State party

Report

Concluding observations

Belarus

Fourth periodic report

CAT/C/BLR/4

CAT/C/BLR/CO/4

Bulgaria

Fourth and fifth periodic reports

CAT/C/BGR/4-5

CAT/C/BGR/CO/4-5

Djibouti

Initial report

CAT/C/DJI/1

CAT/C/DJI/CO/1

Germany

Fifth periodic report

CAT/C/DEU/5

CAT/C/DEU/CO/5

Madagascar

Initial report

CAT/C/MDG/1

CAT/C/MDG/CO/1

Morocco

Fourth periodic report

CAT/C/MAR/4

CAT/C/MAR/CO/4

Paraguay

Fourth to sixth periodic reports

CAT/C/PRY/4-6

CAT/C/PRY/CO/4-6

Sri Lanka

Third and fourth periodic reports

CAT/C/LKA/3-4

CAT/C/LKA/CO/3-4

45.The following reports, with the exception of the special report requested of the Syrian Arab Republic, were before the Committee at its forty-eighth session, and it adopted the following concluding observations:

State party

Report

Concluding observations

Albania

Second periodic report

CAT/C/ALB/2

CAT/C/ALB/CO/2

Armenia

Third periodic report

CAT/C/ARM/3

CAT/C/ARM/CO/3

Canada

Sixth periodic report

CAT/C/CAN/6

CAT/C/CAN/CO/6

Cuba

Second periodic report

CAT/C/CUB/2

CAT/C/CUB/CO/2

Czech Republic

Fourth and fifth periodic reports

CAT/C/CZE/4-5

CAT/C/CZE/CO/4-5

Greece

Fifth and sixth periodic reports

CAT/C/GRC/5-6

CAT/C/GRC/CO/5-6

Rwanda

Initial report

CAT/C/RWA/1

CAT/C/RWA/CO/1

Syrian Arab Republic

Special report

Report not submitted

CAT/C/SYR/CO/1/Add.2

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

47.At its forty-seventh session, taking into consideration the situation in the State party, the Committee invited the Syrian Arab Republic to submit a special report to the Committee by 9 March 2012. The State party declined to submit a report and to send representatives to participate in the dialogue with the Committee.

48.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.

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

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

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

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

B.Concluding observations on States parties’ reports

51.The text of concluding observations adopted by the Committee with respect to the above-mentioned reports submitted by States parties, as well as on the Syrian Arab Republic, is reproduced below.

52. Belarus

(1)The Committee against Torture considered the fourth periodic report of Belarus (CAT/C/BLR/4) at its 1036th and 1039th meetings, held on 11 and 14 November 2011 (CAT/C/SR.1036 and 1039), and adopted the following concluding observations at its 1053rd meeting (CAT/C/SR.1053).

A. Introduction

(2)While welcoming the submission of the fourth report of Belarus, the Committee regrets that it was submitted nine years late, which prevented the Committee from conducting an analysis of the implementation of the Convention in the State party following its last review in 2000.

(3)The Committee regrets that no representatives of the State party could come from the capital to meet with the members of the Committee during the current session; however, it notes with appreciation the opportunity to engage in a constructive dialogue covering many areas under the Convention.

B. Positive aspects

(4)The Committee welcomes the fact that the State party has ratified or acceded to the following international instruments:

(a)Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (3 February 2004); and

(b)Two Optional Protocols to the Convention on the Rights of the Child (23 January 2002 and 25 January 2006).

(5)The Committee notes the ongoing efforts by the State party to reform its legislation, policies and procedures in areas of relevance to the Convention, including:

(a)Revision of the Criminal Code, Penal Enforcement Code and Code of Criminal Procedure, which entered into force on 1 January 2001;

(b)Adoption of the Detention Procedures and Conditions Act in 2003; and

(c)Adoption of the new Law on Provision of Refugee Status, Complementary and Temporary Protection to Foreign Citizens and Stateless Persons, in 2008.

C. Principal subjects of concern and recommendations

Fundamental legal safeguards

(6)The Committee is seriously concerned about numerous, consistent reports that detainees are frequently denied basic fundamental legal safeguards, including prompt access to a lawyer and medical doctor and the right to contact family members, and this pertains especially to those detainees charged under article 293 of the Criminal Code. Such reports include cases raised jointly by several special procedure mandate holders, including the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and pertaining to, inter alia, Andrei Sannikov who made an allegation during trial in May 2011 about the denial of his rights to prompt access to lawyer, to contact family and to medical treatment despite injuries caused by the authorities during arrest, and Vladimir Neklyaev (A/HRC/17/27/Add.1, para. 249). While noting the Act No.215-Z of 16 June 2003 on detention procedure and conditions, the Committee expresses its serious concern at the State party’s failure in practice to afford all persons deprived of their liberty, including detainees held in pretrial detention facilities of the State Security Committee (KGB) and under administrative detention, with all fundamental legal safeguards, as referred to in paragraphs 13 and 14 of the Committee’s general comment No. 2 (2008) on implementation of article 2 by States parties, from the very outset of detention (arts. 2, 11 and 12).

The Committee recommends the State party to:

(a) Ensure that all detainees are afforded, by law and in practice, all fundamental legal safeguards from the very outset of their detention, including the rights to prompt access to a lawyer and a medical examination by an independent doctor, to contact family members, to be informed of their rights at the time of detention, including about the charges laid against them, and to appear before a judge promptly;

(b) Guarantee the access of detained persons, including those under administrative detention, to challenging the legality of their detention or treatment; and

(c) Take measures to ensure audiotaping or videotaping of all interrogations in police stations and detention facilities as a further means to prevent torture and ill-treatment.

(7)The Committee is concerned at the limited access to the central registry of detainees by family members and lawyers of detainees. It further regrets the lack of proper registration of detainees (arts. 2, 11 and 12).

The Committee recommends the State party to ensure prompt registration of all persons deprived of their liberty following apprehension and access to the register by lawyers and relatives of those detained.

(8)The Committee is concerned by numerous allegations that officers in plain clothes carry out arrests, making identification impossible when complaints of torture or ill-treatment were presented. The Committee notes with concern reports that a number of presidential candidates were arrested and detained by men in plain clothing (A/HRC/17/27/Add.1, para. 250) and allegations made by several detainees, including Andrei Sannikov and Vladimir Neklyaev, that they were subjected to torture by masked men while in pretrial detention (arts. 2, 12 and 13).

The State party should monitor compliance with legislation that requires all law enforcement officers on duty, including riot police (OMON), the KGB personnel, to wear identification, 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, and subject law enforcement officers who violate the Convention to investigation and punishment with appropriate penalties.

Enforced disappearances

(9)The Committee notes the information from the representatives of the State party that a database on disappearances is maintained. Nevertheless, the Committee regrets that the State party failed to provide sufficient information about disappearances, in particular the following unresolved cases of disappearances: the former Minister of the Interior, Yury Zakharenko, the former First Secretary Chairman of the dissolved Belarusian Parliament, Viktor Gonchar and his companion Anatoly Krasovsky, and investigative television journalist Dmitry Zavadsky, raised by the Committee in 2000 (CAT/C/SR.442, para. 29) or submitted by the Working Group on Enforced or Involuntary Disappearances in 1999 (A/HRC/16/48) (arts. 2, 11, 12 and 16).

The State party should ensure investigation into the cases of disappeared persons with the aim of obtaining reliable information of their whereabouts and should clarify what happened to them. In particular, the State party should update the information about the four cases above, inter alia, the outcome of the investigation, any punishments or sanctions imposed on those responsible, any remedies provided for their relatives and the degree of access to the database on disappearances permitted for their lawyers and relatives.

Torture

(10)The Committee is deeply concerned over the numerous and consistent allegations of widespread torture and ill-treatment of detainees in the State party. According to the reliable information presented to the Committee, many persons deprived of their liberty are tortured, ill-treated and threatened by law enforcement officials, especially at the moment of apprehension and during pretrial detention. These confirm the concerns expressed by a number of international bodies, inter alia, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Human Rights Council (resolution 17/24), the United Nations High Commissioner for Human Rights and the Organization for Security and Cooperation in Europe. While noting article 25 of the Constitution which prohibits torture, the Committee is concerned about the substantial gap between the legislative framework and its practical implementation (arts. 2, 4, 12 and 16).

As a matter of urgency, the State party should take immediate and effective measures to prevent acts of torture and ill-treatment throughout the country, including by implementing policies that would produce measurable results in the eradication of torture and ill-treatment by State officials.

Impunity and lac k of independent investigation

(11)The Committee continues to be deeply concerned about the persistent and prevailing pattern of failure of officials to conduct prompt, impartial and full investigations into the many allegations of torture and ill-treatment and to prosecute alleged perpetrators, the lack of independent investigation and complaint mechanisms, the intimidation of the judiciary, the low level of cooperation with international monitoring bodies, which have led to serious underreporting and impunity (arts. 2, 11, 12, 13 and 16). In particular, the Committee is concerned about:

(a)The lack of an independent and effective mechanism for receiving complaints and conducting prompt, impartial and effective investigations into allegations of torture, in particular of pretrial detainees;

(b)Information suggesting that serious conflicts of interest prevent the existing complaints mechanisms from undertaking effective, impartial investigations into complaints received;

(c)The lack of congruence in information before the Committee regarding complaints presented by persons in detention. The Committee notes with serious concern the information about reprisals against those who file complaints and the cases of denial of the complaints made by detainees, including the cases of Ales Mikhalevich and Andrei Sannikov; and

(d)Reports indicating that no officials have been prosecuted for having committed acts of torture. According to information before the Committee, over the last 10 years, only four law enforcement officers have been charged with the less serious offence, “abuse of power or official authority” and “transgression of power or official authority” under articles 424 and 426 of the Criminal Code.

The Committee urges the State party to take all necessary measures to ensure that all allegations of torture and ill-treatment by public officers are promptly investigated in the course of transparent and independent inquiries and that the perpetrators are punished according to the gravity of their acts. To that end, the State party should:

(a) Establish an independent and effective mechanism to facilitate submission of complaints by victims of torture and ill ‑treatment to public authorities, including obtaining medical evidence in support of their allegations, and to ensure in practice that complainants are protected against any ill-treatment or intimidation as a consequence of their complaint or any evidence given. In particular, as previously recommended (A/56/44, para. 46 (c)), the State party should consider establishing an independent and impartial governmental and non-governmental national human rights commission with effective powers to, inter alia, promote human rights and investigate all complaints of human rights violations, in particular those pertaining to the implementation of the Convention;

(b) 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 liable to criminal penalties;

(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; and

(d) Provide the outcome of the investigation into the allegations raised by the Committee, including cases of Ales Mikhalevich, Andrei Sannikov, Alexander Otroschenkov, Vladimir Neklyaev, Natalia Radina and Maya Abromchick, and the broader allegations of indiscriminate and disproportionate force used by riot police against approximately 300 people in Independence Square on 19 December 2010.

Independence of the judiciary

(12)While noting that article 110 of the Constitution and article 22 of the Code of Criminal Procedure provide for an independent judiciary, the Committee is deeply concerned that other provisions in Belarusian law, specifically those on discipline and removal of judges, their appointment and tenure, undermine these provisions and do not guarantee judges’ independence towards the executive branch of Government (arts. 2, 12 and 13). In particular, the Committee is concerned about:

(a)The intimidation and interference in the discharge of the professional functions of lawyers, as noted with concern by the Special Rapporteur on the independence of judges and lawyers (A/HRC/17/30/Add.1, para. 101). The Committee remains concerned that bar associations, although independent by law, are in practice subordinate to the Ministry of Justice and that several lawyers defending individuals detained in connection with the event on 19 December 2010 were disbarred by the Ministry of Justice; and

(b)Cases in which judicial bias in favour of the prosecution was alleged, including the case of Vladimir Russkin, who claimed he was forbidden to call his own witnesses and to question those presenting evidence against him as well as the courts’ performance in several trials related to the event of 19 December 2010.

In light of its previous recommendation (A/56/44, para. 46 (d)), the Committee urges the State party to:

(a) Guarantee the full independence of the judiciary in line with the Basic Principles on the Independence of the Judiciary;

(b) Ensure that judicial selection, appointment, compensation and tenure are made according to objective criteria concerning qualification, integrity, ability and efficiency; and

(c) Investigate the cases of lawyers who represented individuals detained in connection with the events of 19 December 2010 and were subsequently disbarred, including Pavel Spelka, Tatsiana Aheyeva, Uladszimir Toustsik, Aleh Aleyeu, Tamara Harayeva, and Tamara Sidarenka, and reinstate their licenses, as appropriate.

Monitoring and inspection of places of deprivation of liberty

(13)While noting the information on the detention monitoring activities by the Office of the Procurator-General, the national public watchdog commission of the Ministry of Justice and local watchdog commissions, the Committee is deeply concerned by the reported lack of independence of the national monitoring system and the lack of information on effective procedures and reporting practices. The Committee also regrets reports on the alleged misuse of psychiatric hospitalization for other reasons than medical ones, and the lack of inspection of psychiatric hospitals (arts. 2, 11 and 16).

The Committee urges the State party to establish fully independent bodies with the capacity to perform independent and effective unannounced visit to places detention and ensure that their members include diverse and qualified legal and medical professionals familiar with the relevant international standards, as well as independent experts and other representatives of civil society. The State party should also ensure that members are afforded an opportunity to inspect all places of detention without prior notice and speak privately with detainees, and that their findings and recommendations are made public in a timely and transparent manner.

Furthermore, the State party should make public detailed information on the place, time and periodicity of visits to places of deprivation of liberty, including psychiatric hospitals, and on the findings and the follow-up on the outcome of such visits. Such information should also be submitted to the Committee.

(14)The Committee is concerned at the lack of access for international monitoring mechanisms, both governmental and non-governmental, to detention facilities in Belarus. The Committee also expresses regret at the outstanding request for a country visit by the five mandate holders of the special procedures, particularly the Special Rapporteur on the question of torture and the Working Group on Enforced or Involuntary Disappearances, and the State party’s failure to response to requests for a visit by the Office of the United Nations High Commissioner for Human Rights (OHCHR) (arts. 2, 11 and 16).

The Committee urges the State party to:

(a) Grant access to independent governmental and non-government organisations to all detention facilities in the country, including police lock-ups, pretrial detention centres, security service premises, administrative detention areas, detention units of medical and psychiatric institutions and prisons;

(b) Strengthen further the cooperation with United Nations human rights mechanisms, particularly by permitting visits by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Special Rapporteur on the situation of human rights defenders, as accepted by the State party in the context of the universal periodic review (A/HRC/15/16, para. 97.17), as soon as possible; and

(c) Consider accepting the request by the United Nations High Commissioner for Human Rights for a visit by an OHCHR team.

National human rights institution

(15)In the light of recommendations made by several human rights mechanisms and the State party’s commitment made in the context of the universal periodic review to consider establishing a national human rights institution (A/HRC/15/16, para. 97.4), the Committee regrets the lack of progress made to that end (art. 2).

The Committee recommends the State party to work towards establishing a national human rights institution in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights ( Paris Principles).

Definition, absolute prohibition and criminalization of torture

(16)While noting the information provided by the State party that the definition of torture contained in article 1 of the Convention is used for the purpose of criminal prosecution of perpetrators of acts of tortures and the Office of the Procurator-General is preparing a bill on amendments to the criminal legislation, the Committee is concerned that such definition of torture has never been applied by domestic courts. The Committee remains concerned that the national legislation does not contain provisions defining torture and ensuring absolute prohibition of the torture. It is also concerned that articles 128 and 394 of the Criminal Code do not criminalize torture in accordance with article 4, paragraph 2, of the Convention (arts. 1, 2 and 4).

In the light of the Committee’s previous recommendation (A/56/44, para. 46 (a)) and the State party’s acceptance of the recommendations made in the course of the universal periodic review (A/HRC/15/16, paras. 97.28 and 98.21), the State party should, without delay, define and criminalize torture in its Criminal Code in full conformity with article 1 and 4 of the Convention. Furthermore, the Committee recommends that the State party ensure that the absolute prohibition against torture is non ‑derogable and that acts amounting to torture are not subject to any statute of limitations.

Applicability of the Convention in the domestic legal order

(17)While welcoming that the international treaties to which Belarus is a party are directly applicable under article 20 of Act on the Laws and Regulations, the Committee notes with concern the lack of information on court decisions in which the Convention has been directly invoked. The Committee regrets the reports that the Convention has never been applied in domestic courts, although this is possible in theory (arts. 2 and 10).

The Committee recommends that the State party take necessary measures to ensure de facto applicability of the provisions of the Convention in its domestic legal order and the practical implementation of article 20 of Act on the Laws and Regulations, inter alia, by providing extensive training to the judiciary and law enforcement personnel in order to make them fully aware of the provisions of the Convention and its direct applicability. Furthermore, the State party should report back on decisions of national courts or administrative authorities giving effect to the rights enshrined in the Convention.

Evidence obtained through torture

(18)While noting that article 27 of the Constitution prohibits the admissibility of evidence obtained through torture and that the State party accepted the recommendation made in the course of the universal periodic review to that end (A/HRC/15/16, para. 97.28), 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. Information before the Committee states that in some cases, judges relied on pretrial statements of the defendants which were conflicting with their testimony made during the trial, despite allegations of duress and intimidation. The Committee regrets the lack of information about the cases of Nikolay Avtukhovich and Vladimir Asipenka, who were convicted on the basis of witness statements that were later retracted and were alleged to have been obtained through torture (art. 15).

The State party should take the steps necessary to ensure that, in practice, confessions obtained under torture or duress are not admitted in court proceedings in line with relevant domestic legislation and article 15 of the Convention. The State party should ensure that judges ask all detainees whether or not they were tortured or ill-treated in custody and that judges order independent medical examinations whenever a suspect requires one in court. The judge should exclude such statements, in particular if the suspect so requests in court and the medical examination sustains the claim. Prompt and impartial investigations should be conducted whenever there is a reason to believe that an act of torture occurred, especially in cases where the sole evidence presented is a confession. In that regard, the State party should guarantee the access of international governmental or non-governmental organizations to court proceedings.

Furthermore, the Committee requests the State party to submit information on whether any officials have been prosecuted and punished for extracting confessions under torture and, if so, to provide details of the cases and any punishments or sanctions imposed on those responsible.

Conditions of detention

(19)While welcoming efforts made by the State party to improve the living condition of detained persons (CAT/C/BLR/4, paras. 21 ff.) and the State party’s acceptance of the recommendation made in the course of the universal periodic review to that end (A/HRC/15/16, para. 97.30), the Committee remains deeply concerned about continuing reports of poor conditions in places of deprivation of liberty, including an appeal by the Special Rapporteur on the question of torture concerning the conditions in several places of detention such as the SIZO in Minsk (A/HRC/4/33/Add.1, para. 16). This includes the problem of the overcrowding, poor diet and lack of access to facilities for basic hygiene and inadequate medical care (arts. 11 and 16).

The State party should intensify its efforts to bring the conditions of detention in places of deprivation of liberty into line with the Standard Minimum Rules for the Treatment of Prisoners and other relevant international and national law standards, in particular by:

(a) Reducing prison overcrowding and considering the establishment of non-custodial forms of detention in accordance with the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules);

(b) Ensuring all detainees’ access to and receipt of the necessary food and health care; and

(c) Ensuring that all minors are detained separately from adults throughout the whole period of their detention or confinement, and offering them educational and recreational activities.

(20)While noting the information by the delegation that the General Prosecutor’s office had received no complaints from women detainees on threats of violence against them, the Committee is concerned about reported acts or threats of violence, including sexual violence, by inmates and public officers, in places of detention (arts. 2, 11 and 16).

The Committee recommends the State party to take prompt and effective measures to combat prison violence more effectively in accordance with the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok rules). The State party should also establish and promote an effective mechanism for receiving complaints of sexual violence and ensure that law enforcement personnel are trained on the absolute prohibition of sexual violence, as a form of torture, and on how to receive such complaints.

Training

(21)The Committee regrets the lack of information on targeted training for medical and law enforcement personnel, security and prison officials, judicial officials and other persons involved with custody, interrogation or treatment of persons under State or official control on matters related to the prohibition of torture and cruel, inhuman or degrading treatment or punishment. The Committee further regrets lack of information evaluation and assessment of the training provided (art. 10).

The Committee recommends the State party to:

(a) Provide all persons charged with the various functions enumerated in article 10 of the Convention with regular training concerning the provisions of the Convention and the absolute prohibition of torture as well as rules, instructions and methods of interrogation, especially in cooperation with civil society organizations;

(b) Provide all relevant personnel, especially medical personnel, with specific training on how to identify signs of torture and ill-treatment and to use the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol);

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

(d) Regularly assess the effectiveness and impact of such training and educational programmes on the reduction of cases of torture and ill-treatment.

Violence against women and children, including domestic violence

(22)While welcoming measures taken by the State party to combat violence against women and children, the Committee is concerned about the persistence of such violence and the lack of information about (a) prosecutions of persons in connection with cases of violence against women and children, including domestic violence and (b) practical assistance and reparations provided to victims of such violence. The Committee notes with regret the high number of women killed as a result of domestic violence and the absence of separate criminal law provisions on domestic violence and marital rape, as raised by the Committee on the Elimination of Discrimination against Women (CEDAW/C/BLR/CO/7, para. 19) (arts. 2, 14 and 16).

The State party should strengthen its efforts to prevent, combat and punish violence against women and children, in particular domestic violence, inter alia, by amending its criminal legislation and providing victims of violence with the immediate protection and long-term rehabilitation of victims. Furthermore, the State party should conduct broader awareness-raising campaigns and training on domestic violence for judges, lawyers, law enforcement agencies, and social workers who are in direct contact with the victims and for the public at large.

Trafficking in persons

(23)While welcoming efforts by the State party to addressing trafficking in persons and bringing perpetrators to justice, the Committee is concerned at reports that trafficking in persons, particularly women, remains a considerable problem and that Belarus remains a country of origin, transit and destination for victims of trafficking (arts. 2, 10 and 16).

In the light of the recommendations made by the Special Rapporteur on trafficking in persons, especially women and children, following her visit to Belarus in May 2009 (A/HRC/14/32/Add.2, paras. 95 ff.), the State party should undertake effective measures, including through regional and international cooperation, to address the root causes of trafficking in persons, in particular its close link to sexual exploitation, continue to prosecute and punish perpetrators, provide redress and reintegration services to victims, and conduct training for law enforcement officials, particularly border and customs officials.

Redress, including compensation and rehabilitation

(24)The Committee regrets the lack of information on (a) redress and compensation measures, including the means of rehabilitation, ordered by the courts and actually provided to victims of torture, or their dependent, and (b) treatment and social rehabilitation services and other forms of assistance, including medical and psychosocial rehabilitation, provided to victims. The Committee regrets reports that Minsk City court dismisses claims seeking compensation for moral damage caused while in detention (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. Furthermore, the State party should provide information on redress and compensation measures ordered by the courts and provided to victims of torture or their families. This information should include the number of requests made and those granted, and the amounts ordered and actually provided in each case. In addition, 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.

Human rights defenders

(25)The Committee is deeply concerned by numerous and consistent allegations of serious acts of intimidation, reprisals and threats against human rights defenders and journalists, and the lack of information provided on any investigations into such allegations. The Committee notes with concern several reports on refusal to register independent non-governmental organizations, threats and acts of criminal prosecution, arrests, raids on offices and acts of intimidation, as indicated in the oral report by the United Nations High Commissioner for Human Rights presented to the Human Rights Council in September 2011 and urgent appeals made by the Special Rapporteur on the situation of human rights defenders and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. The Committee regrets that, despite the views of by the Human Rights Committee (communication No. 1296/2004) and several appeals by the Special Rapporteurs (A/HRC/17/27/Add.1, para. 331), the Supreme Court maintained the previous decision by the Ministry of Justice not to register Human Rights Centre Viasna (arts. 2, 12 and 16).

The State party should take all necessary steps to ensure the protection of human rights defenders and journalists from intimidation or violence as a result of their activities and the prompt, impartial and thorough investigation, prosecution and punishment of such acts. In particular, the Committee recommends that the State party:

(a) Acknowledge the crucial role of non-governmental organizations in assisting the State party in fulfilling its obligations under the Convention, and enable them to seek and receive adequate funding to carry out their peaceful human rights activities;

(b) Inform the Committee of the outcome of investigations of alleged threats against and harassment by the authorities of human rights defenders and journalists, including cases of two journalists, Irina Khalip and Andrzej Poczobut; the Chair of the Belarusian Helsinki Committee, Aleh Gulak; and the President of Viasna, Ales Byalyatski; and

(c) Update the status of implementation of the aforementioned decision of the Human Rights Committee that the complainants, 11 members of Viasna, are entitled to an appropriate remedy, including the re-registration of Viasna.

Refugees and asylum seekers

(26)While welcoming the adoption, in 2008, of the new Law on Provision of Refugee Status, Complementary and Temporary Protection to Foreign Citizens and Stateless Persons in Belarus, the Committee notes that the legislation and practice of its implementation need to be further revised in order to be fully in line with international human rights and refugee law (art. 3).

The Committee recommends the State party to 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. The State party should guarantee better protection for asylum se ekers, refugees and other persons in need of international protection, improve the quality of the State’s Refugee Status Determination procedure, and consider ratifying the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

Death penalty

(27)The Committee is concerned by reports of the poor conditions of persons sentenced to death, and regarding the secrecy and arbitrariness surrounding the execution of persons sentenced to death, including reports that the families of persons sentenced to the death penalty are only informed days or weeks after the execution has taken place, that they are not given the opportunity for a last visit to the prisoner, that the body of the executed prisoner is not handed over to the family and the place of burial is not disclosed to them. Furthermore, the Committee is deeply concerned at reports that some death row prisoners are not provided with fundamental legal safeguards and the discrepancy between reports of the authorities and other, various sources on this matter. Although the Committee notes that a parliamentary working group continues to consider the possibility of establishing a moratorium of the death penalty, it regrets the execution of two death row inmates whose cases were being reviewed by the Human Rights Committee, despite its request for interim measures (communication Nos. 1910/2009 and 1906/2009) (art. 16).

The State should take all necessary measures to improve the conditions of detention of persons on death row, and to ensure they are afforded all the protections provided by the Convention. Furthermore, it should remedy the secrecy and arbitrariness surrounding executions so that family members do not have added uncertainty and suffering. The Committee also recommends the State party to consider ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.

Data collection

(28)The Committee regrets the lack of comprehensive and disaggregated data on numerous areas covered by the Convention, inter alia, statistics on complaints, investigations, prosecutions and convictions of cases of torture and ill treatment by law enforcement, security and prison personnel, and enforced disappearances, trafficking and domestic and sexual violence (arts. 12 and 13).

The State party should compile and provide to the Committee statistical data relevant to the monitoring of the implementation of the Convention at the national level, including information on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment, trafficking, domestic and sexual violence, and outcomes of all such complaints and cases, including compensation and rehabilitation provided to victims.

Cooperation with United Nations human rights mechanisms

(29)The Committee recommends that the State party strengthen its cooperation with United Nations human rights mechanisms, including by permitting visits of the special procedure mandate holders who have made a request, inter alia, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the situation of human rights defenders, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Working Group on Enforced or Involuntary Disappearances.

(30)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.

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

(32)The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet a party, inter alia, the Convention for the Protection of All Persons from Enforced Disappearance and the Second Optional Protocol to the International Convention on Civil and Political Rights, aiming at the abolition of the death penalty. Noting the commitment made by the State party in the context of the universal periodic review (A/HRC/15/16, paras. 97.1 and 98.3), the Committee recommends that the State party work towards ratifying 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 and its Optional Protocol.

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

(34)The Committee requests the State party to provide, by 25 November 2012, follow-up information in response to the Committee’s recommendations related to (a) ensuring or strengthening legal safeguards for persons detained, (b) conducting, prompt, impartial and effective investigations, and (c) prosecuting suspects and sanctioning perpetrators of torture or ill-treatment, as contained in paragraphs 6, 11 and 14 of the present document, as well as redress and remedies provided to victims as relevant.

(35)The State party is invited to update its common core document (HRI/CORE/1/Add.70), in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6).

(36)The State party is invited to submit its next report, which will be the fifth periodic report, by 25 November 2015. To that purpose, the Committee invites the State party to accept, by 25 November 2012, to report under its optional reporting procedure, consisting in the transmittal, by the Committee to the State party, of a list of issues prior to the submission of the periodic. The State party's response to this list of issues will constitute, under article 19 of the Convention, its next periodic report to the Committee.

53. Bulgaria

(1)The Committee against Torture considered the combined fourth and fifth periodic reports of Bulgaria (CAT/C/BGR/4-5) at its 1032nd and 1035th meetings, on 9 and 10 November 2011, (CAT/C/SR.1032 and 1035), and adopted concluding observations at its 1054th meeting (CAT/C/SR.1054) on 24 November 2011.

A. Introduction

(2)The Committee welcomes the submission of the fourth and fifth combined periodic reports of Bulgaria, submitted in accordance with its reporting guidelines, regrettably two years late, and the replies to the list of issues (CAT/C/BGR/Q/4-5).

(3)The Committee appreciated the open and constructive dialogue with the State party’s high-level diverse delegation and thanks the delegation for its clear, frank and detailed answers to the questions raised by Committee members.

B. Positive aspects

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

(a)Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in 2011; and

(b)Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, in 2006.

(5)The Committee welcomes the signing of the bilateral agreement on cooperation concluded in June 2010 between Bulgaria and Greece to combat organized crime, including smuggling, human trafficking and drugs.

(6)The Committee notes the State party’s ongoing efforts to revise its legislation in areas of relevance to the Convention, including the amendment to the Constitution in 2007 establishing the Supreme Judicial Council, and:

(a)New Civil Procedure Code, in force since 1 March 2008, relating to compensation or rehabilitation provided to victims of torture;

(b)Judicial System Act, in force since 10 August 2007, and Judiciary Reform Strategy 2009–2013, adopted in 2009;

(c)Amendment to the Law on Asylum and Refugees providing a mechanism for the refugee status determination procedure, 2007;

(d)Assistance and Financial Compensation to Crime Victims Act, in force since 2007, and National Strategy for Assistance and Compensation to Crime Victims;

(e)New Administrative Procedure Code, in force since 12 July 2006, relating to prevention and punishment of torture and the possibility of foreigners to challenge expulsion orders;

(f)New Criminal Procedure Code, in force since 26 April 2006, regarding procedural guarantees of prohibition of torture and provisions to prevent torture and regulating police detention;

(g)Legal Aid Act (2006) and the establishment of the National Bureau of Legal Aid;

(h)Amendments to the new Health Act, in force since 1 May 2005, in relation to medical procedures for persons with mental disabilities;

(i)Several amendments to the Penal Code since 2004, especially with regard to article 287 relating to the Convention’s requirement for criminalizing the act of torture.

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

(a)Adoption of the Strategy for Development of Penitentiary Facilities (2009–2015) and the Programme for Improvement of Conditions at Places of Deprivation of Liberty, 2010;

(b)National Strategy for Children (2008–2018) and the Vision for Children’s Deinstitutionalization in the Bulgaria, adopted on 24 February 2010;

(c)Integrated Strategy for Combating Crime and Corruption, 2010;

(d)Strategy for Reforming Places of Detention (2009–2015);

(e)National Action Plan for the Initiative “Decade of Roma Inclusion 2005–2015” and Framework Programme for Integration of Roma in Bulgarian Society (2010–2020);

(f)National Action Plan for Mental Health (2004–2012).

C. Principal subjects of concern and recommendations

Definition, absolute prohibition and criminalization of torture

(8)The Committee is concerned that a comprehensive definition of torture incorporating all the elements of article 1 of the Convention is not included in the Penal Code and that torture is not criminalized as an autonomous offence in law, as required under the Convention. The Committee notes that the working group in the Ministry of Justice established to elaborate a new Penal Code has not as yet discussed the section with the provisions concerning a new crime incorporating the definition of torture (arts. 1 and 4).

The Committee urges the State party to adopt a definition of torture that covers all the elements contained in article 1 of the Convention. The State party should take effective legislative measures to include torture as a separate and specific crime in its legislation and ensure that penalties for torture are commensurate with the gravity of this crime. It should ensure that the absolute prohibition against torture is non-derogable and that acts amounting to torture are not subject to any statute of limitations.

Fundamental legal safeguards – access to a lawyer and legal aid

(9)The Committee notes that the State party has adopted measures both in law and through the issue of appropriate instructions, guaranteeing the rights of notification of custody, access to a lawyer, access to an independent doctor and being informed of charges from the very outset of detention. The Committee is concerned, however, at information that access to a lawyer during the 24 hours of police custody was not always available in practice and that such access continued to be a reality for only a minority of persons held by the police, namely those who could afford a private lawyer. The Committee is also concerned by allegations that the police are reluctant to grant access to a lawyer from the very outset of detention and that there have been delays in ex officio lawyers being contacted and coming to the police station. The Committee is further concerned that the National Bureau of Legal Aid is understaffed and underresourced, which negatively affects the rights to fair trial of persons with unequal economic or social status by being translated into unequal access to justice and the unequal possibility of defence in trial; in addition to the poor, members of minorities and certain categories of foreigners, such as asylum seekers and irregular migrants, are also denied equal access to justice (art. 2).

The Committee recommends that the Bulgarian authorities re-instruct all police officers on the legal obligation to grant access to a lawyer to all detainees from the very outset of their detention. Further, the Committee recommends that the State party take appropriate measures to remove all obstacles to the right of equal access to justice; and that the State party ensure that the National Bureau of Legal Aid be provided with adequate financial and staffing resources in order to fulfil its role with regard t o all categories of detainees.

Police violence and use of firearms

(10)The Committee is concerned by the excessive use of force and of firearms by law enforcement officers, including the eight cases in which the European Court of Human Rights ruled against the State party in 2010, half of which resulted in the deaths of the victims; by the scope of use of firearms allowed in the Ministry of Interior Act (art. 74); that acts of violence attributed to law enforcement officials include torture, inhuman or degrading treatment and refusal to provide victims with lifesaving medical assistance; and that there have been very few prosecutions so far (arts. 2, 12, 13 and 16).

The Committee urges the State party to amend its legislation to ensure that regulations on the use of firearms conform to international standards, including the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. The State party should also take measures to eradicate all forms of harassment and ill-treatment by police during investigations and should promptly, thoroughly and impartially investigate all allegations of violence applied in an unnecessary and disproportionate way by law enforcement officials, prosecute and punish those responsible in proportion to the seriousness of their acts and provide the victims with compensation, including the means for as full rehabilitation as possible.

Independent monitoring of places of detention and other places where people are deprived of their liberty

(11)The Committee welcomes the State party’s ratification of the Optional Protocol to the Convention and its intention to establish a national preventive mechanism within one year. The Committee is concerned that independent monitoring by civil society organizations is not allowed in all cases of detention and that non-governmental organizations such as the Bulgarian Helsinki Committee require a prosecutor’s permission for access to pretrial detainees (art. 2).

The Committee recommends that the State party ensure independent, effective and regular monitoring of all places of detention by independent non-governmental bodies.

Reform of the judicial system

(12)While taking note of the establishment of the Judiciary Reform Strategy 2009–2013, the Committee is concerned at the lack of progress in judicial reform, including reported misconceptions such as the joint governance of the courts and the prosecution service. It is concerned by the lack of transparency regarding the selection and appointment of judges and members of the Supreme Judicial Council; that the principle of the independence of the judiciary is not respected by the organs outside the judiciary, including high-ranking government officials, nor fully applied within the judiciary; and by allegations of corruption within the justice system and lack of trust in the administration of justice, resulting in lack of public trust in the judiciary (arts. 2 and 13).

The Committee recommends that the State party accelerate judicial reform, taking into account the preliminary conclusions and observations of the Special Rapporteur on the independence of judges and lawyers of 16 May 2011 and international standards – in particular the Basic Principles on the Independence of the Judiciary, Basic Principles on the Role of Lawyers, the Guidelines on the Role of Prosecutors and the Bangalore Principles of Judicial Conduct. The State party should ensure that the selection and appointment of judges, including to the Supreme Judicial Council, is transparent and that objective criteria provide equal opportunity for candidates. The State party should raise the awareness of judicial and other officials and the public at large about the importance of independence of the judiciary. There should be no external interference in the judicial process. The State party should strengthen efforts to combat corruption and ensure that all incidents of suspected corruption be promptly, thoroughly and impartially investigated and prosecuted, in particular within the framework of the Integrated Strategy for Combating Crime and Corruption 2010.

National human rights institution and national protective mechanism

(13)The Committee is concerned that to date there is no national institution in conformity with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles) in the State party, while taking due note of the fact that the Ombudsman and the Commission on Protection against Discrimination of Bulgaria have applied for accreditation to the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights as the national institutions for the promotion and protection of human rights (arts. 2, 11 and 13).

The Committee recommends that the Ombudsman and the Commission on Protection against Discrimination conform to the principles relating to the status of national institutions for the promotion and protection of human rights ( Paris Principles).

Access to a fair procedure for asylum se ekers

(14)The Committee is concerned that the State party has not taken measures to ensure the implementation of all rights of asylum seekers and refugees, including issues such as detention and transfer of asylum seekers, the lack of translation and legal assistance services and the expulsion of foreigners on the basis of national security considerations (arts. 3, 11 and 14).

The Committee recommends that the State party:

(a) Amend article 16 of the Ordinance for the Responsibilities and Coordination between the State Agency for Refugees, the Directorate of Migration and the Border Police – in order to formally remove the rule that allows for the detention of asylum se ekers on the basis of illegal entry and ensure that asylum se ekers enjoy accommodation, documentation, access to health care, social assistance, education and language training, as provided in articles 29 and 30 (a) of the Law on Asylum and Refugees;

(b) Ensure that the detention of asylum se ekers is only used as a last resort, when necessary, for as short a period as possible and that safeguards against refoulement are fully implemented;

(c) Accelerate the long-awaited opening of the Pastrogor transit centre in order to correct the current practice of transferring asylum se ekers to detention centres because of inadequate reception facilities;

(d) Ensure interpretation and translation services at all border crossings and centres dealing with asylum se ekers;

(e) Ensure that the State Agency for Refugees reinstate its legal assistance programme and make sure that reports, descriptions of evidence presented by asylum se ekers, minutes and interviews are established in a professional manner.

Definition of statelessness

(15)The Committee is concerned that the legislation of the State party does not provide for a legal definition of a stateless person and that no legal framework or mechanisms exist to determine the status of such people (arts. 2 and 3).

The Committee recommends that the State party consider introducing the definition of a stateless person in its legislation and establish a legal framework and mechanisms to determine statelessness. It encourages the State party to consider acceding to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

Non-refoulement

(16)The Committee is concerned that the State party does not fully apply its obligation under article 3 of the Convention with regard to the respect the principle of non-refoulement (art. 3).

The Committee recommends that the State party:

(a) Observe the safeguards ensuring respect for the principle of non-refoulement, including consideration of whether there are substantial grounds indicating that the asylum seeker might be in danger of torture or ill-treatment upon deportation;

(b) Amend its legislation to guarantee a suspensive in-country right of appeal and respect for all safeguards and interim measures with regard to asylum and deportation procedures pending the outcome of the appeals;

(c) Ensure interpretation services for asylum seeker s in asylum cases and appeals;

(d) Submit situations covered by article 3 of the Convention 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; and

(e) Follow up cases, in the light of the judgment of the European Court of Human Rights and, in particular, follow up the cases of the two rejected Palestinian asylum seeker s, Youssef Kayed who was tortured upon his return to Lebanon on 27 November 2010, and Moussa Kamel Ismael, who was tortured upon his return to Lebanon, also on 27 November 2010, and update the Committee on their situation in its next periodic report.

