged to disseminate widely the reports it has submitted to the Committee and the latter’s concluding observations through official websites, the media and non-governmental organizations.

(18)The Committee invites the State party to submit its next periodic report, observing the 40-page limit. It further invites the State party to update, if necessary, its core document of 27 May 2008 (HRI/CORE/MCO/2008), in accordance with the instructions relating to the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN/2/Rev.6), as approved by the Inter-Committee Meeting of the human rights treaty bodies, and to observe the 80-page limit for the common core document. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(19)The Committee requests the State party to provide it, within one year, with information on the follow-up to the recommendations formulated in paragraphs 9, 10 and 11 above.

(20)The Committee requests the State party to submit its next (sixth) periodic report by 3 June 2015.

60. Slovenia

(1)The Committee against Torture considered the third periodic report of Slovenia (CAT/C/SVN/3) at its 984th and 987th meetings, held on 10 and 11 May 2011 (CAT/C/SR.984 and 987), and adopted the following concluding observations at its 1006th meeting (CAT/C/SR.1006).

A. Introduction

(2)The Committee welcomes the submission of the third periodic report of Slovenia, which was submitted in accordance with its reporting guidelines, but regrets that it was submitted three years late.

(3)The Committee notes with appreciation that a high-level delegation from the State party met with the Committee, and also notes with appreciation the opportunity to engage in a constructive dialogue covering many areas under the Convention.

B. Positive aspects

(4)The Committee welcomes that since the consideration of the second periodic report, the State party has ratified the following international instruments:

(a)Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on 23 January 2007;

(b)Convention on the Rights of Persons with Disabilities and its Optional Protocol, on 24 April 2008;

(c)Optional Protocols to the Convention on the Rights of the Child, on 23 September 2004;

(d)Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, on 23 September 2004;

(e)Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, on 21 May 2004.

(5)The Committee notes the State party’s ongoing efforts to revise its legislation in areas of relevance to the Convention, including:

(a)Introduction of article 265 defining and criminalizing torture and the amendments increasing the maximum punishment for trafficking in human beings in the Penal Code, in 2008;

(b)Amendments to the Police Act providing detainees with access to a doctor, in 2005;

(c)Amendments in the Criminal Procedure Act and Prosecutor’s Act, in 2007, establishing Specialized Departments of the Group of State Prosecutors for prosecution of crimes committed by the police, military police or persons seconded to a military or similar mission abroad;

(d)Adoption of the Patients’ Rights Act, in 2008, which regulates the complaint procedure in case of violations of rights of patients, including those in mental health institutions;

(e)Adoption of the Mental Health Act, in 2008, which stipulates counselling and protection of rights in the area of mental health, including procedures for detention of people with mental health problems;

(f)Adoption of the Domestic Violence Prevention Act, in 2008;

(g)Adoption of the Act amending the Act regulating the Legal Status of Citizens of Former Socialist Federal Republic of Yugoslavia living in Slovenia, in 2010;

(h)Adoption of the Act on the Protection of Right to Trial without Undue Delay, in 2006 and amendments thereto in 2009.

(6)The Committee also welcomes the efforts being made by the State party to improve its policies and procedures in order to ensure greater protection of human rights and give effect to the Convention, including:

(a)Introduction of an alternative form of penal sanction referred to as “weekend prison”;

(b)Publication of a brochure on the “Notice of Rights to the Person Who Has Been Arrested” in 2009;

(c)Adoption of a resolution on the prevention of domestic violence for the period of 2009–2014.

C. Principal subjects of concern and recommendations

Definition and offence of torture

(7)While welcoming the introduction of a new provision defining and criminalizing torture which contains all the elements specified in article 1 of the Convention, the Committee remains concerned that the crime of torture is subject to a statute of limitation (arts. 1 and 4).

The Committee urges the State party to amend article 90 of its Penal Code with a view to abolishing the statute of limitation for the crime of torture. The State party should also ensure that such offence is punishable by appropriate penalty which takes into account its grave nature, as set out in article 4, paragraph 2, of the Convention.

Fundamental legal safeguards

(8)While noting that under article 148 of the Criminal Procedure Act there is a possibility for audio and video-recording of interrogations, the Committee is concerned that the audio- and video-recording generally does not take place as there is no requirement therefore in law (art. 2).

The Committee recommends that the State party establishes the legal requirement for the audio and video recording of all interrogations of detainees throughout the country as a further means to prevent torture and ill-treatment.

(9)While noting that the State party introduced a computerized system for registration of all information related to detention by the police, the Committee is concerned that not all information is entered in the system, as certain information — such as the time of arrival at the police station and the time of placement in a cell — is missing (art. 2).

The Committee recommends that the computerized system for registration of detainees be expanded in order to include all relevant information on the custody of the detained person in order to establish a precise monitoring system of the whole detention period.

Pretrial detention and court backlog

(10)The Committee welcomes the “Lukenda” project and other measures taken by the State party aimed at reducing the court backlog, but remains concerned about the high proportion of remand prisoners awaiting for trials which, according to the statistics provided by the State party, has not decreased in the last five years (art. 2).

The Committee recommends that the State party continue its efforts in reducing the backlog of court cases and take all necessary measures to that effect, including non-custodial measures.

Ombudsman

(11)The Committee notes the new role of the Human Rights Ombudsman as a national preventive mechanism under the Optional Protocol, but is concerned about the inadequate funding of the Ombudsman’s office and about information on the scope of its mandate to carry out its own investigation into allegations of torture and ill-treatment (art. 2).

The State party should further strengthen the structure of the office of the Ombudsman and broaden its mandate to carry out its own investigation into allegations of torture and ill-treatment and provide it with adequate human, material and financial resources in line with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles).

Complaints, investigation and prosecution of the acts of torture

(12)The Committee notes the data provided by the State party on cases of investigations of ill-treatment under various sections of the Penal Code, such as abuse of power, falsification of documents, threats, negligence and others, and is concerned by the lack of information on cases investigated or complaints submitted under article 265 of the Penal Code on torture (arts. 12 and 13).

The Committee urges the State party to ensure prompt, impartial and effective investigation into all allegations of torture and ill-treatment and to prosecute perpetrators of such acts. It requests the State party to provide the Committee with data disaggregated by sex, age, ethnicity or origin of the victims, on the number of complaints, investigations, prosecutions, convictions and sentences imposed under article 265 of the Penal Code.

Conditions of detention

(13)While welcoming the measures taken by the State party to improve considerably the conditions of detention, including the construction of new facilities and the renovation of existing ones, the Committee remains concerned about the problems of overcrowding especially in major prisons such as the Dob, Ljubljana, Maribor, Koper and Novy Mesto prisons. The Committee is further concerned about insufficient mechanisms to prevent suicide in prisons (arts. 11 and 16).

The State party should intensify its efforts to bring the conditions of detention in places of deprivation of liberty into line with the Standard Minimum Rules for the Treatment of Prisoners, as well as other relevant international standards, in particular by reducing prison overcrowding, expanding non-custodial forms of detention and providing adequate accommodation and psychosocial support care for detainees who require psychiatric supervision and treatment. The Committee also recommends that the State party take all necessary measures to investigate and prevent suicide in places of detention.

