Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Visit to the Niger undertaken from 29 January to 4 February 2017: recommendations and observations addressed to the State party
Report of the Subcommittee * , **
II.Facilitation of the visit and cooperation3
III.Report methodology and structure4
IV.National preventive mechanism4
B.Principles for implementing the mechanism5
A.Police stations and gendarmerie posts7
I.List of persons with whom the Subcommittee met20
II.Places of deprivation of liberty visited by the Subcommittee23
1.In accordance with articles 11 and 13 (4) of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment undertook its first visit to the Niger, from 29 January to 4 February 2017.
2.The delegation was composed of the following members of the Subcommittee: Catherine Paulet (head of delegation), Hans-Jörg Bannwart (head of the Subcommittee’s Regional Team for Africa), Joachim Gnambi Garba Kodjo (Subcommittee Rapporteur for the Niger) and Radhia Nasraoui.
3.The Subcommittee members were assisted by three staff members from the Office of the United Nations High Commissioner for Human Rights (OHCHR), including a security officer, and by a local interpreter.
4.The purpose of the visit was to support the Niger in the implementation of the national preventive mechanism provided for under article 3 of the Optional Protocol and to conduct a field visit to places of deprivation of liberty.
5.The Subcommittee delegation visited several types of places of deprivation of liberty and met with the competent authorities of the Niger, including the acting Prime Minister and the Minister of State, the Minister of the Interior, the President of the National Assembly, the Minister of Justice, and representatives of the courts and the prosecution service.
6.The delegation also met with representatives of the National Human Rights Commission, the United Nations Development Programme, civil society, the bar association, the medical association and international organizations. The Subcommittee wishes to thank them for the valuable information they provided.
7.On 3 February 2017, at the conclusion of the visit, the Subcommittee presented its confidential preliminary observations orally to the authorities of the Niger.
8.The present report uses the generic term “ill-treatment” to refer to any form of cruel, inhuman or degrading treatment or punishment.
9.The Subcommittee’s report will remain confidential until such time as the authorities of the Niger decide to make it public, as stipulated in article 16 (2) of the Optional Protocol. The Subcommittee wishes to draw the State party’s attention to the possibility of applying for funding from the Special Fund established in accordance with article 26 of the Optional Protocol, for specific projects to implement the recommendations contained in the report, on condition that the report has been made public.
10. The Subcommittee recommends that the Niger consider publishing the present report in accordance with article 16 (2) of the Optional Protocol.
11. The Subcommittee requests the authorities of the Niger to reply to the present report within six months of the date of its transmission, giving a full account of the actions they have taken to implement the recommendations contained herein.
II.Facilitation of the visit and cooperation
12.The Subcommittee wishes to thank the authorities of the Niger for their excellent cooperation and for having designated Rabiou Assetou Traoré as liaison officer and focal point. Her diligence and availability helped to facilitate the on-site visit.
13.The Subcommittee is also grateful for the support provided by Ismail Kane Abdoulaye, human rights programme analyst for the United Nations Development Programme, who played a key role in ensuring that the visit went smoothly.
14.The Subcommittee notes with satisfaction that the Government of the Niger granted it unrestricted access to places of detention in accordance with the Optional Protocol. It regrets, however, the delay in receiving the credentials needed to access all places of deprivation of liberty, issued in accordance with the Subcommittee’s model, as well as the most recent texts of the State party’s counter-terrorism laws, which had been requested prior to the visit. It also regrets that it was not provided with information on gendarmerie posts, military establishments, detention centres for foreigners, camps for former combatants or information on some police stations, such as the antiterrorism police unit in Niamey, as a result of which the delegation was not able to include such information among the elements taken into account in preparation for the visit. Lastly, the Subcommittee regrets that the Ministries of Health, Defence, Protection of Women and Children, and Finance, which play an important role in the prevention of torture, were not represented at the initial and final joint meetings.
15.The Subcommittee notes with appreciation the frank and constructive dialogue with the authorities during the end-of-mission meeting and acknowledges the commitment by the highest levels of government to fulfil their obligations under the Optional Protocol, as expressed by Marou Amadou, Minister of Justice. Proof of that commitment is the road map submitted by the Ministry of Justice a month after the visit, together with an action plan for the implementation of the national preventive mechanism. The Subcommittee appreciates the level of professionalism, cooperation and efficiency of everyone with whom the delegation met.
III.Report methodology and structure
16.The report of the Subcommittee consists of three parts: the first deals with the issue of the national preventive mechanism, which the State party has not yet put in place; the second focuses on conditions of detention as observed during the visit; and the third outlines the legislative changes needed with respect to both criminal policy and prison policy. The Subcommittee is of the view that these sections address intrinsically linked structural problems and that analysing them together is likely to contribute to the prevention of ill-treatment.
IV.National preventive mechanism
17.The State party ratified the Optional Protocol on 7 November 2014 and, pursuant to article 17 thereof, it undertook to establish, within one year, a national preventive mechanism. The Subcommittee carried out its visit during a period when numerous legislative amendments were being introduced and when the national policy on justice and human rights and its accompanying action plan were being implemented. The Subcommittee welcomes the fact that the State party has expressed its commitment to establishing a mechanism as a matter of priority.