Jurisdiction over offences referred to in article 4 of the Convention

(17)The Committee is concerned that current Bulgarian legislation does not provide for jurisdiction over offences referred to in article 4 of the Convention for all acts of torture owing to the absence of a specific and autonomous offence of torture which corresponds to the definition outlined in the Convention (arts. 5, 6 and 7).

The Committee recommends that the State party adopt a definition of torture in accordance with the Convention so as to ensure that all acts of torture, and not only those amounting to war crimes, can be prosecuted under jurisdiction over offences referred to in article 4 of the Convention and that all suspected perpetrators of acts of torture found in Bulgarian territory are either extradited or prosecuted in accordance with article 6 of the Penal Code.

Non-admissibility of evidence as a result of torture

(18)The Committee is concerned about the lack of legislation in the State party ensuring the non-admissibility of evidence obtained as a result of torture (art. 15).

The Committee recommends that the State party enact legislation specifically prohibiting the use of statements obtained under torture as evidence in conformity with the Convention (art. 15) and that the competent authorities of the State party compile statistics and submit to the Committee cases where evidence obtained as a result of torture has been held inadmissible.

Treatment of persons in social institutions, including those with mental disabilities

(19)The Committee is concerned:

(a)That persons with mental disabilities in State and municipal social institutions, particularly in medical institutional settings, do not enjoy adequate legal safeguards and procedural guarantees regarding the respect of their right to mental and physical integrity; that persons deprived of their legal capacity and whose decisions and preference are not taken into account have no means to challenge the violation of their rights; admission procedures and systems of guardianship often include officials from the institutions in which persons with disabilities are confined, which may result in conflict of interest and de facto detention, while the guardians’ consent to medical treatment may amount to forced treatment; by the use of restraint and forced administration of intrusive and irreversible treatments such as neuroleptic drugs; and that there is no independent inspection mechanism for mental health institutions; at the competence of staff, frequency of visits by specialists and the material conditions of such institutions, including their remote locations, far from families and large medical centres;

(b)By the current and future situation of institutionalized children with mental disabilities, while noting the envisaged transition from institutional to community-based care similar to a family environment and the closure of all childcare institutions within 15 years; that 238 children with mental disabilities died in the period 2000–2010, three quarters from preventable deaths, without a single indictment being made to date in 166 criminal investigations and that two children died recently in similar circumstances in Medven; that an inspection covering the year 2010 regarding involuntary confinement and treatment under the Health Act and coercive confinement for treatment under the Penal Code found no violation in the application of the legislation; that the necessary upkeep and renovations of existing facilities while the planned deinstitutionalization is being put in place will not be carried out on the assumption that they are being phased out (arts. 2, 11, 12, 13, 14 and 16).

The Committee recommends that the State party:

(a) Review legislation and policy of depriving persons with mental disabilities of their legal capacity, provide legal and procedural safeguards for their rights and ensure that they have prompt access to effective judicial review of decisions, as well as effective remedy against violations;

(b) Evaluate cases on an individual basis and ensure respect for the right to mental and physical integrity of institutionalized persons and in particular during the use of restraint and enforced administration of intrusive and irreversible treatments such as neuroleptic drugs; ensure that their decisions and preferences are taken into account;

(c) Take effective measures to regulate the system of guardianship in order to avoid conflict of interest and situations that amount to forced treatment and de facto detention;

(d) Establish close monitoring of placements by judicial organs and by independent inspection mechanisms to ensure the implementation of safeguards and international standards, including the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care;

(e) Provide sufficient numbers of competent professional staff and carry out the necessary material renovations on facilities, which should be located in large cities that have hospitals and medical centres;

(f) Ensure adequate investigation, prosecution, conviction and sanction of those responsible for the deaths of institutionalized children with mental disabilities;

(g) Amend and strengthen legislation to enhance accountability and prevent recurrence and impunity and regulate authorized treatment in institutions, in particular of persons with mental disabilities. Attention should be paid to the individual needs of each child and the proper treatment prescribed, in conformity with the provisions of the Convention;

(h) Ensure frequent and professional oversight and monitoring by independent mechanisms, including the national human rights institution and civil society organizations of all institutions and of the implementation of the deinstitutionalization, including the acceleration of the deinstitutionalizations in as short a period of time as possible, in order to maintain a sustainable system of care.

Training

(20)The Committee is concerned that specific training on the provisions of the Convention, and in particular the absolute prohibition of torture, including sexual violence, and on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) is not part of mandatory training for relevant officials such as judges, law enforcement officials and prison staff (art. 10).

The Committee recommends that the State party:

(a) Prepare and implement training programmes to ensure that judges, prosecutors, law enforcement officials and prison staff are fully aware of the provisions of the Convention, in particular the absolute prohibition of torture, and that breaches will not be tolerated and will be investigated and the perpetrators prosecuted;

(b) Develop training modules with the aim of sensitizing law enforcement officials and other personnel concerned against discrimination based on ethnicity and religion;

(c) Provide medical personnel and others involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment, as well as other professionals involved in the documentation and investigation of torture, training on a regular and systematic basis on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) and ensure that such training is also provided for individuals involved in asylum determination processes;

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

Conditions of detention

(21)While taking note of the State party’s plan to build new detention facilities and renovate existing ones, the Committee is concerned at the continued obsolete, insanitary and overcrowded conditions of detention in Bulgaria, which do not conform to international standards. It is particularly concerned about overcrowding which has reduced the average living space in many prisons to only 1 m2 per detainee instead of the recommended standard of 6 m2 and that some detainees are forced to sleep on the floor; that no new detention facilities have been built and that few were renovated; that, owing to budgetary restrictions, there is no improvement in the prisoner-staff ratio; that the Ombudsman highlighted in 2009 the need for reform of the prison system, expressing concern that the funds earmarked for renovation of prisons in accordance with the Strategy for Reforming Places of Detention (2009–2015) were drastically reduced in 2009 and 2010; and that material conditions such as access to drinking water, hygiene, electricity, the use of toilets, quality and quantity of food, purposeful activities and exercise do not conform to international standards (arts. 11 and 16).

The Committee recommends:

(a) That the State party strengthen efforts and increase funds in order to bring the living conditions in detention facilities to conform to international standards such as the Standard Minimum Rules for the Treatment of Prisoners;

(b) The accelerated implementation and increase in funds for the Strategy for Reforming Places of Detention (2009–2015) and for the 2010 Programme for Improvement of Conditions at Places of Deprivation of Liberty;

(c) The adoption of specific time frames for the construction of new prisons and renovation of existing ones and increase the number of staff in all facilities;

(d) The increase in the budgetary allocations for basic amenities provided to detainees, including access to drinking water, food, electricity, hygiene and sanitation, and to ensure sufficient natural and artificial light, as well as heating and ventilation in the cells, and the provision of psychosocial support care for detainees who require psychiatric supervision and treatment.

The Committee invites the State party to increase the use of alternatives to imprisonment in conformity with the United Nations Standard Minimum Rules for Non-custodial Measures ( Tokyo Rules) and to reduce overcrowding.

(22)The Committee is concerned at the reported continued existence of underground investigative detention facilities in five locations where remand prisoners are held. It is concerned that some cells do not have windows, some have less than 1 m2 of living space per detainee while others do not have possibilities for outdoor exercise. Furthermore, the Committee is concerned by conditions of detention in many police stations where cells do not conform to international standards of hygiene and are unsustainable for overnight use, and that in some cases detained persons spend the first 24 hours in an area with bars referred to as the “cage”, at times in full view of visitors to the police station. While noting that handcuffing people to bars and pipes has been prohibited, the Committee is concerned at reports that some detainees were handcuffed to immovable objects such as radiators and piping or to a chair for up to six hours (art. 11).

The Committee recommends that:

(a) The State party take urgent measures to ensure that the treatment of remand prisoners in investigative detention centres and detainees in police stations conforms to international standards. It urges the State party to build new investigative detention centres or adapt and renovate existing facilities so that all persons are detained above the ground and that they meet minimal international standards. Police detention facilities should have a sufficient number of cells suitable for overnight stay with adequate material conditions such as clean mattresses and blankets and adequate lighting, ventilation and heating; and

(b) Handcuffing persons to immovable objects should be forbidden by law and in practice.

Inter-prisoner violence and deaths in detention

(23)The Committee is concerned that overcrowding and understaffing are conducive to inter-prisoner and violence, including sexual violence, in detention facilities, especially during the night; that of a total of 3,161 cases of violence in the period January 2007–July 2011, investigation procedures were opened only with regard to 22 cases. The Committee is also concerned about reports of increased inter-prisoner violence since 2008 and especially in 2011. It is concerned by the incidence of sexual violence, which is rarely reported, including rape, and of harassment and beatings which have on occasion resulted in suicide, as well as the large number of deaths in custody which varies between 40 and 50 annually (arts. 2, 11 and 16).

The Committee recommends that the State party:

(a) Enhance efforts to prevent inter-prisoner violence by addressing the factors which contribute to it such as overcrowding, lack of sufficient staff, lack of space and poor material conditions, lack of purposeful activities, availability of drugs, and feuding gangs;

(b) Pay attention to protection of prisoners from inter-prisoner violence, in particular those belonging to the lesbian, gay, bisexual and transgender group, and to the psychosocial profile of the prisoners and those who engage in violence, investigate and sanction incidents;

(c) Increase the number of staff, including those with training in the management of inter-prisoner violence;

(d) Increase the quality and frequency of supervision and monitoring, especially at night, including through the introduction of additional video surveillance equipment; and

(e) Impartially, thoroughly and promptly investigate all incidents of death in custody, including suicide, make the results of investigations public and prosecute the persons responsible for committing violations leading to deaths.

Solitary confinement and prisoners serving life sentences

(24)The Committee is concerned that detainees continue to be held in solitary confinement for disciplinary violations for up to 14 days and for up to two months for the purpose of prevention of escape, violation of life or death of other persons and other crimes. The Committee is also concerned that current legislation imposes a strict regime of segregation during the initial five-year period, ordered by the sentencing for prisoners serving a life sentence, and that these prisoners are routinely handcuffed when outside their cells. The Committee is particularly concerned that some asylum seekers are also placed in solitary confinement for long periods (arts. 2, 11 and 16).

The Committee recommends that the State party consider the recommendations made by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/66/268) in which he urges States to prohibit the imposition of solitary confinement as punishment — either as a part of a judicially imposed sentence or a disciplinary measure — and recommends that States develop and implement alternative disciplinary sanctions to avoid the use of solitary confinement (para. 84). The Committee recommends the reduction of the periods of solitary confinement and the restrictions related thereto. The practice of placing asylum seeker s in solitary confinement should be stopped without delay. The Committee recommends that the State party consider amending legislation concerning the strict regime of segregation during the first five years and handcuffing when outside their cells for prisoners serving life sentences. Life prisoners should be able to join the mainstream prison population.

Domestic violence

(25)The Committee is concerned at the narrow interpretation of the concept of domestic violence and that the phenomenon is not included as a specific offence in the Penal Code. It is also concerned that allegations of domestic violence must be initiated by the victim in cases of light or average bodily harm and that few cases of domestic violence are brought to justice and sanctioned, in particular regarding women and girls; that cases are generally limited to those where the perpetrator violates the protection orders that are usually issued for the duration of one month; and that there are no effective mechanisms for protection against domestic violence, including marital rape (arts. 2, 12, 13, 14 and 16).

The State party should amend its legislation to include domestic violence as a specific crime in the Penal Code which entails ex officio prosecution. The State party should strengthen its efforts to prevent domestic violence, especially against women and girls, and should encourage victims to report cases to the authorities. All cases of domestic violence should result inappropriate investigation, prosecution and sanction. Protection orders should be of much longer duration. The State party should introduce mechanisms for monitoring of and effective protection from domestic violence, including an effective complaints mechanism.

Early marriage

(26)The Committee is concerned by the practice of informal early and forced marriage of Roma girls as young as 11 (arts. 2 and 16).

The State party should enforce the legislation concerning minimum marriage age, clearly indicate that child marriages have no legal effect and constitute a harmful practice, in the light of the concluding observations of the Committee on the Rights of the Child and with general recommendation No. 24 (1999) on article 12 of the Committee on the Elimination of Discrimination against Women. Community awareness-raising campaigns should be carried out regarding the prohibition of these marriages, their harmful consequences and the rights of children. The Committee also urges the State party to enforce the requirement to register all marriages, in order to monitor their legality, as well as to strictly enforce the prohibition of early marriages and to investigate such cases and to prosecute the perpetrators.

Trafficking in persons

(27)While taking note of the National Programme on Prevention and Counteracting Human Trafficking and Protection of Victims and amendments to the Penal Code, section IX on “Trafficking in human beings”, the Committee is concerned that poverty and social exclusion result in vulnerability of women and children, and in particular Roma women and girls, including those who are pregnant, to human trafficking (arts. 2, 3, 14 and 16).

The Committee recommends that the State party strengthen its efforts to combat trafficking in persons, especially in women and children, in particular to:

(a) Prevent and promptly, thoroughly and impartially investigate, prosecute and punish trafficking in persons and related practices;

(b) Improve the identification of victims of trafficking and provide means of effective redress, including compensation and rehabilitation, to victims of trafficking, including assistance to victims to report incidents of trafficking to the police, in particular by providing legal, medical and psychological aid and rehabilitation, inter alia, through genuine access to health care and counselling and adequate shelters, in accordance with article 14 of the Convention;

(c) Prevent the return of trafficked persons to their countries of origin, where there is a substantial ground to believe that they would be in danger of torture, to ensure compliance with article 3 of the Convention;

(d) Provide regular training to the police, prosecutors and judges on effective prevention, investigation, prosecution and punishment of acts of trafficking, including on the guarantees of the right to be represented by an attorney of one’s own choice, and inform the general public on the criminal nature of such acts; and

(e) Compile data disaggregated, as appropriate, by nationality, country of origin, ethnicity, gender, age, and employment, as well as on the provision of redress.

Discrimination, hate speech and violence against vulnerable groups

(28)While acknowledging the stance taken by the authorities in publicly condemning manifestations of discrimination and intolerance, the Committee is deeply concerned at manifestations of discrimination and intolerance, including hate speech and violent attacks against certain national and religious minorities and persons belonging to sexual minorities. The Committee is also concerned by the excessive use of force by the police against certain minorities and the recent anti-Roma riots and destruction of property, which in some cases occurred without preventive action from the police. It is also concerned that slogans amounting to hate speech are voiced against vulnerable minority groups, including by members of certain political parties and groups and that intolerance towards religious minorities has resulted in vandalism of places of worship and attacks on worshippers. The Committee takes note that the recent attacks on journalists in connection with the anti-Roma riots are being investigated (arts. 2, 12, 13, 14 and 16).

The State party should enhance efforts to eradicate stereotypes and discrimination against the Roma and other national minorities, including through increased awareness-raising and information campaigns to promote tolerance and respect for diversity. Measures should be taken to prohibit and prevent advocacy of hate speech, discrimination and intolerance, including in the public domain, in conformity with international standards and human rights instruments to which Bulgaria is a party. The State party should enhance the enforcement of anti-discrimination legislation and ensure that violent acts, discrimination and hate speech are systematically investigated, prosecuted and the perpetrators convicted and punished. The State party should systematically apply provisions of the Criminal Code concerning crimes based on intolerance and should ensure that offences motivated by discrimination constitute an aggravating circumstance in criminal prosecution. The State party should ensure that members of the Roma community are not singled out on a ethnically motivated basis with regard to the use of force by the police and ensure that excessive use of force against members of national and other minorities is promptly and impartially investigated and perpetrators prosecuted and punished. The victims need to be compensated and accorded all remedies afforded by the Convention, including reparations for damage. The Committee requests to be updated on the results of the investigations into the recent attacks on journalists.

Redress

(29)The Committee takes note of the information provided in the State party’s report on the right to redress, including financial compensation, for persons whose rights have been violated. However, the Committee regrets that not more information was provided on the actual implementation of redress to persons subjected to torture or ill-treatment, among others, to persons who have been interned in centres and homes for persons with mental disabilities, including a high number of children (art. 14).

The State party should ensure that the efforts in respect of redress, including compensation and rehabilitation, are strengthened in order to provide victims, including those who have suffered torture and ill-treatment in such centres, with redress and fair and adequate compensation, including means for as full rehabilitation as possible.

Corporal punishment

(30)While taking note that corporal punishment is explicitly forbidden in law, the Committee is concerned by persistent lack of implementation and notes that the Committee on the Rights of the Child has found that children are still victims of corporal punishment in the home, schools, the penal system, alternative care settings and situations of employment. The Committee is concerned that a 2009 survey shows that 34.8 per cent of public opinion is in favour of corporal punishment in childrearing in some circumstances and that 10.9 per cent felt it was acceptable if the parent believed that it would be effective. It is concerned in particular that the use of corporal punishment is substantially higher in institutions for children with disabilities and that a number of cases of physical abuse were documented in the children’s personal files (art. 16).

The Committee recommends that the State party carry out professional and public awareness-raising in order to promote non-violent, positive and participatory methods of childrearing and education; and that the State party take a comprehensive approach to ensuring that the law prohibiting corporal punishment is widely enforced and known, including among children with regard to their right to protection from all forms of corporal punishment. There should be an absolute prohibition of corporal punishment in institutional settings, including for children with disabilities. The State party should provide effective and appropriate responses to corporal punishment, including investigations, prosecution and sanctioning of perpetrators.

Data collection

(31)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, or on trafficking and domestic and sexual violence, including means of redress (arts. 2, 11, 12, 13, 14 and 16).

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention at the national level, including data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment, trafficking and domestic and sexual violence, and on means of redress, including compensation and rehabilitation, provided to the victims.

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

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

(34)The State party is invited to update its common core document (HRI/CORE/1/Add.81), in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6).

(35)The Committee requests the State party to provide, by 25 November 2012, follow-up information in response to the Committee’s recommendations related to (a) ensuring or strengthening legal safeguards for persons detained, (b) conducting prompt, impartial and effective investigations, and (c) prosecuting suspects and sanctioning perpetrators of torture or ill-treatment, as contained in paragraphs 9, 10 and 28 of the present document.

(36)The State party is invited to submit its next periodic report, which will be the sixth periodic report, by 25 November 2015. For that purpose, the Committee invites the State party to accept, by 25 November 2012, to report under its optional reporting procedure, consisting in the transmittal, by the Committee to the State party, of a list of issues prior to the submission of the periodic report. The State party’s response to this list of issues will constitute, under article 19 of the Convention, its next periodic report to the Committee.

54. Djibouti

(1)The Committee against Torture (hereinafter referred to as “the Committee”) considered the initial report of Djibouti (CERD/C/DJI/1) at its 1024th and 1027th meetings (CAT/C/SR.1024 and 1027), which were held on 2 and 3 November 2011, and adopted the following concluding observations at its 1045th and 1046th meetings (CAT/C/SR.1045 and 1046), on 17 and 18 November 2011.

A. Introduction

(2)The Committee welcomes the submission of the initial report of Djibouti, which generally follows the Committee’s guidelines on initial reports. The Committee commends the frankness of the report, which acknowledges shortcomings in the State party’s implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as “the Convention”). The Committee regrets, however, that the report was submitted seven years late. The Committee welcomes the very frank dialogue it held with the delegation of the State party on numerous areas covered by the Convention.

B. Positive aspects

(3)The Committee notes with satisfaction the State party’s ratification of the following international instruments:

(a)The International Covenant on Economic, Social and Cultural Rights, in 2002;

(b)The International Covenant on Civil and Political Rights, in 2002;

(c)The two Optional Protocols to the International Covenant on Civil and Political Rights, in 2002;

(d)The International Convention on the Elimination of All Forms of Racial Discrimination, in 2011;

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

(4)The Committee welcomes the fact that, under the provisions of article 37 of the Constitution, international treaties ratified by the State party, including the Convention, take precedence over the State party’s domestic laws and may be applied directly in domestic judicial proceedings.

(5)The Committee welcomes the establishment in August 2011 of the Legal and Judicial Reform Commission, which is responsible for updating legislation and bringing it into line with the obligations deriving from the international human rights treaties ratified by the State party, including the Convention.

(6)The Committee notes with satisfaction that the State party abolished the death penalty in 1995.

(7)The Committee notes with appreciation that the State party has been able to prepare and submit its reports to the United Nations treaty bodies thanks to the Inter-ministerial Coordinating Committee for the Preparation and Submission of Reports to the Treaty Bodies, with technical support from the Office of the United Nations High Commissioner for Human Rights and the United Nations Development Programme. Nevertheless, the Committee regrets that these reports have been submitted with some delay.

C. Principal subjects of concern and recommendations

Definition and criminalization of torture

(8)The Committee notes that article 16 of Djibouti’s Constitution prohibits torture, physical abuse or inhuman, cruel, degrading or humiliating treatment. The Committee takes note of the State party’s commitment to amend its domestic law in the light of its obligations deriving from the international human rights conventions it has ratified, introducing, inter alia, a definition of torture. Nevertheless, the Committee remains concerned about the absence of any clear definition of torture in the State party’s current Criminal Code and of any provisions criminalizing acts of torture in accordance with articles 1 and 4 of the Convention (arts. 1 and 4).

The State party should include torture in its Criminal Code as an offence punishable by appropriate penalties that take into account the gravity of the acts committed, together with a definition of torture that includes all the elements mentioned in article 1 of the Convention. The Committee considers that by naming and defining the offence of torture in accordance with the Convention and distinguishing it from other crimes, States parties would directly advance the Convention’s overarching aim of preventing and punishing torture.

Acts of torture

(9)The Committee notes with concern the State party’s acknowledgement that abuses, notably acts of torture, have been committed by police officers in Djibouti in the performance of their duties. The Committee is particularly concerned about the fact that there has been no serious investigation of these cases, which has contributed to a situation in which such offences go unpunished (arts. 2 and 12).

The Committee invites the State party to take immediate and specific measures to investigate and, when appropriate, to prosecute and punish acts of torture. Moreover, the Committee invites the State party to: ensure that law enforcement personnel do not resort to torture under any circumstances; publicly and unambiguously reaffirm the absolute prohibition of torture; condemn the practice of torture, especially by the police and prison officers; and make it clear that anyone who commits, is complicit in or participates in such acts will be held personally responsible before the law, will be subject to criminal prosecution and will be punished accordingly.

Impunity for acts of torture and ill-treatment

(10)The Committee takes note of the State party’s recognition that acts of torture have taken place and have neither been investigated nor prosecuted. In particular, it notes the absence of specific information on prosecutions initiated, sentences pronounced or disciplinary sanctions imposed on police or prison officers found guilty of acts of torture or ill-treatment. The Committee also notes the State party’s acknowledgement that the weakness of domestic legislation contributes to impunity (arts. 2, 4, 12, 13 and 16).

The State party should ensure that all allegations of torture or ill-treatment are the subject of prompt, impartial, thorough and effective investigations and that the perpetrators are prosecuted and sentenced to penalties commensurate with the grave nature of the acts committed, as required by article 4 of the Convention, without prejudice to appropriate disciplinary sanctions. The State party should also take all appropriate legal measures to fully remedy this impunity.

Fundamental legal safeguards

(11)The Committee is concerned about the discrepancy between the fundamental legal safeguards offered by the Constitution and the Code of Criminal Procedure on the one hand and the implementation of these guarantees for all detainees from the very outset of their detention on the other. The Committee also remains concerned about reports of lengthy pretrial detention and slow proceedings. The Committee also regrets the absence of information on the fundamental legal safeguards available to persons with mental, intellectual or physical disabilities. In addition, the Committee regrets the absence of a comprehensive juvenile justice system oriented to the education and social integration of children in conflict with the law (art. 2).

The State party should take prompt and effective measures to ensure that in practice all detainees are afforded all fundamental legal safeguards from the very outset of their detention. In accordance with international standards, these safeguards should include, in particular, the rights of detainees to: be informed of the reasons for their arrest, including of any charges against them; have prompt access to a lawyer and, when needed, legal aid; undergo an independent medical examination, if possible conducted by a doctor of their choice; notify a relative; be brought promptly before a judge; and have the lawfulness of their detention reviewed by a court. The State party should ensure that all fundamental legal safeguards are implemented for persons in psychiatric institutions.

The State party should also take measures to establish a juvenile justice system in compliance with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), adopted by General Assembly resolution 40/33 of 29 November 1985, and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), adopted and proclaimed by General Assembly resolution 45/112 of 14 December 1990.

Monitoring and inspection of places of deprivation of liberty

(12)The Committee notes the information provided by the State party on the establishment of a prison guard corps within the Legislation and Human Rights Directorate, part of the Ministry of Justice Penal Affairs and Human Rights. It also notes the work of the National Human Rights Commission, the visits the Commission has organized to Gabode prison, police stations, gendarmerie units and other places of detention or prisons, as well as the use of information gathered during those visits in the reports the Commission has drafted on the human rights situation in Djibouti. However, the Committee remains concerned about the State party’s insufficient efforts to ensure sustained monitoring and inspection of places of deprivation of liberty (arts. 2, 10, 12, 13 and 16).

The Committee recommends that the State party establish an effective and independent national system to monitor and inspect all places of deprivation of liberty and ensure that systematic follow-up is given to the outcome of such monitoring. It should also strengthen its cooperation with NGOs and increase support for them to enable them to independently monitor conditions in places of deprivation of liberty.

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

National human rights institution

(13)The Committee notes with satisfaction the establishment of the National Human Rights Commission, the duties of which include visiting places of deprivation of liberty and examining complaints of alleged human rights violations. The Committee regrets, however, that the Commission is not in conformity with the Principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles, General Assembly resolution 48/134, annex). Among other things, its members, including its Chair and its Vice-Chair, are appointed by the President of the Republic, which thus compromises its independence (art. 2).

The State party should strengthen the role and terms of reference of the National Human Rights Commission, including its mandate to conduct regular and unannounced visits to places of deprivation of liberty in order to issue independent findings and recommendations. It should also give all due weight to the Commission’s conclusions on the individual complaints it receives, and communicate those conclusions to the public prosecutor’s office in cases where torture or ill-treatment is found to have occurred. The State party is requested to provide information, including statistical data, on the complaints examined by the Commission regarding alleged torture and other cruel, inhuman or degrading treatment or punishment, and to indicate whether these cases have been communicated to the competent authorities for prosecution.

The Committee encourages the State party to request accreditation of the National Human Rights Commission by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, in order to ensure that it complies with the Principles relating to the status of national institutions for the promotion and protection of human rights, including with regard to its independence.

Investigations

(14)Notwithstanding the explanations that the State party provided during the dialogue, the Committee continues to be concerned about:

(a)The lack of any thorough investigations into the arrests during the demonstrations that took place on 18 February 2011 of more than 300 persons, several of whom are alleged to have been subjected to torture and ill-treatment in gendarmerie custody (arts. 12, 13, and 14);

(b)The case of two Ethiopian nationals, Captain Behailu Gebre and Abiyot Mangudai, who, on 11 July 2005, were sent back to Ethiopia, where they were kept in detention and tortured. The Committee notes with concern that, according to information received, these persons did not have access to the remedy allowing them to lodge an appeal against their expulsion. It also expresses concern about the fact that the State party did not conduct any thorough and effective investigation into this case. Furthermore, it notes with concern that Djibouti did not respond to the urgent appeals on this matter sent by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. The Committee would thus welcome information from the State party on this subject (arts. 12, 13 and 14);

(c)The case of Yemeni national Mohammed al-Asad. According to information before the Committee, the latter was allegedly detained incommunicado in Djibouti for two weeks before being transferred to Afghanistan. In detention he was allegedly tortured, placed in extreme isolation without human contact, subjected to constant extremely loud music, and exposed to artificial light for 24 hours a day, to cold and to dietary manipulation. The Committee notes that this case is currently being examined by the African human rights system, specifically the African Commission on Human and Peoples’ Rights.

The State party should immediately conduct independent, impartial and thorough investigations into the above-mentioned incidents with a view to bringing the possible perpetrators of violations of the Convention to justice. The Committee recommends that such investigations be undertaken by independent experts responsible for examining all information thoroughly, reaching conclusions as to the facts and the measures taken, and providing adequate compensation to the victims and their families, including the means for them to achieve as full rehabilitation as possible. The State party is requested to provide the Committee with detailed information on the outcome of all those investigations in its next periodic report.

The State party should adopt a legislative framework regulating expulsion, refoulement and extradition in order to fulfil its obligation under article 3 of the Convention. The expulsion, refoulement and extradition of individuals, including undocumented individuals, should be decided by a court after careful assessment of the risk of torture in each case and should be subject to appeal with suspensive effect. The terms of judicial cooperation agreements signed with neighbouring countries should be revised so as to ensure that the transfer of detainees to another signatory State is carried out under a judicial procedure and in strict compliance with article 3 of the Convention.

Complaints mechanism

(15)Notwithstanding the information provided in the State party’s report on the possibility for prisoners and detainees to submit complaints to the Prosecutor-General, the public prosecutor, the investigating judge or the president of the indictment division, as appropriate, or to the Prison Administration Directorate of the Ministry of Justice, the Committee regrets the lack of a dedicated, independent and effective complaints mechanism competent to receive complaints, conduct prompt and impartial investigations into allegations of torture, in particular of prisoners and detainees, and ensure that those found guilty are punished. The Committee also notes the absence of information, including statistics, on the number of complaints of torture and ill-treatment, on investigations carried out, and on prosecutions initiated and sanctions imposed against perpetrators of torture and ill-treatment, at both the penal and disciplinary levels (arts. 2, 12, 13 and 16).

The State party should take effective measures to establish an independent and effective complaints mechanism specifically devoted to allegations of torture and ill-treatment committed by law enforcement, security, military and prison officials, with a mandate to conduct prompt and impartial investigations into such allegations and to prosecute the perpetrators. The State party should ensure that complainants are protected in practice against any ill-treatment or intimidation they might suffer as a consequence of their complaints or any evidence given.

The Committee requests the State party to clarify whether acts of torture and ill-treatment are subject to ex officio investigation and prosecution and to provide information, including statistics, on the number of complaints filed against public officials for torture and ill-treatment, as well as information about the results of the proceedings, at both the penal and disciplinary levels. This information should be disaggregated according to the sex and age of the complainant and should indicate which authority undertook the investigation.

Refugees and asylum seeker s

(16)The Committee is concerned about the fact that the National Asylum Eligibility Commission is not properly functional and that applicants for asylum or refugee status remain in an undefined legal situation for much too long, with a risk of expulsion. The Committee also notes with concern that the State party has not acceded to the Convention relating to the Status of Stateless Persons (1954) or to the Convention on the Reduction of Statelessness (1961) (arts. 3 and 16).

The State party should ensure that the National Asylum Eligibility Commission functions properly and that persons subject to an expulsion order are able to appeal to the courts against the decision.

The Committee recommends that the State party consider acceding to the Convention relating to the Status of Stateless Persons and to the Convention on the Reduction of Statelessness.

Conditions of detention

(17)The Committee takes note of the commitments the State party made in the course of the dialogue with the Committee to improve conditions in places of detention, specifically by renovating or even constructing some buildings in Gabode central prison, and by reopening and renovating prisons in the regions. It also takes note of the State party’s efforts to improve access to health services. However, the Committee remains deeply concerned about reports, confirmed by the State party, of prison overcrowding, inadequate hygiene and cleanliness, as well as a lack of water and adequate food. Moreover, the State party does not distinguish between minors and adults in detention (arts. 11 and 16).

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

(a) Reducing prison overcrowding, especially by considering non-custodial forms of punishment, in accordance with the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules);

(b) Improving the quality and quantity of food and water provided to prisoners in pretrial detention, those on trial and convicts;

(c) Strengthening judicial supervision of conditions of detention;

(d) Ensuring that minors, whether in pretrial detention or convicted, are effectively separated from adults, in accordance with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), adopted by General Assembly resolution 40/33 of 29 November 1985, and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted by General Assembly resolution 45/113 of 14 December 1990.

Redress, including compensation and rehabilitation

(18)The Committee takes note of the State party’s written assertion that “Djibouti’s laws and regulations provide the right to redress and fair compensation for any victim of torture” (CAT/C/DJI/1, para. 181). It remains concerned, however, about the fact that without a legal definition of torture it remains difficult to provide any redress or fair compensation. The Committee is also concerned about the scarcity of court decisions awarding compensation to victims of torture and ill-treatment or their families. It is also concerned about the absence in Djibouti of rehabilitation programmes for torture victims (art. 14).

The State party should strengthen its efforts to ensure redress for victims of torture and ill-treatment in the form of fair and adequate compensation and as full rehabilitation as possible, based on a clear definition of torture in line with article 1 of the Convention. The State party should also provide details of redress and compensation ordered by the courts for victims of torture or their families. In addition, the State party should provide information on any rehabilitation programmes under way for victims of torture or ill-treatment, and should allocate sufficient resources to ensure the proper implementation of such programmes.

Training

(19)The Committee takes note of the information included in the State party’s report and provided during the dialogue with regard to training, seminars and courses on human rights provided for judges, prosecutors, police and prison officers and members of the military. At the same time, it notes with concern the information in paragraphs 126 and 130 of the report concerning the absence of an express prohibition of torture in the training given to officers of the national police and to civil servants and public and administrative officials (art. 10).

The State party should further develop and strengthen training programmes to ensure that all officials, in particular judges and law enforcement, security, army, intelligence and prison officers, are aware of the provisions of the Convention, and specifically that they are fully aware of the absolute prohibition of torture and of the fact that violations of the Convention will not be tolerated, that they will be promptly and impartially investigated and that the offenders will be prosecuted.

Furthermore, all relevant personnel, including those referred to in article 10 of the Convention, should receive specific training on how to identify signs of torture and ill-treatment. This should specifically include an introduction to the use of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol), published by the United Nations in 2004. In addition, the State party should assess the effectiveness and impact of such training and educational programmes.

Confessions obtained under torture

(20)The Committee notes that statements made as a result of torture may not be invoked in any proceedings, and that they are recognized by the State party as “null and void” or as contracts “concluded under duress”. However, the Committee remains concerned to note that the law does not explicitly prohibit the act of obtaining confessions under duress; thus, the provisions currently in force remain inadequate to ensure proper implementation of the Convention (art. 15).

The State party should ensure that the law governing evidence adduced in judicial proceedings is brought into line with article 15 of the Convention so as to explicitly exclude any confessions obtained under torture.

Violence against women and harmful traditional practices

(21)The Committee welcomes the criminalization since 1995 of the practice of female genital mutilation through the inclusion of article 333 in the State party’s Criminal Code. The State party has recognized that the provisions of this article have not been applied owing to the lack of complaints filed against this practice. The Committee remains concerned about the fact that female genital mutilation is still very widespread, and in particular that there are many cases of infibulation — an extreme form of female genital mutilation — especially in rural areas. The Committee also remains very concerned about the fact that cases of mutilation are generally not reported and are therefore neither prosecuted nor punished (arts. 2, 10 and 16).

The State party should strengthen its efforts to prevent, combat and punish violence against women and children and harmful traditional practices, in particular in rural areas. The Committee endorses the recommendations addressed to the State party during the universal periodic review of Djibouti (A/HRC/11/16, para. 67, subparas. 18 and 25; para. 68, subparas. 3 and 8), as well as the recommendations of the Committee on the Elimination of Discrimination against Women (CEDAW/C/DJI/CO/1-3, paras. 18 and 19) and of the Committee on the Rights of the Child (CRC/C/DJI/CO/2, para. 56). Furthermore, the State party should provide victims with rehabilitative as well as legal, medical and psychological services, along with compensation. It should also create adequate conditions allowing victims to report incidents of harmful traditional practices and domestic and sexual violence without fear of reprisal or stigmatization. The State party should provide training to judges, prosecutors, police officers and community leaders on the strict application of the Criminal Code and the criminal nature of harmful traditional practices and other forms of violence against women.

In general, the State party should ensure that its customary law and customary practices are compatible with its human rights obligations, particularly those deriving from the Convention. The State party should also explain the hierarchy between customary law and domestic law, particularly with regard to the various forms of discrimination against women.

The Committee also asks that the State party include in its next report detailed information and updated statistics on complaints, investigations, prosecutions, convictions and penalties handed down to individuals found guilty of criminal behaviour involving harmful traditional practices, including murder, and on the aid and compensation provided to the victims.

Human trafficking

(22)The Committee notes the measures taken by the State party, such as the criminalization of human trafficking, training initiatives and the establishment of a Migration Response Centre in Obock, as well as the establishment of a coordinated national mechanism to combat human trafficking. However, the Committee remains concerned about the scale of the problem in the State party (arts. 2 and 16).

The State party should strengthen its efforts to prevent and combat human trafficking, provide protection and compensation to victims and ensure that they have access to rehabilitative as well as legal, medical, and psychological services. Accordingly, the Committee recommends that the State party should adopt a comprehensive strategy to combat human trafficking and its causes. The State party should also investigate all allegations of trafficking and ensure that perpetrators are prosecuted and sentenced to appropriate penalties that take into account the serious nature of their crimes. The State party is requested to provide information on measures taken to assist victims of trafficking, as well as statistical data on the number of complaints, investigations, prosecutions and convictions involving trafficking.

Corporal punishment of children

(23)The Committee notes with concern that the use of corporal punishment as a disciplinary measure in the home is not prohibited, according to the interpretation of the provisions of the Criminal Code (1995), the Family Code (2002) and the Constitution (art. 16).

The State party should consider amending its Criminal Code and revised Family Code to prohibit the use of corporal punishment in all settings, including the home, and to raise public awareness of positive, participatory and non-violent forms of discipline.

Data collection

(24)The Committee is concerned about the lack of full and detailed data on complaints, investigations, prosecutions, convictions and redress in cases of torture and ill-treatment involving law enforcement, security, military and prison personnel (arts. 2, 12, 13 and 16).

The State party should collect relevant statistical data on the monitoring of the implementation of the Convention at the national level, including on complaints, investigations, prosecutions, convictions and redress (compensation and rehabilitation for victims) in cases of torture and ill-treatment. The State party should include this data in its next periodic report.

(25)The Committee recommends that the State party should strengthen its cooperation with United Nations human rights mechanisms, including by permitting visits from, inter alia, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 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.

(26)Noting the commitment the State party made during the dialogue, the Committee recommends that the State party ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as soon as possible.

(27)The Committee further recommends that the State party should make the declarations envisaged under articles 21 and 22 of the Convention to recognize the competence of the Committee to receive and consider complaints of violations of the Convention.

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

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

(30)The Committee requests the State party to provide, before 25 November 2012, information on its follow-up to the recommendations on: (1) ensuring or strengthening legal safeguards for detainees; (2) conducting prompt, impartial and effective investigations; (3) prosecuting suspects and punishing perpetrators of acts of torture or ill-treatment; and (4) improving conditions of detention, as contained in paragraphs 11, 14, 15 and 17 of this document.

(31)The Committee invites the State party to submit its next periodic report, which will be its second periodic report, by 25 November 2015 at the latest. To this end, the Committee invites the State party to agree, before 25 November 2012, to submit its report according to the optional procedure, under which the Committee sends the State party a list of issues prior to the periodic report. The State party’s replies to this list of issues prior to reporting will constitute the State party’s next periodic report, in accordance with article 19 of the Convention.