Psychiatric facilities

(14)The Committee appreciates the information provided during the dialogue by the representatives of the State party, but regrets the lack of information on cases of involuntary placement in psychiatric institutions when only some and not all criteria established in the Mental Health Act are met and the lack of information on the number of complaints and appeals against involuntary placement in psychiatric hospitals. Despite the information provided during the dialogue, the Committee regrets the lack of information on use of measures such as electroconvulsive therapy and psychotropic drugs, and on complaints against such special measures (art. 16).

The Committee recommends that the State party establish close supervision and monitoring by the judicial organs of any placements in psychiatric institutions and ensure that all places where mental-health patients are held for involuntary treatment are regularly visited by independent monitoring bodies to guarantee the proper implementation of the existing safeguards. Furthermore, the State party should ensure the full and timely implementation of the recommendations made by the Ombudsman and other monitoring bodies in this regard. The Committee also recommends that the State party undertake a serious review of the application of electroconvulsive treatment (ECT), and any other treatment which could be in violation of the Convention.

Violence against women and children, including domestic violence

(15)While noting the legal and administrative measures undertaken by the State party to combat gender-based violence and violence against children, the Committee remains concerned about the prevalence of violence against women and girls (see concluding observations of the Committee on the Elimination of Discrimination against Women, CEDAW/C/SVN/CO/4, para. 23). The Committee is also concerned that corporal punishment of children remains lawful at home (arts. 2, 12 and 16).

The Committee recommends that the State party enhance its efforts to prevent, prosecute and punish all forms of violence against women and children, including domestic violence, and ensure effective and full implementation of the existing laws and the national strategies adopted to that end, including the National Programme of Family Violence Prevention for the period 2009–2014. The Committee also recommends that the State party accelerate the adoption of the draft Marriage and Family Act, which prohibits corporal punishment of children in the home (see concluding observations of the Committee on the Rights of the Child, CRC/C/15/Add.230, para. 40). Furthermore, the State party is encouraged to conduct broader awareness-raising campaigns and training on domestic violence for law enforcement agencies, judges, lawyers and social workers who are in direct contact with the victims and for the public at large.

Trafficking in persons

(16)The Committee welcomes the amendments of the Penal Code introducing human trafficking as a crime and increasing the punishment for such acts as well as the policies aiming at raising awareness, protecting victims and prosecuting perpetrators. However, the Committee remains concerned that trafficking of women for prostitution continues to be a problem in Slovenia and that measures to protect and assist victims are project-based and not institutionalized and regrets the lack of information on the number of cases where the victims received redress, including compensation (arts. 2, 4 and 16).

The State party should strengthen its efforts to combat trafficking in persons, especially in women and children, in particular by:

(a) Continuing its efforts to raise awareness for all law enforcement personnel, judges and prosecutors on trafficking in persons;

(b) Prosecuting perpetrators under the relevant provision of the Penal Code and ensuring that all victims of trafficking obtain effective redress, including compensation and rehabilitation; and

(c) Improving the identification of victims of trafficking and providing them with appropriate rehabilitation programmes, genuine access to health care and counselling, and institutionalizing such services.

Asylum and non-refoulement

(17)Notwithstanding article 51 of the Aliens Act on non-refoulement, the Committee remains concerned that the new Law on International Protection which regulates asylum and asylum-related matters, does not contain a clause on non-refoulement,where there are substantial grounds for believing that, if expelled, returned or extradited to another State, a person would be in danger of being subjected to torture. It is also concerned about the length and uncertainties related to the refugee status determination process (art. 3).

The State party should:

(a) Ensure that the principle of non-refoulement is established in all legislative acts that regulate asylum or asylum-related matters, including the procedures for subsidiary protection concerning vulnerable groups, in particular victims of trafficking;

(b) Ensure procedural safeguards against refoulement and effective remedies with respect to refoulement claims in removal proceedings, including review by an independent judici al body concerning rejections;

(c) Ensure that persons whose applications for asylum have been rejected have the right to lodge an effective appeal with the effect of suspending the execution of the decision on the expulsion or deportation; and

(d) Amend the Law on International Protection so that it reflects the principles and criteria established in international refugee law and human rights standards, especially the 1951 Convention relating to the Status of Refugees and its Protocol of 1967.

(18)While noting the legislative measures taken to amend the Act Regulating the Legal Status of Citizens of Former Socialist Federal Republic of Yugoslavia Living in the Republic of Slovenia in order to remedy the provisions that were found to be unconstitutional, the Committee remains concerned that the State party failed to enforce the Act and to restore the residency rights of persons, known as the “erased”, originating from other Yugoslav republics whose permanent residence in Slovenia was unlawfully revoked in 1992 and already returned to other republics of Former Socialist Republic of Yugoslavia. The Committee is concerned that the discrimination against the so-called “erased” persons, including against those who belong to Roma community, is persistent (arts. 3 and 16).

In light of its general comment No. 2 (2008) on implementation of article 2 by States parties, the Committee recalls the special protection of certain minorities or marginalized individuals or groups especially at risk is part of the State party ’ s obligations under the Convention. In this respect, the Committee recommends that the State party takes measures to restore the permanent resident status of the so-called “ erased ” persons who were returned to other States in Former Socialist Federal Republic of Yugoslavia. The Committee also encourages the State party to facilitate the full integration of the “ erased ” persons, including of those who belong to Roma communities and guarantee them with fair procedures for application for citizenship.

Redress, including compensation and rehabilitation

(19)The Committee regrets that no information has been provided on any redress provided to victims of an act of torture and ill-treatment by the State party (arts. 14 and 16).

The State party should ensure that all victims of torture and ill-treatment obtain redress and have an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. It should further collect data on the number of victims who have received compensation and rehabilitation including the amount provided.

Training

(20)While welcoming the positive measures taken by the State party by developing training programmes on police ethics and human rights for police officers and introducing a feedback system, the Committee remains concerned about insufficient monitoring and evaluation of the effectiveness of these programmes in preventing and detecting torture and ill-treatment (art. 10).

The Committee recommends that the State party:

(a) Ensure that training on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) is provided to medical personnel and other officials involved in the investigation and documentation of cases of torture, on a regular and systematic basis;

(b) Develop and implement a methodology to assess the effectiveness and impact of all educational and training programmes on the reduction of cases of torture and ill-treatment and regularly evaluate the training provided to its law enforcement officials;

(c) Strengthen its efforts to implement a gender-sensitive approach for the training of those involved in the custody, interrogation or treatment of women subjected to any form of arrest, detention or imprisonment; and

(d) Develop training modules with the aim of sensitizing the law enforcement officials against discrimination based on ethnicity.

Roma minority

(21)While noting the State party’s explanation that collection of data on ethnicity contradicts the right to privacy, the Committee remains concerned that no other alternative modalities have been developed by the State party in order to study the extent of ethnically motivated crimes and to prevent and monitor occurrences of such acts, while ensuring protection of individual privacy. It is further concerned about discrimination against the non-national Roma minority (see concluding observations of the Committee on Economic, Social and Cultural Rights, E/C.12/SVN/CO/1) (arts. 2, 10 and 16).

In light of its general comment No. 2, the Committee recalls that the special protection of certain minorities or marginalized individuals or groups especially at risk is part of the State party ’ s obligations under the Convention. The Committee notes that the purpose of gathering statistical data is to make possible for the State parties to identify and obtain a better understanding of the ethnic groups in its territory and the kind of discrimination they are or may be subject to, to find appropriate responses and solutions to the forms of discrimination identified, and to measure progress made. The Committee therefore recommends that the State party study and report the extent of crimes that are ethnically motivated, investigate root causes whilst ensuring the right to privacy and take all necessary measures to prevent such crimes in the future. In this respect, the State party should strengthen its efforts to combat any types of discrimination against Roma minorities.

