Azerbaijan

Third periodic report

CAT/C/AZE/3

CAT/C/AZE/CO/3

Colombia

Fourth periodic report

CAT/C/COL/4

CAT/C/COL/CO/4

El Salvador

Second periodic report

CAT/C/SLV/2

CAT/C/SLV/CO/2

Republic of Moldova

Second periodic report

CAT/C/MDA/2

CAT/C/MDA/CO/2

Slovakia

Second periodic report

CAT/C/SVK/2

CAT/C/SVK/CO/2

Spain

Fifth periodic report

CAT/C/ESP/5

CAT/C/ESP/CO/5

Yemen

Second periodic report

CAT/C/YEM/2

CAT/C/YEM/CO/2*

* Provisional concluding observations due to the fact that the State party did not send a delegation to meet with the Committee.

44.The following reports were before the Committee at its forty‑fourth session and it adopted the following concluding observations:

Austria

Fourth and fifth periodic reports

CAT/C/AUT/4-5

CAT/C/AUT/CO/4-5

Cameroon

Fourth periodic report

CAT/C/CMR/4

CAT/C/CMR/CO/4

France

Fourth to sixth periodic reports

CAT/C/FRA/4-6

CAT/C/FRA/CO/4-6

Jordan

Second periodic report

CAT/C/JOR/2

CAT/C/JOR/CO/2

Liechtenstein

Third periodic report

CAT/C/LIE/3 and Corr.1

CAT/C/LIE/CO/3

Switzerland

Sixth periodic report

CAT/C/CHE/6

CAT/C/CHE/CO/6

Syrian Arab Republic

Initial report

CAT/C/SYR/1

CAT/C/SYR/CO/1

Yemen

Second periodic report

CAT/C/YEM/2

CAT/C/YEM/CO/2/Rev.1*

* Final concluding observations.

45.In accordance with rule 66 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, except Yemen at the forty‑third session, sent representatives to participate in the examination of their respective reports. The Committee expressed its appreciation for this in its concluding observations.

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

47.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.2);

(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).

48.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 States parties wish to have advance notice of the issues likely to be discussed during the dialogue, it nonetheless has to 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

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

50. Azerbaijan

(1)The Committee considered the third periodic report of Azerbaijan (CAT/C/AZE/3) at its 907th and 909th meetings (CAT/C/SR.907 and CAT/C/SR.909), held on 9 and 10 November 2009, and adopted, at its 920th meeting, held on 18 November 2009 (CAT/C/SR.920), the concluding observations as set out below.

A. Introduction

(2)The Committee welcomes the submission of the third periodic report of Azerbaijan and the written responses to the list of issues (CAT/C/AZE/Q/3) submitted by the State party.

(3)The Committee notes with appreciation the extensive dialogue with the high-level delegation sent by the State party and the replies to the questions raised during the dialogue. It welcomes the State party’s constructive attitude towards implementation of its recommendations, as shown by the adoption of numerous legal and policy reforms.

B. Positive aspects

(4)The Committee welcomes the recent legislative and other measures taken by the State party since the consideration of its previous report, namely:

(a)Adoption of the Fight against Human Trafficking Law in 2005, the amendment of the Criminal Code (2005) and the creation of a relief fund for victims of human trafficking;

(b)Adoption of a presidential order on the Modernization of Judiciary on 19 January 2006 and application of the Amendments, dated 19 January 2006, establishing regional courts of appeal which address legal assistance to individuals, as well as the adoption of a State programme on development of the Azerbaijani justice system for 2009–2013, which, inter alia, envisages improvements for convicted persons;

(c)The ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in 2009;

(d)The ratification of the Convention on the Rights of Persons with Disabilities and the Optional Protocol thereto, in 2009.

(5)The Committee also notes with satisfaction the following developments:

(a)Adoption of a national plan of action for the protection of human rights, on 28 December 2006;

(b)Launching of a prison reform programme in 2006;

(c)Establishment of a public committee to monitor penitentiary institutions;

(d)Establishment of the Council of State support for non-governmental organizations under the President’s administration, in 2007, and allocation of additional resources to NGOs;

(e)The efforts made in order to improve the conditions of detention of prisoners and the measures takenresulting in the substantial reduction of the rate of mortality from tuberculosis in prisons since 1995.

(6)The Committee welcomes the commitment of the State party delegation to make public reports on the findings of the three visits since 2005 of the European Committee for the Prevention of Torture to Azerbaijan.

C. Main subjects of concern and recommendations

Overarching considerations regarding implementation

(7)Despite the Committee’s requests for specific statistical information in the list of issues and the oral dialogue with the State party, the Committee regrets that it 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 personnel, as well as concerning detention conditions, abuse by public officials, and domestic and sexual violence severely hampers the identification of possible patterns of abuse requiring attention (arts. 2 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, geographical region and type and location of place of deprivation of liberty, as well as information on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment, detention conditions, abuse by public officials, administrative detention, and domestic and sexual violence, and outcomes of all such complaints and cases. The State party should provide the Committee with the above-mentioned detailed information, including on the number of complaints of torture that have been submitted since 2003.

Definition of torture

(8)The Committee welcomes the commitment by the State party to amend article 133 of the Criminal Code in order to bring the definition of torture into full compliance with the definition provided in article 1 of the Convention. The Committee reiterates its concern that the definition of torture in article 133 of the current Criminal Code omits references to the purposes of torture set forth in the Convention, such as “for any reasons of discrimination of any kind”, and lacks provisions defining as an offence torture inflicted with the consent or acquiescence of a public official or other person performing official functions (arts. 1 and 4).

Bearing in mind the obligation of the State party to bring its legislation into conformity with article 1 of the Convention, the State party should fulfil its commitment made during the interactive dialogue with the Committee to bring its definition of torture fully into conformity with the Convention, so as to ensure that all public officials and others responsible for torture under article 133 of the Criminal Code may be prosecuted.

Torture and ill-treatment

(9)The Committee remains concerned about the numerous continued allegations of use of torture and ill-treatment of suspects and other detainees, which reportedly commonly takes place between the moment of apprehension and formal registration at remand centres. The Committee is also deeply concerned about allegations that authorities are reluctant to initiate criminal proceedings for alleged acts of torture or ill-treatment, and notes with concern that officials who have allegedly committed acts of torture or ill-treatment are not charged with these crimes, but rather charged with “excess of authority”, “negligence” and “minor, serious or serious harm to health out of imprudence”. The Committee is concerned that such practices contribute to a culture of impunity among law enforcement officials, and is particularly concerned that, despite numerous allegations of torture and ill-treatment by law enforcement officials, not a single case against an official has been initiated under article 133, part 3, of the Criminal Code. The Committee values the fact that the Government has prosecuted 161 cases of domestic violence under article 133 since 2001, but notes that there were no prosecutions under this article against persons acting under colour of authority (arts. 2, 15 and 16).

The State party should take all necessary measures to ensure that, in practice, all allegations of torture are subjected to prompt, impartial and effective investigation and, as appropriate, prosecute and if responsibility is found, punish accordingly.

Ombudsman’s office

(10)The Committee regrets the lack of information provided on the number of allegations or complaints of specific acts of torture or ill-treatment that were received and investigated by the Ombudsman’s office, as well as information on the number of investigations into torture or ill-treatment that this mechanism has initiated on its own accord. Notwithstanding the “A” rating received by the Ombudsman’s office from the body that oversees implementation of the Paris Principles, the Committee is deeply concerned at the information from the State party that the Ombudsman’s office is not permitted by its founding documents to monitor all State organs. The Committee is concerned that the Ombudsman lacks the requisite degree of independence to be the national institution responsible for investigating complaints of torture and other human rights violations, as well as to serve as the national prevention mechanism under the Optional Protocol to the Convention against Torture (arts. 2, 11 and 16).

The State party should take effective measures to ensure that the Ombudsman’s office is in practice a functioning, independent body, in compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles), annexed to General Assembly resolution 48/134, especially with regard to its independence. The State party should inform the Committee on all cases of torture or ill-treatment investigated by the Ombudsman and the outcomes of such investigations.

Insufficient basic legal safeguards

(11)Notwithstanding the State party’s efforts to improve the system of registration of detainees, the Committee notes with concern the allegations of widespread and routine use of torture or ill-treatment of detainees in police custody, including before their official registration and during pretrial detention. The Committee is also concerned over the inadequate legal safeguards for detainees, which include, inter alia, restricted access to independent doctors and public defenders and failure to notify detainees of their rights at the time of detention, including their rights to contact family members, as alleged in the cases of Emin Milli and Adnan Hajizade, and Kamil Saddredinov. The Committee is also concerned at the shortage of public defenders in the State party, and at allegations that the quality of legal aid is low as a result of inadequate resources. In addition, the Committee notes with concern allegations that suspects are purposefully detained for delayed periods as witnesses and are thus denied basic legal safeguards, and only later have their status changed to that of a suspect. The Committee further regrets the lack of information provided with regard to the mechanism or legal provision through which detainees may request a medical examination by an independent doctor, and remains concerned at allegations that access to medical care is frequently denied, in practice, as was reportedly the case for detainee Mahir Mutafayev, who suffered second- and third-degree burns and was not granted access to medical attention until 11 to 12 hours after the incident, and Novruzali Mammadov (arts. 2 and 16).

The State party should take prompt and effective measures to ensure that individuals are registered from the actual moment of deprivation of liberty, and that they are not subjected to acts in breach of the Convention when they are under custody, but not yet registered as detainees. A central registration system for all detainees should be improved in accord with the recommendations of the European Committee for the Prevention of Torture. The State party should ensure that suspects are brought before a judge as soon as possible, calculated from the actual moment of deprivation of liberty, so as to determine the legality of their detention. The systematic use of audio and video equipment in police stations and detention facilities should be implemented, particularly in interrogation rooms and for all interrogation of minors.

The State party should also take effective measures to ensure that in practice, all detainees in all detention and remand centres are guaranteed, inter alia , immediate access to independent legal counsel and an independent medical examination. Additionally, steps should be taken to establish and clarify the procedure in place by which detainees, their legal counsel or a judge may demand such an examination. The State party should also continue to take measures to address the shortage of public defenders, including by ensuring that public defenders are adequately paid for their work.

Independent monitoring of places of detention

(12)The Committee particularly welcomes the establishment of the public committee, consisting of representatives of non-governmental organizations, that has been mandated to monitor penitentiary institutions. Notwithstanding the State party’s insistence that such visits are unrestricted, the Committee is concerned, however, that the Public Committee is unable to make unannounced visits to detention facilities because, under the order of the Minister for Justice of 25 April 2006, visits are subject to internal disciplinary regulations which, in practice, reportedly require 24 hours notice prior to visits.It is also concerned that the one-year term of the public committee members unduly limits the application of the expertise developed by these monitors. The Committee is also concerned that the public committee is not granted access to pretrial detention centres and the remand centre under the Ministry of National Security (arts. 2, 11 and 16).

The State party should guarantee that the public committee has an unrestricted right to conduct unimpeded and unannounced visits to all places of detention in the country, including pretrial detention facilities and the remand centre under the Ministry of National Security.

Conditions in places of deprivation of liberty and deaths in custody

(13)The Committee welcomes the efforts made by the State party to improve conditions in penitentiary institutions and remand facilities, including the significant improvements in the conditions of detention for persons serving life sentences, increasing the number of visits, telephone calls and amount of monthly allowance, and establishing medical units. The Committee also welcomes the construction of new prisons in Shaki, Ganja, Lenkaran, Nakhchivan and other regions, as well as construction of remand centres, such as the one in Baku, in order to improve the conditions for detainees. Nevertheless, the Committee remains concerned at the number of deaths and suicides committed by inmates and at the alleged restrictions on independent forensic examination into the causes of such deaths. It is also concerned at allegations of the State party’s use of prolonged solitary confinement (art. 11).

The State party should promptly, thoroughly and impartially investigate all incidents of death in custody and prosecute those found responsible for any deaths. The State party should provide information to the Committee on any cases of death resulting from torture, ill-treatment or wilful negligence leading to any of these deaths.

Families of victims should be provided with adequate compensation and rehabilitation.

The State party should limit the use of solitary confinement as a measure of last resort, for as short a time as possible, under strict supervision and with the possibility of judicial review. The State party should also identify reasons leading prisoners to committing suicide, provide appropriate remedies and review the legislation in this regard. It should allow independent forensic examinations and accept their findings as evidence in criminal and civil cases.

(14)The Committee remains concerned that the remand centre of the Ministry of National Security continues to operate and is being used for detention of convicted persons (art. 11).

The Committee reiterates its previous recommendation that the State party should transfer the remand centre of the Ministry of National Security to the authority of the Ministry of Justice, or discontinue its use.

Involuntary placement in psychiatric institutions

(15)The Committee is concerned about numerous reports of forced confinement in psychiatric hospitals in Nakhchivan, of persons for reasons other than medical (arts. 11 and 16).

The State party should take measures to ensure that no one is involuntarily placed in psychiatric institutions for reasons other than medical. Where hospitalization is required for medical reasons, the State party should ensure that it is decided only upon the advice of independent psychiatric experts and that such decisions can be appealed.

(16)The Committee is concerned about poor conditions in psychiatric institutions outside Baku. It also notes with concern the absence of an independent body to monitor conditions in psychiatric institutions (arts. 11 and 16).

The State party should establish an independent monitoring and inspection system for such facilities. It should improve the living conditions for patients 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 safeguards set out to secure their rights.

Independence of the judiciary

(17) The Committee notes with satisfaction the significant improvement in the judicial system. It also welcomes the President’s decree of 17 August 2006 increasing the number of judges in the State party by half, as well as other reforms in the process of selection of judges. Nevertheless, the Committee remains concerned at the lack of independence of the judiciary with regard to the executive branch and its susceptibility to political pressure (art. 14).

The Committee reiterates its previous recommendation that the State party should guarantee the full independence and impartiality of the judiciary in accordance with the Basic Principles on the Independence of the Judiciary.

(18)While recalling the decision by the plenum of the Supreme Court of 10 March 2000, instructing all courts not to accept evidence obtained by the use of torture, abuse or physical or psychological coercion, the Committee notes with concern that the State party could not name a single incident when a court refused to accept evidence obtained through unlawful methods. The Committee is concerned at allegations that, on the contrary, in several cases courts relied on statements that were allegedly made under duress (art. 14).

The State party should take immediate steps to ensure that, in practice, evidence obtained by torture may not be invoked as evidence in any proceedings. The State party should 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 establish a mechanism to ensure that any persons convicted on the basis of coerced evidence or as a result of torture or ill-treatment are afforded a new trial and adequate remedy, reparation and/or compensation.

Domestic violence

(19)The Committee notes with satisfaction the awareness-raising campaigns on domestic violence and the adoption of a declaration on combating violence against women, including domestic violence. However, it remains concerned that there continue to be allegations of widespread domestic violence not only against women, but also against children, and that the adoption of the draft law on domestic violence has been delayed. It is also concerned at the lack of safe shelters for victims of domestic violence. The Committee also regrets 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 State party should ensure protection of women and children by speedily enacting the draft law on domestic violence and taking measures to prevent in practice such violence. The State party should provide for the protection of victims, access to medical, social and legal services, temporary accommodation, and compensation and rehabilitation. Perpetrators should also be punished in accordance with the gravity of their crimes.

The State party should compile information on the number of cases of domestic violence that have been reported, the number of such complaints that have been promptly, impartially and independently investigated, the number of investigations that led to trials and the outcomes of the trials, including the punishment meted out and the compensation provided to victims.

Trafficking

(20)While noting with satisfaction the adoption of legislative and policy measures taken regarding trafficking in human beings, the Committee remains concerned at the prevalence of the phenomenon in Azerbaijan (arts. 2, 10, 12 and 16).

The State party should ensure that legislation on trafficking is fully enforced and should continue its efforts to investigate, prosecute, convict and punish persons found responsible, including Government officials complicit in trafficking.

Violence against journalists and human rights defenders

(21)The Committee is concerned about allegations of continuous pressure on the media, particularly at reports of harassment and beatings of journalists and human rights defenders that have not been investigated. The Committee is also concerned at allegations of restraints to due process in the recent conviction of individuals who had allegedly expressed opinions in non-conventional media (arts. 2, 10, 12 and 16).

The State party should fully guarantee and protect the right of freedom of opinion and expression of journalists and media representatives, and introduce legal mechanisms and practical measures to that effect. The State party should conduct prompt and impartial investigation into allegations of violence against journalists and human rights defenders, and prosecute and punish perpetrators. The Committee refers to its general comment No. 2 (CAT/C/GC/2, para. 21), that the State party should ensure the protection of members of groups especially at risk of ill-treatment, including by prosecuting and punishing all acts of violence and abuses against such individuals and ensuring implementation of positive measures of prevention and protection.

Non-refoulement

(22)The Committee is concerned at cases of extraordinary rendition, such as the rendition of Chechens to the Russian Federation, based on bilateral extradition agreements, and Kurds to Turkey, where they may face a real risk of torture. The Committee regrets the lack of data provided on asylum applications and refugees, the number of expulsions, refoulement and extradition cases, as well as on the number of cases subjected to judicial administrative review. The Committee also regrets the absence of information on diplomatic assurances and any post-return monitoring procedure established for such cases (art. 3).

The State party should 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 that persons whose applications for asylum have been rejected can lodge an effective appeal with suspensive effect. The State party should compile and provide the Committee with detailed statistical data, disaggregated by country of origin, on the number of persons who have requested asylum or refugee status, and the outcomes of these applications, as well as the number of expulsions, deportations or extraditions that have taken place and the countries where individuals were returned to. The State party should take all measures to ensure that individuals who may face a risk of torture in their countries of origin are not returned, extradited or deported to these countries. The State party should avoid the systematic use of diplomatic assurances, and should provide detailed information on the content of any such agreements and the minimum standards of guarantee they provide.

Training

(23)The Committee notes with appreciation the training courses on human rights and prohibition of ill-treatment introduced in the curricula of mandatory courses for prison staff, including medical staff, as well as the publication of manuals on prohibition of torture and the translation of the manual “Human rights and prisons” into Azerbaijani. However, the Committee regrets the limited information on monitoring and evaluation of these training programmes and the lack of available information on the impact of the training conducted for all relevant officials, including law enforcement officials, prison staff and border guards, and how effective the training programmes have been in reducing incidents of torture and ill-treatment (art. 10).

The State party should further develop educational programmes to ensure that all officials, including law enforcement officials, prison staff and border guards are fully aware of the provisions of the Convention, that breaches will not be tolerated and will be investigated, and that offenders will be prosecuted. All relevant medical personnel should receive specific training on how to identify signs of torture and ill-treatment. The Committee recommends that the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) become an integral part of the training provided to all personnel involved in the detention or imprisonment of persons, as well as to all personnel involved in the investigation and documentation of torture. Furthermore, the State party should develop and implement a methodology to assess the effectiveness and impact of such training and educational programmes on the reduction of cases of torture, violence and ill-treatment.

Redress and compensation, including rehabilitation

(24)While welcoming the information provided by the State party that victims of torture have a legal right to obtain compensation, the Committee is nevertheless concerned at the lack of examples of cases in which individuals have received such compensation (art. 14).

The Committee reiterates its previous recommendation, that the State party should provide redress and compensation, including rehabilitation to victims in practice, and provide examples of such cases to the Committee.

Minors

(25)The Committee is concerned about the reported cases of ill-treatment and torture used to obtain incriminating confessions and testimonies from minors and that no effective investigation has been conducted in respect of such allegations (arts. 2, 11 and 16).

The State party should ensure that minors have a lawyer and a trusted adult present at every phase of a proceeding, including during questioning by a police officer, whether or not the minor has been deprived of liberty. The State party should halt all practices involving abuse of minors in places of detention, punish perpetrators and ban the holding of under-age detainees with adult detainees.

Violence in the armed forces

(26)The Committee is concerned at the reported prevalence of violence and ill-treatment of conscripts in the army, commonly called Dedovshchina (hazing or bullying), which has reportedly led to serious injuries, and of a large number of unexplained deaths of conscripts, including suicides (arts. 2 and 16).

The State party should initiate prompt and effective investigations into every case of non-field related deaths, including suicides, of soldiers in the armed services, and should prosecute and punish any perpetrators of actions leading to these deaths and take measures to prevent such incidents in the future.

(27)The State party is encouraged to consider becoming a party to the International Convention for the Protection of All Persons from Enforced Disappearance and to the Rome Statute of the International Criminal Court.

(28)The State party is encouraged to disseminate widely its reports submitted to the Committee, its replies to the list of issues, the summary records of meetings and the conclusions and recommendations of the Committee, in all appropriate languages, through official websites, the media and non-governmental organizations.

(29)The Committee invites the State party to submit its core document in accordance with the requirements of the common core document in the harmonized guidelines on reporting, as approved by the international human rights treaty bodies (HRI/GEN/2/Rev.5).

(30)The Committee requests the State party to provide, within a year, information on its response to the Committee’s recommendations contained in paragraphs 9, 11, 12 and 26 above.

(31)The State party is invited to submit its next periodic report, which will be the fourth report, by 20 November 2013.

51. Colombia

(1)The Committee against Torture considered the fourth periodic report of Colombia (CAT/C/COL/4) at its 908th and 911th meetings (CAT/C/SR.908 and 911), held on 10 and 11 November 2009, and adopted, at its 925th meeting (CAT/C/SR.925), the following concluding observations.

A. Introduction

(2)The Committee welcomes the fourth periodic report of Colombia, appreciates the sincere and open dialogue with the delegation of the State party and is grateful for the written replies to the list of issues (CAT/C/COL/Q/4/Add.1), which facilitated the discussions between the delegation and members of the Committee. The Committee also expresses its gratitude for the information supplied to the Committee in 2006 (CAT/C/COL/CO/3/Add.1) and in 2007 (CAT/C/COL/CO/3/Add.2) concerning the implementation of the previous recommendations.

B. Positive aspects

(3)The Committee notes with appreciation that, during the period since it considered the third periodic report, the State party has ratified the following instruments:

(a)Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (ratified on 23 January 2007);

(b)Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (ratified on 25 May 2005);

(c)Inter-American Convention on Forced Disappearance of Persons (ratified on 12 April 2005);

(d)ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No. 182) (ratified on 28 January 2005);

(e)United Nations Convention against Transnational Organized Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (ratified on 4 August 2004);

(f)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (ratified on 11 November 2003).

(4)The Committee welcomes the continued cooperation of the State party with the Office of the United Nations High Commissioner for Human Rights (OHCHR) since the establishment of an office in the country in 1997.

(5)The Committee considers as positive the State party’s cooperation with the special rapporteurs, special representatives and working groups of the Human Rights Council and the numerous visits carried out by these human rights mechanisms.

(6)The Committee welcomes the jurisprudence of the Constitutional Court and its extensive references to international human rights standards.

(7)The Committee considers it positive that the jurisdiction of the International Criminal Court has been accepted without qualification by the State party since 2009.

(8)The Committee expresses its satisfaction at the absence of the death penalty in the State party.

(9)The Committee notes with satisfaction the efforts being made by the State party to reform legislation, policies and procedures with the aim of ensuring better protection of the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, including:

(a)The human rights certification criterion for promotion in the security services, adopted by the Ministry of Defence in November 2008;

(b)The adoption of the National Plan for the Search for Disappeared Persons in 2007;

(c)The Policy to Combat Impunity (CONPES 3411 of 2006);

(d)The organization of training courses on the Istanbul and Minnesota Protocols, with advice from the Office of the United Nations High Commissioner for Human Rights and the United Nations Office on Drugs and Crime;

(e)The establishment of a special investigation group within the National Human Rights and International Humanitarian Law Unit in the Office of the Public Prosecutor of the Nation on the topic of torture.

C. Principal subjects of concern and recommendations

Definition of torture

(10)The Committee notes that the Criminal Code includes a definition of the crime of torture. However, it is concerned that, in practice, a charge relating to crimes of torture does not clearly identify torture as a specific and separate offence, given that it is subsumed under aggravating circumstances relating to other offences regarded as more serious by judicial officials. The Committee is also concerned about the possibility of erroneous definitions that assimilate the crime of torture to other less serious criminal offences such as that of personal injury, which does not require proof of the offender’s intention. The Committee is concerned that these practices result in a serious under-recording of cases of torture and entail impunity for the said crimes (arts. 1, 2 and 4 of the Convention).

The State party should adopt the necessary measures to ensure that crimes of torture are prosecuted as a separate offence and that the charge corresponds to the serious nature of the crime, and should not allow cases of torture to be subsumed under other related offences. Similarly, there is a need to ensure that acts of torture are not defined in terms of a less serious offence, such as the infliction of personal injury. The Committee recommends strengthening the training of prosecutors to ensure that torture is prosecuted in a manner consistent with the State party’s international obligations.

Complaints of torture and impunity

(11)While there has been an overall reduction in the number of complaints of torture since the last periodic review in 2004, the Committee is concerned that the incidence of torture in the State party remains high and shows specific patterns that point to widespread practice. The Committee notes that, while illegal armed groups are to a large extent responsible for such violence, there are persistent complaints about the participation or acquiescence of agents of the State in these acts. The Committee is particularly concerned at reports indicating an increased number of cases in which direct involvement by agents of the State is alleged. It also expresses grave concern at the persistence of serious violations linked to torture, such as extrajudicial execution, forced disappearance, forced displacement, sexual violation and the recruitment of children in the context of armed conflict, and at the vulnerable situation of certain groups such as women, children, ethnic minorities, displaced persons, the prison population and LGBT persons (art. 2 of the Convention).

(12)Despite the initiatives of the State party to counter impunity, the Committee finds it to be prevalent in the State party. The Committee expresses serious concern at the lack of reliable information on cases of torture and the stage of proceedings they have reached. It is also concerned at the absence of criminal investigations by the Office of the Public Prosecutor of the Nation, the fact that few cases have come to trial and that not all the cases concerned have been referred to the Human Rights and International Humanitarian Law Unit. It is a matter of concern to the Committee that cases of torture continue to be investigated only by administrative, disciplinary or military, rather than criminal jurisdictions. The Committee is concerned at the discrepancies between the figures provided by the different entities of the State party concerning the number of cases of torture and that the lack of a centralized system for compiling data on cases of torture makes it difficult to be certain how many cases are reported, investigated and punished (arts. 2, 4 and 12 of the Convention).

The Committee calls on the State party to comply with its obligations under the Convention and to investigate and punish acts of torture with appropriate penalties which take into account their grave nature. The Committee underlines the responsibility of the State party for ensuring that investigations are undertaken by the competent authorities, that the investigation is carried out promptly and impartially and that these crimes are punished with appropriate penalties which take into account their grave nature. The Committee urges the State party to allocate additional resources to the Human Rights and International Humanitarian Law Unit in order to speed up its work and underlines the importance of the cases concerned being assigned to that Unit. The Committee recommends that the State party establish a centralized system making it possible to identify all cases of torture and the stage reached in investigating them.

Independence of the Office of the Public Prosecutor

(13)The Committee expresses its desire to see the independence of the Public Prosecutor of the Nation strengthened and respected. It is also concerned that prosecutors attached to the Office of the Public Prosecutor are placed within military facilities, since this could compromise their independent functioning (arts. 2 and 12 of the Convention).

The Committee urges the State party to ensure that the Public Prosecutor is appointed on the basis of criteria that guarantee the selection of a professional capable of acting in total and full independence. The Committee also recommends that the practice of placing prosecutors within military facilities be discontinued.

Demobilization and de facto amnesty

(14)The Committee is seriously concerned at the lack of an appropriate legal framework for establishing the criminal liability of demobilized members of illegal armed groups, including approximately 30,000 paramilitaries. The legal rights granted by Act No. 975 of 2005 (Justice and Peace Act) and Decree 128 of 2003 do not conform to the principle of the proportionality of the sentence and the lack of convictions points to a de facto amnesty in contravention of international human rights obligations. The Committee is seriously concerned that, despite the systematic violence highlighted in versión libre accounts and the statement in Act No. 975 of 2005 that “the provisions of this Act shall be applied in accordance with constitutional norms and the international treaties ratified by Colombia”, there has to date been no conviction for serious human rights violations. The Committee points out that the adoption of Act No. 1312 of July 2009 on the application of the principle of opportuneness leads to impunity if the waiver of prosecution is applied without regard to human rights standards, and represents a violation of the victim’s right to full redress (arts. 2, 4, 12 and 13 of the Convention).

The Committee urges the State party to comply with its obligations under the Convention and other international instruments, including the Rome Statute of the International Criminal Court, and investigate and punish crimes of torture with appropriate penalties which take into account their grave nature. In this regard, it points out to the State party, with reference to its general comment No. 2, adopted in 2007 (CAT/C/GC/2), that the Committee considers that amnesties or other impediments which preclude or indicate unwillingness to ensure prompt and fair prosecution and punishment of perpetrators of torture or ill-treatment may violate the principle of non-derogability.

Acquiescence and complicity with illegal armed groups

(15)The Committee is concerned at the widespread complicity of public servants and elected representatives with illegal armed groups, as evidenced by the high number of prosecutions for collusion with these crimes. It expresses great concern that Supreme Court judges have been threatened and have had to have recourse to the Inter-American Human Rights System for interim measures of protection. The Committee also expresses its dismay that Supreme Court judges have been harassed, placed under surveillance and have had their telephone calls tapped by intelligence agents of the Administrative Department of Security (DAS) (art. 2 of the Convention).

The Committee notes the efforts of the State party to prosecute public servants and elected representatives for complicity with illegal armed groups and urges the State party to guarantee fully the integrity and security of persons working in agencies concerned with the administration of justice. The Committee urges the State party to take immediate steps to discontinue the harassment and surveillance of judges by intelligence agents (the DAS) and to punish those responsible for threatening the independence of the judiciary.

Military justice and extrajudicial executions

(16)The Committee is seriously concerned at the widespread pattern of extrajudicial executions of civilians, subsequently described by the security forces as deaths in combat (“false positives”). The Committee reiterates its concern that the military justice system continues to assume jurisdiction in cases of gross human rights violations, including extrajudicial executions carried out by the security forces, thereby undermining the impartiality of those investigations (arts. 2, 12 and 13 of Convention).

The State party should put an immediate stop to these crimes and comply fully with its obligation to ensure that gross human rights violations are investigated impartially under the ordinary court system, and that the perpetrators are punished. The gravity and nature of the crimes clearly show that they fall outside military jurisdiction. The Committee underlines the responsibility of the High Council of the Judiciary for resolving conflicts of jurisdiction. The Committee also emphasizes the importance of ensuring that initial investigations, the collection of evidence and the recovery of corpses are the responsibility of the civil authorities.

Forced disappearances

(17)The Committee expresses its serious concern at the widespread practice of forced disappearances (28,000 officially recognized in the National Registry of Disappeared Persons) and the number of corpses recovered from mass graves – 2,778 to date according to the State party’s figures. The Committee notes that the graves have been discovered mainly on the basis of statements by demobilized paramilitaries and that the vast majority of victims were tortured before being executed, as evidenced by the corpses found bound and dismembered. The Committee regards as positive the adoption in 2007 of the National Plan for the Search for Disappeared Persons, but is concerned at the slow pace of implementation and the lack of institutional coordination with the Office of the Public Prosecutor. The Committee regrets that the Executive has opposed a bill aimed at clarifying forced disappearances and identifying corpses in mass graves (art. 2 of the Convention).

The Committee urges the State party to take effective steps and allocate sufficient resources to implement the National Plan for the Search for Disappeared Persons, ensuring that victims’ families and organizations are suitably involved and that there is proper institutional coordination among all the competent authorities. The Committee recommends that support be given to legislative initiatives to promote clarification of forced disappearances, the rights of victims and early identification of corpses in mass graves. The Committee invites the State party to ratify the International Convention for the Protection of All Persons from Enforced Disappearance.

Prevention of acts of torture

(18)The Committee acknowledges the efforts made by the State party to prevent gross human rights violations through the introduction of the Early Warning System (SAT) and the presence of community defenders in highly vulnerable population groups. It is, however, concerned that the human and financial resources allocated to these initiatives are insufficient and that the Inter-Institutional Early Warning Committee (CIAT), responsible for issuing early warnings, does not seem to act promptly and adequately (art. 2 of the Convention).

The Committee recommends that the State party strengthen the Early Warning System in order to prevent displacement and other gross human rights violations, ensuring that it is allocated sufficient human and financial resources, that warnings are issued in good time, and that the civil authorities at the departmental, municipal and other levels participate in the coordination of preventive measures. Given their valuable role in preventing violations, the Committee recommends that the State party allocate more resources to community defenders attached to the Ombudsman’s Office and extend the scope of the programme.

Extradition

(19)The Committee is concerned that the extradition of paramilitary leaders to the United States of America to answer charges of drug trafficking has produced a situation that hampers investigations into their responsibility for gross human rights violations. The lack of an effective legal framework for guaranteeing the obligations entered into under the Convention hinders victims’ access to justice, the truth and redress and contravenes the State’s responsibility to investigate, try and punish crimes of torture (arts. 6 and 9 of the Convention).

The State party should ensure that extraditions do not hamper the efforts required to investigate, try and punish gross human rights violations. The State party should take steps to ensure that extradited persons cooperate in investigations in Colombia into gross human rights violations. The State party should ensure that future extraditions take place within a legal framework that recognizes the obligations imposed by the Convention.

Arbitrary detentions

(20)The Committee is concerned about the high incidence of arbitrary arrests, and in particular the use of preventive administrative detention by the police and mass arrests by the police and the army. The Committee notes that arrest warrants are frequently insufficiently substantiated by evidence and that arrests are used as a means of stigmatizing certain groups such as community leaders, youth, indigenous people, Afro-Colombians and peasants (art. 2 of the Convention).

The Committee recommends that the State party take steps to eradicate preventive administrative detention and mass arrests, and act on the recommendations made by the Working Group on Arbitrary Detention following its mission to Colombia in 2008 (A/HRC/10/21/Add.3).

Conditions in detention

(21)The Committee remains concerned about conditions in detention in the light of persistent overcrowding and continuing complaints of torture and other cruel, inhuman or degrading treatment in prisons and places of temporary detention. The Committee is concerned that prolonged solitary confinement is used as a form of punishment. It has received reports of inhuman or degrading treatment in the Valledupar high- and medium-security prison and the Bellavista prison in Medellín. The Committee is concerned that complaints about cases of torture and inhuman treatment tend to be dealt with through disciplinary proceedings alone, and that it has rarely been possible to carry out investigations. The Committee is also concerned about the military nature of the prisons and the scant availability of mental health services for prisoners (arts. 11 and 16 of the Convention).

The State party should adopt effective measures to improve material conditions in prisons, reduce the current overcrowding and properly meet the basic needs of all persons deprived of their liberty. The use of solitary confinement should be reviewed and restricted. Complaints of torture and other cruel, inhuman or degrading treatment in prisons and places of temporary detention should be promptly and impartially investigated and brought to the attention of the criminal courts.

Optional Protocol

(22)The Committee takes note of the State party’s decision to reject ratification of the Optional Protocol to the Convention and its claim that this role is already performed by the human rights committees constituted by the Office of the Ombudsman and prisoners, on the grounds that the internal regulations (resolution No. 5927/2007) of the National Penitentiary and Prison Agency (INPEC) provide a mechanism to guarantee the human rights of prisoners by means of a consultative and decision-making process within the committees of each prison, in which prisoners and the offices of the Public Prosecutor and the Ombudsman participate directly. Although the Committee notes that the initiative to set up human rights committees in prisons is a positive development, it is concerned that such mechanisms are supervised by INPEC and do not constitute an independent preventive mechanism as provided for by the Optional Protocol (art. 2 of the Convention).

The Committee recommends that the State party ratify the Optional Protocol to the Convention as soon as possible, the better to prevent violations of the Convention.

Human rights defenders

(23)The Committee reiterates its concern about the stigmatization of human rights defenders and their families, the high incidence of threats, the frequent attacks on their safety and the lack of effective protection measures. The Committee is concerned that they have been placed under surveillance and have had their telephones tapped by Administrative Department for Security (DAS) agents, as have other actors in civil society such as trade unionists, non-governmental organizations and journalists (art. 2 of the Convention).

The Committee urges the State party to put an immediate end to the harassment by DAS agents of human rights defenders and other civil society actors upholding human rights, and to punish those responsible for practices stigmatizing human rights defenders. The State party should ensure that effective protection is made available for human rights defenders and others whenever they have been threatened on account of their activities.

Witness protection

(24)The Committee is concerned about the frequent threats made against witnesses in cases involving torture and other cruel, inhuman or degrading treatment. The Committee is particularly concerned about the harassment and murders of witnesses and victims who have taken part in trials held under Act No. 975 of 2005. In spite of the protection programmes in place, the Committee considers that the State party has not fully complied with its duty to ensure the safety and integrity of witnesses and victims (art. 13 of the Convention).

The Committee urges the State party to adopt effective measures to guarantee the safety and integrity of witnesses and victims and to strengthen protection programmes with additional resources. The Committee urges the State party to pay special attention to the protection and interim measures issued by the Inter-American Human Rights System and to take immediate and effective measures to ensure compliance with them.

Full redress

(25)The Committee is concerned about the lack of redress available for victims of torture and other cruel, inhuman or degrading treatment. It notes that to date there are 250,000 victims of the armed conflict and that Act No. 975 of 2005 and Decree No. 1290 of 2008 make provision for redress for the victims of violations committed by illegal armed groups. Article 42 of Act No. 975 of 2005 assigns liability for redress to armed groups that have been convicted by the courts, a provision so far rendered inoperative by the lack of any convictions. The Committee acknowledges the efforts made by the State party to establish a programme to provide individual administrative redress via Decree No. 1290 of 2008; it notes, however, that in spite of the references to the “State’s subsidiary or residual responsibility”, the programme is based on the principle of solidarity rather than on the State’s duty to guarantee rights. Given that the State party is responsible for violations committed with the consent or complicity of, or through omission by, agents of the State, the Committee is seriously concerned that the responsibility of the State is not clearly defined and that current legislation may lead to discrimination among victims (art. 14 of the Convention).

The State party should fully guarantee the right of victims of torture and other cruel, inhuman or degrading treatment to redress and ensure that this right is established without discrimination in national legislation, and is enforced in practice. Implementation of this right must be pursued taking into account the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law and take into account the five elements of that right; restitution, compensation, rehabilitation, satisfaction and guaranteed non-repetition. Particular attention should be paid to gender issues and to victims who are children, Afro-Colombians or indigenous people. Resources should be specifically assigned to provide psychological and social care.

Restitution

(26)The Committee is concerned about the threats against victims of forced displacement who have asked for the return of their land. It notes that those mainly affected are peasants, Afro-Colombians and indigenous people. The Committee is concerned that land belonging to displaced persons has been seized by illegal armed groups and in some cases sold to third parties for monocultivation and exploitation of natural resources (art. 14 of the Convention).

The Committee urges the State party to adopt effective measures to ensure the return of land to victims of displacement and to respect the land ownership of peasants, Afro-Colombians and indigenous people.

Right to truth

(27)The Committee is concerned that the mechanisms established by Act No. 975 of 2005 fail fully to guarantee the right to truth, in spite of the references made thereto by the Act, and that this right is in practice restricted to procedural truth. While acknowledging the work carried out by the National Commission for Compensation and Reconciliation, the Committee notes that the Commission is mainly made up of States bodies (art. 14 of the Convention).

