Committee against Torture

Forty-seventh session

Summary record (partial)* of the 1032nd meeting

Held at the Palais Wilson, Geneva, on Wednesday, 9 November 2011, at 10 a.m.

Chairperson:Mr. Grossman

l ater:Mr. Wang Xuexian (Vice-Chairperson)

Contents

Consideration of reports submitted by States parties under article 19 of the Convention (continued)

Fourth and fifth periodic reports of Bulgaria

The meeting was called to order at 10.05 a.m.

Consideration of reports submitted by States parties under article 19 of the Convention (continued)

Fourth and fifth periodic reports of Bulgaria (CAT/C/BGR/4-5, CAT/C/BGR/Q/4-5 and Add.1)

At the invitation of the Chairperson, the delegation of Bulgaria took places at the Committee table.

Mr. Tzantchev (Bulgaria) introduced the delegation of the State party and said that national human rights institutions, including the Ombudsman and the Commission on Protection against Discrimination, had been involved in the preparation of the combined periodic reports. Acts criminalized under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment were prohibited under chapter 2 of the Constitution and a definition of torture compliant with article 1 of the Convention had been included in the Enforcement of Penalties and Detention Act. Moreover, articles 143 and 287 of the Criminal Code criminalized offences covered by the Convention and the Code’s general and special provisions were equally relevant in that respect.

Provisions to ensure fundamental safeguards for detainees were set out in the Code of Criminal Procedure (art. 194, para. 1 (2)) and in the Enforcement of Penalties and Detention Act (art. 3, para. 3). A Ministry of the Interior directive of 2009 had stipulated that police officials must not perpetrate, provoke or tolerate any act of torture, inhuman or degrading treatment or punishment or acts of discrimination towards detainees. The Prosecutor’s Office had acted to combat impunity by: reducing the time limits for the examination of cases in the pretrial phase; enhancing that Office’s capacity to deal with cases of police brutality; improving the regularity of reports by administrative heads on the cases of detained persons; striving for the prompt completion of such cases; and training magistrates in international human rights law.

He reminded the Committee that Bulgaria had ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in April 2011. Legislation was being amended to enable the Office of the Ombudsman to take on the role of national preventive mechanism. The Office had carried out inspections of several places of detention and its recommendations had been taken into consideration in the drafting of amendments to the Enforcement of Penalties and Detention Act. The Bulgarian Helsinki Committee had also carried out inspections of places of detention and institutions such as childcare centres. The Committee’s reports were made public and any alleged criminal behaviour was the subject of immediate investigation by the Prosecutor’s Office. The findings of the Open Society Institute on how the police respected human rights in the course of their work were currently being studied by the authorities. The Ministry of the Interior worked closely with national human rights institutions, including the Ombudsman and the Commission on Protection against Discrimination, in the preparation of human rights and police ethics training.

The State party planned to close all public childcare institutions by 2025 and to replace them with a network of community-based services in the framework of its national strategy entitled “Vision for Children’s Deinstitutionalisation in the Republic of Bulgaria”. Priority would go to the closure of institutions for children with disabilities and medical care centres and homes for children aged up to three years. In the transition period, conditions in State and municipal childcare institutions were being improved. A similar approach was being applied to the deinstitutionalization of State care for adults with mental disorders.

Ms. Kleopas (Country Rapporteur) welcomed ratification by the State party of the Optional Protocol and expressed the hope that the national preventive mechanism would be operational within the one-year time limit established by the State party. She also welcomed the State party’s approach to the deinstitutionalization of childcare.

She expressed concern at the lack of progress made in the incorporation of a definition of the crime of torture in the Criminal Code in line with article 1 of the Convention and referred the delegation to the Committee’s general comment No. 2 (para. 11). The fact that the State party’s legislation contained provisions dealing with torture was insufficient. The Convention required that domestic legislation contain a definition of torture in full conformity with article 1. Noting that, under article 5 (4) of the Constitution, the Convention constituted an integral part of Bulgaria’s legislation, she asked whether the Convention could therefore be invoked directly before the courts. She also wished to know whether the police initiated investigations on the basis of provisions of the Convention. Had the Constitutional Court not ruled in 1992 that, in order to incorporate crimes stipulated in international treaties in domestic legislation, the elements of those crimes and the corresponding penalties had to be defined by amendments to that legislation? With regard to universal jurisdiction, she asked whether the State party could exercise its jurisdiction over the crime of torture if the suspect was present in Bulgaria and how that jurisdiction was exercised over suspected perpetrators of torture where extradition was either not requested or refused.