55. Germany

(1)The Committee against Torture considered the fifth periodic report of Germany (CAT/C/DEU/5), at its 1028th and 1031st meetings (CAT/C/SR.1028 and 1031), held on 4 November and 8 November 2011. At its 1046th and 1047th meetings (CAT/C/SR.1046 and 1047), held on 18 November 2011, it adopted the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the fifth periodic report by the State party but regrets that it was submitted after a delay of more than two years. The Committee further notes that the State party’s report generally complied with the reporting guidelines despite lacking specific data, disaggregated by sex, age and nationality, in particular about acts of torture and ill-treatment by law enforcement officials.

(3)The Committee commends the State party for its comprehensive inter-ministerial delegation, which included the federal and Länder representatives of the National Agency for the Prevention of Torture, and appreciates the dialogue between the delegation and the members of the Committee covering many areas under the Convention. The Committee further commends the State party for the detailed written replies to the list of issues that it provided in advance of the session to facilitate the consideration of the State party report.

B. Positive aspects

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

(a)United Nations Convention against Transnational Organized Crime, on 14 June 2006;

(b)Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, on 14 June 2006;

(c)Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on 4 December 2008;

(d)Convention on the Rights of Persons with Disabilities, on 24 February 2009;

(e)Optional Protocol to the Convention on the Rights of Persons with Disabilities, on 24 February 2009;

(f)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, on 15 July 2009;

(g)International Convention for the Protection of All Persons from Enforced Disappearance, on 24 September 2009.

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

(a)Federal Law on the Parliamentary Control of Intelligence Services, having entered into force on 30 July 2009;

(b)Federal Law on Preventive Detention of January 2011 requiring that preventive detention is applied as a measure of last resort in accordance with the principles of necessity and proportionality.

(6)The Committee commends the establishment of the National Agency for the Prevention of Torture, composed of the Federal Agency and the Joint Commission of the Länder, which has been mandated to serve as independent national preventive mechanism under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

(7)The Committee also welcomes the joint project by the International Organization for Migration and the Federal Office for Migration and Refugees to identify potential victims of trafficking among asylum seekers.

(8)The Committee notes the existence of a vibrant civil society that significantly contributes to the monitoring of torture and ill-treatment, thereby facilitating the effective implementation of the Convention in the State party.

C. Principal subjects of concern and recommendations

Definition and criminalization of torture

(9)The Committee welcomes the State party’s Code of Crimes against International Law which codifies, inter alia, crimes of torture in the context of genocide, war crimes or crimes against humanity, in accordance with article 7 of the Rome Statute of the International Criminal Court. However, the Committee expresses serious concern at the absence of provisions adequately criminalizing acts of torture in the context of general criminal law, as the application of provisions of the Criminal Code (including sect. 340, para. 1, in conjunction with sect. 224) and the Military Penal Code (sects. 30 and 31) do not adequately punish the infliction of pain or suffering, whether physical or mental, as required by article 1 of the Convention. Moreover, while noting the data on investigations into alleged offences by law enforcement officers, the Committee regrets the absence of clarity regarding which of the allegations of ill-treatment by public officials, if proven true, would amount to torture under article 1 of the Convention or cruel, inhuman or degrading treatment or punishment under article 16 of the Convention (arts. 1 and 4).

The State party should include torture as a specific offence in its general criminal law and ensure that its definition encompasses all the elements of article 1 of the Convention. In accordance with the Committee’s general comment No. 2 (2007) on implementation of article 2 by States parties, the State party should also clarify which of the incidents of ill-treatment by law enforcement officers reported in the State party’s response to the list of issues amount to torture and other cruel, inhuman or degrading treatment or punishment, in order to help the State party identify how and where the Convention is implemented and the monitoring thereof by the Committee.

(10)The Committee notes with concern that the State party has no specific information on cases in which the Convention has been invoked and directly applied before the domestic courts (arts. 2 and 10).

The Committee recommends that the State party take steps to disseminate the Convention to all public authorities, including the judiciary, thus facilitating direct application of the Convention before domestic courts, both at the federal and Länder level, and that it provide an update on illustrative cases in its next periodic report.

(11)While welcoming that the Military Penal Code allows for punishment of ill-treatment and degrading treatment by military superiors, in conjunction with the possible penalties for “causing grievous bodily harm” or “causing bodily harm while exercising a public office” stipulated in the Criminal Code, the Committee is concerned by the lenient penalties in the Military Penal Code, which range from six months’ to five years’ imprisonment, even where such acts can cause severe pain or suffering (art. 4).

The State party should amend its Military Penal Code in order to make the offences of torture in the military punishable by appropriate penalties which take into account their grave nature, in accordance with article 4 of the Convention and the relevant jurisprudence by the Committee.

Obligations of the Federation and the Länder

(12)While taking note of the constitutional reform of 2006 involving the transfer of responsibility for prison legislation from federal to Länder level, the Committee remains concerned at the prevalence of a higher standard of protection against torture and ill-treatment at the federal level as compared to individual Länder. This is particularly the case for physical restrictions (Fixierung). The Committee is also concerned at the lack of clarity about the measures taken by the Federal Government to ensure compliance with the Convention at the Länder level (art. 2).

Since the Federal Republic of Germany is a State party under international law that has undertaken the obligation to implement the Convention in full at the domestic level, the Committee recommends that the State party provide guidance and assist in the adoption and application of legislative and policy measures to individual Länder to achieve even protection of human rights in the context of law enforcement at the federal and Länder level, and seek consistency between the steps taken by various Länder, in order to ensure that the standards and safeguards set forth in the Convention are equally protected and implemented in all Länder.

National Agency for the Prevention of Torture

(13)The Committee is concerned at the lack of sufficient staff and financial and technical resources provided to the National Agency for the Prevention of Torture, comprised of the Federal Agency for the Prevention of Torture and the Joint Commission of the Länder, owing to which places of detention can be currently visited only once in four years, preventing the adequate fulfilment of the Agency’s monitoring mandate (arts. 2 and 12). The Committee is further concerned at the information given by the State party that the Joint Commission of the Länder had to announce, in some instances, its intention to visit the places of detention to the respective authorities in advance in order to gain access.

The Committee recommends that the State party provide the National Agency for the Prevention of Torture with sufficient human, financial, technical and logistical resources to enable it to carry out its functions effectively and independently, in accordance with article 18, paragraph 3, of the Optional Protocol and guidelines Nos. 11 and 12 of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as ensure its regular and timely access to all places of detention at the federal and Länder levels, without the requirement of a prior consent to the visit by the respective authorities.

(14)While commending the National Agency’s recommendations aimed at, inter alia, improving conditions of physical restrictions, requirements relating to clothing in special secured rooms or technical requirements of new detention rooms in Brandenburg prison, the Committee notes with concern the lack of public awareness about the recommendations adopted by the National Agency and the steps taken by the State party in order to ensure their implementation. The Committee is further concerned at reports that cooperation between the Joint Commission of the Länder and the existing bodies, including the petitions committees, which are entitled in some of the Länder to make unannounced visits to places of detention, has not been established (arts. 2 and 12).

The Committee recommends that the State party:

(a) Make public and regularly disseminate, using all appropriate means of communication, the recommendations adopted by the National Agency to improve conditions in places of detention and the steps taken by the State party to ensure their effective implementation;

(b) Compile the best practices by the National Agency and undertake relevant training to its personnel; and

(c) Establish cooperation between the Joint Commission of the Länder and the existing bodies in individual Länder, in particular the petitions committees that are also mandated to carry out preventive visits of places of detention.

Trafficking in persons

(15)The Committee notes with interest the cooperation programmes between the federal and Länder levels, church and civil society organizations to provide assistance to victims of trafficking, and welcomes the exercise of universal jurisdiction with regard to crimes of trafficking for sexual and work exploitation pursuant to section 6 of the Criminal Code. However, it expresses serious concern at a “dark field of undetected cases” of trafficking acknowledged by the State party and evidenced by the low number of such crimes registered by the police as compared to non-governmental estimates. According to non-governmental organization sources, there are some 15,000 people, including children, who have been allegedly trafficked to the State party from various European, Asian and African countries for forced sex-work, illegal adoptions and as labourers in service sectors (arts. 2, 3, 12, 14 and 16).

The Committee urges the State party to:

(a) Prevent and promptly, thoroughly and impartially investigate, prosecute and punish trafficking in persons and related practices;

(b) Provide means of redress to victims of trafficking, including assistance to victims in reporting incidents of trafficking to the police, in particular by providing legal, medical and psychological aid and rehabilitation including adequate shelters, in accordance with a rticle 14 of the Convention;

(c) Prevent return of trafficked persons to their countries of origin where there is a substantial ground to believe that they would be in danger of torture, to ensure compliance wit h article 3 of the Convention;

(d) Provide regular training to the police, prosecutors and judges on effective prevention, investigation, prosecution and punishment of acts of trafficking, including on the guarantees of the right to be represented by an attorney of one’s own choice, and inform the general public of the criminal nature of such acts; and

(e) Compile data disaggregated, as appropriate, by nationality, country of origin, ethnicity, gender, age and employment sector and on the provision of redress.

Physical restraints ( Fixierung )

(16)The Committee welcomes the information provided by the State party that, since the 2005 visit to the State party by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the Federal Police has refrained from utilizing physical restraints (Fixierung) and at the Länder level the practice of Fixierung has been applied as a measure of last resort. However, the Committee remains concerned by the assertion by the State party that it will not be possible in the long term to abandon the practice of Fixierung in all non-medical settings at the Länder level, as recommended by CPT, and the lack of information on the uniform application of CPT principles and minimum standards in relation to Fixierung (arts. 2, 11 and 16).

The Committee urges the State party to strictly regulate the use of physical restraints in prisons, psychiatric hospitals, juvenile prisons and detention centres for foreigners with a view to further minimizing its use in all establishments and ultimately abandoning its use in all non-medical settings. The State party should further ensure adequate training for law enforcement and other personnel on the use of physical restraints, harmonization of the permissible means of physical restraints in all the Länder and the observance in all establishments of the principles and minimum standards in relation to Fixierung drawn up by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

Preventive detention

(17)The Committee takes note of the judgement of the Federal Constitutional Court of 4 May 2011 which has considered that all provisions of the Criminal Code and the Youth Courts Act on the imposition and duration of preventive detention are unconstitutional and welcomes the fact that the federal and Länder authorities have already started to implement the ruling. The Committee nonetheless notes with regret the information that more than 500 persons remain in preventive detention, some of them having been in preventive detention for more than twenty years (arts. 2 and 11).

The Committee urges the State party to:

(a) Adapt and amend its laws on the basis of the Federal Constitutional Court’s decision by 31 March 2013, as requested by the Court, in order to minimize the risks arising from preventive detention; and

(b) Take all necessary actions, in the meantime, to comply with the institutional measures requested by the Court’s decision, in particular with regard to release of persons in preventive detention, reduction of its duration and the imposition thereof, and take into account the provisions of the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) when devising the measures alternative to preventive detention.

A ccess to complaint mechanisms

(18)The Committee is concerned at information that alleged victims of ill-treatment by the police are not aware of complaint procedures beyond reporting their complaints to the police, who in some cases refused to accept allegations of misconduct by the police. The Committee is further concerned at reported cases of ill-treatment of persons in a vulnerable situation who have declined to file a complaint against the police out of fear of counter-complaints by the police or other forms of reprisals (arts. 12, 13 and 16).

The Committee recommends that the State party take appropriate measures to:

(a) Ensure that information about the possibility and procedure for filing a complaint against the police is made available and widely publicized, including by being prominently displayed in all police stations of the Federal and Länder Police; and

(b) Ensure that all allegations of misconduct by the police are duly assessed and investigated, including cases of intimidation or reprisals in particular against persons in vulnerable situation as a consequence of the complaints of ill-treatment by the police.

Prompt, independent and thorough investigations

(19)The Committee welcomes the information provided by the State party on the measures taken by the Federal Government and the Länder to ensure that investigations into allegations of criminal conduct by the police are conducted promptly and impartially. However, the Committee is concerned that allegations of torture and ill-treatment and unlawful use of force by the police at the federal level continue to be investigated by the Public Prosecution Offices and the police acting under the supervision of the Public Prosecution Offices. The Committee is particularly concerned by the allegations that several incidents of ill-treatment by the police, raised during the dialogue with the State party, have not been investigated promptly, independently and thoroughly, as in some of those cases the same Federal Police unit to which the accused police officer belonged was responsible for parts of the investigation. The Committee thus reiterates its concern at the absence at the federal level as well as in some Länder of independent and effective investigations into the allegations of ill-treatment (arts. 12, 13 and 16).

The Committee recommends that the State party:

(a) Take all appropriate measures both at the federal and Länder level so as to ensure that all allegations of torture and ill-treatment by the police are investigated promptly and thoroughly by independent bodies, with no institutional or hierarchical connection between the investigators and the alleged perpetr ators among the police; and

(b) Provide the Committee with its comments on the specific cases of ill-treatment by the police raised during the dialogue with the State party.

Intersex people

(20)The Committee takes note of the information received during the dialogue that the Ethical Council has undertaken to review the reported practices of routine surgical alterations in children born with sexual organs that are not readily categorized as male or female, also called intersex persons, with a view to evaluating and possibly changing current practice. However, the Committee remains concerned at cases where gonads have been removed and cosmetic surgeries on reproductive organs have been performed that entail lifelong hormonal medication, without effective, informed consent of the concerned individuals or their legal guardians, where neither investigation, nor measures of redress have been introduced. The Committee remains further concerned at the lack of legal provisions providing redress and compensation in such cases (arts. 2, 10, 12, 14 and 16).

The Committee recommends that the State party:

(a) Ensure the effective application of legal and medical standards following the best practices of granting informed consent to medical and surgical treatment of intersex people, including full information, orally and in writing, on the suggested treatment, its justification and alternatives;

(b) Undertake investigation of incidents of surgical and other medical treatment of intersex people without effective consent and adopt legal provisions in order to provide redress to the victims of such treatment, including adequate compensation;

(c) Educate and train medical and psychological professionals on the range of sexual, and related biological and physical, diversity; and

(d) Properly inform patients and their parents of the consequences of unnecessary surgical and other medical interventions for intersex people.

Refugees and international protection

(21)While taking note that the transfers under the Dublin II Regulation to Greece have been suspended due to difficult reception conditions, the Committee notes with concern that the present suspension of returns, due to expire on 12 January 2012, might be terminated prior to the amelioration of the reception conditions in Greece (art. 3).

The State party is encouraged to prolong the suspension of forced transfers of asylum seeker s to Greece in January 2012, unless the situation in the country of return significantly improves.

(22)While noting that asylum applications falling under the Dublin II Regulation are subject to appeal, the Committee is concerned that under article 34a, paragraph 2, of the German Law on Asylum Procedure, lodging of an appeal does not have suspension effect on the impugned decisions (art. 3).

The Committee also recommends that the State party abolish the legal provisions of the Asylum Procedures Act excluding suspensive effects of the appeals against decision to transfer an asylum seeker to another State participating in the Dublin system.

(23)The Committee takes note of the lack of procedural counselling for asylum seekers before a hearing is carried out by asylum authorities, and that legal aid is paid for a lawyer in appeals against negative decisions only if the appeal is likely to succeed according to the court’s summary assessment (arts. 3, 11 and 16).

The Committee calls on the State party to guarantee access to independent, qualified and free-of-charge procedural counselling for asylum seeker s before a hearing is carried out by asylum authorities, guarantee access to legal aid for needy asylum seeker s after a negative decision, as long as the remedy is not obviously without a prospect for success.

Detention pending deportation

(24)The Committee notes a decrease in numbers and duration of detention of foreign nationals. However, it is concerned at the information that several thousand asylum seekers whose requests have been rejected and a vast majority of those who are the subject in so-called “Dublin cases” continue to be accommodated in Länder detention facilities immediately upon arrival, sometimes for protracted periods of time. This practice contravenes Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals which regulates detention pending deportation as a means of last resort. The Committee is particularly concerned at the lack of procedure in a number of Länder for identification of vulnerable asylum seekers, such as traumatized refugees or unaccompanied minors, given the absence of mandatory medical checks on arrival in detention, with the exception of checks on tuberculosis, and systematic checks for mental illnesses or traumatization. The Committee is further concerned by the lack of adequate accommodation for detained asylum seekers separate from remand prisoners, especially for women awaiting deportation (arts. 11 and 16).

The Committee urges the State party to:

(a) Limit the number of detained asylum seeker s, including those who are the subject in “Dublin cases”, and the duration of their detention pending return, while observing the European Union Directive 2008/115/EC;

(b) Ensure mandatory medical checks and systematic examination of mental illnesses or traumatization of all asylum seeker s including the “ Dublin cases” by independent and qualified health professionals upon arrival in all Länder detention facilities;

(c) Provide a medical and psychological examination and report by a specially trained independent health expert when the signs of torture or traumatization have been detected during the personal interviews by asylum authorities; and

(d) Provide adequate accommodation for detained asylum seeker s separate from remand prisoners in all detention facilities, particularly for women awaiting deportation.

Diplomatic assurances

(25)The Committee notes the March 2009 Düsseldorf Administrative Court’s judgement as confirmed by Higher Administrative Court of North Rhine-Westphalia of May 2010 in the case of a Tunisian man, considered a national security threat by the Government of Germany, who could not be deported to Tunisia despite diplomatic assurances as the diplomatic assurances have been considered “not legally binding …and by nature hardly trustworthy or verifiable”. It also notes the practice by the High Regional Courts in regard of evaluation of the requests for extradition in the light of all available information, including the incidents of torture and ill-treatment. The Committee further takes note of the State party’s assertion that no diplomatic assurances have been accepted since 2007; however, according to the State party “the possibility to accept diplomatic assurances in cases of extraditions still exists in appropriate and exceptional cases, in particular where the risk of torture or ill-treatment is only of general nature”. The Committee is also concerned at the reports that regulations implementing the Resident Act that aims at controlling the entry, residence and employment of foreigners in Germany provide for the use of diplomatic assurances in national security deportations carried out by the Federal Ministry of the Interior, as well as the lack of updated information on whether the diplomatic assurances have been applied in this context (arts. 3 and 14).

The Committee recommends that the State party refrain from seeking and accepting diplomatic assurances, both in the context of extradition and deportation, from the State where there are substantial grounds for believing that a person would be at risk of torture or ill-treatment upon return to the State concerned, as such assurances may not ensure that an individual would not be subjected to torture or ill-treatment if returned, even in cases where post-return monitoring mechanisms are put in place.

Secret detention and extraordinary renditions

(26)The Committee welcomes the adoption of a new law on the parliamentary control of intelligence services subsequent to the 2009 Parliamentary Inquiry into alleged involvement of the State party in extraordinary renditions and secret detention of terrorist suspects. However, it notes with concern the lack of clarity of the implementation by the Federal Government of the recommendations of the Parliamentary Commission of Inquiry. The Committee also notes with concern that no Federal Government investigation has been undertaken in response to the June 2009 ruling by the Constitutional Court, which ruled that the failure by the Government to fully cooperate with the Inquiry has violated the Federal Constitution. The Committee is further concerned by the lack of information from the State party about the specific measures it has taken to implement the recommendations of the United Nations joint study on global practices in relation to secret detention in the context of countering terrorism (A/HRC/13/42) (art. 3).

The Committee urges the State party to:

(a) Provide information on concrete steps to implement the recommendations by the 2009 Parliamentary Commission of Inquiry and measures to initiate Federal Government’s investigation into alleged involvement of law enforcement officers of the State party in rendition and secret detention programmes;

(b) Make the outcomes of the investigations public;

(c) Take all necessary measures to prevent the future incidents of such situations; and

(d) Take specific measures with a view to implement the recommendations of the United Nations joint study on global practices in relation to secret detention in the context of countering terrorism (A/HRC/13/42).

Unaccompanied minors

(27)While noting the information that the so-called “Airport Procedure” under article 18 of the Law on Asylum Procedure applies to the asylum seekers arriving from a safe country of origin or without a valid passport, the Committee remains concerned in particular by the reports of continuous exposure of unaccompanied minors to the “Airport Procedure”, including those whose asylum application has been refused or refugee status repealed who can be deported to the countries of origin if no reasonable ground to expect torture or ill-treatment has been detected. The Committee is also concerned about the lack of information on the State party’s position it represents in the context of the European Union discussion on minors subject to the “Airport Procedure” (art. 3).

The Committee recommends that the State party:

(a) Exclude unaccompanied minors from the “Airport Procedure”, as recommended by the European Commission against Racism and Intolerance;

(b) Ensure that unaccompanied minors can enjoy the rights guaranteed by the Convention on the Rights of the Child;

(c) Ensure collection and public availability of data, disaggregated by age, sex and nationality, on the number of unaccompanied minors that are subject to enforced removal from the State party; and

(d) Play an active part in the European Union discussion on this issue with a view of extending the protection of unaccompanied minors from the risk of torture and ill-treatment.

Exercise of jurisdiction

(28)The Committee is seriously concerned at the reported reluctance on part of the State party to exercise jurisdiction over allegations of torture and ill-treatment of persons rendered abroad, including the case of Khaled El-Masri, in violation of article 5 of the Convention. In addition, the Committee is concerned at the absence of information from the State party whether Khaled El-Masri has received any remedies, including compensation, in accordance with article 14 of the Convention (arts. 5 and 14).

The State party is urged to observe article 5 of the Convention which requires that the criteria for exercise of jurisdiction are not limited to nationals of the State party. The State party should also inform the Committee about the remedies, including adequate compensation provided, to Khaled El-Masri, in accordance with article 14 of the Convention.

Training of law enforcement personnel

(29)While taking note of the training of the federal and Länder law enforcement personnel on the Convention, constitutional guarantees and public and national criminal and procedural law, the Committee expresses its concern at the lack of specific training to all professionals directly involved in the investigation and documentation of torture as well as medical and other personnel involved with detainees and asylum seekers on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). The Committee is also concerned that the training on the Istanbul Protocol, to be introduced next year in all the Länder, is designed to focus on detecting physical but not psychological traces of torture. The lack of training on the absolute prohibition of torture in the context of instructions issued to the intelligence services is yet another source of concern (arts. 2, 10 and 16).

The Committee recommends that the State party:

(a) Ensure that all law enforcement, medical and other personnel involved in the holding in custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment and the documentation and investigation of torture are provided, on a regular basis, with training on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), requiring the identification of both physical and psychological consequences for victims of torture;

(b) Ensure that such training is also provided to personnel involved in asylum determination procedures, and make the existing publications and training tools on the Istanbul Protocol available on the Internet; and

(c) Include systematic reference to the absolute prohibition of torture in the instructions issued to the intelligence services.

Identification of police officers

(30)The Committee is concerned by the State party’s information that police officers, except in Brandenburg and Berlin, are not obliged to wear identification badges showing their number or name during the exercise of their functions and that even in those two Länder the wearing of badges might be withdrawn in order to protect the safety and interests of the police officers, according to the State party. This practice has reportedly hindered in many cases the investigation and holding to account of the police officers allegedly implicated in ill-treatment, including the incidents of the excessive use of force in the context of demonstrations. According to a study commissioned by the Berlin Police, some 10 per cent of cases of alleged ill-treatment by the police could not be elucidated or prosecuted because of lack of identification (arts. 12, 13 and 14).

The Committee recommends that the State party:

(a) Weigh up the interests of both police officers and potential victims of ill-treatment and ensure that members of the police in all the Länder can be effectively identified at all times when carrying out their law enforcement function and held accountable when implicated in ill-treatment; and

(b) Assess the cases of lack of investigation raised during the dialogue with the State party and report thereon to the Committee.

Interrogations abroad

(31)The Committee welcomes the reported discontinuance of the practice of interrogation of terrorism suspects by German intelligence agents abroad, reflecting on the findings of the Parliamentary Commission of Inquiry in regard to Khaled el-Masri case and the Federal Government’s declaration that the investigations by the police, prosecutors and intelligence officers abroad have been halted. The Committee is however concerned about the lack of clarity as to whether the commitment to discontinue investigations abroad extends to private security companies. The Committee further notes with concern the lack of explanations, taking into account the June 2005 Hamburg Supreme Court decision related to the case of Mounir al-Motassadeq, about who carries the burden of proof in regard to inadmissibility of evidence allegedly extracted by torture or ill-treatment before the State party’s courts. The absence of information on whether the Government continues to rely on information from intelligence services of other countries, some of which may have been extracted through torture or ill-treatment, is of serious concern (arts. 2, 3, 11 and 15).

The Committee recommends that the State party:

(a) Apply the ban on investigation abroad to all the authorities and entities engaged in law enforcement, including the private security companies when there is a suspicion of coercion being used;

(b) Clarify the procedural standards, including the burden of proof applied by the State party’s courts for the assessment of evidence that may have been extracted by torture or ill-treatment; and

(c) Refrain from “automatic reliance” on the information from intelligence services of other countries, with the aim of preventing torture or ill-treatment in the context of forced confessions.

Corporal punishment

(32)While taking note that corporal punishment is prohibited in all circumstances in the German legal system (sect. 163 of the Code of Civil Law), the Committee expresses concern at the absence of information on the efforts to provide appropriate and ongoing public education and professional training on the prohibition of corporal punishment in all settings (art. 16).

The Committee recommends that the State party actively promote positive, participatory and non-violent forms of education and child-rearing as an alternative to corporal punishment.

Data collection

(33)The Committee appreciates the State party’s decision to compile new statistics on crimes, including ill-treatment by the police and “violence in close social relations”. It notes the data on complaints of ill-treatment by law enforcement officers, disaggregated by suspected crime. However, 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, trafficking and domestic and sexual violence, crimes with racist motives, and on means of redress, including compensation and rehabilitation provided to the victims (arts. 2, 12, 13 and 16).

The Committee recommends that the State party compile 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 by law enforcement, security, military and prison personnel, trafficking, domestic and sexual violence, crimes with racist motives, and on means of redress, including compensation and rehabilitation provided to the victims.

(34)Noting the commitment made by the State party in the context of the universal periodic review of Germany, the Committee recommends that the State party ensure full implementation of the provisions of international human rights instruments, in particular in the context of counter-terrorism measures.

(35)The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet a party, namely, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and to consider signing and ratifying the Optional Protocol to the Covenant on Economic, Social and Cultural Rights.

(36)The State party should consider withdrawing its declaration to article 3 of the Convention with a view to allowing direct application of article 3 of the Convention before courts and authorities at federal and Länder levels.

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

(38)The State party is invited to further update its common core document (HRI/CORE/DEU/2009), in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6).

(39)The Committee requests the State party to provide, by 25 November 2012, follow-up information in response to the Committee’s recommendations related to (a) regulating and restricting the use of physical restraints in all establishments, (b) limiting the number of detained asylum seekers including the “Dublin cases” and ensuring mandatory medical checks of detained asylum seekers, (c) exercising jurisdiction in accordance with article 5 of the Convention and providing information about the remedies including compensation provided to Khaled El-Masri, and (5) ensuring that members of the police in all the Länder can be effectively identified and held accountable when implicated in ill-treatment, as contained in paragraphs 16, 24, 28 and 30 of the present document.

(40)The State party is invited to submit its next report, which will be the sixth periodic report, by 25 November 2015. To that purpose, the Committee invites the State party to accept, by 25 November 2012, to report under its optional reporting procedure, consisting in the transmittal, by the Committee to the State party, of a list of issues prior to the submission of the periodic report. The State party’s response to this list of issues will constitute, under article 19 of the Convention, its next periodic report to the Committee.

56. Madagascar

(1)The Committee against Torture considered the initial report of Madagascar (CAT/C/MDG/1) at its 1034th and 1037th meetings (CAT/C/SR.1034 and 1037), held on 10 and 11 November 2011, and adopted the following concluding observations at its 1052nd and 1053rd meetings (CAT/C/SR.1052 and 1053) on 23 November 2011.

A. Introduction

(2)The Committee welcomes the initial report of Madagascar. It appreciates the frank and constructive dialogue that it has had with the delegation of the State party and thanks it for providing detailed replies to the questions raised at that time, as well as the additional written replies supplied subsequently.

B. Positive aspects

(3)The Committee welcomes the ratification by the State party of the following international instruments during the reporting period:

(a)The Rome Statute of the International Criminal Court, in 2008; and

(b)The International Labour Organization (ILO) Abolition of Forced Labour Convention, 1957 (No. 105), in 2007.

(4)The Committee takes note of the commitment made by the State party to ratify the Optional Protocol to the Convention and to develop an action plan for putting into practice the recommendations of the universal periodic review, including those concerning appropriate measures to prevent torture and ill-treatment.

(5)The Committee takes note that:

(a)The State party’s Constitution prohibits torture;

(b)The State party has stated that the signing in September 2011 of the road map to end the political crisis, which had led to the appointment of a consensus candidate for the post of prime minister, should also allow national institutions paralysed since 2009 by the crisis to begin functioning normally again. The return to normal operations of such institutions, and in particular of Parliament, would permit the passage or amendment of laws to bring domestic legislation into line with the standards set forth in international human rights instruments ratified by the State party;

(c)The State party has pledged to renew the standing invitation it has verbally made to the special procedures of the Human Rights Council as soon as possible; and

(d)A de facto moratorium on the death penalty is in place.

C. Principal subjects of concern and recommendations

Criminalization of torture and ill-treatment

(6)While taking note of Act No. 2008-008 of 25 June 2008 which prohibits torture and other cruel, inhuman or degrading treatment or punishment in line with the Convention, the Committee is concerned about the failure to specify the range of penalties for acts of ill-treatment, which leaves the penalty completely at the discretion of the judge. In the Committee’s view, the absence of a specified range of penalties violates the principle that both the offence and the penalty must be prescribed by law. In addition, the Committee regrets the failure to apply this law since its enactment in 2008, a fact borne out by reports that judges, lawyers and law enforcement officers are unaware of its existence (art. 4).

The State party should amend its law against torture in order to incorporate a scale of penalties for acts of ill-treatment and amend its Criminal Code and Code of Criminal Procedure to include relevant provisions from the law against torture, thereby facilitating their enforcement. In the meantime, the State party should circulate this law to judges, lawyers, criminal investigation officers, the heads of local administrative units ( fokontany ) and prison staff with a view to its immediate application.

Categorization of torture and the statute of limitations

(7)The Committee notes that the Act of 2008 draws a distinction between acts of torture categorized as offences, punishable by 2 to 5 years of imprisonment, and those defined as serious offences, punishable by terms of imprisonment of 5 to 10 years. The Committee regrets that the statute of limitations for torture cases is, at most, 10 years, and that it is only in cases of genocide or crimes against humanity that no statute of limitations applies (arts. 1 and 4).

The State party should amend this Act in consideration of the fact that torture, because of its serious nature, should not be subject to a statute of limitations. The use of appropriate penalties and the absence of a statute of limitations increase the deterrent effect of the prohibition of torture. They also enable the public to monitor State action or inaction that violates the Convention and, if necessary, to challenge it.

Non-justification of torture and thorough, impartial investigations

(8)The Committee is deeply concerned about the numerous reports of human rights violations since the onset of the 2009 political crisis — including torture, summary and extrajudicial executions and enforced disappearances — that have neither been investigated, nor prosecuted. The Committee is concerned about reports that the use of torture is politically motivated and used against political opponents, journalists and lawyers (arts. 2, 12, 13, 14 and 16).

The State party should take appropriate measures to carry out independent, thorough and impartial investigations into human rights violations, including cases of torture, ill-treatment, summary executions and enforced disappearances, and ensure that the perpetrators are prosecuted and punished. No circumstance, including domestic political instability, may serve to justify torture, and no political or any other type of agreement should permit an amnesty for the perpetrators of the most heinous offences committed during the political crisis. The State party should strengthen the complaints mechanisms available to victims and ensure that they obtain redress and are provided with the means of achieving social reintegration and psychological rehabilitation. The State party should ensure that persons lodging such complaints, witnesses and members of their families are protected from any act of intimidation in connection with their complaint or testimony.

The Committee invites the State party to include statistics in its next periodic report on the number of complaints of torture or ill-treatment made and on the number of criminal convictions handed down or disciplinary measures taken in such cases, including those that occurred during the de facto state of emergency in 2009. The information should include the identity of the investigating authorities and should be broken down by the sex, age and ethnic origin of the persons filing the complaints.

Basic legal safeguards

(9)The Committee notes that, when suspects are arrested, they are rarely informed of their right to be examined by a physician, that they do not receive proper medical examinations and that persons held in custody sometimes encounter problems in gaining access to their lawyers or family members. The Committee considers that the extension of the duration of pretrial detention to 12 days is excessive. The Committee is seriously concerned about the fact that in several cases pretrial detention has extended beyond acceptable periods (arts. 2, 12, 13, 15 and 16).

In the light of the Committee’s general comment No. 2 on the implementation of article 2, the State party should redouble its efforts to ensure that from the outset detainees benefit in practice from all the basic legal guarantees. These guarantees include in particular the obligation to inform such persons of their rights and of the charges against them and the rights of detainees to prompt legal assistance and, where necessary, legal aid; to an independent medical examination by, if possible, a physician of their choice; to notify a relative; and to be brought before a judge without delay.

The State party should ensure the implementation of Decree No. 2009-970 of 14 July 2009 regulating legal assistance, strengthen its system for providing persons taken into custody with free legal assistance and facilitate access by detainees to their lawyers and family members. The State party should also consider amending its Code of Criminal Procedure in order to reduce the duration of pretrial detention and to put rigorous safeguards in place to prevent it from being abused. The Committee invites the State party to strengthen its locally based justice system to the extent possible in order to preclude logistical problems posed by the need for persons standing trial and criminal investigation officers to travel considerable distances.

Living conditions in and systematic monitoring of places of detention

(10)While taking note of the information provided by the State party on the construction of four new prisons, the Committee remains concerned about the poor living conditions in prisons and, in particular, the failure to separate different categories of inmates, malnutrition, the lack of medical care which has led to the death of some inmates, and the inhuman conditions in punishment cells. The Committee also remains concerned about prison overcrowding; although the Constitution states that pretrial detention is an exceptional measure, more than half of the people held in prison have not yet been brought to trial. The Committee is particularly concerned about reports of the humiliating treatment of prisoners, of rape and of instances in which food is provided in exchange for the performance of sexual acts (arts. 2, 11, 12, 13, 14 and 16).

The State party should:

(a) Ensure that prison conditions are in line with the Standard Minimum Rules for the Treatment of Prisoners, including in the cramped punishment cells, so that the conditions of solitary confinement in such cells are in compliance with international standards;

(b) Separate the categories of detainees, ensuring that remand prisoners are separated from convicts and that minors are separated from adults;

(c) Take into consideration the particular problems faced by women prisoners and the need to address those problems in accordance with the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), adopted by the General Assembly on 21 December 2010;

(d) Ensure that detainees have access to decent food and medical care;

(e) Expedite the cases of persons held in pretrial detention, if necessary by calling the responsible officials to account;

(f) Use non-custodial penalties to reduce overcrowding in accordance with the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), adopted by the General Assembly on 14 December 1990;

(g) Investigate allegations of the humiliating treatment of prisoners, rape and other sexually motivated acts of violence and take steps, as a matter of urgency, to punish the perpetrators of such acts. The Committee reminds the State party that it is under an obligation to conduct an investigation ex officio, without a victim’s prior complaint, whenever there are reasonable grounds for believing that an act of torture has been committed;

(h) Set up a system for monitoring places of detention on a regular basis with a view to improving conditions in those facilities. The State party should provide funding for the Prison Oversight Commission and cooperate more closely with NGOs by providing them with free access to places of detention so that such facilities can be independently monitored.

Traditional justice ( Dina )

(11)The Committee is particularly concerned about the population’s systematic recourse to the traditional justice system (Dina), which is apparently attributable to a lack of confidence in the formal system of justice. In addition to decisions in civil cases, the use of such courts has reportedly resulted in criminal verdicts as well, and also in torture and summary and extrajudicial executions (arts. 2 and 16).

In the light of its general comment on the implementation of article 2 of the Convention, the Committee does not accept references to respect for tradition as a justification to derogate from the absolute prohibition on torture. The State party should set up an effective system for monitoring decisions by Dina courts and investigate any violation of the law or provisions of the Convention. The State party should ensure that the Dina system is compatible with its human rights obligations, in particular those under the Convention. It should also explain the hierarchical relationship between customary law and domestic law.

The State party should take urgent measures to closely monitor the decisions of Dina courts in line with Act No. 2001-004 of 25 October 2001, which inter alia requires the approval of Dina court decisions by ordinary courts. It should also ensure that all decisions by Dina courts are appealed before the ordinary courts. The State party should work to increase the public’s confidence in the system of justice. It should undertake judicial reforms to resolve the main problems in the administration of justice that are undermining the credibility of the justice system and find appropriate solutions to make it work effectively and to the people’s benefit.

Trafficking in persons

(12)The Committee regrets that there is no information in the State party’s report on trafficking in persons despite a persistent problem of sex tourism and exploitation of street children (arts. 2, 12, 13 and 14).

The State party should investigate all allegations of trafficking in persons, in accordance with Act No. 2007-038 of 14 January 2008 concerning trafficking and sex tourism and with the relevant international standards. It should carry out awareness-raising campaigns and organize training sessions for law enforcement officers as a means of preventing and combating trafficking in persons. It should offer protection to victims and provide them with access to medical, social and legal services, including rehabilitation services. The Committee invites the State party to include detailed information in its next report on the number of investigations carried out, complaints filed and convictions handed down for trafficking in persons.

Violence against women and children

(13)The Committee is concerned about information indicating that there is a large number of cases of early and forced marriages and of ill-treatment and domestic violence. It is also concerned about the fact that complaints are not lodged due to social and family pressure, despite the existence of Act No. 2000-21, which criminalizes domestic violence and sexual abuse (arts. 2, 12, 13 and 16).

The State party should hold discussions at the community level, in particular with the heads of the fokontany , and take other steps to reduce the incidence of and ultimately eliminate forced marriages and moletry (probationary one-year marriages involving underage girls). It should enforce the obligation to register all marriages in order to monitor their compliance with domestic law and the conventions it has duly ratified. The State party should also prohibit early marriages, and prosecute offenders.

The Committee encourages the State party to pass a law to prevent and punish marital rape and prohibit corporal punishment of children. It invites the State party to ensure that methods for detecting violence against women and children are included in the training of law enforcement officers.

National human rights institution

(14)The Committee regrets that the political crisis of 2009 prevented the appointment of members of the National Human Rights Council, and that the Council has been unable to function since its establishment in 2008 (arts. 2, 12, 13 and 16).

The State party should ensure the effective and independent operation of this institution by allocating the human resources and funding it needs to fulfil its mandate, which in particular involves the investigation of allegations of torture and ill-treatment. The Committee encourages the State party to request technical assistance from the Office of the United Nations High Commissioner for Human Rights to ensure that the institution complies with the principles relating to the status of national institutions for the promotion and protection of human rights set forth in the annex to General Assembly resolution 48/134 (the Paris Principles).

Hostage-taking of relatives

(15)The Committee deplores the fact that women have allegedly been arrested and detained in order to force their husbands to turn themselves over to the police (arts. 12 and 16).

The State party should put an end to the practice of taking relatives of suspected criminals hostage and should expedite investigations with a view to punishing those responsible. This practice is a grievous violation of domestic law and the fundamental principles of human rights.

Prisoners on death row and capital punishment

(16)While noting that the State party has applied a de facto moratorium on the death penalty by systematically commuting death sentences to prison terms, the Committee regrets that the moratorium has not been given formal expression under the law (arts. 2, 11 and 16).

The State party should maintain the de facto moratorium on the use of capital punishment and consider passing a law systematically commuting death sentences to prison terms. The Committee would like more information addressing reports that death sentences continue to be handed down and concerning prison conditions on death row, the amount of time it generally takes to commute death sentences to prison terms, the treatment of convicts sentenced to death and the right of such convicts to receive visits from family members and their lawyers. The Committee also encourages the State party to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.