18.The authorities with whom the delegation met and the National Human Rights Commission believe that the mechanism should come under the Commission, mainly for reasons related to budgetary constraints in the State party and to the institutional independence of the National Human Rights Commission, which is underpinned by a strong organic act.
19.The Subcommittee takes note of Act No. 2012-44, establishing the composition, organization, functions and operation of the Commission, the text of which was provided by the authorities of the State party. It also notes that, under article 19 of the Act, the National Human Rights Commission is empowered to conduct regular announced or unannounced visits to places of detention and make recommendations to the competent authorities. It is also tasked with combating torture, acts of abuse and other cruel, inhuman or degrading treatment or punishment, in accordance with universal, regional or national human rights standards, which is the core mandate of a national preventive mechanism.
20.The Subcommittee does not take a position on whether a national preventive mechanism should be a separate body or form part of a national human rights institution. It notes, however, that the provisions of article 19 of the Act establishing the National Human Rights Commission do not, in and of themselves, provide the guarantees required under article 18 of the Optional Protocol.
B.Principles for implementing the mechanism
21.Although the State party is free to determine the institutional format of the mechanism, it is imperative for it to ensure that the mechanism conforms to the provisions of the Optional Protocol, as elaborated by the Subcommittee in its guidelines on national preventive mechanisms (CAT/OP/12/5), and to give due consideration to the Principles relating to the Status of National Institutions for the Promotion and Protection of Human Rights (Paris Principles).
22.The choice of an institutional framework for the mechanism should be the subject of a broad, inclusive and transparent consultation with relevant stakeholders, including the various national bodies that monitor human rights and places of deprivation of liberty, the political parties represented in parliament, and civil society organizations with expertise in the area of torture prevention.
23.The mandate and powers of the mechanism with regard to visits should be clearly defined in a legislative text, which should cover all places where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence, as established in article 4 of the Optional Protocol. If the option chosen by the State party is to place the mechanism under the National Human Rights Commission, Act No. 2012-44 establishing the National Human Rights Commission should be amended to reflect the criteria set out in the Optional Protocol. This means that the mechanism should be empowered to have access even to State facilities where persons have been detained without the prior involvement of the judiciary, as is presumed to be the case in the service known as the “Coordination”.
24.The legislation should also empower the mechanism to choose freely the places of deprivation of liberty to be visited, the timing of the visits, whether they are announced or unannounced, and the persons with whom private interviews are to be held, and to have access to all necessary information, including personal and confidential information, to enable it to examine the situation of persons deprived of their liberty and improve their treatment and conditions of detention, in accordance with articles 19 and 20 of the Optional Protocol.
25.The members of the mechanism should be selected in accordance with criteria explicitly set out in the law, with care taken to ensure a gender balance and to reflect the ethnic pluralism of the State party, as indicated in article 18 of the Optional Protocol. Even if the mechanism is placed under the National Human Rights Commission, the number of Commission members will have to increase and the scope of their activities will have to be broadened to include the area of health. The members of the mechanism should not hold positions which could raise questions of conflicts of interest. It would be highly desirable, for example, for the members of the mechanism not to be chosen from among persons currently holding posts in the civil service or in the criminal justice system, even if they temporarily relinquish their duties.
26.The legislation should also specify members’ periods of office, which may be renewable and should, if possible, be staggered, along with any possible grounds for their dismissal. Members and staff should enjoy privileges and immunities and the mechanism should establish a strategy for preventing reprisals against its members and against persons who provide the mechanism with information.
27.In accordance with article 18 (1) and (3) of the Optional Protocol, the mechanism should enjoy functional and financial independence and should receive the resources necessary to enable it to carry out its mandate effectively. This implies that the State party should ensure that funds are specifically allocated to the mechanism. Such funding should be sufficient to allow the mechanism to carry out its programme of visits in all regions of the country and to conduct follow-up activities. If the mechanism is placed under the National Human Rights Commission, the mechanism’s budget request should be prepared by the mechanism itself on the basis of its workplan and should be submitted to the State authorities separately from that of the National Human Rights Commission. Once the budget is approved, the mechanism should be free to make its own decisions concerning the use of its specific resources.
28.If the State party chooses to place the mechanism under the National Human Rights Commission, the Subcommittee suggests that, in order to ensure its functional independence and its visibility, its functions should be entrusted to a parallel structure, with its own staff and budget. It is important to ensure that the public, in particular persons deprived of their liberty, and various stakeholders are aware of the work and mandate of the mechanism and understand that its activities are focused on prevention, confidentiality and systemic analysis of the causes of torture and ill-treatment. The working methods and the safeguards for ensuring the independence of the mechanism, including cooperation and sharing of information with the National Human Rights Commission, should be set out in internal regulations. The annual report of the mechanism, which should be published in accordance with article 23 of the Optional Protocol, should be separate from that of the National Human Rights Commission.
29.The Subcommittee takes note of the road map developed to lay the foundations for an independent mechanism and of the timeline for its establishment.
30.Pursuant to the mandate entrusted to it under article 11 (b) of the Optional Protocol, the Subcommittee stands ready to provide advice and technical assistance to support the State party in this process.