Although the State party had taken measures, legislative and otherwise, to ensure that legal safeguards were in place for detainees from the moment of their detention, the Subcommittee on Prevention of Torture, in its 2008 report, had found that generally only detainees who could afford the services of private lawyers had access to a lawyer within the first 24 hours of detention, which had been confirmed by NGOs including the Bulgarian Helsinki Committee and the Open Society Institute. The National Legal Assistance Bureau had attributed the low level of legal assistance largely to the failure of the police to inform detainees about the existence of legal assistance options. Another obstacle to the exercise of the right of access to a lawyer was the heavily restrictive regime that the law imposed on individuals during their detention in police stations.

A survey carried out by the Bulgarian Helsinki Committee in August 2011 had revealed shortcomings in the provision of legal assistance upon detention by the police. The Committee had found that 36 per cent of male inmates interviewed in Burgas prison, and 19 per cent of those in Sliven, had not been informed of their right to legal assistance.

The Special Rapporteur on the Independence of Judges and Lawyers had, in a report of May 2011, welcomed the establishment of the National Legal Assistance Bureau but had noted that it was insufficiently staffed and funded. Had the State party taken any steps to remedy that situation?

She asked whether medical personnel responsible for examining individuals as soon as they were detained received training in how to identify signs of torture or ill-treatment, on the basis of the Istanbul Protocol, and whether any investigations had been carried out by the prosecution services if such signs had been noticed but no complaint had been lodged by the alleged victim.

Welcoming the State party’s efforts to integrate those serving life sentences into the mainstream prison system, she requested further information on what measures had been taken to build on the success of the experiment in integrating prisoners after they had served 5 years, which should be considered standard practice and reinforced through legislative measures.

Referring extensively to the conclusions and observations of the United Nations Special Rapporteur on the independence of judges and lawyers, following the Special Rapporteur’s visit to the State party in May 2011, she stressed the importance of reforming the judicial system to ensure independence, effectiveness, efficiency and consistency in the system.

Information received from non-governmental organizations indicated that excessive use of force and firearms by police in the State party was a matter for serious concern. In a number of cases, the actions of the security forces had led to the death of the victims; in others, inhuman or degrading treatment had occurred. Many victims were young, and the Roma community was disproportionately affected. Between 1998 and 2010, the European Court of Human Rights had delivered judgements against the State party in 27 such cases. No police officers had been prosecuted in those cases before they had been submitted to the European Court. She requested updated information on them all.

The State party maintained that it complied with international standards on the use of firearms by police; however, the European Court of Human Rights had found the Ministry of the Interior Act to be in conflict with international norms safeguarding the rights to life and to protection from inhuman or degrading treatment. Article 74 of the Act did not comply with article 9 of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. She asked whether the instruction mentioned in paragraph 109 of the State party’s written replies to the list of issues was the same instrument as that referred to by the European Court.

With regard to protection for refugees and asylum-seekers, she welcomed the Memorandum of Understanding signed in April 2010 between the border police, the Office of the United Nations High Commissioner for Refugees and the Bulgarian Helsinki Committee. She requested information on additional measures taken by the State party to provide international protection to those in need. Did the State party intend to accede to the 1954 Convention relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness? She also requested information on measures taken to ensure that refugees and asylum-seekers were not penalized for illegal entry or stay in the country, that detention was used as a last resort and for as short a period as possible, and that safeguards against non-refoulement were fully implemented. She urged the State party to accelerate the long-awaited opening of the transit centre in Pastrogor and asked if it planned to amend the legislative provision allowing for detention of asylum-seekers on the grounds of illegal entry, which violated a number of rights enjoyed by asylum-seekers. Would the Ministry of the Interior be able to provide interpretation services at border facilities, including at special centres for the temporary accommodation of foreigners?