Training

(17)While noting that human rights training sessions have been organized, the Committee regrets the failure to assess the impact of that training in terms of the improvement of the human rights situation, as well as the lack of specific training in methods for detecting the physical and psychological sequelae of torture (art. 10).

The Committee recommends that the contents of the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) be incorporated into forthcoming training sessions for law enforcement and medical personnel and be circulated among prison and medical personnel. The State party should also assess the impact and effectiveness of these training programmes.

Data collection

(18)The Committee regrets the absence of complete and detailed data on complaints, investigations, prosecutions and convictions in cases of torture or ill-treatment inflicted by law enforcement officers, security personnel, members of the armed forces or prison staff and the lack of such information on extrajudicial executions, enforced disappearances, human trafficking, domestic violence, conditions of detention and redress (arts. 12, 13, 14 and 16).

The State party should gather statistics that are useful for monitoring the implementation of the Convention at the national level, including data on complaints, investigations, prosecutions and convictions in cases of torture, ill-treatment and other types of human rights violations as mentioned above, and on the types of redress, compensation and rehabilitation offered to victims. The Committee invites the State party to include such data in its next periodic report. The information may be collected as part of the joint project being run with United Nations specialized agencies to set up a mechanism to monitor and assess the fulfilment of the State party’s human rights commitments.

Refugees

(19)The Committee notes that article 19 of the national law against torture prohibits extradition to a State where a person runs the risk of being tortured but says nothing about deportation or refoulement cases. The Committee also notes the lack of information on the situation of refugees in the country and the absence of a law on asylum (art. 3).

The State party should amend article 19 of the law against torture of 25 June 2008 so that it also covers cases of deportation and refoulement, in accordance with article 3 of the Convention. The Committee encourages the State party to accede to the 1967 Protocol relating to the Status of Refugees and the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa. It invites the State party to include information on the situation of refugees in Madagascar in its next periodic report.

Cooperation with human rights mechanisms

(20)The Committee recommends that the State party intensify its cooperation with United Nations human rights mechanisms, in particular by authorizing visits inter alia by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 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.

(21)Noting the commitment shown by the State party in the course of its universal periodic review and its dialogue with the Committee, the Committee recommends that the State party ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

(22)The Committee also recommends that the State party make the declarations provided for in articles 21 and 22 of the Convention, thereby recognizing the competence of the Committee to receive and consider individual complaints of violations of the Convention.

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

(24)The State party is urged to ensure the broad circulation of the report that it has submitted to the Committee and the Committee’s concluding observations through official websites, the media and NGOs.

(25)The Committee also urges the State party to update its common core document of 18 May 2004 (HRI/CORE/1/Add.31/Rev.1), and in so doing follow the harmonized guidelines on reporting under the international human rights treaties approved in June 2009 by the monitoring bodies of international instruments for human rights (HRI/GEN/2/Rev.6).

(26)The Committee requests that the State party provide information, within one year, on its follow-up to the recommendations made in paragraphs 8, 10, 14 and 15 of these concluding observations.

(27)The State party is invited to submit its next periodic report, which will be its second, by 25 November 2015. In this connection, the Committee requests that the State party accept instead to submit its report by 25 November 2012, under the optional procedure, which consists in the Committee sending a list of issues to the State party prior to presentation of the report, with the replies of the State party constituting, in accordance with article 19 of the Convention, the next periodic report.

57. Morocco

(1)The Committee against Torture considered the fourth periodic report of Morocco (CAT/C/MAR/4) at its 1022nd and 1025th meetings (CAT/C/SR.1022 and 1025), held on 1 and 2 November 2011, and adopted the following concluding observations at its 1042nd, 1043rd and 1045th meetings (CAT/C/SR.1042, 1043 and 1045).

A. Introduction

(2)The Committee welcomes the submission of the fourth periodic report of Morocco, the written replies provided by the State party (CAT/C/MAR/Q/4/Add.1) to the list of issues (CAT/C/MAR/Q/4) and the supplementary information provided orally by the Moroccan delegation during the consideration of the report, although it regrets the delay of over two years in its submission. The Committee welcomes the constructive dialogue held with the delegation of experts sent by the State party and thanks it for its detailed responses to the questions raised, as well as the additional written replies which have been supplied.

B. Positive aspects

(3)The Committee takes note with satisfaction of the action taken by the State party during the period under consideration regarding the following international human rights instruments:

(a)The ratification of the International Convention for the Protection of All Persons from Enforced Disappearance, in April 2009;

(b)The ratification of the Convention on the Rights of Persons with Disabilities and its Optional Protocol, in April 2009;

(c)The ratification of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, in April 2011;

(d)Recognition of the competence of the Committee to receive and consider individual communications under article 22 of the Convention; and

(e)The withdrawal of various reservations to a number of international conventions, including the State party’s reservations to article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination and to article 14 of the Convention on the Rights of the Child and all of its former reservations to the Convention on the Elimination of All Forms of Discrimination against Women.

(4)The Committee also takes note with satisfaction of the following measures:

(a)The adoption by referendum, on 1 July 2011, of a new Constitution which contains new provisions concerning the prohibition of torture and basic safeguards for persons who are arrested, detained, prosecuted or convicted;

(b)The reform of the legal system undertaken by the State party to adjust and amend laws and practices so as to bring them into line with the country’s international obligations;

(c)The establishment on 1 March 2011 of the National Human Rights Council, which takes the place of the Consultative Council for Human Rights and which has broader powers than the Consultative Council did, and the establishment of regional offices for the protection of human rights;

(d)The establishment of a de facto moratorium on the enforcement of death sentences;

(e)The creation of the Equity and Reconciliation Commission as a transitional justice mechanism for determining the truth with regard to the human rights violations that occurred between 1956 and 1999 and paving the way for national reconciliation;

(f)The organization of a variety of human rights training and awareness-raising activities for justice officials and prison staff, among others.

C. Principal subjects of concern and recommendations

Definition and criminalization of torture

(5)While aware that bills that would amend the Criminal Code are currently being processed, the Committee remains concerned by the fact that the definition of torture contained in article 231.1 of the current Criminal Code is not fully in conformity with article 1 of the Convention due to its restricted scope. The definition contained in article 231.1 of the Criminal Code encompasses the main elements of article 1 of the Convention, but does not cover complicity or explicit or tacit consent on the part of law enforcement or security personnel or any other person acting in an official capacity. The Committee also regrets to note that the Criminal Code does not establish the imprescriptibility of the crime of torture, its previous recommendations in that regard notwithstanding (arts. 1 and 4).

The State party should ensure that the bills currently before Parliament extend the scope of the definition of torture to conform to article 1 of the Convention against Torture. The State party should also make certain that, in keeping with its international obligations, anyone who commits acts of torture, attempts to commit torture, or is complicit or otherwise participates in such acts is investigated, prosecuted and punished without the possibility of availing themselves of any statute of limitations.

(6)The Committee is concerned by some of the existing legal provisions on torture, particularly those providing for the possibility of granting an amnesty or pardon to perpetrators of acts of torture. It is also concerned by the absence of a specific provision which clearly establishes that the order of a superior officer or of a public authority may not be invoked as a justification for torture and by the absence of a specific protection mechanism for subordinates who refuse to obey an order to torture a person who is in their custody (arts. 2 and 7).

The State party should ensure that its laws preclude any possibility of granting amnesty to any person convicted of the crime of torture or any kind of pardon that violates the Convention. The State party should also amend its laws in order to explicitly stipulate that an order from a superior officer or a public authority may not be invoked as a justification of torture. The State party should establish a mechanism for the protection of subordinates who refuse to obey such an order. The State party should ensure that all law enforcement officers are informed of the prohibition of obeying such an order and are made aware of the protective mechanisms that are in place.

Basic legal safeguards

(7)The Committee notes that Moroccan law provides a number of basic safeguards for persons taken into custody which are designed to prevent torture. It also takes note of the existence of, among other important proposals, draft legislative amendments aimed at ensuring that a person taken into custody will have access to a lawyer more quickly. The Committee is nonetheless concerned by the restrictions placed on the application of some of those basic legal safeguards, both under existing statutory law and in practice. The Committee is particularly concerned about the fact that, at present, a lawyer may not see his or her client until the first hour after the person’s period of detention has been extended, provided that authorization has been obtained from the Crown Prosecutor-General. It is also concerned by the fact that access to the legal aid office is limited to minors and cases in which the possible sentence for a crime exceeds five years. The Committee regrets the lack of information on the practical application of other basic safeguards such as examination by an independent physician and notification of the family (arts. 2 and 11).

The State party should make certain that the bills currently under consideration ensure that all suspects will have the right to enjoy, in practice, the basic safeguards provided for by law, which include their right to have access to counsel at the time of their arrest, to be examined by an independent physician, to contact a relative or friend and to be informed of their rights and the charges against them, and to be brought before a judge without delay. The State party should take the necessary steps to ensure that people have access to their lawyers as soon as they are taken into custody, without any need to obtain prior authorization, and to put in place a system for the provision of effective legal assistance free of charge, particularly in the case of persons at risk or who belong to vulnerable groups.

Anti-terrorism law

(8)The Committee notes with concern that Anti-Terrorism Act No. 03-03 of 2003 does not set out a precise definition of terrorism, as required in order to uphold the principle that there can be no penalty for an offence except as prescribed by law. It is also concerned by the fact that the law in question defines advocacy of terrorism and incitement of terrorism as offences, which can be defined as such even if they do not necessarily involve an actual risk of violent action. In addition, under this law, the period during which a person may be held in police custody is extended to 12 days, and access to a lawyer is not permitted until after the sixth day, which places suspects who are being held in custody at greater risk of torture. It is precisely while they cannot communicate with their families and lawyers that suspects are most vulnerable to torture (arts. 2 and 11).

The State party should revise Anti-Terrorism Act No. 03-03 in order to improve the definition of terrorism set forth therein, reduce the maximum amount of time during which a person can be held in police custody to the absolute minimum and permit access to counsel at the start of the period of detention. The Committee recalls that under the Convention no exceptional circumstance whatsoever may be invoked as a justification of torture and that, in accordance with various resolutions of the Security Council, notably Security Council resolutions 1456 (2003) and 1566 (2004), and other resolutions on the subject, any measure taken to combat terrorism must fully comply with international human rights law.

Non-refoulement and the risk of torture

(9)The Committee is concerned by the fact that the State party’s existing extradition and refoulement procedures and practices may put persons at risk of torture. The Committee recalls that it has received individual complaints against the State party under article 22 of the Convention regarding extradition requests and it is concerned by the decisions and action taken by the State party in these cases. The Committee is disturbed by the State party’s current decision to do nothing more than “suspend” the extradition of Mr. Ktiti, given that the Committee has already decided that his extradition would also constitute a violation of article 3 of the Convention and that this final decision has been duly transmitted to the State party. The Committee is also deeply concerned about the fact that Mr. Alexey Kalinichenko was extradited to his country of origin even though the Committee had requested that his extradition be temporarily suspended until it had issued its final decision, especially since his extradition was carried out solely on the basis of diplomatic assurances provided by Mr. Kalinichenko’s country of origin (art. 3).

The State party should under no circumstance expel, return or extradite 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 recalls that it has adopted the position that under no circumstances should a State party regard diplomatic assurances as being a safeguard against torture or ill-treatment when there are substantial grounds for believing that a person would be in danger of being subjected to torture upon his or her return. In order to determine the applicability of the obligations that it has assumed under article 3 of the Convention, the State party should thoroughly examine the merits of each individual case, including the overall situation with regard to torture in the country concerned. It should also establish and apply well-defined procedures for eliciting diplomatic assurances, together with appropriate judicial oversight mechanisms and effective post-return monitoring arrangements for use in the event of refoulement.

Morocco should fulfil its international obligations and act in accordance with final and provisional decisions of the Committee concerning individual cases submitted to it under article 22 of the Convention. In the case of Mr. Ktiti, the State party should declare the extradition order to be permanently null and void in order to avoid acting in violation of article 3 of the Convention.

Use of torture in cases involving security concerns

(10)The Committee is concerned by numerous allegations regarding torture and ill-treatment committed by police officers, prison staff and, in particular, agents of the National Surveillance Directorate (DST) who are acting as members of the criminal investigation police force when people are deprived of basic legal safeguards, such as access to legal counsel, particularly in the case of people who are suspected of belonging to terrorist networks or of being supporters of independence for Western Sahara and in the course of interrogations carried out in order to extract confessions from persons suspected of terrorism (arts. 2, 4, 11 and 15).

The State party should immediately take substantive steps to investigate acts of torture and to prosecute and punish those who have committed such acts. The State party should ensure that law enforcement officers do not engage in torture through, inter alia, an unambiguous reaffirmation of the absolute prohibition of torture and a public condemnation of that practice by, in particular, the police, prison personnel and members of DST. It should also be made very clear that anyone who commits such acts or is complicit or otherwise participates in such acts will be held personally responsible before the law and will be subject to criminal prosecution and the appropriate penalties.

“Extraordinary renditions”

(11)The Committee takes note of the State party’s statements that it was not involved in any extraordinary renditions undertaken as part of the international fight against terrorism. The Committee nevertheless remains concerned by allegations that Morocco has served as a departure point, a transit country and a destination for blatantly illegal “extraordinary renditions” in such cases as those of Binyam Mohamed, Ramzi bin al-Shib and Mohamed Gatit. It notes that the incomplete information furnished by the State party on the investigations conducted in that connection is not sufficient to refute those allegations. The Committee is gravely concerned by the allegations that all these “extraordinary renditions” are reported to have been accompanied by incommunicado detention and/or detention in secret places, acts of torture and ill-treatment, particularly during the interrogation of suspects, as well as the return of persons to countries where they may also have been subjected to torture (arts. 2, 3, 5, 11, 12 and 16).

The State party should ensure that no one who is at any time under its control becomes the object of an “extraordinary rendition”. The transfer, refoulement, detention or interrogation of persons under such circumstances is in itself a violation of the Convention. The State party should conduct effective, impartial investigations into any and all cases of “extraordinary rendition” in which it may have played a role and bring to light the facts surrounding such cases. The State party should prosecute and punish those responsible for such renditions.

Events involving Western Sahara

(12)The Committee is concerned by the reports it has received regarding the alleged use by Moroccan law enforcement officers and security personnel of practices in Western Sahara such as arbitrary arrest and detention, incommunicado detention, detention in secret places, torture, ill-treatment, the extraction of confessions under torture and the excessive use of force.

The Committee recalls once more that, under the Convention, no exceptional circumstance whatsoever may be invoked as a justification of torture in territory that falls under the State party’s jurisdiction and that law enforcement measures and investigative procedures should be in full accord with international human rights law, as well as the legal procedures and basic safeguards in effect in the State party. The State party should, as a matter of urgency, take substantive steps to prevent the aforementioned acts of torture and ill-treatment. It should also announce the introduction of a policy that will produce measurable progress towards the eradication of all torture and ill-treatment by State officials. The State party should put in place stronger measures for ensuring prompt, thorough, impartial and effective investigations into all allegations of torture or ill-treatment of prisoners and persons taken into custody or in any other situation.

The Gdeim Izik camp

(13)The Committee is particularly concerned by the events surrounding the closure of the Gdeim Izik camp in November 2010, during which several persons were killed, including law enforcement officials, and hundreds of others were arrested. The Committee takes note that the vast majority of the persons who were arrested were later released while awaiting trial, but is gravely concerned by the fact that those trials are to be held in military courts even though the persons concerned are civilians. The Committee is also concerned by the fact that there has not been an impartial, effective investigation to ascertain exactly what occurred and to determine what responsibility may be borne by members of the police or security forces (arts. 2, 11, 12, 15 and 16).

The State party should put in place stronger measures for ensuring prompt, thorough, impartial and effective investigations into the violence and deaths that occurred during the dismantlement of the Gdeim Izik camp and ensure that those responsible are brought to justice. The State party should amend its laws to guarantee that all civilians will be tried only in civilian courts.

Secret arrests and detention in cases involving security concerns

(14)The Committee is concerned by reports that, in cases involving terrorism, legal procedures for arresting, questioning and holding suspects in custody are not always followed in practice. The Committee is also concerned by information pointing to a consistent pattern whereby suspects are arrested by plain-clothes officers who do not clearly identify themselves, taken in for questioning and then held in secret detention facilities, which in practice amounts to incommunicado detention. The suspects are not officially registered and are subjected to torture and other cruel, inhuman or degrading treatment or punishment. They are held in these conditions for weeks at a time without being brought before a judge and without judicial supervision. Their families are not notified of their arrest, of their movements or of their whereabouts until such time as they are transferred to police custody in order to sign confessions that they have made under torture. It is only then that they are officially registered and their cases are processed through the regular justice system on the basis of falsified dates and information (arts. 2, 11, 12, 15 and 16).

(15)The Committee takes note of the statements made by the State party during the interactive dialogue to the effect that there is no secret detention centre at DST headquarters in Témara, as confirmed by the three visits made by the Crown Prosecutor-General in 2004 and by several representatives of the National Human Rights Commission and Members of Parliament in 2011. However, the Committee regrets the lack of information on the way in which those visits were organized and the methodology used, since, in view of the many continuing allegations concerning the existence of such a secret detention centre, in the absence of such information, it is not possible to lay to rest the suspicion that such a centre may in fact exist. The matter thus continues to be a source of concern for the Committee. The Committee is also concerned by allegations that secret places of detention are also located within certain official detention facilities. According to allegations received by the Committee, these secret detention centres are not monitored or inspected by any independent body. The Committee is concerned at reports that a new secret prison has been built in the vicinity of Ain Aouda, close to the capital city of Rabat, to hold persons suspected of having ties to terrorist movements (arts. 2, 11, 12, 15 and 16).

The State party should ensure that the proper legal procedures are followed in the case of all persons who are arrested and taken into custody and that the basic safeguards provided for by law are applied, such as access for detained persons to legal counsel and to an independent physician, notification of their family of the arrest and of the location where they are being held and their appearance before a judge.

The State party should take steps to ensure that all register entries, transcripts and statements, and all other official records concerning a person’s arrest and detention are kept in the most rigorous manner possible and that all information regarding a person’s arrest and remand custody is recorded and confirmed by both the investigative police officers and the person concerned. The State party should ensure that prompt, thorough, impartial and effective investigations are conducted into all allegations of arbitrary arrest and detention and should bring those responsible to justice.

The State party should ensure that no one is held in a secret detention facility under its de facto effective control. As often emphasized by the Committee, detaining persons under such conditions constitutes a violation of the Convention. The State party should open a credible, impartial, effective investigation in order to determine if such places of detention exist. All places of detention should be subject to regular monitoring and supervision.

Prosecution of perpetrators of acts of torture and ill-treatment

(16) The Committee is particularly concerned that it has received no reports to date of any person being convicted under article 231.1 of the Criminal Code of having committed acts of torture. It notes with concern that police officers are, at the most, prosecuted for assault or assault and battery, but not for torture, and that the information provided by the State party indicates that the administrative and disciplinary penalties imposed on officers for such acts do not seem to be commensurate with their seriousness. The Committee observes with concern that allegations of torture, despite their number and frequency, rarely give rise to investigations and prosecution and that a climate of impunity appears to have taken hold, given the failure to impose genuine disciplinary measures or to bring any significant number of criminal cases against State officials accused of committing acts specified in the Convention, including the gross, large-scale human rights violations that took place between 1956 and 1999 (arts. 2, 4 and 12).

The State party should ensure that any and all allegations of torture and of ill-treatment are promptly, effectively and impartially investigated and that the persons who have committed such acts are prosecuted and are given sentences that are commensurate with the grave nature of their acts, as provided for in article 4 of the Convention. The State party should also amend its laws in order to explicitly stipulate that an order from a superior officer or a public authority may not be invoked as a justification of torture. The State party should also take steps to ensure that complainants and witnesses are effectively protected from any ill-treatment or act of intimidation related to their complaint or testimony.

Coerced confessions

(17)The Committee is concerned by the fact that, under the State party’s current system of investigation, confessions are commonly used as evidence for purposes of prosecution and conviction. The Committee notes with concern that convictions in numerous criminal cases, including terrorism cases, are based on confessions, thus creating conditions that may provide more scope for the torture and ill-treatment of suspects (arts. 2 and 15).

The State party should take all steps necessary to ensure that criminal convictions are based on evidence other than the confession of the persons charged, especially when such persons retract their confessions during the trial, and to make certain that, except in cases involving charges of torture, statements made under torture are not invoked as evidence in any proceedings, in accordance with the Convention.

The State party is requested to review criminal convictions that have been based solely on confessions in order to identify cases in which the conviction was based on confessions obtained under torture or ill-treatment. The State party is also invited to take the appropriate remedial measures and to inform the Committee of its findings.

Monitoring and inspection of places of detention

(18)The Committee takes note of the detailed information provided by the State party concerning the different types of visits paid to places of detention by the Crown Prosecutor, various judges, members of provincial prison oversight commissions and representatives of the National Human Rights Council. It also takes note of the draft amendments under which the National Human Rights Council would be designated as the country’s national preventive mechanism in conjunction with the forthcoming accession by Morocco to the Optional Protocol to the Convention. The Committee is nonetheless concerned by the fact that several non-governmental organizations that wished to gain entry to prison facilities as observers were refused access to detention centres. It seems that, under article 620 of the Code of Criminal Procedure, such visits may be conducted only by the provincial commissions. It also regrets the lack of information about the follow-up to and results of the visits that have been conducted (arts. 11 and 16).

The State party should ensure that the national mechanism for monitoring places of detention is capable of carrying out effective inspections and oversight of all places of detention and should ensure that action is taken to follow up on the results of that monitoring process. This mechanism should provide for regular and unannounced visits by national and international observers in order to prevent torture and other cruel, inhuman or degrading forms of treatment or punishment. The State party should also ensure that forensic doctors trained to detect signs of torture are present during those visits. In addition, the State party should amend its laws so that non-governmental organizations may also make unrestricted, regular, independent, unannounced visits to places of detention.

Prison conditions

(19)The Committee takes note with satisfaction of the information provided by the State party concerning its plan for building and renovating prison facilities, which is likely to have led to some improvement in prison conditions. The Committee nonetheless remains concerned about the fact that, according to the information in its possession, conditions in most prisons are still alarming owing to overcrowding, ill-treatment and the disciplinary measures employed (including long periods of incommunicado detention), unsanitary conditions, inadequate food and limited access to medical care. The Committee is concerned about the fact that these conditions have prompted some prisoners to hold hunger strikes and others to rebel and stage protests that are violently suppressed by prison guards (arts. 11 and 16).

In order to bring prison conditions throughout Morocco into line with the United Nations Standard Minimum Rules for the Treatment of Prisoners, the State party should continue its efforts to build new prison facilities and to renovate existing ones and should continue to increase its budget allocations for running the country’s prisons, particularly for food and medical care. In order to reduce overcrowding, which is largely due to the fact that half of all the people being held in Moroccan prisons have yet to be tried, the State party should amend its laws to permit the use of alternatives to pretrial detention in accordance with the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules). A system could be devised for arranging bail and making more frequent use of non-custodial penalties in the case of less serious offences.

Prison deaths

(20)The Committee takes note of the detailed information provided on the number of deaths that have occurred in Moroccan prisons and the officially recorded causes of death. It nonetheless regrets the lack of information on the mechanisms in place for conducting systematic and independent investigations into the causes of prison deaths, notwithstanding the fact that suicides are routinely investigated (arts. 11, 12 and 16).

The State party should promptly conduct a thorough, impartial investigation whenever a person dies in prison and should prosecute those responsible, if any, for the death. It should provide the Committee with information on all deaths occurring in prison as a result of acts of torture, ill-treatment or wilful negligence. The State party should also ensure that independent forensic doctors examine the corpse in each case and that their findings are admissible as evidence in criminal and civil trials.

Prisoners on death row

(21)The Committee takes note of the de facto moratorium on the enforcement of the death penalty that has existed since 1993. It also takes note of the bill under which the number of crimes punishable by the death penalty would be significantly reduced and under which such sentences would have to be made by unanimous decision. The Committee is concerned by the conditions under which prisoners are held on death row. These conditions in themselves could constitute cruel, inhuman or degrading treatment. This is particularly the case in view of the length of time that prisoners are held there and their uncertainty about their fate, especially given the absence of any prospect that their sentences will be commuted (arts. 2, 11 and 16).

The Committee recommends that the State party consider ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights with a view to the abolition of the death penalty. In the meanwhile, the State party should maintain its de facto moratorium on the enforcement of the death penalty, ensure that its laws provide for the possibility of commuting death sentences and ensure that all death row prisoners are protected in accordance with the Convention. The State party should also ensure that all death row prisoners are treated humanely, and that, in particular, they are able to receive visits from their families and their attorneys.

Psychiatric hospitals

(22)The Committee takes note of the supplementary written information provided by the State party regarding its plans for preventing the ill-treatment of patients in psychiatric hospitals and the new framework law of 2011 on the health system. The Committee is still, however, concerned about the lack of information on the system for monitoring and inspecting psychiatric hospitals that offer inpatient facilities and on the results of such monitoring arrangements and inspections (art. 16).

The State party should ensure that the national mechanism for monitoring and overseeing places of detention, which is to be put in place soon, has the authority to inspect other types of facilities where people are deprived of their liberty as well, such as psychiatric hospitals. The State party should ensure that the results of such monitoring processes are duly acted upon. The mechanism in question should provide for regular and unannounced visits as a means of preventing torture and other cruel, inhuman or degrading treatment or punishment. The State party should also ensure that forensic doctors trained to detect signs of torture are present during those visits. It should also ensure that patients detained in psychiatric hospitals against their will are able to appeal against the corresponding internment order and have access to a physician of their choice.

Violence against women

(23)In view of the scale of violence against women in Morocco, the Committee is deeply concerned by the absence of a specific, comprehensive legal framework for the prevention of violence against women, for the criminal prosecution of persons who commit such acts and for the protection of victims and witnesses. The Committee is also concerned by the fact that so few complaints have been filed by victims, that the prosecution service has not initiated criminal proceedings in such cases, that the complaints which are filed are not systematically investigated, even in rape cases, and that the burden of proof is excessive and is borne entirely by the victim in a society where the risk of stigmatization of such victims is high. The Committee is concerned by the absence of any specific law that makes marital rape a criminal offence. In addition, the Committee is deeply concerned by the fact that, under Moroccan law, the rapist of a minor can avoid criminal responsibility by marrying the victim. The Committee regrets the lack of information about the number of cases in which victims have married their rapists or have refused to do so (arts. 2, 12, 13 and 16).

The Committee urges the State party to enact a law as soon as possible on violence against women and girls in order to ensure that any form of violence against women constitutes a criminal offence. The Committee also urges the State party to ensure that women and girls who are victims of violence have immediate access to means of protection, including shelters, and to redress, and that perpetrators are prosecuted and suitably punished. The Committee reiterates the recommendations made in that regard by the Committee on the Elimination of Discrimination against Women. The State party should amend its Criminal Code without delay to ensure that marital rape is criminalized and that criminal proceedings against rapists are not terminated if they marry their victims. The State party should also conduct studies on the causes and extent of violence, including sexual and domestic violence, against women and girls. The State party should present information in its next report to the Committee on the laws and policies in place to combat violence against women and on the impact of the measures taken.

Corporal punishment

(24)The Committee notes with concern that there is no law in Morocco that prohibits the use of corporal punishment within the home, at school or in institutions that provide child protection services (art. 16).

The State party should amend its laws in order to prohibit the use of corporal punishment in schools, in the home and in centres that provide child protection services. It should also raise public awareness of positive, participatory and non-violent forms of discipline.

Treatment of refugees and asylum seeker s

(25)The Committee takes note of the information furnished by the State party concerning its increased cooperation with the Office of the United Nations High Commissioner for Refugees (UNHCR), which has included capacity-building activities with regard to the admission, identification and protection of asylum seekers and refugees by the State party. It is nonetheless disturbed by the absence of a specific legal framework for refugees and asylum seekers that would differentiate them from undocumented migrants. The Committee is concerned by the fact that, as things now stand, asylum seekers are not always in a position to file their request for asylum with the proper authorities. This is particularly the case at points of entry into Moroccan territory, where asylum seekers are often treated as if they were undocumented immigrants. The Committee is also concerned by the absence of a specific office for the efficient processing of applications for asylum from refugees and stateless persons and of safeguards for all the rights of refugees while on Moroccan territory (arts. 2, 3 and 16).

The State party should establish a legal framework to safeguard the rights of refugees and asylum seeker s and should develop institutional and administrative instruments for their protection by, inter alia, increasing its cooperation with the Office of the United Nations High Commissioner for Refugees (UNHCR) and allowing UNHCR to take part in the reform of the asylum system as an observer. The State party should see to it that procedures and mechanisms are put in place for the systematic identification of potential asylum seeker s at all points of entry into Moroccan territory. The State party should allow such persons to submit applications for asylum. These mechanisms should also ensure that decisions concerning asylum requests are subject to appeal, that such appeals have suspensive effect, and that no one is returned to a country where there is a risk of torture.

The State party should consider becoming a party to the Convention relating to the Status of Stateless Persons of 1954 and the Convention on the Reduction of Statelessness of 1961.

Treatment of migrants and foreign nationals

(26)The Committee takes note of the information supplied by the State party regarding the legal provisions governing the expulsion of undocumented migrants, particularly Act No. 02-03 on the entry and residence of foreign nationals in Morocco, and the examples it has provided of instances in which foreign nationals have been expelled in accordance with the provisions of that law. It is nevertheless concerned by reports that undocumented migrants have been escorted to the border or otherwise expelled in violation of Moroccan law without having been given the opportunity to exercise their rights. Several allegations have been made that hundreds of migrants have been abandoned in the desert without food or water. The Committee deeply regrets the State party’s failure to provide information about these events or about the places and regimes of detention used for foreign nationals awaiting deportation that do not come under the authority of the Prison Service. The Committee also deeply regrets the lack of information about any inquiries that may have been made into the violence committed by law enforcement personnel against undocumented migrants in the vicinity of the Ceuta and Melilla enclaves in 2005 (arts. 3, 12, 13 and 16).

The State party should take steps to ensure that the legal safeguards governing the practice of escorting undocumented migrants to the border and the expulsion of foreign nationals are effectively enforced and that such practices and expulsions are carried out in accordance with Moroccan law. It should undertake impartial, effective investigations into allegations that, during expulsions, migrants have been subjected to ill-treatment or excessive use of force. It should also ensure that those responsible are brought to justice and receive sentences that are commensurate with the seriousness of their acts.

The State party is requested to furnish detailed information in its next report on the places and regimes of detention used for foreign nationals awaiting deportation, together with data disaggregated by year, sex, place, length of detention and the reason for detention and expulsion.

Human trafficking

(27)The Committee is concerned by the general lack of information about the trafficking of women and children for purposes of sexual or other forms of exploitation and about the scale of trafficking in the State party, particularly with regard to the number of complaints, investigations, prosecutions and convictions and the steps taken to prevent and combat human trafficking (arts. 2, 4, 12, 13 and 16).

The State party should step up its efforts to prevent and combat the trafficking of women and children. Those efforts should include the passage of a specific law on the prevention and suppression of trafficking and the provision of protection and access for victims to rehabilitation services, as well as medical, social, legal and counselling services, as needed. The State party should also make sure that victims are able to exercise their right to lodge a complaint. It should promptly conduct impartial, effective inquiries into all reports of trafficking and ensure that those responsible are brought to justice and receive sentences that are commensurate with the seriousness of their acts.

Training

(28)The Committee takes note of the information that it has received regarding the training activities, seminars and courses on human rights that have been organized for justice officials, police officers and prison staff. It is concerned, however, by the lack of targeted training activities for personnel of the National Surveillance Directorate (DST), members of the Armed Forces, and forensic doctors and other medical personnel who deal with persons held in places of detention or patients in psychiatric hospitals and particularly the lack of training in proper methods for detecting the physical and psychological after-effects of torture (art. 10).

The State party should continue to design and reinforce training programmes for all staff — law enforcement officers, members of intelligence services, members of security forces, military personnel, prison staff and medical personnel employed in prisons or psychiatric hospitals — to ensure that they are well acquainted with the provisions of the Convention and that they know that violations of the Convention will not be tolerated and will be investigated and that the persons who commit violations will be prosecuted. In addition, the State party should ensure that all relevant staff, including members of the medical corps, are specifically trained to detect signs of torture and ill-treatment in accordance with the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol). The State party should also evaluate the effectiveness and impact of such training.

The Equity and Reconciliation Commission and the question of reparations

(29)The Committee takes note of the information provided by the State party on the considerable amount of work that was done between 2003 and 2005 by the transitional justice mechanism, the Equity and Reconciliation Commission, to investigate the gross, large-scale and systematic human rights violations that took place in Morocco between 1956 and 1999. The investigations have clarified the circumstances surrounding many of these violations, including numerous cases of enforced disappearance. They have also led to the award of compensation in various forms to many of the victims. The Committee remains, however, concerned by the fact that the Commission’s work was incomplete, inasmuch as it did not encompass the violations that took place in Western Sahara, and that some cases of enforced disappearance had yet to be resolved when the Commission brought its work to a close in 2005. In addition, the Committee is concerned by the fact that the work of the Commission may have led to the de facto impunity of the perpetrators of violations of the Convention committed during that period, since none of them has been prosecuted to date. Finally, the Committee is concerned by reports that not all the victims or families of victims have received compensation and that in some cases the compensation awarded has been neither equitably distributed nor adequate or effective (arts. 12, 13 and 14).

The State party should ensure that the National Human Rights Council, which has been assigned the task of completing the Commission’s work, continues with its efforts to establish the facts surrounding the cases of enforced disappearance between 1956 and 1999 that have not yet been resolved, including those connected with the situation in Western Sahara. The State party should also step up its efforts to ensure that victims of torture and ill-treatment receive redress in the form of equitable, sufficient compensation and support for as full a rehabilitation as possible. To that end, it should introduce legal provisions to protect the right of torture victims to equitable compensation that is commensurate with the harm suffered.

Cooperation with United Nations mechanisms

(30)The Committee recommends that the State party increase its cooperation with United Nations human rights mechanisms by, inter alia, authorizing visits on the part of such mechanisms as the Working Group on Arbitrary Detention, the Special Rapporteur on trafficking in persons, especially women and children, and the Special Rapporteur on the rights to freedom of peaceful assembly and of association.

(31)The Committee invites the State party to consider acceding to the main human rights instruments to which it is not yet a party, including the Optional Protocol to the Convention against Torture, and to the Rome Statute of the International Criminal Court.

(32)The State party is encouraged to ensure the broad circulation of the reports that it submits to the Committee and the Committee’s concluding observations through official websites, the media and non-governmental organizations.

(33)The Committee requests the State party to provide it, before 25 November 2012, with information on the measures undertaken in response to its recommendations on: (1) providing or strengthening legal safeguards for detainees; (2) conducting prompt, impartial and effective inquiries; (3) prosecuting suspects and sentencing those found guilty of torture or ill-treatment; and (4) making the reparations referred to in paragraphs 7, 11, 15 and 28 herein. The Committee also requests the State party to provide it with information on the measures undertaken in response to the recommendations made in paragraph 8 herein regarding the Anti-Terrorism Act.

(34)The Committee invites the State party to update its common core document of 15 April 2002 (HRI/CORE/1/Add.23/Rev.1 and Corr.1), as necessary, in accordance with the instructions concerning the common core document contained in the harmonized guidelines on reporting to the bodies established under international human rights treaties (HRI/GEN/2/Rev.6).

(35)The Committee invites the State party to submit its fifth periodic report by 25 November 2015 at the latest. The Committee also invites the State party to agree, before 25 November 2012, to submit that report under the optional procedure which involves the transmission, by the Committee to the State party, of a list of issues prior to the submission of its periodic report. The reply of the State party to that prior list of issues would constitute its next periodic report under article 19 of the Convention.

58. Paraguay

(1)The Committee against Torture considered the combined fourth to sixth periodic reports of Paraguay (CERD/C/PRY/4-6) at its 1026th and 1029th meetings (CAT/C/SR.1026 and SR.1029), held on 3 and 4 November 2011. At its 1048th meeting (CAT/C/SR.1048), held on 21 November 2011, the Committee adopted the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission by Paraguay of its combined fourth to sixth periodic reports in response to the list of issues prior to the submission of reports (CAT/C/PRY/Q/4-6). The Committee expresses its appreciation to the State party for agreeing to follow this new procedure for the submission of periodic reports, which facilitates cooperation between the State party and the Committee and helps focus the consideration of the report as well as the dialogue with the delegation.

(3)The Committee also appreciates the frank and open dialogue it had with the delegation of the State party and the supplementary information supplied during its consideration of the report, although it regrets that some of its questions to the State party were not answered.

B. Positive aspects

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

(a)Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (14 May 2001);

(b)Rome Statute of the International Criminal Court (14 May 2001);

(c)Convention on the Prevention and Punishment of the Crime of Genocide (3 October 2001);

(d)Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (27 September 2002) and Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (18 August 2003);

(e)Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (18 August 2003). The Committee notes with satisfaction that the State party has abolished the death penalty and recommends that the State party expressly eliminate the death penalty from the military justice system;

(f)International Convention on the Elimination of All Forms of Racial Discrimination (18 August 2003);

(g)United Nations Convention against Transnational Organized Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention (22 September 2004);

(h)Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2 December 2005);

(i)Convention on the Rights of Persons with Disabilities and its Optional Protocol (3 September 2008);

(j)International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (23 September 2008);

(k) International Convention for the Protection of All Persons from Enforced Disappearance (3 August 2010).

(5)The Committee is pleased to note that the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment visited the State party in March 2009 and made a follow-up visit in September 2010, and that the State party has authorized the publication of the Subcommittee’s reports and submitted its written replies thereto.

(6)The Committee congratulates the State party on the declaration it made on 29 May 2002 recognizing the competence of the Committee to receive communications under articles 21 and 22 of the Convention against Torture.

(7)The Committee notes with satisfaction that in 2003 the State party extended a standing invitation to visit the country to all Human Rights Council special procedure mandate holders. Since the consideration of its last periodic report, the State party has hosted visits from four of the Council’s rapporteurs, including the Special Rapporteur on the question of torture.

(8)The Committee takes note of the State party’s initiatives to review its legislation with a view to complying with the Committee’s recommendations and improving implementation of the Convention. These initiatives include the following:

(a)The adoption on 20 April 2011 of Act No. 4288, establishing the national mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment;

(b)The adoption on 12 October 2011 of Organization Act No. 4423 on the Ministry of Defence, which gives the latter operational and financial independence;

(c)The adoption on 11 August 2011 of Act No. 4381, making the right of victims of human rights violations during the 1954–1959 dictatorship to claim compensation imprescriptible, and Act No. 3603 of 2008, authorizing their children to claim that compensation;

(d)The establishment, by Decree No. 2225 of 2003, of the Truth and Justice Commission to investigate human rights violations committed by agents of the State or parastatal bodies between 1954 and 2003, and its operationalization in August 2004;

(e)Decision No. 195 of 5 May 2008 of the Constitutional Division of the Supreme Court, ruling that criminal proceedings and sentences for crimes of torture are imprescriptible.