31. Although it is the State party ’ s prerogative to decide how to structure the mechanism in order to make it most effective, the Subcommittee recommends that it take account of the following:
(a) The mechanism should be established in accordance with the relevant provisions of the Optional Protocol and of the Paris Principles;
(b) The institutional framework for the mechanism should be selected through a transparent, inclusive and participatory approach in order to determine the institutional configuration that would be most effective in preventing torture and avoiding overlap of mandates and duplication of effort. The same approach should be applied in identifying and appointing the members of the mechanism, which should be done in accordance with criteria set out in a legislative text. The selection process should also ensure gender balance and take account of ethnic pluralism. Members should collectively have the expertise and experience necessary to fulfil their mandate, including medical knowledge, and should not hold positions which could raise questions of conflict of interest;
(c) The mandate and powers of the mechanism with regard to visits should be clearly defined in a legislative text, which should cover all places where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence, as established in article 4 of the Optional Protocol;
(d) Visits should be conducted in the manner and with the frequency that the members of the mechanism decide. The mechanism should have the ability to conduct private interviews with persons deprived of their liberty and the right to carry out unannounced visits at all times to all places of deprivation of liberty, in accordance with the provisions of the Optional Protocol;
(e) The financial and operational independence of the mechanism should be guaranteed by law and in practice. The necessary resources should be allocated to ensure the effective operation of the mechanism;
(f) The State party should publish and widely disseminate the annual reports of the mechanism.
A.Police stations and gendarmerie posts
32.During the visit, the delegation visited five police stations and one gendarmerie post in Niamey (see annex II).
1.Physical and sanitary conditions of detention
33.The delegation noted that detainees in police stations were being held under conditions that were not in conformity with the Nelson Mandela rules. Some cells were very small: individual cells at the antiterrorist brigade facility measured 2.59 m2; judicial police cells, where two detainees were being held at the time of the visit, measured 5.60 m2; the cell at the Yantala police station, where two detainees were being held, measured 8.77 m2; and the cell at the central police station, which measured 15.63 m2, at times holds up to seven individuals, according to information obtained from detainees. Most cells lacked light (either natural or artificial), and in place of windows there were sometimes holes, such as at the judicial police station, or the windows were closed, such as in the cell for women and children at the antiterrorist brigade facility. The cells lacked adequate ventilation ducts. None of the cells inspected had toilets or showers, except those of the antiterrorist brigade, which were in very poor condition. No personal hygiene products were made available to detainees, who slept on the floor, with no mattresses, blankets or protection against mosquitoes, in cells that were sometimes very unhygienic, with a strong smell of urine and faeces, such as the cells at the central and Yantala police stations, where a corner of the cell with a simple hole draining to the outside served as a toilet.
34.The interviews conducted by the delegation revealed that most of the police stations and gendarmerie posts visited did not have a budget for feeding detainees, who are given meals once a day by their own families or sometimes by the officers themselves.
35.The delegation also observed that no suitable space had been made available for daily exercise in the open air by persons held in police custody for long periods, especially at the antiterrorist brigade facility, where, by law, detained persons may be held for up to one month.
36.The delegation was informed that there were no cells for women or children at the Yantala police station. They are placed on a bench opposite the front desk and, where necessary, handcuffed to the bench.
37. The Subcommittee recommends that the authorities of the Niger take steps to improve the conditions of detention at police stations and gendarmerie posts and ensure that:
(a) Individual cells are occupied by only one detainee at night and that the 2.59 m 2 cells at the antiterrorist brigade facility are used only for periods of a few hours;
(b) Cells at police stations are ventilated and have sufficient natural or artificial light;
(c) Hygienic and sanitary conditions in police detention facilities are improved;
(d) Detainees at police stations are provided with mattresses, bedding and mosquito nets;
(e) Police stations and gendarmerie posts have a budget for food;
(f) Detainees have access to safe drinking water within the premises and to toilets, showers and personal hygiene products;
(g) Every detainee is able to engage in at least one hour of physical exercise per day in the open air;
(h) Separate cells are provided for women and children, particularly at the Yantala and the judicial police stations.
2.Fundamental legal safeguards
(a)Right to be informed of one’s rights and of the reasons for one’s arrest
38.The Code of Criminal Procedure of the Niger does not guarantee the right of persons in police custody to be informed of their rights or of the reasons for their arrest or of the charges against them.
39.The delegation was informed that the rights of detainees are indicated in the arrest record, which is written in French by the police officer. Under article 57 of the Code of Criminal Procedure of the Niger, persons in police custody read the arrest record themselves, unless they state that they do not know how to read, in which case, the record is read and translated to their language for them by an interpreter or by a police officer. However, the interviews conducted by the delegation revealed that most detainees who had stated that they were illiterate or spoke a local language had signed (or affixed their fingerprint to) their arrest record without knowing its content. With the exception of those held at the antiterrorist brigade facility, most detainees stated that they had not been informed of their rights, and none of the detainees were aware of their criminal status or of what further proceedings would ensue.
40.The delegation was informed that the majority of persons detained for alleged terrorist acts in the context of military operations in Diffa had not been informed of their rights or of the reasons for their arrest prior to their arrival at the antiterrorist brigade facility in Niamey, which occurred four to nine days after their arrest.