Statistics provided by an alliance of non-governmental organizations against domestic violence indicated that the problem was widespread in the State party. Citing paragraph 12 of the concluding observations of the Human Rights Committee, issued in August 2011 (CCPR/C/BGR/CO/3), she recalled the position of the Committee against Torture that domestic violence, including marital rape, could amount to torture and should be treated as such by the State party. The State party should extend the validity of protection orders in cases of domestic violence beyond the current length of one month. She expressed concern at the continuing practice of early informal marriage arrangements within the Roma community, particularly for girls under 14, despite the fact that the legal age for marriage was 18. The State party should adopt measures, including awareness-raising strategies, on the consequences of such arrangements and on the rights and duties of those involved. Although corporal punishment of children was illegal in all cases in the State party, public opinion remained ambivalent and the practice continued. She urged the Government to ensure that relevant legislation was implemented effectively.

Lastly, she asked whether progress had been made with regard to the request of the Ombudsman and the Commission for Protection against Discrimination to become designated national human rights institutions under the Paris Principles, as the Committee greatly valued the role of independent national human rights institutions in implementing the Convention.

Mr. Wang Xuexian (Alternate Country Rapporteur), welcoming the training available to law enforcement officers, asked whether a method to assess the impact of such training had yet been put in place. He sought the State party’s comments on the serious criticism of prison conditions by the Bulgarian Helsinki Committee. The progress made towards long-term improvement was positive, but more must be done as a matter of urgency. Some inmates had pursued successful claims through the courts and received compensation on grounds of poor conditions of detention; he asked how many such complaints had been filed and how many had reached court. He requested information on the 26 instances of ongoing criminal proceedings for poor living conditions in penitentiary facilities referred to in question 26 (c) of the list of issues, which the State party had not provided in its written replies.

Of the sizeable number of deaths in custody reported in recent years, he asked whether any cases had been connected with torture or ill-treatment and requested statistics disaggregated by cause of death. In view of the serious shortage of prison staff — sometimes resulting in a ratio of 1 member of staff to 300 inmates — and the lack of applicants to fill vacant posts, the State party needed a strategy to address the problem. Had such a strategy been devised? Violence in prisons was also rife: 567 cases had been recorded in the first half of 2011, representing a significant increase, and he asked how the State party planned to react.

He expressed serious concern at the deaths of 238 mentally disabled children over the last two years, and asked how many of those cases had been investigated, whether investigations had been terminated or brought before the courts, and how many of those responsible had been indicted.

There had been repeated calls for an independent mechanism to deal with allegations of torture and ill-treatment. How did the State party plan to respond? Did it consider the current body, which was part of the Ministry of the Interior, to be sufficiently independent? He enquired about the large discrepancy between the number of complaints filed against officials and the number of claims substantiated and disciplinary measures taken.

In its Views, issued in 2008, concerning communication No. 257/2004, Keremedchiev v. Bulgaria, the Committee had found a violation of article 12 owing to the failure to conduct an impartial investigation and a violation of article 16 on the ground of ill-treatment by the police. It had urged the State party to provide an effective remedy to the complainant, including fair and adequate compensation for the suffering inflicted and medical rehabilitation. He asked whether the authorities had acted on the Committee’s request.

The Committee would be interested in hearing about specific cases in which victims had been awarded compensation and the exact amount of compensation received. According to the reply to the list of issues, compensation ranged from 250 to 5,000 Bulgarian leva and could be increased, upon the death of the victim, to a maximum of 10,000 leva. He would appreciate some indication of the equivalent amounts in United States dollars.

There had been some criticism of the narrow interpretation by the courts of domestic violence. He asked for more details regarding their interpretation of the concept. The Committee had also been informed that sexual violence in general remained largely unaddressed, even in preventive Government programmes. Moreover, although forced early marriage at the age of 11 or 12 was against the law, it was still apparently quite common. He invited the delegation to comment on those allegations.

According to a survey of corporal punishment conducted in 2009, 34.8 per cent of respondents considered that while such punishment should not be used in general, it could be justified in certain situations. About 10.9 per cent of respondents considered that it was acceptable if parents believed that it would be effective. What action did the Government intend to take to generate awareness of the undesirability of corporal punishment?