Data collection

(22)The Committee regrets the absence of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment by law enforcement and prison personnel, as well as on domestic, sexual violence and violence against women and violence against children and other vulnerable groups. It also repeats the absence of information on redress available to victims of torture and ill-treatment.

The State party should compile statistical data, disaggregated by crime, ethnicity, age and sex, relevant to the monitoring of the implementation of the Convention at the national level, including data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment by law enforcement and prison personnel, domestic and sexual violence and violence against children and other vulnerable groups, as well as on means of redress, including compensation and rehabilitation, provided to the victims.

(23)The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet a party, namely the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention for the Protection of All Persons from Enforced Disappearance and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

(24)The State party is requested to disseminate widely the report submitted to the Committee and the Committee’s concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations.

(25)The Committee requests the State party to provide, within one year, follow-up information in response to the Committee’s recommendations contained in paragraphs 9, 12, 17 and 21 of the present document.

(26)The Committee invites the State party to present its next periodic report in accordance with its reporting guidelines and to observe the page limit of 40 pages for the treaty-specific document. The Committee also invites the State party to submit an updated common core document in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee Meeting of the human rights treaty bodies, and to observe the page limit of 80 pages for the common core document. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(27)The State party is invited to submit its next report, which will be the fourth periodic report, by 3 June 2015.

61. Turkmenistan

(1)The Committee against Torture considered the initial report of Turkmenistan (CAT/C/TKM/1) at its 994th and 997th meetings, held on 17 and 18 May 2011 (CAT/C/SR.994 and 997), and adopted, at its 1015th meeting (CAT/C/SR.1015), the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the initial report of Turkmenistan, which generally follows the Committee’s guidelines for reporting. However, the Committee regrets that the report lacks statistical and practical information on the implementation of the provisions of the Convention and that it was submitted 10 years late, which prevented the Committee from conducting an analysis of the implementation of the Convention in the State party following its ratification in 1999.

(3)The Committee notes with appreciation that a high-level delegation from the State party met with the Committee during its forty-sixth session, and also notes with appreciation the opportunity to engage in a constructive dialogue covering many areas under the Convention.

B. Positive aspects

(4)The Committee welcomes the fact that the State party has ratified or acceded to the following international instruments:

(a)International Convention on the Elimination of All Forms of Racial Discrimination (on 29 September 1994);

(b)Convention on the Rights of the Child (on 20 September 1993) and its two Optional Protocols (on 29 April and 28 March 2005);

(c)International Covenant on Civil and Political Rights (on 1 May 1997) and its two Optional Protocols (on 1 May 1997 and 11 January 2000);

(d)Convention on the Elimination of All Forms of Discrimination against Women (on 1 May 1997) and its Optional Protocol (on 20 May 2009);

(e)International Covenant on Economic, Social and Cultural Rights (on 1 May 1997);

(f)Convention on the Rights of Persons with Disabilities (on 4 September 2008) and its Optional Protocol (on 10 November 2010).

(5)The Committee notes the ongoing efforts by the State party to reform its legislation, policies and procedures in areas of relevance to the Convention, including:

(a)Adoption of the new Constitution, on 26 September 2008;

(b)Adoption of the new Criminal Enforcement Code, on 26 March 2011;

(c)Adoption of the new Criminal Code, on 10 May 2010;

(d)Adoption of the new Code of Criminal Procedure, on 18 April 2009;

(e)Adoption of the Courts of Law Act, on 15 August 2009;

(f)Adoption of the Law on Combating Trafficking in Persons, on 14 December 2007;

(g)Establishment of theState Commission to Review Citizens’ Complaints on the Activities of Law Enforcement Agencies, through Presidential Decree, on 19 February 2007;

(h)Abolition of the death penalty, through Presidential Decree, on 28 December 1999.

C. Principal subjects of concern and recommendations

Torture and ill-treatment

(6)The Committee is deeply concerned over the numerous and consistent allegations about the widespread practice of torture and ill-treatment of detainees in the State party. According to reliable information presented to the Committee, persons deprived of their liberty are tortured, ill-treated and threatened by public officers, especially at the moment of apprehension and during pretrial detention, to extract confessions and as an additional punishment after the confession. This information confirms the concerns expressed by a number of international bodies, inter alia, those expressed in the report of the Secretary-General (A/61/489, paras. 38–40) and in the decisions of the European Court of Human Rights in the cases of Kolesnik v. Russia, Soldatenko v. Ukraine, Ryabkin v. Russia and Garabayev v. Russia. While noting the existence of laws which prohibit, inter alia, abuse of power and the use of violence by officials against individuals in their custody for the purpose of obtaining evidence, the Committee is concerned about the substantial gap between the legislative framework and its practical implementation (arts. 2, 4, 12 and 16).

As a matter of urgency, th e State party should take immediate and effective measures to prevent acts of torture and ill-treatment throughout the country, including by implementing policies that would produce measurable results in the eradication of torture and ill-treatment by State officials. Furthermore, the State party should take vigorous steps to eliminate impunity for alleged perpetrators of acts of torture and ill-treatment, carry out prompt, impartial and exhaustive investigations, try the perpetrators of such acts and, where they are convicted, impose appropriate sentences, and properly com pensate the victims.

Status of the Convention in the domestic legal order

(7)While noting article 6 of the Turkmen Constitution, which recognizes the primacy of the universally recognized norms of international law,the Committee notes with concern that the Convention has never been directly invoked in domestic courts. The Committee takes note of the oral assurance by representatives of the State that the direct application of the Convention by courts is envisaged shortly.

The Committee recommends that the State party take the measures necessary to ensure the full applicability of the provisions of the Convention in its domestic legal order and the practical implementation of article 6 of the Constitution by, inter alia , providing extensive training to the judiciary and law-enforcement personnel in order to make them fully aware of the provisions of the Convention and its direct applicability. Furthermore, the State party should report back on progress made in this respect and on decisions of national courts or administrative authorities giving effect to the rights enshrined in the Convention.

Definition, absolute prohibition and criminalization of torture

(8)While noting article 23 of the Constitution, which prohibits acts of torture or cruel, inhuman or degrading treatment or punishment, the Committee remains concerned that the State party has still not incorporated into domestic law the crime of torture as defined in article 1 of the Convention, and that the Criminal Code does not contain provisions specifically providing for liability for torture, but rather criminalizes “the causing of physical and moral suffering through systematic beatings or other violent acts” under article 113, “abuse of power” by an official under article 358, and the use of force by officials against individuals in their custody for the purpose of obtaining information under article 197. The Committee notes with concern article 47 of the Constitution, under which the implementation of the rights and freedoms of citizens may be suspended in a state of emergency or martial law in accordance with domestic laws. Furthermore, the Committee regrets the lack of information about rules and provisions on the statute of limitations (arts.1, 2 and 4).