41. The Subcommittee recommends that the State party adopt the necessary legislative and administrative measures to ensure that all persons deprived of their liberty are informed of all their rights and of the reasons for their arrest at the outset of the deprivation of liberty and, as soon as possible thereafter, of the charges against them. Such information should be provided orally at first, in clear language and in a language that the person understands, with the assistance of an interpreter if necessary, and should then be provided in writing to the persons concerned. Information on these rights should also be made generally known to all in all places of detention, through the use of signs posted where detainees can see them.
(b)Right to legal counsel
42.Article 71 of the Code of Criminal Procedure provides that suspects who have been held in police custody for 24 hours must be advised of their right to retain a lawyer; if they are not, the proceedings may be declared null and void. In the case of persons suspected of terrorist acts, new article 605.5 of the Code of Criminal Procedure, introduced by Act No. 2016-21 of 16 June 2016, extends the time limit for notifying detainees of their right to be assisted by a lawyer to 48-hours. The Subcommittee notes that the law does not guarantee the right of detained persons to have access to a lawyer; it provides only that they must be informed of that right within 24 to 48 hours of being taken into custody. Hence, effective access to a lawyer could be delayed beyond those deadlines. The interviews conducted by the delegation revealed that most detainees had not been informed of their right to consult a lawyer and that those who had been informed at the antiterrorist brigade facility had not asserted that right. Other information gathered by the delegation indicates that a sizeable number of lawyers have access to their clients only after the latter have been interviewed by the police.
43.The Code of Criminal Procedure does not guarantee the right of prisoners to consult with their lawyers in private. The delegation was informed that meetings between prisoners and their lawyers sometimes took place in the presence of police officers.
44.Geographical and economic barriers hinder access to legal aid in the Niger. According to the information received, there are only 146 lawyers, including 24 trainee lawyers, in the country, and 145 of them are located in Niamey. Given the poverty of a large segment of the population and the scarcity of lawyers outside Niamey, access to professional legal assistance is difficult. The National Agency for Legal and Judicial Assistance was established by Act No. 2011-42 of 14 December 2011 to facilitate access to justice for the poor, especially in rural areas. However, according to the information obtained by the delegation, the Agency’s public defenders are not lawyers and do not have the necessary experience or skills.
45.The Subcommittee recommends that the State party adopt the legislative amendments required to ensure that persons in custody are able, regardless of the reasons for their detention, to have access to a lawyer of their choice or to a public defender from the moment of their arrest (see A/HRC/16/51, practice 10 (2)) and to have their lawyer present from the time they are first questioned. This right should include the opportunity to confer with a lawyer in private and never within earshot of police officers. Public defenders should have experience and skills commensurate with the nature of the offence and, whenever possible, should be lawyers. The authorities should consider measures to increase the number of lawyers trained in the country each year and to encourage them to establish themselves in the various regions of the country.
(c)Right to a medical examination
46.In accordance with article 71 of the Code of Criminal Procedure, whenever a person is brought before a court, a medical certificate must be presented attesting that the individual has not suffered ill-treatment. The Subcommittee is concerned, however, that this provision of the Code is being applied only at the antiterrorist brigade facility, where a medical examination is performed by a police physician affiliated with the National Police Directorate, which could create a conflict of interest.
47.The delegation was informed that, although doctors were required to examine detainees when officially requested, they refuse to do so unless they are paid for their services. There is no agreement between the Ministry of Justice and the Ministry of Health to cover these costs, and the persons examined are expected to pay them. Most of the detainees with whom the delegation met had not been informed of their right to a medical examination and had not been examined.
48.In the case of detainees who are ill, their families are called by the police to take their relative to a hospital after having signed a “release for care” form. Persons who have no family are accompanied by police officers.
49. The Subcommittee recommends that a medical examination be performed systematically on all arrested persons as soon as possible after they are taken into custody; the examinations should be carried out by independent doctors who have been trained in the application of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).
50. The Subcommittee also recommends that the State party establish an agreement between the Ministry of Justice and the Ministry of Health in order to cover the costs of medical examinations and care for persons in custody.
(d)Notification of family members
51.The Code of Criminal Procedure does not guarantee this right. The interviews conducted by the delegation indicated that detainees’ right to inform a family member is often not respected.
52. The Subcommittee recommends that the State party ensure that, in all cases and in all circumstances, persons taken into custody are able to contact their families or other persons of their choice from the moment they are deprived of their liberty. Moreover, judicial police officers should ensure that detainees are duly informed of the steps taken on their behalf.
(e)Duration of custody and lack of a habeas corpus procedure
53.Under article 71 of the Code of Criminal Procedure, a suspect may be held in custody for 48 hours. The period may be extended for an additional 48 hours by authorization of the public prosecutor. The delegation noted that extensions of police custody were virtually automatic. In some cases, according to the records of the judicial police, the maximum period has been exceeded, giving rise to abusive detention for five or six days. Records of extension proceedings had been entered into the registers in order to justify the extension, but they had not been signed by the prosecutor. In addition, the delegation was informed that detainees brought before the court after 10.30 a.m. were no longer accepted by the Office of the Prosecutor and had sometimes been held for an additional day by the police.