The Committee recommends that the State party adopt effective measures to guarantee the right to truth and that it consider establishing an autonomous, independent truth commission.

Sexual violence

(28)The Committee is concerned about the high incidence of sexual violence and about its use as a weapon of war. It regrets the failure to take all necessary measures to ensure compliance with Constitutional Court order 092 of 2008, and the lack of information on the relevant investigations. It expresses concern about the rapes reportedly carried out by the security forces, noting the lack of firm action, and the absence of investigations to identify the perpetrators. It is also concerned about the failure of the mechanisms established by Act No. 975 of 2005 to reflect crimes involving sexual violence and by the fact that they are not always documented in forensic reports, despite the instructions that have been issued (arts. 2 and 16 of the Convention).

The State party should adopt effective and urgent measures to eradicate sexual violence, particularly when used as a weapon of war. In particular, the State party should comply with Constitutional Court order 092 of 2008 and investigate the relevant cases. Sexual violence reportedly committed by the security forces should be investigated, tried and firmly punished. Measures should be implemented to ensure the full and systematic application of the instructions requiring signs of torture or sexual violence to be documented in forensic reports.

Child soldiers

(29)The Committee is concerned about the continued recruitment and use of children by illegal armed groups. The Committee recognizes the efforts made by the State party through the establishment, in December 2007, of the Intersectoral Commission to prevent the unlawful recruitment of children and adolescents by illegal organized groups; it notes that according to the State party, it has been possible to break the grip of such groups on some 3,800 children. The Committee does, however, regret the lack of information on the criminal liability of persons responsible for recruiting children. It is concerned that such children are not given sufficient support to ensure their physical and mental rehabilitation and recuperation, that different levels of protection are offered depending on whether the children are demobilized from guerrilla or other illegal armed groups, and that when children are taken captive by the security forces, they are not always handed over to the civil authorities within the 36-hour legal deadline. The Committee is also concerned that the security forces use children for intelligence purposes, occupy schools in areas of conflict and organize “military days” in schools throughout the country (arts. 2 and 16 of the Convention).

The State party should strengthen measures to prevent the recruitment of children, provide proper support to ensure their physical and mental rehabilitation and recuperation and prosecute through the criminal courts those who have recruited them. The security forces should refrain from jeopardizing the neutrality of schools and comply with standards relating to the return to the civil authorities of children who have broken away from illegal armed groups or been captured. The Committee recommends that the State party extend its full cooperation to the Special Representative of the Secretary-General for Children and Armed Conflict in order to progress with the implementation of Security Council resolution 1612.

Non-refoulement

(30)The Committee notes that Decree No. 2450 of 2002 “which lays down procedures for establishing refugee status” contains provisions that do not fully comply with the obligations laid down in article 3 of the Convention and in the 1951 Convention relating to the Status of Refugees. The Committee nevertheless takes note that approval of a new decree on this matter, which includes the principle of non-refoulement, is pending (art. 3 of the Convention).

The State party should expedite the adoption of new legislation that includes the principle of non-refoulement. In order to ensure that the guarantee of non-refoulement is implemented in practice, training on this obligation should be given to immigration officials and the police.

(31)The Committee invites the State party to submit the core document in conformity with the requirements for a common core document laid down in the harmonized guidelines on reporting under the international human rights treaty bodies and contained in document HRI/GEN/2/Rev.6, chapter I.

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

(33)The Committee requests that the State party provide information, within one year, on the measures taken in pursuance of the Committee’s recommendations as set forth in paragraphs 12 to 17 above.

(34)The Committee recommends that the State party take all appropriate steps to implement these recommendations, including conveying them to the members of the Government and Parliament so that they may be considered and the necessary measures taken.

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

(36)The Committee requests the State party to include in its next periodic report detailed information on the steps it has taken to comply with the recommendations contained in these concluding observations.

(37)The Committee invites the State party to submit its fifth periodic report by 20 November 2013 at the latest.

52. El Salvador

(1)The Committee considered the second periodic report of El Salvador (CAT/C/SLV/2) at its 902nd and 904th meetings (CAT/C/SR.902 and 904), held on 5 and 6 November 2009, and adopted, at its 920th and 921st meetings (CAT/C/SR.920 and 921), held on 18 November 2009, the following concluding observations.

A. Introduction

(2)The Committee welcomes the second periodic report of El Salvador, prepared in accordance with the general directives concerning the form and content of periodic reports. However, the Committee regrets that the report was submitted six years late. The Committee appreciates the constructive dialogue established with the representatives of the State party, and expresses its gratitude for the replies provided in response to the questions and concerns raised by the Committee.

B. Positive aspects

(3)The Committee notes with appreciation that, during the period since it considered the initial report, the State party has ratified the following international instruments:

(a)Convention on the Rights of Persons with Disabilities and its Optional Protocol (ratified on 13 December 2006 and 14 December 2007 respectively);

(b)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (ratified on 17 May 2004);

(c)Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (ratified on 18 April 2002).

(4)The Committee appreciates the invitations extended by the State party to various components of the special procedures, including the Working Group on Enforced or Involuntary Disappearances and the Special Rapporteur on violence against women, its causes and consequences.

(5)The Committee notes with satisfaction that the State party has eliminated the death penalty. However, it recommends that the State party should also eliminate it for certain military offences stipulated in military legislation during a state of international war.

(6)The Committee notes with appreciation the adoption of the Special Act on the Protection of Victims and Witnesses in May 2006.

(7)The Committee welcomes:

(a)The establishment of the Salvadoran Institute for the Development of Children and Adolescents through the amendment of the Act on the Salvadoran Institute for the Comprehensive Development of Children and Adolescents in July 2006;

(b)The establishment of the Commission on Refugee Status Determination in July 2002;

(c)The establishment in June 2000 of a Human Rights Unit within the National Civil Police, composed of three departments: promotion, protection and administration.

(8)The Committee notes with satisfaction that on 1 April 2004 the Constitutional Division of the Supreme Court found that a number of articles in the Anti-Gang Act violated the Constitution and the Convention on the Rights of the Child, as they breached the fundamental principle of equality before the law; it also found that the Act presupposed that individuals engaged in criminal activities on the basis of their personal or social circumstances rather than the actual commission of an offence, and also ruled that a child may not be tried as an adult.

(9)The Committee welcomes the willingness of the Government to institute a policy of full acknowledgement of its international obligations in the field of human rights arising from the international treaties ratified by the State party, and to recognize the right of victims of human rights violations to know the truth, to have access to justice and to obtain adequate reparation.

C. Principal subjects of concern and recommendations

Definition of torture

(10)Despite the fact that article 297 of the Criminal Code and the Constitution provide a definition of torture, the Committee reiterates its concern, already expressed at the time of its consideration of the initial report, that the State party has still not brought the definition of the crime of torture in its domestic legislation into line with the provisions of article 1 and the requirements of article 4 of the Convention. The Committee notes with concern that the definition of torture does not include specification of the purpose of the crime, that no aggravating circumstances have been indicated, that the possibility of attempted torture is excluded, and that it does not encompass intimidation or coercion of the victim or a third person or discrimination of any kind as a motive or reason for inflicting torture. It also lacks provisions defining as an offence torture inflicted at the instigation or with the consent or acquiescence of a public official or other person performing official functions. The Committee is also concerned that domestic legislation contains no provision for the application of appropriate penalties in the light of the serious nature of the crime of torture (arts. 1 and 4).

The State party should take the necessary steps to ensure that all acts of torture, including all the elements specified in articles 1 and 4 of the Convention, are considered to be offences in its domestic penal legislation and that, in keeping with article 4, paragraph 2, of the Convention, appropriate penalties are applied in every case in the light of the serious nature of such offences.

Allegations of torture

(11)The Committee is concerned that allegations of serious offences, including acts of torture, committed by personnel of the National Civil Police and prison staff in the performance of their duties, continue to be received, especially in the context of strategies to combat the high level of crime. The Committee is particularly concerned that the allegations of torture which have been received include reference to vulnerable persons such as street children and young people or those from broken families. The Committee also notes with concern that some possible cases of torture have been investigated, under disciplinary rules, as abuses of power, despite their seriousness. The Committee regrets that no independent body exists which could investigate reports of ill-treatment and torture, contributing to a situation in which such offences go unpunished (arts. 2 and 12).

The Committee recommends that the State party should expedite legislative reforms and set up an independent body to monitor the behaviour and discipline of the police forces. The State party should also guarantee that no act carried out by the police forces that violates the Convention will go unpunished and that the investigations into such acts will be effective, transparent and carried out under criminal law. Continuing education programmes should also be stepped up to ensure that all law enforcement personnel are fully aware of the provisions of the Convention.

Impunity and absence of prompt, thorough and impartial investigations

(12)The Committee notes with concern that widespread impunity is one of the main reasons why torture has not been eradicated. The Committee is particularly disturbed by reports of several cases in which serious accusations against the security forces, in particular National Civil Police officers and prison staff, remain at the increasingly protracted investigation stage, where those responsible have not been effectively brought to justice, and where alleged perpetrators of crimes remain in their posts. The Committee is also concerned that the State party has not established an independent body to safeguard the independence of the judiciary (arts. 12, 13 and 16).

The Committee urges the State party to take steps to combat impunity, including:

(a) A public declaration that the State party will not tolerate torture and that those responsible for acts of torture will be brought to justice;

(b) Prompt, thorough, impartial and effective investigation of all reports of torture and ill-treatment committed by law enforcement personnel. In particular, such investigations should not be in the hands or under the authority of the police or prison staff, but an independent body. Where there is evidence of torture and ill-treatment, the suspect should normally be suspended from duty or assigned to other tasks during the investigation, especially if there is a risk that he or she may obstruct it;

(c) Bringing the perpetrators to justice and imposition of appropriate penalties on those convicted, in order to eliminate the impunity of law enforcement personnel who are responsible for violations of the Convention;

(d) Guaranteeing the full independence of the judiciary in line with the Basic Principles on the Independence of the Judiciary (General Assembly resolution 40/146 of 13 December 1985) and establishment of an independent body to safeguard the independence of the judiciary.

Public safety

(13)The Committee notes with concern that the State party has assigned 4,000 members of the armed forces to police units known as Joint Task Forces, to undertake policing tasks, such as the prevention and suppression of common crimes linked to the number of gangs, instead of providing support to the police in its work (art. 2).

The State party should take effective steps to support the National Civil Police and cancel programmes, even temporary ones, which authorize the army to intervene in law enforcement activities and the prevention of ordinary crime, which should be carried out exclusively by the police.

Enforced or involuntary disappearances during the armed conflict between 1980 and 1992

(14)The Committee welcomes the as yet limited efforts of the Inter-agency Commission on the search for children who disappeared during the armed conflict and the plan to restructure the Commission and redefine its functions. It also welcomes the invitation extended by the State party to the Working Group on Enforced or Involuntary Disappearances in 2007. However, the Committee wishes to express its concern at the failure to provide full redress to the victims of enforced or involuntary disappearances during the armed conflict between 1980 and 1992 and their families and, in general, the inadequate investigations and punishment and the lack of full redress and compensation in relation to those crimes. It also regrets the failure to search for adults who have disappeared (arts. 2, 4 and 16).

The Committee reminds the State party that the crime of enforced disappearance is ongoing by nature and should be investigated for as long as its effects continue, until those responsible have been identified. Similarly, the Committee reiterates the recommendations of the Working Group on Enforced or Involuntary Disappearances and notes with concern that they have not been implemented in full. The Committee urges the State party to take rapid steps to ensure progress in the search for missing persons, the establishment of a programme of full redress and compensation for victims and their families and the prevention of further cases of enforced or involuntary disappearance.

General Amnesty (Consolidation of the Peace) Act and recommendations of the Truth Commission

(15)The Committee notes with satisfaction the Government’s statement that it will not maintain the position upheld by previous administrations of justifying the application of the Amnesty Act as necessary for the preservation of peace in the State party. It also notes that in its ruling of 26 September 2000, the Supreme Court held that, although the Amnesty Act is constitutional, judges may decide not to apply it when giving judgements on specific cases, adding that “it shall be for the judge to decide in each specific case when this exception applies, by means of an interpretation in keeping with the Constitution”, and that “if the events which gave rise to the civil responsibility of a public official or employee have not been covered by an amnesty — because they involve crimes which cannot be the subject of an amnesty — or if the amnesty granted breaches the Constitution, the obligation to provide compensation may be asserted before the competent courts”. However, the Committee considers that this Act violates the right to an effective remedy, since it hinders the investigation and punishment of all those responsible for human rights violations and stands in the way of the right to redress, compensation and rehabilitation of the victims. The Committee notes with concern that the State party has not implemented the recommendations made by the Truth Commission in 1993 (arts. 2, 4, 5 and 14).

The Committee urges the State party to repeal the General Amnesty (Consolidation of the Peace) Act. In that regard, it draws the State party’s attention to paragraph 5 of its general comment No. 2 on the implementation of article 2 by States parties (CAT/C/GC/2), in which the Committee considers that amnesties or other impediments which preclude or indicate unwillingness to provide prompt and fair prosecution and punishment of perpetrators of torture or ill-treatment violate the principle of non-derogability. The Committee likewise recommends that all necessary steps should be taken to guarantee that investigations of cases of torture and other cruel, inhuman or degrading treatment or punishment are carried out thoroughly, promptly and impartially, that the perpetrators are prosecuted and punished and that measures are adopted to provide redress and rehabilitation for the victims, in accordance with the provisions of the Convention.

The Committee notes with satisfaction the willingness of the new Government to adopt a policy of full material and moral redress for the victims of human rights violations which have occurred in the present or the recent past. The Committee nevertheless urges the State party to take prompt steps to implement the recommendations of the Truth Commission, and in particular to prosecute and punish promptly and impartially those responsible for acts of torture, ill-treatment or enforced or involuntary disappearance, to remove from their posts all officials who have been identified as alleged perpetrators of human rights violations, to create a special fund to compensate victims, to construct a national monument bearing the names of all the victims, and to declare a national holiday in memory of the victims.

Pretrial detention

(16)The Committee is concerned at the length of pretrial detention and the high number of persons thus detained because of a general increase in violence in the country, as the State party has acknowledged (art. 2).

The State party should take prompt steps to restrict the use of pretrial detention as well as its duration, using alternative methods whenever possible and when the accused does not represent a danger to society.

Conditions of detention

(17)The Committee notes with satisfaction the planned measures and actions to be taken by the administration of the prison system to curb violations of the human rights of the prison population. However, the Committee expresses its concern at the serious problem of overcrowding — according to information supplied by the State party, the prison population stands at 21,671 against a capacity of 9,000 — which has an adverse impact on other prison conditions. The Committee is particularly disturbed at the failure to separate accused persons from convicted prisoners, women from men and children from adults, as well as inadequate health care, hygiene, drinking water, education and visits. The Committee is also concerned by reports of the use of incommunicado detention for long periods of time.

(18)The Committee regrets the high levels of violence among prisoners and the lack of surveillance in prisons, which has led to deaths among prisoners. The Committee is also concerned that these incidents have not been promptly and impartially investigated, and that those responsible have not been punished. In view of this, the Committee is disturbed by the fact that article 45 of the Prisons Act has been amended to specify that complaints must be lodged by prisoners within a time limit of 15 days following any incident.

(19)The Committee is also particularly concerned about prison conditions for minors, who suffer from ill-treatment and inadequate access to medical services and education (arts. 11 and 16).

The Committee recommends that the State party should:

(a) Take immediate steps to reduce overcrowding in prisons, in particular through the application of alternatives to imprisonment, and take steps to improve infrastructure, sanitary conditions and health services;

(b) Ensure that accused persons are kept separate from convicted prisoners, women from men and children from adults in all places of detention;

(c) Provide the necessary equipment, personnel and budgetary resources to ensure that prison conditions throughout the country are brought into line with minimum international standards and principles relating to prisoners’ rights;

(d) Abolish all forms of incommunicado detention;

(e) Pursue the development of programmes for prisoner resocialization and reintegration;

(f) Take urgent steps to prevent violence among prisoners and ensure the prompt, impartial and thorough investigation of all incidents of violence in detention facilities and the punishment of those responsible. Prisoners’ complaints should not have to be made within a specific time frame;

(g) Promptly, impartially and thoroughly investigate all allegations of ill-treatment of child prisoners and take urgent steps to prevent acts of torture and ill-treatment against child prisoners. The State party should also ensure that the deprivation of liberty is a last resort, used for the shortest time possible, and promote the use of alternatives to custodial sentences.

Conditions of detention under the Special Internment Regime

(20)The Committee notes with concern the allegations concerning the transfer of detainees to the Security Centre without an official warrant and the reports of incommunicado detention. Furthermore, the Committee is concerned about the conditions of detention at the Security Centre under the Special Internment Regime, with particular reference to allegations of ill-treatment by prison staff at the time of the detainee’s admission, prolonged detention in solitary confinement and restrictions on family visits, food, light and air (arts. 11 and 16).

The Committee recommends that the State party guarantee the detainee’s right to due process in accordance with the Special Internment Regime and abolish all forms of incommunicado detention. The State party should investigate promptly, impartially and thoroughly all allegations of ill-treatment. It should also take steps to improve the conditions of detention under the Special Internment Regime so that they comply with the minimal international standards and principles relating to the rights of persons deprived of their liberty.

Violence against women and femicide

(21)The Committee notes the setting up of 14 Inter-Institutional Committees to implement the National Plan on Domestic Violence, the establishment of observatories on violence and the initiation in 2005 of the national research project on femicide. The Committee takes note of a draft bill on violence against women and the touring fairs aimed at educating and informing people about domestic violence. Nevertheless, it is very concerned at the prevalence of numerous forms of violence against women and girls, including sexual abuse, domestic violence and the violent deaths of women (femicide). The Committee is furthermore concerned at the absence of thorough investigations into reported cases and the impunity enjoyed by the perpetrators of such acts (arts. 12, 13 and 16).

The State party should increase its efforts to ensure that urgent and efficient protection measures are put in place to prevent and combat violence against women and girls, including sexual abuse, domestic violence and femicide. The Committee considers that these crimes should not go unpunished and the State party should provide human and financial resources to punish the perpetrators of these acts. The State party should also organize widespread awareness-raising campaigns and training courses on violence against women and girls for officials in direct contact with the victims (law enforcement officers, judges, lawyers, social workers, etc.) as well as for the public at large.

(22)The Committee is also concerned at reports of humiliating body inspections of women visiting places of detention, in particular at the fact that such inspections may be carried out by unqualified persons, including personnel without medical training (art. 16).

The Committee emphasizes that inspections of women’s private parts can constitute cruel or degrading treatment and that the State party should take measures to ensure that such inspections are carried out only when necessary, by trained female medical professionals and taking every care to preserve the dignity of the woman being examined.

Allegations of violence or incest

(23)The Committee is particularly concerned that, according to information received, over half the complaints involving rape or incest come from victims who were minors when the offence was committed. It is also concerned that the current Criminal Code of 1998 penalizes and punishes with imprisonment for periods ranging from 6 months to 12 years all forms of recourse to voluntary interruption of pregnancy, including in cases of rape or incest, which has resulted in serious harm to women, including death (arts. 2 and 16).

With reference to its general comment No. 2, the Committee recommends that the State party take whatever legal or other measures are necessary to effectively prevent, investigate and punish crimes and all acts that put the health of women and girls at grave risk, by providing the required medical treatment, by strengthening family planning programmes and by offering better access to information and reproductive health services, including for adolescents.

Trafficking in persons

(24)The Committee recognizes the efforts made by the State party to deal with the trafficking of women and girls, such as the creation of a temporary shelter for women and their children who have been victims of commercial sexual and other forms of exploitation and of a shelter for girl victims of trafficking. However, the Committee is concerned about the continuous reports of cases involving the internal and cross-border trafficking of women and children for sexual and other purposes, and deplores the fact that the officials suspected of committing these acts have not been properly investigated, prosecuted and punished (arts. 2, 10 and 16).

The State party should ensure that all allegations concerning the trafficking of persons are investigated promptly, impartially and thoroughly and that the offenders are prosecuted and punished for the crime of trafficking in persons. The State party should continue to conduct nationwide awareness-raising campaigns, provide adequate programmes of assistance, recovery and reintegration for victims of trafficking and offer training to law enforcement officers, migration officials and border police on the causes, consequences and repercussions of trafficking and other forms of exploitation. The Committee further recommends that the State party increase its efforts to establish systems and mechanisms of international, regional and bilateral cooperation with the countries of origin, transit and destination in order to prevent, investigate and punish cases of human trafficking.

The principle of “non-refoulement”

(25)The Committee regrets the complaints alleging a systematic failure to comply with the principle of “non-refoulement” and with the right of access to due process and information for refugees and potential asylum-seekers, and the failure to provide proper safeguards against persons being placed at risk when returned to their country of origin. It further regrets the inadequacy of the mechanisms enabling the immigration authorities to establish that a person runs the risk of being tortured on return to his or her country of origin. The Committee further notes with concern the allegations of discriminatory treatment of asylum-seekers by the authorities of the State party (arts. 3 and 6).

The State party should adopt administrative and legislative measures to ensure respect for due process in the procedures for deciding on refugee status or deportation, with particular regard to the right of defence and the requirement that a representative of the Office of the United Nations High Commissioner for Refugees be present. It also recommends the introduction of training programmes on international humanitarian law applicable to refugees, with emphasis on the content and scope of the principle of non-refoulement, for immigration police and administrative officials responsible for deciding on refugee status and deportation.

Office of the National Counsel for the Defence of Human Rights

(26)The Committee welcomes the increase in the budget of the Office of the National Counsel for the Defence of Human Rights, and the improved dialogue between the Office and the current Government. However, the Committee notes that this budget is still inadequate. It regrets the allegations of interference with the work of this national human rights institution and the threats that have occurred during its investigations of some incidents (art. 2).

The Committee reminds the State party of the importance of the work of the national human rights institution and urges the State party to protect its activities and provide adequate funding. It also recommends that it give adequate follow-up to the recommendations of the Office of the Counsel for the Defence of Human Rights and that the link between its activities, its complaints procedures and other official monitoring mechanisms should be strengthened so as to ensure that the problems encountered are effectively addressed.

Human rights defenders

(27)The Committee is concerned about reports of acts of harassment and death threats aimed at human rights defenders, and about the fact that such acts remain unpunished (art. 2).

The State party should adopt effective measures to combat harassment and death threats aimed at human rights defenders and prevent any further violence against them. Furthermore, the State party should ensure the prompt, thorough and effective investigation of such acts and the appropriate punishment of the perpetrators.

Training on the prohibition of torture and application of the Istanbul Protocol

(28)The Committee notes with satisfaction the incorporation by the Public Security Academy of the study and practice of human rights, including the Convention against Torture and the Istanbul Protocol, in the basic training of police officers and the organization of training sessions on human rights for all police personnel. However, the Committee regrets the paucity of information provided on the monitoring and evaluation of existing training programmes, on the results of this training and on the usefulness of these programmes in reducing the number of cases of torture and ill-treatment. It also regrets the lack of information concerning training on the Istanbul Protocol for personnel involved in investigating, identifying and dealing with cases of torture (art. 10).

The State party should devise and apply a method for assessing the effectiveness of training and educational programmes, as well as their impact in reducing the number of cases of torture, violence and ill-treatment. The Committee recommends that the State party intensify its efforts to ensure that all personnel involved in the investigation and identification of cases of torture are aware of the content of the Istanbul Protocol and are trained to apply it.

Redress and rehabilitation

(29)The Committee is concerned that the State party does not have a programme for compensating and rehabilitating the victims of torture and that not all victims have the right to fair and adequate compensation (art. 14).

The Committee reaffirms the State party’s obligation to ensure that all victims of acts of torture have the legal right to fair and adequate compensation and rehabilitation.

(30)The Committee invites the State party to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

(31)The Committee further invites the State party to ratify the main United Nations human rights treaties to which it is not yet party, namely, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (signed on 25 September 2009), the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (signed on 4 April 2001), the Second Optional Protocol to the International Covenant on Civil and Political Rights, and the International Convention for the Protection of All Persons from Enforced Disappearance.

(32)The Committee notes that the Government’s programme for 2009–2014, under political reform relating to human rights, includes promoting the withdrawal of reservations on the recognition of competence. Nevertheless, the Committee recommends that the State party examine the possibility of making the declarations provided for in articles 21 and 22 of the Convention.

(33)The Committee requests the State party to include in its next periodic report detailed information on the steps it has taken to comply with the recommendations contained in these concluding observations. The Committee recommends that the State party take all appropriate steps to implement these recommendations, including their transmission to members of the Government and Congress for consideration and adoption of any necessary measures.

(34)The Committee recommends that the State party disseminate widely through the media, official websites and non-governmental organizations, including in indigenous languages, the reports it submits to the Committee, together with these conclusions and recommendations.

(35)The Committee requests the State party to inform it within one year of the steps taken in pursuance of the recommendations contained in paragraphs 15, 19 and 21.

(36)The Committee invites the State party to submit its core document in accordance with the harmonized guidelines on reporting (HRI/GEN/2/Rev.6).

(37)The State party is invited to submit its third periodic report by 20 November 2013 at the latest.

53. Republic of Moldova

(1)The Committee against Torture considered the second periodic report of the Republic of Moldova (CAT/C/MDA/2) at its 910th and 912th meetings (CAT/C/SR.910 and 912), held on 11 and 12 November 2009, and adopted, at its 922nd meeting (CAT/C/SR.922) held on 19 November 2009, the conclusions and recommendations as set out below.

A. Introduction

(2)The Committee welcomes the submission of the second periodic report of the Republic of Moldova, which, while generally following the Committee’s guidelines for reporting, is submitted with a delay of almost three years, and lacks statistical and practical information on the implementation of the provisions of the Convention. The Committee also welcomes the submissions of the replies to the list of issues (CAT/C/MDA/Q/2/Add.1), in which the State party provided additional information on the measures it has taken to implement the Convention. The Committee regrets, however, that the State party has not responded in the framework of follow-up to the questions that it raised in the course of consideration of the initial report of the Republic of Moldova (CAT/C/32/Add.4), despite the reminder sent on 7 March 2006 by the Committee’s Rapporteur for follow-up with regard to the concluding observations to the Republic of Moldova (CAT/C/CR/30/7).

(3)The Committee notes with satisfaction the constructive dialogue held with the high-level delegation of the State party.

(4)The Committee also notes the State party’s assertion that it cannot be held responsible for violations of human rights committed on the territory over which it “does not exercise a real jurisdiction”, as is the case with the left bank of the Dniester river (HRI/CORE/1/Add.114, paras. 33–34). The Committee nonetheless reiterates that the State party has an ongoing obligation to ensure that acts of torture and other forms of ill-treatment are prohibited in all parts of its territory.

B. Positive aspects

(5)The Committee welcomes the fact that, in the period since its consideration of the initial report, the State party has ratified or acceded to the following international and regional instruments:

(a)The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in 2006;

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

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

(d)The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, in 2006;

(e)The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, in 2006;

(f)The Council of Europe Convention on Action against Trafficking in Human Beings, in 2006;

(g)The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in 2007;

(h)The Optional Protocol to the International Covenant on Civil and Political Rights, in 2008.

(6)The Committee welcomes the ongoing efforts of the State party to reform its legislation in order to ensure better protection of human rights, including the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment, in particular:

(a)The revision of the Criminal Code and, in particular, the inclusion of article 309/1, which brings the State party’s legislation into line with article 1 of the Convention against Torture with regard to the definition of torture;

(b)The inclusion in the new Code of Criminal Procedure of article 94, paragraph 1, which makes statements obtained through the use of torture inadmissible as evidence, and the inclusion of section 3/1 to article 10, which states that the burden of proof in cases of torture rests with the institution in which the detainee was held and which must disprove the act of torture;

(c)Reforms of the criminal justice system and the introduction of probation and community service and other forms of alternative punishment, leading to a decrease in the total population incarcerated and the improvement of conditions of detention;

(d)Law No. 270-XVI of December 2008 on asylum in the Republic of Moldova, which is largely in line with international and European standards;

(e)Law No. 45-XVI of March 2007 on preventing and combating domestic violence.

(7)The Committee also notes with satisfaction the following developments:

(a)Direct reference to articles 12 and 13 of the Convention by the Supreme Court of Justice in cases examined in February 2006 and March 2008;

(b)The allocation by the State party of additional resources to improve standards in places of detention, in particular with respect to access to health, activities, training and living conditions.

C. Main issues of concern and recommendations

Torture and ill-treatment

(8)The Committee is concerned about the numerous and consistent allegations of widespread use of torture and other forms of ill-treatment in police custody, corroborated by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in his report (A/HRC/10/44/Add.3, para. 82). The Committee is also concerned about allegations of torture and ill-treatment being used to extract confessions or information as evidence in criminal proceedings, despite legislative and organizational changes made by the State party (arts. 2, 15 and 16).

As a matter of urgency, the State party should take immediate steps to prevent acts of torture and ill-treatment and to announce that no forms of torture and ill-treatment will be tolerated. The State party should, in particular, publicly and unambiguously condemn practices of torture in all its forms, directing this especially to police and prison staff in positions of command responsibility, accompanied by a clear warning that any person committing such acts, as well as instigating, consenting or acquiescing in torture or other ill-treatment, will be held personally responsible before the law for such acts and subject to penalties proportional to the gravity of their crime.

(9)The Committee is particularly concerned about the numerous, ongoing and consistent allegations of torture and other forms of ill-treatment in temporary detention facilities under the jurisdiction of the Ministry of Internal Affairs. The Committee is also concerned that, despite the State party’s plan to transfer responsibility over temporary detention facilities to the Ministry of Justice in the context of implementation of the Plan of Action for Human Rights for 2004–2008, the transfer did not take place and is now made conditional upon the construction of eight new remand centres (arts. 2 and 16).

As recommended in the previous concluding observations of the Committee (CAT/C/CR/30/7, para. 6 (i)), the State party should take immediate steps to fully transfer the responsibility for temporary detention facilities from the Ministry of Internal Affairs to the Ministry of Justice as a measure to prevent torture and ill-treatment.

Fundamental legal safeguards

(10)The Committee is concerned about allegations that fundamental legal safeguards for persons detained by the police, such as unrestricted access to lawyers and independent doctors, are not being observed, particularly at the early stages of detention, despite existing legal guarantees of articles 64 and 167 of the Code of Criminal Procedure and the adoption of the Law on State Legal Aid and of the Code of Offences. In addition, the Committee notes with concern that there is no system of mandatory use of registers in all police premises, and that, in practice, detainees are not always registered in police stations, depriving them of an effective safeguard against acts of torture. Furthermore, medical reports of independent doctors do not have the same evidentiary value as medical reports issued by medical service staff of the places of detention (arts. 2 and 16).

The State party should:

(a) Ensure in practice that every detainee, including when detained under the administrative law, is afforded all fundamental legal safeguards during his or her detention. These include, in particular, from the actual moment of deprivation of liberty, the right to have access to a lawyer and to have an independent medical examination, to notify relatives in a timely manner and to be informed of his or her rights, including grounds for the detention. The State party should ensure that arbitrary detention does not take place, that all detained persons are brought promptly before a judge and are guaranteed the ability to challenge effectively and expeditiously the lawfulness of their detention through habeas corpus ;

(b) Introduce a procedure of mandatory medical examination for detainees on each entry and departure from the temporary detention facilities, similar to the one established under article 251, section 1, of the Enforcement Code, for convicted persons in penitentiary institutions;

(c) Ensure in practice that the findings and medical reports of independent doctors whose medical opinion may be requested on the basis of article 5, paragraph (e), of the 2005 Law on the Rights and Responsibilities of Patients and/or article 251, section 4, of the Enforcement Code, are given the same evidentiary value by the State party’s courts as medical reports issued by medical service staff of the places of detention;

(d) Adopt regulations requiring mandatory use of registers in all police premises in conformity with the relevant international agreements, particularly the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Registration should contain information on the identity of the detainee, date, time and place of the detention, the identity of the authority that detained the person, grounds for the detention, date and time of admission to the detention facility, state of health of the detainee upon admission and any changes thereto, time and place of interrogations, with names of all interrogators present, as well as the date and time of release or transfer to another detention facility. The State party should also ensure that all detainees, including minors, are included in a central register that functions effectively.

Independence of the judiciary

(11)The Committee remains concerned at the dysfunction of the judiciary in general and of the criminal justice system in particular, firstly, because of the lack of independence of the judiciary, and secondly, because of the lack of security of tenure for judges (arts. 2, 15 and 16).

The State party should take effective and efficient measures to ensure the independence of the judiciary in accordance with the Basic Principles on the Independence of the Judiciary, if necessary by recourse to international cooperation.

Pretrial detention

(12)The Committee expresses its concern at the system of pretrial detention, in which lengthy periods are set by reference to the penalty for the offence of which the person stands accused (arts. 2, 11 and 16).

The State party should take appropriate measures to ensure that its pretrial detention policy is appropriate to the unconvicted status of persons in detention, meets international standards, inter alia , the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and that such detention is used as an exceptional measure for a limited period of time. Furthermore, the Committee encourages the State party to apply non-custodial measures as an alternative to pretrial detention.

Parliamentary advocates and national preventive mechanism

(13)The Committee notes with concern that serious legislative and logistic constraints impede effective functioning of the national preventive mechanism established under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee is particularly concerned about the lack of clarity as to what constitutes the national preventive mechanism (arts. 2, 11 and 16).

The State party should clarify what constitutes the national preventive mechanism, and strengthen the independence and capacity of parliamentary advocates and the national preventive mechanism, including its consultative council, to carry out regular and unannounced visits to all places of detention. In particular, the State party should:

(a) Clarify the legal provisions in relation to the rights of members of the national preventive mechanism to conduct regular and unannounced visits to all places of detention, without restriction, and to ensure that all members of the consultative council enjoy equal status as part of the national preventive mechanism, to enable it to fulfil its role effectively as a torture-prevention mechanism;

(b) Provide the national preventive mechanism as a whole, including the consultative council, with adequate support and resources, including logistic and secretarial support;

(c) Provide training and take relevant measures to ensure that all persons conducting visits under the Optional Protocol to the Convention are able to fulfil their role in documenting treatment of individuals in detention;

(d) Ensure that all persons involved in the administration of places of detention are aware of the rights of all members of the national preventive mechanism to have unhindered and unaccompanied access to all areas in all places where persons are deprived of their liberty, without any form of prior notice; these powers should include the possibility for the national preventive mechanism to examine, on demand, detention-related registries, including medical registries, taking due account of the rights of the persons concerned;

(e) Initiate disciplinary proceedings against officers who interfere with the free access of all persons conducting visits under the Optional Protocol to the Convention to all places where people are deprived of their liberty, or otherwise deny them private and confidential access to detainees, restrict their ability to review and copy registries and other relevant documents, or otherwise interfere with the performance of their duties;

(f) Ensure that, as a rule, and unless there are compelling human rights reasons to the contrary, the report and recommendations of each individual visit of the national preventive mechanism are made public and posted on the Internet website of the Centre for Human Rights of Moldova shortly after the visit, following measures to ensure rights of personal security of person and privacy for detainees, and following collegial approval within the national preventive mechanism as a whole;

(g) Develop other measures to ensure public awareness of torture and other forms of ill-treatment in detention facilities in the Republic of Moldova.

Appropriate penalties for acts of torture in the Criminal Code

(14)While acknowledging the efforts made by the State party to enact article 309/1 of the Criminal Code, incorporating a definition of torture that contains all the elements of article 1 of the Convention and makes it a specific criminal offence, the Committee is concerned about the inadequacy of the penalties applicable to torture and the frequent use of suspended sentences for persons found guilty of having committed acts of torture. The Committee is also concerned about the low rates of convictions and disciplinary measures imposed on law enforcement officers in the light of numerous allegations of torture and other acts of cruel and inhuman or degrading treatment, as well as the lack of public information about such cases (art. 4).

The State party should ensure that torture is punishable by adequate penalties which take into account its grave nature, as set out in article 4, paragraph 2, of the Convention, and that statistics on convictions and disciplinary measures are regularly published and made available to the general public. The Committee considers that by doing so, the State party 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 prohibition itself.

Excessive use of force by law enforcement officers

(15)The Committee is concerned about credible reports on the excessive use of force by law enforcement officers, with particular reference to the post-election demonstrations in April 2009. The Committee is particularly concerned about reports of arbitrary arrest, failed crowd control methods, including beatings, and torture and ill-treatment of persons detained in connection with post-election demonstrations (arts. 2, 10, 11, 12, 13, 14 and 16).

The State party should:

(a) Promptly, impartially and effectively investigate all complaints and allegations of misconduct by law enforcement officers during the post-election demonstrations in April 2009 by establishing an independent, impartial and credible body that should comply with relevant international standards in this area, particularly the updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, the findings of which should be made public;

(b) Ensure that law enforcement officers found responsible for acts of torture and ill-treatment of protestors and detainees, including those in positions of command responsibility, are prosecuted and, if found guilty, convicted with appropriate penalties. In connection with prima facie cases of torture and ill-treatment, implicated officers should as a rule be subject to suspension or reassignment during the process of investigation, especially if there is a risk that he or she might interfere with or impede the investigation;

(c) Ensure that an official apology is given and adequate compensation is provided to all victims of torture and other forms of ill-treatment that took place in connection with the post-election demonstrations in April 2009, irrespective of the outcome of criminal prosecutions against the perpetrators, and that adequate medical and psychological rehabilitation is given to victims.

(16)The Committee is concerned at reports that police and other law enforcement officers wore masks and did not carry identification badges during the post-election demonstrations of 7 April 2009, and that people were apprehended by officers in plain clothes, making identification impossible when complaints of torture or ill-treatment were presented (arts. 12 and 13).

The State party should enact and enforce legislation that requires all law enforcement officers on duty, including riot police and members of the special forces, to wear identification, and provide all law enforcement officers with uniforms that include appropriate visible identification to ensure individual accountability and protection against acts of torture and ill-treatment.

Training

(17)The Committee notes the wide range of educational programmes for police officers, criminal investigation officers and prosecutors, staff of penitentiary institutions, staff of legal departments and other State officials working in the field of human rights currently in place, but regrets the lack of information on training on the employment of non-violent means, crowd control and the use of force and firearms, as well as on any training programmes for judges, prosecutors, forensic doctors and medical personnel dealing with detained persons, to detect and document the physical and psychological sequelae of torture. The Committee also notes with concern the lack of programmes to assess the impact of the trainings conducted and their effectiveness in reducing incidents of torture, violence and ill-treatment (art. 10).

The State party should:

(a) Ensure that all law enforcement officers are adequately equipped and trained to employ non-violent means and only resort to the use of force and firearms when strictly necessary and proportionate to the specific situation. In this respect, the State party’s authorities should conduct a thorough review of current policing practices, including the training and deployment of law enforcement officials in crowd control and the regulations on the use of force and firearms by law enforcement officials. In particular, the State party should consider the adoption of a manual on the use of force in conformity with the relevant international agreements, such as the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;

(b) Also ensure that all relevant and, especially, medical personnel receive specific training on how to identify signs of torture and ill-treatment, and that the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) of 1999 becomes an integral part of this training;

(c) Develop and implement a methodology to assess the effectiveness and impact of all training/educational programmes on the reduction of cases of torture, violence and ill-treatment.