The Committee urges the State party to adopt a definition of torture that covers all the elements contained in article 1 of the Convention. The definition of torture should set out clearly the purpose of the offence, provide for aggravating circumstances, include the attempt to commit torture as well as acts intended to intimidate or coerce the victim or a third person, and should refer to the motive or reasons for inflicting torture identified in article 1 of the Convention. The State party should also ensure that acts of torture are not defined in terms of a less serious offence, such as the causing of physical and moral suffering, and that these offences are punishable by appropriate penalties which take into account their grave nature, as set out in article 4, paragraph 2, of the Convention. Furthermore, the State party should ensure that the absolute prohibition against torture is non-derogable and that acts amounting to torture are not subject to any statute of limitations.

Fundamental legal safeguards

(9)While noting article 26 of the Code of Criminal Procedure on legal assistance, the Committee expresses its serious concern at the State party’s failure in practice to afford all persons deprived of their liberty, including detainees held in temporary holding facilities (IVS), with all fundamental legal safeguards, as referred to in paragraphs 13 and 14 of the Committee’s general comment No. 2 (2008) on the implementation of article 2 by States parties, from the very outset of detention. The Committee is concerned that the Criminal Code allows police officers to detain a person without the authorization of the prosecutor general for 72 hours and without presentation to a judge for up to one year. It is reported that detainees are frequently denied access to a lawyer and that violence is inflicted by police officers to extract confessions during that period of time. The Committee notes with concern reports that torture and ill-treatment of minors is widespread at the moment of apprehension and during pretrial detention (CRC/C/TKM/CO/1, para.36)(arts. 2, 11 and 12).

The Committee recommends that the State party:

(a) Ensure that all detainees are afforded, in practice, all fundamental legal safeguards from the very outset of their detention, including the rights to prompt access to a lawyer and a medical examination by an independent doctor, to contact family members, to be informed of their rights at the time of detention, including about the charges laid against them, and to appear before a judge promptly;

(b) Ensure that minors have a lawyer and their parents or legal guardians present at every phase of a proceeding, including during questioning by a police officer;

(c) Ensure that all detainees, including minors, are included in a central register of persons deprived of liberty and that the register can be accessed by lawyers and family members of those detained and others as appropriate;

(d) Take measures to ensure the audio- or videotaping of all interrogations in police stations and detention facilities as a further means to prevent torture and ill-treatment.

Independence of the judiciary

(10)The Committee is deeply concerned at the ineffective functioning of justice system, apparently caused in part by the lack of independence of the procuracy and judiciary, as was noted by the Secretary-General in 2006 (A/61/489, para. 46). The Committee regrets that responsibility for the appointment and promotion of judges rests with the President, which jeopardizes the independence of the judiciary. The Committee express its concern about the case of Ilmurad Nurliev, a Protestant pastor who was convicted of swindling following a trial that allegedly violated numerous fair trial and due process standards (arts. 2 and 13).

The State party should take measures to establish and ensure the independence and impartiality of the judiciary in the performance of duties in conformity with international standards, notably the Basic Principles on the Independence of the Judiciary . The State party should also permit an impartial and independent review of Mr. Nurliev ’ s conviction.

Complaint mechanisms and investigations; impunity

(11)The Committee is deeply concerned that allegations of torture and ill-treatment by State officers are seldom investigated and prosecuted, and that there appears to be a climate of impunity resulting in the lack of meaningful disciplinary action or criminal prosecution against persons of authority accused of acts specified in the Convention (arts. 2, 11, 12, 13 and 16). In particular, the Committee is concerned about:

(a)The lack of an independent and effective complaint mechanism for receiving and conducting impartial and full investigations into allegations of torture, in particular of convicted prisoners and pretrial detainees;

(b)Information suggesting that serious conflicts of interest prevent the existing complaints mechanisms from undertaking effective, impartial investigations into complaints received;

(c)Reports indicating that no official has been prosecuted for having committed torture and that, over the last 10 years, only four law enforcement officers have been charged with the less serious offence of “exceeding the limits of authorities” under article 182, paragraph 2, of the Criminal Code;

(d)The lack of detailed information, including statistics, on the number of complaints of torture and ill-treatment made to all existing complaints mechanisms, including the National Institute for Democracy and Human Rights and the State Commission to Review Citizens’ Complaints on the Activities of Law Enforcement Agencies, and the results of those investigations, whether proceedings were initiated at the penal and/or disciplinary levels, and their outcomes. In this regard, the Committee expresses particular concern regarding the case of Bazargeldy and Aydyemal Berdyev, in which the State party has denied the authenticity of a response that the Berdyevs allege to have received from the National Institute in 2009 regarding a claim of torture they had previously submitted.

The Committee urges the State party:

(a) To establish an independent and effective mechanism:

(i) To facilitate the submission of complaint s by victims of torture and ill- treatment to public authorities, including by obtaining medical evidence in support of their allegations, and to ensure in practice that complainants are protected against any ill-treatment or intimidation as a consequence of their c omplaint or any evidence given;

(ii) To undertake prompt, thorough and impartial investigations into allegations of torture or ill- treatment by police and other public officials who carried out, ordered or acquiesced in such practices and to punish offenders ;

(b) To ensure that such investigations not be undertaken by or under the authority of the police, but by an independent body, and that all officials alleged to be responsible for violations of the Convention be suspended from their duties during those investigations ;

(c) To provide information on the number of complaints filed against public officials on torture and ill-treatment, as well as information on the results of those investigations and any proceedings undertaken, at both the penal and disciplinary levels. Statistical information, disaggregated by sex, age and ethnicity of the individual bringing the complaints, should be provided and should describe each relevant allegation and indicate the authority that undertook the subsequent investigation. This information should include specific information regarding the claim of torture in detention submitted to the National Institute by Bazargeldy and Aydyemal Berdyev, including any steps taken to investigate their claims, the body that undertook the investigation, and the outcome of that investigation.

National human rights institution

(12)While noting the State party’s response to the recommendation to establish an independent national human rights institute made in the course of the universal periodic review (A/HRC/10/79), the Committee is concerned that no such institute has been established in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles). The Committee regrets that the existing national protection mechanisms within the Office of the President, including the National Institute for Democracy and Human Rights and the State Commission to Review Citizens’ Complaints on the Activities of Law Enforcement Agencies do not comply with the Paris Principles, especially in respect of their composition of membership and lack of independence (arts. 2, 11 and 13).

The State party should proceed with the establishment of an independent national human rights institution, in accordance with the Paris Principles, which is vested with the competence to hear and consider complaints and petitions concerning individual situations, to monitor detention facilities, and to make the results of its investigations public, and should ensure the implementation of the institution ’ s recommendations with respect to awards of redress to victims and the prosecution of perpetrators, as well as the provision of adequate resources for its operati on. The Committee recommends that the State party establish a national preventive mechanism as a part of a national human rights institution. It also invites the State party to consider ratifying the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Human rights defenders

(13)The Committee notes with concern numerous and consistent allegations of serious acts of intimidation, reprisals and threats against human rights defenders, journalists and their relatives, as well as the lack of information provided on any investigations into such allegations. The Committee also expressed its serious concerns about reports that human rights defenders have faced arrest on criminal charges, apparently in retaliation for their work, and trials in which numerous due process violations have been reported. The Committee expresses its grave concern that on 30 September 2010, President Berdymukhamedov instructed the Ministry of National Security to lead an “uncompromising fight again those who slander our democratic... secular state” following a satellite television station’s broadcast of an interview with Farid Tukhbatullin, an exiled Turkmen human rights defender, which had aired the previous day.While remaining concerned about reported threats against Mr. Tukhbatullin and attacks against the website he operates, the Committee appreciates the oral assurance given by the State party’s representative that he will not be intimidated or threatened by the Government of Turkmenistan or its agents. The Committee regrets the State party’s failure to implement the decision of the Working Group on Arbitrary Detention (Opinion No. 15/2010) and to reply to the urgent appeals sent by the Special Rapporteur on the situation of human rights defenders (A/HRC/4/37/Add.1, paras. 700–704) on behalf of Annakurban Amanklychev, a member of the Turkmenistan Helsinki Foundation, and Sapardurdy Khajiev, a relative of Foundation’s director (arts. 2, 12 and 16).