The murder of a young man by Roma on 23 September 2011 had given rise to nationwide demonstrations, attacks, looting and the burning of houses, sometimes in the presence of police officers. While the young man’s death was extremely unfortunate, the resulting hate speech, with even high-level officials stating that Roma communities were a criminal element in society, was intolerable. The High Commissioner for Human Rights had issued a public statement of concern through her spokesperson, who had urged the Bulgarian authorities to publicly restate the principle of individual criminal responsibility, adding that the political leadership should take a strong stance against hate speech and ensure that police officers continued to be deployed in sufficient numbers to protect Roma neighbourhoods from threats of retribution and harassment. The spokesperson had asked whether the authorities had responded to those requests. Had any indictments been issued against those involved in criminal acts?

On 13 October 2011, the car of Sasho Dikov, a Bulgarian journalist and programme director of the private national television channel 3, had been bombed in an apparent murder attempt. He asked whether the incident had been investigated. Another journalist, Mirolyuba Benatova, a reporter for privately owned BTV, had been subjected to a hate campaign and prevented from working following her coverage of clashes between Roma and ethnic Bulgarians in the village of Katunitsa on 24 September 2011. Had any action been taken in that regard? Lastly, he requested details of the number of reported cases of human trafficking and the number of prosecutions and convictions since 2008.

Mr. Bruni said that, according to paragraph 135 of the State party’s replies to the list of issues, 977 applications for asylum had been submitted to the State Agency for Refugees during the period from January 2010 to July 2011. He asked whether any of the applicants had claimed that they would be in danger of being subjected to torture if returned to their country of origin and, if so, what action had been taken by the competent authorities. The Committee had enquired in its list of issues about the fate of two Palestinian refugees who had been deported to Lebanon in November 2010 and allegedly tortured. The State party had replied that the Ministry of the Interior did not monitor the situation of foreigners on their return to the country of origin. He pointed out that, pursuant to article 3 of the Convention, States parties were required to assess whether there were grounds to believe that prospective returnees would be in danger of being subjected to torture. He asked whether any such assessment had been undertaken in the case of the Palestinian refugees and whether any other Palestinians had been returned to Lebanon in the meantime. In general, what measures had been taken to ensure that persons at risk were not deported?

The European Committee for the Prevention of Torture had observed during a visit to Bulgaria in September 2006 that overcrowding was particularly severe at the remand facility in Plovdiv. He asked whether action had been taken to remedy the situation.

Paragraph 176 of the replies to the list of issues referred to plans to reconstruct detention facilities in 45 district police departments during the period 2010–2013. The necessary financial resources of 2,444,280 euros were to be provided from the State budget. He asked whether those funds had been made available and whether the project had been launched.

With regard to the placement of prisoners in solitary cells for violations of prison rules, he noted from the replies to the list of issues that the type and duration of such disciplinary sanctions varied. He drew attention in that connection to the position on solitary confinement adopted by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in his report to the General Assembly dated 5 August 2011 (A/66/268). In paragraph 72 of the report, the Special Rapporteur stated that solitary confinement, when used for the purpose of punishment, could not be justified for any reason, precisely because it imposed severe mental pain and suffering beyond any reasonable retribution for criminal behaviour and thus constituted an act defined in article 1 or article 16 of the Convention against Torture. In paragraph 84 the Special Rapporteur urged States to prohibit the imposition of solitary confinement as punishment either as part of a judicially imposed sentence or as a disciplinary measure. He asked whether the State party had taken any steps to implement that recommendation.

Mr. Mariño Menéndez joined Mr. Wang Xuexian in urging the State party to report on its follow-up to the Committee’s Views concerning communication No. 257/2004, Keremedchiev v. Bulgaria.

He asked for details of the prison regime applicable to detainees held in solitary confinement, in particular the grounds invoked to determine its duration and the rules and oversight provisions applied. Were the inmates in question suspected of participating in terrorism or in international organized crime?

He assumed that where the border authorities had doubts about the status of a particular asylum-seeker, an emergency procedure had to be followed. As a European Union member State, Bulgaria presumably implemented the harmonized refugee and asylum regime. The emergency procedure involved the adoption of an administrative decision on whether an application for asylum was admissible. If the application was rejected, could the asylum-seeker appeal to an ordinary court and, if so, was the expulsion procedure suspended until such time as a final decision was handed down?