Conditions of detention

(18)The Committee welcomes the amendment in December 2008 of the Criminal Code, which reduced minimum and maximum penalties, prompted a general review of penalties and reoffending, and provided for alternatives to detention, thus contributing to the reduction in the total prison population in the State party. The Committee also welcomes the reconstruction, repairs and maintenance work carried out in a number of penitentiary institutions starting from 2007. Despite the State party’s efforts to improve the conditions of detention, the Committee remains concerned at overcrowding in certain facilities and that conditions remain harsh, with insufficient ventilation and lighting, poor sanitation and hygiene facilities and inadequate access to health care. The Committee is concerned about reports of inter-prisoner violence, including sexual violence and intimidation, in places of detention (art. 10).

The State party should:

(a) Take the measures necessary to alleviate the overcrowding of penitentiary institutions through, inter alia, the application of alternative measures to imprisonment and initiating at its own initiative a review of sentences with a view to bringing them into compliance with the December 2008 amendments of the Criminal Code. The State party should continue to make available the material, human and budgetary resources necessary to ensure that the conditions of detention in the country are in conformity with minimum international standards;

(b) Take prompt and effective measures to protect detainees from inter-prisoner violence. The State party should also establish and promote an effective mechanism for receiving complaints of sexual violence, including in custodial facilities, and ensure that law enforcement personnel are trained on the absolute prohibition of sexual violence and rape in custody, as a form of torture, as well as on receiving such type of complaints.

Complaints and prompt, effective and impartial investigations

(19)The Committee is concerned:

(a)At the limited number of investigations carried out by the State party in view of the high number of alleged acts of torture and ill-treatment by law enforcement agencies reported, and at the very limited number of prosecutions and convictions in those cases;

(b)That the dual nature and responsibilities of the prosecution authorities for prosecution and oversight of the proper conduct of investigations are a major barrier to the impartial investigation of allegations of torture and other forms of ill-treatment by police;

(c)At the absence of an independent authority with no connection to the law enforcement agency investigating or prosecuting the criminal case against the alleged victim of torture and ill-treatment that could investigate promptly and thoroughly all allegations of torture and ill-treatment by police ex-officio;

(d)At the State party’s acknowledgement that the complaints committee established under article 177 of the Enforcement Code is not empowered to monitor inmates’ treatment for the use of torture or inhuman or degrading treatment by penitentiary institution staff (CAT/C/MDA/Q/2/Add.1, para. 254);

(e)At the State party’s acknowledgement that frequently investigations fail to confirm that the alleged victims in the criminal cases have been subjected to ill-treatment by police officers, and that, in such instances, the prosecutor’s office halts the criminal prosecution on the ground of lack of evidence that an offence has been committed (CAT/C/MDA/Q/2/Add.1, para. 46). Notwithstanding that documenting physical signs of torture may become more difficult with the passage of time, the Committee is concerned at information that cases may not be investigated in a sufficient manner on the grounds that the prosecutor’s office is unable to establish evidence that a crime of torture has been committed;

(f)At the reports of intimidation and reprisals against those who report acts of torture or ill-treatment, including doctors and lawyers. The Committee notes with particular concern that, in June 2006, the general prosecutor’s office sent a letter to the College of Lawyers with a recommendation to examine activities of certain young lawyers who were “damaging Moldova’s image” by sending “unverified information on torture” to international organizations “in violation of the national procedures for human rights” (arts. 11–13).

The State party should strengthen its measures to ensure prompt, impartial and effective investigation into all allegations of torture and ill-treatment committed by law enforcement, security, military and prison officials, including those in positions of command responsibility. In particular:

(a) Such investigations should not be undertaken by or under the authority of the Prosecutor General’s office or any other law enforcement agency, but by an independent 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 interfere with or impede the investigation or continue to perpetrate acts in violation of the Convention;

(b) Investigate acts of torture and ill-treatment, prosecute the alleged perpetrators and, if found guilty, convict them with appropriate penalties;

(c) Amend the Code of Criminal Procedure to specify a time frame within which action should be taken to open a criminal investigation into any credible allegation of torture and ill-treatment, and clarify that the individual and cumulative physical and mental impact of treatment or punishment should be considered;

(d) Effective measures should be taken to ensure that those who report acts of torture or ill-treatment, including doctors and lawyers, are protected from intimidation and possible reprisals for making such reports. In particular, the letter of June 2006 sent by the Prosecutor’s Office to the College of Lawyers should be publicly renounced as a matter of urgency and necessary safeguards should be introduced to prevent similar abuses from occurring in the future.

Redress, including compensation and rehabilitation

(20)The Committee notes that, while the 1998 Law on Procedure for Compensation for Damage Caused by Unlawful Actions of Criminal Prosecution Bodies, Prosecutor’s Offices and the Courts and article 1405 of the Civil Code contain provisions regarding the right to compensation for victims, there is no explicit law that provides for full redress, including forms of psychosocial treatment and rehabilitation. The Committee regrets the lack of centralized statistics on the number of victims of torture and ill-treatment who may have received compensation and the amounts awarded in such cases (CAT/C/MDA/Q/2/Add.1, paras. 294–295), and information on other forms of assistance, including medical or psychosocial rehabilitation, provided to victims of torture and ill-treatment. The Committee also regrets the lack of information on the measures taken by the State party to execute the judgements rendered by the European Court of Human Rights with a finding of a violation of article 3 of the European Convention on Human Rights against the Republic of Moldova, and on compensation given to the victims (art. 14).

The State party should:

(a) Strengthen its efforts to provide redress and compensation to victims of torture and ill-treatment, including the means for as full rehabilitation as possible and to develop health and rehabilitation services for them;

(b) Take measures to execute judgements rendered by the European Court of Human Rights with a finding of a violation of article 3 of the European Convention on Human Rights against the Republic of Moldova;

(c) Provide in its next periodic report information on any reparation programmes, including treatment of trauma and other forms of rehabilitation provided to victims of torture and ill-treatment, and on the allocation of adequate resources to ensure the effective functioning of such programmes. The State party is encouraged to adopt the necessary legislation, establish a domestic fund for victims of torture and allocate sufficient financial sources for its effective functioning.

Coerced confessions

(21)While noting that article 94, paragraph 1, of the code of criminal procedure prohibits the admissibility of evidence obtained through torture, the Committee is concerned at reports of several cases of confessions obtained under torture and ill-treatment and at the lack of information on any officials who may have been prosecuted and punished for extracting such confessions (art. 15).

The State party should take the steps necessary to ensure inadmissibility in court of confessions obtained under torture and ill-treatment in all cases in line with domestic legislation and the provisions of article 15 of the Convention. In particular, it should improve methods of criminal investigation to end practices whereby confession is relied on as the primary and central element of proof in criminal prosecution, in some cases in the absence of any other evidence. The Committee requests the State party to submit information on the application of the provisions prohibiting admissibility of evidence obtained under duress and whether any officials have been prosecuted and punished for extracting such confessions.

Trafficking in persons

(22)The Committee welcomes the variety of legislative, policy and other measures, including the adoption in October 2005 of Law No. 241-XVI on Preventing and Combating Trafficking in Persons and the establishment of the Rehabilitation Centre for Victims of Trafficking in Human Beings. However, the Committee expresses its concern at persistent reports that the State party continues to be a country of origin and transit for trafficking in persons, particularly women and children (arts. 2, 10, 12 and 16).

The State party should continue to strengthen its efforts to combat trafficking in women and children and take effective measures to prosecute and punish the alleged perpetrators, including by applying strictly relevant legislation, raising awareness of the problem and training law enforcement personnel and other relevant groups. The State party should also broaden the implementation of measures to assist the social reintegration of victims and to provide genuine access to health care and counselling.

Domestic violence

(23)While noting various measures taken by the State party, including the decision of 25 September 2009 by a court in Anenii Noi to issue a protection order in favour of the victim in a case involving domestic violence, the Committee remains concerned about the persistence of violence against women and children, including domestic violence, the rarity of intervention measures by the judiciary, the limited number and capacity of shelters for victims of domestic violence, and at reports that domestic violence is deemed to warrant the intervention of the police only in cases where it has resulted in serious injury (arts. 2, 13 and 16).

The State party should enforce the Law on Preventing and Combating Domestic Violence and 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. The Committee urges the State party to address impunity in this area, to take appropriate preventive measures and to provide training on the handling of domestic violence to all professionals involved in such cases, including police officers, prosecutors, judges and social workers, with emphasis on the gender aspects of domestic violence. The State party should also provide information, in its next report, on the incidence of domestic violence, on the measures taken to address it, including the use of restraining orders, and on the impact, if any, of such measures.

Forcible detention of persons with tuberculosis

(24)The Committee notes with concern that, under a regulation promulgated in August 2009, persons with tuberculosis may be subjected to forcible detention if deemed to have “avoided treatment”. In particular, the regulation is unclear as to what constitutes the avoidance of treatment and fails to provide for, inter alia, adequate safeguards in the areas of regular access to legal counsel, upon request, as well as procedural rights, in particular with regard to regular review of the reasons for detention or for maintaining continued detention, privacy, family and correspondence, confidentiality, data protection, non-discrimination and non-stigmatization (art. 16).

The State party should urgently review the regulation on forcible detention of persons with tuberculosis and related policies, and bring them into compliance with the Convention, in particular guaranteeing independent regular review of detention measures, patient confidentiality and privacy, as well as non-discrimination in their application.

Violence in the armed forces

(25)While the Committee acknowledges the progress made by the State party in decreasing the number of cases of hazing (dedovshchina) in the armed forces and the measures taken to prevent such phenomena, it remains concerned at the persistence of cases of torture and other cruel, inhuman or degrading treatment or punishment in the armed forces (arts. 2 and 16).

The State party should:

(a) Take effective measures to eradicate hazing in the armed forces; reinforce the measures of prevention and ensure prompt, impartial and effective investigation and prosecution of such abuses; and report publicly on the results of such prosecutions;

(b) Guarantee the rehabilitation of victims, including through appropriate medical and psychological assistance.

Psychiatric facilities

(26)The Committee is concerned about the treatment of psychiatric patients, including the lack of legal safeguards and the poor living conditions in places where persons are held for involuntary treatment, as well as about the lack of independent monitoring of such places of deprivation of liberty (arts. 11 and 16).

The State party should improve the living conditions for patients in psychiatric institutions and ensure that all places where mental health patients are held for involuntary treatment are regularly visited by independent monitoring entities to guarantee the proper implementation of the safeguards set out to secure their rights, and that alternative forms of treatment are developed.

Minorities and marginalized groups

(27)The Committee notes with concern reports of violence and hatred towards minorities, especially Roma, and other vulnerable groups in the Republic of Moldova, including alleged recent manifestations of hate speech and intolerance against homosexuals (art. 16).

The Committee recalls in the light of its general comment No. 2 on the implementation of article 2 (CAT/C/GC/2, 2008) that the special protection of minorities or marginalized individuals or groups especially at risk is part of the State party’s obligation to prevent torture or ill-treatment. In this respect, the State party should:

(a) Incorporate in its Criminal Code an offence to punish hate crimes as acts of intolerance and incitation to hatred and violence based on sexual orientation. Moreover, the State party should continue to be vigilant in ensuring that relevant existing legal and administrative measures are strictly observed and that training curricula and administrative directives constantly communicate to staff the message that incitation to hatred and violence will not be tolerated and will be sanctioned accordingly;

(b) Provide detailed information and statistics on the number and type of hate crimes, as well as on the administrative and judicial measures taken to investigate and prosecute such crimes and the sentences imposed.

Data collection

(28)The Committee requests the State party to provide in its next periodic report detailed statistical data, disaggregated by crime, sentence, ethnicity, age and sex, on the number of persons deprived of liberty; on the complaints relating to torture and ill-treatment allegedly committed by law enforcement officials; on the related investigations, prosecutions and penal or disciplinary sanctions; and on pretrial detainees and convicted prisoners. The Committee also requests information on the compensation and rehabilitation provided to the victims.

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

(30)The Committee recommends that the State party also consider becoming a party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness. The State party is also encouraged to ratify the International Convention for the Protection of All Persons from Enforced Disappearance, the Convention on the Rights of Persons with Disabilities and the Rome Statute of the International Criminal Court.

(31)The Committee invites the State party to submit its core document in accordance with the requirements of the common core document in the harmonized guidelines on reporting, as approved by the international human rights treaty bodies (HRI/GEN/2/Rev.5).

(32)The State party is encouraged to disseminate widely the reports it has submitted to the Committee, its replies to the list of issues, the summary records of meetings and the conclusions and recommendations of the Committee, in appropriate languages, through official websites, the media and non-governmental organizations.

(33)The Committee requests the State party to provide, within one year, information in response to the Committee’s recommendations contained in paragraphs 13, 15, 16, 20 and 24 above.

(34)The State party is invited to submit its next periodic report, which will be the third, by 20 November 2013 at the latest.

54. Slovakia

(1)The Committee against Torture considered the second periodic report of Slovakia (CAT/C/SVK/2) at its 899th and 901st meetings (CAT/C/SR.899 and 901) held on 3 and 4 November 2009, and adopted, at its 916thmeeting (CAT/C/SR.916), held on 16 November 2009, the concluding observations as set out below.

A. Introduction

(2)The Committee welcomes the submission of the second periodic report of Slovakia, which covered the period from 1 January 2001 to 31 December 2006 and was in compliance with the reporting guidelines, as well as the replies to the list of issues (CAT/C/SVK/Q/2/Add.1), which provided additional information on the measures taken by the State party to implement the Convention. The Committee also notes with satisfaction the constructive dialogue held with the high-level delegation of the State party.

B. Positive aspects

(3)The Committee notes with appreciation:

(a)That international treaties take precedence over the laws of Slovakia;

(b)The ratification of the optional protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in 2004, and on the involvement of children in armed conflict, in 2006;

(c)The ratification of the Rome Statute of the International Criminal Court, on 11 April 2002;

(d)The reviews of legislation aimed at improving the fulfilment of the State party’s commitments under the Convention, such as the new Criminal Code No. 300/2005, the new Criminal Procedure Code No. 301/2005, Act No. 475/2005 on the Execution of Custodial Sentences and Act No. 221/2006 on the Execution of Remand in Custody;

(e)The creation of the Public Defender of Rights (Ombudsman’s Office), in 2001.

(4)The Committee also welcomes the decision by the Constitutional Court on 26 June 2008 not to send Mr. Mustapha Labsi to Algeria on the ground that he might be in danger of being subject to torture.

C. Principal subjects of concern and recommendations

Definition of torture

(5)While noting the broad definition of torture in the Slovak Criminal Code, the Committee is concerned that this definition does not include the purpose of discrimination, nor that instigation, consent or acquiescence of a public official or other person acting in an official capacity are elements of the definition (art. 1).

The State party should bring its definition of torture into line with article 1 of the Convention by including the element of discrimination and by criminalizing instigation, consent and acquiescence of a public official or other person acting in an official capacity.

Fundamental safeguards

(6)The Committee is concerned that persons in police custody may exercise their right to contact a member of their family and have access to an independent medical doctor and to legal counsel only “as soon as practical”, not from the outset of their detention (art. 2).

The State party should ensure that persons in police custody can exercise their right to contact a member of their family and have access to an independent medical doctor, if possible of their choice, and to legal counsel from the outset of their deprivation of liberty.

Independence of the judiciary

(7)The Committee is concerned that judges are appointed by the President of Slovakia on the basis of a proposal by the Judiciary Council, as some of the members of the Judiciary Council are appointed and dismissed by the President of the Republic and the Government (art. 2).

The State party should guarantee the full independence of the Judiciary Council in order to ensure the independence of the judiciary. In this respect, the Committee recalls the Basic Principles on the Independence of the Judiciary adopted in Milan in 1985 and endorsed by the General Assembly in its resolutions 40/32 and 40/146.

Non-refoulement and risk of torture

(8)The Committee is concerned that, according to section 13 of the asylum law, persons considered to be a threat to national security or a danger to the community are not protected by the principle of non-refoulement, which may expose them to a risk of torture or other cruel, inhuman or degrading treatment or punishment. It is also concerned at the very low rate of successful asylum applications (art. 3).

The State party should adopt urgently the measures, especially legal ones, necessary to ensure protection of the rights of all asylum-seekers and persons seeking refugee status. Furthermore, the State party should apply the non-refoulement principle without any discrimination or exception.

Complaints, investigations, prosecutions and convictions

(9)While noting that the Inspection Service Office is managed by the Minister of the Interior and allegedly independent of the police, the Committee is concerned that alleged unlawful acts committed by the police, including torture and ill-treatment, are investigated by police officers of the Inspection Service Office. In this respect, the Committee is concerned that very few complaints against police officers are accepted and investigated and lead to prosecution and convictions (arts. 12 and 13).

The State party should further strengthen the independence of the Inspection Service Office by, inter alia, including independent experts drawn from outside the police so as to ensure that allegations of torture and other cruel, inhuman or degrading treatment or punishment are promptly, impartially, thoroughly and effectively investigated.

Independent monitoring

(10)The Committee regrets the lack of information on whether there is an independent body in the State party that has the right to, inter alia, undertake unannounced visits to all places of deprivation of liberty, including police stations and pretrial detention facilities (arts. 2, 11 and 16)

The State party should ensure that fully independent monitoring, including unannounced visits, of all places of deprivation of liberty takes place on a regular basis. It should also ensure that any mechanism established for this purpose, at the local or national level, has an appropriate mandate and adequate resources.

Training

(11)The Committee notes the State party’s efforts with respect to training of law enforcement officers. However, it is concerned at the effectiveness of this training in the light of the high number of alleged cases of harassment and ill-treatment during both arrest and police custody, particularly of Roma suspects. It is also concerned that training programmes for medical personnel for the identification and documentation of cases of torture in accordance with the Istanbul Protocol may be inadequate (arts. 10 and 11).

The State party should:

(a) Include in its training modules on rules, instructions and methods of interrogation information on all provisions of the Convention, especially on the absolute prohibition of torture;

(b) Ensure that personnel involved in the treatment of detainees are trained on how to identify signs of torture and cruel, inhuman or degrading treatment, in accordance with the Istanbul Protocol, and strengthen the training on the Istanbul Protocol for all professionals involved in the investigation and documentation of cases of torture;

(c) Regularly evaluate the training provided to its law enforcement officials.

Juvenile justice

(12)The Committee is concerned about the conditions of detention for juveniles, such as solitary confinement for periods up to 10 days, and the placement of juvenile detainees in pretrial detention together with adults (arts. 11 and 16).

In line with the concluding observations of the Committee on the Rights of the Child of 2007 (CRC/C/SVK/CO/2, para. 68), the Committee recommends that the State party:

(a) Implement the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) adopted in 1985, and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules), adopted in 1990;

(b) Ensure that juveniles are held in detention only as a last resort and in strict compliance with the law, and ensure regular review of the conditions of detention of juveniles;

(c) Set up a training programme for judges to specialize in juveniles, including on the application of non-custodial measures;

(d) If necessary, seek technical assistance and other cooperation from the Interagency Panel on Juvenile Justice.

Allegations of torture and ill-treatment in police custody

(13)The Committee is concerned about significant allegations of ill-treatment of detainees by law enforcement officers, including slaps, punches, kicks or blows with hard objects, as well as of the death of a man in 2001 after brutal police questioning. It is also concerned about the practice of handcuffing detainees for extended periods to fixtures in corridors or offices (arts. 12 and 16).

The State party should take appropriate measures to ensure that all allegations of torture or cruel, inhuman or degrading treatment are promptly and impartially investigated, perpetrators 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. It should also end the practice of handcuffing detainees for extended periods and any other ill-treatment of suspects while they are in detention.

Sterilizations of Roma women

(14)The Committee is deeply concerned about allegations of continued involuntary sterilization of Roma women.

The State party should:

(a) Take urgent measures to investigate promptly, impartially, thoroughly and effectively all allegations of involuntary sterilization of Roma women, prosecute and punish the perpetrators and provide the victims with fair and adequate compensation;

(b) Effectively enforce the Health-care Act (2004) by issuing guidelines and conducting training of public officials, including on the criminal liability of medical personnel conducting sterilizations without free, full and informed consent, and on how to obtain such consent from women undergoing sterilization.

The Roma minority

(15)The Committee is concerned about reports of mistreatment of Roma by police officers during arrest and while in custody. It is also concerned about the high percentage of Roma children in schools for children with mental disabilities. It is further concerned about discrimination against the Roma minority, which has led to violations of the rights protected under the Convention (arts. 10 and 16).

In the light of its general comment No. 2 on the implementation of article 2 (CAT/C/GC/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. In this respect, the State party should:

(a) Strengthen its efforts to combat ill-treatment of Roma detainees by ensuring the exercise of their legal rights from the outset of detention;

(b) Enforce the School Act No 245/2008 by ensuring that Roma children are admitted to mainstream education, unless a proper assessment concludes that the child has a mental disability and the child’s legal guardian has requested placement in a special school. In particular, it should decouple the term “socially disadvantaged” from the term “mental disability”.

Redress and compensation, including rehabilitation

(16)The Committee regrets the lack of implementation of the rights of victims of torture and ill-treatment to redress and compensation, including rehabilitation. The Committee also regrets 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 about other forms of assistance, including medical or psychosocial rehabilitation, provided to the victims (art. 14).

The State party should ensure that victims of torture and ill-treatment are entitled to redress and compensation, including rehabilitation, so that victims of torture and other cruel, inhuman or degrading treatment or punishment may be provided with fair and adequate compensation, including the means for as full rehabilitation as possible. It should also collect data on the number of victims who have received compensation and other forms of assistance.

Violence against women and children

(17)The Committee is concerned about the insufficient measures taken to protect women and children against violence. In this regard, it shares the concern of the Committee on the Elimination of Discrimination against Women (CEDAW/C/SVK/CO/4, para. 20) about the high rate of violence against women and girls, including feminicides in the context of domestic violence (art. 16).

The State party should:

(a) Strengthen its efforts to ensure that urgent and efficient protection measures are put in place, and investigate promptly and impartially all allegations of violence against women and girls, including feminicides in the context of domestic violence, and prosecute and punish the perpetrators;

(b) Provide shelters and counselling services for women victims of violence in sufficient numbers and with adequate standards;

(c) Conduct broader awareness-raising campaigns and training on domestic violence for officials (judges, prosecutors, lawyers, law enforcement agencies and social workers) and the public at large;

(d) Increase cooperation with non-governmental organizations working to protect women and girls from violence.

Corporal punishment

(18)The Committee is concerned that prohibition of corporal punishment is not explicitly stipulated in the act on the family, and that corporal punishment is widely accepted in society (art. 16).

The State party should explicitly prohibit corporal punishment in the family. It should also ensure that legislation prohibiting corporal punishment is strictly enforced and that awareness-raising and educational campaigns are conducted to that effect.

Trafficking in persons

(19)The Committee is concerned about reports of cross-border trafficking in women for sexual and other exploitative purposes, and of Roma children trafficked abroad, especially for forced begging. The Committee is also concerned by internal trafficking of Roma women and children. The Committee regrets the lack of statistics on these issues, the low number of prosecutions and the frequent use of suspended sentences for perpetrators. The Committee is further concerned that reintegration and rehabilitation services are insufficient for victims of trafficking (art. 16).

The State party should:

(a) Investigate promptly and impartially all allegations of human trafficking, especially of women and children, prosecute the alleged perpetrators and punish those found guilty with appropriate penalties;

(b) Intensify its efforts to provide reintegration and rehabilitation services to victims;

(c) Conduct nationwide awareness-raising campaigns and conduct training for law enforcement officials, migration officials and border police on the causes, consequences and incidence of human trafficking.

Psychiatric facilities

(20)The Committee is concerned about the ill-treatment of psychiatric patients, including the use of net-beds, as well as at the lack of independent monitoring of such places of deprivation of liberty (arts. 11 and 16).

The State party should improve the living conditions for patients 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 safeguards laid down to secure their rights, and that alternative forms of treatment are developed.

Data collection

(21)The Committee requests the State party to provide in its next periodic report detailed statistical data, disaggregated by crime, sentence, ethnicity, age and sex, on the number of persons deprived of liberty; on the complaints relating to torture and ill-treatment allegedly committed by law enforcement officials; on the related investigations, prosecutions and penal or disciplinary sanctions; and on pretrial detainees and convicted prisoners. The Committee also requests information on the compensation and rehabilitation provided to victims.

(22)The Committee encourages the State party to ratify the Optional Protocol to the Convention against Torture.

(23)The Committee invites the State party to become a party to 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 Convention on the Rights of Persons with Disabilities. The Committee invites the State party to ratify the International Convention for the Protection of All Persons from Enforced Disappearance.

(24)The State party is encouraged to disseminate widely the reports it has submitted to the Committee and the concluding observations and summary records of the Committee through official websites, to the media and non-governmental organizations.

(25)The Committee invites the State party to submit its core document in accordance with the requirements of the common core document in the harmonized guidelines on reporting, as approved by the international human rights treaty bodies (HRI/GEN/2/Rev.5).

(26)The Committee requests the State party to provide, within one year, information in response to the Committee’s recommendations contained in paragraphs 8, 13, 14 and 15 above.

(27)The State party is invited to submit its next periodic report, which will be the third, by 20 November 2013 at the latest.

55. Spain

(1)The Committee against Torture considered the fifth periodic report of Spain (CAT/C/ESP/5) at its 913th and 914th meetings, held on 12 and 13 November 2009 (CAT/C/SR.913 and 914), and adopted the following conclusions and recommendations at its 923rd meeting (CAT/C/SR.923).

A. Introduction

(2)The Committee welcomes the fifth periodic report of Spain, submitted in accordance with the Committee’s guidelines, and the replies to the list of issues. The Committee also notes with satisfaction the constructive efforts made by the multisectoral delegation to provide information and additional explanations during the discussion of the report.

B. Positive aspects

(3)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 (4 April 2006);

(b)International Convention for the Protection of All Persons from Enforced Disappearance (24 September 2009);

(c)Convention on the Rights of Persons with Disabilities, and its Optional Protocol (3 December 2007);

(d)Council of Europe Convention on Action against Trafficking in Human Beings (2 April 2009).

(4)The Committee notes with satisfaction the efforts being made by the State party to amend its legislation, policies and procedures in order to ensure greater protection of human rights, particularly the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, and in particular:

(a)The adoption of the Historical Memory Act (Act No. 52/2007) on 26 December, which acknowledges and broadens rights, and establishes measures, for those who suffered persecution or violence during the Civil War and the period of dictatorship, including the right to obtain a declaration of redress;

(b)The amendment of article 154 of the Civil Code, explicitly resolving any uncertainties or loopholes that may provide an excuse for using any form of violence or physical punishment against children;

(c)The joint instruction in December 2005, issued by the General Secretary of State and the Police Commissioner-General, together with an information booklet on asylum procedures to be distributed to all persons who arrive in Spain in an irregular manner by sea and are detained in the migrant detention centres in the Canary Islands and Andalucía;

(d)Supreme Court ruling 829/2006, which acquitted Mr. Hamed Abderrahaman Ahmed of the offence of terrorism, on the grounds that the charges relied on interrogations conducted while Mr. Ahmed was detained in Guantanamo, which constituted a “limbo within the legal community as defined by numerous treaties and conventions signed by the international community”;

(e)The adoption of the Human Rights Plan by decision of the Council of Ministers of 12 December 2008;

(f)The adoption of the Plan to Combat Trafficking for the Purposes of Sexual Exploitation, on 12 December 2008, and its follow-up by means of the establishment and development of the Spanish Forum against Trafficking;

(g)The fact that the death penalty has been completely banned since 1995 (the year in which the death penalty in wartime was abolished) and that, in addition, the State party participates actively in international forums to promote a global moratorium on the application of capital punishment.

(5)The Committee notes with satisfaction that the State party has issued invitations to various special procedures mechanisms, including the recent invitation to the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.

(6)The Committee appreciates the fact that Spain has not created a parallel justice system to combat terrorism, and notes that the State party has repeatedly acknowledged that the prohibition of torture is absolute and that exceptional circumstances can never be invoked in order to justify torture.

C. Principal subjects of concern and recommendations

Definition and offence of torture

(7)The Committee notes with satisfaction the amendment of article 174 of the Criminal Code by Organization Act No. 15/2003, which adds the following text to the definition of torture: “… or for any reason based on discrimination of any kind”, which complies with a former recommendation by the Committee. However, notwithstanding the explanation provided by the delegation of the State party, the Committee considers that two important additional elements should be explicitly added to the definition in article 174 of the Criminal Code, to bring this fully into line with article 1 of the Convention: that the act of torture can also be committed by any “other person acting in an official capacity” and that the purposes of torture may include “intimidating or coercing him or a third person” (art. 1).

The Committee encourages the State party to further align the definition of torture contained in article 174 of the Criminal Code with article 1 of the Convention.

(8)The Committee notes that, under article 174 of the Criminal Code, a person guilty of torture “shall be liable to a term of two to six years’ imprisonment if the infringement was a serious one, and a term of one to three years’ imprisonment if it was not”, which does not appear to be in line with article 4, paragraph 2, of the Convention, under which States parties are obliged to punish all acts of torture by appropriate penalties which take into account their grave nature (arts. 1 and 4).

The State party should punish all acts of torture by appropriate penalties which take into account their grave nature, in line with article 4, paragraph 2, of the Convention. In addition, the State party should ensure that in all cases all acts of torture are considered to be of a grave nature, since that is intrinsic and inherent in the very concept of torture.

Fundamental safeguards

(9)The Committee is concerned at information received from various sources that statements made by detainees held at police stations may be used during proceedings, under certain conditions, and following a change in the case law of the Supreme Court. The Committee takes note, in this regard, of the information provided in paragraph 21 of the State party’s replies to the list of issues, in which it is clearly stated that “according to the Spanish legal system, only evidence given in the court oral proceedings, in the presence of the accused and an attorney of his or her choice, may be taken into account for the purpose of deciding a guilty or not-guilty verdict” (arts. 2 and 15).

The State party — as the State party itself noted in its replies to the list of issues — should ensure respect for the principle that in all cases the crucial stage for giving evidence to be weighed up must be the oral proceedings. This general principle is all the more valid as a safeguard of the principle contained in article 15 of the Convention — that any statement made as a result of torture shall not be invoked as evidence — in those cases in which, regrettably, detainees are interrogated in police stations without the presence of a lawyer of their choice, or where the lawyer is prevented from speaking to the detainee in private (as is the case with the regime of incommunicado detention).

(10)The Committee notes that under Measure 96 of the Human Rights Plan, in order to better guarantee the detainee’s rights, the Government proposes to amend article 520, paragraph 4, of the Criminal Procedure Act so as to reduce the current maximum time limit of eight hours for ensuring the right to legal counsel. Nevertheless, the Committee notes with concern that the right to apply for habeas corpus is not explicitly provided for in the list of rights set out in article 520 of the Criminal Procedure Act (art. 2).

The State party should promptly amend article 520, paragraph 4, of the Criminal Procedure Act, in order to make the right to legal counsel more effective. Furthermore, the Committee — sharing the concern of the Ombudsman in this regard — encourages the State party to carry out a further amendment to article 520 of the Criminal Procedure Act, to ensure that at the crucial stage of detention, when detainees are read their rights, these rights include the right to ask to be brought immediately before a judge.

(11)The Committee takes note of instruction No. 12/2007 issued by the Secretariat of State for Security, concerning conduct required of the members of the State security forces to guarantee the rights of persons detained or in police custody. While this is in principle a positive step, the Committee considers that the normative status of this instruction to strengthen guarantees is insufficient (art. 2).

The State party should regulate these matters, which concern fundamental rights such as the right to liberty and to physical integrity, by means of an appropriate regulation, and not merely a decision communicated by a Secretariat of State to its staff.

Incommunicado detention

(12)The Committee takes note of the steps taken to improve the guarantees of individuals held in incommunicado detention, particularly: (a) the so-called “Garzón Protocol”, which provides for visits by a doctor trusted by the detainee (even though this Protocol has not been applied uniformly); (b) Measure 97 (c) of the Human Rights Plan, which stipulates that an individual held in incommunicado detention may be examined by another doctor affiliated with the public health system, freely appointed by the future national mechanism for the prevention of torture, as well as by a forensic doctor; and (c) Measure 97 (b) which — in accordance with various recommendations by international human rights bodies — provides that the State party shall adopt the necessary legal and technical measures to record, using video-recording or other audiovisual equipment, the entire period that individuals spend in incommunicado detention in police stations. The Committee is also pleased to note the commitment made in Measure 97 (a) to expressly forbid the use of incommunicado detention for minors. Nonetheless, the Committee must reiterate its concern — shared by all relevant regional and international human rights bodies — that the system of incommunicado detention used by the State party for offences involving terrorists or armed gangs, which may last for up to 13 days, undermines the guarantees of the rule of law in respect of ill-treatment and acts of torture. The Committee is especially concerned about the restrictions that incommunicado detention places on the access to and exercise of the fundamental rights and guarantees universally applied to persons deprived of their liberty (art. 2).

The State party must review incommunicado detention with a view to its abolition, and ensure that all persons deprived of their liberty have access to the following fundamental rights of detainees:

(a) To consult a lawyer of their choice;

(b) To be examined by a doctor of their choice;

(c) To have a family member or person of their choice notified of their arrest and current place of detention;

(d) To meet privately with a lawyer (a right which is currently restricted even in the case of a court-appointed lawyer).

The State party should also implement and strengthen the measures provided for in Measure 97 of the Human Rights Plan; in this respect, it is especially important that the video surveillance system covers all police stations nationwide and is installed in cells and interrogation rooms and is not limited to public areas.

Non-refoulement

(13)The Committee takes note of the State party’s position that diplomatic guarantees do not contravene the provisions of article 3 of the Convention – if, for example, additional supervisory mechanisms are established which are expressly accepted and observed by the country concerned. In this regard, the Committee wishes to reiterate its previously stated position, that under no circumstances must diplomatic guarantees be used as a safeguard against torture or ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill-treatment upon return (art. 3).

If the State party resorts to diplomatic guarantees in any situation other than those excluded under article 3 of the Convention, it must provide in its next report to the Committee information on the number of cases of extradition or expulsion that have been subject to the receipt of diplomatic assurances or guarantees since the consideration of this report; the State party’s minimum requirements for such assurances or guarantees; follow-up action taken subsequently in such cases; and the enforceability of the assurances or guarantees given.

(14)The Committee takes note of the information provided by the delegation on the allegations that some Spanish airports had been used since 2002 for the transfer of prisoners under the “extraordinary rendition” programme, and also of the State party’s condemnation of the use of such methods and its commitment to investigate and shed light on the allegations (arts. 3 and 12).

The Committee urges the State party to continue to cooperate in the investigations being carried out in this respect by the judicial authorities and to provide the Committee with all relevant information in its next periodic report.

(15)The Committee welcomes the adoption, in October 2009, of the Act on the Right of Asylum and Subsidiary Protection, which aims to achieve a common European asylum system that ensures the highest level of protection for refugees and persecuted people. However, it is concerned about the possible use, as grounds for rejecting asylum applications, of the new Act’s clause on exceptions to the prohibition of refoulement contained in article 33, paragraph 2, of the 1951 Convention relating to the Status of Refugees. The Committee is particularly concerned that, under this Act, applications can be rejected under accelerated procedures, even at the border itself, without a proper assessment of each application and of every possible ground for inclusion having been carried out beforehand (art. 3).

The State party must review the application of the exclusion clauses in the new Act to ensure that in no case may the principle of non-refoulement contained in article 3 of the Convention be infringed.

(16)The Committee takes note of the bilateral agreements on the assisted return of minors that Spain has signed with Morocco and Senegal. However, the Committee is concerned about the absence of safeguards ensuring the identification of children who may need international protection and may therefore be entitled to use the asylum procedure, in the implementation of these agreements (art. 3).

The State party must ensure that the bilateral agreements on the assisted return of minors signed by Spain contain appropriate safeguards to ensure protection against the repatriation of child victims of trafficking, prostitution and pornography, as well as those who have been involved in conflict or who have fled their country because of a well-founded fear of persecution. The Committee wishes to emphasize that children should be returned to their country of origin only if it is in their best interests.

Jurisdiction over acts of torture

(17)The Committee recognizes that the State party’s courts have pioneered the application of universal jurisdiction over international crimes, including torture. In this connection, the Committee takes note of a recent legislative amendment, Organization Act No. 1/2009 of 3 November, which establishes conditions for the exercise of such jurisdiction (arts. 5 and 7).

The State party must ensure that this reform will not impede the exercise of its jurisdiction over all acts of torture in accordance with articles 5 and 7 of the Convention and in particular the principle of aut dedere aut judicare enshrined in those articles.

Training

(18)The Committee notes that Measure 103 of the Human Rights Plan provides for the organization of initial and continuing training courses and seminars on the conduct required of all members of the State security forces to guarantee the rights of persons who are detained or held in police custody. The Committee also notes that courses on human rights and the Istanbul Protocol (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) are to be included in a continuing education plan as from 2010 (art. 10).

The State party should:

(a) Continue preparing and implementing training programmes to ensure that all civil servants, including law enforcement officials and prison officers, are fully aware of the provisions of the Convention and its Optional Protocol, and that abuse or violations will never be tolerated;

(b) Ensure that all relevant staff receive specific training on how to recognize signs of torture and ill-treatment;

(c) Develop and apply a method for assessing the effectiveness and impact of those training programmes in reducing the number of cases of torture and ill-treatment.

Detention conditions

(19)While it welcomes the Suicide Prevention Programme established under instruction No. 14/2005 issued by the Directorate-General of Correctional Institutions, which, according to information received, has helped to lower the number of suicides, the Committee still considers the number of suicides and violent deaths both in police custody and in prisons to be high (art. 11).

The State party should continue its efforts to reduce the number of suicides and violent deaths in all places of detention. The Committee also urges the State party to investigate promptly, thoroughly and impartially all deaths of detainees and provide, where appropriate, adequate compensation to the families of the victims.

(20)The Committee regrets the scant information provided on measures taken to address the serious concerns expressed by the Ombudsman in his 2009 report on conditions in the centres for minors with behavioural or social problems. In particular, the Committee is concerned about allegations that solitary confinement is practised in many of these centres and that drugs are administered without adequate safeguards (arts. 11 and 12).

The State party should take the necessary steps to ensure humane and dignified conditions in the centres for minors with behavioural or social problems. The State party should also thoroughly investigate all allegations of abuse or ill-treatment committed in these centres.

Amnesty Act and the non-applicability of the statute of limitations

(21)While it takes note of the State party’s comment that the Convention against Torture entered into force on 26 June 1987, whereas the Amnesty Act of 1977 refers to events that occurred before the adoption of that Act, the Committee wishes to reiterate that, bearing in mind the long-established jus cogens prohibition of torture, the prosecution of acts of torture should not be constrained by the principle of legality or the statute of limitation. The Committee has received various interpretations of article 1, paragraph (c), of the Amnesty Act — which stipulates that amnesty shall not apply to acts that “entailed serious harm to the life or inviolability of persons” — to the effect that this article itself would in any case exclude torture from the offences subject to amnesty (arts. 12, 13 and 14).

The State party should ensure that acts of torture, which also include enforced disappearances, are not offences subject to amnesty. In this connection, the Committee encourages the State party to continue to step up its efforts to help the families of victims to find out what happened to the missing persons, to identify them and to have their remains exhumed, if possible. Moreover, the Committee reiterates that, under article 14 of the Convention, the State party must ensure that the victim of an act of torture obtains redress and has an enforceable right to compensation.