The State party should take all necessary steps:

(a) To ensure that human rights defenders and journalists, in Turkmenistan and abroad, are protected from any intimidation or violence as a result of their activities;

(b) To ensure the prompt, impartial and thorough investigation of such acts and to prosecute and punish perpetrators with penalties appropriate to the nature of those acts;

(c) To provide updates on the outcome of investigations of alleged threats against and ill-treatment of human rights defenders, including those mentioned above;

(d) To implement the decision of the Working Group on Arbitrary Detention (Opinion No. 15/2010) regarding Mr. Amanklychev and Mr. Khajiev , which concludes that their imprisonment is arbitrary and calls for their immediate release and the provision of compensation for damages.

Monitoring and inspection of places of detention

(14)While noting the detention monitoring activities by the Office of the Procurator-General, the Committee is deeply concerned that there is no access for international monitoring bodies, either governmental or non-governmental, to detention facilities in Turkmenistan. The Committee notes that the State party cooperates with the International Committee of the Red Cross (ICRC), which provides assistance with humanitarian law and in other ways. However, the Committee notes with concern that the State party has not granted ICRC access to detention facilities, despite a number of recommendations made by international bodies, including the General Assembly in its resolutions 59/206 and60/172, and as noted by the Secretary-General (A/61/489, para. 21). The Committee also expresses regret at the long outstanding requests for a country visit by the nine special procedures mandate holders of the Human Rights Council, in particular those of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the Working Group on Arbitrary Detention (arts. 2, 11 and 16).

The Committee urges the State party:

(a) To establish a national system that independently, effectively and regularly monitors and inspects all places of detention without prior notice;

(b) To grant, as a matter of great urgency, access to independent governmental and non-government organizations, in particular ICRC, to all detention facilities in the country;

(c) To strengthen further the cooperation with United Nations human rights mechanisms, in particular by permitting visits from the Special Rapporteur on the question of torture and the Working Group on Arbitrary Detention, in conformity with the terms of reference for fact-finding missions by special rapporteurs and special representatives (E/CN.4/1998/45), as soon as possible.

Enforced disappearances and incommunicado detention

(15)The Committee is concerned about a number of persons who have been arrested and sentenced at closed trials without proper defence and imprisoned incommunicado, and the lack of information from the State party on progress made in ascertaining their fate and whereabouts. These persons include Gulgeldy Annaniazov, Ovezgeldy Ataev, Boris Shikhmuradov, Batyr Berdyev, and those imprisoned in connection with the assassination attempt on the former President in 2002, raised, inter alia, by the Special Rapporteur on the question of torture (A/HRC/13/42, paras. 203–204; E/CN.4/2006/6/Add.1, para. 514). In particular, the Committee is concerned about the lack of: (a) effective, independent and transparent investigations into allegations of such practices, and prosecutions and convictions of perpetrators, where appropriate; and (b) due notification of the results of such investigations to the relatives of individuals who have disappeared, including confirmation of their place of detention and whether they are alive. This lack of investigation and follow-up raises serious questions with respect to the State party’s willingness to fulfil its obligations under the Convention and constitutes a continuing violation of the Convention with respect to the relatives of the victims (arts. 12 and 13).

The Committee urges the State party:

(a) To take all appropriate measures to abolish incommunicado detention and ensure that all persons held incommunicado are released, or charg ed and tried under due process;

(b) As a matter of priority, to inform the relatives of those who have been detained incommunicado of their fate and whereabouts, and facilitate family visits;

(c) To take prompt measures to ensure prompt, impartial and thorough investigations into all outstanding cases of alleged disappearances, to provide remedy as appropriate and to notify relatives of the victims of the outcomes of such investigations and prosecutions;

( d) To inform the Committee of the outcomes of the investigations into the aforementioned cases of Mr. Annaniazov, Mr. Ataev, Mr. Shikhmuradov, Mr. Berdyev and those imprisoned in connection with the 2002 assassination attempt on the former President.

Deaths in custody

(16)The Committee is deeply concerned about numerous and consistent reports on a number of deaths in custody and on the alleged restrictions on independent forensic examination into the cases of such deaths, including the case of Ogulsapar Muradova, who was held incommunicado throughout her detention and died in custody under suspicious circumstances. This case, including signs of torture, has been well documented, and was taken up by the Secretary-General (A/61/489, para. 39) and several Special Rapporteurs (A/HRC/WG.6/3/TKM/2, para. 38) (arts. 2, 11, 12 and 16).

The Committee urges the State party:

(a) To promptly, thoroughly and impartially investigate all incidents of death in custody; to make the results of those investigations available to the public; and to prosecute those responsible for committing violations of the Conv ention leading to such deaths;

(b) To ensure independent forensic examinations in all cases of death in custody; to permit family members of the deceased to commission independent autopsies of the deceased; and to ensure that the State party ’ s courts accept the results of independent autopsies as evidence in criminal and civil cases;

(c) To provide the Committee with data regarding all deaths in custody, disaggregated by the facility in which the deceased was detained, the sex of the victim, and the outcome of the inquiry into the deaths in custody; and, in particular, to inform the Committee of the details of any investigation undertaken into deaths alleged to be the result of torture, ill-treatment or wilful negligence, including the death in custody in September 2006 of Ms. Muradova .

Misuse of psychiatric institutions

(17)The Committee is deeply concerned about numerous and consistent credible reports of misuse of psychiatric hospitals to detain persons for reasons other than medical, in particularly for the non-violent expression of his/her political views. The Committee regrets that the State party has failed to reply to at least two urgent appeals sent jointly by the Special Rapporteur on torture, the Special Rapporteur on the right to freedom of opinion and expression and the Working Group on Arbitrary Detention on behalf of Gurbandurdy Durdykuliev, a political dissenter (E/CN.4/2005/62/Add.1, para. 1817), and Sazak Durdymuradov, a journalist (A/HRC/10/44/Add.4, para. 239) (arts. 2, 11 and 16), in 2004 and 2008, respectively.

The Committee recommends that the State party:

(a) Release those forcibly placed in psychiatric hospitals for reasons other than medical and take appropriate measures to remedy this situation;

(b) Take measures to ensure that no one is involuntarily placed in psychiatric institutions for reasons other than medical by, inter alia , allowing access to psychiatricfacilities and mental hospitals by independent monitors and monitoring mechanisms, and ensuring that hospitalization for medical reasons is decided only upon the advice of independent psychiatric experts and that such decisions can be appealed;

(c) Inform the Committee of the outcomes of the investigations of the allegations of forced confinement in psychiatric hospitals, in particular with regard to the cases of Mr. Durdykuliev and Mr. Durdymuradov.