54.In terrorism cases, new article 605.5 of the Code of Criminal Procedure, introduced by Act No. 2016-21 of 16 June 2016, extends the allowable period of police custody up to 15 days. The period may be extended by a further 15 days by written authorization of the prosecutor of the specialized counter-terrorism judicial unit or of the investigating judge.
55.The Subcommittee regrets that persons deprived of their liberty do not have the right to challenge the legality of their detention before a judicial authority (habeas corpus) and that it is the public prosecutor, not a judicial authority with an independent, objective and impartial view of the matters at issue, who is responsible for the judicial review of detention. The provisions of the Code of Criminal Procedure do not ensure that the person concerned will be brought before the relevant authority; they provide only for the authorization of an extension of detention by the prosecutor.
56.The Subcommittee recommends that the State party redouble its efforts to ensure that the maximum duration of police custody does not exceed 48 hours, with the possibility for one extension in exceptional circumstances, if justified by tangible evidence. The State party should also adopt the legislative amendments required to ensure that every detainee appears physically, within 48 hours from the time of his or her arrest, before a judge who is independent and impartial in respect of the matters at issue, so that the judge can rule on the need for detention and ensure that the legality of the detention can be challenged.
(f)Right of persons to notify consular authorities of their detention
57.During its visits, the Subcommittee encountered detainees from countries other than the Niger. None of them had been informed of their right to notify consular authorities of their detention.
58. The Subcommittee recommends that the State party take the necessary measures to ensure that consular authorities are notified whenever one of their nationals is taken into custody and that such information is duly noted in a custody register (person contacted, date and time).
59.Most of the police stations visited had two daily registers, an event logbook and a detention register, with the exception of the antiterrorist brigade, where the delegation had access only to daily records, which had not been filled in properly, as they did not always mention the date of a person’s arrival at the brigade facility or the day on which the case was referred to the prosecutor. Even when the date of arrival at the brigade facility was mentioned in the record, the time of arrival was not included. When the delegation requested additional information from the chief of the brigade on the lack of records, he said that it was an irregularity. This lack of records makes it difficult to verify compliance with the time limits on custody and the existence of an extension approved by the prosecutor.
60.The delegation noted with concern the gaps in the records of police stations and gendarmerie posts. Their registers sometimes did not include data on dates or time of release of persons in custody, the date of referral to the prosecutor or the duration or extension of police custody. In addition, information regarding a detainee was often entered in several different registers, which made it difficult to arrive at an understanding of the detainee’s overall situation. The recording system is manual, not computerized, and is unreliable.
61.The delegation also observed that detainees never signed in the column of the register showing the list of their belongings seized by the arresting authority, and that there were no records of complaints or of the use of means of coercion or disciplinary measures, nor were there records of visits with family members or lawyers or of detainee deaths or transfers to hospital or to prison.
62.Lastly, the delegation observed that there were no medical records in most police stations and gendarmerie posts, with the exception of the antiterrorist brigade infirmary, where a nurse-police officer established a medical record that was filed at the brigade facility.
63. The Subcommittee recommends that the State party put in place a centralized, harmonized and, if possible, computerized system covering the entire country and that it ensure that data concerning persons taken into custody are recorded in a rigorous, systematic and comprehensive manner, in accordance with the Nelson Mandela rules (rules 7 and 8).
64. All police stations and gendarmerie posts should maintain records of medical examinations of arriving detainees and of medical consultations, transfers for medical treatment and deaths.
4.Allegations of torture and ill-treatment
65.The Subcommittee was informed of only a few allegations of torture or ill-treatment of persons in custody. However, the Subcommittee remains concerned at information provided by some detainees, who claimed to have been subjected to violence by police officers at the time of their arrest, including punching and, in the case of persons suspected of acts of terrorism, thrashing with rope whips by military personnel. Some detainees interviewed at the Kollo prison confirmed that they had been subjected to physical abuse and that their belongings had been confiscated by soldiers at the time of their arrest. Some persons detained in connection with acts of terrorism also complained of being tightly handcuffed for 12 hours or more, even when they were inside a cell.
66.The Subcommittee recommends that police personnel and public officials are authorized to make arrests periodically receive clear and categorical instructions reminding them of the absolute and mandatory prohibition of any form of torture or ill-treatment and of the need to avoid using more force than is strictly necessary. The Subcommittee reminds the State party that it must ensure that its competent authorities proceed systematically and promptly to conduct an impartial investigation wherever there are reasonable grounds to believe that an act of torture or ill-treatment has been committed. If it is deemed essential to handcuff someone and no other form of control can be used, the handcuffs should not be too tight and should not be used for longer than is necessary.
67.The Subcommittee notes that the State party has organized awareness training on human rights for police officers. It nevertheless also notes the inadequacy of this training, which is not held regularly and does not focus on the prevention of torture, as indicated by the police officers themselves. The Subcommittee also takes note of the concerns expressed by police officers about lack of technical expertise for conducting investigations, lack of equipment and the importance of strengthening the forensic police force in order to establish evidence and not work solely on the basis of confessions.