A number of NGOs had reported the existence of corruption in the judiciary. In that connection, he enquired about the role and independent status of the Supreme Judicial Council. How were its members appointed and could it exercise disciplinary authority over members of the judiciary?

Mr. Gaye noted that the State party’s report had failed to mention article 2 (a) and (b) of the Convention, which stipulated that no exceptional circumstances whatsoever and no order from a superior officer or public authority could be invoked as a justification of torture. He enquired about the situation with respect to those two issues.

Article 15 of the Convention stipulated that any statement made as a result of torture was inadmissible as evidence. According to paragraph 61 of the report, a court’s verdict could not be based solely on the accused person’s confession. That principle did not, however, dispense with the need for a legal provision declaring that a confession obtained under torture was inadmissible.

According to paragraph 159 of the report, 25 magistrates had been found guilty of criminal offences. He was unsure whether a distinction was made in Bulgaria between magistrates and judges. In any case, the independence of the judiciary was vital and impunity should not be tolerated. He therefore enquired about the procedure whereby the magistrates in question had been brought to justice.

Paragraph 74 of the report quoted article 3 (2) of the Enforcement of Penalties and Detention Act, which defined torture or cruel or inhuman treatment. He pointed out that a distinction was usually made between torture, on the one hand, and cruel or inhuman treatment on the other. Article 3 (1) stipulated that convicted persons should not be subjected to torture or ill-treatment. Had any officials been punished pursuant to that provision?

He noted a tendency to impose consecutive sentences where several offences had been committed. If a number of penalties were imposed, could they run concurrently or were the sentences usually served consecutively? He also asked whether the judicial authorities had considered alternatives to imprisonment such as electronic tagging to address the problem of prison overcrowding.

According to the State party, a civil suit could be filed against a public official who had committed a crime in order to obtain compensation. He suggested that provision should be made for a State action for indemnity (action récursoire) against any official who had committed an offence for which the State was liable.

Ms. Sveaass welcomed the major institutional changes announced by the delegation. She was aware, however, that introducing such changes was frequently a long-term process requiring a great deal of monitoring. Moreover, deinstitutionalization was not always the best solution in cases where alternative care was required. A basic requirement applicable to institutions and hospitals as well as to foster, home-based or community care was that caregivers should respect the rights and dignity of the persons for whom they were responsible and that any violation of that principle should be investigated. Referring to the reports concerning deaths of children since 2000 and the 166 cases that were under investigation, she asked whether the conditions in the institutions, which had been described as deplorable, and cases of ill-treatment of children would also be investigated.

With regard to the system of guardians in psychiatric institutions, she noted that action was being taken under the Convention on the Rights of Persons with Disabilities to strengthen the right to self-determination of persons suffering from various kinds of mental disorders. The guardian system in Bulgaria did not fully take into account that focus on self-determination and the right to appeal against involuntary hospitalization. She understood that doctors sometimes acted as guardians of patients in the same hospital. As they could not be expected, in her view, to be independent, she asked how patients or families could appeal against their decisions.

While the State party was to be commended on the thoroughness of the information it had provided on trafficking in persons in Bulgaria, the Committee nonetheless required further data on what preventive measures had been introduced with a view to ensuring that women did not fall victim to trafficking, and on what psychosocial and psychological counselling was provided to women who had been trafficked.

The Committee was aware that serious hate crimes had been perpetrated against Jehovah’s Witnesses and members of the Roma community, and asked for further information on the steps that the State party was taking to investigate and prevent such attacks. The Committee was concerned that many cases of domestic violence against women and children were treated as civil offences and were not liable to criminal prosecution; in that regard, she asked what was being done to strengthen legislation to combat domestic violence.

According to the State party report, aggrieved parties were entitled to mediation in relation to criminal proceedings with a view to determining fair compensation. The Committee wished to know whether parties to a dispute could resort to mediation only in order to determine compensation, or whether, in cases involving torture, mediation could be used to determine alternative penalties to be imposed on offenders.