Violence in prison, including rape and sexual violence

(18)The Committee expresses its concern at ongoing physical abuse and psychological pressures by prison staff, including collective punishment, ill-treatment as a “preventive” measure, the use of solitary confinement, and sexual violence and rape by prison officers or inmates, which have reportedly motivated the suicides of several detainees. In relation to the incident of beatings of a female inmate in February 2009 in the women’s prison colony in Dashoguz, the Committee notes with concern that, while the head of the colony was dismissed on bribery charges, no criminal sanctions were imposed on the officials responsible for this violence (arts. 2, 11, 12 and 16).

The Committee recommends that the State party:

(a) Draw up a comprehensive plan to address the issue of violence, including sexual violence and rape, by inmates and prison staff in all detention facilities, including the women ’ s prison colony in Dashoguz, and ensure effective investigations into those cases. The State party should provide the Committee with information on the investigation of cases of violence and rape of women detainees by public officials in Ashgabat in 2007 and in Dashoguz in 2009, and the outcomes of such trials, including information on the punishments meted out and the redress and compensation offered to victims;

(b) Coordinate the judicial supervision of conditions of detention between competent organs and ensure thorough investigations of all allegations of torture or ill-treatment committed in detention facilities;

(c) Ensure that solitary confinement remains an exceptional measure of limited duration.

Conditions of detention

(19)While noting the Government’s plan for the construction of new detention facilities, the Committee remains deeply concerned about the current material and hygienic conditions in places of deprivation of liberty, such as inadequate food and health care, severe overcrowding, and unnecessary restrictions on family visits (arts. 11 and 16).

The State party should intensify its efforts to bring the conditions of detention in places of deprivation of liberty into line with the Standard Minimum Rules for the Treatment of Prisoners and other relevant international and national law standards, in particular by:

(a) Reducing prison overcrowding and considering the establishment of non-custodial forms of detention;

(b) Ensuring all detainees ’ access to and receipt of the necessary food and health care;

(c) Ensuring that all minors are detained separately from adults through their whole period of detention or confinement and offering them educational and recreational activities.

Coerced confessions

(20)The Committee notes the existence of national legislation guaranteeing the principle of non-admissibility of coerced evidence in courts, such as article 45 of the Constitution and article 25, paragraph 1, of the Code of Criminal Procedure. The Committee notes, however, with grave concern numerous, consistent and credible reports that the use of forced confessions as evidence in courts is widespread in the State party and that such practices persist owing to the impunity of guilty parties. The Committee expresses concern about the lack of information provided by the State party regarding any officials who may have been prosecuted and punished for extracting confessions (art. 15).

The Committee urges the State party to ensure that, in practice, evidence obtained by torture may not be invoked as evidence in any proceedings, in line with article 15 of the Convention, and to review cases of convictions based solely on confessions, recognizing that many of these may have been based upon evidence obtained through torture or ill-treatment, and, as appropriate, provide prompt and impartial investigations and take appropriate remedial measures. The State party should provide information on whether any officials have been prosecuted and punished for extracting such confessions.

Redress, including compensation and rehabilitation

(21)While noting with appreciation that the right to compensation for victims of “illegal actions” or “harm caused” by State bodies is guaranteed pursuant to article 44 of the Constitution and article 23 of the Code of Criminal Procedure, the Committee remains concerned at the reported lack of implementation of the rights of victims of torture and ill-treatment to redress and compensation, including rehabilitation, and the lack of examples of cases in which individuals have received such compensation. Furthermore, the Committee, while noting the information provided by State representatives, expresses its serious concern about the State party’s failure to implement the Human Rights Committee’s Views on the case of Komarovski v. Turkmenistan(communication No. 1450/2006, Views adopted on 24 July 2008), in which that Committee decided, following a reply of the Government of Turkmenistan, that Turkmenistan must provide Mr. Komarovski with an effective remedy and take appropriate steps to prosecute and punish the persons responsible for the violations (art. 14).

The Committee recommends that the State party strengthen its efforts to provide victims of torture and ill-treatment with redress in practice, including fair and adequate compensation and as full rehabilitation as possible, and to protect them from stigma and re-victimization. The State party should provide information on redress, compensation and other measures, including rehabilitation, ordered by the courts and provided for victims of torture, or their families, during the reporting period. This information should include the number of requests made, the number granted, and the amounts ordered and actually provided in each case. In addition, the State party should provide information on its implementation of the Human Rights Committee ’ s Views concerning the case of Komarovski v. Turkmenistan .

Hazing in the armed forces

(22)The Committee is seriously concerned at numerous and consistent reports of hazing in the armed forces, conducted by or with the consent, acquiescence or approval of officers or other personnel. Such practice of hazing has a devastating effect on victims and reportedly leads to their suicide and death in some cases. While noting the information provided by State representatives, the Committee remains concerned about reports that investigations are inadequate or absent (arts. 2 and 16).

The Committee recommends that the State party:

(a) Reinforce the measures to prohibit and eradicate hazing in the armed forces;

(b) Ensure prompt, impartial and thorough investigation and, as appropriate, prosecution of all incidents, including cases of suicides and death allegedly caused by ill-treatment and mental pressure, and report publicly on the outcomes of such prosecutions;

(c) Take measures to provide the rehabilitation of victims, including through appropriate medical and psychological assistance.

Refugees and asylum-seekers

(23)The Committee welcomes the State party’s decision to grant citizenship and permanent residency to thousands of Tajik refugees in 2005. The Committee is concerned that asylum-seekers’ access to independent, qualified and free legal advice and representation is limited in Turkmenistan and that persons whose asylum claims are rejected in the first instance may not be able to lodge well-reasoned appeals. It is further concerned by the delay in adopting the amended Refugee Law and the lack of information on asylum applications and refugees, as well as the number of expulsions. The Committee also regrets the lack of information about safeguards to ensure that persons are not returned to countries where they face real risk of torture and about any use of “diplomatic assurances” as a way to circumvent the absolute prohibition of non-refoulement established in article 3 of the Convention (art. 3).

The State party should take the necessary measures:

(a) To expedite the adoption of the amended Refugee Law and revise its current procedures and practices to bring them into line with international standards, in particular article 3 of the Convention;

(b) To ensure that no person is expelled, returned or extradited to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture, and to consider transferring the power to decide the matter from the President to the judiciary;

(c) To g uarantee asylum-seekers, including those who may face detention, access to independent, qualified and free legal advice and representation, in order to ensure that the protection needs of refugees and other persons in need of international protection are duly recognized and refoulement is prevented;

(d) To establish and ensure the implementation of a standardized and accessible asylum and referral procedure at border points, including at international airport and transit zones;

(e) To establish a system for collecting and sharing statistical and other information on asylum-seekers, including those in detention, whose applications are pending with the authorities, as well as on persons extradited, expelled or returned by the State party and the countries to which they have been sent; and to provide the Com mittee with the relevant data.

Training

(24)While noting the information included in the State party’s report on training programmes and publication of human rights handbooks, the Committee regrets the lack of information on targeted training for medical and law enforcement personnel, security and prison officials, judicial officials and other persons involved with the custody, interrogation or treatment of persons under State or official control on matters related to the prohibition of torture and cruel, inhuman or degrading treatment or punishment (art. 10).