68.The Subcommittee recalls that, under articles 10 and 11 of the Convention against Torture, the State party has the obligation to ensure that education and information regarding the absolute prohibition of torture and ill-treatment are an integral part of continuing education for staff. The Subcommittee requests the authorities to improve training for judicial police officers in interrogation techniques and to give police forensic units the resources needed to conduct forensic examinations and analyses with a view to documenting criminal offences and identifying perpetrators. The Subcommittee encourages the State party to seek technical assistance from the Office of the United Nations High Commissioner for Human Rights and financial support from international donors in order to enhance staff training.
69.The delegation visited the Kollo prison, located 35 km from Niamey. Built as a reintegration centre in 1984, the facility now houses mainly prisoners implicated in terrorism-related cases.
1.Physical conditions of detention
70.At the time of the visit, the Kollo prison housed 1,031 individuals, including 10 women (1 convicted), 2 juveniles in conflict with the law and 3 children staying with their mothers in prison. Among the prisoners, 94 per cent (971) were remand prisoners, 53 were convicted prisoners and 80 per cent (821, including 5 women and 350 foreigners) were persons accused of belonging to Boko Haram. Neither the government authorities nor the interim prison director gave a clear indication of how many individuals the prison was designed to accommodate.
71.There were four detention units: the women’s unit, the terrorist suspect unit (“the Boko Haram unit”), the unit for ordinary prisoners and the unit for public officials and other detainees housed separately from the rest of the prison population (for example, former politicians, members of the military, customs agents or managers). Minors in conflict with the law were not separated from adults, but two new dedicated units for juveniles and women were in the advanced stages of construction, thanks to financial support from the International Committee of the Red Cross. The Subcommittee is concerned that the State party is not adhering to the principle of separating remand prisoners, convicted prisoners and juveniles from adults, as required by Decree No. 99-368/PCRN/MJ/DH of 3 September 1999, which established the organization and internal regulations of the prison system (art. 5).
72.The units were structured as communal cells around a central courtyard. Detainees were allowed to remain in the courtyard from 6 a.m. to 8 p.m. Bathhouses with showers had been installed in the courtyards, but at night, when the cells were locked, inmates had to relieve themselves in buckets, with no privacy. Soap was distributed when it was available. The delegation observed that the food provided by the facility was inadequate in terms of quantity and quality. Inmates were eating twice a day, mainly corn, rice or sorghum. They received one serving of meat per week.
73.The Boko Haram unit was heavily overcrowded. According to the information provided by the interim prison director on numbers of prisoners per cell, the 20 communal cells housed between 17 and 53 prisoners and the floor space for each person was about 0.80 m2, which led to crowding and a risk of abuse and violence, as well as poor hygiene and health conditions (skin diseases, epidemics, etc.). The prisoner count information also indicated that 151 persons had no place in the cells. The Subcommittee was informed that, in order to avoid overcrowding and suffocating heat, the elderly, the sick, yard bosses and persons considered to be well-behaved spent the night outdoors in the central courtyard or in the mosque. Hygiene conditions in this unit (infested with bugs, latrines in deplorable condition, etc.) were particularly poor.
74.In the units for ordinary prisoners and public officials, inmates were living in relatively healthy conditions. The communal cells held fewer detainees and the floor space per person ranged from 3.2 m2 to 6 m2. The cells were clean and well-ventilated and the prisoners slept on mattresses.
75.With regard to the women’s unit, eight women and three children were housed in a communal cell measuring 26.06 m2, located outside the area where male prisoners were held. They slept on mats and kept their personal effects on the ground. The cell was clean and there was drinking water inside it, but there was insufficient natural light and no source of artificial light. The women spent the day outside the cell, from 6 a.m. to 8 p.m., and were able to prepare their meals in outdoor communal kitchens.
76.Inmates had no access to newspapers or televisions. Their only contact with the outside world was through visits with family members, which had to be authorized by the public prosecutor or the investigating judge. Ordinary prisoners and those in the unit for public officials could receive visitors once during the week and at weekends, while those in the Boko Haram unit were allowed visitors only on Tuesdays. Only one visitor per detainee was allowed, and visits took place without any privacy in visitation rooms that accommodated five people at a time, for a period of 5 to 10 minutes, even for people who had come from afar, such as from Diffa, which is located 1,345 km from Kollo. Through the International Committee of the Red Cross, ordinary prisoners were allowed to communicate with their families by telephone, under the supervision of guards, although not in all cases. Some prisoners in the Boko Haram unit reported that they were not able to communicate with their lawyers by phone or by mail, unless the lawyer initiated the contact.
77.Inmates were responsible for cooking and for cleaning the cells and toilets on a daily basis. There was a sewing workshop and a library, but those facilities were not being used owing to lack of staff. There was no formal arrangement for the education or training of detainees, nor were detainees able to engage in sports.
78. The Subcommittee recommends that the State party take robust measures, including the use of alternatives to deprivation of liberty, in order to reduce the overcrowding observed at the Kollo prison, especially in the Boko Haram unit. The State should also improve detention conditions in that unit by (a) ensuring that detainees have a reasonable amount of space in their cells, (b) ensuring that they have mattresses, bedding and mosquito nets, (c) ensuring that cells have adequate ventilation and natural and artificial light, (d) improving hygiene and sanitary conditions and (e) ensuring that prisoners have access to toilets both during the day and at night.