(22)The Committee is concerned that the offence of torture, which is specifically provided for in article 174 of the Criminal Code, may be subject to a statute of limitations after 15 years, while the only case in which it is not subject to a statute of limitations is when it is classed as a crime against humanity, that is, when it is committed as part of a generalized or systematic attack against the civilian population or part thereof (Criminal Code, art. 607 bis) (arts. 1, 4 and 12).

The State party should ensure that torture is never subject to a statute of limitations.

Data on torture and abuse

(23)The Committee notes that Measure 102 of the Human Rights Plan provides for the compilation of current data on cases that may have involved violation or infringement of the human rights of persons in police custody. However, the Committee notes that it is currently impossible to provide data on complaints filed during police custody and detention. The Committee welcomes the additional written information provided on this point by the State party, but notes that data on cases of torture may be available but are somewhat imprecise and contradictory, in particular concerning the results of investigations into torture, judicial convictions and penalties imposed (arts. 2, 12 and 13).

The State party should implement Measure 102 of the Human Rights Plan as soon as possible, and ensure that clear and reliable data are compiled on acts of torture and abuse in police custody and in other places of detention. These data must also cover follow-up to allegations of torture and abuse, including the results of investigations held and any judicial convictions and criminal or disciplinary sanctions imposed.

Violence against women

(24)The Committee welcomes measures taken by the State party to combat gender-based violence, such as Organization Act No. 1/2004 of 28 December on comprehensive protection measures against gender-based violence. However, the Committee remains concerned at reports of an unacceptable number of acts of violence against women, including domestic violence, which sometimes result in murder. In the Committee’s view, the extent of this problem in the State party calls for a response that goes beyond legislative provisions and action plans and requires a coordinated, ongoing effort to change the perception of women in society and dispel associated stereotypes (art. 16).

The Committee urges the State party to step up its efforts to make combating violence against women a priority in its political agenda. The Committee further recommends that public awareness-raising campaigns on all forms of violence against women should be broadened.

(25)The Committee is concerned about the particularly vulnerable situation of migrant women in an irregular situation who are victims of gender-based violence, given that current legislation requires the police to investigate the status of migrant women who report acts of violence and abuse. In this respect, the Committee notes the existence of a bill to amend Organization Act No. 4/2000 of 11 January on the rights, freedoms and social integration of foreigners in Spain, which aims to encourage foreign women to report instances of gender-based violence and make it possible for foreign women who report such violence to be exempted from administrative liability in respect of their irregular situation (arts. 13 and 16).

The State party should speed up the adoption of the bill to amend Organization Act No. 4/2000, in order to enable foreign women in an irregular situation who are recognized to be victims of gender-based violence to request and obtain a residence or work permit given their exceptional circumstances.

Racial violence

(26)The Committee takes note of the State party’s efforts to combat racism and xenophobia, including the adoption of legislation on the subject and the Strategic Plan for Citizenship and Integration (2007–2010). However, the Committee is concerned about information indicating a higher frequency of acts of intolerance and incidents of racial violence against migrants and persons of different ethnic or religious backgrounds and about allegations that the authorities’ responses to these acts are not always timely or adequate (arts. 13–16).

The State party should step up its efforts to thoroughly investigate all acts of racial violence and punish those responsible appropriately. Legislative, investigative and judicial responses to such heinous acts should be accompanied by an expansion of public awareness-raising campaigns.

Tasers

(27)The Committee notes that the State security forces do not use tasers, but is concerned about information indicating that local police forces do (arts. 2 and 16).

The State party should consider the possibility of putting a stop to the use of tasers by local police forces since, by reason of their effects on the physical and mental state of persons they are used on, they may infringe articles 2 and 16 of the Convention.

Trafficking in persons

(28)The Committee welcomes the adoption of the Plan to Combat Trafficking for the Purposes of Sexual Exploitation (see paragraph 4 (f) above). However, the Committee notes that the plan focuses more on prevention of the offence than on human rights and the protection of victims. The Committee is further concerned that the Criminal Code contains no criminal offence specifically addressing human trafficking for the purposes of sexual exploitation (art. 16).

The Committee urges the State party to finalize the draft Criminal Code so as to include a section specifically addressing human trafficking for the purposes of sexual and labour exploitation. The State party should further ensure that the Plan to Combat Trafficking recognizes the possibility that victims of trafficking may need international protection. In this respect, the State party should:

(a) Establish a national mechanism to identify all victims;

(b) Take the necessary measures to ensure access to the asylum procedure for foreign women victims of trafficking, or at risk of being trafficked, who can show a need for international protection.

Optional Protocol and the national preventive mechanism

(29)The Committee notes that Organization Act No. 1/2009 established that the Ombudsman would act as the national mechanism for the prevention of torture, in accordance with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It further notes that the same Act provides for the creation of an Advisory Board to provide technical and legal cooperation in the exercise of the functions of the national preventive mechanism; and that the Board would be chaired by the deputy to whom the Ombudsman delegates the functions established in this provision (art. 2).

The State party should ensure that the Ombudsman has sufficient human, material and financial resources to discharge his prevention mandate throughout the country independently and effectively. The State party should further ensure that the Advisory Board has a clear jurisdiction and role and that the relationship between the national preventive mechanism and the Board is clearly defined. The Committee encourages the State party to have members of the Board selected through a process that is public and transparent and to include on the Board recognized experts in various areas pertaining to the prevention of torture, including representatives of civil society.

(30)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 and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

(31)The Committee invites the State party to submit a core document in accordance with the requirements for the preparation of a common core document established in the harmonized guidelines for the submission of reports approved by the international human rights treaties bodies (HRI/GEN/2/Rev.6).

(32)The State party is urged to ensure wide circulation of the report submitted to the Committee and of the Committee’s concluding observations through official websites, the media and non-governmental organizations.

(33)The Committee requests the State party to provide information, within one year, in response to the Committee’s recommendations in paragraphs 10, 12, 20, 23 and 25 of the present document.

(34)The State party is invited to submit its sixth periodic report by 20 November 2013.

56. Yemen

(1)The Committee against Torture considered the second periodic report of Yemen (CAT/C/YEM/2) at its 898th meeting (CAT/C/SR.898), held on 3 November 2009, and adopted, at its 917th meeting (CAT/C/SR.917), the provisional concluding observations as set out below.

A. Introduction

(2)The Committee welcomes the submission of the second periodic report of Yemen, which, while generally following the Committee’s guidelines for reporting, lacks statistical and practical information on the implementation of the provisions of the Convention and relevant domestic legislation. The Committee also regrets the delay in the submission of the report, and that the State party has not submitted written responses to its list of issues (CAT/C/YEM/Q/2), nor has it responded to the letter of 21 April 2006, in which the Committee’s Rapporteur for follow-up to concluding observations requested further information on Yemen (CAT/C/CR/31/4 and Add.1).

(3)The Committee regrets the absence of a delegation from the State party able to enter into a dialogue with it, and notes that, owing to the absence of representatives from the State party, the examination of the report took place in accordance with rule 66, paragraph 2 (b) of its rules of procedure. The Committee invites the State party to submit written responses and comments to the present provisional concluding observations and urges the State party, in the future, to comply fully with its obligations under article 19 of the Convention.

B. Positive aspects

(4)The Committee welcomes the fact 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 Convention on the Rights of Persons with Disabilities and the Optional Protocol thereto, in 2009;

(b)The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, in 2007;

(c)The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in 2004.

(5)The Committee notes the ongoing efforts by the State to reform its legislation, policies and procedures 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 State party’s signature of several memorandums of understanding with the United Nations High Commissioner for Refugees in 2004, 2005 and 2007, including its commitment to prepare a refugee law and to promote it;

(b)The various human rights education and training activities and the State party’s openness to international cooperation.

C. Principal subjects of concern and recommendations

Implementation of the Convention

(6)The Committee notes with concern that the conclusions and recommendations it addressed to Yemen in 2003 have not been sufficiently taken into consideration. The Committee stresses the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. In its view, cultural and religious specificities may be taken into consideration in order to develop adequate means to ensure respect for universal human rights, but they cannot jeopardize the implementation of all provisions of the Convention or negate the rule of law. In this respect, the Committee notes with concern the establishment, in 2008, of a commission to protect virtue and fight vice and the lack of information on the mandate and jurisdiction of this commission, existing appeal procedures, and whether it is subject to review by ordinary judicial authorities (art. 2).

The State party should implement in good faith all recommendations addressed to it by the Committee and find ways to ensure that its religious principles and laws are compatible with human rights and its obligations under the Convention. In this respect, the Committee draws the attention of the State party to its general comment No. 2 on the implementation of article 2. The State party is requested to provide information on the mandate of the new virtue and vice commission, its appeal procedures and whether it exercises a precise jurisdiction in full conformity with the requirements of the Convention or is subject to review by ordinary judicial authorities.

Definition of torture

(7)While noting that the Constitution of Yemen prohibits torture, the Committee reiterates its concern at the lack of a comprehensive definition of torture in the domestic law as set out in article 1 of the Convention (CAT/C/CR/31/4, para. 6 (a)). The Committee is concerned that the current definition in the Constitution prohibits torture only as a means of coercing a confession during arrest, investigation, detention and imprisonment, and that punishment is limited to individuals who order or carry out acts of torture and does not extend to individuals who are otherwise complicit in such acts. The Committee is also concerned that, while the Constitution provides that crimes involving physical or psychological torture should not be subject to a statute of limitations, the criminal procedure law may include a statute of limitations (arts. 1 and 4).

The State party should incorporate the crime of torture into domestic law and adopt a definition of torture that covers all of the elements contained in article 1 of the Convention. By naming and defining the offence 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. The State party is requested to clarify to the Committee whether acts of torture are subject to a statute of limitations; if so, the State party should review its rules and provisions on the statute of limitations and bring them into line fully with the Constitution and the State party’s obligations under the Convention.

Impunity for acts of torture and ill-treatment

(8)The Committee is deeply concerned at the numerous allegations, corroborated by a number of Yemeni and international sources, of a widespread practice of torture and ill-treatment of detainees in Yemeni prisons, including State security prisons run by the Public Security Department, the national security authority and the Department of Anti-Terrorism under the Ministry of the Interior. The Committee is further concerned that such allegations are seldom investigated and prosecuted, and that there appears to be a climate of impunity for perpetrators of acts of torture. In this respect, the Committee expresses its concern at article 26 of the code of criminal procedure, which appear to provide that criminal lawsuits may not be filed against a law enforcement officer or a public employee for any crime committed while carrying out his job or caused thereby, except with the permission of the General Prosecutor, a delegated public attorney or heads of prosecution, and at the lack of information on the application of this provision (arts. 2, 4, 12 and 16).

As a matter of urgency, the State party should take immediate steps to prevent acts of torture and ill-treatment throughout the country and to announce a policy of eradication of torture and ill-treatment by State officials.

The State party should ensure that all allegations of torture and ill-treatment 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 is requested to clarify to the Committee whether article 26 of the code of criminal procedure is still in force and, if so, how the provision is applied in practice.

Fundamental legal safeguards

(9)The Committee remains seriously concerned at the State party’s failure in practice to afford all detainees, including detainees held in State security prisons, 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, to notify a relative, and 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. In this respect, the Committee is concerned at the statement in the State report (para. 203) that “persons in pretrial detention may meet with their relatives and lawyers, provided they obtain a written authorization from the body/entity that issued the detention order”. The Committee is also concerned at the lack of a central register for all persons held in detention, including minors (arts. 2, 11 and 12).

The State party should take effective measures promptly to ensure that all detainees are afforded, in practice, all fundamental legal safeguards from the very outset of their detention; these include, in particular, the rights to have prompt access to a lawyer and an independent medical examination, 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 before a judge within a time limit in accordance with international standards. The State party should also ensure that all detainees, including minors, are included in a central register that functions effectively.

The State party is requested to inform the Committee of the requirements to obtain written authorization for persons in pretrial detention to meet with their relatives and lawyers, as well as the conditions under which such authorization may be refused.

Monitoring and inspection of places of deprivation of liberty

(10)While noting that the Department of Public Prosecutions (the Prosecutor-General) has overall responsibility for overseeing and inspecting prisons and that prosecutor’s offices are established in central prisons in the different governorates following decree No. 91 of 1995, the Committee is concerned at the lack of systematic and effective monitoring and inspection of all places of deprivation of liberty, especially places of detention, including regular and unannounced visits to such places by national and international monitors. In this respect, the Committee expresses its concern at the proliferation of places of detention, including political security, national security and military prisons, as well as private detention facilities run by tribal leaders, and at the apparent absence of control by the Prosecutor-General over such prisons and detention centres. As a consequence, detainees are allegedly deprived of fundamental legal safeguards, including an oversight mechanism with regard to their treatment and review procedures with respect to their detention (arts. 11 and 16).

The Committee calls upon the State party to establish a national system to monitor and inspect all places of detention and to follow up on the outcome on such systematic monitoring. It should also ensure that forensic doctors trained in detecting signs of torture are present during these visits. The Committee requests the State party to clarify whether the Political Security Department, the National Security authority and the Department of Anti-Terrorism under the Ministry of the Interior are under the control of the civil authorities, and whether the Prosecutor-General has access to the said detention centres, military prisons and private detention facilities. The State party should formally prohibit all detention facilities that do not come under State authority.

Anti-terrorism measures

(11)The Committee acknowledges the difficulties that the State party faces in its prolonged fight against terrorism. However, recalling the absolute prohibition of torture, the Committee is concerned at reports of grave violations of the Convention committed in the context of the State party’s fight against terrorism. Such violations include cases of extrajudicial killing, enforced disappearance, arbitrary arrest, indefinite detention without charge or trial, torture and ill-treatment, and deportation of non-citizens to countries where they are in danger of being subjected to torture or ill-treatment. The Committee is also concerned at the content of the draft anti-terrorism and the money laundering and terrorism funding laws, including the reportedly broad definition of terrorism and the absence of legal/judicial procedures pertaining to the delivery, arrest or detention of individuals (arts. 2 and 16).

The State party should take all necessary measures to ensure that its legislative, administrative and other anti-terrorism measures are compatible with the provisions of the Convention, especially with article 2, paragraph 2. The Committee recalls that no exceptional circumstances whatsoever can be invoked as a justification for torture and, in accordance with relevant Security Council resolutions, especially resolution 1624 (2005), anti-terrorism measures must be implemented with full respect for international human rights law, especially the Convention. The State party is requested to provide information on the content and status of the draft anti-terrorism and the money laundering and terrorism funding laws.

Incommunicado detention

(12)The Committee reiterates its concern at substantiated reports of the frequent practice of incommunicado detention by Political Security Department officials, including detention for prolonged periods without judicial process (CAT/C/CR/31/4, para. 6 (c)), and is concerned that other security agencies reportedly also engage in such practices. The Committee is also concerned at the lack of information on the exact number and location of places of detention in the State party (arts. 2 and 11).

The State party should take all appropriate measures to abolish incommunicado detention and ensure that all persons held incommunicado are released, or charged and tried under due process. The State party should submit information on the exact number and location of places of detention used by the Political Security Department and other security forces, and the number of persons deprived of liberty in such facilities. The State party should also provide an update on the case of four nationals of Cameroon — Mouafo Ludo, Pengou Pierpe, Mechoup Baudelaire and Ouafo Zacharie — who have been detained incommunicado and without legal process in Sana’a since 1995.

Enforced disappearances and arbitrary arrests and detention

(13)The Committee expresses its concern at reports of enforced disappearance and of the widespread practice of mass arrests without a warrant and arbitrary and prolonged detention without charges and judicial process. The Committee is also concerned at the wide array of security forces and agencies in Yemen empowered to arrest and detain, and at the lack of clarification as to whether such powers are prescribed by the relevant legislation, including the Criminal Procedure Law. 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 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 clarify to the Committee whether the powers of the various security forces and agencies to arrest and detain are prescribed by the relevant legislation, including the Criminal Procedure Law; it should minimize the number of security forces and agencies with such powers. Furthermore, 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, and develop and implement alternatives to the deprivation of liberty, including probation, mediation, community service or suspended sentences. The State party is requested to provide detailed information on any investigations into the many reported cases of detention during the “Bani Hashish events” of May 2008.

Hostage-taking of relatives

(14)The Committee expresses its great concern at the reported practice of holding relatives of alleged criminals, including children and elderly, as hostages, sometimes for years at a time, to compel the alleged criminals to surrender themselves to the police; it also emphasizes that such practice is a violation of the Convention. In this respect, the Committee notes with particular concern the case of Mohammed Al-Baadani, who was abducted in 2001, at age 14, by a tribal chief because of his father’s failure to pay back debts, and who reportedly remains in a State prison without a set trial date (arts. 12 and 16).

The State party should, as a matter of priority, discontinue its practice of holding relatives of alleged criminals as hostages, and punish the perpetrators. The State party should also provide an update on the case of Mohammed Al-Baadani.

Allegations of extrajudicial killings

(15)The Committee expresses its great concern at allegations of extrajudicial killings by security forces and other serious human rights violations in different parts of the country, in particular the northern Sa’ada province and in the south (arts. 2, 12 and 16).

The State party should take effective steps to investigate promptly and impartially all allegations of involvement of members of law enforcement and security agencies in extrajudicial killings and other serious human rights violations in different parts of the country, in particular the northern Sa’ada province and in the south.

Complaints and prompt and impartial investigations

(16)The Committee remains concerned at the apparent failure to investigate promptly and impartially the numerous allegations of torture and ill-treatment and to prosecute alleged offenders. The Committee is particularly concerned at the lack of clarity of which authority has the overall responsibility for reviewing individual complaints of torture and ill-treatment by law enforcement, security, military and prison officials, and for initiating investigations in such cases. The Committee also regrets the lack of information, including statistics, on the number of complaints of torture and ill-treatment and results of all the proceedings, at both the penal and disciplinary levels, and their outcomes (arts. 11, 12 and 16).

The State party should strengthen its measures to ensure prompt, thorough, impartial and effective investigation into all allegations of torture and ill-treatment committed by law enforcement, security, military and prison officials. In particular, such investigations should not be undertaken by or under the authority of the police or military, but by an independent 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.

The State party should prosecute the perpetrators and impose appropriate sentences on those convicted in order to ensure that State officials who are responsible for violations prohibited by the Convention are held accountable.

The Committee requests the State party to provide information, including statistics, on the number of complaints of torture and ill-treatment and results of all the proceedings, at both the penal and disciplinary levels, and their outcomes. This information should be disaggregated by sex, age and ethnicity of the individual bringing the complaints, and indicate which authority undertook the investigation.

Judicial proceedings and independence of the judiciary

(17)The Committee expresses its concern at the reported lack of efficiency and independence of the judiciary, despite the existence of constitutional guarantees and the measures taken to reform the judicial branch, including in the context of the national strategy for the modernization and development of the judiciary (2005–2015). It is particularly concerned that this may impede the initiation of investigation and prosecution of cases of torture and ill-treatment. In this respect, the Committee is concerned at reports of interference by the executive and lack of security of tenure of judges. While noting that article 150 of the Constitution of Yemen prohibits without exception the establishment of special courts, the Committee is also concerned at the establishment by Republican Decree of 1999 of the Specialized Criminal Court and at reports that international norms of fair trial are not upheld by this Court (arts. 2, 12 and 13).

The State party should take the necessary measures to establish and 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 as in practice. The State party should also 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, including by providing adequate training on the State party’s obligations under the Convention to judges and prosecutors.

The State party is requested to submit detailed information on existing legal guarantees ensuring the security of tenure of judges and their application. In particular, information should be provided on the procedure for the appointment of judges, the duration of their mandate, the constitutional or legislative rules governing their irremovability and the way in which they may be dismissed from office.

Furthermore, the State party should dissolve the Specialized Criminal Court, as the trials before this exceptional court violate basic principles for the holding of a fair trial.

Criminal sanctions

(18)The Committee remains concerned that certain criminal sanctions (or hadd penalties) such as floggings, beatings and even amputation of limbs are still prescribed by law and practised in the State party, in violation of the Convention. The Committee is also concerned at reports that courts across the country impose sentences of flogging almost daily for alleged alcohol and sexual offences, and that such floggings are carried out immediately, in public, without appeal. It is also concerned at the wide discretionary powers of judges to impose these sanctions and that they may be imposed in a discriminatory way against different groups, including women (arts. 1 and 16).

The State party should put an end immediately to such practices and modify its legislation accordingly, especially with regard to the discriminatory effects of such criminal sanctions on different groups, including women, in order to ensure its full compatibility with the Convention.

Internally displaced persons

(19)The Committee is seriously concerned at the high number of internally displaced persons in the northern Sa’ada province, and at the fact that the State party has reportedly not taken sufficient steps to ensure the protection of persons affected by the conflict in the north, in particular the internally displaced persons currently confined to camps (arts. 12 and 16).

The State party should take all necessary measures to ensure the protection of persons affected by the conflict in the northern Sa’ada province, particularly internally displaced persons currently confined to camps.

Human rights defenders, political activists, journalists and other individuals at risk

(20)The Committee notes with concern allegations, including in conjunction with recent events in the region of Sa’ada, indicating that many Government opponents, including human rights defenders, political activists and journalists, have been subjected to arbitrary detention and arrest, incommunicado detentions lasting anything from several days to several months, denied access to lawyers and the possibility of challenging the legality of their detention before the courts. The Committee regrets the lack of information provided on any investigations into such allegations (arts. 2, 12 and 16).

The State party should take all necessary steps to ensure that all persons, including those monitoring human rights, are protected from intimidation or violence as a result of their activities and exercise of human rights guarantees, to ensure the prompt, impartial and effective investigation of such acts, and to prosecute and punish perpetrators with penalties appropriate to the nature of those acts. The State party should provide information on any investigation into recent events in the region of Sa’ada, as well as the outcome of such investigations.

Imposition of the death penalty

(21)The Committee is deeply concerned at reported cases of imposition of the death penalty on children of between 15 and 18 years of age. The Committee also expresses concern at the conditions of detention of convicted prisoners on death row, which may amount to cruel, inhuman or degrading treatment, in particular owing to the excessive length of time on death row. The Committee is further concerned at the lack of information in the State report on the number of persons executed in the reporting period and for which offences, as well as the number of persons currently on death row, disaggregated by sex, age, ethnicity and offence (art. 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. In the meantime, the State party should review its policy with regard to the imposition of the death penalty, and in particular take the measures necessary to ensure that the death penalty is not imposed on children. Furthermore, the State party should ensure that its legislation provides for the possibility of the commutation of death sentences, especially where there have been delays in their implementation. 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 provide information, in detail, on the precise number of people executed in the reporting period, for which offences and whether any children have been sentenced to death and executed. The State party should also indicate the current number of people on death row, disaggregated by sex, age, ethnicity and offence.

Non-refoulement

(22)The Committee remains concerned at numerous cases of forced return of foreign nationals, including to Egypt, Eritrea and Saudi Arabia, without the individuals being able to oppose it by means of an effective remedy, which may be in breach of the obligations imposed by article 3 of the Convention. The Committee also regrets the lack of information on measures taken by the State party to ensure that those foreign nationals did not run a real risk of being subjected to torture or inhuman or degrading treatment in the country of destination, or that they would not be subsequently deported to another country where they might run a real risk of being subjected to such torture or ill-treatment, as well as the lack of any follow-up measures taken by the State party in this respect (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 State party should ensure that it complies fully with article 3 of the Convention and that individuals under the State party’s jurisdiction receive appropriate consideration by its competent authorities and guaranteed fair treatment at all stages of proceedings, including an opportunity for effective, independent and impartial review of decisions on expulsion, return or extradition.

When determining the applicability of its non-refoulement obligations under article 3 of the Convention, the State party should examine thoroughly the merits of each individual case, ensure that adequate judicial mechanisms for the review of the decision are in place and ensure effective post-return monitoring arrangements. Such assessment should also be applied with regard to individuals who may constitute a security threat.

National human rights institution

(23)The Committee notes that, while the State party is considering the establishment of an independent national human rights institution, such an institution has not yet been created. The Committee also notes that the Human Rights Ministry has a mandate to receive complaints, but regrets the lack of information on how the complaints received by the Ministry are dealt with, as well as on investigations, prosecutions and criminal and/or administrative punishments of perpetrators (arts. 2, 11 and 12).

The State party should, as a priority, continue to work towards establishing a national human rights institution in accordance with the Principles relating to the status and functioning of national institutions for protection and promotion of human rights (the Paris Principles) adopted by the General Assembly in its resolution 48/134. The State party is also requested to provide information, including statistical data, on the complaints received by the Human Rights Ministry and on any investigation, prosecution and criminal and/or administrative punishment of perpetrators.

The situation of women in detention

(24)The Committee expresses its serious concern at information that prisons’ conditions are not suitable for women, that there are no female guards in female prisons, with the exception of the Hajah detention centre or specific health care for women prisoners, including for pregnant women and for their children. Women in detention are frequently harassed, humiliated and ill-treated by male guards, and there are allegations of sexual violence, including rape, against women in detention. The Committee reiterates its concern with regard to the situation of women who have served their prison sentence but who remain in prison for prolonged periods, owing to the refusal of their guardian or family to receive them home upon completion of their sentences or because they are unable to pay the “blood money” they have been convicted to pay (CAT/C/CR/31/4, para. 6 (h). The Committee is also concerned that the majority of women in prison have been sentenced for prostitution, adultery, alcoholism, unlawful or indecent behaviour, in a private or public setting, as well as for violating restrictions of movement imposed by family traditions and Yemeni laws; the Committee also notes with concern that such sentences are applied in a discriminatory way against women (arts. 11 and 16).

The State party should take effective measures to prevent sexual violence against women in detention, including by reviewing current policies and procedures for the custody and treatment of detainees, ensuring separation of female detainees from males, enforcing regulations calling for female inmates to be guarded by officers of the same gender, and monitoring and documenting incidents of sexual violence in detention.

The State party should also take effective measures to ensure that detainees who have allegedly been sexually victimized are able to report the abuse without being subjected to punitive measures by staff, protect detainees who report sexual abuse from retaliation by the perpetrator(s); promptly, effectively and impartially investigate and prosecute all instances of sexual abuse in custody; and provide access to confidential medical and mental health care for victims of sexual abuse in detention, as well as access to redress, including compensation and rehabilitation, as appropriate. The State party is requested to provide data, disaggregated by sex, age and ethnicity of the victims of sexual abuse, and information on investigation, prosecution and punishment of perpetrators.

Furthermore, the State party should ensure that women prisoners have access to adequate health facilities and provide rehabilitation programmes to reintegrate them into the community, notwithstanding the refusal of the guardian or family to receive them. In this respect, the State party is requested to inform the Committee of any steps taken to establish “half-way homes” for these women, as recommended by the Committee in its previous concluding observations (CAT/C/CR/31/4, para. 7 (k)).

Children in detention

(25)The Committee remains deeply concerned at the continued practice of detention of children, including children as young as 7 or 8 years of age; it is also concerned at reports that children are often not separated from adults in detention facilities and that they are frequently abused. The Committee also remains concerned at the very low minimum age of criminal responsibility (7 years) and other shortcomings in the juvenile justice system (arts. 11 and 16).

The State party should, as a matter of urgency, raise the minimum age of criminal responsibility in order to bring it into line with generally accepted international standards. The State party should also take all measures necessary to significantly reduce the number of children in detention and ensure that persons below 18 years of age are not detained with adults; that alternative measures to deprivation of liberty, such as probation, community service or suspended sentences, are available; that professionals in the area of recovery and social reintegration of children are properly trained; and that deprivation of liberty is used only as a measure of last resort, for the shortest possible time and in appropriate conditions. In this respect, the Committee reiterates the recommendations made by the Committee on the Rights of the Child (CRC/C/15/Add.267, paras. 76 and 77). The Committee requests the State party to provide statistics on the number of children in detention, disaggregated by sex, age and ethnicity.

Training

(26)The Committee takes note of the detailed information included in the State report on training and awareness-raising programmes. However, it is concerned at the lack of information on any awareness-raising and training programmes for members of the Political Security Department, the National Security authority and the Ministry of the Interior, as well as on any training programmes for judges, prosecutors, forensic doctors and medical personnel dealing with detained persons, to detect and document physical and psychological sequelae of torture. The Committee also regrets the lack of information on monitoring and evaluation of the impact of its training programmes in reducing incidents of torture and ill-treatment (art. 10).

The State party should further develop and strengthen educational programmes to ensure that all officials, including law enforcement, security, military and prison officials, are fully aware of the provisions of the Convention, that reported breaches will not be tolerated and will be investigated, and that offenders will be prosecuted. In this respect, the State party is requested to provide information on any awareness-raising and training programmes in place for members of the Political Security Department, the National Security authority and the Ministry of the Interior. Furthermore, all relevant personnel should receive specific training on how to identify signs of torture and ill-treatment; 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), which should be provided to physicians and utilized effectively. In addition, the State party should assess the effectiveness and impact of such training/educational programmes.

Redress, including compensation and rehabilitation

(27)The Committee reiterates its concern at the lack of information on modalities of compensation for and rehabilitation of victims of torture and ill-treatment by the State party (CAT/C/CR/31/4, para. 6 (g)), as well as on the number of victims of torture and ill-treatment who may have received compensation 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, 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 about any ongoing reparation programmes, including for treatment of trauma and other forms of rehabilitation provided to victims of torture and ill-treatment, and allocate adequate resources to ensure the effective functioning of such programmes.

Coerced confessions

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

The State party should take the steps necessary to ensure that confessions obtained under torture or duress are inadmissible in court in all cases in line with 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 under duress, and whether any officials have been prosecuted and punished for extracting such confessions.

Domestic violence

(29)The Committee notes the reference in the State report to the adoption of the Protection against Domestic Violence Act No. 6 of 2008 (CAT/C/YEM/2, paras. 132–146), but regrets the very limited information on its content and implementation. The Committee notes with concern that violence against women and children, including domestic violence, remains prevalent in Yemen. It is also concerned that women reportedly experience difficulties in filing complaints and seeking redress with regard to such violence. The Committee is also concerned that article 232 of the Penal Code provides that a man, or any male relative, who kills his wife, or a female member of the family suspected of adultery is not prosecuted with murder but a less serious crime. It also expresses its concern at the lack of data, including statistics on complaints, prosecutions and sentences, relating to homicides committed against women by their husbands or male relatives and to domestic violence (arts. 1, 2, 12 and 16).

The State party should strengthen its efforts to prevent, combat and punish violence against women and children, including domestic violence. The State party is encouraged to participate directly in rehabilitation and legal assistance programmes and to conduct broader awareness campaigns for officials (judges, law officers, law enforcement agents and welfare workers) who are in direct contact with victims. The Committee also recommends that the State party establish clear procedures for filing complaints on violence against women, and establish female sections in police stations and prosecutor’s offices to deal with such complaints and investigations.

The State party should repeal article 232 of the Penal Code to ensure that homicides committed against women by their husbands or male relatives are prosecuted and punished in the same way as any other murders. The State party should also strengthen its efforts in respect of research and data collection on the extent of domestic violence and homicides committed against women by their husbands or male relatives; it is also requested to provide the Committee with statistical data on complaints, prosecutions and sentences in this respect.

Trafficking

(30)The Committee expresses its concern at reports of trafficking in women and children for sexual and other exploitative purposes, including reports of trafficking of children out of Yemen, mostly to Saudi Arabia. The Committee 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, as well as on the concrete measures taken to prevent and combat such phenomena (arts. 1, 2, 12 and 16).

The State party should increase its efforts to prevent and combat trafficking of women and children and cooperate closely with the authorities of Saudi Arabia in respect of cases of combating trafficking in children. The State party should provide protection for victims and ensure 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 perpetrators are brought to justice 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 the victims of trafficking as well as statistical data on the number of complaints, investigations, prosecutions and convictions relating to trafficking.

Early marriages

(31)The Committee is seriously concerned at the amendment to Personal Status Law No. 20 of 1992 by Law No. 24 of 1999, which legalized the marriage of girls under 15 years of age with the consent of their guardian. The Committee expresses its concern at the “legality” of such early marriages of girls, some as young as 8 years of age, and underlines the fact that this amounts to violence against them as well as inhuman or degrading treatment, and is thus in breach of the Convention (arts. 1, 2 and 16).

The State party should take urgent legislative measures to raise the minimum age of marriage for girls, in line with article 1 of the Convention on the Rights of the Child, which defines a child as being below the age of 18, and the provision on child marriage in article 16, paragraph 2, of the Convention on the Elimination of All Forms of Discrimination against Women; it should also stipulate that child marriages have no legal effect. The Committee also urges the State party to enforce the requirement to register all marriages in order to monitor their legality and the strict prohibition of early marriages and to prosecute the perpetrators violating such provisions, in line with the recommendations of the Committee on the Elimination of Discrimination against Women (CEDAW/C/YEM/CO/6, para. 31) and the universal periodic review (A/HRC/12/13).

Data collection

(32)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 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 of cases of torture and ill-treatment, extrajudicial killings, enforced disappearances, trafficking and domestic and sexual violence as well as on means of redress, including compensation and rehabilitation, provided to the victims.

Cooperation with United Nations human rights mechanisms

(33)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 while countering terrorism, the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Working Group on Arbitrary Detention.

(34)Noting the commitment made by the State party in the context of the universal periodic review (A/HRC/12/13, para. 93 (4)), 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.

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

(36)With reference to its previous concluding observations (CAT/C/CR/31/44 (d)), the Committee recommends that the State party consider ratifying the Rome Statute of the International Criminal Court.

(37)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 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.

(38) The Committee invites the State party to submit its core document in accordance with the requirements of the common core document in the harmonized guidelines on reporting, as approved by the international human rights treaty bodies (HRI/GEN/2/Rev.6).

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

(40)The Committee requests the State party to provide replies and comments to the issues raised in the present provisional concluding observations, including the Committee’s requests for information, by 15 February 2010. Pursuant to rule 66, paragraph 2 (b) of its rules of procedure, the Committee will review the present provisional concluding observations in the light of the replies and comments provided by the State party, and adopt its final concluding observations at its next session.

57. Austria

(1)The Committee against Torture considered the fourth and fifth combined periodic reports of Austria (CAT/C/AUT/4-5) at its 940th and 942nd meetings, held on 5 and 6 May 2010 (CAT/C/SR.940 and 942), and adopted the following conclusions and recommendations at its 950th meeting (CAT/C/SR.950).

A. Introduction

(2)The Committee welcomes the timely submission of the fourth and fifth combined periodic report of Austria and the replies to the list of issues. However, it regrets that the report does not follow the Committee’s reporting guidelines.

(3)The Committee appreciates the constructive efforts made by the high-level delegation to provide information and additional explanations during the discussion of the report.

B. Positive aspects

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

(a)Convention on the Rights of Persons with Disabilities and its Optional Protocol (26 September 2008);

(b)Council of Europe Convention on Action against Trafficking in Human Beings (12 October 2006);

(c)European Convention on the Compensation of Victims of Violent Crimes (30 August 2006).

(5)The Committee notes 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 Conventions, including:

(a)The entry into force, on 1 January 2008, of the Criminal Procedure Reform Act and the amendments to the Code of Criminal Procedure. In particular, the Committee welcomes the provisions regarding:

(i)The prohibition of evidence obtained by means of torture or cruel, inhuman, or degrading treatment, or other unlawful interrogation methods;

(ii)The obligation of courts to report cases in which evidence was allegedly extracted by such unlawful means immediately and ex officio to the public prosecutor;

(iii)The express reference to the right of the defendant to remain silent;

(iv)The right to contact a lawyer prior to the interrogation;

(v)The right of the defendant to be assisted by an interpreter;

(vi)The right of the defendant to inspect the police files concerning the case;

(b)The entry into force in June 2009 of the Second Violence Protection Act, which amends the Crimes Victims Act expanding the range of services and support available to crime victims, including victims of gender-based violence.

(6)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 a firm and principled position against the use of diplomatic assurances to facilitate the transfer of persons to a country where they may be at risk of torture or other inhuman or degrading punishment;

(b)The adoption of a two national action plans against human trafficking for the periods 2007-2009 and 2009-2011;

(c)The establishment of the Coordination Committee to Protect Children from Sexual Exploitation to continuously coordinate and evaluate the implementation of the State party’s international commitments to combat sexual abuse of children;

(d)The publication in March 2010 of the Report on the visit to Austria carried out in February 2009 by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the State party’s response to it.

(7)The Committee appreciates the fact that the State party has issued a standing invitation to the special procedures mechanisms of the Human Rights Council.

C. Principal subjects of concern and recommendations

Definition and offence of torture

(8)While noting that the State party is preparing an amendment to the Criminal Code for the inclusion of a definition of torture, 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 (arts. 1 and 4).

The Committee reiterates its previous recommendation (A/54/44, para. 50 (a) and CAT/C/AUT/CO/3, para. 6) that the State party should proceed to incorporate into domestic law the crime of torture and adopt a definition of torture that covers all the elements contained in article 1 of the Convention. 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.

Fundamental safeguards

(9)The Committee is concerned at the restrictions placed by the State party on the exercise of the right of an arrested or detained person to communicate with counsel and have counsel present during interrogations. In this respect, it notes with concern that, pursuant to section 59 (1) of the amended Code of Criminal Procedure, police officers can monitor contacts between the arrested or detained person and counsel and exclude the presence of counsel during interrogations if “it appears necessary to prevent interference in ongoing investigations or corruption of evidence”. In such a case, an audio or visual recording of the interrogation must be made if possible (section 164, para. 2, of the Code of Criminal Procedure). The Committee is also concerned at the content of paragraph 24 of Internal Instruction (Erlass) Ref. BMI-EE1500/0007-II/2/a/2009 issued by the Federal Ministry of Interior on 30 January 2009, which would seem to infer that there is no obligation on the part of the police to delay questioning to allow the lawyer to arrive at the place of interrogation (arts. 2 and 11).

The Committee reiterates its recommendation (CAT/C/AUT/CO/3, para. 11) that the State party should take all necessary legal and administrative safeguards to ensure that suspects are guaranteed the right of confidential access to a lawyer, including during detention, and to legal aid from the moment of the arrest and irrespective of the nature of their alleged crime. The State party should also extend the use of audio and video equipment to all police stations and detention facilities, not only in interrogation rooms but also in cells and corridors.

The State party should promptly amend paragraph 24 of the above-mentioned internal instruction to avoid situations that would deprive detainees of the right to an effective defence at a critical stage in the proceedings and expose them to the risk of torture or ill-treatment.

Juvenile offenders

(10)The Committee notes that, under section 164, paragraph 2, of the amended Code of Criminal Procedure, juvenile offenders cannot be interrogated in the absence of counsel. Nevertheless, the Committee received information alleging that juvenile offenders, some as young as 14, had been subjected to police questioning, sometimes for prolonged periods, and requested to sign statements without the benefit of the presence of either a trusted person or a lawyer (arts. 2 and 11).

The State party should take the necessary measures to ensure the proper functioning of the juvenile justice system in compliance with international standards and to guarantee that minors are always heard in the presence of a legal representative.

Legal aid

(11)The Committee takes notes of the legal aid programme initiated by the Federal Ministry of Justice and the Federal Bar Association. However, the Committee remains concerned about reports regarding the persistence of shortcomings in the implementation in practice of the right of access to a lawyer during police custody, particularly with regard to the confidentiality of communications with counsel (art. 2).

The Committee reiterates its recommendation (CAT/C/AUT/CO/3, para. 12) that the State party should consider establishing a fully-fledged and properly funded system of legal aid. In this connection, the Committee recalls the recommendations made in 2004 and 2009 by the European Committee on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee also recommends that the State party should take the necessary measures to provide an effective free legal aid system, in particular for indigent criminal suspects.