The Committee recommends that the State party:

(a) Provide all persons charged with the various functions enumerated in article 10 of the Convention with regular training concerning the provisions of the Convention and the absolute prohibition of torture, as well as on rules, instructions and methods of interrogation, especially in cooperation with civil society organizations;

(b) Provide all relevant personnel, especially medical personnel, with specific training on how to identify signs of torture and ill-treatment and how to use the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol);

(c) Implement a gender-sensitive approach for the training of those involved in the custody, interrogation or treatment of women subjected to any form of arrest, detention or imprisonment;

(d) Include the prohibition of ill-treatment of and discrimination against persons belonging to ethnic, religious and other minorities in the training of law enforcement officials and other relevant professional groups;

(e) Assess the effectiveness and impact of such training and educational programmes on the reduction of cases of torture and ill-treatment.

Lack of data

(25)Despite the publication of the Committee’s guidelines on the form and content of initial reports (CAT/C/4/Rev.3), and despite its requests that the State party provide the Committee with statistical information, the Committee regrets that it received only very limited information other than about legal provisions. The absence of comprehensive or disaggregated data on complaints, investigations, prosecutions and convictions in cases of torture and ill-treatment by law enforcement personnel, comprehensive prison occupancy rates, and deaths in custody, as well as data on individual cases of alleged torture and enforced disappearance, including the whereabouts of such persons, raised by the Committee severely hampers the identification of possible patterns of abuse requiring attention (arts. 2, 12, 13 and 19).

The State party should compile and provide the Committee with statistical data relevant to the monitoring of the implementation of the Convention at the national level, the type of bodies engaged in such monitoring and their reporting mechanisms, disaggregated by, inter alia , sex, ethnicity, age, crime and geographical location, including information on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment, incommunicado detention, deaths in custody, trafficking, domestic and sexual violence, and the outcomes of all such complaints and cases, including compensation and reha bilitation provided to victims.

(26)The Committee recommends that the State party consider making the declarations envisaged under articles 21 and 22 of the Convention.

(27)The Committee invites the State party to ratify United Nations human rights treaties to which it is not yet a party, particularly the International Convention for the Protection of All Persons from Enforced Disappearance and the International Convention on the Protection of the Rights of All MigrantWorkers and Members of Their Families. The State party is also encouraged to ratify the Rome Statute of the International Criminal Court.

(28)The State party is requested to disseminate widely the report submitted to the Committee, the present concluding observations and the summary records, in appropriate languages, through official websites, the media and non-governmental organizations, and to report to the Committee on the results of such dissemination.

(29)The Committee requests the State party to provide, within one year, follow-up information in response to the Committee’s recommendations contained in paragraphs 9, 14, and 15 (b) and (c) of the present document and to provide the information requested in the dialogue with State’s representatives.

(30)The Committee invites the State party to submit its next treaty-specific report within the limit of 40 pages. The Committee also invites the State party to update its common core document (HRI/CORE/TKM/2009)in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee Meeting of the human rights treaty bodies, and to observe the limit of 80 pages. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention.

(31)The State party is invited to submit its next report, which will be the second periodic report, by 3 June 2015.

IV.Follow-up to concluding observations on States parties’ reports

62.In this chapter, the Committee updates its findings and activities that constitute follow-up to concluding observations adopted under article 19 of the Convention. Information regarding the follow-up responses by States parties, and the activities of the Rapporteur for follow-up to concluding observations under article 19 of the Convention, including the Rapporteur’s views on the results of this procedure, are presented below. This information is updated through 3 June 2011, the end of the Committee’s forty-sixth session.

63.In chapter IV of its annual report for 2005–2006 the Committee described the framework that it had developed to provide for follow-up subsequent to the adoption of the concluding observations on States parties reports submitted under article 19 of the Convention. In that report and each year thereafter, the Committee has presented information on its experience in receiving information on follow-up measures taken by States parties since the initiation of the procedure in May 2003.

64.In accordance with its rules of procedure, the Committee established the post of Rapporteur for follow-up to concluding observations under article 19 of the Convention and appointed Ms. Felice Gaer to that position. At the forty-fifth and forty-sixth sessions (November 2010 and May–June 2011, respectively) the Rapporteur presented progress reports to the Committee on the results of the procedure.

65.At the conclusion of the Committee’s review of each State party report, the Committee identifies concerns and recommends specific measures to prevent acts of torture and ill-treatment. Thereby, the Committee assists States parties in identifying effective legislative, judicial, administrative and other measures to bring their laws and practice into full compliance with the obligations set forth in the Convention.

66. In accordance with the procedure established for its follow-up procedure, the Committee has identified a number of its recommendations to each State party as requiring additional information within one year. Such follow-up recommendations are identified because they are serious, protective and are considered able to be accomplished within one year. The States parties are asked to provide information within one year on the measures taken to give effect to the follow-up recommendations. In the concluding observations on each State party report, the recommendations requiring follow-up within one year are specifically identified in a paragraph at the end of each set of concluding observations.

67.Since the procedure was established at the thirtieth session in May 2003, through the end of the forty-sixth session in June 2011, the Committee has reviewed 109 reports from States parties for which it has identified follow-up recommendations. Of the 95 States party follow-up reports that were due by May 2011, at the time of the adoption of the present report, 67 had been received by the Committee. As of 3 June 2011, 27 States had not yet supplied follow-up information that had fallen due: Austria, Benin, Bulgaria, Burundi, Cambodia, Cameroon, Chad, Chile, Costa Rica, Democratic Republic of the Congo, El Salvador, France, Honduras, Indonesia, Jordan, Luxembourg, Nicaragua, Peru, Republic of Moldova (initial report, thirtieth session), Switzerland, South Africa, Syrian Arab Republic, Tajikistan, Togo, Uganda, Yemen and Zambia. As can be seen, the 28 States parties that did not submit any information under the follow-up procedure as of 3 June 2011 came from all world regions.

68.The Rapporteur sends reminders requesting the outstanding information to each of the States for which follow-up information is due, but not yet submitted. The status of the follow-up to concluding observations may be found in a chart maintained on the web pages of the Committee. As of 2010, the Committee established a separate web page for follow-up: http://www2.ohchr.org/english/bodies/cat/follow-procedure.htm. State party responses are posted on this web page, as are follow-up submissions from NGOs, and the letters from the Rapporteur to the State party (see para. 70, below).

69.The Rapporteur expresses appreciation for the information provided by States parties regarding those measures taken to implement their obligations under the Convention. In addition, she has assessed the responses received as to whether all the items designated by the Committee for follow-up have been addressed, whether the information provided responds to the Committee’s concern, and whether further information is required. Each letter responds specifically and in detail to the information presented by the State party. Where further information has been needed, she has written to the concerned State party with specific requests for further clarification. To date, 22 State parties have provided additional clarifications in response to these requests. With regard to States that have not supplied the follow-up information at all, she requests the outstanding information.

70.In May 2007, the Committee decided to make public all of the Rapporteur’s letters to the States parties. The Committee further decided to assign a United Nations document symbol number to all States parties’ replies to the follow-up and also place them on its website.

71.Since the recommendations to each State party are crafted to reflect the specific situation in that country, the follow-up responses from the States parties and letters from the Rapporteur requesting further clarification address a wide array of topics. Among those addressed in the letters sent to States parties requesting further information have been a number of precise matters seen as essential to the implementation of the recommendation in question. A number of issues have been highlighted to reflect not only the information provided, but also the issues that have not been addressed but which are deemed essential to the Committee’s ongoing work in order to be effective in taking preventive and protective measures to eliminate torture and ill-treatment.