(9)The Committee also welcomes the efforts made by the State party to modify its policies and procedures so as to enhance human rights protection and implement the Convention, especially:

(a)The establishment, by Decree No. 4674 of 9 July 2010, of the National Commission for Prison Reform, as a forum for technical discussion and help in formulating a plan to redefine the treatment of persons deprived of their liberty and to review prison management;

(b)The establishment, by Decree No. 2290 of 2009, of the Human Rights Network of the Executive Branch to coordinate human rights policies, plans and programmes;

(c)The publication in August 2008 of the final report, Anivé Haguä Oiko (Lest it happen again), of the Truth and Justice Commission, with the outcome of investigations into human rights violations in Paraguay in the period 1954–2003;

(d)The establishment, by Decree No. 5093 of 2005, of the Inter-Agency Board on Trafficking in Persons in the Republic of Paraguay to draw up public policy on that activity;

(e)The appointment, by Resolution No. 768 of the Chamber of Deputies in October 2001, of an ombudsman, whose office now has branches in a number of Paraguayan cities;

(f)The preparation by the State party, following a participatory process, of a national action plan for human rights.

C. Principal subjects of concern and recommendations

Definition and offence of torture

(10)The Committee notes that a bill has been drafted to amend the current legal definition of torture. However, it regrets that, despite its own previous recommendations and those of various regional and international human rights mechanisms, the offence of torture is still not defined in the State party’s Criminal Code in accordance with the definition in article 1 of the Convention (arts. 1 and 4).

The Committee reiterates its earlier recommendation (A/55/44, para. 151) that the State party should adopt a definition of torture that covers all the elements contained in article 1 of the Convention. The State party should also ensure that such offences are punishable by appropriate penalties which take into account their grave nature, in accordance with article 4, paragraph 2, of the Convention.

Fundamental legal safeguards

(11)The Committee is concerned that many of the human rights of persons deprived of their liberty, including minors, as set out in Paraguayan legislation, are not observed in practice. In particular, the Committee expresses concern at the lack of mechanisms to give effect to the right of persons deprived of their liberty to legal assistance from the very start of detention and to independent medical examinations, and their right to notify a relative or trusted individual of their detention and to be informed of their rights and the grounds for arrest at the time of detention. With regard to habeas corpus, the Committee is concerned by information it has received that habeas corpus petitions can take 30 days to be resolved. As regards medical examinations at the start of detention, the Committee is concerned that these are not routinely carried out and that they take place in the presence of police officers. It is also concerned by reports that persons deprived of liberty are held in police custody for long periods without being properly registered and that a large number of police stations do not, in practice, comply with the rules on registration procedures for detainees. In general, the Committee expresses concern at the statement by the delegation from the State party that there are problems with the nationwide implementation of Decision No. 176/2010 of the Office of the National Police Commander, ordering the introduction of a registration system in police stations (arts. 2, 11 and 12).

The State party should take prompt and effective action to ensure that all detainees benefit in practice from all fundamental legal safeguards from the time of their detention. The State party should guarantee that, in practice, all detainees are informed immediately of the reason for their detention and of their rights, and that their right to have access to a lawyer and to contact a relative or trusted individual is guaranteed. The remedy of habeas corpus should be reviewed and strengthened and the necessary steps taken to ensure that the procedure granting it is summary and brief and that decisions on it are taken within the legal time limit in every case. The State party should guarantee that individuals in police custody are able to undergo an independent medical examination at the very start of their detention and not in the presence of a police officer. The State party should make certain that persons deprived of their liberty are registered promptly and ensure that the custody records in police stations are inspected regularly to check that they are being maintained in accordance with the procedures established by law. The State party should also ensure that the provisions of Decision No. 176/2010, on registration of detainees, are observed and, to that end, should consider making said decision law.

Free legal assistance

(12)While welcoming the recent adoption of the Organization Act on the Public Defender Service and the increased human resources allocated to it, the Committee expresses concern at the limited number of public defenders in the country, which prevents many persons deprived of their liberty from receiving adequate legal assistance.

The State party should guarantee free legal assistance from the very start of detention for all persons requesting such assistance who do not have the means to pay for it themselves. To this end, the State party should improve working conditions in the Public Defender Service and allocate more human, financial and material resources to the institution to enable it to perform its duties.

State of emergency

(13) The Committee takes note of the declaration, in Act No. 4473 of 10 October 2011, of a 60-day state of emergency in the departments of Concepción and San Pedro. The Committee notes with concern that other states of emergency have been declared during the period covered by the State party’s report. Despite the information provided by the State party on the steps taken to safeguard the human rights of the persons affected, the Committee is concerned about restrictions on human rights in this period, as well as about potential violations of the Convention during the state of emergency.

The State party should limit the declaration of a state of emergency to cases in which it is strictly necessary, and should at all times respect the provisions of article 4 of the International Covenant on Civil and Political Rights. 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.

National human rights institution

(14)The Committee welcomes the appointment in 2001, after a seven-year wait, of the State party’s first national ombudsman. The Committee is concerned, however, that, according to the delegation of the State party, the mandate of the current ombudsman has expired and that no suitably qualified successor has as yet been appointed. The Committee is also concerned that the Office of the Ombudsman does not have the necessary resources to accomplish its task of independently and effectively protecting and promoting human rights (art. 2).

The Committee recommends that the State party take the necessary steps to appoint a new, suitably qualified ombudsman as soon as possible, in accordance with the procedure established by law. The State party should equip the Office of the Ombudsman with sufficient financial, material and human resources to carry out its mandate effectively and independently, in accordance with the Paris Principles (annex to General Assembly resolution 48/134 of 20 December 1993).

National preventive mechanism

(15)The Committee takes note with interest of the information supplied by the delegation of the State party on the efforts under way to operationalize the national preventive mechanism established by Act No. 4288. Nonetheless, the Committee notes with concern that the State party’s national preventive mechanism should have been established in 2007 and is still not operational.

The State party should speed up the implementation of the law establishing the national preventive mechanism, in particular by forming the selection body provided for by this law soon. The State party should ensure that this mechanism has the human, material and financial resources it needs to carry out its mandate independently and effectively throughout the country.

Prevention and eradication of corruption

(16)The Committee is deeply concerned about repeated allegations of widespread corruption in the prison system and police force in the State party. It has been alleged that persons deprived of their liberty have to bribe public officials in order to receive medical treatment or food or to receive visits. The Committee is also concerned about the unjustified granting of benefits to certain individuals deprived of their liberty that occurs as a result of corruption. The Committee notes with regret that the State party has not provided information on these issues (arts. 2, 10 and 12).

The State party should take immediate and urgent measures to eradicate corruption in the police force and prison system, which is an obstacle to the effective implementation of the Convention. These measures should include audits to identify corrupt behaviour and risks of corruption, as well as recommendations on how to ensure internal and external controls. The State party should also increase its capacity to investigate and try cases of corruption. In addition, the State party should organize training, awareness-raising and capacity-building programmes on fighting corruption and on the relevant professional codes of ethics, for police and other law enforcement officers, prosecutors and judges, and it should establish, de facto and de jure, effective mechanisms to ensure transparency in the conduct of public officials. The Committee requests the State party to keep it informed of any steps taken and any difficulties encountered in the fight against corruption. The Committee also requests the State party to supply information on the number of State officials, including senior officials, who have been tried and punished for corruption.

Non-refoulement

(17)The Committee is concerned about the allegations received concerning extraditions carried out by the State party without it having examined the risk of the person extradited being tortured in the receiving country. The Committee is also concerned about the lack of specific training for members of the judiciary regarding the scope of article 3 of the Convention (art. 3).

The State party should formulate and adopt legal provisions to incorporate article 3 of the Convention into its domestic law and ensure that the provisions of that article are applied in cases of expulsion, refoulement or extradition of foreign citizens. Under no circumstances should the State party expel, return or extradite a person to another State where there are substantial grounds for believing that he or she would be in certain danger of being subjected to torture or ill-treatment.

Impunity for acts of torture and ill-treatment

(18)The Committee is concerned about the numerous and consistent allegations of torture and ill-treatment of persons deprived of their liberty, in particular by police officers. The Committee regrets the lack of any consolidated statistics on complaints of torture, investigations and the penalties handed down during the period covered by the State party’s report. The Committee takes note of the statistics provided in the State party’s report concerning disciplinary proceedings against police officers; however, it notes that the statistics do not indicate how many of those cases have been brought to court. The Committee is also concerned that, according to the information provided in the State party’s report, during 2009 there were only nine complaints of torture in the State party’s prisons. The Committee considers that the figures do not tally with the persistent allegations and extensive documentation received from other sources concerning cases of torture and ill-treatment of persons deprived of their liberty. The Committee is further concerned by the limited effectiveness of police monitoring and supervision mechanisms and the lack of compensation and rehabilitation services for victims of torture and ill-treatment (arts. 2, 12–14 and 16).

The Committee recommends that the State party should:

(a) As a matter of urgency, take immediate and effective measures to prevent acts of torture and ill-treatment, including through the announcement of a policy that would produce measurable results in the eradication of torture and ill-treatment by State officials;

(b) Adopt appropriate measures to ensure that all complaints of torture and ill-treatment are promptly and impartially investigated by an independent body;

(c) Review the efficacy of the internal complaints procedure available to persons deprived of their liberty and consider establishing an independent complaints procedure for all persons deprived of their liberty;

(d) Ensure that the Public Prosecution Service conducts, of its own motion, investigations and, if appropriate, institutes criminal proceedings whenever there are reasonable grounds to believe that acts of torture have been committed;

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

(f) Strengthen existing mechanisms for monitoring and oversight of the police so as to ensure independent and effective oversight;

(g) Provide victims with appropriate compensation and direct its efforts towards ensuring rehabilitation that is as complete as possible.

Conditions of detention and use of pretrial detention

(19)The Committee is concerned about the habitual and widespread use of pretrial detention, which may undermine the right to presumption of innocence, rather than non-custodial measures. The Committee is also concerned by the failure to respect the maximum legal period for pretrial detention and by the existence in the State party of legislation that restricts the possibility of using alternatives to preventive detention. The Committee is especially concerned by the extensive use of pretrial detention for children aged between 16 and 18 years. The Committee notes with concern the abundant information received from various sources on the deplorable material conditions in many of the State party’s police stations and prisons, the overcrowding in them, the inadequate medical services and the almost complete lack of activities for persons deprived of their liberty. In particular, the Committee is concerned about the material conditions in the psychiatric ward of the national prison in Tacumbú and the lack of specialized medical attention provided to the prisoners housed there. The Committee is further concerned about allegations of discrimination against the lesbian, gay, bisexual and transgender community in the State party’s prisons, including discrimination in allowing private visits from partners. Lastly, the Committee is concerned about the arbitrary use of solitary confinement as a punishment in the State party’s prisons (arts. 2, 11 and 16).

The State party should take effective measures to ensure that its policy of pretrial detention is in conformity with international standards and that pretrial detention is used solely as a last resort and for a limited period, in conformity with the requirements laid down in its legislation. To this end, the State party should review the use of pretrial detention as a primary measure for accused persons awaiting trial and consider the possibility of using alternatives to deprivation of liberty, as described in the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), adopted by the United Nations General Assembly in its resolution 45/110, in particular in cases involving minors. The State party should also increase judicial control over the duration of pretrial detention.

The State party should adopt urgent measures to ensure that detention conditions in police stations, prisons and other detention centres are in conformity with the United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted by the Economic and Social Council in its resolutions 663 C (XXIV) and 2076 (LXII). In particular, the Committee recommends that the State party should:

(a) Adopt a plan for the improvement of the infrastructure of Paraguay’s police stations and prisons so as to guarantee decent living conditions for persons deprived of their liberty;

(b) Ensure that there are sufficient medical professionals, including mental health professionals, to provide proper medical care for persons deprived of their liberty;

(c) Provide suitable accommodation and psychiatric treatment for those persons deprived of their liberty who require psychiatric supervision and treatment;

(d) Redouble efforts to combat discrimination against vulnerable groups, and in particular against the lesbian, gay, bisexual and transgender community;

(e) Use solitary confinement as a last resort, for as short a time as possible, under strict supervision and with the possibility of judicial control.

Statements obtained under duress

(20)The Committee expresses its concern at reports that, in spite of the provisions of article 90 of the Code of Criminal Procedure prohibiting the use of force by the police to obtain a statement from a detained person, in practice the police continue to obtain statements by torture or ill-treatment. The Committee is concerned that the courts of the State party occasionally use such statements as evidence. The Committee is also concerned by the lack of information relating to officials who have been tried and punished for having obtained statements in this way (arts. 2, 4, 10 and 15).

The State party should take the necessary steps to ensure that all statements obtained as a result of torture are inadmissible in any court proceedings, in conformity with article 15 of the Convention. The Committee requests the State party to ensure in practice the inadmissibility of evidence obtained as a result of torture and to provide it with information on whether any officials have been tried and punished for having obtained statements in this way, together with examples of cases that have been set aside because a statement had been obtained as a result of torture. The State party should also ensure the provision of training for law enforcement officials, judges and lawyers on the methods used to detect and investigate cases in which statements have been obtained by torture.

Violence against women

(21)The Committee takes note of the different measures adopted by the State party to combat violence against women, which include providing five police stations with the resources to register complaints of domestic violence. It also takes note of the implementation in seven public hospitals of the National Programme for Prevention and Comprehensive Care for Victims of Gender Violence and of the introduction of custodial penalties to punish acts of domestic violence. However, the Committee is concerned by the lack of a specific law to prevent, punish and eradicate violence against women, particularly sexual abuse, domestic violence and violent killings of women, in spite of the high incidence of such violence in the State party (arts. 2, 12, 13 and 16).

The State party should intensify its efforts to ensure the implementation of urgent and effective protective measures to prevent and combat all forms of violence against women and girls, particularly sexual abuse, domestic violence and violent killings of women. Such measures should include, in particular, the rapid adoption of a law to prevent, punish and eradicate violence against women that is in conformity with the Convention on the Elimination of All Forms of Discrimination against Women and with general recommendation No. 19 of 1994 on violence against women of the Committee on the Elimination of Discrimination against Women. The State party should also undertake broad awareness-raising campaigns and provide training courses on the prevention of violence against women and girls for officials who are in direct contact with victims (law enforcement officers, judges, lawyers, social workers, etc.) and for the general public.

(22)The Committee notes with concern the general prohibition of abortion in article 109 of the Criminal Code, which applies even to cases of sexual violence, incest or when the foetus is not viable, with the sole exception of cases where the foetus dies as an indirect result of an intervention that is necessary to avert a serious threat to the life of the mother. This means that the women concerned are constantly reminded of the violation committed against them, which causes serious traumatic stress and carries a risk of long-lasting psychological problems. The Committee also notes with concern that women who request an abortion under the circumstances described above are punished. The Committee is also concerned about the denial of medical care to women who have decided to have an abortion, which could seriously jeopardize their physical and mental health and could constitute cruel and inhuman treatment. The Committee expresses its deep concern that illegal abortions are still one of the main causes of mortality among women. The Committee also notes with concern that medical professionals can be investigated and punished by the State party for practising therapeutic abortions. The Committee is also concerned that medical professionals have reported abortions that have come to their knowledge under the protection of professional secrecy, in violation of the profession’s code of ethics (arts. 2 and 16).

The Committee urges the State party to review its legislation on abortion, as recommended by the Human Rights Council, the Human Rights Committee, the Committee on the Elimination of Discrimination against Women and the Committee on Economic, Social and Cultural Rights in their latest concluding observations, and to consider providing for further exceptions to the general prohibition of abortion, in particular for cases of therapeutic abortion and pregnancy resulting from rape or incest. The State party should, in accordance with the guidelines issued by the World Health Organization, guarantee immediate and unconditional treatment for persons seeking emergency medical care. The State party should also take measures to preserve confidentiality between doctors and patients when medical care is provided for complications arising from an abortion.

Trafficking in persons

(23)The Committee recognizes the efforts made by the State party to address trafficking in persons, including the creation of the Inter-Agency Committee to Prevent and Combat Human Trafficking and special units in the National Secretariat for Children and Adolescents and the Secretariat for Women, the establishment of a centre to provide comprehensive support for trafficking victims and the drafting of a bill to combat trafficking in persons. The Committee notes with interest the opening of a temporary shelter for trafficking victims, but observes that the shelter has limited space and only receives female victims. The Committee is concerned that Paraguay continues to be both a source and transit country for human trafficking and regrets the lack of comprehensive information on trafficking cases and convictions (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, judges, prosecutors, migration officials and border police on the causes, consequences and repercussions of trafficking and other forms of exploitation. In particular, the State party should make every effort to implement the National Plan for the Prevention and Elimination of the Sexual Exploitation of Children and Adolescents and ensure it is allocated the necessary human and financial resources. The Committee further recommends that the State party increase its efforts to establish systems and mechanisms of international, regional and bilateral cooperation with countries of origin, transit and destination in order to prevent, investigate and punish cases of human trafficking.

Training and the implementation of the Istanbul Protocol

(24)The Committee takes note of the information in the report of the State party on training schemes for the Armed Forces, prosecutors and members of the national police but regrets that so little information is available on the evaluation of those schemes and their effectiveness in reducing the incidence of torture and ill-treatment. In particular, the Committee regrets the lack of information on the training provided on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) to personnel involved in the investigation and identification of torture and ill-treatment (art. 10).

The State party should:

(a) Continue to provide training programmes so as to ensure that all public servants, in particular police and other law enforcement officers, are fully aware of the provisions of the Convention;

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

(c) Establish a training plan for all personnel involved in the investigation and identification of torture, including public defenders, doctors and psychologists, so that the contents of the Istanbul Protocol are known and applied in practice.

Redress, including compensation and rehabilitation

(25)The Committee takes note of the information provided in the report of the State party on the financial compensation awarded to victims of human rights violations, including torture, committed during the period 1954–1989. The Committee regrets not having received information on the implementation of rehabilitation measures, such as psychological assistance or training, for such victims. The Committee also regrets the total lack of information on measures to compensate victims of acts of torture committed after the dictatorship (art. 14).

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

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

Violence against children

(26)The Committee takes note of the measures taken to prohibit corporal punishment of children living with their mothers in places of detention or in shelters. The Committee also takes note of the information provided by the State party delegation on the existence of a bill to prohibit corporal punishment. However, the Committee is concerned that corporal punishment in the home is still not prohibited (art. 16).

The Committee recommends that the State party explicitly prohibit corporal punishment of children in all settings, including in the home.

Protection of indigenous peoples

(27)The Committee takes note of the measures already taken by the State party to comply with the judgements and decisions handed down within the Inter-American human rights system on the protection of indigenous peoples in the territory of the State party. The Committee also takes note of the measures taken in collaboration with the International Labour Organization to combat the exploitation of indigenous peoples for their labour. However, the Committee is concerned by reports of the persistence of such exploitation of members of the indigenous peoples living in Paraguay, which is equivalent to inhuman treatment in violation of the Convention (art. 16).

The Committee recommends that the State party take all measures necessary to eliminate all forms of exploitation of members of indigenous peoples for their labour. The State party should also, within a reasonable time frame, fully comply with the judgements of the Inter-American Court of Human Rights that obligate it to adopt measures to protect indigenous peoples.

(28)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.

(29)The Committee requests the State party to provide information, by 25 November 2012, on the follow-up to the Committee’s recommendations on: (a) access to and strengthening of the legal safeguards for detained persons; (b) the conduct of prompt, impartial and effective investigations; and (c) the prosecution of those suspected of committing acts of torture and other forms of ill-treatment and the punishment of those responsible for such acts, as set forth in paragraphs 11 and 18 of the present document. The Committee also requests information on follow-up to the recommendations presented in paragraph 23 of the present document regarding measures to be taken to prevent, combat and eradicate trafficking in persons.

(30)The State party is invited to submit its seventh periodic report at the latest by 25 November 2015. In that regard, the Committee will, since the State party has agreed to submit its reports under the optional reporting procedure, send the State party, in due course, a list of issues prior to the submission of the report.

59. Sri Lanka

(1)The Committee considered the combined third and fourth periodic report of Sri Lanka (CAT/C/LKA/3-4) at its 1030th and 1033rd meetings, held on 8 and 9 November 2011 (CAT/C/SR.1030 and 1033). At its 1050th, 1051st and 1052nd meetings, held on 22 to 23 November 2011 (CAT/C/SR.1050, 1051 and 1052), it adopted the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the combined third and fourth periodic reports of Sri Lanka, which generally follows the Committee’s guidelines for reporting. However, the Committee regrets that the report lacks statistical and practical information on the implementation of the provisions of the Convention and that it was submitted two years late. The Committee appreciates the dialogue with the delegation, the answers provided orally during the consideration of the report and the additional written submissions.

B. Positive aspects

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

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

(b)United Nations Convention against Transnational Organized Crime, in September 2006.

(4)The Committee notes the efforts undertaken by the State party to reform its legislation, including:

(a)The adoption in 2005 of the Prevention of Domestic Violence Act No. 34, which provides for protection orders to safeguard both children and women;

(b)The adoption in 2006 of the Penal Code (Amendment) Act No. 16, which inter alia made it a penal offence to engage and recruit a child for use in armed conflict and in child labour, child trafficking and child pornography.

(5)The Committee also welcomes the efforts made by the State party regarding ongoing policies and procedures, including:

(a)The adoption of a National Plan of Action for Children (2010–2015);

(b)The consultations with civil society organizations regarding the elements to be incorporated in the draft National Action Plan on Human Rights, which would include a focus area on the prevention of torture;

(c)The establishment of the Lessons Learnt and Reconciliation Commission in May 2010.

C. Principal subjects of concern and recommendations

Allegations of widespread use of torture and ill-treatment

(6)Notwithstanding the new circumstances prevailing since the defeat of the Liberation Tigers of Tamil Eelam (LTTE) and the end of the military conflict that had consumed the country for nearly 30 years, and the State party’s public commitment to the Committee that it has a zero-tolerance policy on torture as a matter of State policy and practice, the Committee remains seriously concerned about the continued and consistent allegations of widespread use of torture and other cruel, inhuman or degrading treatment of suspects in police custody, especially to extract confessions or information to be used in criminal proceedings. The Committee is further concerned at reports that suggest that torture and ill-treatment perpetrated by State actors, both the military and the police, have continued in many parts of the country after the conflict ended in May 2009 and is still occurring in 2011 (arts. 2, 4, 11 and 15).

As a matter of urgency, the Committee calls upon the State party to take immediate and effective measures to investigate all acts of torture and ill-treatment and prosecute and punish those responsible with penalties that are consistent with the gravity of their acts. It calls upon the State party to ensure that torture is not used by law enforcement personnel and members of the military. In addition to these measures, the State party should unambiguously reaffirm the absolute prohibition of torture and publicly condemn practices of torture, accompanied by a clear warning that anyone committing such acts or otherwise complicit or participating in torture will be held personally responsible before the law for such acts and will be subject to criminal prosecution and appropriate penalties.

The Committee recalls the absolute prohibition of torture contained in article 2, paragraph 2, of the Convention, stating 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”, as well as the statement by the representative of the State party reaffirming this.

Fundamental legal safeguards

(7)While noting the information provided by the State party on the content of the Presidential Directives of 7 July 2006 (reissued in 2007) and the Rules with regard to Persons in Custody of the Police (Code of Departmental Order No. A 20), the Committee expresses its serious concern at the State party’s failure in practice to afford all detainees, including those detained under anti-terrorist laws, with all fundamental safeguards from the very outset of their detention. The Committee is concerned that, despite the content of the 2006 Presidential Directives, criminal suspects held in custody still have no statutory right to inform a family member of the arrest or to have prompt access to a lawyer of their choice. The Code of Criminal Procedure also lacks other fundamental legal safeguards, such as the right to have a lawyer present during any interrogation and to be assisted by an interpreter and the right to confidential communication between lawyer and client. The Committee notes with concern that access to a doctor is left to the discretion of the police officer in charge of the police station. It also expresses concern about reports that police fail to bring suspects before a judge within the time prescribed by law and that accused persons are often not adequately informed about their rights. The Committee also expresses its concern at the absence of a State-sponsored legal aid programme; and, at the variety of institutional, technical and procedural obstacles rendering the writ of habeas corpus ineffective (art. 2).

The State party should take prompt and effective measures to ensure, in law and in practice, that all detainees are afforded all legal safeguards from the very outset of their detention. These include, in particular, the rights of each detainee to be informed of the reasons for his/her arrest, including of any charges against him/her; to have prompt access to a lawyer and to consult privately with him/her and, when needed, legal aid, as well as an independent medical examination, if possible by a doctor of his/her choice; to notify a relative and to be informed of his/her rights; to have a lawyer present during any interrogation by the police and to be assisted by an interpreter; to be brought promptly before a judge and to have the lawfulness of his/her detention reviewed by a court, in accordance with international instruments.

The State party should ensure that, when suspects are produced before the courts by the police, magistrates always inquire whether the suspect was tortured or mistreated by the police while in custody. The State party should ensure that public officials, in particular judicial medical officers (JMO), prison doctors, prison officials and magistrates who have reasons to suspect an act of torture or ill-treatment, record and report any such suspected or claimed act to the relevant authorities.

Secret detention centres

(8)Notwithstanding the statement of the Sri Lankan delegation categorically denying all allegations about the existence of unacknowledged detention facilities in its territory, the Committee is seriously concerned about reports received from non-governmental sources regarding secret detention centres run by the Sri Lankan military intelligence and paramilitary groups where enforced disappearances, torture and extrajudicial killings have allegedly been perpetrated (arts. 2 and 11).

The State party should ensure that no one is detained in any secret detention centres, as these facilities are per se a breach of the Convention. The State party should investigate and disclose the existence of any such facilities and the authority under which any of them has been established. The State party should also ensure that the results of the investigation are made public. It should abolish any such facilities and any perpetrators found responsible should be held accountable.

Enforced disappearances

(9)While welcoming the State party’s Supreme Court judgement in Kanapathipillai Machchavallavan v Officer in Charge Army Camp Plaintain Point, Trincomalee and Three Others (2005), according to which enforced disappearance could constitute a violation of article 13(4) of the Constitution, the Committee notes with concern that this reasoning has not been reflected in more recent decisions. It also notes that that enforced disappearance is not a separate offence under Sri Lankan criminal law and that such acts are charged under other crimes in the Penal Code, including kidnapping, abduction and wrongful confinement. The Committee expresses its concern that 475 new cases of enforced disappearance were transmitted by the Working Group on Enforced or Involuntary Disappearances to the State party under its urgent procedure during the period 2006–2010, and the claims that military, police, the Criminal Investigation Department (CID) and paramilitary groups are the alleged perpetrators. It is also concerned at reports suggesting that the sweeping powers granted under anti-terrorist legislation contributed to the large number of new disappearances (arts. 2, 11, 12, 13 and 16).

The State party should:

(a) Take all the necessary measures to ensure that enforced disappearance is established as an offence in its domestic law;

(b) Ensure that the cases of enforced disappearances are thoroughly and effectively investigated, that suspects are prosecuted and those found guilty punished with sanctions proportionate to the gravity of their crimes;

(c) Ensure that the any individual who has suffered harm as the direct result of an enforced disappearance has access to information about the fate of the disappeared person, as well as to fair and adequate compensation;

(d) Adopt measures to clarify the outstanding cases of enforced disappearances and comply with the request to visit by the Working Group on Enforced or Involuntary Disappearances (A/HRC/16/48, para. 450).

The Committee furthermore calls upon the State party to consider ratifying the International Convention for the Protection of All Persons from Enforced Disappearance.

Anti-terrorism measures

(10)While noting the State party’s decision to lift the long-standing state of emergency on 31 August 2011, the Committee expresses concern that 24 hours before it ended new regulations were decreed under the Prevention of Terrorism Act No. 48 of 1979 (PTA). The Committee is concerned about the sweeping nature of these PTA regulations, which unduly restrict legal safeguards for persons suspected or charged with a terrorist or related crime, as pointed out by the Human Rights Committee and the Special Rapporteur on the question of torture. The Committee notes that the President continued to invoke Section 12 of the Public Security Ordinance (Chapter 40) to allow the armed forces to retain policing powers in all 25 districts (Presidential Order of 6 August 2011). In this connection, the Committee notes with concern that with the lapsing of the state of emergency, the limited safeguards contained in Emergency (Miscellaneous Provisions and Powers) Regulation, No. 1 of 2005, which applied when arrests were made by armed forces, apparently are no longer in effect under the new PTA regulations (e.g. a person arrested by a member of the armed forces had to be handed over to the police within 24 hours) (arts. 2 and 16).

The State party should ensure the respect for fundamental legal safeguards and 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.

Coerced confessions

(11)While noting the clarification given by the State party in respect of the inadmissibility of evidence obtained through torture under the Evidence Ordinance Act 1985, the Committee remains concerned about the fact that the PTA allows all confessions obtained by police at or above the rank of Assistant Superintendent of Police (ASP) to be admissible (sect. 16) placing the burden of proof on the accused that a confession was obtained under duress (sect. 17(2)). The Committee is also concerned at reports that in most cases filed under the PTA the sole evidence relied upon is confessions obtained by an ASP or an officer above that rank The Committee further notes with concern reports documenting individual cases of torture and ill-treatment where the victims were allegedly randomly selected by police to be arrested and detained for what appears to be an unsubstantiated charge and subsequently subjected to torture or ill-treatment to obtain a confession for those charges (arts. 2, 11, 15 and 16).

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

The State party should also ensure that all detainees are asked by the judge whether or not they were ill-treated or tortured in custody. The State party should ensure that judges order independent medical examinations whenever a suspect requires one in court and that prompt and impartial investigations are conducted whenever there is a reason to believe that an act of torture occurred, especially in cases where the sole evidence presented is a confession. The judge should exclude such statements if the suspect so requests in court and the medical examination sustains the claim. Detainees should receive a copy confirming their request for a medical report and a copy of the report itself.

Registration of all detainees

(12)The Committee notes that according to the State party’s core report, that over the period 2000–2005, more than 80,000 persons were imprisoned annually, of whom more than 60,000 were never convicted. Furthermore, according to the additional written information provided by the State party’s delegation, 765 persons are detained in Sri Lanka under administrative detention orders as of 11 November 2011 but there is no central registry on detentions carried out under the PTA. The Committee recalls with concern that, in response to the Committee’s confidential inquiry under article 20 of the Convention (A/57/44, paras. 123–195), the State party informed it that a computerized central police registry had been established, yet now reveals this has not happened (arts. 2, 11 and 16).

The State party should:

(a) Ensure that all suspects under criminal investigation are registered promptly from the moment of apprehension and not only upon formal arrest or charging;

(b) Establish immediately a central register for all persons in official custody, inter alia, persons in prisons, police stations and “rehabilitation centres”, as well as those detained under the PTA.

(c) Publish a list of all detainees and places of detention.

Human rights defenders, defence lawyers, journalists and other civil society actors at risk

(13)The Committee expresses its concern at reports that human rights defenders, defence lawyers and other civil society actors, including political activists, trade unionists and independent media journalists have been singled out as targets of intimidation, harassment, including death threats and physical attacks and politically motivated charges. It regrets that, in many cases, those allegedly responsible for acts of intimidation and reprisal appear to enjoy impunity. The Committee notes with regret that the State party was unable to provide adequate information on the specific incidents about which the Committee had inquired, including the cases of journalists, such as Poddala Jayantha, Prageeth Eknaligoda and J. S. Tissainayagam, and lawyers, such as J.C. Welliamuna and Amitha Ariyarantne. This resulted in a number of submissions to the Committee by some of the individuals concerned containing contradictory information. The Committee is also concerned about information received according to which the Ministry of Defence has published articles on its website implying that lawyers defending individuals are “traitors” to the nation. The Committee is concerned about the fact that one of these articles, entitled “Traitors in Black Cloaks Flocked Together”, included the names and photographs of five lawyers, putting them at of risk of attacks (arts. 2, 12, 13 and 16).

The State party should:

(a) Ensure that all persons, including those monitoring human rights and combating torture and impunity are protected from intimidation or violence as a result of their activities;

(b) Take prompt and effective measures, including investigation and prosecution, to address concerns regarding the extremely hostile environment for human rights defenders, lawyers, journalists and other civil society actors in Sri Lanka .

Conditions of detention in police stations and prisons

(14)The Committee is concerned at the deplorable levels of overcrowding and poor conditions prevailing at police stations and prisons, especially the lack of hygiene, inadequate medical care, the non-separation of convicted and remand prisoners and the failure to keep adult detainees and juvenile offenders separate, as reported by the Special Rapporteur on the question of torture (A/HRC/7/3/Add.6 and A/HRC/13/39/Add.6). In this respect, the Committee regrets the absence of information provided by the State party on measures taken to improve conditions of detention for those held on remand and for convicted persons (arts. 11 and 16).

The State party should:

(a) Ensure that conditions of detention in the country’s prisons are compatible with the Standard Minimum Rules for the Treatment of Prisoners and the Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules);

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

(c) Continue to expand the prison infrastructure and the remand centres, including those for juvenile offenders;

(d) Take effective measures to improve the adequacy of health-care resources in penitentiary institutions, and ensure that the medical assistance given to detainees is of high quality.

Deaths in custody

(15)The Committee is concerned at reports from non-governmental organisations on deaths in custody, including police killings of criminal suspects in alleged staged “encounters” or “escape” attempts. The Committee notes with concern that the State party only reported two cases of death in custody, where the cause of death was determined to be suicide, for the entire period 2006–2011, while for a similar period between 2000–2005 the State party had reported in its core document approximately 65 annual deaths in custody from all causes (HRI/CORE/LKA/2008, p. 87).

The Committee urges the State party to investigate promptly, thoroughly and impartially all deaths of detainees assessing any possible liability of law enforcement officers and prison personnel, and provide, where appropriate punishment of the perpetrators and compensation to the families of the victims.

The State party should provide comprehensive data regarding reported cases of deaths in custody, disaggregated by location of detention, sex, age, ethnicity of the deceased and cause of death.

Monitoring detention facilities

(16)While noting the Human Rights Commission of Sri Lanka’s (HRCSL) broad inquiry powers to investigate human rights violations vested in Section 11 of the Human Rights Commission Act No 21 of 1996, the Committee is concerned about its reported inactivity, the lack of cooperation from the police and the Government and the limited resources and challenges to its independence and impartiality as a result of the 18th Amendment to the Sri Lankan Constitution, which places the appointment of its members solely in the hands of the Head of State. The Committee is also concerned that, contrary to the information provided by the State party, the International Committee of the Red Cross (ICRC) is not allowed to visit the “rehabilitation centres” or facilities holding LTTE suspects yet to be formally charged. The Committee notes with concern that during 2009 the military administration in closed internment camps for IDPs denied access to humanitarian organisations, including the United Nations and the ICRC (arts. 2, 11, 12, 13 and 16).

The Committee calls upon the State party to establish an independent national system to effectively monitor and inspect all places of detention, including facilities holding LTTE suspects and closed IDP camps, and to follow-up on the outcome of its systematic monitoring.

The State party should take necessary measures to support work of HRCSL, ensuring that its recommendations are fully implemented. It should also provide detailed information on the action taken on the recommendations made by the Commission on its visit to Mount Lavinia police station on 15 August 2011.

The State party should strengthen the capacity of non-governmental organizations that undertake monitoring activities and adopt all appropriate measures to enable them to carry out periodic, independent and unannounced visits to places of detention.

The Committee strongly encourages the State party to consider the possibility of ratifying the Optional Protocol to the Convention against Torture, with a view to establishing a system of regular unannounced visits by national and international monitors, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

Human Rights Commission of Sri Lanka (HRCSL)

(17)The Committee is concerned that the new appointment process set out by the 18th Amendment to the Sri Lankan Constitution (September 2010), which ends Parliament’s role in approving appointments, undermines the independence of the HRCSL. The Committee is also concerned about the difficulties the HRCSL has had in carrying out its function owing in part to the lack of cooperation from other State party institutions, limited human and financial resources, which has reduced its ability to investigate specific incidents and make recommendations for redress, and failure to publish the reports of its investigations (arts. 2 and 12).

The State party should ensure that the HRCSL effectively fulfils its mandate and receives the necessary resources for that purpose. It should also ensure that the Commission is able to initiate as well as carry out independent investigations into alleged and possible cases of torture and ill-treatment, including those concerning military premises, as well as “rehabilitation centres” and other government-controlled facilities such as “welfare centres”, and to publish the results. The State party should establish a transparent and consultative selection process to guarantee its full independence in line with the Paris Principles.

Impunity for acts of torture and ill-treatment

(18)The Committee remains concerned about the prevailing climate of impunity in the State party and the apparent failure to investigate promptly and impartially wherever there is reasonable ground to believe that an act of torture has been committed. It also notes the absence of an effective independent monitoring mechanism to investigate complaints of torture. The Committee expresses concern over reports that the Attorney General’s office has stopped referring cases to the Special Investigations Unit (SUP) of the police and the large proportion of pending cases still outstanding. The Committee is also concerned at numerous reports concerning the lack of independence of the judiciary (arts. 11, 12 and 13).

The State party should:

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

(b) Establish an independent complaints system for all persons deprived of their liberty;

(c) Launch prompt and impartial investigations spontaneously and wherever there is reasonable ground to believe that an act of torture has been committed;

(d) Ensure that the Attorney General’s office fulfils its responsibilities to refer cases to the SUP;

(e) 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 repeat the alleged act or to obstruct the investigation;

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

(g) Bring to trial the alleged perpetrators of acts of torture or ill-treatment and, if they are found guilty, ensure sentences with penalties that are consistent with the gravity of their acts. In this connection, legislative measures should be taken to guarantee the independence of the judiciary.

Witness and victim protection

(19)The Committee remains concerned at the absence of an effective mechanism to ensure the protection of and assistance to witnesses and victims of human rights violations and abuses, which has a negative impact on the willingness and ability of witnesses and victims to participate in investigations or to testify in proceedings. In this regard, the Committee is concerned about the impunity in the cases of attacks against witnesses and victims, as illustrated in the case of Gerald Perera and those allegedly involved in his murder following his allegation of torture against several police officers. The Committee notes with concern that a bill on witness and victim protection has been on the parliamentary agenda since 2008. The Committee regrets the scant substantive information provided by the State party regarding the case of Siyaguna Kosgodage Anton Sugath Nishantha Fernando, a complainant in a torture case before the Supreme Court, who was killed by unidentified gunmen on 20 September 2008. The victim had repeatedly requested protection measures for himself and his family against alleged perpetrators (arts. 2, 11, 12, 13 and 15).

The Committee reiterates its earlier recommendation (CAT/C/LKA/CO/2, para. 15) that the State party should ensure that witnesses and victims of human rights violations are effectively protected and assisted, in particular by ensuring that perpetrators do not influence protection mechanisms and that they are held accountable.

Internally displaced persons

(20)The Committee notes that near the end of the armed conflict in 2009 over 280,000 people fled from the northern LTTE-controlled areas to government-controlled territory in Vavuniya, Mannar, Jaffna and Trincomalee districts, where the vast majority of them entered closed military-run internment camps. While noting the information provided by the State party regarding the substantial efforts undertaken to respond to the influx of displaced persons, the Committee remains concerned at the situation of IDPs in the country, especially those who remain in “welfare centres”. According to the State party, IDPs were initially provided with “a secure environment and cared for while they were screened to identify terrorist cadre[s] who had infiltrated the civilian population that was rescued at the conclusion of the armed conflict”. The Committee, however, remains concerned about consistent allegations of torture and ill-treatment during questioning of camp residents by the Criminal Investigation Department (CID) and the Terrorist Investigation Department (TID). The Committee is concerned that these allegations have not been investigated outside the context of the Lessons Learnt and Reconciliation Commission (LLRC) process and that no judicial action has been taken. The Committee is also concerned at reports of massive overcrowding, poor hygienic and sanitary conditions, malnutrition, inadequate medical and psychological assistance and lack of freedom of movement for camp residents during and after the final stages of the war (arts. 2, 11 and 16).