Composition of police force and correction system

(12)While welcoming the measures taken by the State party to improve the representation of female and minority ethnic police officers, which will have beneficial impacts in policing including in matters of gender-based violence and any act based on discrimination, the Committee is concerned that the representation of women and ethnic minority communities in the police force and correction system remains very low (art. 2).

The State party should continue its efforts to diversify the composition of its police force and correction services and to extend recruitment drives amongst ethnic minority communities throughout the country. The Committee invites the State party to provide in its next periodic report information on the measures taken to improve such representation as well as detailed statistical information on the compositions of the police force and correction system.

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

(13)The Committee welcomes the amendments introduced to the Asylum Law following Constitutional Court ruling G151/02 of 12 December 2002, which addressed the concerns expressed by the Committee in its previous concluding observations (CAT/C/AUT/CO/3). The Committee is concerned that under article 12 (a) of the revised Asylum Law, persons basing their repeat applications for international protection on new grounds cannot be granted a stay of their expulsion if they lodge their application within two days prior to the date set for deportation and may, consequently, be at risk of refoulement. Furthermore, persons whose first asylum application was not found admissible according to the Dublin II Regulation are, in case of repeat application, now excluded from de facto protection against removal (faktischer Abschiebeschutz), a residence permit for asylum-seekers during the admission procedure which does not allow removal from Austria. The Committee notes with concern that in both situations asylum-seekers are not afforded an effective remedy. The Committee is further concerned by the information provided by the State party that an appeal of a decision denying asylum based on a procedural issue, as opposed to subject matter, does not have automatic suspensive effect (art. 3) (see letter dated 15 November 2008 from the Rapporteur for follow-up to concluding observations).

The State party should take the necessary measures to ensure that individuals under its jurisdiction are guaranteed fair treatment at all stages of the proceedings, including an opportunity for effective, independent and impartial review of decisions on expulsion, return or deportation.

(14)The Committee notes that the legal provisions regarding the basic needs of asylum-seekers, including health assistance, contained in the amended Federal Care Act (2005) and the Agreement on Basic Support (2004), have now been adopted by all Länder, as recommended by this Committee in its previous concluding observations (CAT/C/AUT/CO/3, para. 17). However, the Committee is concerned about reports on extensive statutory grounds for withdrawal and cessation of care provisions, such as filing a subsequent application within six months of a negative decision in a preceding procedure (art. 16).

The State party should take effective measures to ensure that needy asylum-seekers are not left without adequate reception conditions, including accommodation and health assistance, and that adequate social support is provided to them throughout their asylum proceedings.

Training

(15)The Committee notes the information provided by the State party on training programmes for judges, prosecutors, police officers and other law enforcement officials. However, the Committee regrets the limited information on monitoring and evaluation of these training programmes and the lack of available information on the impact of the training conducted and how effective they have been in reducing incidents of torture and ill-treatment (art. 10).

The State party should:

Continue preparing and implementing training programmes to ensure that judges, prosecutors, law enforcement officials and prison officers are fully aware of the provisions of the Convention, that breaches will not be tolerated and will be investigated, and that offenders will be prosecuted;

Ensure that all relevant personnel receive specific training on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol);

Develop and implement a methodology to assess the effectiveness and impact of such training and educational programmes on the reduction of cases of torture and ill-treatment.

Conditions of detention

(16)The Committee is concerned at the detention policy applied to asylum-seekers, including reports that they are held in police detention centres for criminal and administrative offenders (Polizeianhaltezentrum – PAZ), in some cases confined in their cells for 23 hours a day, only allowed visits under closed conditions and without access to qualified medical care or legal aid. In this respect, the Committee regrets the change in the legislative framework resulting from the last reform of the Asylum Law and Aliens Police Act, which entered into force on 1 January 2006. Under the new article 76, paragraph 2a, of the Aliens Police Act, detention of asylum-seekers whose claims have not been finally decided or were only rejected on procedural grounds has, in certain circumstances, become mandatory, where found necessary to achieve expulsion (art. 11).

In line with the concerns expressed by other relevant international and regional human rights bodies, the State party should:

(a) Ensure that detention of asylum-seekers is used only in exceptional circumstances or as a measure of last resort;

(b) Consider alternatives to detention and end the practice of detaining asylum-seekers in police holding centres;

(c) Take immediate and effective measures to ensure that asylum-seekers who are detained pending deportation are held in detention centres specifically designed for that purpose, offering material conditions and a regime appropriate to their legal status;

(d) Ensure that asylum-seekers have full access to free and qualified legal counselling, adequate medical services, occupational activities and the right to receive visits.

(17)While noting the measures taken by the State party to improve living conditions in detention centres, including various legislative measures (the so-called “Haftenlastungspaket”) to reduce the waiting period for conditional release and the grounds for detention on remand, the Committee is concerned that there is continuing overcrowding in places of detention, in particular Josefstadt and Simmerig II prisons in Vienna, as well as understaffing problems. The Committee is also concerned about the reintroduction in June 2009 of the use of electro-muscular disruption devices, “Tasers”, in the penal service (arts. 2, 11 and 16).

The State party should strengthen its efforts to alleviate the overcrowding of penitentiary institutions, including through the application of alternative measures to imprisonment and the establishment of additional prison facilities as needed. The State party should also take appropriate measures to increase the overall staffing levels and the number of female prison officers.

The Committee reiterates its concern that the use of electro-muscular disruption devices can result in severe pain amounting to torture and in certain cases can even be lethal. The State party should consider relinquishing the use of electro-muscular disruption devices to restrain persons in custody, as this leads to breaches of the Convention.

(18)While it takes note of the Suicide Prevention Programme established by the Federal Ministry of Justice in December 2007, the Committee finds the number of suicides and other sudden deaths in detention centres to appear to be high (art. 11).

The State party should increase its efforts to prevent suicides and other sudden deaths in all places of detention. The Committee urges the State party to investigate promptly, thoroughly and impartially all deaths of detainees, assessing the health care received by inmates as well as any possible liability of prison personnel, and provide, where appropriate, adequate compensation to the families of the victims.

Furthermore, information on independent investigation of cases of suicide and other sudden deaths, along with any guidelines for suicide prevention adopted in this regard, should be included in the next periodic report.

Prompt, thorough and impartial investigations

(19)The Committee regrets the insufficient statistical data on allegations of torture and ill-treatment provided by the State party as well as the lack of information on the results of the investigations undertaken in respect of those allegations. The Committee notes with concern that almost half of the incidents occurred in 2009 concerned foreigners. In this regard, the Committee continues to be concerned about the high level of impunity in cases of police brutality, including that perceived to be racially-motivated. Until January 2010, allegations of torture and ill-treatment were investigated by the Bureau for Internal Affairs (BIA), a special unit within the Federal Ministry of Interior, which informs the competent public prosecutor about the outcome of the internal inquiry. Although the Bureau of Internal Affairs provided a copy of its reports to the Human Rights Advisory Board, the members of this national human rights institution were not mandated to carry any investigative work. Since the entry into force of the Federal Act on the Establishment and Organization of the Federal Bureau of Anti-Corruption on 1 January 2010, BIA was transformed into the Federal Bureau of Anti-Corruption (BAK) that, according to the information provided by the delegation, is “an independent body outside the traditional law enforcement structures and conducts independent investigation in close cooperation with the public prosecutors” (arts. 12–13).

The Committee recommends that the State party:

Take appropriate measures to ensure that all allegations of torture or cruel, inhuman or degrading treatment are promptly and impartially investigated, perpetrators 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;

Strengthen and expand the mandate of the Austrian Ombudsperson Board, to include protection and promotion of all human rights in accordance with the Paris Principles;

Ensure that clear and reliable data are complied on acts of torture and abuse in police custody and in other places of detention;

The State party should provide the Committee with further information on the mandate of the new Federal Bureau of Anti-Corruption and the procedures established to carry out independent investigation into all allegations of torture and ill-treatment committed by law enforcement officials. The State party should also provide the Committee with information on cases of torture and ill-treatment where the aggravating circumstances as stated in section 33 of the Criminal Code, including racism and xenophobia, have been invoked in the determination of sanctions for such crimes.

(20)The Committee continues to be deeply concerned about the lenient sentences imposed by Austrian courts in cases of torture or other ill-treatment by law enforcement officials. The Committee is particularly concerned about the case of Cheibani Wague, a Mauritanian national, who died on 16 July 2003 in Vienna while being restrained during his arrest by police officers and a medical emergency team. In November 2009, the ambulance doctor and one of the police officers received both a seven month suspended sentence, which was reduced to four months on appeal in the case of the police officer. The Committee expresses also its concern at the case of Mike B., a black American teacher who was beaten up in February 2009 by undercover police officers in the Vienna underground (arts. 11 and 16).

The State party should:

Ensure prompt, thorough and impartial investigations into allegations of torture and ill-treatment, prosecute and punish perpetrators and provide effective remedies and rehabilitation to the victims;

Ensure that sentences for torture and ill-treatment are commensurate with the grave nature of the offence;

Inform the Committee on the results of any investigation undertaken in respect of the case of Mike B., as well as on prosecutions and convictions thereof.

Redress and compensation, including rehabilitation

(21)While noting the information provided by the State party that victims of torture or ill-treatment have a legal right to obtain compensation, the Committee is nevertheless concerned at the difficulties that certain victims face obtaining redress and adequate compensation. The Committee is particularly concerned about the case of Mr. Bakary Jassay, a Gambian national, who was abused and severely injured by policemen in Vienna on 7 April 2006, and who has not yet received any compensation, not even the € 3,000 awarded by the court for the damages resulted from the pain and suffering. The Committee also regrets the lack of statistical data or examples of cases in which individuals have received such compensation (art. 14).

The State party should provide redress and compensation, including rehabilitation to victims in practice, and provide information on such cases to the Committee.

The State party should provide the Committee with relevant statistical data and examples of cases in which individuals have received such compensation in its next periodic report.

(22)The Committee is concerned about reports of alleged lack of privacy and humiliating circumstances amounting to degrading treatment during medical examinations at the Vienna Communal Health Office, where registered sex workers are required to undergo weekly medical checkups, including gynaecological exams, and to take regular blood tests for sexually transmitted diseases (art. 16).

The State party should ensure that these medical examinations are carried out in an environment where privacy is safeguarded and in taking the greatest care to preserve the dignity of women being examined.

Trafficking

(23)While it notes the new programmes that the State party has adopted to combat human trafficking and sexual exploitation of women and children, the Committee expresses its concern at persistent reports of trafficking of women and children for sexual and other exploitative purposes and the lack of information on prosecutions and sentences in matters of trafficking (art. 16).

The State party should increase its efforts to combat trafficking in women and children and take effective measures to prosecute and punish trafficking in persons and further strengthen international cooperation with countries of origin, transit and destination so as to further curb this phenomenon.

Domestic violence

(24)The Committee is concerned about highly publicized cases of domestic violence, including children occurred in the State party during the period under review (art. 16).

The State party should increase its efforts to ensure that urgent and efficient protection measures are put in place to prevent, combat and punish perpetrators of violence against women and children, including domestic violence and sexual abuse, and conduct widespread awareness-raising campaigns and training on violence against women and girls for officials (judges, lawyers, law enforcement agents and social workers) who are in direct contact with the victims, as well as for the public at large.

Use of net beds in psychiatric facilities

(25)Notwithstanding the explanation offered by the delegation, the Committee is concerned at the continuing use of net beds as a measure of restraint in psychiatric and social welfare establishments (art. 16).

The State party should immediately cease the use of net beds as it constitutes a violation of article 16 of the Convention.

Data collection

(26)The Committee expresses its concern at the fact that for numerous areas covered by the Convention, the State party was unable to supply statistics, or appropriately disaggregate those in its possession, such as alleged cases of sexual violence in prisons; alleged abuse committed by law enforcement officials against asylum-seekers; cases of appeal for a stay of extradition based on possible refoulement rejected by the Independent Federal Asylum Senate (now, the new Asylum Court); and, the number of applicants who have been deported or extradited while awaiting a decision on an appeal of a decision denying asylum based on a procedural issue.

The State party should establish an effective system to gather all statistical data disaggregated by sex, age and authenticity, relevant to the monitoring of the implementation of the Convention at the national level, including complaints, investigations, prosecutions, convictions of cases of torture and ill-treatment, trafficking and domestic and sexual violence, as well as compensation and rehabilitation provided to the victims.

(27)The Committee also recommends that the State party include in its next periodic report information concerning compliance with its obligations under the Convention by Austrian armed forces deployed abroad.

(28)The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet party, namely, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Protection of the Rights of Migrant Workers and Members of Their Families; and, the International Convention for the Protection of All Persons from Enforced Disappearance.

(29)The Committee invites the State party to submit a core document in accordance with the requirements for the preparation of a common core document established in the harmonized guidelines for the submission of reports approved by the international human rights treaties bodies (HRI/GEN/2/Rev.6).

(30)The State party is urged to ensure wide circulation of the report submitted to the Committee and of the Committee’s concluding observations through official websites, the media and non-governmental organizations.

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

(32)The State party is invited to submit its sixth periodic report by 14 May 2014.

58. Cameroon

(1)The Committee against Torture considered the fourth periodic report of Cameroon (CAT/C/CMR/4) at its 930th and 944th meetings (CAT/C/SR.930 and 944) held on 28 April and 7 May 2010, and adopted, at its 950th and 951st meetings (CAT/C/SR.950 and 951), held on 12 May 2010, the concluding observations as set out below.

A. Introduction

(2)The Committee welcomes the submission of the fourth periodic report of Cameroon, which was in compliance with the reporting guidelines, as well as the replies to the list of issues (CAT/C/CMR/Q/4 and Add.1). However, it regrets that the State party has not replied to the letter of 17 February 2006, in which the Rapporteur responsible for following up the Committee’s concluding observations regarding Cameroon (CAT/C/CR/31/6) requested additional information.

(3)The Committee expresses its appreciation for the constructive dialogue held with the high-level delegation of the State party, and thanks it for the written replies to the questions raised by Committee members.

B. Positive aspects

(4)The Committee notes with satisfaction that, under article 45 of the Constitution of 1972, as revised on 18 January 1996, international treaties and agreements ratified by the State party, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”), take precedence over domestic legislation.

(5)The Committee notes with satisfaction the legislative and institutional advances made by the State party since the consideration of the third periodic report (CAT/C/34/Add.17), particularly:

(a)Decree No. 2004/320 of 8 December 2004 on the organization of the Government and the transfer of prison administration to the Ministry of Justice;

(b)Decree No. 2005/122 of 15 April 2005 on the organization of the Ministry of Justice and the creation of the Directorate for Human Rights and International Cooperation;

(c)Act No. 2005/006 of 27 July 2005 on the status of refugees;

(d)Act No. 2005/007 of 27 July 2005 on the Code of Criminal Procedure;

(e)Act No. 2005/015 of 29 December 2005 on combating smuggling and trafficking in children.

(6)The Committee welcomes the ratification by the State party, on 18 May 2004, of the United Nations Convention against Transnational Organized Crime and two of its three protocols: the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Air and Sea.

(7)The Committee notes with satisfaction the ratification, on 28 March 2009, of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.

(8)The Committee welcomes the fact that the State party has agreed to host the United Nations Subregional Centre for Human Rights and Democracy in Central Africa and its unwavering support for the Centre’s activities.

(9)The Committee notes with satisfaction the State party’s cooperation with the European Union in the context of the Programme to Improve Detention Conditions and Respect of Human Rights.

C. Main areas of concern and recommendations

Definition of torture and appropriate penalties

(10)The Committee has noted that article 132 bis of the Criminal Code contains a definition of torture but regrets that, in spite of repeated requests, the State party has not provided it with a copy of the text. The Committee is therefore unable to assess whether or not the State party fully incorporated the definition of torture under articles 1 and 4 of the Convention. Moreover, the Committee notes with concern that domestic legislation does not provide for the imposition of sentences that take into account the seriousness of the offence (arts. 1 and 4).

The State party should provide the Committee with the necessary information for it to assess whether or not the State party has incorporated into its Criminal Code a definition of torture that complies with articles 1 and 4 of the Convention. The Committee emphasizes that 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 refer to discrimination of any kind as a motive or reason for inflicting torture. The definition should also criminalize 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. The State party should also ensure that the provisions criminalizing acts of torture and making them punishable by criminal penalties are proportional to the seriousness of the acts committed.

Fundamental legal safeguards

(11)The Committee takes note of the provisions in articles 37 and 116 of the Code of Criminal Procedure, under which persons who have been arrested are provided every reasonable facility to contact family members, obtain legal advice and consult a physician. Nevertheless, the Committee is concerned by information it has received indicating that, in practice, detainees, from the time of their arrest, rarely benefit from the guarantees provided for in the Code of Criminal Procedure. In addition, the Committee is deeply concerned by the fact that police custody, limited to 48 hours and renewable once with the authorization of the State prosecutor, is not observed in practice and that arrests are not registered immediately. It is especially concerned by credible allegations that law enforcement officials use extensions of police custody to extort money (arts. 2 and 11).

The State party should, without delay, implement measures to ensure that all basic guarantees are applied to all suspects from the moment of their arrest, in particular the rights to: access to a lawyer; to be examined by an independent physician; to contact a relative or friend; to be informed of one’s rights from the moment of detention, including the right to be informed of the charges; and to be brought promptly before a judge. Furthermore, the authorities should systematically and regularly update detention registers, which should contain the name of every detainee, the identity of arresting officials, the date of the detainee’s admission and release, and all other information required for such registers.

Accessible complaints mechanism and legal aid

(12)The Committee is concerned by allegations that victims and especially women victims of torture or cruel, inhuman or degrading treatment have difficulty accessing justice. It is also concerned that legal assistance is available only to accused persons who face a life sentence or capital punishment (arts. 2 and 11).

The State party should take steps to facilitate access to justice for all victims of torture or cruel, inhuman or degrading treatment and make legal aid available to all those persons who need it, regardless of the sentences they face.

Habeas corpus

(13)The Committee notes the provisions in the Code of Criminal Procedure on habeas corpus and compensation for improper pretrial detention. However, it is concerned that a writ of habeas corpus must be accompanied by an order of release from the State prosecutor. It is also concerned that a claims commission set up under article 237 of the Code of Criminal Procedure is still not working (art. 2).

The State party should revise its Code of Criminal Procedure to allow anyone with a writ of habeas corpus to be released immediately. The State party should also activate the claims commission without delay.

Pretrial detention

(14)In spite of the State party’s explanations, the Committee remains deeply concerned by the high number of persons held in pretrial detention – 14,265 compared with 8,931 convicted prisoners in 2009. It is also concerned that the maximum period of pretrial detention provided for under article 221 of the Code of Criminal Procedure, 12 months in the case of ordinary offences and 18 months for serious offences, is not observed (art. 2).

The State party should take urgent steps to reduce the period of pretrial detention, in particular by ensuring that the maximum detention periods provided for under pretrial detention legislation are observed and by applying the principle that pretrial detention should be viewed as an exceptional measure.

Prison conditions

(15)While taking note of projects initiated by the State party, with support from the international community, and the State party’s commitment, made at the time of its universal periodic review (A/HRC/11/21/Add.1, recommendation 76 [14, 21 and 33]), to improve prison conditions, the Committee remains deeply perturbed by the deplorable living conditions in places of detention. The Committee has received reports of prison overcrowding; violence among prisoners; corruption (such as the renting of prison cells and sale of medical equipment); the lack of hygiene and adequate food; health risks and inadequate health care; the violation of the right to receive visits; and reports that some persons awaiting trial have been held in prison for a period longer than the sentence they face. It is also concerned by the use of civil imprisonment, in conformity with article 564 of the Code of Criminal Procedure, which means that persons, including minors, who have completed their sentences may be held in detention for a further period of from 20 days to 5 years, depending on how much money they owe. The Committee is also concerned by reports that there is no systematic separation of minors from adults, of persons in pretrial detention from convicts, or between men and women, and that female prisoners can be guarded by male staff (arts. 2, 11 and 16).

The State party should take urgent steps to bring conditions in all places of detention, including gendarmerie and police stations, into line with the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (General Assembly resolution 43/173) and, in particular:

(a) Reduce prison overcrowding by favouring non-custodial penalties in its policy on crime, including probation, suspended sentences, community service, along with avenues of out-of-court dispute settlement, such as mediation. Similarly, it should increase judicial and non-judicial staff. As for children in conflict with the law, the State party should ensure that imprisonment is used only as a last resort;

(b) Improve the quality of food and health care provided to prisoners;

(c) Take appropriate measures to put an end, once and for all, to alleged corruption and ransom demands in prisons;

(d) Strengthen judicial supervision of prison conditions;

(e) Revise the provisions of the Code of Criminal Procedure on civil imprisonment and devise other means to allow detainees to pay off their debts;

(f) Reorganize prisons so that persons awaiting trial are detained separately from convicted prisoners, improve detention conditions for minors, ensuring that they are always detained separately from adults, and further develop alternative detention centres for minors away from prisons;

(g) Take measures to ensure that female prisoners are separated from male prisoners and guarded by female staff only;

(h) Provide a detailed report on the results achieved and/or difficulties encountered in the development of the programme to improve prison conditions by Cameroon and the European Development Fund between December 2006 and December 2010.

(16)The Committee is deeply concerned about the high number of deaths in custody. Statistics provided by the State party show that 178 prisoners died between January and October 2008, and that in 38 of those cases no cause of death was specified. It is equally concerned by reports of excessive use of armed force by the security forces during escape attempts by prisoners (arts. 2, 11 and 16).

The State party should take urgent measures to prevent violence between and against prisoners, as well as deaths in custody. It should ensure that all cases of violence and death in custody are the subject of immediate, impartial, thorough and, where appropriate, forensic medical investigation, and that the persons responsible are brought to justice and convicted. It should be made easier for prisoners to lodge complaints.

(17)While welcoming the State party’s study aimed at a review of Decree No. 92/52 of 27 March 1992, the Committee is concerned about the use in prisons of chains and solitary confinement as disciplinary measures, which may constitute cruel, inhuman or degrading treatment (arts. 11 and 16).

The Committee encourages the State party to repeal the decree on disciplinary measures in prison and to find methods consistent with the Convention for handling prisoners who pose a security risk.

Journalists and human rights defenders

(18)The Committee is concerned about allegations that journalists and human rights defenders are the subject of harassment, arbitrary arrest, torture, cruel, inhuman or degrading treatment, and death threats, and that such acts go unpunished. Although taking note of the detailed information supplied by the State party and, in particular, of the administrative investigation into the death in custody, on 22 April 2010, of the journalist Mr. Germain Cyrille Ngota (also known as Bibi Ngota) the Committee is concerned about the high number of journalists and human rights defenders who have been imprisoned and about allegations of torture and cruel, inhuman or degrading treatment. It is also concerned about reports that the security forces put down demonstrations by journalists who were protesting over the circumstances of the death in custody of a journalist (arts. 2, 11, 12 and 16).

The State party should take effective measures to put an end to the harassment, arbitrary arrest, torture, cruel, inhuman or degrading treatment, and death threats to which journalists and human rights defenders are exposed, and to prevent further acts of violence. In addition, it should ensure that a thorough and effective inquiry is carried out quickly and that the perpetrators of such acts are duly punished. Moreover, the Committee joins the United Nations Educational, Scientific and Cultural Organization (UNESCO) in its call for a thorough forensic medical investigation into the death of the journalist Mr. Ngota in Kondengui prison.

Events of February 2008

(19)The Committee takes note of the investigations into the events of February 2008 and of the report drawn up in 2009, although it has not received a copy. It also notes the administrative inquiry made into allegations of human rights violations, especially the right to life, by security forces, which concluded that they had acted in self-defence. However, the Committee is concerned about credible reports from a variety of sources alleging that the security forces have carried out, against adults and children, extrajudicial killings, arbitrary detention, acts of torture and cruel, inhuman or degrading treatment, and violations of the right to a fair trial. It is also concerned about the lack of thorough individual, impartial and forensic medical investigations of alleged extrajudicial killings and acts of torture and cruel, inhuman or degrading treatment by the security forces (arts. 2, 11, 12 and 16).

The Committee recommends that a full, thorough and independent inquiry be opened into the events of February 2008. The State party should also publish the report on the inquiries it has carried out and submit a copy of it to the Committee for appraisal. At the same time, the State party should promptly begin thorough, impartial and forensic medical investigations into allegations of extrajudicial killings, acts of torture and cruel, inhuman or degrading treatment by the security forces and ensure that the perpetrators are brought to justice and sentenced appropriately.

Impunity

(20)While welcoming the information transmitted by the State party on the prosecution of members of the security forces for violations of the Convention, the Committee remains seriously concerned about:

(a)Credible allegations that investigations and prosecutions relating to acts of torture and cruel, inhuman or degrading treatment are not carried out systematically and that perpetrators who are convicted receive light sentences that are not proportional to the seriousness of their crimes;

(b)The fact that prior authorization from the Ministry of Defence is required to prosecute gendarmes and military personnel for offences committed in military barracks or while on active duty;

(c)The lack of measures to protect complainants and witnesses against ill-treatment and intimidation after they lodge complaints or give evidence, which means that only a limited number of complaints are lodged for acts of torture or cruel, inhuman or degrading treatment;

(d)Article 30, paragraph 2, of the Code of Criminal Procedure, under which “the officer, judicial police officer or law enforcement officer who carries out the arrest requests that the person to be arrested accompany him or her and, if the person refuses, uses whatever force is necessary in proportion to the resistance met”;

(e)The lack of exhaustive statistics on the number of investigations and prosecutions of law enforcement officers for acts of torture or cruel, inhuman or degrading treatment (arts. 2, 12, 13 and 16).

The State party should demonstrate its firm commitment to eliminating the persistent problem of torture and impunity and:

(a) Publicly and unambiguously condemn the use of all forms of torture, addressing in particular law enforcement officers, the armed forces and prison staff, and including in its statements clear warnings that any person committing or participating in such acts or acting as an accomplice shall be held personally responsible before the law and shall be liable to criminal penalties;

(b) Take immediate steps to ensure that, in practice, all allegations of torture and ill-treatment are the subject of prompt, impartial and effective investigations and that those responsible — law enforcement officers and others — are prosecuted and punished without the need for prior authorization from their superiors or from the Ministry of Defence. Investigations should be conducted by a fully independent body;

(c) Ensure that, in cases of alleged torture, suspects are suspended from duty immediately for the duration of the investigation, particularly if there is a risk that they might otherwise be in a position to obstruct the investigation;

(d) Ensure that, in practice, complainants and witnesses are protected from any ill-treatment and acts of intimidation related to their complaint or testimony;

(e) Revise article 30, paragraph 2, of the Code of Criminal Procedure and ensure that any act of torture and cruel, inhuman or degrading treatment is met with prosecution and the appropriate convictions;

(f) Compile relevant and comprehensive statistics as soon as possible on complaints, inquiries, legal proceedings, convictions and sentences passed in cases of torture or cruel, inhuman or degrading treatment.

Constitutional Council

(21)The Committee notes with satisfaction the establishment on 21 April 2004 of the Constitutional Council as the body regulating State institutions. However, it notes with concern that this institution has yet to start work, as its members have not been appointed. It also notes that doubts remain over whether members of the Constitutional Council may renew their terms of office (art. 2).

The State party should expedite the process of appointing members to the Constitutional Council and ensure that this institution begins its work as soon as possible. It should consider reviewing Acts Nos. 2004/004 and 2004/005 of 21 April 2004 concerning the organization and functioning of the Constitutional Council and establishing the status of its members in order to remove any doubts over the renewal of council members’ terms of office.

Body for monitoring law enforcement agencies or “Police des Polices”

(22)While noting the establishment in 2005 of a Special Police Oversight Division, the so-called “Police des Polices”, attached to the Department for National Security, the Committee remains concerned about this institution’s lack of independence and objectivity. It is concerned that inquiries into allegations of unlawful acts, including torture or cruel, inhuman or degrading treatment, committed by the police, are carried out by police officials of the Special Police Oversight Division. In this regard, the Committee is concerned that only a few complaints against police officials are admitted, give rise to prompt, impartial and exhaustive investigations, and lead to prosecutions and convictions (arts. 2, 12, 13 and 16).

The State party should establish a body that is independent of the police and ensure that allegations of torture and other cruel, inhuman or degrading treatment or punishment are the subject of prompt, impartial, thorough and effective investigations.

Military justice

(23)The Committee takes note of Act No. 2008/015 on the organization of military justice. However, it is concerned about the degree to which military justice applies to civilians, in cases of offences under legislation on combat weapons, defence, robbery with firearms and all related offences (art. 2).

The Committee recalls the conventional jurisdiction of military justice, which should be confined to crimes committed in the context of military service, and recommends that the State party review its legislation in order to exclude offences by civilians, including those that contravene legislation on military weapons and side arms, armed robbery and all related offences, from the jurisdiction of military justice.

Terminating criminal prosecutions in the “social interest” or for “public order”

(24)The Committee notes with concern that the current Code of Criminal Procedure contains a provision under which the Ministry of Justice may terminate criminal prosecutions in the “social interest” or for “public order”. While noting article 2 of Act No. 2006/022, which specifies the organization and functioning of administrative courts and contains provisions that penalize the abuse of authority, as well as the claim by the State party that this procedure has only been invoked once since it came into force in 2006, the Committee is concerned by the absence of appeals against the decision of the Ministry of Justice, as well as the lack of a definition of the terms in article 64 of the Code of Criminal Procedure (arts. 2, 12 and 13).

The State party should review the Code of Criminal Procedure in order to ensure that all criminal proceedings lead to the acquittal or conviction of the accused. Any decision by the Ministry of Justice to terminate criminal proceedings, even in the “social interest” or for “public order”, should be open to judicial appeal.

Acts regarding the state of emergency and the maintenance of law and order

(25)The Committee notes with concern that Act No. 90/047 of 19 December 1990 on the state of emergency is in force. Given the guarantees in article 2, paragraph 2, of the Convention, the Committee notes with concern that the legislation on the state of emergency and Act No. 90/054 concerning the maintenance of law and order allow, under a state of emergency, for periods in police custody of two months, renewable once, and, in cases of banditry, for periods of police custody set at 15 days, also renewable (art. 2).

The State party should ensure that international principles governing states of emergency are respected, and in particular review the need for maintaining its state of emergency legislation in the light of the criteria laid down in article 4 of the International Covenant on Civil and Political Rights, to which Cameroon has been a party since 1984. The State party should also adhere strictly to the absolute prohibition of torture, in accordance with article 2, paragraph 2, of the Convention, which states that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

Systematic monitoring of places of detention

(26)The Committee notes the adoption of Act No. 2004/016, which established the National Commission on Human Rights and Freedoms in accordance with the Paris Principles (General Assembly resolution 48/134, annex) and that the Commission has been granted “B” status by the Subcommittee on Accreditation of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC). Nevertheless, the Committee is surprised that the Commission participated in the consideration of the report of Cameroon as part of the State party’s delegation rather than as an independent body. In addition, the Committee notes the low number of prison visits (according to information from the State party and the Commission, the latter visited only eight prisons between 2000 and 2010) and the lack of proper follow-up on the part of the authorities approached by the Commission. The Committee also notes that some NGOs have accreditation enabling them to visit prisons, but is concerned by reported difficulties in gaining access to prisons and the low number of prison visits carried out by NGOs (arts. 2, 11 and 13).

The State party should provide all the human and financial resources necessary to enable the National Commission on Human Rights and Freedoms to carry out its mandate, and should guarantee its independence. The Committee encourages the State party to abolish the voting rights of representatives of the Administration on the National Commission on Human Rights and Freedoms. The State party should take all appropriate steps to enable NGOs to carry out periodic, independent, unannounced and unrestricted visits to places of detention.

Training on the prohibition of torture

(27)While acknowledging the State party’s significant efforts in providing human rights training to State officials, the Committee is concerned that the information, education and training provided to law enforcement officials, prison staff, army personnel, judges and prosecutors are inadequate and do not cover all the provisions of the Convention, in particular the non-derogable nature of the prohibition of torture and the prevention of cruel, inhuman or degrading treatment or punishment. The Committee also notes with concern that medical personnel working in detention facilities receive no specific and comprehensive training based on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) to detect signs of torture or cruel, inhuman or degrading treatment (arts. 10 and 15).

The State party should strengthen its training programmes for all law-enforcement and military personnel on the absolute prohibition of torture and cruel, inhuman or degrading treatment, as well as those for prosecutors and judges on the State party’s obligations under the Convention. The programmes should include the inadmissibility of confessions and statements obtained as a result of torture. The State party should also ensure that all medical personnel dealing with detainees receive adequate training on detecting signs of torture or cruel, inhuman or degrading treatment, in accordance with international standards as set out in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).

Non-refoulement

(28)The Committee welcomes Cameroon’s stance on refugees but regrets that the implementing decree of Act No. 2005/006 of 27 July 2005 on the status of refugees has not yet been adopted. It is concerned about the power of officials at border crossings to turn away persons judged to be undesirable and to decide on whether or not a person may enter the State party’s territory. It also regrets the lack of information on legal remedies aimed at ensuring that such persons are not in real danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment in the receiving country, or subsequently being deported to another country in which they would be in real danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment (art. 3).

The Committee recommends that the State party adopt, as a matter of urgency, the implementing decree of Act No. 2005/006 of 27 July 2005 on the status of refugees. The State party should also revise its current procedures and practices in the area of expulsion, refoulement and extradition in order to fulfil its obligations under article 3 of the Convention.

Practices harmful to women

(29)The Committee reiterates its previous concluding observations on the subject of harmful practices such as female genital mutilation and breast ironing in some parts of the country and among refugees in Cameroon. The State party has not taken sustained and systematic action to eliminate these practices (CAT/C/34/Add.17, para. 11 (c)) (arts. 1, 2, 10 and 16).

The Committee recommends that the State party pass legislation to prohibit female genital mutilation and other harmful traditional practices, in particular breast ironing, no matter what the circumstances, and to ensure its effective enforcement. It also urges the State party to devise programmes to offer alternative sources of income to those who earn their living by performing female genital mutilation and other harmful traditional practices. It should also step up efforts, through information programmes, to raise awareness and educate both women and men regarding the pressing need to put an end to the practices of female genital mutilation and breast ironing.

Violence against women

(30)The Committee is concerned about the high rate of violence against women and girls, especially the widespread domestic violence that continues to go unpunished. In addition, it reiterates its previous recommendation, in which it encouraged the State party to amend its legislation to end the exemption from punishment of rapists who marry their victims, where the victims were minors when the crime was committed (CAT/C/CR/31/6, para. 11 (d)) (arts. 1, 2, 10 and 16).

The Committee recommends that the State party raise public awareness, through information and education programmes, of the fact that all forms of violence against women and girls constitute a violation of the Convention. The Committee urges the State party to ensure that violence against women and girls, including domestic violence, rape (even marital rape), and all forms of sexual abuse, is made a criminal offence, that perpetrators are prosecuted and punished and that their victims are rehabilitated, and that female victims of violence may seek immediate redress, protection and compensation. In addition, the Committee urges the State party to remove any impediments to access to justice by women and girls and recommends that legal assistance be made available to victims of violence. Moreover, the Committee reiterates its previous recommendation on the amendment of legislation that exempts from punishment rapists who marry their victims.

Collection of statistical data

(31)The Committee notes that it did receive some statistical data but regrets the lack of detailed disaggregated data on complaints, investigations, prosecutions and convictions in cases of torture and cruel, inhuman or degrading treatment attributed to members of the security forces, as well as on trafficking in persons, domestic violence and sexual violence (arts. 1, 2, 12, 13, 14 and 16).

The State party should establish an effective system for collecting statistics to allow monitoring of the national implementation of the Convention, especially on complaints, investigations, criminal prosecutions, convictions and compensation paid in cases of torture and ill-treatment, violence among prisoners, trafficking in persons and domestic and sexual violence. The Committee realizes that the collection of personal data raises sensitive confidentiality issues, and emphasizes that appropriate measures should be taken to avoid misuse of data.

(32)The Committee takes note of the State party’s response to the recommendation made in the course of the universal periodic review that it ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and that it set up a national preventive mechanism (A/HRC/11/21/Add.1, Recommendation 76 [1]), and encourages it to take all the necessary steps to ratify it as soon as possible.

(33)The Committee encourages the State party to continue working with the Centre for Human Rights and Democracy in Central Africa, the subregional bureau of the Office of the United Nations High Commissioner for Human Rights, in order to implement the Committee’s recommendations.

(34)The State party should establish effective mechanisms to collect data and generate criminal and criminology statistics and all statistics relevant to monitoring of the nationwide implementation of the Convention. The State party should thus provide in its next periodic report the following data, which will facilitate the Committee’s assessment of the implementation of its obligations under the Convention:

(a)Statistics on the capacity and population of every prison in Cameroon, including data disaggregated by gender and age group (adults/children), and differentiating between prisoners in pretrial detention and convicts;

(b)Statistics on violence in detention centres and police and gendarmerie stations;

(c)Statistics on complaints of alleged torture and action taken;

(d)Statistics on corruption among law enforcement officials and penalties imposed;

(e)Statistics on cases of extradition, expulsion or refoulement;

(f)Statistics on violence against women and children and outcomes of prosecutions initiated.

(35)The State party is encouraged to disseminate widely the reports submitted by Cameroon and the concluding observations of the Committee in the appropriate languages and by all appropriate means, including through the media and NGOs.

(36)The Committee invites the State party to update its core document of 19 June 2000 (HRI/CORE/1/Add.109) in accordance with the harmonized guidelines on reporting, approved recently by the international human rights treaty monitoring bodies (HRI/GEN/2/Rev.6).

(37)The Committee urges the State party to ratify the International Convention for the Protection of All Persons from Enforced Disappearance, which it signed on 6 February 2007.

(38)The Committee requests the State party to provide it, within one year, with information on the follow-up to the Committee’s recommendations in paragraphs 14, 18, 19 and 25 above.

(39)The Committee requests the State party to submit its fifth periodic report by 14 May 2014 at the latest.

59. France

(1)The Committee against Torture considered the consolidated fourth to sixth periodic reports of France (CAT/C/FRA/4-6) at its 928th and 931st meetings, held on 27 and 28 April 2010 (CAT/C/SR.928 and 931), and adopted the following concluding observations at its 946th meeting, held on 10 May 2010 (CAT/C/SR.946).

A. Introduction

(2)The Committee welcomes the consolidated fourth to sixth periodic reports of France, which broadly comply with the guidelines on the form and content of periodic reports.

(3)The Committee appreciated the quality of France’s well documented written replies to the list of issues (CAT/C/FRA/Q/4-6 and Add.1) and the additional information provided orally during the consideration of the report. The Committee also appreciated the constructive dialogue that took place with the delegation representing the State party and thanks it for its clear and straightforward answers to the questions raised by Committee members.

B. Positive aspects

(4)The Committee takes note with satisfaction of:

(a)The State party’s ratification of the Optional Protocol to the Convention and the related establishment, under the Act of 30 October 2007, of the post of Inspector-General (Contrôleur général) of places of deprivation of liberty, which constitutes a national preventive mechanism within the meaning of the Optional Protocol;

(b)The State party’s accession, on 2 October 2007, to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty;

(c)The State party’s ratification, on 23 September 2008, of the International Convention for the Protection of All Persons from Enforced Disappearance;

(d)The State party’s ratification, on 18 February 2010, of the Convention on the Rights of Persons with Disabilities and its Optional Protocol.