79.The Subcommittee recommends that the State party ensure access to adequate food, to drinking water at all times and to such personal hygiene articles as are necessary, including to meet the specific needs of women. The State party should also ensure that different categories of detainees are separated and should finalize as a matter of urgency the work on the new units for women and juveniles so that they may be moved into those units as soon as possible.
80.The Subcommittee calls on the State party to ensure that all detainees are treated on an equal basis and are entitled to the same visitation times. To the extent possible, detainees should be placed in prisons close to their homes. Measures should be taken to counterbalance the disadvantages faced by persons detained in institutions located far from their homes, for example by allowing a series of visits over several consecutive days. Detainees should be allowed, under necessary supervision, to communicate with their families and friends at regular intervals, by correspondence in writing and by telephone; any restrictions on this right should be imposed by an independent body for the shortest possible period of time. Correspondence with counsel should be authorized as often as necessary and should take place in a confidential manner. Detainees should be kept regularly informed of the most important items of news by reading newspapers or by hearing wireless transmissions. The Subcommittee recommends that the State party put in place a prison education programme, facilitating access to vocational training and to the library and providing access to education at the primary and secondary levels, in particular for illiterate prisoners and young prisoners, as well as to higher education, in order to facilitate the rehabilitation of prisoners and their reintegration into the community. Recreational and cultural activities should be organized, and prisoners should be equitably remunerated for the work they perform.
2.Torture and ill-treatment and complaints system
81.The delegation received allegations that guards had beaten detainees with pipes, sticks, cable or whips on their naked bodies as a form of punishment when they had done something wrong, before sending them to isolation cells. Such punishments were carried out outside the cells or in the space reserved for the guards at the entrance of the prison. The delegation found pieces of pipe and sticks on the ground right next to the guard post at the prison entrance. Other detainees indicated that they had been beaten with sticks by guards as a means of getting them to return to their cells more quickly at lockdown in the evening. The Subcommittee notes that Decree No. 99-368/PCRN/MJ/DH explicitly prohibits prison staff from committing acts of violence against detainees (art. 32).
82.Although the director makes regular visits to the prison courtyards and meets with prisoners on request, in accordance with article 55 of Decree No. 99-368/PCRN/MJ/DH, there are no formal procedures for prisoners to lodge complaints about their treatment or conditions of detention.
83. The Subcommittee recommends that prison personnel periodically receive clear and categorical instructions reminding them of the absolute and mandatory prohibition of any form of torture or ill-treatment, as provided under domestic legislation.
84.It also recommends that a mechanism be established to enable all detained persons to lodge confidential complaints of torture or ill-treatment, or complaints about their detention conditions, with the prison management and with independent oversight bodies, and that the investigation of such complaints be included as part of established inspection visit mechanisms. Procedures should be in place to ensure that such complaints will not give rise to any reprisals. The Subcommittee also recommends that the mechanism provide for prompt, independent and impartial investigation of all such complaints, in accordance with articles 12 and 13 of the Convention against Torture .
3.Access to care
85.The Subcommittee regrets that medical examinations of arriving detainees are not being performed by a doctor and that the health-care team consists of a single nurse (a police major), although he is able to seek advice from the doctor at Niamey. Emergency medical care is provided at the nearby hospital.
86.The delegation was informed that psychiatric cases were normally transferred to Niamey, but at the time of the visit there were two people with psychiatric disorders who had been in custody for a month at the Kollo prison because they had no other home.
87.The delegation was informed that medical transfers were not carried out promptly, even in emergency cases. Although there was no register of prisoner deaths, the delegation observed that during the period 2015–2016, six deaths had been recorded in the computer of the registrar. The prison reportedly compiled reports of deaths, but the delegation was not able to verify the existence of such reports.
88.The Subcommittee recommends that the State party entrust the Ministry of Health with responsibility for organizing health care and managing the health of the prison population, in coordination with the Ministry of Justice and the Ministry of the Interior, on the basis of the principle that all prisoners should have access to the same standards of care that are available in the community in the Niger. A night service should be put in place to respond to medical emergencies, and prisons should be equipped with vehicles to enable rapid transport of persons with medical emergencies to a hospital. A psychiatrist should also be available within the detention system, and detainees with mental disabilities should be transferred as soon as possible to a mental health facility.
89.The State party should ensure that a medical examination is always performed by an independent doctor whenever a prisoner enters any prison. If health personnel note signs of torture or ill-treatment when initially examining or providing subsequent medical care to a prisoner, they should document and report such cases to the competent medical, administrative or judicial authorities. Mechanisms should be put in place to ensure that such cases are reported and that victims are protected against reprisals.
90. All cases involving the death of a person in custody should be immediately reported to an independent and impartial body, so that an inquest can be conducted to determine the circumstances of the death.
91. The Subcommittee recommends that registers be established to record medical visits by arriving detainees, medical care provided to detainees, transfers for medical treatment and deaths, including the circumstances and causes, as well as the final disposition of the deceased. It also recommends that prison health personnel be given regular training on the pathologies and groups present in the prison population and on the Istanbul Protocol.