The State party should:

(a) Adopt the necessary measures to guarantee the physical integrity and address the specific needs of internally displaced persons, in accordance with the Guiding Principles on Internal Displacement (E/CN.4/1998/53/Add.2), including the medical care and psychological attention they require;

(b) Ensure that investigations are carried out into the alleged cases of torture, including sexual violence, against camp residents and that perpetrators of such acts are brought before the courts;

(c) Provide mandatory in-service training programmes on human rights, internal displacement and gender-based violence for members of the military and law-enforcement officials serving in the camps.

Accountability process and the Lessons Learnt Reconciliation Commission (LLRC)

(21)The Committee notes that there have been a number of ad hoc commissions of inquiry looking into past human rights violations, including the Presidential Commission of Inquiry to investigate serious cases of human rights violations that occurred since 1 August 2005, which according to the International Independent Group of Eminent Persons (IIGEP) did not meet international standards of independence, witness and victim protection and transparency. The Committee notes the information on the mandate, composition and working methods of the Lessons Learnt Reconciliation Commission (LLRC) and the Inter-Agency Advisory Committee (IAAC), established in May and September 2010, respectively. The Committee notes the assurances by the delegation of the State party that the LLRC has the faculty to channel the complaints received “with a possibility of immediate investigation and remedial action”, and that the Attorney General is “empowered to institute criminal proceedings based on the material collected during the course of the recommendations made by the LLRC”. The Committee, nevertheless, regrets the apparent limited mandate of the LLRC and its alleged lack of independence. In addition, it regrets the lack of information provided by the State party on the investigations undertaken into allegations of serious violations of international human rights law, such as torture, including rape and enforced disappearances, and other forms of ill-treatment that allegedly occurred during the last stages of the conflict and in the post-conflict phase, as reported by numerous sources, including the Special Rapporteur on the question of torture, the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Secretary-General’s Panel of Experts on Accountability in Sri Lanka. The Committee notes that the State party asserts that the LLRC “has taken cognizance of all the allegations”, but regrets that it has not received any such information. The Committee notes that the State party “(…) will await LLRC’s report before considering further action” and that a “comprehensive answer will be submitted” to this Committee on the establishment of programmes to assist victims of torture and ill-treatment that occurred during the course of the armed conflict “once the LLRC’s report is finalized and made public” (arts. 2, 12, 13, 14 and 16).

Following the LLRC initiative, the State party should promptly launch impartial and effective investigations into all allegations of violations of the Convention, including torture, rape, enforced disappearances and other forms of ill-treatment, occurred during the last stages of the conflict and in the post-conflict phase, with a view to holding accountable those responsible and providing effective redress for victims of such violations.

The State party should consider also the possibility of accepting an international investigatory body, which would address past concerns over the lack of credibility of previous investigations and any outstanding concern about the LLRC.

Violence against women, including sexual violence

(22)The Committee notes with concern reports about a growing number of cases of violence against women, including sexual and domestic violence, as well as the insufficient information provided by the State party in this regard. It also notes with concern that domestic violence and marital rape are recognized only following a judge’s legal recognition of the separation of spouses. The Committee is also concerned about reported cases of war-time rape and other acts of sexual violence that occurred following the end of the conflict, in particular in military-controlled camps. (arts. 2, 12, 13 and 16).

The State party should ensure prompt, impartial and effective investigations of all allegations of sexual violence and should prosecute suspects and punish perpetrators.

The Committee reiterates the recommendation made by the Committee on the Elimination of Discrimination against Women (CEDAW/C/LKA/CO/7) that the State party should extend criminalization of marital rape regardless of judicial acknowledgement of separation.

The State party should provide the Committee with information on the investigations of cases of war-time rape and other acts of sexual violence that occurred during the last stages of the conflict and in the post-conflict phase, and the outcome of such trials, including information on the punishments meted out and the redress and compensation offered to the victims.

Sexual exploitation and abuse of children by peacekeepers

(23)The Committee expresses its grave concern over the alleged sexual exploitation and abuse of minors by military members of the Sri Lankan contingent of the United Nations Stabilization Mission in Haiti (MINUSTAH) that occurred in 2007. While noting the information provided by the State party’s delegation that the troops in question were repatriated and dealt with under military law, the Committee regrets the lack of information available regarding any specific charges or punishments faced by the 114 members of the Sri Lankan contingent who were repatriated on disciplinary grounds (arts. 2, 5, 12 and 16).

The State party should conduct investigations into the allegations of incidents of sexual exploitation and abuse by military members of the MINUSTAH’s Sri Lankan contingent and report their findings and measures taken in response, including the resulting number of indictments, prosecutions and convictions, and measures taken to prevent further occurrences. The Committee encourages the State party to pursue its cooperation with the relevant United Nations departments to ensure progress in this matter.

Human trafficking and violence against Sri Lankan migrant workers

(24)While noting the adoption in 2006 of the Penal Code (Amendment) Act No. 16, the Committee is concerned about persistent reports of trafficking of women and children within the State party for the purposes of forced labour and sexual exploitation, the low numbers of convictions related to human trafficking and the detention of trafficking victims. The Committee is similarly concerned at the reported abuses of many Sri Lankan migrant workers, especially women, who travel abroad and subsequently face conditions of forced labour or other abuse in the host country, as alleged by the representative of the State party. In this regard, the Committee notes with interest the statement of the representative of the State party that the draft National Action Plan on Human Rights contains a section devoted to the protection of Sri Lankan migrant workers (arts. 2, 12 and 16).

The State party should:

(a) Increase its efforts to combat trafficking in human beings by taking effective measures to investigate, prosecute and punish those responsible and by further strengthening international cooperation with countries of origin, transit and destination;

(b) Review legislation and practices to prevent victims of trafficking from being prosecuted, detained or punished for the illegality of their entry or residence or for the activities they are involved in as a direct consequence of their situation as victims of trafficking;

(c) Instruct consular or diplomatic authorities to provide protection and assistance to Sri Lankan migrant workers to protect their rights to be free from violence, confinement and abuse in violation of the Convention;

(d) Consider the possibility of ratifying the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime.

Definition of torture

(25)The Committee reiterates its view that the definition of torture included in Section 12 of the 1994 Convention against Torture Act (hereinafter, CAT Act) does not entirely reflect the internationally agreed definition set out in the Convention. It restricts acts of torture to “any act which causes severe pain, whether physical or mental”, while the Convention definition refers to “severe pain or suffering”. It thus does not cover acts that are not violent per se, but nevertheless inflict suffering (arts. 1 and 4).

The Committee reiterates the recommendation made in its previous concluding observations (CAT/C/LKA/CO/2, para. 5), that the State party should amend the definition of torture included in Section 12 of the CAT Act in order to expand the definition of torture to all acts of torture, including those causing severe suffering, in accordance with article 1 of the Convention. In this regard, the Committee draws attention to its general comment No. 2 (2007), which states that serious discrepancies between the Convention’s definition and that incorporated into domestic law create actual or potential loopholes for impunity (CAT/C/GC/2, para. 9).

Jurisdiction over acts of torture

(26)While noting the information provided by the State party on the implementation of articles 5 to 8 of the Convention, the Committee regrets the lack of clarity on the existence of the necessary measures establishing the State party’s jurisdiction over acts of torture. While the 1994 CAT Act provides for jurisdiction over alleged perpetrators of torture present in the territory of the State party, whether or not citizens, it is unclear whether the law provides for the establishment of universal jurisdiction or whether this remains at the discretion of the High Court, as implied in Section 4(2) CAT Act. Furthermore, Section 7 CAT Act appears to require the rejection of an extradition request before the requirement that the case be submitted to the relevant authorities. The Committee recalls its jurisprudence on the content of the obligation to extradite or prosecute (aut dedere, aut judicare), that the State party’s obligation to prosecute the alleged perpetrator of acts of torture does not depend on the prior existence of a request for extradition (arts. 5, 6, 7 and 8).

The Committee reiterates its previous recommendation (CAT/C/LKA/CO/2, para. 10) that the State party should ensure that its domestic legislation permits the establishment of jurisdiction for acts of torture in accordance with article 5 of the Convention, including provisions to bring criminal proceedings under article 7 against non-Sri Lankan citizens who have committed acts of torture outside the territory of the State party, who are present in the territory and who have not been extradited.

Refugees, non-refoulement

(27)The Committee notes with concern the absence of domestic legislation or national policy that guarantees the protection of refugees and asylum seekers in the State party and persons who require international protection. The Committee regrets the lack of information provided by the State party on the number of cases of refoulement, extradition and expulsion carried out during the reporting period and on the number of instances in which it has offered diplomatic assurances or guarantees (art. 3).

The State party should adopt a national policy, as well as the necessary legislative and administrative measures, to guarantee protection for refugees, asylum seeker s and stateless persons.

The Committee encourages the State party to consider the possibility of ratifying the Convention relating to the Status of Refugees and the Protocol relating to the Status of Refugees, the Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness.

Training

(28)The Committee notes the information on human rights training for members of the police and the army contained in the State party’s report and the responses to the list of issues. It, however, regrets the lack of information on the evaluation of those programmes and in reducing the incidence of torture and ill-treatment, as well as the lack of specific training of medical personnel in detention facilities to detect signs of torture and ill-treatment (art. 10 and 11).

The State party should:

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

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

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

Redress, including compensation and rehabilitation

(29)The Committee notes the State party’s explanation that, under the fundamental rights jurisdiction, the Sri Lankan courts may grant compensation (529 cases have been filed against police officers since 2006), that there have been a number of instances in which the Supreme Court has awarded pecuniary compensation for torture and that compensation can also be obtained through a damages suit in the District Court. However, the Committee notes reports that compensation amounts are inconsistent. In this regard, the Committee regrets the lack of information contained in the State party’s report on Supreme Court and District Court decisions awarding compensation to victims of torture and ill-treatment, or their families, and the amounts awarded on those cases. The Committee also notes with concern that there is no provision in the 1994 CAT Act, or the penal law, for compensation or other forms of reparation for torture victims. Finally, the Committee regrets the insufficient information provided on the treatment and social rehabilitation services, including medical and psychosocial rehabilitation, provided for all victims of torture (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.

The Committee reiterates its previous recommendation (CAT/C/LKA/CO/2, para. 16) that the State party should ensure that appropriate rehabilitation programmes are provided to all victims of torture and ill-treatment, including medical and psychological assistance.

Corporal punishment

(30)The Committee notes that, while corporal punishment is prohibited as a penal sentence under the Corporal Punishment (Repeal) Act No. 23 of 2005, it is not prohibited as a disciplinary measure in penal institutions for juvenile offenders, in the home or alternative care settings, under article 82 of the Penal Code. The Committee also notes with concern that, despite the issuance of Circular No. 2005/17, by the Ministry of Education in 2005, stating that corporal punishment should not be used in schools, there is no prohibition in law and its use is still widespread (arts. 10 and 16).

The State party should consider amending its Penal Code, with a view to prohibiting corporal punishment in all settings and raising public awareness.

Required documentation on compliance

(31)Despite its previous recommendation that the State party provide the Committee with detailed statistical information on a variety of basic criminal issues and other statistical matters (CAT/C/LKA/CO/2, para. 19), the Committee is concerned that this was not provided either in the State party’s periodic report, its reply to the list of issues or written supplementary materials. The absence of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions in cases of torture and ill-treatment by law enforcement officials, military and prison personnel, including enforced disappearances, rape and violence against women, and other forms of torture and ill-treatment, hampers the identification of abuse requiring attention and the effective implementation of the Convention (arts. 2 and 19).

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention at the national and local levels, disaggregated by gender, ethnicity, age, geographical region and type and location of place of deprivation of liberty, including data on complaints, investigations and prosecutions of cases of torture and ill-treatment by law enforcement officials, military and prison personnel, and on enforced disappearances, rape and violence against women.

(32)Noting the voluntary commitments made by the State party in the context of the universal periodic review of the Human Rights Council in May 2008 (A/HRC/8/46, paras. 90 and 108–110) the Committee recommends that the State party consider adopting the draft bill on witness and victim protection and the draft bill on the rights of internally displaced persons; improve and upgrade detention facilities; and, improve the capacity of police in carrying out investigations, with additional training in interrogation and prosecution.

(33)The Committee recommends that the State party consider ratifying the Optional Protocol to the Convention.

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

(35)The Committee invites the State party to consider ratifying the core United Nations human rights treaties to which it is not yet a party.

(36)The State party is encouraged to disseminate widely the reports submitted by Sri Lanka to the Committee and these concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations.

(37)The State party is invited to update its common core document (HRI/CORE/LKA/2008), in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6).

(38)The Committee requests the State party to provide, by 25 November 2012, follow-up information in response to the Committee’s recommendations related to (1) ensuring or strengthening legal safeguards for persons detained, (2) conducting, prompt, impartial and effective investigations, and (3) prosecuting suspects and sanctioning perpetrators of torture or ill-treatment, as contained in paragraphs 7, 11, 18 and 21 of the present document. In addition, the Committee requests follow-up information on remedies and redress to the victims addressed in those paragraphs.

(39)The State party is invited to submit its next report, which will be the fifth periodic report, by 25 November 2015. To that purpose, the Committee invites the State party to accept, by 25 November 2012, to report under its optional reporting procedure, consisting in the transmittal, by the Committee to the State party, of a list of issues prior to the submission of the periodic report. The State party’s response to this list of issues will constitute, under article 19 of the Convention, its next periodic report.

60. Albania

(1)The Committee against Torture considered the second periodic report of Albania (CAT/C/ALB/2), at its 1060th and 1063rd meetings (CAT/C/SR.1060 and 1063), held on 8 and 9 May 2012. At its 1084th meeting (CAT/C/SR.1084), held on 25 May 2012, it adopted the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the second periodic report by the State party although it was submitted after a delay of almost two years. The Committee notes that the State party’s report generally complied with the reporting guidelines, albeit it lacked specific data, disaggregated by sex, age and nationality, in particular about acts of torture and ill-treatment by law enforcement officials.

(3)The Committee appreciates the open and constructive dialogue with the State party’s inter-departmental delegation covering all areas under the Convention. The Committee also appreciates the submission by the State party of the detailed written replies to the list of issues that it provided in advance of the session to facilitate the consideration of its report.

B. Positive aspects

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

(a)International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, on 5 June 2007;

(b)Optional Protocol to the International Covenant on Civil and Political Rights, on 4 October 2007;

(c)Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, on 17 October 2007;

(d) International Convention for the Protection of All Persons from Enforced Disappearance, on 8 November 2007;

(e)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, on 5 February 2008;

(f) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, on 9 December 2008;

(g)Council of Europe Convention on Action against Trafficking in Human Beings, on 6 February 2007;

(h)Protocol No. 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances, on 6 February 2007.

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

(a)Law No. 9686 of 26 February 2007, amending the definition of torture in article 86 of the Criminal Code, that criminalizes acts falling under article 1 of the Convention, including when committed by persons acting in an official capacity, and adding aggravating circumstances in article 50 of the Criminal Code for the punishment of offences when motivated by factors such as gender, race or religion; and

(b)Law no. 9669 of 18 December 2006 ‘On measures against violence in family relations’ and law no. 10494 of 22 December 2011 ‘On electronic monitoring of persons deprived of liberty according to law court decisions’, aiming to prevent incidents of violence in the family.

(6)The Committee also welcomes:

(a)Assignment, by the Parliament of Albania in 2008, of the People’s Advocate as the National Preventive Mechanism against Torture under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

(b)The approval of a ‘Manual on the Treatment of Persons in Police Custody’, approved by the Director General of the State Police in December 2009;

(c)The adoption of the national Strategy on Gender Equality and Reduction of Violence on Gender Base and Violence in the Family, 2011 – 2015, through the Council of Ministers’ Decision no. 573 of 16 June 2011.

(7)The Committee notes the existence of an active civil society that significantly contributes to the monitoring of torture and ill-treatment, thereby facilitating the effective implementation of the Convention in the State party.

C. Principal subjects of concern and recommendations

Definition and criminalization of torture

(8)The Committee welcomes that the State party’s Criminal Code (art. 86) is in line with article 1 of the Convention. However, the Committee expresses serious concern at the fact that no information has been reported on the application of article 86 of the Criminal Code and the pattern of reclassifying reported incidents of torture as arbitrary acts under article 250 of the Criminal Code (arts. 1 and 4).

In accordance with the Committee’s general comment No. 2 (2007) on implementation of article 2 by States parties, the State party should ensure that evidence of acts considered as torture under article 86 of the Criminal Code is duly compiled and evaluated, refraining from reclassification of reported incidents of torture as arbitrary acts under article 250 of the Criminal Code. The State party should also clarify which of the incidents of ill-treatment by law enforcement officers reported in response to the list of issues and during the dialogue amount to torture and other cruel, inhuman or degrading treatment or punishment, as well as what measures are taken to ensure that prosecutors can apply article 86 of the Criminal Code.

Direct applicability

(9)While welcoming the direct applicability of the Convention, pursuant to article 112 of the Albanian Constitution, the Committee notes with concern that the State party acknowledged during the dialogue that it has no specific information on cases in which the Convention has been invoked and directly applied before the domestic courts (arts. 2 and 10).

The Committee recommends that the State party take steps to:

(a) Ensure the effective implementation of the Convention and its direct applicability and enforceability within the national legal framework, and disseminate the Convention to all relevant public authorities, including the judiciary, thus facilitating direct application of the Convention before domestic courts;

(b) Provide an update on illustrative cases of direct application of the Convention before domestic judicial bodies in its next periodic report.

People’s Advocate as National Preventive Mechanism

(10)The Committee is concerned at reports that the People’s Advocate, acting as National Preventive Mechanism, monitors the situation in detention – through the Unit for Prevention of Torture only once it receives allegations of abuse and with prior consent, thus limiting the protective aspects of its preventive visits (art. 2).

The Committee recommends that the State party ensure a regular and timely access by People’s Advocate to all places of detention without limiting its visits to on-site inquiry into allegations of abuse, and without prior consent to the visit by the respective authorities.

(11)The Committee is also concerned at the lack of professional staff, financial resources and methodological resources provided to the People’s Advocate, and reports alleging undue pressures regarding its functioning such as the absence of assignment of the People’s Advocate for more than two years, due to which the places of detention have been visited only irregularly, thus limiting the adequate fulfilment of the monitoring mandate by the People’s Advocate and diminishing the role and significance of the institution (arts. 2 and 12).

The Committee recommends that the State party provide the People’s Advocate with sufficient human, financial, technical and logistical resources to enable it to carry out its functions effectively and independently, in accordance with article 18, paragraph 3, of the Optional Protocol and guidelines Nos. 11 and 12 of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and to make sure that the institution operates free from undue pressures.

(12)While commending the People Advocate’s recommendations aimed at, inter alia, improving conditions of police detention cells, the Committee notes with concern the lack of dialogue and follow-up by the Parliament to the recommendations by the People’s Advocate as required by the law, as well as public awareness about its recommendations. The Committee also notes with concern the lack of the People Advocate’s mandate to promote human rights of detainees, access to the institution at the regional level, systematic interaction with the international human rights system and of the transparency of appointment processes to the governing bodies (arts. 2 and 12).

The Committee recommends that the State party:

(a) Take steps to improve dialogue and follow-up by the Parliament with a view to implementing the findings and recommendations by the People’s Advocate following the missions to the detention centres by its Unit for Prevention of Torture, as required by the law;

(b) Make public, using all appropriate means of communication, the steps taken by the State party to ensure effective implementation of the findings and recommendations adopted by the People’s Advocate and to increase public awareness thereof;

(c) Compile and regularly disseminate the best practices by the People’s Advocate and undertake relevant training thereon to its personnel;

(d) Strengthen the mandate of the People’s Advocate to include promotion of human rights in order to improve safeguards, living conditions and treatment of detainees, make it more accessible through the establishment of a permanent regional presence and improve its systematic interaction with the international human rights system and the transparency of appointment processes to the governing bodies.

Fundamental legal safeguards

(13)The Committee expresses its deep concern at reports that basic safeguards against ill-treatment during pretrial detention are still not applied systematically and effectively as detainees are not always fully informed of their fundamental rights from the outset of their deprivation of liberty, get deprived of timely access to a lawyer and a medical doctor and of the right to notify a family member or person of one’s choice of an arrest and current place of detention, and are not often brought before a judge within the constitutionally prescribed periods (arts. 2, 11 and 16).

The Committee recommends that the State party:

(a) Take measures to ensure that all persons detained by the police are fully informed of their fundamental rights as from the very outset of their deprivation of liberty, requiring the provision of an oral information on these rights at the very outset of detention, and supplemented by the provision of an information sheet at the earliest possibility, receipt of which should be attested by a signature of the detained person;

(b) Regularly train police officers on the legal obligation to grant access to a lawyer and a medical doctor from the very outset of a person’s deprivation of liberty and to provide for a notification of a detained person’s family member or person of one’s choice of an arrest and current place of detention;

(c) Ensure that all persons detained by the police are brought before a judge within the constitutionally prescribed periods.

Violence against women, domestic violence and violence against children

(14)While welcoming the Law no. 9669 of 18 December 2006 ‘On measures against violence in family relations’ prompting the establishment of appropriate police structures, protection mechanisms for victims of family violence and series of training activities, and noting the adoption of the national ‘Strategy on Gender Equality and Reduction of Violence on Gender Base and Violence in the Family’ on 16 June 2011, the Committee expresses concern about the absence of specific criminal offences punishing violence against women that would consider marital rape and domestic violence as specific penal offences. The Committee is also particularly concerned by the high incidence of violence against children in the family and schools, and the public acceptance of corporal punishment of children (arts. 2 and 16).

The Committee urges the State party to:

(a) Prepare and adopt, as a matter of priority, a comprehensive legislation on violence against women that would establish marital rape and domestic violence as specific penal offences;

(b) Adopt the new draft law against violence against children at schools, prohibit corporal punishment in all settings, including home and alternative care settings and hold the perpetrators of such acts accountable;

(c) Take measures at all levels of the government to ensure public awareness of the prohibition and harm of violence against children and women in all sectors.

Trafficking in persons

(15)The Committee notes the State party’s information about the legislative amendments to the Criminal Code to deal with trafficking in persons (articles 110/a, 114/b, and 128/b), activities of the National Coordinator against the Trafficking of Persons and the adoption of ‘Action Standard Procedures for Identification and Reference of Potential Victims of Trafficking’ of 27 July 2011. However, it expresses serious concern at the absence of data on the measures to prevent acts of trafficking and on prosecutions and types of sentences handed down for such acts (arts. 2, 3, 12, 13, 14 and 16).

The Committee urges the State party to:

(a) Continue to take effective measures to increase protection to the victims of trafficking in persons;

(b) Prevent and promptly, thoroughly and impartially investigate, prosecute and punish trafficking in persons and related practices;

(c) Provide means of redress to victims of trafficking, including assistance to victims in reporting incidents of trafficking to the police, in particular by providing legal, medical and psychological aid and rehabilitation including adequate shelters, in accordance with article 14 of the Convention;

(d) Prevent return of trafficked persons to their countries of origin where there is a substantial ground to believe that they would be in danger of torture, to ensure compliance with article 3 of the Convention;

(e) Provide regular training to the police, prosecutors and judges on effective prevention, investigation, prosecution and punishment of acts of trafficking, including on the guarantees of the right to be represented by an attorney of one’s own choice, and inform the general public of the criminal nature of such acts;

(f) Compile disaggregated data about the victims, prosecutions and types of sentences handed down for acts of trafficking, provision of redress to the victims and measures to prevent acts of trafficking as well as the difficulties experienced in preventing such acts.

Pretrial detention

(16)The Committee welcomes the adoption of the Law no. 10494 of 22 December 2011 “For electronic monitoring of persons of limited liberty under a law court decision” aiming to limit pretrial detention; however, it notes with concern that pretrial detention continues to be excessively applied. The Committee is particularly concerned about reports of high number of torture and ill-treatment during pretrial detention, the length of detention up to three years, as well as reports of court decision imposing pretrial detention often without justification. Furthermore, the Committee is also concerned at reports that persons who have been detained for long periods and whose rights have not been respected during pretrial detention face often difficulties in access to justice and seeking redress (arts. 2, 11 and 14).

The Committee urges the State party to:

(a) Amend the relevant criminal legislation with a view to imposing pretrial detention as a measure of last resort , in particular when the seriousness of the crime would make any other measure clearly inadequate;

(b) Devise alternative measures to pretrial detention and ensure their effective application by the judiciary;

(c) Adopt all necessary measures to reduce duration pretrial detention and the imposition thereof, and take into account the provisions of the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) when devising the measures alternative to preventive detention;

(d) Ensure adequate training for law enforcement and other personnel on the use of pretrial detention;

(e) Immediately investigate all acts of torture and ill-treatment in pretrial detention and provide their victims with access to justice and means of redress.

Administrative detention

(17)The Committee remains concerned at the continued application of the 10-hour administrative detention period for interrogation prior to the 48-hour period within which a suspect must be brought before a judge (arts. 2 and 16).

The Committee recommends that the State party abandon the current 10-hour administrative detention period for interrogation and ensure that the objectives of identification of suspects are met within the 48-hour period during which a suspect must be brought before a judge.

Non-refoulement

(18)The Committee notes with concern the lack of information with regard to grounds for expulsion and means of protection of individuals, considered as a security threat, in accordance with article 3 of the Convention (art. 3).

The Committee recommends that the State party strictly observe in all cases article 3 of the Convention requiring that the State party shall not expel, return or extradite a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.

Diplomatic assurances

(19)While noting the update on the situation, status and documentation of nine former Guantánamo inmates and their children, received by Albania, the Committee notes with concern the absence of information about the criteria for requesting and granting diplomatic assurances, including an indication if such assurances could serve to modify a conclusion of a risk of torture upon return to the country of origin (art. 3).

The Committee recommends that the State party refrain from seeking and accepting diplomatic assurances, both in the context of extradition and deportation, from the State where there are substantial grounds for believing that a person would be at risk of torture or ill-treatment upon return to the State concerned, and desist from returning a person to the country of origin where there is a risk of torture or ill-treatment.

Access to complaint mechanisms

(20)The Committee is concerned about the information that alleged victims of ill-treatment by the police are not aware of complaint procedures beyond reporting their complaints to the police, who in some cases refused to accept allegations of misconduct by the police. The Committee is further concerned at reported cases of ill-treatment of persons in a vulnerable situation who have declined to file a complaint against the police out of fear of counter-complaints by the police or other forms of reprisals (arts. 12, 13 and 16).

The Committee recommends that the State party take appropriate measures to ensure that:

(a) Information about the possibility and procedure for filing a complaint against the police is made available and widely publicized, including by being prominently displayed in all police stations of the State party;

(b) All allegations of misconduct by the police are duly assessed and investigated, including cases of intimidation or reprisals in particular against persons in vulnerable situation as a consequence of the complaints of ill-treatment by the police.

Prompt, independent and thorough investigations

(21)The Committee is concerned at the prevalence of limited data on the investigation of torture and ill-treatment and unlawful use of force by the police. The Committee is particularly concerned at the lack of effective investigation of torture and ill-treatment due to the involvement of the Ministry of Interior Affairs in investigation of alleged violations by its subsidiary units, in contravention of a principle of impartiality. The Committee is also concerned about the absence of information whether the investigations into the fatal shooting of three demonstrators by the police during anti-government protests in Tirana in January 2011 have been carried out promptly, independently and thoroughly. The Committee thus reiterates its concern at the absence of independent and effective investigations into the allegations of torture and ill-treatment by law enforcement officials and lack of accountability of the perpetrators. The Committee is further concerned about the lack of investigation into the reported incidents of ill-treatment of children in social care settings (arts. 12, 13 and 16).

The Committee recommends that the State party:

(a) Take all appropriate measures to ensure that all allegations of torture and ill-treatment by the police are investigated promptly and thoroughly by independent bodies, with no institutional or hierarchical connection between the investigators and the alleged perpetrators among the police, and prosecute those responsible and take all measures to ensure that impunity does not prevail, as recommended in the context of the universal periodic review of Albania;

(b) Provide the Committee as a matter of priority with information on the investigations into the fatal shooting of three demonstrators by the police during anti-government protests in Tirana in January 2011, to be carried out promptly, independently and thoroughly;

(c) Compile accurate data on the investigation of torture and ill-treatment and unlawful use of force by the police and update the Committee thereon;

(d) Ensure effective investigation into the reported incidents of ill-treatment of children in social care settings.

Secret detention

(22)The Committee notes with concern that no meaningful Government investigation has been undertaken into the allegations of secret detention carried out on the territory of the State party in the context of its cooperation in countering terrorism. The Committee is further concerned about the lack of information from the State party about the specific measures it has taken to implement the recommendations of the United Nations joint study on global practices in relation to secret detention in the context of countering terrorism (A/HRC/13/42) (arts. 2, 3 and 12).

The Committee urges the State party to:

(a) Provide information on measures to initiate Government’s investigation into alleged involvement of law enforcement officers of the State party in rendition and secret detention programmes;

(b) Make the outcomes of the investigations public;

(c) Take all necessary measures to prevent the future incidents of such nature;

(d) Take specific measures with a view to implementing the recommendations of the United Nations joint study on global practices in relation to secret detention in the context of countering terrorism (A/HRC/13/42).

Training of law enforcement personnel

(23)While noting the adoption of the Manual on the Treatment of Persons in Police Custody adopted in December 2009, the Committee remains concerned at reports that the staff of police stations has no knowledge of the Manual’s existence and its requirements. The Committee also expresses its concern at the lack of specific training to all professionals directly involved in the investigation and documentation of both physical and psychological traces of torture as well as medical and other personnel involved with detainees and asylum seekers on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). The Committee is additionally concerned at the lack of information about training programmes for judges on the Convention and the Committee’s general comment No. 2 (2007) (art. 10).

The Committee recommends that the State party ensure:

(a) Adequate training on the requirements of the Manual on the Treatment of Persons in Police Custody to all the police staff;

(b) That all law enforcement, medical and other personnel involved in the holding in custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment and the documentation and investigation of torture are provided, on a regular basis, with training on the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), requiring the identification of both physical and psychological consequences for victims of torture;

(c) That such training is also provided to personnel involved in asylum determination procedures;

(d) Effective training programmes for judges on the application of the Convention and the Committee’s general comment No. 2 (2007).

Missing Roma children

(24)The Committee is concerned about information that 502 out of 661 Albanian Roma street children went reportedly missing following their placement during 1998-2002 in Aghia Varvara children’s institution in Greece. The Committee is particularly concerned about the lack of effective efforts by the authorities of the State party to prompt effective investigations into cases of so called disappearance of Roma children by the relevant authorities of Greece (arts. 2, 11, 12 and 14).

The Committee urges the State party to immediately engage with the Greek authorities with a view to promptly creating an effective mechanism to investigate these cases in order to establish the whereabouts of the missing children, in cooperation with the Ombudsmen of both countries and relevant civil society organizations, and identify disciplinary and criminal responsibilities of those involved, before the charges may become time-barred.

Blood feuds

(25)While taking note of the State party’s information about the decline in incidents of revenge killing vindicating honour outside the regular legal system, the Committee expresses concern that this practice still remains entrenched in certain parts of the society, in particular due to the prevalence of deeply rooted stereotypes of defending and restoring family honour lost as a result of the initial murder.

Recalling the recommendations by the Human Rights Committee and the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Committee recommends that the State party take further measures, including research and awareness-raising campaigns, to extinguish a belief in the practice of vindicating honour outside the regular legal system and to investigate such crimes and prosecute and punish all perpetrators of such acts.

Identification of members of intervention groups in prisons

(26)The Committee is concerned at reports that members of special intervention groups in prison establishments are not obliged to wear identification badges showing their proper identification during the exercise of their functions (arts. 12, 13 and 14).

The Committee recommends that the State party ensure that members of special intervention groups display appropriate identification at all times when in contact with prisoners to prevent ill-treatment and provide for accountability.

Adequate compensation

(27)While noting that article 44 of the Constitution guarantees compensation to persons who have suffered damage due to illegal action or lack of action by State authorities or its employees, the Committee expresses its concern at reports that in practice many victims of torture or ill-treatment by the police officers or other public officials have to resort to filing a civil suit for compensation (art. 14).

The Committee urges the State party to take immediate legal and other measures to ensure that victims of torture and ill-treatment obtain redress and have an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible, in particular the former political prisoners and persecuted persons, and to collect data and share information in the next periodic report on instances and types of compensation and rehabilitation granted.

Data collection

(28)The Committee appreciates the State party’s compilation of statistics on crimes, including ill-treatment by the police and trafficking in human beings. It notes the data on complaints of ill-treatment by law enforcement officers, disaggregated by suspected crime. However, 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 honour crimes, domestic and sexual violence, enforced disappearances, and on means of redress, including compensation and rehabilitation provided to the victims (arts. 2, 12, 13 and 16).

The Committee recommends that the State party 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 by law enforcement, security, military and prison personnel, as well as on honour crimes, domestic and sexual violence, enforced disappearances, and on means of redress, including compensation and rehabilitation provided to the victims.

(29)The Committee recommends that the State party consider making the declarations envisaged under articles 21 and 22 of the Convention, in order to recognize the competence of the Committee to receive and consider inter-State and individual communications, as indicated by the delegation.

(30)The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet a party, namely the Convention on the Rights of Persons with Disabilities and its Optional Protocol and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

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

(32)The State party is invited to submit its common core document, in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6).

(33)The Committee requests the State party to provide, by 1 June 2013, follow-up information in response to the Committee’s recommendations related to (a) ensuring or strengthening legal safeguards for persons detained, and (b) conducting prompt, impartial and effective investigations, and prosecuting suspects and sanctioning perpetrators of torture or ill-treatment, as contained in paragraphs 13 and 21 of the present document. In addition, the Committee requests follow-up information on the provision of fair and adequate compensation to the victims as well as data collection, as contained in paragraphs 27 and 28 of the present document.

(34)The State party is invited to submit its next report, which will be the third periodic report, by 1 June 2016. To that purpose, the Committee invites the State party to accept, by 1 June 2013, to report under its optional reporting procedure, consisting in the transmittal, by the Committee to the State party, of a list of issues prior to the submission of its report. The State party’s response to this list of issues will constitute, under article 19 of the Convention, its next periodic report.

61. Armenia

(1)The Committee against Torture considered the third periodic report of Armenia (CAT/C/ARM/3), at its 1064th and 1067th meetings (CAT/C/SR.1064 and 1067), held on 10 and 11 May 2012. At its 1085th and 1086th meetings (CAT/C/SR.1085 and 1086), held on 28 and 29 May 2012, it adopted the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the third periodic report by the State party, which follows the general guidelines regarding the form and contents of periodic reports. Nonetheless, it regrets the State party’s delay of seven years in submitting the report.

(3)The Committee welcomes the opportunity to examine compliance with the Convention with a high-level delegation from the State party. It appreciates the State party’s extensive written replies to the list of issues (CAT/C/ARM/Q/3 and Add.1) and the additional information provided orally and in writing by the delegation.

B. Positive aspects

(4)The Committee welcomes the ratification by the State party of a number of international and regional instruments, including:

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

(b)International Convention for the Protection of All Persons from Enforced Disappearance, in January 2011;

(c)Convention on the Rights of Persons with Disabilities, in September 2010;

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

(e)Optional Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict, in September 2005, and on the sale of children, child prostitution and child pornography, in June 2005.

(f)Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of death penalty, in September 2003.

(5)The Committee welcomes the legislative measures taken during the period under review, including:

(a)The adoption in 2008 of a law designating the Human Rights Defender as the national preventive mechanism provided for in the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

(b)The enactment in March 2002 of the Law on the Custody of Arrestees and Remand Prisoners;

(c)The adoption in December 2004 of the Penitentiary Code.

(6)The Committee further welcomes:

(a)The establishment in 2006 of public monitoring groups comprising governmental and non-governmental members;

(b)The standing invitation extended to United Nations special procedures in April 2006, and the visit by the Working Group on Arbitrary Detention in 2010.

(7)The Committee welcomes the oral statement by the delegation that the State party will consider making the declaration envisaged under article 22 of the Convention, in order to recognize the competence of the Committee to receive and consider individual communications.

C. Principal subjects of concern and recommendations

Allegations of torture and ill-treatment in police custody

(8)The Committee is seriously concerned by numerous and consistent allegations, corroborated by various sources, of routine use of torture and ill-treatment of suspects in police custody, especially to extract confessions to be used in criminal proceedings (arts. 2, 4, 12 and 16).

As a matter of urgency, the State party should take immediate and effective steps to prevent acts of torture and ill-treatment throughout the country. The Committee urges the State party to promptly, thoroughly and impartially investigate all incidents of torture, ill-treatment and death in custody; prosecute those responsible; and report publicly on the outcomes of such prosecutions. In addition, the State party should unambiguously reaffirm the absolute prohibition of torture and publicly warn that anyone committing such acts or otherwise complicit or acquiescent in torture will be held personally responsible before the law for such acts and will be subject to criminal prosecution and appropriate penalties.

Hazing and ill-treatment in the armed forces

(9)The Committee remains concerned by allegations that suspicious deaths continue to occur in the Armenian Armed Forces under non-combat conditions and that the practice of hazing and other mistreatment of conscripts by officers and fellow soldiers continues, conducted by or with the consent, acquiescence or approval of officers or other personnel. While noting the information provided by the delegation, the Committee remains concerned about reports that investigations carried out into many such incidents have been inadequate or absent, including the investigations into the deaths of Vardan Sevian, Artak Nazerian, and Artur Hakobian. The Committee is further concerned at the reported absence of effective investigations into allegations of abuse, such as those made against Vardan Martirosian, and the inadequate punishments of those convicted for the abuses (arts. 2, 4, 12, 13 and 16).

The State party should reinforce measures to prohibit and eliminate hazing in the armed forces and ensure prompt, impartial and thorough investigation of all allegations of hazing and non-combat deaths in the military. Where evidence of hazing is found, the State party should ensure prosecution of all incidents and appropriate punishment of the perpetrators, make the results of those investigations public, and provide compensation and rehabilitation for victims, including through appropriate medical and psychological assistance.

Definition, absolute prohibition and criminalization of torture

(10)The Committee is concerned that national legislation criminalizing “torture” (article 119 of the Criminal Code) does not conform to the definition of torture in accordance with article 1 of the Convention, and that torture, as presently defined by the State party, does not include crimes committed by public officials, only by individuals acting in a private capacity, with the result that no public official has ever been convicted of torture by the State party. It is also concerned by reports that officials have closed cases of allegations of torture on the basis of reconciliation of the defendant with the victim. It is further concerned that current sanctions (a minimum of three years’ imprisonment, and up to seven years’ imprisonment with aggravating circumstances) do not reflect the gravity of the crime. Finally, it is concerned that several individuals convicted of torture or ill-treatment under other articles of the Criminal Code have been granted amnesty (arts. 1 and 4).

While appreciating the delegation’s oral statement that it intends to amend the Criminal Code, the Committee recommends that the State party ensure that the definition of torture is in full conformity with articles 1 and 4 of the Convention. The State party should also ensure that all public officials who engage in conduct that constitutes torture or ill-treatment are charged accordingly, and that the penalty for this crime reflects the gravity of the act of torture, as required by article 4 of the Convention. The State party should further ensure that persons convicted of torture or other acts amounting thereto under the Criminal Code are not subject to any statute of limitations, and that the authorities are obligated to investigate and punish persons for such acts regardless of assertions of reconciliation between the defendant(s) and the victim(s).