(5)The Committee also notes with satisfaction:

(a)The introduction, under the Act of 20 November 2007, of a legal remedy with automatic suspensive effect against any decision to refuse entry following an application for asylum lodged at the frontier;

(b)The adoption of the Act of 4 April 2006, which strengthens the prevention and punishment of conjugal violence and violence against children and increases the penalties for violence against women.

(6)The Committee also welcomes the construction project now under way aimed at a substantial increase in prison capacity.

(7)The Committee also notes the proactive measures taken by the State party to increase the number of convicted persons eligible for alternative sentencing, in part as a result of the introduction, under the Prisons Act of 24 November 2009, of house arrest with electronic surveillance as an alternative to pretrial detention.

(8)The Committee notes with satisfaction the Ministry of Justice action plan of 2009 to prevent suicide in prison, and would welcome regular updates on its implementation, including in the overseas territories.

(9)The Committee notes with interest the establishment of a procedure to allow the newly created Office of the Inspector-General of the National Gendarmerie to make unannounced visits to police custody facilities and to monitor the reception facilities for complainants in neighbourhood police units.

(10)The Committee welcomes the abolition, on 16 August 2007, of the “security rotation” system in prisons, whereby prisoners were subjected to repeated transfers. The Committee also notes that the matter of Khider v. France (European Court of Human Rights judgement of 9 July 2009) was placed on the agenda of the Committee of Ministers in March.

(11)The Committee notes with satisfaction the creation of two telephone hotlines for reporting conjugal ill-treatment and violence and abuse against children (3977 and 3919, respectively). The Committee also commends the bill to introduce a reference to psychological violence in the Criminal Code.

(12)The Committee further notes with satisfaction the State party’s announcement that it was considering legislative reform aimed eventually at divesting a person of an honour awarded if the person is suspected of having committed a violation of the Convention or any other serious violation of international law.

C. Subjects of concern and recommendations

Definition of torture

(13)While the Committee recognizes that the State party’s criminal law punishes acts of torture and acts of barbarity and violence, and while it takes note of the judgements brought to its attention in which acts of torture have been penalized, the Committee remains concerned at the absence in the French Criminal Code of a definition of torture strictly in line with article 1 of the Convention (art. 1).

The Committee reiterates its earlier recommendation (CAT/C/FRA/CO/3, para. 5) that the State party incorporate in its criminal law a definition of torture that is in strict conformity with article 1 of the Convention. Such a definition would meet on the one hand the need for clarity and predictability in criminal law, and on the other the need under the Convention to draw a distinction between acts of torture committed by or at the instigation of or with the consent or acquiescence of a public official or any other person acting in an official capacity, and acts of violence committed by non-State actors. The Committee reiterates its recommendation that torture be made an imprescriptible offence.

Non-refoulement

(14)While taking note of the information provided to the Committee by the State party to the effect that the relevant numbers have fallen since 2008, the Committee remains concerned at reports that 22 per cent of asylum applications submitted in 2009 were dealt with under the so-called priority procedure, which does not allow for an appeal with suspensive effect against an initial rejection by the French Office for the Protection of Refugees and Stateless Persons (OFPRA). An applicant may therefore be returned to a country where he is at risk of torture before the National Court on the Right of Asylum can hear his request for protection. In the absence of statistics concerning petitions lodged against removal orders on grounds of risk of torture, or for annulments of removal orders by the administrative court under article 3, the Committee is not convinced that the priority procedure offers adequate safeguards against removal where there is a risk of torture (art. 3).

The Committee recommends that the State party introduce an appeal with suspensive effect for asylum applications conducted under the priority procedure. It also recommends that situations covered by article 3 of the Convention be submitted to a thorough risk assessment, notably by ensuring appropriate training for judges regarding the risks of torture in receiving countries and by automatically holding individual interviews in order to assess the personal risk to applicants.

(15)The Committee notes with satisfaction that, following the entry into force of the Act of 20 November 2007, asylum-seekers at the border now have the right of appeal with suspensive effect against a decision refusing entry for the purposes of asylum, but is concerned at the very short time limit for submitting such an appeal (48 hours), at the fact that the language used for the appeal must be French and at the fact that the administrative judge may reject the appeal by court order, thereby depriving the applicant of a hearing at which he may defend his case, and of procedural guarantees such as the right to an interpreter and a lawyer (art. 3).

The Committee recommends that any appeal relating to an asylum application submitted at the border be subject to a hearing at which the applicant threatened with removal can present his case effectively, and that the appeal be subject to all basic procedural guarantees, including the right to an interpreter and counsel.

(16)The Committee is also concerned at the particular difficulties encountered by asylum-seekers in places of deprivation of liberty such as holding centres, who are required to submit their application within five days of being notified of their right to do so, under the Code on the Entry and Residence of Aliens and the Right of Asylum. Such a time limit is not compatible with applicants’ need to submit a credible case establishing a risk in the event of return, which requires, among other things, the gathering of evidence and testimony, as well as other documentation from their country of origin (art. 3).

Like the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) following its visit to France, from 27 September to 9 October 2006, the Committee recommends that the State party allow sufficient time and provide all essential procedural guarantees for asylum applicants held in an administrative holding centre, without, however, unduly extending the holding period on that account.

(17)Since issuing its previous observations and recommendations, the Committee remains concerned at the provisions of the Act of 10 December 2003 that introduce the concepts of “internal asylum” and “safe countries of origin”, which do not guarantee absolute protection against the risk of persons being returned to a State where they might be tortured. This is borne out by the absence of precise information regarding the documentary sources used in drawing up the list of “safe countries of origin” or how often the list is updated. Moreover, it is interesting to note that, according to OFPRA, refugee status or subsidiary protection was granted to around 35 per cent of persons from so-called “safe countries of origin” in 2008 (art. 3).

The Committee reiterates its recommendation that the State party take appropriate measures to ensure that applications for asylum by persons from States to which the concepts of “internal asylum” or “safe country of origin” apply are examined with due consideration for the applicant’s personal situation and in full conformity with the provisions of article 3 of the Convention.

(18)The Committee deplores the fact that it has received several documented allegations regarding the return of persons to countries where they risked being subjected to acts of torture or cruel, inhuman or degrading treatment or punishment, and from persons sent back to their country of origin who reported being arrested and subjected to ill-treatment on arrival, in some cases despite interim protection measures ordered by the Committee or the European Court of Human Rights (art. 3).

The Committee reiterates its recommendation that the State party take the necessary steps to guarantee at all times that no person is expelled who is in danger of being subjected to torture if returned to a third State.

Universal jurisdiction

(19)While acknowledging that any person present in French territory who is suspected of having committed acts of torture may be prosecuted and tried in the State party under the French Code of Criminal Procedure, the Committee nevertheless remains concerned about the limitations that the bill imposes on the scope of universal jurisdiction, in particular by introducing a requirement for suspects to be normally resident in France. The Committee is also concerned that the bill to bring French law into line with the Rome Statute of the International Criminal Court is still not on the National Assembly’s agenda for adoption, despite having been adopted by the Senate in June 2008 (arts. 5, 6, 7 and 13).

The Committee reiterates its recommendation that the State party guarantee the right of victims to effective remedy against violation of the Convention, in particular by establishing its jurisdiction over any offence committed by a suspect present in its territory, in accordance with article 5 of the Convention. The Committee further recommends that the normal residence requirement for alleged perpetrators be replaced by a requirement that they be simply present in the territory, in accordance with article 6.

Training of law enforcement officers

(20)The Committee takes note of the information provided by the State party regarding the new initial training curricula for officers and constables, and of the fact that the Prisons Act of 24 November 2009 has introduced a Code of Ethics for the prison service, but it remains concerned at the lack of information received about the content of initial and in-service training on the human rights instruments. The Committee would particularly appreciate details of training protocols and of any subsequent evaluation of the training performed (art. 10).

The Committee would like more information concerning the State party’s evaluation of the training given to police, prison and medical officers, with reference to specific indicators. The Committee also recommends that the Istanbul Protocol (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) be made part of staff training.

The Committee would also like to receive details from the State party of any training given to the private security firms used by the State party, both in its home territory and abroad.

(21)The Committee remains particularly concerned about the persistent allegations that it has received regarding ill-treatment by law enforcement officers of detainees and other persons in their charge (art. 16).

The State party should take steps to ensure that all allegations of ill-treatment at the hands of law enforcement officers are promptly investigated in the course of transparent and independent inquiries, and that the perpetrators receive appropriate punishment.

The Committee would also appreciate information about the Note apparently circulated by the Office of the Inspector-General of the National Police in October 2008 concerning the methods used by law enforcement agencies to restrain suspects or persons against whom removal orders have been issued, which have already resulted in cases of death by asphyxiation (Mohamed Saoud in 1998 and Abdelhakim Ajimi in 2007).

Provisions concerning the custody and treatment of arrested, detained and imprisoned persons

Police custody

(22)The Committee remains concerned about the amendments to the Act of 9 March 2004, which, under the special procedure applicable in cases of terrorism and organized crime, delay access to a lawyer until the 72nd hour of police custody. These provisions are likely to give rise to violations of the terms of article 11 of the Convention, since it is during the first few hours after an arrest that the risk of torture is greatest, particularly when a person is being held incommunicado. The Committee also remains concerned about the frequent use of pretrial detention and the duration of such detention (arts. 2 and 11).

The Committee reiterates its previous recommendation that the State party take appropriate legislative measures to guarantee immediate access to a lawyer during police custody, in accordance with article 11 of the Convention. The Committee further recommends that steps be taken to reduce the use of pretrial detention and the duration of such detention.

Interrogations

(23)While noting with satisfaction that the Act of 5 March 2007 makes video recording of questioning by the police or a judge compulsory, except in cases involving minor offences, the Committee notes that the Act does not apply to persons accused of terrorism or organized crime, failing special authorization by the Public Prosecutor or investigating judge. In addition, the law does not provide for the installation of video surveillance cameras in all areas of police stations and gendarmeries where persons may be held in custody, including passageways (arts. 11 and 16).

The Committee recommends that the State party make video recording of interrogations of all persons questioned a standard procedure, and install video surveillance cameras throughout police stations and gendarmeries in order to extend and strengthen the protection afforded to detainees in police custody.

Prison conditions and criminal policy

(24)The Committee welcomes the creation of the post of Inspector-General of places of deprivation of liberty by the Act of 30 October 2007, as well as the steps taken by the State party to address the critical problem of prison overcrowding, notably by building new prison facilities, including in its overseas territories. The Committee also takes note of the State party’s research into the possibility of wider use of alternative non-custodial measures. However, the Committee is still seriously concerned about the level of prison overcrowding, which, despite significant improvements in certain establishments, remains alarming, especially in the overseas territories. While acknowledging the information provided by the State party in relation to the Ministry of Justice Action Plan of June 2009, the Committee is also concerned about the reported suicide rate, as well as about the frequency of violent incidents among detainees (arts. 11 and 16).

In addition to the necessary enlargement of the prison infrastructure undertaken by the State party, and in the light of the abundant recent criminal legislation aimed at introducing stricter penalties and reducing recidivism, with as a direct corollary increased use of custodial sentences, the Committee invites the State party to carry out a major review of the effects of its recent criminal policy on prison overcrowding, in the light of articles 11 and 16.

In particular, the Committee recommends that the State party aim for wider use of non-custodial measures as an alternative to the prison sentences handed down at present. The Committee further recommends that the State party provide details about specific action taken regularly to implement the recommendations issued by the Inspector-General of places of deprivation of liberty following visits, including in the case of detainees suffering from psychiatric disorders.

Waiting areas

(25)While noting the efforts the State party has made to improve the conditions prevailing in waiting areas, including those at airports, by setting up a ministerial working group to deal with the problems of minors in such waiting areas, the Committee remains deeply concerned about the announcement, in connection with the bill on immigration, integration and nationality of 31 March 2010, that waiting areas will be set up at all the State party’s borders for foreign nationals entering outside a border crossing point, which means that all such waiting persons will fall under a regime devoid of the procedural guarantees applicable outside such areas, notably the right to see a doctor, to speak to a lawyer, and to be assisted by an interpreter (arts. 11 and 16).

The Committee recommends that the State party take steps to ensure that living conditions in waiting areas are in conformity with the requirements of articles 11 and 16 of the Convention, ensuring in particular that minors are shielded from acts of violence by maintaining a strict segregation between minors and adults, and rigorously applying the provisions stipulating that an ad hoc guardian must be assigned to all minors and that any removal proceedings must guarantee their safety, taking account of their vulnerability and with due respect for their person. In addition, the State party is encouraged not to extend the current waiting areas, and to pay particular attention to the implementation and follow-up of the recommendations made by the Inspector-General of places of deprivation of liberty after visits to existing waiting areas.

Suicide in custody

(26)The Committee is deeply concerned by the fact that the State party is described as one of the countries of Europe with the highest number of suicides in prisons. Furthermore, according to the figures provided to the Committee, more than 15 per cent of the prisoners who took their own lives in 2009 were being held in disciplinary blocks at the time (art. 16).

The Committee recommends that the State party take all necessary measures to prevent suicide in custody. In addition, it should, under the supervision of the Public Prosecutor, take steps to ensure that solitary confinement remains an exceptional measure of limited duration, in line with international standards.

Imposition of differing detention regimes

(27)The Committee is concerned to note that the Prison Act of 24 November 2009 appears to give the prison authorities broad discretion, under article 89, to place prisoners under different detention regimes on the basis of a classification according to subjective criteria such as a prisoner’s personality or the danger he might represent. A regime of this kind can by definition lead to arbitrary treatment of prisoners in the course of their sentences. It is possible, for example, to envisage a situation in which a disciplinary punishment or denial of access to certain entitlements while in detention could, if repeated and imposed without due justification or in an arbitrary manner, constitute cruel, inhuman or degrading treatment or punishment under article 16 (art. 16).

The Committee encourages the State party to take appropriate steps to exercise supervision over the discretionary element of the powers vested in the prison authorities, and the corresponding risk of arbitrary action. Such supervision should be exercised through regular visits by existing independent supervisory mechanisms, which should in turn immediately report to the competent judicial authorities any irregularity or practice that could be considered an arbitrary measure, particularly when the measure in question involves solitary confinement.

Body searches

(28)The Committee takes note of the information submitted by the State party to the effect that the current search procedure under the Prisons Act of 24 November 2009 is more restrictive than the previous one. In the light of two judgements of the European Court of Human Rights (in Khider v. France and Frérot v. France), the Committee nevertheless remains concerned at the intrusive and humiliating nature of body searches, especially internal. The Committee is further concerned that the procedure regulating the frequency and methods of searches in prisons and detention centres is determined by the prison authorities themselves. Furthermore, the Committee is concerned at the lack of information available regarding the follow-up to Khider v. France and Frérot v. France, particularly at the lack of indicators allowing an assessment to be made of any future risk of a violation of article 16 occurring as a result of body searches (art. 16).

The Committee recommends that the State party exercise strict supervision of body search procedures, especially full and internal searches, by ensuring that the methods used are the least intrusive and the most respectful of the physical integrity of persons, and in all cases in compliance with the terms of the Convention. The Committee further recommends the implementation of the electronic detection methods announced by the State party, and the widespread use of such mechanisms, in order to eliminate the practice of body searches altogether.

Secure detention

(29)The Committee is deeply concerned about so-called secure detention (rétention de sûreté), established by Act No. 2008-174 of 25 February 2008 on secure detention, and the declaration of exemption from criminal responsibility for reason of mental disorder, and supplemented by Act No. 2010-242 of 10 March 2010, which seeks to reduce the risk of criminal recidivism and establishes various provisions of criminal procedure. Besides the obvious challenge to the principle of legality in criminal proceedings that this measure implies, due to the lack of objectively definable and predictable material criteria, the lack of a causal link between the offence and the possible penalty, and the fact that it can be applied retroactively, the measure, which does not appear to set a time limit on detention, is also likely to raise issues under article 16 (art. 16).

The Committee strongly recommends that the State party consider repealing this provision, which clearly violates the fundamental principle of legality in criminal law, and may potentially conflict with article 16.

Use of conducted energy devices during detention

(30)The Committee is particularly concerned by the State party’s announcement of its decision to test conducted energy devices (tasers) in places of detention. The Committee notes that the Council of State, in a decision of 2 September 2009, repealed the decree of 22 September 2008 authorizing the use of tasers by municipal police officers. The Committee further notes a lack of detailed information on their use, the status of persons who have already used them, and specific precautions, such as training and supervision of staff concerned (arts. 2 and 16).

Reiterating its concern that the use of these weapons may cause severe pain, constituting a form of torture, and in some cases may even lead to death, the Committee would welcome up-to-date information from the State party on the use of this weapon in places of detention.

Impartial investigation

(31)The Committee remains concerned about the system of discretionary prosecution, which allows the State prosecutor to determine whether or not to prosecute the perpetrators of acts of torture and ill-treatment involving law enforcement officers, or even not to order an investigation, which is clearly contrary to article 12 of the Convention. The Committee further notes with concern the lack of specific, up-to-date information that would make it possible to compare the number of complaints received concerning actions by law enforcement officers that are contrary to the Convention and any ensuing criminal justice or disciplinary responses (art. 12).

The Committee reiterates its previous recommendation (CAT/C/FRA/CO/3, para. 20) whereby compliance with the provisions of article 12 of the Convention requires a derogation from the system of discretionary prosecution, so as to oblige the competent authorities to launch impartial inquiries systematically and on their own initiative wherever there are reasonable grounds for believing that an act of torture has been committed in any territory under its jurisdiction, in order to effectively ensure that the perpetrators of such crimes do not remain unpunished.

(32)Apart from the principle of discretionary prosecution vested in the State prosecutor, which limits the possibility of prosecution proprio motu,the Committee is concerned about the consequences of the Léger Report of 1 September 2009, whose findings, if ratified by Parliament, could ultimately lead to the abolition of investigating judges, which would mean that all investigations would be directed by the Public Prosecutor’s Office, with direct consequences for the independence of investigations (arts. 2, 12 and 13).

The Committee invites the State party to take all steps to ensure the independence and integrity of judicial proceedings, and of investigations by existing independent supervisory mechanisms, in particular by permitting direct referral and providing them with the means to carry out their supervisory mission independently, impartially and transparently.

Right of complaint

(33)The Committee remains concerned about the way cases are referred to the National Commission on Security Ethics (CNDS), which cannot accept complaints directly from a person who has been subjected to torture or cruel, inhuman or degrading treatment, but only through a member of Parliament, the Prime Minister or the Children’s Ombudsman (art. 13).

The Committee recommends that the State party take steps to allow the National Commission on Security Ethics to accept complaints directly from anyone claiming to have been subjected to torture or cruel, inhuman or degrading treatment in any territory under its jurisdiction, in accordance with article 13 of the Convention.

(34)The Committee is concerned about the consequences, as part of the constitutional reform of 2008, of establishing a “Defender of Rights” (Défenseur des droits) combining, according to the draft constituting legislation, the mandates of the Ombudsman of the Republic, the Children’s Ombudsman and the National Commission on Security Ethics. The plan also appears to include the eventual disappearance of the Inspector-General of places of deprivation of liberty, whose functions could also be incorporated into the new institution (art. 13).

The Committee invites the State party to take all necessary measures to ensure the effective and uninterrupted functioning of the supervisory mechanism established under the Optional Protocol to the Convention (i.e. the Inspector-General of places of deprivation of liberty) and of other complementary independent bodies, which, in addition to their mediating role, have an essential part to play in monitoring rights, thereby ensuring the implementation of the Convention, each in their particular field of expertise.

Interim measures of protection

(35)The Committee is concerned that the State party considers that it is not required to respond to requests for interim measures made by the Committee (with reference to communications Nos. 195/2002, Brada v. France (17 May 2005) and 300/2006, Tebourski v. France (1 May 2007)).

Recalling that rule 108 of the Committee’s rules of procedure is specifically intended to give meaning and scope to articles 3 and 22 of the Convention, which otherwise would offer asylum-seekers alleging a serious risk of torture only theoretical protection, the Committee urges the State party to review its policy in this respect, by considering requests for interim measures in good faith and in accordance with its obligations under articles 3 and 22 of the Convention.

Human trafficking

(36)The Committee is concerned at the lack of information provided by the State party regarding the problems of human trafficking and sexual exploitation. The Committee has not yet been adequately informed regarding the prevalence of these practices, nor regarding the measures taken by the State party to combat the trafficking of women and children on its territory (arts. 2 and 16).

The Committee recommends that the State party adopt a national plan aimed at combating the trafficking of women and children in all its forms, which would include both measures of criminal justice concerning the prosecution of traffickers and measures for the protection and rehabilitation of victims. The Committee recommends to that end that the State party strengthen its international cooperation with the countries of origin, trafficking and transit, and see to the allocation of sufficient resources for policies and programmes in this area. The Committee also recommends that the State party keep it informed of developments in this respect.

(37)The Committee recommends that the State party include in its next periodic report data disaggregated by age, gender and ethnicity on:

(a)The number of complaints received containing allegations of torture or cruel, inhuman or degrading treatment;

(b)The corresponding number of investigations, prosecutions and convictions for acts of torture or ill-treatment that have occurred since the last report was submitted to the Committee.

(38)While taking note that defendants have the right to lodge a complaint themselves against what they consider to be libellous or defamatory complaints, the Committee would also welcome data on the specific measures taken by the State party to protect persons who report violence by law enforcement officials against acts of intimidation, particularly in the form of complaints for defamation or possible reprisals.

(39)The Committee would further welcome information concerning the implementation of the Convention in territories where its armed forces are deployed.

(40)The Committee recommends that the State party widely disseminate the Committee’s conclusions and recommendations throughout its territory, in all appropriate languages, through official websites, the press and non-governmental organizations.

(41)The Committee invites the State party to update its core document dated 7 October 1996 (HRI/CORE/1/Add.17/Rev.1), following the harmonized reporting guidelines recently approved by the international human rights treaty monitoring bodies (HRI/GEN/2/Rev.6).

(42)The Committee requests the State party to provide, within one year, information on its implementation of the Committee’s recommendations contained in paragraphs 14, 21, 24, 28, 30 and 36 above.

(43)The State party is invited to submit its seventh periodic report by 14 May 2014.

60. Jordan

(1)The Committee considered the second periodic report of Jordan (CAT/C/JOR/2) at its 932nd and 934th meetings (CAT/C/SR.932 and 934), held on 29 and 30 April 2010, and adopted, at its 947th and 948th meetings (CAT/C/SR.947 and 948), the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the second periodic report of Jordan, which, while generally following the Committee’s guidelines for reporting, lacks statistical and practical information on the implementation of the provisions of the Convention and relevant domestic legislation. The Committee regrets that the report was submitted 13 years late, which has prevented the Committee from conducting an ongoing analysis of the implementation of the Convention in the State party.

(3)The Committee expresses its appreciation for the extensive written responses to its list of issues (CAT/C/JOR/Q/2/Add.1), which provided important additional information, and the information about the range of Jordanian institutions that participated in the preparation of the report. The Committee also appreciates the dialogue with and the additional oral information provided by the delegation of the State party. The Committee regrets that the delegation did not include representatives of the General Intelligence Directorate who had also been involved in the preparation of the report.

B. Positive aspects

(4)The Committee 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)United Nations Convention against Transnational Organized Crime, in May 2009, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention, in June 2009;

(b)Convention on the Rights of Persons with Disabilities, in March 2008;

(c)Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, in May 2007;

(d)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in December 2006; and

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

(5)The Committee 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:

(a)The establishment, in 2003, of the National Centre for Human Rights of Jordan as an independent national human rights institution;

(b)The establishment, in 2008, of the Ombudsman’s Bureau as an independent body with a mandate to receive complaints as of 1 February 2009;

(c)The adoption by the Government of Jordan, in 2007, of the comprehensive plan for the development and modernization of correctional facilities and rehabilitation centresas well as the closing of the Al-Jafr Correction and Rehabilitation Center in December 2006;

(d)Governmental support to the implementation of the Karama Project, in cooperation with civil society actors: the overall objectives of the Project are elimination of the use of torture and ill-treatment, the criminalization of such acts and the investigation, prosecution and punishment of such acts according to the international legal obligations of Jordan; and

(e) The establishment of an “Integrated Services and Family Justice Centre” within the Dar Al-Wifaq Women’s Shelter.

(6)The Committee notes with appreciation the information provided by the delegation that the death penalty has not been applied in the State party since March 2006.

C. Principal subjects of concern and recommendations

Incorporation of the Convention into domestic law

(7)The Committee notes with appreciation that the Convention was published in the Official Gazette in 2006, thereby rendering the Convention part of the national legislation and thus enforceable in national courts. However, referring to its previous concluding observations (A/50/44, para. 165), the Committee regrets that, although the State party has been party to the Convention since 1991, the State party representatives acknowledged that it had not been in effect domestically until its publication (arts. 2 and 10).

For the purposes of ensuring that incorporation of the Convention takes place and preventing conduct in contradiction to the Convention, the State party should provide extensive training to its State authorities, law enforcement and other relevant officials and the judiciary to make them fully aware of the provisions of the Convention.

Overarching considerations regarding implementation

(8)Despite the Committee’s requests for specific statistical information in the list of issues 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, security, intelligence and prison personnel, or on administrative detention, trafficking, ill-treatment of migrant workers 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, administrative detention, trafficking, ill-treatment of migrant workers 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 that have been submitted since 1995, the date of the consideration of the previous State party’s report.

Definition and criminalization of torture

(9)While noting that a definition of torture has been included in article 208 of the Penal Code, the Committee regrets that Chapter Two of the Jordanian Constitution which provides for “Rights and Duties of Jordanians” does not contain a specific prohibition of torture and other forms of ill-treatment or punishment. The Committee is also concerned that article 208 refers to “any type of torture impermissible according to law” which implies the existence of forms or instances of torture that are permitted by law.The Committee is further concerned that torture is not treated as a serious crime but rather as a misdemeanour, and is not subject to penalties appropriate to its gravity (between six months’ and three years’ imprisonment). The Committee regrets the absence of a provision in the Penal Code that would exclude the crime of torture from statutes of limitations and it is concerned that statutes of limitations applicable to provisions of the Penal Code may prevent investigation, prosecution and punishment of these grave crimes (arts. 1 and 4).

The State party should incorporate the prohibition of torture into the Constitution to show a real and important recognition of torture as a serious crime and human rights abuse and to 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 State party should also ensure that perpetrators are prosecuted and convicted in accordance with the gravity of the acts, as required by article 4 of the Convention. To this end, the State party should amend its Penal Code to increase the penalties, as appropriate.

The State Party should further review its rules and provisions on the statute of limitations and bring them fully in line with its obligations under the Convention so that acts of torture, attempts to commit torture, and acts by any person which constitute complicity or participation in torture, can be investigated, prosecuted and punished without time limitations.

Impunity for acts of torture and ill-treatment

(10)The Committee is deeply concerned by the numerous, consistent and credible allegations of a widespread and routine practice of torture and ill-treatment of detainees in detention facilities, including facilities under the control of the General Intelligence Directorate and the Criminal Investigations Department. The Committee is further 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. The Committee is particularly concerned that, while no official has ever been prosecuted for having committed torture under article 208 of the Penal Code, there have been prosecutions under article 37 of the Public Security Law of 1965 as the lex specialis, calling solely for disciplinary action. The Committee is further concerned that article 61 of the Penal Code stipulates that a person shall bear no criminal responsibility for acts performed in accordance with orders given by someone of higher rank (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 throughout the country, including announcement of a policy that would produce measurable results in the eradication of torture and ill-treatment by State officials.

The State party should ensure that all allegations of torture and ill-treatment 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.

Furthermore, the State party should amend its legislation in order to explicitly provide that an order from a superior officer or a public authority may not be invoked as a justification of torture.

Complaints and prompt and impartial investigations

(11)The Committee expresses its concern at the high number of complaints of torture and ill-treatment by law enforcement, security, intelligence and prison officials, the limited number of investigations carried out by the State party in such cases, and the very limited number of convictions in those cases which are investigated. Additionally, the Committee is concerned that the existing investigative bodies lack the necessary independence to review individual complaints about misconduct committed by security officials. The Committee also regrets the lack of detailed information, 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 (arts. 11, 12 and 16).

The State party should strengthen its measures to ensure prompt, thorough, impartial and effective investigations into all allegations of torture and ill-treatment of convicted prisoners and detainees and to bring to justice law enforcement, security, intelligence and prison officials who carried out, ordered or acquiesced in such practices. In particular, such investigations should be undertaken by an independent 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.

The State party should prosecute the perpetrators and impose appropriate sentences on those convicted in order to ensure that State officials who are responsible for violations prohibited by the Convention are held accountable.

Fundamental legal safeguards

(12)The Committee expresses its serious concern at the State party’s failure in practice to afford all detainees, including detainees held in facilities of the General Intelligence Directorate and the Public Security Department, 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, 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 before a judge within a time limit in accordance with international standards.The Committee is particularly concerned that an arrested person does not have the right to a lawyer from the moment of arrest, and especially during the initial stage between arrest and being presented to the prosecutor, and that articles 63, paragraph 2, and 64 of the Code of Criminal Procedure allow prosecutors exceptionally to interrogate detainees without lawyers in “cases of urgency”.The Committee is further concerned that meetings between lawyers and clients reportedly take place in the presence of numerous other persons and attorneys (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. These include, in particular, the right to have prompt access to a lawyer and an independent medical examination, 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 State party should also take effective measures to ensure that “lawyers’ rooms” provide for the confidentiality of client-lawyer consultations.

Administrative detention

(13)According to the State party’s report (para. 45), the Government has instructed administrative court judges to end the practice of administrative detention and a large number of persons have been released. However, the Committee expresses its grave concern at the continued practice of administrative detention (according to the replies to the lists of issues, more than 20,000 persons were held in such detention in 2006 and this was reduced to approximately 16,000). The Committee is particularly concerned that the Crime Prevention Act of 1954 provides for administrative governors affiliated with the Ministry of Interior to detain any person suspected of perpetrating a crime or any person considered a threat to the community for a period of one year, renewable indefinitely. The Committee is also concerned that the Code of Criminal Procedures currently allows arrest and detention without explicit legal grounds, as well as arrest without objective supportive grounds (arts. 2, 11 and 16).

Since administrative detention puts detainees beyond judicial control and hence at risk of measures in contravention of the Convention, the Committee urges the State party to take all appropriate measures to abolish the practice of administrative detention. The State party should amend the domestic laws cited above to bring them into conformity with international human rights standards and the State party’s obligations under the Convention.

Special court system

(14)The Committee expresses its grave concern at the special court system within the security services, including the State Security Court, the Special Police Court and the Military Tribunal of the General Intelligence Directorate, which have reportedly shielded military and security personnel alleged to be responsible for human rights violations from legal accountability. The Committee is concerned that transparency, independence and impartiality are jeopardized by this system and that the procedures in the special courts are not always consistent with fair trial standards (arts. 2 and 12).

With reference to its previous recommendation (A/50/44, para. 175), the Committee calls on the State party to take immediate steps to ensure that the functioning of the State Security Court and other special courts are brought into full conformity with the provisions of the Convention and international standards for courts of law and, in particular, that accused persons are granted the right to appeal against decisions of the Court; alternatively, the State party should abolish such special courts.

Monitoring and inspection of places of detention

(15)The Committee appreciates the information from the representatives of the State party that a number of bodies, including the National Centre for Human Rights, the Grievances and Human Rights Office of the Public Security Department, some international non-governmental organizations (NGOs) and the International Committee of the Red Cross perform periodic and regular visits to investigation and detention centres and rehabilitation facilities. However, it is concerned at the lack of systematic and effective monitoring and inspection of all places of detention, especially the facilities of the General Intelligence Directorate, and is concerned that visits to such places by national monitors, including the National Centre for Human Rights, have to be announced and carried out in response to prior requests, often accompanied by representatives of the Public Security Department following the memorandum of understanding concluded between the two institutions in March 2009. The Committee is also concerned that the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment was reportedly denied access to such facilities during his visit to Jordan in June 2006 (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 the facilities of the General Intelligence Directorate, and follow up to ensure systematic monitoring. This system should include regular and unannounced visits by national and international monitors, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

General Intelligence Directorate

(16)Further to the Committee’s previous concluding observations (A/50/44, para. 168), it expresses its concern at reports of torture and ill-treatment in the facilities of the General Intelligence Directorate and remains concerned that the General Intelligence Directorate continues to detain suspects arbitrarily and incommunicado, often for prolonged periods of time, and that detainees are reportedly deprived of access to judges, lawyers or doctors (arts. 2, 11 and 16).

The Committee calls upon the State party to place all State security departments, and primarily the General Intelligence Department, under civilian authority and oversight, to establish an independent audit of these services, to limit the powers of the Directorate and to ensure separation of powers, in law and practice, between the authorities responsible for detention of suspects and those responsible for preliminary investigations.

Anti-terrorism measures

(17)Recalling the absolute prohibition of torture, the Committee is concerned that the Prevention of Terrorism Act 2006 has a vague and overly broad definition of “terrorist activities”. It is also concerned at the reported enhancement of the already excessive powers of the security officers (arts. 2 and 16).

The Committee recalls that no exceptional circumstances whatsoever can be invoked as a justification for torture and, in accordance with relevant Security Council and other resolutions, anti-terrorism measures must be implemented with full respect for international human rights law. To this end, the State party should review the Prevention of Terrorism Act 2006 and amend it, as necessary, to bring it into conformity with international human rights standards.

Impunity for crimes committed in the name of honour, and rape

(18)The Committee notes with concern that violence against women, as a form of discrimination against women, is a deeply rooted problem in Jordan and, as a result, a culture of impunity towards domestic and gender-based violence has evolved. In this respect, the Committee expresses its serious concern that crimes, where a family’s “honour” is thought to be breached, often go unpunished, and when they are punished, the sentences are far less than for equally violent crimes without this “honour” dimension (arts. 1, 2, 4, 13 and 16).

The Committee calls upon the State party to amend, without delay, applicable provisions of the Penal Code to ensure that perpetrators of “honour” crimes do not benefit from a reduction of penalty under article 340; that perpetrators of premeditated “honour” crimes do not benefit from a reduction of penalty under article 98; and that article 99 is not applicable to “honour” crimes or other cases where the victim is related to the perpetrator. The Committee also urges the State party to ensure that “honour” crimes are treated as seriously as other violent crimes with regard to investigation and prosecution, and that effective prevention efforts are put in place.

(19)While noting information provided by the delegation that the State party is currently reviewing this issue, the Committee is gravely concerned at the practice of allowing perpetrators of rape to escape prosecution by marrying their victims (art. 308 of the Penal Code), or allowing families to waive their “right to complain” (arts. 1, 2, 4, 13 and 16).

Recalling that numerous international judicial and quasi-judicial bodies have established that rape is a form of torture, the Committee calls upon the State party to withdraw the exculpatory provision in article 308 of the Penal Code and ensure that a rapist does not escape punishment by marrying his victim.

Domestic violence

(20)Notwithstanding the adoption, in January 2009, of the new Protection from Family Violence Act, the Committee is concerned that the law fails to explicitly criminalize domestic violence or provide adequately for the prosecution of those who perpetrate it. According to the replies to the list of issues, the question of criminalization is left to the Penal Code. The Committee is also concerned that the new Law has a limited scope as it specifies as a condition that the perpetrator lives with the victim in the family home. The Committee further expresses its concern at the lack of data, including statistics on complaints, prosecutions and sentences related to domestic violence (arts. 1, 2, 4, 12 and 16).

The State party should strengthen its efforts to prevent and combat violence against women and children, to ensure prompt, impartial and effective investigations of such acts and to prosecute and punish perpetrators. The State party is encouraged to participate directly in rehabilitation and legal assistance programmes and to conduct broader awareness-raising campaigns for officials (judges, law officers, law enforcement agents and welfare workers) who are in direct contact with the victims.

The State party should also strengthen its efforts in respect of research and data collection on the extent of domestic violence and it is requested to provide the Committee with statistical data on complaints, prosecutions and sentences in its next periodic report.

Protective custody

(21)The Committee notes with concern that the Suppression of Offences Act of 1954 authorizes “protective custody” for women at risk of violence, which according to reports is akin to administrative detention, and that some women are still retained in such custody (arts. 2, 11 and 16).

The Committee urges the State party to replace the practice of “protective custody” with other measures that ensure the protection of women without jeopardizing their liberty, and to accordingly transfer all women currently held in “protective custody” to other safe and rehabilitative shelters. To this end, the Committee encourages the State party to adopt a national plan for the protection of women in danger.

Trafficking

(22)While welcoming the adoption, in 2009, of the Human Trafficking Prohibition Act No. 9 which criminalizes all forms of human trafficking, the Committee expresses its concern at reports of traffickingin women and children for sexual and other exploitative purposes. The Committee 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 adopted to prevent and combat such phenomena (arts. 1, 2, 4, 12 and 16).

The State party should increase its efforts to prevent and combat trafficking of women and children, including by implementing the current laws combating trafficking, providing protection for victims and ensuring their access to medical, social, rehabilitative and legal services, including counseling services, as appropriate. The State party should also create adequate conditions for victims to exercise their right to make complaints, should conduct prompt, impartial and effective investigations into all allegations of trafficking and should ensure that perpetrators are brought to justice and punished with penalties appropriate to the nature of their crimes.

Refugees, violations of article 3 and lack of investigations

(23)The Committee regrets the absence of domestic legislation in the State party that guarantees the rights of refugees and asylum-seeking persons. The Committee expresses its concern at the absence of legal provisions, including in the Fugitive Offenders Act of 1927 or the Residence Alien Affairs Act No. 2 of 1973 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 also concerned at reports that 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 those of Maher Arar, Mohamed Farag Bashamilah and Salah Naser Salem Ali Darwish. The Committee is further concerned at reports that the cooperation of Jordan with other Governments in the context of the “war on terror” has resulted in additional human rights violations, including secret detentions and renditions of terrorism suspects, in breach of the Convention. In this respect, the Committee regrets the lack of information as to whether the State party is considering the establishment of an independent investigation to follow up on such allegations (arts. 3, 12 and 13).

The State party should formulate and adopt domestic legislation guaranteeing the rights of refugees and asylum-seeking persons. The State party should also formulate and adopt a legal provision 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. Furthermore, the State party should establish an independent investigation to review and follow up on allegations of its involvement in “extraordinary renditions” and inform the Committee of the outcome of such investigation.

Withdrawal of nationality

(24)While acknowledging that more than 200,000 Palestinian refugees have been granted Jordanian citizenship, the Committee expresses its concern at the reported withdrawal of nationality from more than 2,700 Jordanians of Palestinian origin. Notwithstanding the explanation provided by the delegation and its statement that such allegations are a gross distortion of facts and numbers, the Committee notes with concern that such withdrawal is conducted in an arbitrary and random manner, with no clear basis in law, thereby denying such persons basic citizenship rights and putting them at risk of expulsion without the guarantees pursuant to article 3 of the Convention (arts. 3 and 16).

The Committee calls upon the State party to put an end to its arbitrary withdrawal of nationality from Jordanians of Palestinian origin.

Human rights defenders

(25)The Committee notes with concern reports of threats against and harassment and intimidation of persons monitoring human rights in the State party and is concerned that this may hinder the operation and activities of civil-society monitoring groups and thus their capacity to function effectively (arts. 2, 12 and 16).