Ms. Belmir said that, in implementing reform of the justice system, a State party must strive to ensure that it complied with the United Nations Basic Principles on the Independence of the Judiciary and, in that regard, asked for further information on the criteria applied by the State party to limit the immunity of judges or remove them from their posts. The Committee was concerned that, pursuant to an amendment to the Constitution, a permanent Supreme Judicial Council had been established to coordinate judicial reform, since such councils were usually established only for a brief period of time.

The State party had stated that minors aged between 14 and 18 could, in certain cases, be held criminally responsible for their actions, in contravention of the Convention on the Rights of the Child. Although Bulgaria was to be commended for taking steps to bring its legislation more into line with that Convention, it must ensure that, particularly with regard to incidents of antisocial behaviour involving minors, children who were in conflict with the law were treated appropriately and were not brought before the courts.

The State party had acknowledged that iron bars and chains were used to restrain detainees in police custody. However, she welcomed the fact that Bulgaria had stated that instructions had been issued for such restraint techniques to be abolished. She asked whether persons had suffered injuries after being chained for long periods, whether they had received medical attention, and whether minors had ever been restrained in that manner. Under Bulgarian legislation, those serving life sentences were subjected to particularly harsh treatment during the first years of their imprisonment. While the State party had promised to review the matter, she asked what immediate steps could be taken to alleviate the situation of those prisoners.

The Chairman noted that a working group within the Ministry of Justice was revising the Criminal Code and asked what progress had been made in that regard. He also asked for further information on the status of the updated strategy for reform of the Bulgarian judicial system and, in particular, the State party’s plans to expand and improve access to quality legal services for detainees in police custody.

Cases had been brought against Bulgaria at the European Court of Human Rights regarding the length and conduct of criminal proceedings within the country, and Bulgaria had acknowledged that certain detainees had been held for over 6 months without being charged. He asked for further information in that regard and asked what percentage of detainees were given probationary rather than custodial sentences in order to alleviate overcrowding in prisons. The Committee also wished to know how the State party determined whether minors between 14 and 18 years of age understood the meaning and consequences of their behaviour, and whether they were ever tried as adults in Bulgarian courts. The Committee would like information on steps taken to implement the recommendations made by the Office of the Ombudsman, and how that Office was perceived in Bulgarian society.

According to the State party, no detailed statistics were available on discrimination against members of the Roma community, as it did not collect data on the ethnicity of victims. The Committee wished to know whether other data could be used to combat that phenomenon, including statistics on hate crimes in general and on the number of law enforcement officers who had received training in that regard. He also asked whether there had been any successful prosecutions of persons accused of discrimination, whether compensation had been awarded, and if any awareness-raising campaigns were conducted to combat discrimination in society.

The Committee was concerned that programmes to provide legal assistance to asylum-seekers had been discontinued. He asked whether that was due to insufficient funding and asked what alternative measures had been implemented to ensure that asylum-seekers could still access legal advice. He also asked whether the State party had opened the transit centre that was being built by the State Agency for Refugees.

He asked what steps the State party was taking to ensure that the provisions of the Istanbul Protocol were respected by the staff of detention facilities and how Bulgaria ensured that it complied with its obligations under the Convention, particularly with regard to detainees held in solitary confinement. The State party was also urged to review the measures it was taking to combat violence in prisons and to install video cameras inside prison facilities to deter violent attacks. He asked the delegation if it could provide data on incidences of domestic violence disaggregated according to the relationship between the victim and the perpetrator of the offence, so that an appropriate policy could be drawn up to combat that phenomenon. He also asked how often domestic violence involved members of minority groups, such as the Roma community.

The Committee required further details on how financial compensation was awarded to the victims of torture, and whether compensation was awarded only when a death occurred. Bulgaria had stated that no information was available on the exclusion of evidence obtained as a result of torture and other cruel, inhuman or degrading treatment or punishment because records were not kept on the inadmissibility of evidence. The Committee urged Bulgaria to provide that information so that Bulgaria’s compliance with the Convention could be assessed. Finally, he asked what legal steps were taken in order to place persons with mental disabilities in social care homes.

Mr. Tzantchev (Bulgaria) assured the Committee that the delegation would endeavour to provide answers to all the questions raised by the Committee at the meeting to be held the following day.

The discussion covered in the summary record ended at 12.05 p.m.