Fundamental legal safeguards

(11)Notwithstanding the safeguards provided by law, in Government Decision No. 574-N of June 2008 and Chief of Police instruction 12-C of April 2010, and by the Court of Cassation in its December 2009 decision in the case of G. Mikaelyan, the Committee expresses its serious concern about reports received regarding the State party’s failure in practice to afford all detainees all fundamental safeguards from the very outset of their de facto deprivation of liberty, including timely access to a lawyer and a medical doctor and the right to contact family members. The Committee is concerned by reports that police officials do not keep accurate records of all periods of deprivation of liberty; do not afford fundamental safeguards to individuals in detention, particularly persons deprived of their liberty for whom a protocol of detention has not been drawn up; do not effectively notify detainees of their rights at the time of detention; do not adhere to the three-day time limit for transferring people deprived of their liberty from a police station to a detention facility; and do not promptly bring detainees before a judge. The Committee also notes that the number of public defenders in the State party remains insufficient (art. 2).

In the context of the current legislation reform, including the amendment of the Criminal Procedure Code, the State party should take prompt and effective measures to ensure, in law and in practice, that all detainees are afforded all legal safeguards from the very outset of their deprivation of liberty. These include the rights to access to a lawyer, to an independent medical examination, to notify a relative, to be informed of their rights, and to be brought promptly before a judge.

The State party should take measures to ensure audio- or videotaping of all interrogations in police stations and detention facilities as a further preventive measure. The Committee encourages the State party to implement as soon as possible its plan to require police to create an electronic protocol of detention immediately upon the de facto deprivation of liberty of persons in police stations. The State party should ensure access to these records by lawyers and relatives of those detained.

The State party should increase the funding provided to the Public Defender’s Office of the Chamber of Advocates to ensure the availability of effective legal aid.

Investigations and impunity

(12)The Committee is deeply concerned that allegations of torture and/or ill-treatment committed by law enforcement officials and military personnel are not promptly, impartially or effectively investigated and prosecuted. The Committee is particularly concerned by reports that the Office of the Prosecutor directs the police to investigate some claims of torture and ill-treatment allegedly perpetrated by police officers, rather than assign these complaints to an independent investigation service. In this regard, it is concerned that the Office of the Prosecutor does not regularly ensure that different prosecutors supervise the investigation of a crime and allegations of torture made against police officials by the suspected perpetrator of that crime. The Committee is also concerned that the Special Investigation Service has been unable to gather sufficient evidence to identify the perpetrators in a number of cases in which torture or ill-treatment by officials was alleged, leading to concerns regarding its effectiveness. The Committee is further concerned by reports that officials alleged to have committed torture or ill-treatment are not immediately suspended from their duties or transferred as appropriate for the duration of the investigation, particularly if there is a risk that they may otherwise be in a position to repeat the alleged act or to obstruct the investigation (arts. 2, 11, 12, 13 and 16).

The State party should:

(a) Take concrete steps to ensure prompt, thorough and impartial investigations into allegations of torture and ill-treatment by law enforcement officials and military personnel leading to the prosecution and punishment of those responsible with penalties that are consistent with the gravity of the act committed;

(b) Ensure that all investigations into crimes involving public officials are undertaken by an independent and effective body;

(c) Ensure that all officials alleged to be responsible for violations of the Convention are suspended from their duties while any investigation into the allegations is in progress.

The Committee urges the State party to provide information on the number of complaints filed against public officials alleging acts that constitute torture or ill-treatment under the Convention, as well as information on the results of investigations into those complaints and any proceedings undertaken, at both the penal and disciplinary levels. This information should describe each relevant allegation and indicate the authority that undertook the investigation.

Deaths in custody

(13)The Committee is concerned at reports from the State party and non-governmental organizations on deaths in custody, including the deaths in police custody of Vahan Khalafyan and Levon Gulyan (arts. 2, 11, 12 and 16).

The Committee urges the State party to investigate promptly, impartially and effectively all deaths of detainees, assessing any liability of public officials, and to ensure punishment of the perpetrators and compensation to the families of the victims. The Committee requests that the State party provide comprehensive updated information on all reported cases of deaths in custody, including location, cause of death and the results of any investigations conducted into such deaths, including punishment of perpetrators or compensation to relatives of victims.

Complaints, reprisals and protection of victims, witnesses and human rights defenders

(14)The Committee notes with concern reports that victims of and witnesses to torture and ill-treatment do not file complaints with the authorities because they fear retaliation. It also notes reports that human rights defenders, as well as journalists, have experienced threats and intimidation as a result of their work, and that the State party has taken few steps to ensure their protection (arts. 2, 11, 12, 13, 15 and 16).

The Committee urges the State party to establish an effective mechanism to facilitate the submission of complaints by victims and witnesses of torture and ill-treatment to public authorities, and to ensure in practice that complainants are protected against any ill-treatment, intimidation or reprisals as a consequence of their complaint. The State party should take all necessary steps to ensure that human rights defenders, as well as journalists, are protected from any intimidation or violence.

Redress, including compensation and rehabilitation

(15)While noting that the State party has paid compensation to victims further to the European Court of Human Rights ruling of July 2011, the Committee regrets the lack of data provided by the State party regarding the amount of any compensation awards made by the courts to victims of violations of the Convention, including individuals who were denied fundamental safeguards or subjected to torture or ill-treatment in detention. The Committee is concerned that the law does not provide means of reparation for victims of torture other than financial compensation. The Committee also notes the lack of information on any treatment and social rehabilitation services, 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. The State party should amend its legislation to include explicit provisions on the right of torture victims to redress, including fair and adequate compensation and rehabilitation for damages caused by torture, in accordance with article 14 of the Convention. It should provide the Committee with information about measures taken in this regard, including allocation of resources for the effective functioning of rehabilitation programmes.

Coerced confessions

(16)The Committee is concerned by allegations that forced confessions are used as evidence in courts in the State party. The Committee is further concerned by reports that courts have failed to stay criminal proceedings in which the defendant has alleged that a confession was obtained through torture, and to request thorough investigations. The Committee is further concerned about the lack of information provided regarding cases in which the State party’s courts deemed confessions to be inadmissible as evidence on the grounds that they were obtained through torture (art. 2, 11, 15 and 16).

The Committee urges the State party to ensure that, in practice, statements obtained by torture are not invoked as evidence in any proceedings. The State party should ensure that, in any case in which a person alleges that a confession was obtained through torture, the proceedings are suspended until the claim has been thoroughly investigated. The Committee urges the State party to review cases of convictions based solely on confessions.

The Committee urges the State party to firmly combat any use of torture to extract confessions, and ensure that in practice confessions obtained through torture are never used as evidence in judicial proceedings. The State party should ensure that legislation concerning evidence to be adduced in judicial proceedings is brought in line with article 15 of the Convention and provide information on whether any officials have been prosecuted and punished for extracting such confessions.

Independence of the judiciary

(17)The Committee is concerned by reports of the lack of independence of the judiciary, in particular by the fact that responsibility for appointing, promoting and dismissing judges rests with the President and executive branch. The Committee is further concerned that the State party’s legislation provides for criminal liability against judges for adopting an unjust judgment or other judicial act (arts. 2, 12 and 13).

The State party should take measures to ensure the full independence and impartiality of the judiciary in the performance of its functions, and review the regime of appointment, promotion and dismissal of judges in line with the relevant international standards, including the Basic Principles on the Independence of the Judiciary, which provides, in part, that judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

Violence against women, including trafficking

(18)The Committee is concerned by the reported extent of physical and sexual violence against women. Furthermore, it is concerned that women rarely report ill-treatment and violence against them to the police. The Committee is particularly concerned by reports that there are no State-funded shelters available for women victims of domestic violence, which is not criminalized in the State party. The Committee regrets that the State party did not provide information on reparation and compensation, including rehabilitation, provided for victims of violence against women. While noting favourably that various national action plans for combating trafficking in human beings have been adopted during the period under consideration, the Committee is concerned by reports that Armenia remains both a source and destination country for women and girls subjected to trafficking (arts. 2, 12, 13 and 16).

The State party should strengthen its efforts to prevent, combat and punish violence against women and children, in particular domestic violence, inter alia, by amending its criminal legislation to make domestic violence a separate crime, conducting awareness-raising campaigns and training on domestic violence for law enforcement personnel and for the public at large, and providing victims of violence with immediate protection and redress, in particular rehabilitation.

It should also create adequate conditions for victims of violence against women, including domestic violence and trafficking, to exercise their right to make complaints. It should thoroughly investigate all allegations of domestic violence and trafficking, and prosecute and punish all perpetrators.

The Committee recommends that State party ensure the implementation of the 2008 National Referral Mechanism for Trafficked Persons and provide services for victims of trafficking, including those relating to provision of shelter, access to professional medical and psychological assistance, and training programmes.

Conditions of detention

(19)While welcoming current efforts by the State party to improve conditions of detention in prisons, including the refurbishing of some facilities and work on the construction of a new prison, the Committee remains concerned at continued reports of severe overcrowding, understaffing and inadequate food and health care. The Committee is concerned by allegations of corruption in prison, including among groups of prisoners in whose behaviour prison officials appear to acquiesce. It is also concerned by reports that some victims of violence or discrimination are singled out by such groups of prisoners for abusive treatment based on perceived sexual orientation or nationality. The Committee regrets that there has not been a significant increase in the implementation of alternative measures to detention by the courts, and also regrets the lack of a confidential mechanism for detainees to make complaints of torture or ill-treatment. The Committee notes the establishment of public monitoring groups, consisting of representatives of non-governmental organizations, mandated to carry out monitoring of penitentiary institutions and police stations. However, the Committee is concerned that the Police Monitoring Group is not granted full access to police stations (arts. 2, 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. The Committee recommends that the State party increase its efforts to remedy prison overcrowding, including through the application of alternative measures to imprisonment in line with the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) and to provide the Committee with information on any probation service to be established in charge of alternative punishment, conditional release and rehabilitation.

The State party should take necessary measures to eliminate any form of violence or discrimination against detainees based on sexual orientation or nationality, including all abusive and discriminatory actions taken by prison inmates against other detainees. It should establish a confidential system for receiving and processing complaints regarding torture or ill-treatment and ensure that the system is established in all places of deprivation of liberty. The State party should further ensure that all complaints received are promptly, impartially and effectively investigated, and the perpetrators punished with appropriate penalties.

The State party should ensure that the Police Monitoring Group has access to all police stations, including the ability to conduct unannounced visits. It should also take effective measures to keep under systematic review all places of detention, including the existing and available health services therein, and should take measures to eliminate corruption in prisons.

Post-electoral violence

(20)The Committee notes with concern that despite efforts made by the State party to investigate allegations of the use of excessive and indiscriminate force by police in responding to clashes between police and protesters following the February 2008 elections, the investigation by the Special Investigation Service into the 10 deaths that occurred during the clashes remains ongoing. The Committee is also concerned about persistent allegations that in the immediate aftermath of the violence, many individuals were arbitrarily detained, denied the right to access to a lawyer of their choice, and subjected to ill-treatment in custody, and that these allegations have not been adequately investigated (arts. 2, 12, 13 and 16).

The State party should expedite the investigation into the 10 deaths resulting from the violence following the February 2008 elections and ensure that any law enforcement official found to have used excessive or indiscriminate force is prosecuted and punished with sentences appropriate to the gravity of the crime, and that the families of victims are provided with redress, including compensation. The State party should also ensure that broader allegations of excessive and indiscriminate use of force, ill-treatment and denial of safeguards by the police in the aftermath of these elections are independently and effectively investigated. The State party should take measures to ensure that individuals believed to have knowledge of the March 2008 events are effectively protected from reprisals and intimidation.

Juvenile justice

(21)The Committee regrets the absence of juvenile justice, including juvenile courts. The Committee notes the establishment of a public monitoring group, consisting of representatives of non-governmental organizations, mandated to carry out monitoring of special boarding schools. However, the Committee is concerned about the reported practice of holding juvenile detainees in solitary confinement for up to 10 days as a disciplinary sanction at such special schools (arts. 11, 12 and 16).

The Committee encourages the State party to establish a juvenile justice system, and particularly to establish a specialized juvenile division or jurisdiction with judges with professional competence to deal with juvenile cases and other judicial staff, and ensure its proper functioning in compliance with international standards. The State party should closely monitor the situation of special schools to ensure that children are not subjected to intimidation, ill-treatment or violence. 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 a possibility of judicial review. Solitary confinement of juveniles should be limited to very exceptional cases.

Effectiveness of the Human Rights Defender

(22)The Committee is concerned by the lack of adequate resources for the Human Rights Defender (ombudsman), who has been designated the national preventive mechanism of Armenia, to carry out his mandate effectively. It is also concerned that some recommendations made by the Human Rights Defender to the authorities are not implemented (arts. 2 and 12).

The Committee recommends that the State party provide the resources necessary for the Office of the Human Rights Defender to carry out its double mandate as the ombudsman and national preventive mechanism of Armenia in an effective manner in accordance with the guidelines on national preventive mechanisms established by the Subcommittee on Prevention of Torture. The State party should ensure that law enforcement, prosecutorial, military and prison personnel cooperate with the Human Rights Defender and take steps to implement his recommendations.

Alternative service

(23)While taking note of the draft law to amend and supplement the law on alternative military service, the Committee remains concerned by the State party’s acknowledgement that it continues to hold many individuals in detention for evading military service, some of whom are reportedly conscientious objectors who objected to the alternative service on grounds that it is supervised exclusively by military personnel (art. 16).

The Committee recommends that the State party adopt the draft law on alternative military service and that it review the detention of all individuals imprisoned for refusing to perform the alternative service on religious grounds.

Non-refoulement

(24)The Committee regrets the lack of information regarding safeguards against torture in extradition and expulsion. Furthermore, it is concerned about the lack of information on any diplomatic assurances secured by the State party in its return of applicants for asylum to neighbouring countries and in the implementation of the reported extradition agreement between the National Police of Armenia and the Police of the Russian Federation, and data concerning the number of people extradited pursuant to that agreement. The Committee is concerned by reports that the State party issued extradition warrants without allowing those concerned to exercise their right to appeal in accordance with article 479, paragraph 2, of the Criminal Procedure Code and without complying with the normal procedures for extradition (art. 3).

The State party should refrain from seeking and accepting diplomatic assurances from a State where there are substantial grounds for believing that a person would be at risk of being subjected to torture. The State party should provide detailed information to the Committee on all cases where such assurances have been provided.

The Committee also recommends that the State party respect its non-refoulement obligations under article 3 of the Convention, including the right to appeal the issuance of an extradition warrant, as provided for in article 479, paragraph 2 of the Criminal Procedure Code.

Training

(25)The Committee welcomes the organization of human rights training programmes for law enforcement and military officials during the period under consideration. However, the Committee regrets the lack of information on monitoring and evaluation of the impact of these training programmes in reducing incidents of torture and ill-treatment. The Committee also regrets the lack of information on 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) in such training programmes (art. 10).

The State party should strengthen training programmes for law enforcement officials, military personnel and prison staff on the requirements of the Convention and assess the impact of such training programmes. The State party should ensure that relevant officials receive training on the use of the Istanbul Protocol to identify signs of torture and ill-treatment.

(26)The Committee invites the State party to consider ratifying the other 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 Convention on the Rights of Persons with Disabilities and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

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

(28)The State party is invited to update its common core document (HRI/CORE/1/Add.57), in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6).

(29)The Committee requests the State party to provide, by 1 June 2013, follow-up information in response to the Committee’s recommendations relating to: (a) conducting prompt, impartial and effective investigations; (b) ensuring or strengthening legal safeguards for persons detained; and (c) prosecuting suspects and sanctioning perpetrators of torture or ill-treatment, as contained in paragraphs 8, 11 and 12 of the present document.

(30)The State party is invited to submit its next report, which will be the fourth periodic report, by 1 June 2016. To that purpose, the Committee invites the State party to accept, by 1 June 2013, to report under its optional reporting procedure, consisting in the transmittal, by the Committee to the State party, of a list of issues prior to the submission of the periodic report. The State party’s response to this list of issues will constitute, under article 19 of the Convention, its next periodic report.

62. Canada

(1)The Committee against Torture considered the sixth periodic report of Canada (CAT/C/CAN/6) at its 1076th and 1079th meetings, held on 21 and 22 May 2012 (CAT/C/SR.1076 and 1079), and adopted the following concluding observations at its 1087th and 1088th meetings (CAT/C/SR.1087 and 1088).

A. Introduction

(2)The Committee welcomes the submission of the sixth periodic report by the State party, which broadly comply with the guidelines on the form and content of periodic reports, but regrets that it was submitted three years late.

(3)The Committee welcomes the open dialogue with the interministerial delegation of the State party and its efforts to provide comprehensive responses to issues raised by Committee members during the dialogue. The Committee further commends the State party for the detailed written replies to the list of issues, which was however submitted three months late, just before the dialogue. Such delay prevented the Committee from conducting a careful analysis of the information provided by the State party.

(4)The Committee is aware that the State party has a federal structure, but recalls that Canada is a single State under international law and has the obligation to implement the Convention in full at the domestic level.

B. Positive aspects

(5)The Committee notes the ongoing efforts by the State party to reform its legislation, policies and procedures in areas of relevance to the Convention, including:

(a)The establishment of the Refugee Appeal Division within the independent Immigration and Refugee Board by the 2011 Balanced Refugee Reform Act;

(b)The establishment of the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin (Iacobucci Inquiry), in December 2006;

(c)The establishment of the Ipperwash Priorities and Action Committee by the Ontario Government in 2007 to work on the implementation of the Ipperwash Inquiry Report recommendations;

(d)The establishment of the Provincial Partnership Committee on Missing Persons in Saskatchewan in January 2006; and

(e)The Braidwood Inquiry, initiated by the province of British Columbia in 2008 to examine the case of Robert Dziekanski.

(6)The Committee notes with satisfaction the official apology and compensation provided to Maher Arar and his family soon after the release of a report by the Commission of Inquiry into the Actions of Canadian Officials in relation to Maher Arar.

(7)The Committee notes with satisfaction the official apology by Royal Canadian Mounted Police to the mother of Robert Dziekanski for the loss of her son.

C. Principal subjects of concern and recommendations

Incorporation of the Convention in the domestic legal order

(8)While welcoming the statement made by the delegation that all levels of Canadian governments take seriously their obligations under the Convention, the Committee regrets that Canada has not incorporated all provisions of the Convention into domestic law and that those provisions cannot be argued independently as the basis for a legal claim in courts other than through domestic legal instruments. The Committee is of the view that the incorporation of the Convention into Canadian law would not only be of a symbolic nature but that it would strengthen the protection of persons allowing them to invoke the provisions of the Convention directly before the courts (art. 2).

The Committee recommends that the State party incorporate all the provisions of the Convention into Canadian law in order to allow persons to invoke it directly in courts, give prominence to the Convention and raise awareness of its provisions among members of the judiciary and the public at large. In particular, the State party should take all necessary steps to ensure that provisions of the Convention that give rise to extraterritorial jurisdiction can be directly applied before domestic courts.

Non-refoulement

(9)The Committee notes the State party’s information that the law allowing deportation despite a risk of torture is merely theoretical. However, the fact remains that it is the law in force at present. Therefore, the Committee remains seriously concerned that (art. 3):

(a)Canadian law, including subsection 115(2) of the Immigration and Refugee Protection Act, continues to provide legislative exceptions to the principle of non-refoulement;

(b)The State party continues to engage in deportation, extradition or other removals, in practice, often using security certificates under the Immigration and Refugee Protection Act and occasionally resorting to diplomatic assurances, which could result in violations of the principle of non-refoulement; and

(c)Insufficient information is provided in relation to investigations into all allegations of violation of article 3 of the Convention, remedies provided to victims and measures taken to guarantee effective post-return monitoring arrangements.

Recalling its previous recommendation (CAT/C/CR/34/CAN, paras. 5 (a) and (b)), the Committee urges the State party to amend relevant laws, including the Immigration and Refugee Protection Act, with a view to unconditionally respecting the absolute principle of non-refoulement in accordance with article 3 of the Convention, and take all necessary measures to fully implement it in practice in all circumstances. Furthermore, the State party should refrain from the use of diplomatic assurances as a means of returning a person to another country where there are substantial grounds for believing that he would be in danger of being subjected to torture.

(10)The Committee regrets the State party’s failure to comply in every instance with the Committee’s decisions under article 22 of the Convention and requests for interim measures of protection, particularly in cases involving deportation and extradition (with reference to communications Nos. 258/2004, Dadar v. Canada, and 297/2006, Sogi v. Canada), might undermine its commitment to the Convention. The Committee recalls that the State party, by ratifying the Convention and voluntarily accepting the Committee’s competence under article 22, undertook to cooperate with the Committee in good faith in applying and giving full effect to the procedure of individual complaints established thereunder. Consequently, the Committee considers that, by deporting complainants despite the Committee’s decisions or requests for interim measures, the State party has committed a breach of its obligations under articles 3 and 22 of the Convention (arts. 3 and 22).

The State party should fully cooperate with the Committee, in particular by respecting in every instance its decisions and requests for interim measures. The Committee recommends the State party 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.

(11)While noting the State party’s statement that the Canadian Forces assessed the risk of torture or ill-treatment before transferring a detainee into Afghan custody (CAT/C/CAN/Q/6/Add.1, para. 155), the Committee is concerned about several reports that some prisoners transferred by Canadian Forces in Afghanistan into the custody of other countries have experienced torture and ill-treatment (art. 3).

The State party should adopt a policy for future military operations that clearly prohibits the prisoner transfers to another country when there are substantial grounds for believing that he or she would be in danger of being subjected to torture and recognizes that diplomatic assurances and monitoring arrangements will not be relied upon to justify transfers when such substantial risk of torture exists.

Security certificates under the Immigration and Refugee Protection Act

(12)While taking note of the system of special advocates introduced by the amended Immigration and Refugee Protection Act in response to concerns raised by different actors and the judgement by the Supreme Court in the case of Charkaoui v. Canada, the Committee remains concerned that (arts. 2, 3, 15 and 16):

(a)Special advocates have very limited ability to conduct cross-examinations or to seek evidence independently;

(b)Individuals subject to security certificates have access to a summary of confidential materials concerning them and cannot directly discuss full content with the special advocates. Accordingly, the advocates cannot properly know the case against them or make full answer or defence in violation of the fundamental principles of justice and due process;

(c)The length of this detention without charge is indeterminate and some individuals are detained for prolonged periods; and

(d)Information obtained by torture has been reportedly used to form the basis of security certificates, as evidenced by the case of Hassan Almrei.

The Committee recommends that the State party reconsider its policy of using administrative detention and immigration legislation to detain and remove non-citizens on the ground of national security, inter alia, by extensively reviewing the use of the security certificates and ensuring the prohibition of the use of information obtained by torture, in line with relevant domestic and international law. In that regard, the State party should implement the outstanding recommendations made by the Working Group on Arbitrary Detention following its mission to Canada in 2005, in particular that detention of terrorism suspects be imposed in the framework of criminal procedure and in accordance with the corresponding safeguards enshrined in the relevant international law (E/CN.4/2006/7/Add.2, para. 92).

Immigration detention

(13)While noting the State party’s need for a legal reform to combat human smuggling, the Committee is deeply concerned about Bill C-31 (the Protecting Canada’s Immigration System Act), given that, with its excessive Ministerial discretion, this Act would (arts. 2, 3, 11 and 16):

(a)Introduce mandatory detention for individuals who enter irregularly the State party’s territory; and

(b)Exclude “irregular arrivals” and individuals who are nationals of designated “safe” countries from having an appeal hearing of a rejected refugee claim. This increases the risk that those individuals will be subject to refoulement.

The Committee recommends the State party to modify Bill C-31, in particular its provisions regulating mandatory detention and denial of appeal rights, given the potential violation of rights protected by the Convention. Furthermore, the State party should ensure that:

(a) Detention is used as a measure of last resort, a reasonable time limit for detention is set, and non-custodial measures and alternatives to detention are made available to persons in immigration detention; and

(b) All refugee claimants are provided with access to a full appeal hearing before the Refugee Appeal Division.

Universal jurisdiction

(14)The Committee notes with interest that any person present in the State party’s territory who is suspected of having committed acts of torture may be prosecuted and tried in the State party under the Criminal Code and the Crimes against Humanity and War Crimes Act. However, the very low number of prosecutions for war crimes and crimes against humanity, including torture offences, under the aforementioned laws raises issues with respect to the State party’s policy in exercising universal jurisdiction. The Committee is also concerned about numerous and continuous reports that the State party’s policy of resorting to immigration processes to remove or expel perpetrators from its territory rather than subjecting them to the criminal process creates actual or potential loopholes for impunity. According to reports before the Committee, a number of individuals who are allegedly responsible for torture and other crimes under international law have been expelled and not faced justice in their countries of origin. In that regard, the Committee notes with regret the recent initiative to publicize the names and faces of 30 individuals living in Canada who had been found inadmissible to Canada on grounds they may have been responsible for war crimes or crimes against humanity. If they are apprehended and deported, they may escape justice and remain unpunished (arts. 5, 7 and 8).

The Committee recommends that the State party take all necessary measures with a view to ensuring the exercise of the universal jurisdiction over persons responsible for acts of torture, including foreign perpetrators who are temporarily present in Canada , in accordance with article 5 of the Convention. The State party should enhance its efforts, including through increased resources, to ensure that the “no safe haven” policy prioritizes criminal or extradition proceedings over deportation and removal under immigration processes.

Civil redress and state immunity

(15)The Committee remains concerned at the lack of effective measures to provide redress, including compensation, through civil jurisdiction to all victims of torture, mainly due to the restrictions under provisions of the State Immunity Act (art. 14).

The State party should ensure that all victims of torture are able to access remedy and obtain redress, wherever acts of torture occurred and regardless of the nationality of the perpetrator or victim. In this regard, it should consider amending the State Immunity Act to remove obstacles to redress for all victims of torture.

Torture and ill-treatment of Canadians detained abroad

(16)The Committee is seriously concerned at the apparent reluctance on part of the State party to protect rights of all Canadians detained in other countries, by comparison with the case of Maher Arar. The Committee is in particular concerned at (arts. 2, 5, 11 and 14):

(a)The State party’s refusal to offer an official apology and compensation to the three Canadians despite the findings of the Iacobucci Inquiry. Their cases are similar to the case of Arar, in the sense that all of them were subjected to torture abroad and the Canadian officials were complicit in the violation of their rights;

(b)Canadian officials’ complicity in the human rights violation of Omar Khadr while detained at Guantánamo Bay (Canada (Prime Minister) v. Khadr, 2010 SCC 3; and Canada (Justice) v. Khadr, 2008 SCC 28) and the delay in approving his request to be transferred to serve the balance of his sentence in Canada.

In the light of the findings of the Iacobucci Inquiry, the Committee recommends that the State party take immediate steps to ensure that Abdullah Almalki, Ahmad Abou Elmaati and Muayyed Nureddin receive redress, including adequate compensation and rehabilitation. Furthermore, the Committee urges the State party to promptly approve Omar Khadr’s transfer application and ensure that he receives appropriate redress for human rights violations that the Canadian Supreme Court has ruled he experienced.

Intelligence information obtained by torture

(17)While taking note of the State party’s national security priorities, the Committee expresses its serious concern about the Ministerial Direction to the Canadian Security Intelligence Service (CSIS), which could result in violations of article 15 of the Convention in the sense that it allows intelligence information that may have been derived through mistreatment by foreign States to be used within Canada; and allows CSIS to share information with foreign agencies even when doing so poses a serious risk of torture, in exceptional cases involving threats to public safety, in contravention to recommendation 14 from the Arar Inquiry (arts. 2, 10, 15 and 16).

The Committee recommends that the State party modify the Ministerial Direction to CSIS to bring it in line with Canada ’s obligations under the Convention. The State party should strengthen its provision of training on the absolute prohibition of torture in the context of the activities of intelligence services.

Oversight mechanism over security and intelligence operations

(18)The Committee is concerned about the lack of information on measures taken by the State party to implement proposals made in the Policy Report from the Arar Inquiry for a model of comprehensive review and oversight of law enforcement and security agencies involved in national security activities (arts. 2, 12, 13 and 16).

The Committee recommends that the State party:

(a) Examine options for modernizing and strengthening national security review framework in a more timely and transparent manner;

(b) Consider urgently implementing the model for oversight of agencies involved in national security agencies, proposed by the Arar Inquiry; and

(c) Inform the Committee of changes made with regard to oversight mechanism over security and intelligence operations in the next periodic report.

Detention conditions

(19)While noting a Transformation Agenda launched by the Correctional Service of Canada with a view to improving its operations, the Committee remains concerned at (arts. 2, 11 and 16):

(a)The inadequate infrastructure of detention facilities to deal with the rising and complex needs of prisoners, in particular those with mental illness;

(b)Incidents of inter-prisoner violence and in-custody deaths resulting from high-risk lifestyles such as abuse of drugs and alcohol, which, as acknowledged by the delegation, still circulate in places of detention; and

(c)The use of solitary confinement, in the forms of disciplinary and administrative segregation, often extensively prolonged, even for persons with mental illness.

The State party should take all necessary measures to ensure that detention conditions in all places of deprivation of liberty are in conformity with the Standard Minimum Rules for the Treatment of Prisoners. It should, inter ali a:

(a) Strengthen its efforts to adopt effective measures to improve material conditions in prisons, reduce the current overcrowding, properly meet the basic needs of all persons deprived of their liberty and eliminate drugs;

(b) Increase the capacity of treatment centres for prisoners with intermediate and acute mental health issues;

(c) Limit the use of solitary confinement as a measure of last resort for as short a time as possible under strict supervision and with a possibility of judicial review; and

(d) Abolish the use of solitary confinement for persons with serious or acute mental illness.

Violence against women

(20)While noting several measures taken by the federal and provincial governments to combat high violence against Aboriginal women and girls, including cases of murders and disappearances (CAT/C/CAN/Q/6/Add.1, paras. 76 ff), the Committee is concerned about ongoing reports that: (a) marginalized women, in particular Aboriginal women, experience disproportionately high levels of life-threatening forms of violence, spousal homicides and enforced disappearances; and (b) the State party failed to promptly and effectively investigate, prosecute and punish perpetrators or provide adequate protection for victims. Furthermore, the Committee regrets the statement by the delegation that the issues on violence against women fall more squarely within other bodies’ mandate and recalls that the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in acts of torture or ill-treatment committed by non-State officials or private actors (arts. 2, 12, 13 and 16).

The State party should strengthen its efforts to exercise due diligence to intervene to stop, sanction acts of torture or ill-treatment committed by non-State officials or private actors, and provide remedies to victims. The Committee recommends that the State party enhance its efforts to end all forms of violence against aboriginal women and girls by, inter alia, developing a coordinated and comprehensive national plan of action, in close cooperation with aboriginal women ’ s organizations, which includes measures to ensure impartial and timely investigation, prosecution, conviction and sanction of those responsible for disappearances and murder of aboriginal women, and to promptly implement relevant recommendations made by national and international bodies in that regard, including the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, and the Missing Women Working Group.

Conducted energy weapons

(21)The Committee notes the various initiatives taken by the State party to introduced greater accountability and more restricted standards to govern use of conducted energy weapons, including national guidelines issued by the Federal Government in 2010. However, it remains concerned at reports about the lack of consistent and coherent standards applicable to all policing forces at federal and provincial level and the unclear legal framework for the testing and approval for use of new forms of such weapons by police forces in Canada. Furthermore, the Committee regrets that the national guidelines are not binding and do not establish a consistent and sufficiently high threshold to govern the use of such weapons across the country (arts. 2 and 16).

Taking into consideration the lethal and dangerous impact of conducted energy weapons on the physical and mental state of targeted persons, which may violate articles 2 and 16 of the Convention, the Committee recommends the State party to ensure that such weapons are used exclusively in extreme and limited situations. The State party should revise the regulations governing the use of such weapons, including the national guidelines, with a view to establishing a high threshold for the use of them and adopting a legislative framework to govern the testing and approval for use of all weapons used by law enforcement personnel. Furthermore, the State party should consider relinquishing the use of such conducted energy weapons as “ tasers ” .

Police crowd-control methods

(22)The Committee is concerned about reports on the excessive use of force by law enforcement officers often in the context of crowd control at federal and provincial levels, with particular reference to indigenous land-related protests at Ipperwash and Tyendinaga as well as the G8 and G20 protests. The Committee is particularly concerned about reports of severe crowd control methods and inhumane prison conditions in the temporary detention centres (arts. 11 and 16).

The Committee recommends that the State party strengthen its efforts to ensure that all allegations of ill-treatment and excessive use of force by the police are promptly and impartially investigated by an independent body and those responsible for such violation are prosecuted and punished with appropriate penalties. Furthermore, the State party and the government of the Province of Ontario should conduct an inquiry into the Ontario Provincial Police ’ s handling of incidents at Tyendinaga and into all aspects of the policing and security operations at the G8 and G20 Summits.

Data collection

(23)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, and on extrajudicial killings, enforced disappearances, trafficking and domestic and sexual violence.

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention obligations at the national level, including data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment, detention conditions, abuse by public officials, administrative detention, trafficking and domestic and sexual violence and on means of redress, including compensation and rehabilitation, provided to the victims.

(24)The Committee recommends that the State party strengthen its cooperation with United Nations human rights mechanisms and its efforts in implementing their recommendations. The State party should take further steps in ensuring a well-coordinated, transparent and publicly accessible approach to overseeing implementation of Canadian obligations under the United Nations human rights mechanisms, including the Convention.

(25)In the light of the State party’s pledges to the Human Rights Council in 2006 and its acceptance of recommendations by the Working Group on the Universal Periodic Review (A/HRC/11/17, para. 86 (2)), the Committee urges the State party to accelerate the current domestic discussions and to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as soon as possible.

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

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

(28)The State party is invited to update its common core document (HRI/CORE/1/Add.91), in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6).

(29)The Committee requests the State party to provide, by 1 June 2013, follow-up information in response to the Committee’s recommendations related to: (a) ensuring or strengthening legal safeguards for detainees; (b) conducting, prompt, impartial and effective investigations; and (c) prosecuting suspects and sanctioning perpetrators of torture or ill-treatment, as contained in paragraphs 12, 13, 16 and 17 of the present document.

(30)The State party is invited to submit its next report, which will be the seventh periodic report, by 1 June 2016. To that purpose, the Committee invites the State party to accept, by 1 June 2013, to report under its optional reporting procedure, consisting in the transmittal, by the Committee to the State party, of a list of issues prior to the submission of the periodic report. The State party’s response to this list of issues will constitute, under article 19 of the Convention, its next periodic report.

63. Cuba

(1)The Committee against Torture considered the second periodic report of Cuba (CAT/C/CUB/2) at its 1078th and 1081st meetings (CAT/C/SR.1078 and CAT/C/SR.1081), held on 22 and 23 May 2012, and adopted the following conclusions and recommendations at its 1089th and 1090th meetings (CAT/C/SR.1089 and CAT/C/SR.1090).

A. Introduction

(2)The Committee welcomes the second periodic report of Cuba and expresses appreciation for the opportunity to renew constructive dialogue with the State party. However, it notes that the periodic report, which was submitted more than nine years late, does not fully conform to the reporting guidelines.

(3)The Committee appreciates the written replies to the list of issues (CAT/C/CUB/Q/2/Add.1) as well as the supplementary information provided during consideration of the periodic report. The Committee also appreciates the dialogue with the delegation, but regrets that some of the questions put to the State party were not answered.

B. Positive aspects

(4)The Committee notes with satisfaction that, since the initial report was considered, the State party has ratified the following instruments:

(a)The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (25 September 2001);

(b)The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (9 February 2007);

(c)The Convention on the Rights of Persons with Disabilities (6 September 2007); and

(d)The International Convention for the Protection of All Persons from Enforced Disappearance (2 February 2009).

(5)The Committee also welcomes the State party’s efforts to amend its policies and procedures to ensure greater protection for human rights and apply the provisions of the Convention, in particular:

(a)Approval of a master plan for investment in the prison system, due to be implemented progressively until 2017;

(b)Continuation of the State party’s scholarship programme for refugees which enables them to pursue secondary, university or higher secondary education and is currently benefiting 366 refugees, most of them Saharawis;

(c)The continuing work of the National Group for the Prevention and Treatment of Domestic Violence.

(6)The Committee notes the State party’s positive response to the request for a visit of the Special Rapporteur on the question of torture, which was subsequently confirmed in the voluntary commitments assumed by Cuba during the universal periodic review performed by the Human Rights Council in February 2009 (A/HRC/11/22, para. 130 (37)). The State party noted the Special Rapporteur’s interest in making this visit but the dates have not yet been confirmed (A/HRC/19/61, para. 6).

C. Principal subjects of concern and recommendations

Definition and crime of torture

(7)While noting the information provided by the State party regarding work towards a possible reform of the Criminal Code, the Committee regrets that torture, as defined in article 1 of the Convention, is still not codified as a specific offence. As regards the State party’s assertion that other similar criminal offences are expressly defined in its domestic legislation, the Committee draws the State party’s attention to its general comment No. 2 (2007), on the implementation of article 2 by States parties, which emphasizes the preventive value of codifying torture as a distinct offence (CAT/C/GC/2, para. 11) (arts. 1 and 4).

The Committee reiterates the recommendation made in 1997 (A/53/44, para. 118 (a)) that the State party should expressly criminalize torture in its domestic legislation and should adopt a definition of torture covering all the aspects contained in article 1 of the Convention. The State party must also ensure that such offences are punishable by appropriate penalties which take into account their grave nature, in accordance with article 4, paragraph 2, of the Convention.

Fundamental due process safeguards

(8)While noting the information provided by the State party concerning the content of the Criminal Procedure Act and related implementing regulations, the Committee highlights the lack of information on procedures in place to ensure the practical application of fundamental legal safeguards. The Committee is concerned about consistent reports that the State party does not extend all legal safeguards, including prompt access to a lawyer and an independent medical examination and notification of arrest to a family member, to all prisoners, including in particular those who are deprived of their liberty on alleged political grounds, from the outset of detention. The Committee regrets that no statistical data have been provided either about complaints or allegations of torture or about habeas corpus proceedings initiated during the period under review. The Committee is concerned that article 245 of the Criminal Procedure Act establishes that habeas corpus applications are inadmissible “when the deprivation of liberty is the result of a sentence or pretrial commitment order issued in criminal proceedings”. While noting the delegation’s explanations on this matter, the Committee considers that this provision unreasonably restricts the right to challenge the legality of detention by excluding those situations where the deprivation of liberty, having been initially lawful under prevailing legislation, becomes unlawful retrospectively (arts. 2 and 16).

The State party must adopt effective measures without delay to ensure that all detainees enjoy in practice all fundamental legal safeguards, including the right to have access to counsel at the time of arrest, to be examined by an independent physician, to have contact with a family member, to be informed of their rights and the charges against them, and to be brought before a judge without delay.

The State party must also adopt the measures necessary to guarantee the right of any person who has been deprived of their liberty to have access to an immediate remedy to challenge the legality of their detention.

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

(9)The Committee is concerned about the lack of an appropriate legal framework for the protection of refugees, asylum seekers, and stateless persons. While noting the information provided by the State party to the effect that persons identified as refugees by the Office of the United Nations High Commissioner for Refugees are permitted to remain in the country while their resettlement is arranged, the Committee is concerned that this de facto temporary protection does not include recognition of refugee status on the part of the Cuban authorities. It also notes with concern that, although refugees and asylum seekers have access to free health services and education, they are unable to obtain a work permit and have no access to housing and other public services. The Committee is concerned that, since there is no prospect of local integration, resettlement in a third country is the only permanent solution possible for refugees in Cuba. The State party should also ensure that all cases of forced deportation are carried out in a manner consistent with the provisions of the Convention. The Committee expresses its concern about the lack of information provided on the circumstances in which the repatriation of illegal Haitian immigrants takes place. It also regrets the lack of information about any existing migration management mechanisms that facilitate the identification of persons requiring international protection (arts. 2, 3, 11 and 16).