72.The Rapporteur’s activities in the past year have included attending two Inter-Committee Meetings in Geneva where follow-up procedures were discussed with members from other human rights treaty bodies, the first from 28 to 30 June 2010 and the second, an Inter-Committee Meeting Working Group on Follow-up, in January 2011. Also at the June meeting, the Rapporteur addressed a session of the meeting of special procedures mandate holders about the Committee’s follow-up procedure. In the absence of field visits by the treaty body expert members, the reports of the special procedures mandate holders can provide documentation and analysis to assist the Committee and its Rapporteur in the assessment of the follow-up responses received from States parties. After the Rapporteur has assessed responses from States parties, and other relevant materials, she prepares follow-up letters to countries as warranted, in consultation with the Committee’s own designated country rapporteurs.

73.The Rapporteur is undertaking a study of the Committee’s follow-up procedure; she began with an examination of the number and nature of topics identified by the Committee in its requests to States parties for follow-up information. She reported to the Committee on some of her findings at the forty-fifth and forty sixth sessions. Globally, the most frequently addressed follow-up topics have been: (a) conduct prompt, impartial, and effective investigations; (b) prosecute and sanction perpetrators of torture or ill-treatment; (c) ensure or strengthen legal safeguards for persons detained; (d) ensure the right to complain and have cases examined; (e) conduct training and awareness-raising; (f) bring interrogation techniques in line with the Convention and, specifically, abolish incommunicado detention; (g) ensure redress and rehabilitation; (h) prevent gender-based violence and ensure the protection of women; (i) monitor detention facilities and places of confinement and facilitate unannounced visits by an independent body; (j) improve data collection on torture; and (k) improve conditions of detention, i.e. overcrowding.

74.The Rapporteur also presented charts that demonstrated the importance of including follow-up items in lists of issues that the Committee prepares prior to the review of periodic reports from State parties. She found that, in the lists of issues prior to reporting that it adopted, the Committee had become more attentive to incorporating outstanding issues related to items previously designated for follow-up, although greater efforts can still be made in this regard.

75.In the correspondence with States parties, the Rapporteur has noted recurring concerns which are not fully addressed in the follow-up replies and her concerns have been included in prior annual reports. To summarize them, she finds there is considerable value in having more precise information being provided, e.g. lists of prisoners, details on deaths in detention and forensic investigations.

76.Thus, as a result of numerous exchanges with States parties, the Rapporteur has observed that there is need for more vigorous fact-finding and monitoring in many States parties. In addition, there is often inadequate gathering and analysing of police and criminal justice statistics. When the Committee requests such information, States parties frequently do not provide it. The Rapporteur further considers that conducting prompt, thorough and impartial investigations into allegations of abuse is of great protective value. This is often best undertaken through unannounced inspections by independent bodies. The Committee has received documents, information and complaints about the absence of such monitoring bodies, as well as about the failure of such bodies to exercise independence in carrying out their work or to implement recommendations for improvement.

77.The Rapporteur has also pointed to the importance of States parties providing clear-cut instructions on the absolute prohibition of torture as part of the training of law-enforcement and other relevant personnel. States parties need to provide information on the results of medical examinations and autopsies, and to document signs of torture, especially including sexual violence. States parties also need to instruct personnel on the need to secure and preserve evidence. The Rapporteur has found many lacunae in national statistics, including on penal and disciplinary action against law-enforcement personnel. Accurate record keeping, covering the registration of all procedural steps of detained persons, is essential and requires greater attention. All such measures contribute to safeguard the individual against torture or other forms of ill-treatment, as set forth in the Convention.

78.The chart below details, as at 3 June 2011, the end of the Committee’s forty-sixth session, the replies with respect to follow-up. This chart also includes references to the dates of submission of States parties’ comments to concluding observations, if any.

Follow-up procedure to conclusions and recommendations from May 2003 to June 2011

Thirtieth session (May 2003)

State party

Information due in

Information received

Action taken

Azerbaijan

May 2004

7 July 2004CAT/C/CR/30/RESP/1

Request for further clarification (21 April 2006)

Republic of Moldova

May 2004

-

Reminder (7 March 2006)

Thirty-first session (November 2003)

State party

Information due in

Information received

Action taken

Cambodia

November 2004

-

Reminder (28 April 2006)

Cameroon

November 2004

-

Reminder (17 February 2006)

Colombia

November 2004

24 March 2006CAT/C/COL/CO/3/Add.1

Reminder (17 February 2006)

16 October 2007 CAT/C/COL/CO/3/Add.2

Request for further clarification (2 May 2007)

Comments:17 December 2009CAT/C/COL/CO/3/Add.3

Request for further clarification (30 October 2009)

Latvia

November 2004

3 November 2004CAT/C/CR/31/RESP/1

Request for further clarification (21 April 2006)

14 May 2007CAT/C/LVA/CO/1/Add.1

Information under review

Lithuania

November 2004

7 December 2004CAT/C/CR/31/5/RESP/1

Request for further clarification (21 April 2006)

25 October 2006CAT/C/LTU/CO/1/Add.2

Request for further clarification (27 October 2008)

Morocco

November 2004

22 November 2004CAT/C/CR/31/2/Add.1

Request for further clarification (17 March 2011)

2 August 2006CAT/C/MAR/CO/3/Add.2

Request for further clarification (10 May 2006)

30 October 2006CAT/C/MAR/CO/3/Add.3

Yemen

November 2004

22 August 2005 CAT/C/CR/31/4/Add.1

Request for further clarification (21 April 2006)

Thirty-second session (May 2004)

State party

Information due in

Information received

Action taken

Bulgaria

May 2005

-

Reminder (17 February 2006)

Chile

May 2005

22 January 2007 CAT/C/38/CRP.4

Reminder (17 February 2006)

Request for further clarification (15 May 2008)

Croatia

May 2005

12 July 2006CAT/C/HRV/CO/3/Add.1

Reminder (17 February 2006)

16 February 2009CAT/C/HRV/CO/3/Add.2

Request for further clarification (13 May 2008)

Information under review

Czech Republic

May 2005

25 April 2005CAT/C/CZE/CO/3/Add.1

Request for further clarification (16 May 2006)

14 January 2008CAT/C/CZE/CO/3/Add.2

Request for further clarification (6 May 2011)

Germany

May 2005

4 August 2005CAT/C/CR/32/7/RESP/1

Request for further clarification (30 October 2006)

25 September 2007CAT/C/DEU/CO/3/Add.1

Request for further clarification (3 May 2011)

Monaco

May 2005

30 March 2006CAT/C/MCO/CO/4/Add.1

Reminder (17 February 2006)

Request for further clarification (15 May 2008)

New Zealand

May 2005

9 June 2005CAT/C/CR/32/4/RESP/1

Comments:19 December 2006CAT/C/NZL/CO/3/Add.2

Request for further clarification (14 May 2007)

Thirty-third session (November 2004)

State party

Information due in

Information received

Action taken

Argentina

November 2005

2 February 2006CAT/C/ARG/CO/4/Add.1

Request for further clarification (11 May 2007)

Greece

November 2005

14 March 2006CAT/C/GRC/CO/4/Add.1

Reminder (17 February 2006)

9 October 2008CAT/C/GRC/CO/4/Add.2

Request for further clarification (15 May 2008)

United Kingdom of Great Britain and Northern Ir