The State party should take all necessary steps to ensure that all persons, including those monitoring human rights, are protected from any intimidation or violence as a result of their activities and exercise of human rights guarantees, to ensure the prompt, impartial and effective investigation of such acts, and to prosecute and punish perpetrators.

Children in detention

(26)The Committee welcomes the efforts made by the State party to reform its juvenile justice system. However, the Committee notes with concern that, despite the information provided that the provisions of the Juvenile Act are being amended to raise the age of criminal responsibility to 12 years, the minimum age of criminal responsibility (7 years) remains below international standards, and there is a lack of alternatives to imprisonment. Furthermore, the Committee notes with concern that a juvenile who commits a crime with an adult is tried before the court competent to hear the charges against the adult (arts. 2, 11 and 16).

The State party should, as a matter of urgency, raise the minimum age of criminal responsibility in order to bring it into line with generally accepted international standards. The State party should also 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. Furthermore, the State party should ensure that juveniles are tried before juvenile courts.

Conditions of detention

(27)While noting that prison and detention centre conditions have improved, including in the context of the Government’s comprehensive plan for the development and modernization of correctional facilities and rehabilitation centres, the Committee remains concerned at continued reports of overcrowding, understaffing, inadequate food and health care, and ineffective pre-release and post-release programmes (arts. 11 and 16).

The State party should continue to take effective measures to improve conditions in places of detention and to reduce overcrowding in such places, including through the application of alternative measures to imprisonment.

Training

(28)The Committee takes note of the information included in the State party’s report on training and awareness-raising programmes. However, the Committee regrets the lack of information on targeted training for security and intelligence personnel, judges, prosecutors, forensic doctors and medical personnel dealing with detained persons, including methods to document the physical and psychological sequelae of torture (art. 10).

The State party should further develop and strengthen educational programmes to ensure that all officials, including law enforcement, security, intelligence and prison officials, are fully aware of the provisions of the Convention, that reported breaches will not be tolerated and will be investigated, and that offenders will be prosecuted. Furthermore, all relevant personnel should receive specific training on how to identify signs of torture and ill-treatment, including those that 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 assess the effectiveness and impact of such training/educational programmes.

Redress, including compensation and rehabilitation

(29)While noting that plaintiffs are entitled to seek damages for any injury suffered in accordance with article 256 of the Civil Code, the Committee is concerned that Jordanian law does not include explicit provisions on the right of torture victims to fair and adequate compensation for damages caused by torture and that information is lacking on any treatment and social rehabilitation services, including medical and psychosocial rehabilitation, provided to these 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. To this end, the State party should amend its legislation to include explicit provisions on the right of torture victims to fair and adequate compensation for damages caused by torture. 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, 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 any on-going reparation programmes.

Coerced confessions

(30)While noting the existence of article 159 of the Criminal Procedure Code which does not refer explicitly to torture, 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 (art. 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.

Women migrant domestic workers

(31)The Committee notes the establishment, in 2006, of the Directorate of Domestic Workers, to monitor and regulate the practices of employment agencies. However, it expresses its concern at reports referring to widespread abuse of women migrant domestic workers, of which the vast majority is from South and South-East Asia, and against whom physical, psychological and sexual abuse is common (arts. 13 and 16).

The State party should strengthen its measures to prevent violence and abuse directed against women migrant domestic workers in the State party by ensuring their right to lodge complaints against those responsible, and by ensuring that such cases are reviewed and adjudicated in a prompt and impartial manner by a competent oversight mechanism and that all employers and representatives of employment agencies who abuse migrant domestic workers are brought to justice.

(32)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.

(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 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.

(35)The Committee invites the State party to submit its core document in accordance with the requirements of the common core document in the harmonized guidelines on reporting, as approved by the international human rights treaty bodies and contained in document HRI/GEN/2/Rev.6.

(36)The State party is encouraged to disseminate widely the reports submitted by Jordan to the Committee and these concluding observations, in appropriate languages, through official websites, the media and non‑governmental organizations.

(37)The Committee requests the State party to provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 10, 11, 18 and 31 above.

(38)The State party is invited to submit its third periodic report by 14 May 2014.

61. Liechtenstein

(1)The Committee against Torture considered the third periodic report of Liechtenstein (CAT/C/LIE/3 and Corr.1) at its 938th and 941st meetings (CAT/C/SR.938 and 941), held on 4 and 5 May 2010, and adopted, at its 948th meeting (CAT/C/SR.948), the following concluding observations as set out below.

A. Introduction

(2)The Committee welcomes the third periodic report of Liechtenstein which was submitted, with some delay, and which follows in general terms the Committee’s guidelines on the form and content of periodic reports. The Committee expresses its appreciation for the comprehensive written replies to the list of issues which provided important additional information and for with the provision of a translation of the 2009 annual report of the national preventive mechanism in due time for the consideration of the report.

(3) The Committee expresses its appreciation for the frank, constructive and fruitful dialogue held with the delegation of the State party, as well as for their extensive and precise replies provided orally and in writing in response to the questions and concerns expressed by the Committee.

B. Positive aspects

(4)The Committee takes note with satisfaction the ratification by the State party of the following international human rights instruments during the reporting period:

(a)Optional Protocol to the Convention against Torture in 2006;

(b)International Convention on the Elimination of All Forms of Racial Discrimination in 2000;

(c)Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women in 2001;

(d)1954 Convention relating to the Status of Stateless Persons in 2009;

(e)1961 Convention on the Reduction of Statelessness in 2009.

(5)The Committee notes with satisfaction:

(a)The complete revision of the Execution of Sentences Act of 20 September 2007, which, inter alia, strengthens the legal safeguards relating to the right of sentenced prisoners to have access to a medical doctor;

(b)The establishment, under the revised Execution of Sentences Act (2007), in December 2007 of the Corrections Commission, which is also designated as the national preventive mechanism of the State party pursuant to its ratification of the Optional Protocol, and the active role of the State party in the drafting of the Protocol;

(c)The entry into force of the amended Code of Criminal Procedure on 1 January 2008 which, inter alia, guarantees the rights of all apprehended persons to inform a relative or another person of trust and a defence lawyer of their arrest and to remain silent.

(6)The Committee further notes with satisfaction:

(a)The establishment of the Equal Opportunities Commission with its operational Office of Equal Opportunities, the Ombuds Office for Children and Young People and the Victims Assistance Office;

(b)The support by the State party to United Nations mechanisms established to prevent and eradicate torture and other forms of ill-treatment, including its increased contribution to the United Nations Voluntary Fund for Victims of Torture and its support to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

C. Principal subjects of concern and recommendations

Definition and offence of torture

(7)The Committee notes with satisfaction the constitutional amendments of 2003, according to which the prohibition of torture and inhuman treatment is an absolute prohibition and may not be undermined either by law or by emergency decree (art. 10, para. 2, of the Constitution) and of 2005, which prohibits “inhuman or degrading treatment or punishment” (27bis of the Constitution). The Committee also recognizes that, according to the monist legal system of the State party, the provisions of the Convention have become part of the domestic law as from the date of ratification. Notwithstanding these provisions, the Committee firmly believes that the incorporation into the domestic law of the State party of a distinct crime of torture based on the definition of article 1 of the Convention would directly advance the Convention’s overarching aim of preventing torture or ill-treatment (arts. 1 and 4).

The Committee recommends that the State party incorporate into its domestic criminal law a distinct crime of torture in strict conformity with article 1 of the Convention. 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 of torture.

Appropriate penalties

(8)The Committee, recalling that penalties that are commensurate with the gravity of the crime of torture are indispensable in order to have a successful deterrent effect, considers that the current criminal provisions of the State party under which acts of torture are prosecuted (two years’ imprisonment in the case of torment and neglect of a prisoner, (art. 312 of the Criminal Code) and up to five years in the case of bodily injury (arts. 83–85 of the Criminal Code) provide for very lenient punishment. The Committee reminds the State party that, in accordance with the Convention, each State party should make these offences punishable by appropriate penalties which take into account their grave nature (art. 4).

The State party should make the offences that amount to acts of torture punishable by appropriate penalties which take into account their grave nature, in accordance with article 4 of the Convention.

Statute of limitations

(9)The Committee is also concerned that, as a result of criminalizing acts of torture pursuant to articles 83–85 and 312 of the Criminal Code, the statute of limitations with respect to offences that would amount to torture is limited to five years. In this respect, the Committee is concerned that the State party does not intend to amend the Criminal Code “so as to eliminate the statute of limitations applicable to cases of torture”. No justification for imposing time limits on the obligation of the State party to investigate and prosecute crimes of torture, including the lack of court decisions as referred to in the State party’s written reply, is acceptable (arts. 2, 4 and 12).

The State party should ensure that acts amounting to torture are not subject to any statute of limitations.

Fundamental safeguards

The right to have access to a medical doctor

(10)The Committee welcomes the new Execution of Sentences Act which, inter alia, guarantees the right of sentenced prisoners to be examined by a doctor upon admission or as soon as possible thereafter. The Committee is concerned, however, that the same right is not legally guaranteed to all persons deprived of their liberty as from the very outset of their detention. In this context, the Committee regrets that the new Public Health Act no longer contains an explicit provision regarding access to a doctor during police custody (former section 7a, para. 3 (b)) and that it is not clearly guaranteed by either the Criminal Code or the Code of Criminal Procedure. Also, while appreciating that the handouts of legal instructions on legal safeguards provided by the National Police to persons deprived of their liberty provide for the exercise of the right to access to a doctor as from the very outset of their detention, the Committee is concerned that the legal handouts to foreign nationals do not explicitly provide this right (arts. 2 and 11).

The State party should ensure that the right of all persons deprived of their liberty, including foreign nationals, to have access to an independent doctor, if possible of their own choice, as from the very outset of their detention, is explicitly guaranteed in its domestic law.

Right to have access to a lawyer and to inform relatives

(11)The Committee notes with appreciation that, pursuant to the revision of the Code of Criminal Procedures, “all apprehended persons” are legally guaranteed the right to have access to a defence lawyer and to inform a relative or another person of trust of their arrest “at the time of apprehension or immediately thereafter” (art. 128a). Noting its restrictions during interrogations, the Committee welcomes information by the State party that the Code of Criminal Procedure is under complete revision and will stipulate that any person being interviewed or interrogated by the police will have the right to have a lawyer present during the first police investigation. However, the Committee is concerned that, at present, the legal instructions handed out to foreign nationals provide the arrested person with the choice between the right to inform either a family member or a lawyer (arts. 2, 11 and 12).

The State party should ensure the inclusion in the revised Code of Criminal Procedure the right of all persons deprived of their liberty to have access to a lawyer as from the very outset of their deprivation of liberty, without any restrictions. The legal instructions handed out to foreign nationals upon their arrest should be redrafted so as to guarantee in practice both the right to have access to a lawyer and to inform a family member.

Separation of responsibilities between corrections and investigations authorities

(12)The Committee notes with concern the lack of separation of competencies between the Ministry of Justice and the Ministry of Home Affairs in the correctional system of the State party, and, as noted by the Corrections Commission, “the continuing competence and organizational influence of the police authorities with regard to the field of corrections”. The Committee notes with appreciation, however, that the recommendation of the Corrections Commission to this effect is currently examined in the light of expert advice from Austria (art. 2).

The State party should ensure full and exclusive competence by the Ministry of Justice over the correctional system of the State party, as recommended by the Corrections Commission in 2008 and 2009.

Legal status, mandate and composition of the national preventive mechanism

(13)The Committee welcomes the establishment of the Corrections Commission as the national preventive mechanism of the State party, which became operational in 2008. The Committee notes with appreciation reports on the existence of very good collaboration between the authorities and the Corrections Commission during its visits to Vaduz National Prison in 2009, the State party’s efforts to follow up and make public its recommendations, including the translation of its Annual Report 2009 into English. While noting the direct applicability of the Optional Protocol in the State party, the Committee is nevertheless concerned that the mandate of the Corrections Commission as the State party’s national preventive mechanism is not specified in the Execution of Sentences Act which still determines the number of visits that the Corrections Commission can carry out on an annual basis without notice. In addition, the Committee is concerned that article 17, paragraph 3, of the Execution of Sentences Act relating to the composition of the Corrections Commission, according to which at least two out of the five members should not be in the service of the National Public Administration, may compromise its independence (art. 2).

The State party should amend the Execution of Sentences Act with a view to ensuring that the mandate and powers of the Corrections Commission as the national preventive mechanism of the State party are clearly specified in law in accordance with articles 17 to 23 of the Optional Protocol to the Convention. In this respect, attention should be paid to article 18, paragraph 4, of the Optional Protocol which calls upon States parties to give due consideration to the Paris Principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights and to the importance of a public, inclusive and transparent process in the appointment of its members.

Non-refoulement, rights of refuges and asylum-seekers

(14)The Committee notes the significant increase in the number of asylum applications in the State party during recent years, from an annual average of 66 applications (2004–2008) to 294 applicants in 2009. The Committee is particularly concerned about information received that asylum-seekers may not always have an opportunity to have their claim examined in substance. In this respect, the Committee notes with particular concern that the majority of asylum applications rejected, or otherwise closed, in 2009 concern two States where the risk of torture or other forms of ill-treatment can be considered substantial. The Committee is also concerned at reports that Government officials exert pressure on asylum-seekers to leave voluntarily the State party, including by offering monetary rewards (art. 3).

(15)Noting that “preventive expulsion” to a “safe third country” is contingent,inter alia, on that State’s treaty obligation to consider the asylum request and the principle of non-refoulement, the Committee is concerned at reports that not all persons that have applied for asylum in Liechtenstein have had the opportunity to apply for asylum in the third State concerned (usually Switzerland and Austria), thus leaving such persons without sufficient safeguards against refoulement. In this respect, the Committee notes with concern the very short time period (24 hours) within which asylum-seekers “under preventive expulsion” may submit a request for restoration of the suspensive effect to competent authorities (art. 3).

In order to fulfil its obligations under article 3 of the Convention, the Committee recommends that the State party:

(a) Ensure a substantive assessment and review on the merits of all asylum applications, including those submitted in 2009;

(b) Increase the time limit within which asylum-seekers under “preventive expulsion” may apply for restoration of the suspensive effect of the order and also guarantees their right to a proper hearing before the Administrative Court in cases of appeals on rejected requests for suspensive effect so as to ensure that those who are returned to “safe third countries” pursuant to “preventive expulsion” are guaranteed access to the asylum procedure in these States;

(c) Investigate allegations of payments by Government officials to asylum-seekers to persuade them to leave the State party in order to avoid having to undertake an in-depth assessment of the respective asylum application;

(d) Establish an effective data collection system which identifies: (i) the grounds for asylum requests, including requests that were based on the applicant’s fear of being subjected to torture or other forms of ill-treatment, and the number of approved requests in those cases; (ii) the number and outcome of appeals of rejected requests; and (iii) the number of approved asylum and long-term resident requests that were granted on the basis of the Convention.

(16)While noting information from the State party that asylum-seekers are detained while undergoing deportation proceedings if they absconded in another country during pending proceedings and/or if they claim a false identity, the Committee is concerned at information that asylum-seekers have been held in detention solely on the basis of their illegal entry into the State party. While appreciating information that asylum-seekers held in administrative detention are offered legal counsel by the State party free of charge, the Committee is concerned at information received that such persons have had difficulties in contacting a lawyer and receiving legal aid (arts. 3, 11 and 16).

The State party should ensure that detention of asylum-seekers is only used as a last resort for as short a time as possible in accordance with article 31 of the 1951 Convention relating to the Status of Refugees and that all asylum-seekers held in administrative detention have access to a lawyer and free legal aid.

(17)The Committee notes with concern that the period of administrative detention to prepare or ensure deportation may be extended up to nine months and, in the case of minors between 15 and 18, up to six months (arts. 3, 11 and 16).

The State party should consider reducing the permissible length of administrative detention in preparation for deportation, in particular for children under the age of 18 years. The State party is strongly recommended to do so in the framework of its revision of the Asylum Act and the Foreigners Act.

Asylum-seekers’ accommodation

(18)The Committee is concerned at information that, due to limited reception capacity (60 persons) of the Liechtenstein Centre for Refugees coupled with the sudden increase of asylum-seekers in 2009, asylum-seekers have been accommodated in underground shelters/bunkers deprived of daylight (arts. 3, 11 and 16).

The State party should increase the reception capacity of the Refugee Centre, where asylum-seekers can benefit from health care, language classes, food coupons and pocket money, and draw up contingency plans to ensure that alternative accommodation that respects the dignity and rights of all asylum-seekers is made available in future emergency situations.

Jurisdiction over acts of torture

(19)The Committee takes note of the bilateral treaty of 1982 between Liechtenstein and Austria on the accommodation of prisoners, according to which sentences longer than two years of imprisonment are executed in Austria. The Committee further notes that the treaty also applies to “persons who have committed a criminal offence under the influence of a mental disorder” against whom orders of preventive measures are issued and, where necessary, persons under the age of 18 years. While noting the application of Austrian law to such detainees, the Committee is concerned that the 1982 bilateral treaty does not contain any express safeguards for the prevention of torture and other forms of ill-treatment. Furthermore, the Committee expresses serious concern at information by the State party that there are “no procedures or mechanisms in place to ensure that the rights of persons imprisoned in Austria are upheld” with respect to the implementation of the treaty. The Committee takes note of the information that, in principle, the Austrian Corrections Commission is competent also in relation to Liechtenstein prisoners serving their sentence in Austria (arts. 2, 5, 12, 13 and 14).

The Committee recommends that the State party re-negotiates the 1982 Treaty On Accommodation of Prisoners so as to ensure that the rights of persons deprived of their liberty under the Convention are guaranteed, through the monitoring of their implementation by the Corrections Commission of the State party or by another independent monitoring mechanism. The State party should also ensure that persons detained in Austria have the right to complain to an independent body regarding torture and ill-treatment by prison officers and have their complaints promptly and impartially investigated and prosecuted, and receive redress according to article 14 of the Convention.

Training and education

(20)While noting with appreciation the information provided by the State party on initial and continuing training for prison staff, the Committee notes that, according to the report by the Corrections Commission, the training and supervisory courses for prison officers employed at Vaduz National Prison were not used in actual fact in 2009. The Committee also notes with appreciation that programmes of supervision, as recommended by the Corrections Commission, and the possibility of making them mandatory, are currently under discussion (art. 10).

The State party should ensure that the mandatory initial and continuous training programmes, as well as programmes of supervision, for prison officers are effectively implemented and attended so that they are fully aware of the rights of persons deprived of their liberty.

(21)The Committee is concerned that no special training programme on the prohibition of torture and other forms of ill-treatment exists for medical personnel who receive their training abroad, whereby a “certain dependency therefore exists on the manner in which content of medical training is defined abroad”. The Committee furthermore notes that it has no information with respect to training of members of the judiciary and prosecutors in the State party on the Convention and the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) (art. 10).

The State party should take measures to ensure that all medical personnel dealing with persons deprived of their liberty receive complementary training, in addition to education received abroad, on the prohibition and prevention of torture. The Committee recommends that the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Istanbul Protocol”) is integrated into such training programmes and into the training of those involved in the investigation of torture, such as judges and prosecutors, in addition to their training on the Convention against Torture. These programmes should be subject to regular assessment and evaluation.

Detention conditions

(22)The Committee notes the limited holding capacity and the shortage of space and personnel resources of Vaduz National Prison. In particular, the Committee is concerned that the space restrictions and personnel limitations, has resulted, on occasions, in the removal of prisoners from the prison by police for interrogation without the presence of a corrections officer, contrary to applicable domestic law (art. 89 of the Execution of Sentences Act). The Committee is furthermore concerned at the fact that the national prison holds different categories of detainees, including convicted prisoners, prisoners on remand, detainees awaiting deportation and juveniles. While appreciating information on arrangements for separation between men and women and juveniles and adults, the Committee is concerned that separation between pretrial prisoners, persons detained for expulsion and convicted prisoners is not always possible. In this regard, the Committee notes with regret the discontinuation of a project initiated in 2002 aimed at better ensuring separation and infrastructure of the Vaduz National Prison subsequent to the result of a referendum (arts. 11 and 16).

The State party should undertake an assessment of the detention facilities in Vaduz National Prison with a view to ensuring adequate personnel and space so as to conform to relevant international human rights standards. Immediate measures should also be taken to ensure that interrogations of prisoners by police always take place in the presence of a corrections officer. The Committee strongly recommends that the project initiated in 2002 to improve infrastructure and ensure better separation of detainees in Vaduz National Prison be reintroduced and completed.

Treatment of persons deprived of their liberty

(23)The Committee is concerned with the practice by the National Police of covering the eyes of apprehended persons considered extremely dangerous and violent with black goggles and, until 2007, of covering the heads of such apprehended persons with a bag, and that such practices are justified on grounds of protecting the identity of the suspect and protecting the law enforcement officers. While appreciating that the practice of black goggles has been used only once in 2007 and once in 2008 by the State party officials, the Committee notes that the practice is still allowed by law and that it may still be used on exceptional occasions. The Committee remains concerned that such a practice often makes the prosecution of torture virtually impossible (arts. 2, 11 and 16).

The State party should ensure that the practice of covering the head or eyes of suspects by the National Police is abolished in law and in practice. The State party should introduce alternative measures which respect the inherent dignity of suspects while ensuring the safety and protection of police officers.

(24)The Committee notes with appreciation that the practice of ensuring psychological care for inmates at the Vaduz National Prison through visits by staff of the Therapeutic Services Division of the Office of Social Affairs has been reintroduced as of 2010, pursuant to the recommendation by the Corrections Commission. In view of the absence of a full-time nurse or other medical personnel in the prison, the Committee furthermore expresses appreciation that the State party has initiated a process of assessing and evaluating the possibility of ensuring that medicaments are provided solely by medical personnel and not by corrections officers (arts. 11 and 16).

The Committee recommends that State party considers the appointment of a part-time nurse or other medical staff member at Vaduz National Prison, with a view to ensuring that medicaments are provided by medical personnel only.

Interrogations

(25)While the Committee notes that all police interrogations have to be documented in writing, it is concerned that, at present, police interrogations are neither audio nor video recorded, with the exception of interviews with victims of sexual crimes (arts. 2, 11, 12 and 16).

The State party should further improve interrogation rules and procedures of the National Police by amending the Code of Criminal Procedure with a view to introducing audio- and, preferably, video-recording of all police interrogations and questioning as part of the State’s parties efforts to prevent torture and ill-treatment.

Investigations into allegations of ill-treatment

(26)The Committee notes with concern that some allegations of excessive use of force, tight-fitting handcuffs and verbal abuse by police at the time of apprehension were reported in 2007 by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe. In this respect, while noting the establishment in the same year of a special unit in the National Police tasked with investigating allegations in respect of certain serious criminal offences against police officers and other State officials, the Committee emphasizes the importance of the independence of the body carrying out such investigations (arts. 11, 12 and 16).

The Committee strongly recommends that all allegations of ill ‑ treatment by police should be investigated promptly and impartially by independent bodies and not by other members of the police force.

Juvenile justice

(27)Recalling information by the State party that Vaduz National Prison was not designed for the detention of juveniles, the Committee notes with concern information in the Annual Report 2009 of the Corrections Commission that, during the last quarter of 2009, juveniles, including one female person, were held in Vaduz National Prison, contrary to the principle of separation between adults and juveniles in accordance with international human rights standards. Also, while appreciating the reduction of the maximum length of pretrial detention for children under the age of 18 (art. 19, para. 2, of Juvenile Court Act), the Committee is concerned that it remains high (one year). The Committee is furthermore concerned that some juveniles sentenced to imprisonment serve their sentences in Austria according to the 1982 bilateral treaty, which does not contain any safeguards for special protection for persons under the age of 18 years. The Committee reminds the State party that deprivation of liberty, and in particular pretrial detention, of juveniles should be used only as a measure of last resort and for the shortest appropriate period of time (arts. 11 and 16).

The Committee recommends that the State party expands and reinforces alternative measures other than deprivation of liberty for children below the age of 18 in pretrial detention and in prison. In particular, in upholding the principle of separation of juveniles from adults, the State party should ensure that alternative measures are applied for persons under the age of 18 currently held in Vaduz National Prison and for the juvenile currently serving a sentence in Austria. It is recommended that the State party further reduce the maximum length of pretrial detention of juveniles by amending the Juvenile Court Act.

(28)The Committee notes with concern that the State party does not intend to amend the Juvenile Court Act (sect. 21a, of the Juvenile Court Act), according to which a person of trust is present during the questioning of a juvenile by the police (or a judge) only if the juvenile so requests. The Committee believes that the presence of legal or other appropriate assistanceshould not be limited to the trial before the court or other judicial body, but also apply to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police as is stated in general comment No. 10 (2007) on children’s rights in juvenile justice of the Committee on the Rights of the Child (para. 52) (arts. 11 and 16).

The State party is urged to change its position and amend article 21 of the Juvenile Court Act with a view to ensuring the presence of a person of trust during interrogation or questioning by police of children under the age of 18 without any request of the juvenile.

Involuntary civil placement

(29)The Committee is concerned that the right of persons under involuntary placement to give their consent to treatment and the right to request at any time their own discharge from a psychiatric or social welfare establishment are not explicitly guaranteed by law. In this respect, the Committee notes with appreciation that the State party is considering a formulation regarding the right to request at any time one’s own discharge as part of a future revision of the Social Welfare Act and that the courts interpret the provisions of article 13, paragraph 2, of the Social Welfare Act as empowering such persons to request their own discharge (arts. 2 and 16).

It is strongly recommended that the State party amend the Social Welfare Act so as to expressly provide for the right of persons deprived of their liberty in involuntary civil placements to request at any time their discharge.

Domestic violence

(30)The Committee notes with appreciation that the State party has approved the proposal for a revision of its sexual criminal law which will include domestic violence as an ex officio prosecution. The Committee is concerned, however, that offences of domestic violence are not statistically recorded as such in the crime statistics of the State party, since domestic violence is a collective term for several offences that may also be committed in another environment. Therefore, the State party is unable to provide any information on the number of cases of domestic violence and on the number of investigations, prosecutions and convictions as well as on the number of cases where redress was awarded by the courts. The Committee is also concerned at reports of allegations of violence against women, including spousal abuse. According to the police, there were 32 police interventions in cases of domestic violence during 2009. Regrettably, there has been no information as to any investigations, prosecutions and convictions of the perpetrators undertaken by the appropriate authorities of the State party (arts. 1, 2, 12 and 16).

The State party should ensure ex officio prosecution for all forms of domestic violence in its revised sexual criminal law. The State party should also ensure prompt and impartial investigation of all allegations of domestic violence and should prosecute and punish perpetrators. The Committee urges the State party to take all necessary measures to ensure that victims are effectively compensated and rehabilitated, noting the important role of the Victims Assistance Office in this regard. The State party should also strengthen its efforts in respect of research and data collection on the extent of domestic violence and is requested to provide the Committee with statistical data on complaints, prosecution and sentences, as well as on compensation, including full rehabilitation, awarded to victims in its next periodic report.

Trafficking in persons

(31)The Committee notes the high number of foreign women engaged as dancers in seven nightclubs operating in the State party and that many of them originate from “origin countries” that top the list of human trafficking. While noting that no cases of human trafficking were recorded, the Committee is concerned at information that suggests that trafficking in women have occurred but was not reported. While welcoming the measures taken by the State party to prevent human trafficking and sexual exploitation in such settings, including mandatory information sessions for new dancers on their rights and duties, and the regular inspections of night clubs by the National Police and the Immigration and Passport Office, the Committee is concerned that the State party has not initiated any ex officioinvestigations into suspected cases of trafficking or undertaken a comprehensive analysis to fully assess the situation of this group of women who remain vulnerable to abuse and violations. This is particularly important in view of reports that, while prostitution is illegal in the State party, it was “tolerated” in nightclubs by the law enforcement agencies as it did not cause public offence (arts. 2, 14 and 16).

The State party should initiate an analysis on the phenomenon of foreign women working as dancers in nightclubs and strengthen its efforts to prevent and combat human trafficking, including by investigating any allegation of suspected cases of human trafficking and provide victims with an effective remedy for fair and adequate compensation, including the means for as full rehabilitation as possible.

(32)The Committee recommends that the State party 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 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of Persons with Disabilities and its Optional Protocol, and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

(33)The Committee invites the State party to submit a core document in accordance with the requirements for the preparation of a common core document established in the new harmonized guidelines for the submission of reports approved by the international human rights treaties bodies (HRI/GEN/2/Rev.6).

(34)The State party is urged to ensure wide circulation of the report submitted to the Committee and of the Committee’s concluding observations through official websites, the media and non-governmental organizations.

(35)The Committee requests the State party to provide information, within one year (by 14 May 2011), in response to the Committee’s recommendations in paragraphs 14, 15 (a), 30 and 31 of the present document.

(36)The State party is invited to submit its fourth periodic report by 14 May 2014.

62. Switzerland

(1)The Committee against Torture considered the sixth periodic report of Switzerland (CAT/C/CHE/6) at its 935th and 936th meetings, held on 30 April and 3 May 2010 (CAT/C/SR.935 and 936), and adopted the following concluding observations at its 948th meeting on 11 May 2010 (CAT/C/SR.948).

A. Introduction

(2)The Committee welcomes the sixth periodic report of Switzerland, prepared in accordance with the Committee’s guidelines, and the replies to the list of issues (CAT/C/CHE/Q/6 and Add.1). It appreciates open and constructive dialogue with the State party’s high-level and multisectoral delegation, as well as the additional information and explanations provided by the delegation to the Committee.

B. Positive aspects

(3)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 (24 September 2009);

(b)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (19 September 2006);

(c)Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (26 June 2002);

(d)Protocols Nos. 1 and 2 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1 March 2002);

(e)Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (27 October 2006);

(f)Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (27 October 2006);

(g)Rome Statute of the International Criminal Court (12 October 2001);

(h)United Nations Convention against Transnational Organized Crime (27 October 2007).

(4)The Committee notes with satisfaction the efforts being made by the State party to amend its legislation, policies and procedures in order to ensure greater protection of human rights, particularly the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, as follows:

(a)The adoption of the Swiss Code of Criminal Procedure on 5 October 2007 (scheduled to enter into force on 1 January 2011), which strengthens the rights of defence and increases the rights of victims, as well as witness protection measures;

(b)The complete revision of the Federal Act on Assistance to Crime Victims of 4 October 1991, which entered into force on 1 January 2009;

(c)The entry into force on 1 January 2007 of the Federal Act on the Criminal Status of Minors of 20 June 2003;

(d)The extension under the new Criminal Code (art. 97), which entered into force on 1 January 2007, of the statute of limitations for serious offences against the sexual integrity of children to the time when the victim reaches 25 years of age;

(e)The standardized Code of Civil Procedure (due to enter into force on 1 January 2011);

(f)The establishment of a National Commission for the Prevention of Torture, which began working on 1 January 2010, following ratification of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

C. Principal subjects of concern and recommendations

Definition of torture

(5)While noting that many acts that amount to torture are criminalized under Swiss criminal law (arts. 111–117, 122–128, 180–185 and 189–193), the Committee is concerned that, despite a previous recommendation (CAT/C/CR/34/CHE, paras. 4 (b) and 5 (a)), Swiss legislation still lacks a definition of torture that covers all the constituent elements set out under article 1 of the Convention (art. 1).

The Committee reiterates its recommendation that the State party include a definition of torture in its Criminal Code incorporating all elements contained in article 1 of the Convention.

Fundamental safeguards

(6)While taking into account the State party’s federal structure, the Committee is concerned by the fact that the cantons can differ in how they implement the State party’s obligations under the Convention (art. 2).

The State party should take the necessary steps to ensure that the authorities of all the cantons are aware of the rights stipulated in the Convention, and that they implement them as soon as possible, regardless of the structure of the State party.

(7)The Committee notes with concern that the State party has not yet established a national human rights institution, with broad competence in the area of human rights, in accordance with the Paris Principles. The Committee notes the State party’s initiative to carry out a five-year pilot project aimed at creating a “human rights centre” through a call for tenders to universities, but considers that this is no substitute for establishing a national human rights institution (art. 2).

The State party should consider establishing a national human rights institution, with broad competence in the area of human rights and equipped to play a role in the coordination and implementation of human rights policies and the implementation of recommendations by treaty bodies, and providing it with the necessary financial and human resources to enable it to work in accordance with the Paris Principles (General Assembly resolution 48/134).

Police violence

(8)The Committee is concerned by allegations of violence or the excessive use of force or other mistreatment by the police during the questioning of suspects in their homes or in police stations. The Committee is particularly concerned by the fact that some of these allegations mention an excessive use of force against foreigners, especially asylum-seekers and migrants, above all of African origin, and particularly in the cantons of Geneva and Vaud (arts. 2, 12, 13, 14 and 16).

The State party must ensure that prompt, thorough and impartial inquiries are held into all allegations of violence or mistreatment by police, that the perpetrators are prosecuted and, if proven guilty, punished in proportion to the seriousness of their acts, that victims receive compensation and, where appropriate, rehabilitation. The State party must also continue training police officials and raising their awareness of human rights and, in particular, of the provisions of the Convention. In its next report, it must inform the Committee of any ongoing investigations and their outcome.

Mechanisms of independent investigation into police violence

(9)The Committee notes that, in the State party, complaints of police violence, torture and mistreatment may be brought before the ordinary courts. Nevertheless, it is concerned that the State party has not yet fully implemented the Committee’s recommendation to establish, in each canton, independent mechanisms of investigation to deal with complaints of violence or mistreatment lodged against police officials. It reminds the State party that the possibility of seeking remedy in the ordinary courts should not prevent the establishment of such mechanisms (arts. 2, 12 and 16).

The State party must ensure the creation in each canton of an independent mechanism empowered to receive any complaints of violence or mistreatment on the part of the police and to investigate them promptly, thoroughly and impartially.

Non-refoulement

(10)The Committee notes that, according to article 5, paragraph 2, of the Asylum Act of 1999, the ban on refoulement may not be invoked if there are substantial grounds for believing that the person invoking it represents a threat to the security of Switzerland or, having been convicted and sentenced for a particularly serious crime or offence, must be considered a public menace. The Committee also notes that article 68, paragraph 4, of the Federal Act on Foreign Nationals of 2005, provides for the immediately enforceable expulsion of a foreigner from the State party’s territory if the person concerned has seriously or repeatedly violated, or represents a threat to, public security and order or represents a threat to internal or external security. The Committee is concerned that the application of article 68, paragraph 4, of the Federal Act on Foreign Nationals of 2005 could lead to a violation of the principle of non-refoulement, without the possibility of appeal. It is equally concerned that article 5, paragraph 2, of the Asylum Act of 1999 is incompatible with the State party’s obligations with respect to the principles of non-refoulement under article 3 of the Convention (art. 3).

The State party should consider modifying its legislation to allow an assessment of the risk involved and take measures to ensure for a person expelled under article 68, paragraph 4, of the Federal Act on Foreign Nationals of 2005 and article 5, paragraph 2, of the Federal Asylum Act of 1999, that the expulsion proceedings comply with article 3 of the Convention. It should also allow appeals against, and the suspension of, expulsion orders.

(11)The Committee notes that the people’s initiative on the expulsion of foreign criminals under discussion in Parliament calls for foreigners to be deprived of their residence permit and any further right to reside in Switzerland, regardless of their status, if they are convicted by final judgement of murder, rape or other serious sexual offences, or of other acts of violence such as armed robbery, trafficking in human beings, drug trafficking or breaking and entering, or if they have improperly claimed social security or welfare benefits. The Committee also notes that such persons would be expelled and banned from returning to Switzerland for a period of between 5 and 15 years, and that the authorities would lose all discretionary power in this respect. The Committee notes, finally, that the Federal Council has made a counter-proposal and recommended that the initiative be rejected, having found it incompatible with international law and the Swiss Constitution. However, the Committee remains concerned that the application of the initiative, if adopted by referendum, would seriously risk violating the principle of non-refoulement (art. 3).

The State party must continue its efforts to ensure that the initiative on the expulsion of foreign criminals does not violate the international obligations that Switzerland has undertaken, especially the Convention against Torture, or article 25 of the Swiss Constitution on the principle of non-refoulement.

(12)The Committee notes that provisions of the Federal Act on Foreign Nationals governing procedures for refusal of entry into the country at airports (art. 65) stipulate that a decision must be made within 48 hours, subject to an appeal without suspensive effect being filed within 48 hours of notification and a decision on the appeal being handed down within 72 hours. The Committee is concerned that this rapid procedure, without suspensive effect, could impede the proper examination of the motives of appeal and constitute a violation of the principle of non-refoulement (art. 3).

The State party should consider modifying the procedure set out under article 65 of the Federal Act on Foreign Nationals with a view to providing more time for thorough consideration of appeals and an assessment of whether the principle of non-refoulement is being violated, and to lending such appeals suspensive effect.

(13)The Committee considers the Federal Act on Foreign Nationals of 2005, which applies stricter coercive measures (arts. 73–78) to foreigners without residence permits and extends the maximum period of administrative detention from 12 to 24 months, or 12 months for minors aged from 15 to 18, excessive. The Committee notes that, as a result of Switzerland adopting the European Union directive on the return of illegal immigrants, the maximum period of administrative detention will be 18 months for adults and 9 months for minors (art. 3).

The State party should reconsider the maximum period of administrative detention, resort to it only in exceptional circumstances and limit its duration in light of the principle of proportionality.

(14)While noting that asylum-seekers are entitled to free legal aid during the ordinary asylum procedure, the Committee remains concerned that free legal aid may be subject to restrictive conditions when asylum-seekers file an application under the extraordinary procedure (art. 3).

The State party should review its legislation in order to grant free legal assistance to asylum-seekers during all asylum procedures, whether ordinary or extraordinary.

Repatriation and mistreatment

(15)While noting the steps taken by the State party to ensure the peaceful implementation of forcible repatriation by air, particularly the training of specialized officials, the Committee is concerned by persistent allegations of police violence and mistreatment when persons are forcibly returned by air. The Committee notes with concern that the Federal Act on the use of coercion and police measures in spheres within the jurisdiction of the Confederation, which entered into force on 1 January 2009, does not provide for the presence of human rights observers or independent physicians when forcible repatriation by air takes place, as the Committee had recommended (CAT/C/CR/34/CHE, para. 5 (b)) (arts. 2, 3 and 16).

The State party must:

(a) Ensure that human rights observers and independent physicians are present when persons are forcibly repatriated by air;

(b) Provide also for their participation in the drafting by the Federal Office for Migration of orders on the use of coercive measures by police escorts during forcible returns;

(c) Prevent police violence and mistreatment against persons being forcibly repatriated by air, open inquiries into any such allegations, prosecute and punish perpetrators, and compensate victims;

(d) Continue training in human rights and, especially, in Convention safeguards of police and other officials who carry out forcible repatriation.

(16)The Committee is most concerned by the death of a Nigerian citizen, Joseph Ndukaku Chiakwa, on 10 March 2010, when he was being forcibly repatriated by air. While noting that the authorities of the State party have opened an inquiry, the Committee is concerned about whether the coercive measures applied by the State party are compatible with the provisions of the Convention. The Committee is also concerned by the failure of the State party to respond to claims for compensation from the families of the two latest victims in recent cases of forced repatriation (arts. 2, 3 and 14).