The Committee recommends that the State party should:

(a) Adopt the legislative measures necessary to ensure the protection of refugees, asylum seekers, and stateless persons. To this end, it urges the State party to consider ratifying the Convention relating to the Status of Refugees and the Protocol relating to the Status of Refugees, as well as the Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness;

(b) Establish mechanisms for the identification and referral of refugees and other persons who have specific requirements in the context of mixed migration flows, so that their protection needs can be met;

(c) Facilitate the process of local integration of refugees in Cuban territory, working in association with the Office of the United Nations High Commissioner for Refugees;

(d) Amend the current legislation governing migration (Act No. 1312 on Migration and Act No. 1313 on the Status of Foreigners, both of 1976).

Detention conditions

(10)The Committee notes that the State party has study programmes for all educational levels in detention facilities and that a programme of investment in the prison system has been approved. It regrets, however, that precise figures on occupancy levels in detention facilities have not been provided. The Committee is still extremely concerned about reports that the prison population allegedly experiences overcrowding, malnutrition, lack of hygiene, unhealthy conditions, and inadequate medical care. These reports also recount unjustified restrictions on family visits, transfers to detention facilities located a long way from detainees’ family and friends, solitary confinement in degrading conditions and physical and verbal abuse of prisoners. For all these reasons, the Committee regrets the lack of data, disaggregated by age and sex, on the number of complaints and grievances filed by prisoners or members of their family and on the corresponding inquiries and their outcome (arts. 11 and 16).

Taking into account the voluntary commitments assumed by the State party in the universal periodic review in February 2009 (A/HRC/11/22, para. 130, (45)), the Committee recommends that the State party should take all necessary steps to ensure that conditions of detention in prisons and other detention facilities conform to the Standard Minimum Rules for the Treatment of Prisoners (resolution 663 C [XXIV] of 31 July 1957, and resolution 2076 [LXII] of 13 May 1977, of the Economic and Social Council) and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), adopted by the General Assembly in resolution 65/229 on 21 December 2010. In particular, the State party should:

(a) Continue its ongoing efforts to improve infrastructures and reduce prison occupancy rates, principally by using alternative measures to deprivation of liberty;

(b) Improve the quality of food and the medical and health-care facilities available to prisoners;

(c) Ensure that all persons deprived of their liberty enjoy the right to communicate with family members and a lawyer;

(d) Ensure that any cruel, inhuman or degrading punishment, such as solitary confinement in appalling conditions as a disciplinary measure, is absolutely prohibited.

Prolonged pretrial detention, detention for offences against State security and releases on extra-penitentiary leave

(11)The Committee notes the delegation’s clarification that the Cuban legal system does not allow for the use of incommunicado detention. However, the Committee remains concerned about NGO reports that recount situations of protracted pretrial detention and indefinite detention, in application of article 107 of the Criminal Procedure Act, which appear to affect persons deprived of their liberty especially for political reasons. The Committee regrets the lack of information provided on the number and status of detainees accused of offences against State security, pursuant to article 243 of the Criminal Procedure Act. Lastly, the Committee is concerned about the ambiguous legal situation of prisoners released on extra-penitentiary leave and about information received concerning arbitrary restrictions on their personal freedom and freedom of movement. The Committee expresses particular concern about the situation of José Daniel Ferrer and Oscar Elías Biscet (arts. 2, 11 and 16).

The State party should take all necessary measures to:

(a) Ensure, in law and in practice, that pretrial detention is not excessively prolonged;

(b) Amend the Criminal Procedure Act to prevent indefinite prolongation of the examination of the preliminary case file;

(c) Ensure independent judicial supervision of custodial measures and prompt access to legal assistance;

(d) Ensure respect for the personal liberties and freedom of movement of persons released on extra-penitentiary leave, including their right to return to Cuba .

Preventive security measures

(12)The Committee expresses concern about the provisions of Chapter XI of Book I (Dangerousness and security measures) of the Criminal Code and in particular the definition, based on subjective and extremely vague concepts, of “dangerousness”, which purports to refer to “an individual’s particular proclivity to commit offences, as demonstrated by conduct that is manifestly contrary to the norms of socialist morality” (art. 72). The Committee takes note of the delegation’s explanation that criminal penalties are not imposed on persons declared to be “dangerous”. However, the Committee notes that the rehabilitative, therapeutic and supervisory measures established in articles 78 to 84 of the Criminal Code can entail internment in specialized labour, educational, care, psychiatric or detoxification institutions for a period of between 1 and 4 years. The Committee is concerned that it has received no information about conditions of internment in these institutions (arts. 2, 11 and 16).

As part of the criminal legislation reform process announced by the delegation, the Committee recommends that the State party amend the aforementioned provisions of the Criminal Code with a view to ending the use of administrative detention on the basis of vague, subjective and imprecise criminal concepts such as pre-criminal social dangerousness.

Monitoring and inspection of places of detention

(13)The Committee notes that the Attorney-General’s Office and the Ministry of the Interior are empowered to inspect detention facilities and that, in accordance with legislation in force, judges and prosecutors have access to prisons and other detention facilities. However, the Committee has no information on the number and nature of the visits made by the Attorney-General’s Office or other agencies during the period under review, or on the content of the records and resolutions issued by the Attorney-General’s Office and the related follow-up. The Committee remains concerned about the lack of monitoring and systematic, effective, independent inspection of all places of detention and disagrees with the State party’s statement that the continuous improvement of the system does not call for other types of visit or additional assistance (arts. 11 and 12).

The Committee reiterates the recommendation previously made to the State party in 1997 (A/53/44, para. 118 (d)) to establish an independent national system to effectively monitor and inspect all places of detention and follow-up on the outcome of this systematic monitoring.

The Committee encourages the State party to consider the possibility of ratifying the Optional Protocol to the Convention with a view to establishing a system of regular unannounced visits by national and international monitors, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

The Committee also reiterates its previous recommendation (ibid., (i)) that the State party should allow human rights NGOs into the country and cooperate with them in the identification of cases of torture and ill-treatment.

Death penalty

(14)The Committee notes the information provided by the State party concerning the last three executions of persons sentenced to death in Cuba, which, after a summary procedure, were carried out on 11 April 2003. Despite the delegation’s explanations, the Committee still has serious reservations as to whether in these cases the State party respected due process guarantees such as the detainees’ right to have adequate time and facilities to prepare their defence and to communicate with counsel of their choosing. While noting that there are currently no convicted prisoners awaiting execution in the State party and that all death sentences have been commuted to prison sentences of 30 years or life, the Committee remains concerned about the high number of offences that carry the death penalty, including common crimes and vaguely defined categories of State security-related offences (arts. 2, 11 and 16).

The Committee urges the State party to respect the international norms established in the Safeguards guaranteeing protection of the rights of those facing the death penalty (approved by Economic and Social Council resolution 1984/50 of 25 May 1984). The State party is invited to consider the possibility of abolishing the death penalty and to ratify the International Covenant on Civil and Political Rights and its Second Optional Protocol concerning abolition of the death penalty.

Deaths in custody

(15)The information provided by the State party indicates that no liability on the part of the officers involved was established in any of the deaths in custody that occurred during the period under review and that the autopsy found no signs of physical violence in any of these cases. However, the Committee regrets that the State party has provided no statistical information on the causes of these deaths or on mortality rates in detention facilities. The limited information provided indicates that between 2010 and 2011 there were a total of 202 deaths in the prison system, a figure which the Committee considers high. The Committee further regrets that the information relating to the death of Mr. Orlando Zapata Tamayo, a prisoner on hunger strike, was time-barred and without any possibility of dialogue. It also regrets the lack of information on the death in police custody of Mr. Juan Soto Wilfredo García, as requested in the list of issues (arts. 2, 11 and 16).

The State party should ensure that all deaths in custody are investigated promptly, thoroughly and impartially; should assess the health care received by inmates and any possible liability on the part of prison personnel; and should provide, where appropriate, adequate compensation to the families of the victims.

The State party should guarantee appropriate monitoring and medical treatment of persons deprived of their liberty who go on hunger strike.

Complaints mechanism

(16)Although the State party has provided information about the various bodies and mechanisms that deal with citizen complaints and petitions, the Committee regrets that no dedicated, independent and effective mechanism has as yet been established to receive complaints, conduct prompt and impartial investigations into allegations of torture and ill-treatment and ensure that those responsible are duly punished. The Committee also notes the lack of statistical information about the number of complaints, investigations, prosecutions and criminal and disciplinary sanctions imposed against the perpetrators of acts of torture and ill-treatment (arts. 2, 12, 13 and 16).

The Committee reiterates its previous recommendations (A/53/44, para. 118 (b) and (g)) in which it urged the State party to:

(a) Establish a dedicated, independent mechanism for receiving complaints of torture and ill-treatment so as to ensure the prompt and impartial examination of such complaints;

(b) Establish a central register of complaints, investigations, prosecutions and convictions in cases of torture and ill-treatment, which should be publicly accessible.

The State party should ensure that complainants and witnesses of torture and ill-treatment receive the necessary protection and assistance.

Investigations and prosecutions

(17)The figures provided by the State party indicate that the Attorney-General’s Office received 263 complaints of ill-treatment in prisons and detention facilities between 2007 and 2011 and that, after the corresponding investigations, 46 law enforcement officers were found to be criminally liable. The Committee regrets that in the course of the dialogue the delegation provided no additional and more detailed information about the investigations, prosecutions, disciplinary proceedings and corresponding compensation. It has also received no information about the sentences and criminal or disciplinary sanctions imposed on offenders, nor has it indicated whether or not the alleged perpetrators of these acts were removed or expelled from public service pending the outcome of the investigation of the complaints. In the absence of this information, the Committee finds itself once again unable to assess the State party’s actions in the light of the provisions of article 12 of the Convention (arts. 2, 12, 13, 14 and 16).

The Committee urges the State party to:

(a) Ensure the prompt and impartial investigation of all complaints of torture and ill-treatment. Such investigations should be under the responsibility of an independent body and not subordinate to the executive branch of Government;

(b) Launch prompt and impartial investigations spontaneously whenever there are reasonable grounds to believe that an act of torture has been committed;

(c) Ensure that, in cases of alleged torture and ill-treatment, suspects are suspended from duty immediately for the duration of the investigation, particularly when there is a risk that they might otherwise be in a position to repeat the alleged act or to obstruct the investigation;

(d) Bring to trial the alleged perpetrators of acts of torture or ill-treatment and, if they are found guilty, ensure sentences with penalties that are consistent with the gravity of their acts and that the victims receive compensation.

Independence of the judiciary and the role of lawyers

(18)The Committee notes with concern that there have been no significant changes in the State party’s justice system since its initial report was submitted in 1997. It is particularly concerned about the lack of independence from the executive and legislative branches within both the judiciary and the legal profession (art. 2, para. 1).

In the light of its previous recommendation (A/53/44, para. 118 (e)), the Committee considers it essential that legislative measures be adopted to guarantee the independence of the judiciary. The Committee also recommends that the State party should ensure compliance with the Basic Principles on the Role of Lawyers (Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990 [A/CONF.144/28/Rev.1], p. 118).

Psychiatric institutions

(19)The Committee notes the information provided by the State party regarding the content of the judgement delivered by the Second Criminal Division of the People’s Court in Havana on 31 January 2011 in the case brought against the director, deputy directors and other employees of the Havana Psychiatric Hospital following the death of 26 patients from hypothermia in January 2010. The Committee regrets that it has not received the information requested about the redress and compensation measures ordered by the courts and actually provided to the families of the victims and other patients affected. Although it notes that the Ministry of Public Health has a plan to improve the efficiency of this institution, the Committee has received no information on the content of the plan. Lastly, the Committee regrets that it has received no statistical data on the number of persons with psychosocial disabilities that are currently receiving forced medical treatment (arts. 2, 11, 14 and 16).

The Committee urges the State party to provide information about the redress and compensation measures ordered by the courts and actually provided to the victims and/or their families in relation to the deaths that occurred in the Havana Psychiatric Hospital in 2010.

The State party should take the necessary steps to resolve any deficiencies that might exist in the psychiatric hospital network and ensure that events of this type do not recur. The Committee recommends that an analysis of the way in which psychiatric institutions operate in practice be undertaken as a matter of urgency, by means of external and internal audits of the institutions involved, with a view to adopting legislative and administrative measures to ensure that the guarantees required to prevent torture are applied in practice.

Civil society actors at risk

(20)The Committee notes that the State party denies that there has been an increase in the number of political opponents, human rights activists and independent journalists placed in short-term detention without a court order, as reported to the Committee by human rights organizations. However, given the lack of official data, the Committee remains seriously concerned about the continuing reports of arbitrary detention for short periods, the use of ambiguous criminal concepts such as “pre-criminal social dangerousness” to justify the imposition of security measures, restrictions on freedom of movement, intrusive surveillance, physical aggression and other acts of intimidation and harassment allegedly committed by officers of the National Revolutionary Police and members of State security bodies. The Committee is also concerned about reports that “acts of repudiation” continue to occur outside the homes of members of the Unión Patriótica de Cuba and the Ladies in White group, among others. The Committee regrets the State party’s reluctance to submit comprehensive information about the incidents referred to in the list of issues and the measures taken to prevent coordinated action of this kind, in which assumed collusion between the harassers and the police authority is apparent (arts. 2 and 16).

In the light of its previous concluding observations (A/53/44, para. 11), the Committee urges the State party to:

(a) Adopt the measures necessary to put an end to the forms of repression mentioned above, including arbitrary detention and the use of preventive security measures against political opponents, human rights defenders and activists, independent journalists and other civil society actors at risk and members of their families. In addition, the State party should ensure that these acts of repression, intimidation and harassment are duly investigated and the perpetrators punished;

(b) Ensure that all persons are protected from the intimidation or violence to which they might be exposed as a result of their activities or the simple exercise of their freedom of opinion and expression and their right of association and peaceful assembly;

(c) Authorize the registration of human rights NGOs so requesting in the Register of National Associations, in accordance with the provisions of Act No. 54 of 27 December 1985 (Associations Act).

Gender-based violence

(21)The Committee notes with concern that the State party has provided no information on the existing legal framework for combating violence against women in Cuba or on the measures taken to eliminate this phenomenon, including domestic and sexual violence. The Committee also regrets the lack of statistical data corresponding to the period under review for the different forms of violence against women (arts. 2 and 16).

The Committee urges the State party to provide detailed information on existing legislation governing this area and on cases of violence against women that occurred during the period under review.

Coerced confessions

(22)While it takes note of the constitutional safeguards and the provisions of the Criminal Procedure Act establishing the inadmissibility of evidence obtained through torture, the Committee expresses concern about reports of the use of coercive methods during questioning, in particular sleep deprivation, solitary confinement and exposure to sudden temperature changes. The Committee notes the information provided by the State party which indicates that during the period under review no cases were dismissed because the evidence or testimonies submitted were obtained through torture or ill-treatment, although, according to the delegation, neither was torture as a procedure invoked in any case (arts. 2 and 15).

The State party must adopt effective measures that guarantee in practice the inadmissibility of coerced confessions. The State party should ensure that law enforcement officials, judges and lawyers receive training in how to detect and investigate cases where confessions are obtained under duress.

Training

(23)The Committee takes notes of the information provided about the technical and vocational training programmes available to medical personnel, members of the National Revolutionary Police, prison officers and justice officials but regrets the paucity of available information on the evaluation of these programmes and their success in reducing the incidence of torture and ill-treatment. The Committee also notes that the State party has submitted no information about specific training programmes or the use of the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) (art. 10).

The State party must:

(a) Continue to prepare and run training programmes to ensure that judges, public prosecutors, law enforcement officials and prison officers are fully aware of the provisions of the Convention, that breaches are not tolerated but investigated, and that the perpetrators are brought to trial;

(b) Develop and implement a methodology for assessing the effectiveness and impact of training programmes in reducing the incidence of torture and ill-treatment;

(c) Ensure that all relevant personnel receive specific training in the Istanbul Protocol.

Redress, including compensation and rehabilitation

(24)While taking note of the information provided in the periodic report concerning avenues of redress for civil liability and the institutional mandate of the Compensation Fund, the Committee is concerned that victims of torture or ill-treatment cannot obtain compensation if the perpetrator of the acts of torture or ill-treatment has been the subject of disciplinary rather than criminal sanctions. The Committee further regrets that the State party has provided no information on the reparation and compensation measures, including rehabilitation, ordered by the courts and effectively provided to victims of torture and ill-treatment (see A/53/44, para. 117) (art. 14).

The State party should:

(a) Ensure that all the victims of torture and ill-treatment obtain redress and have a legally enforceable right to fair and adequate compensation, including the means for the fullest possible rehabilitation;

(b) Guarantee the effectiveness of mechanisms designed to ensure redress and adequate compensation for victims of torture and other forms of ill-treatment.

The Committee reiterates its previous recommendation (A/53/44, para. 118 (h)) that the State party should create a compensation fund for victims of torture and ill-treatment.

National human rights institution

(25)The Committee is concerned that the State party does not consider it opportune to establish a national human rights institution in accordance with the Paris Principles (General Assembly resolution 48/134, annex). While noting that the duties of the Attorney-General’s Office and other State institutions include dealing with complaints of alleged rights violations filed by citizens, the Committee observes that none of the bodies listed by the State party qualifies as an independent national human rights institution (art. 2).

The Committee urges the State party to consider establishing a national human rights institution in accordance with the Paris Principles.

Data collection

(26)The Committee is concerned that, despite its previous recommendation (A/53/44, para. 118 (j)), the State party has not provided detailed statistical information on various issues and it regrets the State party’s decision not to transmit all the information requested. The absence of disaggregated data on complaints, investigations, prosecutions and convictions in cases of torture and ill-treatment, as well as in cases of deaths in custody, domestic violence and trafficking in human beings, hampers the identification of abuse requiring attention, and the effective implementation of the Convention (arts. 2, 16 and 19).

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention at the national and local levels, disaggregated by gender, ethnicity, age, geographical region and type and location of place of deprivation of liberty, including data on complaints, investigations and prosecutions of cases of torture and ill-treatment perpetrated by law enforcement officials and military and prison personnel, as well as of cases of deaths in custody, violence against women and trafficking in human beings. It should also collect information about any compensation or damages awarded to the victims.

(27)The Committee regrets that the State party has not provided any information on specific national court rulings in which the Convention and its provisions have been invoked.

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

(29)The Committee invites the State party to consider ratifying the core United Nations human rights treaties to which it is not yet a party, particularly the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; and the Optional Protocol to the Convention on the Rights of Persons with Disabilities.

(30)The State party is encouraged to disseminate the reports submitted to the Committee and these concluding observations widely through the official media and non-governmental organizations.

(31)The State party is invited to upgrade its core document (HRI/CORE/1/Add.84), in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under international human rights treaties (HRI/GEN/2/Rev.6).

(32)The Committee requests the State party to provide, by 1 June 2013, follow-up information in response to the Committee’s recommendations related to: (a) ensuring or strengthening fundamental legal safeguards for detainees; (b) conducting prompt, impartial and effective investigations; and (c) prosecuting suspects and sanctioning perpetrators of torture or ill-treatment, as contained in paragraph 10 (c), paragraph 16 (b), paragraph 19 and paragraph 21 of this document. In addition, the Committee requests follow-up information on remedies and redress provided to the victims addressed in these paragraphs.

(33)The State party is invited to submit its next report, which will be the third periodic report, by 1 June 2016. To this end, the Committee invites the State party to agree, by 1 June 2013, to report under its optional reporting procedure, in which the Committee transmits a list of issues to the State party prior to submission of the periodic report. The State party’s response to this list of issues will constitute the next periodic report to be submitted under article 19 of the Convention.

64. Czech Republic

(1)The Committee against Torture considered the combined fourth and fifth periodic reports of the Czech Republic (CAT/C/CZE/4-5) at its 1068th and 1071st meetings, held on 14 and 15 May 2012 (CAT/C/SR.1068 and CAT/C/SR.1071), and adopted the following concluding observations at its 1087 meeting (CAT/C/SR.1087).

A. Introduction

(2)The Committee welcomes the submission of the fourth and fifth periodic reports of the Czech Republic, submitted on time and in accordance with its reporting guidelines, and the detailed replies (CAT/C/CZE/Q/4-5/Add.1) to the list of issues (CAT/C/CZE/Q/4-5). The Committee expresses its appreciation to the State party for accepting the optional reporting procedure despite the fact that it did not report under it due to the advanced stage of the drafting of the report.

(3)The Committee appreciated the open and constructive dialogue with the State party’s multi-sectoral delegation and thanks the delegation for its answers to the questions raised by the Committee members.

B. Positive aspects

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

(a)Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (20 July 2006);

(b)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (26 January 2005);

(c)Convention on the Rights of Persons with Disabilities (28 September 2009);

(d)Rome Statute of the International Criminal Court (21 July 2009).

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

(a)Amendment of the Ombudsman Act, granting the Ombudsman the power to act as the national preventive mechanism in compliance with the Optional Protocol to the Convention, which entered into force on 1 January 2006 (Act No. 381/2005);

(b)Amendments to the Code of Criminal Procedure in 2008 and 2011 relating to extradition and claims to compensation by victims of crime, including torture (Acts No. 457/2008 and No. 181/2011);

(c)Amendments to the Asylum Act in 2006 (Act No. 165/2006) and in 2011 (Act No. 303/2011);

(d)Amendments to the Domestic Violence Act which entered into force on 1 January 2007 (Act No. 135/2006);

(e)New Act on the Police Force of the Czech Republic (Act No. 273/2008);

(f)Entry into force on 1 January 2009 of the new Security Detention Act (Act No. 129/2008);

(g)The entry into force on 1 September 2009 of Act No. 198/2009 on Equal Treatment and Legal Means of Protection against Discrimination (the Antidiscrimination Act);

(h)Entry into force on 1 January 2010 of the new Criminal Code (Act No. 40/2009) establishing racial motive as an aggravating circumstance for a number of crimes;

(i)The new Act on Special Medical Services, effective 1 April 2012 (Act No. 373/2102 Coll).

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

(a)Adoption of the Strategy for the Work of the Czech Police Force in Relation to Minorities 2008–2012;

(b)Adoption of the National Plan of Action for the Implementation of the National Strategy to Prevent Violence against Children in Czech Republic 2008–2018;

(c)Approval of the National Action Plan to Transform and Unify the System for the Care of Vulnerable Children in the period 2009–2011;

(d)Adoption of the National Action Plan for the Prevention of Domestic Violence for the Years 2011–2014;

(e)Adoption of the National Strategy against Human Trafficking in the Czech Republic for the Years 2012–2015;

(f)Establishment of the General Inspection of Security Forces in January 2012 (Act No. 341/2011).

C. Principal subjects of concern and recommendations

Definition of torture

(7)While noting that article 10 of the Constitution accords primacy to international treaties approved by the Parliament over domestic legislation, the Committee is concerned that new Criminal Code only establishes the crime of torture and other inhuman and cruel treatment but does not define torture in terms of the Convention (art. 1).

The Committee recommends that the State party amend its Criminal Code in order to adopt a definition of torture that covers all the elements contained in article 1 of the Convention.

Rendition flights and diplomatic assurances

(8)The Committee is concerned that in its written materials the State party had invoked the Convention on International Civil Aviation (the Chicago Convention) as a reason for not requesting to search civilian aircraft. The Committee notes that in the oral dialogue with the State party, the State party clarified that it was not the intention that the Chicago Convention would exclude or deter the application of the Convention against Torture. The Committee is also concerned that the State party has accepted diplomatic assurances in relation to extraditions of persons from its territory to States where those persons would be in danger of being subjected to torture. It is also concerned that no information was provided concerning the type of diplomatic assurances received or requested (arts. 3, 6 and 7).

The Committee recommends that the State party refuse to accept diplomatic assurances in relation to extraditions of persons from its territory to States where those persons would be in danger of being subjected to torture since those assurances cannot be an instrument to modify a determination of a possible violation of article 3 of the Convention. It also requests the State party to provide the Committee with the number and type of diplomatic assurances received since 2004 and the countries involved.

Conditions of detention

(9)The Committee is concerned about the increase in overcrowding in detention facilities which leads to increased inter-prisoner violence; about the use of pepper spray in closed prison spaces; about the number of suicides in places of detention and the absence of information about their causes; the presence of prison staff during the medical examination of prisoners; examination of inmates by psychiatrists through security grates and about the absence of information concerning alleged incommunicado detention (arts. 11 and 16).

The Committee recommends that the State party make greater use of alternative non-custodial measures in keeping with the United Nations Standard Minimum Rules for Non-custodial Measures ( Tokyo Rules) and reduce the number of incarcerations resulting from the lack of implementation of alternative sentences which are then converted to incarceration. It recommends that the State party revise the regulations concerning the use of pepper spray in closed spaces. The Committee also recommends that a study be undertaken into the causes of suicides in detention, that the Prison Service enhance the monitoring and detection of detainees at risk and take preventive measures with regard to the risk of suicide and inter-prisoner violence, including installing cameras and increasing the number of prison staff. It also recommends that the rules governing the medical examination of prisoners be amended to ensure that the examination is private and independent; that inmates are not examined by psychiatrists through security grates; and that health services for detainees be transferred from the Prison Service under the Ministry of Justice to the Ministry of Health. The Committee wishes to receive information on the existence in the Czech Republic of incommunicado detention, including laws and regulations governing incommunicado detention, its duration, the number of persons held in incommunicado detention and whether it is subjected to judicial oversight that includes judicial review.

(10)The Committee is concerned at the continued policy of obliging certain categories of detainees to pay up to 32 per cent of the costs of their incarceration (arts. 2 and 11).

The Committee recommends that the State party put an immediate end to the policy of obliging certain categories of detainees to pay for their incarceration.

Treatment of the Roma minority

(11)The Committee is seriously concerned about reports concerning the continued marginalization of and discrimination against the members of the Roma minority. This has included some incidents in the recent past of three deaths, anti-Roma rallies as well as arson attacks against Roma homes. The Committee is also concerned about the lack of prompt, impartial and effective investigations and prosecutions regarding such incidents (arts. 2, 12, 13 and 16).

The State party should:

(a) Ensure the protection of Roma citizens and their property through enhanced monitoring and preventive measures. All acts of anti-Roma violence and discrimination should be thoroughly and effectively investigated, the perpetrators brought to justice and redress and compensation provided to the victims. Law enforcement officials should receive training on combating crimes against minorities and members of the Roma community should be recruited into the police force. The Committee recommends that statistics be compiled regarding crimes with an extremist overtone, and on the outcomes of investigations, prosecutions and remedial measures taken in relation to such crimes;

(b) Publicly condemn verbal and physical attacks against Roma, prohibit and prevent the advocacy of hate speech and organize awareness-raising and information campaigns promoting tolerance and respect for diversity. The Act on Equal Treatment and Legal Means of Protection against Discrimination (the Anti-discrimination Act) should be translated into the Roma language.

(12)The Committee is concerned about reports of sterilization of Roma women without free and informed consent, the destruction of medical records on involuntary sterilizations and the difficulties of victims to obtain redress (arts. 2, 14 and 16).

The Committee recommends that the State party investigate promptly, impartially and effectively all allegations of involuntary sterilization of Roma women, extend the time limit for filing complaints, prosecute and punish the perpetrators and provide victims with fair and adequate redress. Medical personnel conducting sterilizations without free, full and informed consent could be held criminally liable and medical records concerning possible involuntary sterilization should not be destroyed within the time frame prescribed by law. Medical personnel should be trained on appropriate means of how to obtain free and informed consent from women undergoing sterilization and all written materials relating to sterilization should be translated into the Roma language.

Redress and compensation, including rehabilitation

(13)The Committee is concerned about the absence of statistical data concerning compensation to victims of torture and ill-treatment, including victims of involuntary sterilization and surgical castration as well as ill-treatment in medical and psychiatric settings, violent attacks against ethnic minorities, trafficking and domestic and sexual violence. It is also concerned about the time limits set for filing complaints (arts. 14 and 16).

The Committee recommends that the State party ensure that victims of torture and ill-treatment are entitled to and provided with redress and adequate compensation, including rehabilitation, in conformity with article 14 of the Convention. It recommends that the State party provide it with statistical data on the number of victims, including victims of involuntary sterilization and surgical castration as well as ill-treatment in medical and psychiatric settings, violent attacks against ethnic minorities, trafficking and domestic and sexual violence, who have received compensation and other forms of assistance. It also recommends the extension of the time limit for filing claims.

Roma children

(14)The Committee is concerned about the placement of Roma children in educational facilities for children with slight mental disabilities or with a reduced syllabus formerly used for special schools, which compromises their subsequent educational development (arts. 2, 10, 12, 13 and 16).

In light of its general comment No. 2 (2007) on implementation of article 2 by States parties, 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 ensure that Roma children are admitted to mainstream education, unless a proper assessment concludes that the child has a mental disability and that the child ’ s legal guardian has requested placement in a special school. Standardized testing should be adapted to the social, cultural and linguistic specificities of minorities and educators and school personnel should receive training in principles of non-discrimination.

Complaints, investigations and prosecution of acts of torture and ill-treatment

(15)The Committee is concerned about the problematic registration of complaints and the independence of the system to assess them. In particular, the Committee is concerned about the discrepancy between the number of complaints of torture and ill-treatment in places of deprivation of liberty, especially those described as justified and partially justified, and the absence of prosecution in this connection for torture or ill-treatment committed by police officers and prison staff (arts. 12 and 13).

The Committee recommends that the General Inspection of Security Forces promptly, impartially and effectively investigate all allegations of torture and ill-treatment by law enforcement officials and prison staff, prosecute the perpetrators of such acts and provide redress, including compensation to the victims. The State party should provide the Committee with data disaggregated by, and with reference to, sex, age, ethnicity and origin of the victims and with a breakdown according to the categories established in the law as grounds for filing a complaint.

Trafficking in persons

(16)The Committee is concerned that not all victims of trafficking receive sufficient protection, access to health care and counselling, shelters and redress, including compensation and rehabilitation since only the victims of trafficking who cooperate with the authorities benefit from a special regime (arts. 10, 12, 13, 14 and 16).

The Committee recommends that the State party enhance the investigation of all types of trafficking, prosecute the perpetrators and provide all victims of trafficking, including those trafficked for sexual and labour exploitation, with equal protection, access to health care and counselling, shelters and redress, including compensation and rehabilitation. Efforts should be made to raise awareness of and train law enforcement personnel, judges and prosecutors in measures to combat trafficking in persons and to improve the identification of victims of trafficking.

Detention of asylum seekers and other non-citizens

(17)The Committee is concerned about the continuous practice of detention of asylum seekers, including families with children and minors accompanied by a legal guardian; the restrictions on the freedom of movement of asylum seekers in closed reception centres; and the regime and material conditions of detention in centres for foreign nationals awaiting deportation (arts. 3 and 11).

The Committee recommends that the State party implement alternatives to detention of asylum seekers, including unconditional release, in particular of families with children and asylum seeking adults who are responsible for children; that asylum seekers enjoy freedom of movement in closed reception centres, with adequate reception conditions; that the State party review the duration of restrictions on freedom of movement of asylum seekers in closed reception centres and that it review the regime and material conditions in centres for foreign nationals awaiting deportation in order to ensure that they are in conformity with the principle of non-refoulement set out in article 3 of the Convention and in the 1951 Convention on the Status of Refugees

Training

(18)The Committee is concerned about the State party’s assertion that signs of physical and psychological injuries caused by torture are so specific that an experienced medical worker does not require training (art. 10).

The Committee recommends strongly that training in detecting signs and treating physical and psychological injuries resulting from torture and ill-treatment outlined in the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) be made part of the training for nursing, medical personnel, paramedical personnel and other professionals involved in the documentation and investigation of allegations of torture and ill-treatment to ensure that every case of torture is detected and the perpetrators duly punished.

Stateless persons

(19)While noting that the State party has ratified the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, The Committee is concerned about the particularly vulnerable situation of stateless persons, in particular persons without valid documents and permanent residence in the State party; about the absence of a definition of statelessness, of a central database of stateless persons and of a legal framework, and of a procedure or mechanisms to determine their status; and about the possible discrimination between different categories of stateless persons under the new Citizenship Act (arts. 3 and 16).

The Committee recommends that the State party introduce the definition of statelessness in its legislation, establish procedures and mechanisms for the determination of the status of statelessness and create a central database on stateless persons in its territory. In order to avoid discrimination among different categories of stateless persons, the State party should review the provisions in the draft Citizenship Act relating to acquisition of nationality by children who would otherwise be stateless or who are born out of wedlock to foreign stateless mothers. In addition, the Committee recommends that stateless persons be provided with identification documents.

Surgical castration of sex offenders

(20)The Committee is concerned about the continued use of surgical castration for detained sex offenders. The Committee is concerned that surgical castration usually takes place in the context of a measure of protective treatment (mandatory treatment in a psychiatric hospital) and that article 99 of the Penal Code implies that patients can be placed and treated without their consent. It is also concerned that the detention of sex offenders under the new Act on “forensic detention” may be of an indefinite nature. The Committee is concerned about the past practice that persons were led to believe that refusal of surgical castration would mean lifelong detention (arts. 2 and 16).

The Committee recommends that the State party desist from the practice of surgical castration and amend its legislation in order to bring it in line with international norms such as the “ Standards of Care for the Treatment of Adult Sex Offenders ” . Legislation regarding sex offenders should include procedural safeguards and precise regulations and professional instructions on their treatment and detention, including its duration.

Psychiatric facilities

(21)Notwithstanding the changes in legislation announced by the delegation of the State party, the Committee is concerned about the reports of frequent placement of persons with intellectual or psychosocial disabilities in social, medical and psychiatric institutions without their informed and free consent; the continued use of cage-beds, despite the prohibition in law, and of net-beds as well as the use of other restraint measures such as bed strapping, manacles, and solitary confinement, often in unhygienic conditions and with physical neglect. The Committee is also concerned about the absence of investigations into the ill-treatment and deaths of institutionalized persons confined to cage and net-beds, including suicides (arts. 11 and 16).

The Committee recommends that the State party:

(a) Allocate appropriate funding for the implementation of the national plan on the transformation of psychiatric, health, social and other services for adults and children with intellectual or psychosocial disabilities to ensure a speedy process of deinstitutionalization to more community-based services and/or affordable housing;

(b) Establish close supervision and monitoring by judicial organs of any placement in institutions of persons with intellectual or psychosocial disabilities, with appropriate legal safeguards and visits by independent monitoring bodies. Institutionalization and treatment should be based on free and informed consent and the persons concerned should be informed in advance about the intended treatment;

(c) Take all necessary measures to ensure, in practice, the prohibition of the use of cage-beds, in conformity with the prohibition enshrined in the Act on Medical Services (Act No. 372/2011). In addition, the Committee recommends that the Act be amended to include the prohibition of the use of net-beds since their effects are similar to those of cage-beds;

(d) Ensure the effective monitoring and independent assessment of the conditions in institutions, including hygiene and instances of neglect. It should establish a complaints mechanism, ensure counsel and provide training to medical and non-medical staff on how to administer non-violent and non-coercive care. All cases of ill-treatment and deaths, including those of 30 year-old Vera Musilova in 2006 and the suicide of a 51 year-old woman on 20 January 2012 , should be effectively investigated and prosecuted and redress provided to the victims and their families, including compensation and rehabilitation.

Corporal punishment

(22)The Committee is concerned about the widespread tolerance of corporal punishment in the State party and the absence of legislation explicitly prohibiting it. It is also concerned about the provision in Act No. 94/1963 Coll. Family Act which states that parents have the right to use “adequate educational measures” and that the issue will be addressed in a similar manner in the new Civil Code (arts. 2 and 16).

The Committee recommends that the State party amend its legislation, including the Family Act and the new Civil Code, with a view to introducing an explicit prohibition against corporal punishment in all settings. The State party should carry out awareness-raising campaigns among the general public regarding the unacceptability of and the harm done by corporal punishment.

Data collection

(23)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, and prison personnel, including in relation to involuntary sterilization, surgical castration, involuntary treatment and placement in social institutions, including the use of restraints, and violent attacks against ethnic minorities, in particular Roma, trafficking and domestic and sexual violence.

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention at the national level, in such areas as data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment, in relation to involuntary sterilization, surgical castration, involuntary treatment and placement in social institutions, the use of restraints, and violent attacks against ethnic minorities, in particular Roma, trafficking and domestic and sexual violence, as well as on means of redress, including compensation and rehabilitation, provided to the victims.

(24)The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet a party, namely the International Convention on the Protection of the Rights of All Migrant Workers and members of Their Families, the Convention for the Protection of all Persons from Enforced Disappearance, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

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

(26)The Committee requests the State party to provide, by 1 June 2013, follow-up information in response to the Committee’s recommendations relating to (a) ensuring or strengthening legal safeguards for persons detained, (b) conducting prompt, impartial and effective investigations, and (c) prosecuting suspects and sanctioning perpetrators of torture and ill-treatment, as contained in paragraphs 11, 14 and 21 of the present document.

(27)The State party is invited to submit its next report, which will be the sixth periodic report, by 1 June 2016. For that purpose, the Committee will, in due course, submit to the State party a list of issues prior to reporting, considering that the State party has accepted to report to the Committee under the optional reporting procedure.

65. Greece

(1)The Committee against Torture considered the combined fifth and sixth periodic report of Greece (CAT/C/GRC/5-6) at its 1062nd and 1065th meetings (CAT/C/SR.1062 and SR.1065), held on 9 and 10 May 2012. At its 1084th and 1085th meetings (CAT/C/SR.1084 and SR.1085), held on 25 May 2012, it adopted the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission by Greece of its combined fifth and sixth periodic reports in response to the list of issues prior to the submission of reports (CAT/C/GRC/Q/5-6). The Committee expresses its appreciation to the State party for accepting the optional reporting procedure and to have submitted its periodic report under it, as it improves the cooperation between the State party and the Committee and focuses the examination of the report as well as the dialogue with the delegation.

(3)The Committee also appreciates the open and constructive dialogue it had with the high-level delegation of the State party and the supplementary information supplied during its consideration of the report although it regrets that some of its questions to the State party were not answered. The Committee is assured that the dialogue and ensuing recommendations will contribute to the necessary steps by the State party to comply with the Convention in practice.

B. Positive aspects

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

(a)The United Nations Convention against Transnational Organized Crime as well as the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention (Palermo Protocol), in January 2011;

(b)The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in February 2008.

(5)The Committee welcomes the State party’s adoption, in 2010, of a “National Action Plan for Migration Management” to improve the asylum procedure and conditions for the treatment of third-country nationals irregularly entering the country, including asylum seekers; the adoption, in November 2010, of a Presidential Decree (P.D. 114/2010) amending the previous legislation on the asylum procedure, and setting, for a transitional period, appropriate standards and safeguards for the fair and efficient examination of asylum seekers; as well as the issuance, in January 2011, of a comprehensive law (L.3907/2011) providing for the establishment of a new Asylum Service independent from the police, to gradually take over full responsibility of asylum issues, and the establishment of an initial Reception Service to set up Centres of Initial Reception at border locations.

(6)The Committee notes with satisfaction that a number of other legislative initiatives have been taken by the State party with a view to complying with the Committee’s recommendations and improving impleme