The State party must:

(a) Open an independent and impartial inquiry into the circumstances of the death of Joseph Ndukaku Chiakwa, establish who was responsible for the use of force that led to his death, prosecute and punish the perpetrators and offer compensation to the victim’s family;

(b) Provide the Committee with details of the compensation made to the families of the two latest victims of forcible repatriation by air;

(c) Inform the Committee as to whether the order on the use of coercive measures by police escorts during forcible returns currently being drafted by the Federal Office for Migration is in accordance with the State party’s international obligations, particularly the Convention against Torture.

Conditions of detention

(17)The Committee takes note of information provided by the State party regarding its efforts to create more dignified and more secure conditions for detainees, including the construction in 2008 of the detention centre of La Brenaz, and plans to expand capacity at the Champ Dollon and La Brenaz prisons. However, the Committee notes with concern the acute overcrowding of the Champ Dollon prison, that conditions in Swiss prisons, especially in the French-speaking cantons, are inadequate and that the separation of adults and minors is not always guaranteed. Moreover, the Committee is concerned by the state of health and access to decent health care of detainees, especially those with psychiatric disorders and, above all, those housed in the Frambois holding centre (arts. 11 and 16).

The State party must act immediately to deal with the problem of overcrowding in the Champ Dollon prison and to improve conditions in all Swiss prisons. The Committee urges the State party to make use of alternative and non-custodial sentences and to reduce pretrial detention periods. The State party must also take measures to ensure that minors and adults, as well as detainees serving under different prison regimes, are separated. Finally, it must take steps to ensure the application of legislation and procedures concerning health-care access for all prisoners, especially those with psychiatric problems.

(18)The Committee takes note of information supplied by the State party on life imprisonment procedures. However, the Committee remains concerned that article 123a of the Constitution, specified in the Act of 1 August 2008, allows imprisonment for life of dangerous or sexual offenders considered to be non-reformable. The Committee is, in this respect, concerned by the detention conditions of such prisoners, especially by the death of Skander Vogt, held in a cell of the high security wing of Plaine de l’Orbe prison, after setting fire to his cell (arts. 10, 12 and 13).

The State party should review the manner in which article 123a of the Constitution, specified in the Act of 1 August 2008, is applied and the conditions in which such prisoners are held. The State party should open a prompt and independent inquiry into the death of Skander Vogt and inform the Committee of the inquiry’s outcome in its next periodic report.

Complaints and prosecutions

(19)The Committee reiterates its concern that only a minority of complaints of violence or mistreatment by the police result in prosecutions or charges being brought and that only a few lead to compensation being offered to victims or their families (arts. 2, 12 and 13).

The State party must systematically conduct impartial, thorough and effective inquiries into all allegations of violence committed by the police, and prosecute and punish the perpetrators in proportion to the seriousness of their acts. It should also ensure that victims or their families receive compensation. The State party should inform the Committee of the outcome of current proceedings.

Violence against women

(20)The Committee notes that the Criminal Code addresses violence against women by prosecuting the offences of violation of physical integrity and violation of liberty (art. 122 ff. and art. 180) and that it provides for automatic prosecution in the event of an attack on a spouse or companion. It also notes that article 28b of the Civil Code contains further protective measures. Nevertheless, the Committee remains concerned by reports indicating an unacceptable rate of violence against women, especially in the home. In this respect, it is concerned that statements made by the authorities criticizing police action in cases involving persons with international protection conveys the wrong message as far as combating impunity is concerned. It also notes with concern the continued lack of a specific provision in the Criminal Code targeting violence against women (arts. 2 and 16).

The State party must ensure that a provision is inserted in its Criminal Code specifically aimed at preventing and combating violence against women. The State party must also act to raise the public’s awareness of all forms of violence against women. It must ensure that victims of violence can make complaints without fear of reprisals, and it must train and encourage police to protect the victims of domestic violence, even when it occurs in the home, in accordance with article 5 of the Federal Victims Assistance Act (II). The State party should firmly combat impunity in cases of domestic violence by opening inquiries, and prosecuting and punishing perpetrators in accordance with the seriousness of their acts.

(21)The Committee is concerned that the requirements of article 50 of the Federal Act on Foreign Nationals of 2005, in particular the proof of problems in resettling in the country of origin, make it difficult for foreign women who have been married for less than three years to a Swiss national or a foreigner with a residence permit, and who are victims of domestic violence, to leave their spouse or seek protection, for fear of not having their residence permits renewed (arts. 13, 14 and 16).

The State party should consider amending article 50 of the Federal Act on Foreign Nationals in order to enable migrant women who are victims of violence to seek protection without necessarily forfeiting their residence permit, taking as a reference the Federal Tribunal’s ruling of 4 November 2009 (ATF 136 II 1), which states that “either conjugal violence or serious difficulty in resettling in the country of origin may […] be considered to constitute sufficient compelling personal reasons”.

Trafficking in persons

(22)While noting the measures taken by the State party to combat human trafficking, in particular trafficking in women and girls for purposes of sexual exploitation, the Committee is concerned that trafficking in persons still persists in the State party (arts. 12, 13 and 16).

The State party must continue its efforts to combat human trafficking, particularly in women and girls for purposes of sexual exploitation, by adopting a comprehensive strategy, improving prevention and ensuring that victims, including those who cooperate with the justice system, are protected. The State party must also prosecute and punish perpetrators, and inform the Committee of the results of cases currently being prosecuted.

Corporal punishment

(23)While taking note of information supplied by the State party, according to which the jurisprudence of the Federal Tribunal confirms the ban on corporal punishment, including for educational purposes, and that corporal punishment is also covered by article 126 (2) of the Criminal Code, the Committee notes with concern that corporal punishment is not specifically prohibited under the legislation of the State party (art. 16).

The State party should specifically prohibit corporal punishment in its legislation. To that end, the Committee urges the State party to relaunch the 06.419 Vermont-Mangold parliamentary initiative, aimed at enacting legislation to protect children from corporal punishment and other affronts to their dignity, which was shelved by Parliament. The Committee also calls upon the State party to carry out public-awareness campaigns on the negative effects of violence against children, especially corporal punishment.

Disappearance of unaccompanied minors

(24)While taking note of information supplied by the State party regarding the procedure to protect unaccompanied minors, and of statistics on minors said to have disappeared from its territory, the Committee is concerned by the matter of the disappearance of unaccompanied minors and by the risk they run of becoming victims of human trafficking or other forms of exploitation (art. 16).

The State party must examine the plight of unaccompanied minors closely, seek means of preventing their disappearance, improve the level of protection afforded to them and report to the Committee as soon as possible.

(25)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 and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights; the International Convention for the Protection of All Persons from Enforced Disappearance; the Convention on the Rights of Persons with Disabilities and the Optional Protocol to the International Covenant on Civil and Political Rights.

(26)The Committee draws the attention of the State party to the fact that new harmonized guidelines on the submission of reports were approved in 2009 by the international human rights treaty bodies (HRI/GEN/2/Rev.6) and invites it to submit its core document in accordance with these new guidelines.

(27)The State party is urged to ensure wide circulation, particularly in all its official languages and cantons, of the report submitted to the Committee and of the Committee’s concluding observations through official websites, the media and non-governmental organizations (NGOs).

(28)The Committee requests the State party to report, within one year, on its follow-up to the Committee’s recommendations in paragraphs 8, 11, 16 and 23 of the present document.

(29)The Committee invites the State party to submit its seventh periodic report not later than 14 May 2014.

63. Syrian Arab Republic

(1)The Committee against Torture considered the initial report of Syrian Arab Republic (CAT/C/SYR/1) at its 937th and 939th meetings (CAT/C/SR.937 and 939), held on 3 and 4 May 2010, and adopted, at its 951st meeting (CAT/C/SR.951), the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the initial report of the Syrian Arab Republic, which, while generally following the Committee’s guidelines for reporting, lacks statistical and practical information on the implementation of the provisions of the Convention and relevant domestic legislation. However, the Committee regrets that the report was submitted five years late, which prevented the Committee from conducting an analysis of the implementation of the Convention in the State party following its ratification in 2004.

(3)The Committee notes with appreciation that a high-level delegation from the State party met with the Committee during its forty-fourth session, and also notes with appreciation the opportunity to engage in a constructive dialogue covering areas of mutual concern 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 Covenant on Civil and Political Rights, on 21 April 1969;

(b)International Covenant on Economic, Social and Cultural Rights, on 21 April 1969;

(c)International Convention on the Elimination of All Forms of Racial Discrimination, on 21 April 1969;

(d)Convention on the Rights of the Child, on 15 July 1993, as well as the two Optional Protocols thereto, namely, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, on 25 May 2000;

(e)Convention on the Elimination of All Forms of Discrimination against Women, on 28 March 2003;

(f)International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, on 2 June 2005;

(g)Convention on the Rights of Persons with Disabilities, on 10 July 2009.

C. Principal subjects of concern and recommendations

Definition of torture

(5)While noting that article 28 in the Constitution of the Syrian Arab Republic prohibits torture, the Committee notes with concern the absence of a definition of torture in accordance with article 1 of the Convention in the national legal system of the State party, which seriously hampers the implementation of the Convention in the State party (art. 1).

The State party should amend its legislation to adopt a definition of torture in full conformity with article 1 of the Convention that would encompass all elements of this definition. By naming and defining the offence of torture in accordance with articles 1 and 4 of the Convention and making it 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.

Criminalization of torture

(6)While acknowledging that torture is punishable by article 391, paragraph 1, of the Criminal Code and that no offence or penalty shall be recognized without a corresponding legal provision in accordance with article 29 of the Constitution, the Committee notes with serious concern that these provisions fail to ensure appropriate penalties applicable to such acts, since they set the maximum penalty at three years of imprisonment (art. 4).

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

Widespread use of torture

(7)The Committee is deeply concerned about numerous, ongoing and consistent allegations concerning the routine use of torture by law enforcement and investigative officials, at their instigation or with their consent, in particular in detention facilities. It is also concerned at credible reports that such acts commonly occur before formal charges are laid, as well as during the pretrial detention period, when the detainee is deprived of fundamental legal safeguards, in particular access to legal counsel. This situation is exacerbated by the reported use of internal regulations which, in practice, permit procedures contrary to published laws and in violation of the Convention. The Committee is also gravely concerned at the absence of systematic registration of all detainees in places of detention under the State party’s jurisdiction (arts. 2, 12 and 13).

The State party should:

(a) Unambiguously reaffirm the absolute prohibition of torture and publicly condemn practices of torture, especially by the police and prison personnel, 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;

(b) In order to combat impunity, immediately adopt all necessary measures to ensure, in practice, prompt, impartial and effective investigations into all allegations of torture, and should prosecute and punish those responsible, including law enforcement and investigation officials, with penalties taking into account the grave nature of torture offences. Investigations should be undertaken by a fully independent body;

(c) Ensure that all persons detained are fully and promptly registered at the place of detention, as one measure to prevent acts of torture. Registration should contain the identity of the detainee, the date, time and place of the detention, the identity of the authority that detained the person, the ground for the detention, the date and time of admission to the detention facility and the state of health of the detainee upon admission and any changes thereto, the time and place of interrogations, with the names of all interrogators present, as well as the date and time of release or transfer to another detention facility.

(8)The Committee is deeply concerned at numerous reports of torture, ill-treatment, death in custody and incommunicado detention of people belonging to the Kurdish minority, in large part stateless, in particular political activists of Kurdish origins. The Committee is further concerned that convictions of some Kurdish detainees pronounced by military courts have been passed on vague charges of “weakening national sentiment” or “spreading false or exaggerated information”. Moreover, the Committee notes with concern reports of a growing trend of deaths of Kurdish conscripts who have died while carrying out their mandatory military service and whose bodies were returned to the families with evidence of severe injuries (arts. 1, 2, 12 and 16).

The State party should take urgent measures to ensure prompt, thorough, impartial and effective investigation into all allegations of torture, ill-treatment, death in custody, death during military service and incommunicado detention of people belonging to the Kurdish minority, in particular of political activists of Kurdish origins, and to prosecute and punish law enforcement, security, intelligence and prison officials who carried out, ordered or acquiesced in such practices. Furthermore, the State party should amend or abolish the vague security provisions under the Syrian Criminal Code that unlawfully restrict the right to freedom of expression, association or assembly.

Fundamental legal safeguards from the outset of detention

(9)While noting that Prison Regulation No. 1222 guarantees the right of prisoners to communicate with their lawyers and family members as well as visiting rights, the Committee is seriously concerned that in practice these provisions do not provide all detainees with all fundamental legal safeguards and that they are not applied from the very outset of the detention. Such legal safeguards comprise the right of detainees 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 (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 their 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.

State of Emergency

(10)Notwithstanding the information provided by the State party delegation during the dialogue, the Committee expresses its concern that the State of Emergency, issued by Legislative Decree No. 51 of 22 December 1962 and amended by Decree-Law No. 1 of 9 March 1963, which was intended to apply to exceptional circumstances where there is an internal or external threat to national survival, now has quasi-permanent nature and allows the suspension of fundamental rights and freedoms. The Committee notes with concern that the State of Emergency attributes broad emergency powers to various branches of the security forces outside any judicial control, which in practice leads to serious breaches of the Convention by State authorities. In particular, the Committee is concerned that the State of Emergency is inconsistent with the commitments undertaken by the Syrian Arab Republic under article 4 of the International Covenant on Civil and Political Rights and under article 2 and other relevant articles of the Convention (arts. 2, 4, 11, 12, 13, 15 and 16).

The State party should ensure that the principle of the absolute prohibition of torture is incorporated in its legislation, and ensure its strict application, in accordance with article 2, paragraph 2, of the Convention, which stipulates that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. Moreover, the State party should take immediate steps to bring the legislation into full conformity with the provisions of the International Covenant on Civil and Political Rights and the Convention.

Supreme State Security Court

(11)While noting the information provided to the Committee by the State party on the composition, functions and procedures of the Supreme State Security Court, the Committee is deeply concerned at the numerous, consistent and serious allegations that this court fails to function in accordance with the international standards for courts of law. The Committee notes that the Supreme State Security Court was established under Decree No. 47 of 1968 and has been created as an exceptional court outside the ordinary criminal justice system accountable only to the Minister of Interior. The Court, composed of two judges, one civilian and one military, has the competence to adopt sentences and impose penal sanctions for crimes that are very widely defined, such as “weakening the national sentiment” or “awakening racial or sectarian tensions, while the Syrian Arab Republic is at war or is expecting a war”. According to information before the Committee the Court is exempt from the rules of criminal procedure and permits the use of prolonged incommunicado detention without judicial supervision. In addition, lawyers are not allowed to meet with their clients until the trial begins and the decisions of the court cannot be appealed (arts. 2, 11 and 12).

The State party should take immediate steps to ensure that the composition and the functioning of the Supreme State Security Court are brought into full conformity with the provisions of the Convention and international standards for courts of law, in particular, that the persons brought before this court are granted all fundamental legal safeguards, including the right to appeal against decisions of the Court, otherwise it should consider abolishing this Court.

Independence of courts and tribunals

(12)The Committee is concerned by information that the lack of judicial independence and arbitrary procedures have resulted in the systematic violation of the right to fair trials. In addition judges do not enjoy immunity according to the provisions of Legislative Decree 40, issued on 21 May 1966 and they can be transferred by an order which is not subject to any form of review (arts. 2 and 11).

The State party should, as a matter of urgency, adopt all necessary measures to protect the independence of its courts and tribunals, as well as the independence and immunity of judges, in accordance with international standards.

Immunity from prosecution

(13)According to information before the Committee, Legislative Decree No. 61 of 1950 and Decree No. 64 of 2008 grant members of intelligence agencies, including military, air and public security forces, de facto immunity from prosecution for crimes committed while they were on duty. The Committee is deeply concerned at a widespread impunity preventing prosecution for crimes committed on duty, including torture and ill-treatment, in total violation of the provisions of the Convention (arts. 2, 4, 12, 15 and 16).

As a matter of urgency, the State party should take vigorous steps to rescind the decrees legalizing immunity for crimes committed on duty which result, in practice, in impunity for acts of torture committed by members of security services, intelligence agencies and police. Furthermore the State party should carry out prompt, impartial and thorough investigations, bring the perpetrators of such acts to justice and, where they are convicted, impose sentences commensurate with the gravity of the acts committed.

Monitoring and inspection of places of deprivation of liberty

(14)The Committee notes that the Ministry of Justice, the Ministry of Interior and the Prosecutor General are empowered to inspect prisons to verify that inmates are being treated humanely. The Committee is nevertheless concerned at the lack of systematic, effective and independent monitoring and inspection of all places of detention (arts. 11 and 12).

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 by national and international monitors, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

Secret detention centres

(15)The Committee is also concerned at reports that the State party has established secret detention facilities under the command of intelligence services, such as the Military Intelligence service, the Political Security Directorate, the Directorate General of Intelligence Services and the Directorate of Air Force Intelligence Services. The centres controlled by these services are not accessible by independent monitoring and inspection bodies, and are not subject to review by the authorities. The Committee is further concerned that detainees are deprived of fundamental legal safeguards, including an oversight mechanism in regard to their treatment and review procedures in respect to their detention. The Committee is also concerned at allegations that those detained in such facilities could be held for prolonged periods without any judicial review, in practice in incommunicado detention and subject to torture or cruel, inhuman or degrading treatment (arts. 2, 11 and 16).

The State party should ensure that no one is detained in a secret detention facility under its de facto effective control. As often reiterated by the Committee, detaining persons in such conditions constitutes, per se, a violation of the Convention. The State party should also investigate and disclose the existence of any such facilities, the authority under which they have been established and the manner in which detainees are treated in such facilities. The Committee urges the State party to close all such facilities.

Complaint mechanism

(16)Notwithstanding the information provided to the Committee in the State party report on the possibility for a person to submit to the Office of the Public Prosecutor a complaint of torture allegedly committed by a public official, the Committee regrets the lack of an independent complaint mechanism for receiving and conducting impartial and full investigations into the many allegations of torture reported to the authorities, and for ensuring that those found guilty are appropriately punished. The Committee also regrets the absence of information, including statistics, on the number of complaints of torture and ill-treatment and results of all proceedings, at both the penal and disciplinary levels (art. 2, 5, 12, 13 and 16).

The State party should take urgent and effective measures to establish a fully independent complaint mechanism, should ensure prompt, impartial and full investigations into the many allegations of torture and should prosecute alleged perpetrators and punish them, as appropriate. The State party should ensure in practice that complainants are protected against any ill-treatment or intimidation as a consequence of his/her complaint or any evidence given. 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 information about the results of the proceedings, at both the penal and disciplinary levels.

Refugees and asylum-seekers

(17)While noting with appreciation the State party’s generous policy to admit and grant permission to stay to a significant number of nationals from Iraq and the Occupied Palestinian Territories, the Committee is concerned at the absence in the State party of a national procedure for the determination of refugee status and that the national legislation on aliens does not recognize any special status attributed by the Office of the United Nations High Commissioner for Refugees (UNHCR). The Committee notes with concern that the State party has not acceded to the Convention relating to the Status of Refugees (1951) and the Optional Protocol (1967) thereto, nor to the Convention relating to the Status of Stateless Persons (1954) or to the Convention on the Reduction of Statelessness (1961) (arts. 2, 3, 11 and 16).

The State party should establish a national procedure for determination of refugee status and amend its national legislation to recognize special status attributed by UNHCR. The Committee recommends that the State party consider becoming party to the Refugee Convention, the Optional Protocol thereto and other related international legal instruments.

Non-refoulement

(18)The Committee is seriously concerned by the numerous reports of expulsion, return or deportation, including several cases concerning recognized refugees or asylum-seekers registered with UNHCR, in violation of the non-refoulement principle contained in article 3 of the Convention. The Committee is further concerned at reports that the participation of the Syrian Arab Republic in the so-called “war on terror” has resulted in secret detentions and renditions of terrorism suspects, in breach of the principle of non-refoulement (art. 3).

The State party should formulate, adopt into its domestic law and effectively implement legal provisions in line with article 3 of the Convention, including guaranteed fair treatment at all stages of the proceedings and an opportunity for effective, independent and impartial review of decisions on expulsion, return or extradition. 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 would be in danger of being subjected to torture or ill-treatment. Furthermore, the State party should ensure protection from refoulement, including by refraining from expelling or forcibly returning persons who hold a UNHCR Refugee Certificate or Asylum Seeker Certificate. Furthermore, the State party should establish an independent investigation to follow up on allegations of its involvement in “extraordinary renditions” and inform the Committee of the outcome of such investigation in its next periodic report.

(19)The Committee is further concerned about the continued administrative detention, for indefinite — and thus arbitrary — periods of time, of Iranian nationals of Arab (Ahwazi) ethnic descent pending deportation (art. 3).

The State party should provide information on the situation of Iranian nationals of Arab (Ahwazi) ethnic descent and measures taken to ensure their protection against refoulement.

Training

(20)The Committee takes note of the information on trainings, seminars and courses on human rights for police officers included in the State report and provided during the oral presentation. However, the Committee regrets that there was sparse and inadequate information on training programmes for security and intelligence personnel, as well as for 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. The Committee also regrets the lack of information onmonitoring 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 programmes to ensure that all officials, including law enforcement, security, intelligence 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, 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), which should be utilized effectively. In addition, the State party should assess the effectiveness and impact of such training/educational programmes.

Enforced disappearances

(21)The Committee is deeply concerned at the numerous reports regarding a high number of persons involuntary disappeared in the State party. The 2009 report of the Working Group on Enforced or Involuntary Disappearances (A/HRC/13/31)) refers to allegations of enforced disappearance of 28 persons, on which the delegation failed to provide sufficient and precise explanations and information. Furthermore, the Committee has received numerous and credible reports pointing at a much higher number of persons subjected to disappearance. These allegations concern, in particular, the disappearances of members of the Muslim Brotherhood and those that occurred during the military presence of the Syrian Arab Republic in Lebanon since the early 1970s. The Committee has been informed about the Lebanese-Syrian official commission that was established on 31 July 2005 to look into the issue of disappeared Syrians in Lebanon and disappeared Lebanese in the Syrian Arab Republic. A total of 640 cases were submitted to the commission, but no further action has been taken to investigate these cases. Furthermore, the Secretary General of the Lebanese Centre for Human Rights, who is also a member of the Executive Committee of the Euro-Mediterranean Human Rights Network, has not been permitted entry to the State party to research these matters. The Committee expresses its concern that the competent authorities have not initiated proceedings to investigate the fate of missing persons and to identify, prosecute and punish the perpetrators of enforced disappearances, which constitutes a violation of the Convention (arts. 1, 2, 11, 12, 13, 14 and 16).

The State party should as a matter of urgency investigate every case of reported enforced disappearances and communicate the results of the investigations to the families of missing persons. The Committee urges the State party to establish, within an appropriate time frame, an independent commission of inquiry into all disappearances, including of members of the Muslim Brotherhood and those that occurred during the military presence of the Syrian Arab Republic in Lebanon since the early 1970s, to prosecute and punish perpetrators and to provide effective remedies and rehabilitation to the victims. The Committee encourages the State party to collaborate with international organizations on questions of enforced and involuntary disappearances.

Investigations

(22)Taking into account the explanations provided by the State party during the dialogue, the Committee continues to be concerned about the reported riots that took place in Sednaya prison on 4 July 2008 where, following protest actions from the prison population an action was initiated by the police, that resulted in a number of persons injured or killed. Despite repeated requests for an investigation and confirmation as to the number and names of those killed and injured, there has been no official and independent investigation into or public announcement of the identities of persons killed or injured, nor any information on action taken to clarify the use of force and other circumstances surrounding the event (art. 12).

The State party should urgently carry out an independent investigation of the Sednaya prison incident of July 2008 and provide the Committee with detailed information on the circumstances of the death of prisoners in that incident. The State party should also inform the families of the prisoners involved in the incident as to whether their relatives are alive and still held in prison. The State party should further inform the Committee as to whether it conducts regular monitoring in this prison.

(23)The Committee is concerned about the case of three Canadian nationals, Ahmed Al-Maati (arrested on his arrival at the Damascus airport on 12 November 2001), Abdullah Almalki (arrested on his arrival at the Damascus airport on 3 May 2002) and Maher Arar (arrested in September 2002 in the United States of America, where he was detained without legal procedure for 15 days before being deported to Jordan and then to the Syrian Arab Republic). The Committee is concerned that they were detained and allegedly tortured in the largest detention centre controlled by the intelligence services, the Military Intelligence Palestine Branch Centre, due to suspected links with Al-Qaida. The Committee notes with concern that no investigation has been undertaken on this case and no compensation has been provided to the victims. The Committee notes with concern the failure of the State party to conduct a full and effective investigation on this case (arts. 12, 13 and 14).

The Committee urges the State party to institute a prompt, thorough and impartial investigation into the cases of Ahmed Al-Maati, Abdullah Almalki and Maher Arar in order to ensure that all persons allegedly responsible for violations of the Convention are investigated and brought to justice. The Committee recommends that such investigations be undertaken by independent experts in order to examine all information thoroughly and reach conclusions as to the facts and measures taken and to provide compensation to victims.

(24)The Committee is concerned about the prolonged detention in the case of Abdelkader Mohammed Sheikh Ahmed, who served his sentence and should have been released in 1979 but who, according to the information before the Committee, was still in prison in 2004. The Committee regrets that no further information about this case was provided in the dialogue (art. 12).

The Committee urges the State party to provide information about the current situation of Abdelkader Mohammed Sheikh Ahmed, and to institute a prompt, thorough and impartial inquiry into the case and on the reasons for him not being released after having served his sentence. The Committee recommends that such investigations be undertaken by independent experts in order to examine all information thoroughly, to reach conclusions as to the facts and measures taken and to ensure that those responsible for the violations are brought to justice.

Lack of legal protection of women and impunity for crimes committed in the name of “honour”

(25)The Committee notes with concern that the State party report lacks information on the legal regime and practice affecting women. The Committee expresses its concern on numerous reports informing that violence against women, as a form of discrimination, is a widespread problem in the State party and that the law reform process has been delayed, namely the amendment of the Personal Status Act, Penal Code and Nationality Act, and as a result, a culture of impunity towards domestic and gender-based violence has evolved. In this respect, the Committee expresses its serious concern that crimes, where a family’s “honour” is thought to be breached, often go unpunished, and when they are, the sentences are far less than those for equally violent crimes without this “honour” dimension (arts. 1, 2, 4 and 16).

The Committee calls upon the State party to put in place comprehensive measures to address all forms of violence against women and enact, as soon as possible, legislation on violence against women, including on domestic violence. The Committee further calls upon the State party to amend, without delay, applicable provisions of the Penal Code to ensure that perpetrators of “honour” crimes do not benefit from a penalty reduction under article 548. The Committee also urges the State party to ensure that “honour” crimes are treated as seriously as other violent crimes with regard to investigation and prosecution, and that effective prevention efforts are put in place.

(26)While noting information provided by the delegation of the State party during the dialogue, the Committee is gravely concerned at the practice of allowing perpetrators of rape to escape prosecution by marrying their victims (art. 508 of the Penal Code), or allowing families to waive their “right to complain” (arts. 2, 13 and 16).

Recalling that numerous international judicial and quasi-judicial bodies have established that rape is a form of torture, the Committee calls upon the State party to withdraw the exculpatory provision in article 508 of the Penal Code and ensure that a rapist does not escape punishment by marrying his victim.

Domestic violence

(27)The Committee is concerned at the absence of information in the report regarding measures taken to combat torture and ill-treatment affecting women and girls, particularly in view of the prevalence of domestic violence and other forms of gender-based violence in the State party. In this respect, the Committee notes with concern that marital rape is not a criminal offence under the law. The Committee is further concerned that the national legislation fails to explicitly criminalize domestic violence or provide adequately for the prosecution of those who perpetrate it, in particular, it is concerned that the definition of rape in article 489 of the Penal Code excludes marital rape, that article 508 of the Penal Code exempts rapists from punishment if they marry their victims, and that article 548 of the Penal Code exonerates perpetrators of “honour” crimes. The Committee also expresses its concern at the lack of data, including statistics on complaints, prosecutions and sentences relating to domestic violence (arts. 1, 2, 4, 12 and 16).

(a) The State party should take immediate action to strengthen its efforts to prevent and combat violence against women and children and to ensure prompt, impartial and effective investigations of such acts, and to prosecute and punish perpetrators. The Committee also urges the State party to take necessary measures to ensure that the legal provisions in national legislation cover the many forms of violations committed against women, including making marital rape a criminal offence;

(b) The State party is encouraged to participate directly in rehabilitation and legal assistance programmes and to conduct broader awareness campaigns for officials (judges, law officers, law enforcement agents and welfare workers) who are in direct contact with the victims;

(c) The State party should provide victims in the process of filing complaints on rape, abuse and other forms of gender-based violence with protection from further abuse;

(d) The State party should also strengthen its efforts in respect of research and data collection on the extent of domestic violence, and it is requested to provide the Committee with statistical data on complaints, prosecutions and sentences in its next periodic report.

Trafficking in persons

(28)While welcoming the ratification by the State party of the International Convention for the Suppression of the Traffic in Women and Children of 1921, the International Convention for the Suppression of the Traffic in Women of Full Age of 1933 and the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of 1950, the Committee expresses its concern 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, as well as on the concrete measures adopted to prevent and combat such phenomena (arts. 1, 2, 4, 12 and 16).

The Committee recommends the adoption of a specific law against trafficking in persons which determines the crimes and adequate penalties and foresees the adoption of measures to facilitate the rehabilitation and social integration of victims of human trafficking. The State party should increase its efforts to prevent and combat the trafficking of women and children, including by implementing the current laws combating trafficking, 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 perpetrators are brought to justice and punished with penalties appropriate to the nature of their crimes.

Redress and compensation for victims of torture, including rehabilitation

(29)The Committee notes that the Code of Criminal Procedures and the Criminal Code contain some provisions on the right to obtain compensation by applying to a competent court which will award fair and appropriate compensation, taking into account all material and psychological damage incurred. The Committee notes with concern the absence of information on any treatment and social rehabilitation services and other forms of assistance, including medical and psychosocial rehabilitation, provided to victims (art. 14).

The State party should take the necessary measures to ensure the effective application of the law and provide all victims of torture and ill-treatment with redress, including fair and adequate compensation and as full rehabilitation as possible. The State party should provide, in its next periodic report, information on redress and compensation measures ordered by the courts and provided to 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 any ongoing reparation programmes, including for treatment of trauma and other forms of rehabilitation provided to victims of torture and ill-treatment, as well as on the allocation of adequate resources to ensure the effective functioning of such programmes.

Conditions of detention

(30)While noting that the Prison Regulation in the Syrian Arab Republic provides for the delivery of health care to prisoners, the Committee is concerned about information received on the deplorable living conditions in places of detention, prison overcrowding, lack of hygiene, insufficient food, health risks and inadequate health care. The Committee is also concerned about the failure of the State party to separate juveniles from adults (arts. 11 and 16).

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

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

(b) Improving the food and the health care provided to detainees;

(c) Improving the conditions of detention for minors, ensuring that they are detained separately from adults;

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

Children in detention

(31)While noting the State party’s information that juvenile offenders are not given criminal records and are not subjected to capital punishment, the Committee is concerned by the fact that the Juvenile Offenders Act No. 18 applies only to children under the age of 15 (arts. 2, 11 and 16).

The State party should classify all persons under 18 as juveniles in order to extend the protection offered by the Juvenile Offenders Act.

Deaths in custody

(32)The Committee expresses its concern at credible reports on a number of deaths in custody and on the alleged restrictions on independent forensic examination into the cases of such deaths (arts. 12 and 16).

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

Coerced confessions

(33)The Committee is concerned at the lack of legal provisions explicitly prohibiting the use of confessions and statements obtained as result of torture as evidence in judicial proceedings. It is alarmed by reports that confessions obtained by torture are invoked as a form of evidence in proceedings, especially in the Supreme State Security Court and the military courts, and that the defendants’ claims that they have been tortured are almost never investigated (art. 15).

The State party should amend the Code of Criminal Procedure to explicitly prohibit the use of any statement obtained as a result of torture as a form of evidence in judicial proceedings. It should also take the necessary measures to ensure that statements made under torture are not invoked as evidence in any proceedings, except against a person accused of torture, in accordance with the provisions of the Convention. The State party is requested to review criminal convictions based solely on confessions, especially those ruled by the Supreme State Security Court and military courts, in order to identify instances of wrongful conviction based on evidence obtained through torture or ill-treatment and to take appropriate remedial measures.

Human rights defenders

(34)The Committee is concerned about reports of persisting acts of harassment and persecution, including threats and other human rights violations, experienced by human rights defenders, and about the fact that such acts go unpunished (arts. 12 and 16).

The State party should take all necessary steps to ensure that all persons, including those monitoring human rights, are protected from any intimidation or violence as a result of their activities and exercise of human rights guarantees, to ensure the prompt, impartial and effective investigation into such acts, and to prosecute and punish perpetrators and provide compensation to victims.

(35)The Committee is concerned about the case of Muhannad Al-Hassani, president of the Syrian Human Rights Organization (Swasiah), arrested on 28 July 2009 and charged with “weakening national sentiment” and “spreading false or exaggerated information” in connection with his monitoring of the Supreme State Security Court. The Committee is also concerned about the case of Haytham al-Maleh, a 79-year-old prominent human rights lawyer who has been jailed repeatedly and is now on trial (art. 12 and 16).

The Committee urges the State party to provide information about the legal situation and physical and mental integrity of Muhannad Al-Hassani, as well as information about the ongoing trial of Haytham al-Maleh.

National human rights institution

(36)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 Paris Principles (art. 2).

The State party should 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 (the Paris Principles), annexed to General Assembly resolution 48/134.

Data collection

(37)While noting that some statistics have been provided, the Committee regrets the lack of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions of cases of torture by law enforcement officials, as well as on trafficking in persons and domestic and sexual violence (arts. 2, 12, 13 and 16).

The State party should establish an effective system to gather all relevant statistical data in order to monitor the implementation of the Convention at the national level, including complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment, trafficking in persons and domestic and sexual violence.

Cooperation with United Nations human rights mechanisms

(38)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 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.

(39)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.

(40)The State party should consider withdrawing its reservation to article 20 of the Convention.

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

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

(43)The Committee invites the State party to ratify the core United Nations human rights treaty to which it is not yet a party, namely, the International Convention for the Protection of All Persons from Enforced Disappearance.

(44)The Committee invites the State party to submit its core document in accordance with the new requirements of the common core document in the harmonized guidelines on reporting, as approved by the international human rights treaty bodies (HRI/GEN/2/Rev.6).

(45)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.

(46)The Committee requests the State party to provide, within a year, information on its response to the Committee’s recommendations contained in paragraphs 15, 24, 25 and 35.

(47)The State party is invited to submit its next periodic report, which will be the second report, by 14 May 2014.

64. Yemen

(1)The Committee against Torture considered the second periodic report of Yemen (CAT/C/YEM/2) at its 898th meeting (CAT/C/SR.898), held on 3 November 2009, and adopted, at its 917th meeting (CAT/C/SR.917), provisional concluding observations (CAT/C/YEM/CO/2). The Committee met with a delegation from the State party at its 943rd meeting (CAT/C/SR.943), on 6 May 2010. Pursuant to rule 66, paragraph 2 (b), of its rules of procedure, the Committee reviewed the provisional concluding observations in the light of the replies to the list of issues provided by the State party (CAT/C/YEM/Q/2/Add.1), and adopted, at its 952nd meeting (CAT/C/SR.952), its final concluding observations as set out below.

A. Introduction

(2)The Committee welcomes the submission of the second periodic report of Yemen, which, while generally following the Committee’s guidelines for reporting, lacks statistical and practical information on the implementation of the provisions of the Convention and relevant domestic legislation. However, the Committee regrets the delay in the submission of the report and the written responses to its list of issues (CAT/C/YEM/Q/2) and that the State party has not responded to the letter of 21 April 2006, in which the Committee Rapporteur for follow-up to concluding observations requested further information on Yemen (CAT/C/CR/31/4 and Add.1).

(3)The Committee regrets the absence of a delegation from the State party able to enter into a dialogue with it during its consideration of Yemen at the forty-third session, and notes that, owing to the absence of representatives from the State party, the examination of the report took place in accordance with rule 66, paragraph 2 (b), of its rules of procedure. The Committee welcomes, however, that a high-level delegation from the State party met with the Committee during its forty-fourth session to provide further information about recent developments and relevant measures pertaining to the implementation of the Convention in the State party. While regretting that the State party did not submit written responses and comments to the provisional concluding observations, the Committee welcomes the State party’s submission of replies to the list of issues (CAT/C/YEM/Q/2/Add.1). The Committee urges the State party, in the future, to comply fully with its obligations under article 19 of the Convention.

B. Positive aspects

(4)The Committee welcomes the fact 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 Convention on the Rights of Persons with Disabilities and the Optional Protocol thereto, in 2009;

(b)The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, in 2007;

(c)The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in 2004.

(5)The Committee notes the ongoing efforts by the State to reform its legislation, policies and procedures 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 State party’s signature of several memorandums of understanding with the United Nations High Commissioner for Refugees in 2004, 2005 and 2007, including its commitment to prepare a refugee law and to promote it;

(b)The State party’s comprehensive review of the criminal justice legislation and its implementation in Yemen, including in relation to the right not to be subjected to torture;

(c)The various human rights education and training activities and the State party’s openness to international cooperation.

C. Principal subjects of concern and recommendations

Implementation of the Convention

(6)The Committee notes with concern that the conclusions and recommendations it addressed to Yemen in 2003 have not been sufficiently taken into consideration. The Committee stresses the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. In its view, cultural and religious specificities may be taken into consideration in order to develop adequate means to ensure respect for universal human rights, but they cannot jeopardize the implementation of all provisions of the Convention or negate the rule of law. In this respect, the Committee notes with concern the establishment, in 2008, of a commission to protect virtue and fight vice, and the lack of information on the mandate and jurisdiction of this commission, existing appeal procedures, and whether it is subject to review by ordinary judicial authorities (art. 2).

The State party should implement in good faith all recommendations addressed to it by the Committee and find ways to ensure that its religious principles and laws are compatible with human rights and its obligations under the Convention. In this respect, the Committee draws the attention of the State party to its general comment No. 2 on the implementation of article 2. The State party is requested to provide information on the mandate of the new virtue and vice commission, its appeal procedures and whether it exercises a precise jurisdiction in full conformity with the requirements of the Convention or is subject to review by ordinary judicial authorities.

Definition of torture

(7)While noting that the Constitution of Yemen prohibits torture, the Committee reiterates its concern at the lack of a comprehensive definition of torture in the domestic law as set out in article 1 of the Convention (CAT/C/CR/31/4, para. 6 (a)). The Committee is concerned that the current definition in the Constitution prohibits torture only as a means of coercing a confession during arrest, investigation, detention and imprisonment, and that punishment is limited to individuals who order or carry out acts of torture and does not extend to individuals who are otherwise complicit in such acts. The Committee is also concerned that, while the Constitution provides that crimes involving physical or psychological torture should not be subject to a statute of limitations, the criminal procedure law may include a statute of limitations (arts. 1 and 4).

The State party should incorporate the crime of torture into domestic law and adopt a definition of torture that covers all of the elements contained in article 1 of the Convention. By naming and defining the offence 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. The State party is requested to clarify to the Committee whether acts of torture are subject to a statute of limitations; if so, the