92.The delegation noted that the prison had several registers, which were generally well maintained, with records of transfers and removals. However, the delegation also noted with concern that the custody register did not contain any information for the period 1999–2005, and the registrar was not able to provide an explanation for the failure to record any data.
93.The Subcommittee is also concerned about the lack of complaints records at the prison, as well as the lack of records of disciplinary sanctions, personal effects, events and deaths, although such records are required under Decree No. 99-368/PCRN/MJ/DH, which established the organization and internal regulations of the prison system (art. 43).
94.The State party should ensure that prison registers are maintained rigorously throughout the year, so that they can serve as an accurate record of the detainee ’ s time in the facility and, thus, as a true safeguard against ill-treatment and abusive practices. Prison authorities should establish a logbook for recording all events occurring in the prison, a register of internal complaints by detainees and registers of disciplinary and restraint measures and of the monetary and non-monetary property of detainees.
95.The delegation is concerned about the fact that detainees have been placed in disciplinary cells in physical conditions that are inconsistent with the Nelson Mandela rules. It noted, inter alia, that the cells lacked ventilation, except for small windows in the doors. The size of the cells was 4 m2 and they held two or three prisoners, or sometimes four, according to the prison director. Ordinary prisoners and prisoners from the Boko Haram unit were being held together; at the time of the visit, a prisoner from the Boko Haram unit was handcuffed while inside the cell, as authorized by Decree No. 99-368/PCRN/MJ/DH. One of the detainees was suffering from obvious psychiatric problems, and the delegation was not able to have a conversation with him. The cells lacked a source of water and the prisoners used a bucket to relieve themselves, creating a foul odour.
96.Inmates were kept in solitary confinement for periods ranging from 3 days to 1 month for reasons such as possession of a mobile phone. None of the inmates in solitary confinement had been informed of the duration of their confinement and some had not been informed of the reasons. According to the prisoners, inmates subject to such measures were allowed outside once a day, for between half an hour and two hours, in order to perform chores (sweeping, cleaning latrines, cooking, etc.). In accordance with Decree No. 99-368/PCRN/MJ/DH, the prison director collects all relevant information and decides on disciplinary measures; there is no procedure for contesting such decisions.
97.The delegation also observed that female inmates were confined to a cell at the time of the visit, as a form of collective punishment, because a mobile phone had been found during a search of the cell.
98.The Subcommittee recommends that the State party ’ s prison authorities impose solitary confinement only when strictly necessary and only as a last resort, for as short a time as possible, in accordance with the Nelson Mandela Rules. Any solitary confinement decisions should be subject to due process, so that the facts can be established and prisoners have the chance to defend themselves at an independent review. To that end, the Subcommittee recommends that the State party adopt rules establishing that all solitary confinement decisions must comply with international standards and with the Nelson Mandela R ules and that it inform all detainees of those rules. Once solitary confinement has been imposed, the inmate should be informed immediately of the decision and should be able to challenge it through internal and/or judicial procedures. Collective punishments should not be permitted under any circumstances. Instruments of restraint should not be used as a disciplinary measure. Persons with mental disorders should never be subjected to solitary confinement, and dangerous prisoners who are likely to exercise a bad influence on other inmates should be placed in separate cells. The Subcommittee also urges the State party to ensure that the isolation cells at the Kollo prison are modified so that their size conforms to international standards, that they have ventilation and light, and that they are equipped with toilets and a water source, or, at a minimum, that inmates can relieve themselves whenever necessary and have access to showers.
6.Need for a specialized prison service and training
99.While prisons come under the authority of the Ministry of Justice, the staff belong to the National Guard, which comes under the Ministry of the Interior. There is therefore no prison service with special training in the supervision and management of prisoners. The delegation observed a shortage of staff during the visit. Excluding administrative staff, the proportion of prison staff to prisoners is 1 to 140.
100.To address this shortage, prison officials rely on an “internal police force”, which, pursuant to Decree No. 99-368/PCRN/MJ/DH, consists of inmates known as “sarkis” or yard bosses, under the supervision of staff. Sarkis are designated by the prison director, in collaboration with the chief registrar and security officers, on the basis of exemplary behaviour, and serve as a liaison with other inmates. Sarkis reportedly enjoy numerous privileges with regard to their conditions of detention. This system of self-government generally means that all communication between inmates and the prison authorities is filtered through the sarkis, which could give rise to corruption in the prison.
101. The Subcommittee recommends that the State party establish a specialized civilian prison service and that it ensure that education and information regarding the prohibition of torture and ill-treatment are an integral part of the training of prison staff.
102.The Subcommittee recommends that the State party carefully monitor situations of self-government in prisons in order to prevent abuse and corruption. The authority to impose disciplinary measures should never be entrusted to persons who are not members of the prison administration, which must perform all tasks in exercise of its official authority and on the basis of a clear, effective procedure. The authorities should strive to ensure that all prisoners are treated equally and to eradicate corruption, punishing perpetrators and informing prisoners and their families of their rights.
1.Definition of torture and admissibility of confessions
103.The Subcommittee notes that article 14 of the Constitution of the Niger prohibits torture, but this prohibition is not expressly enshrined in the country’s laws. Since the State party’s accession to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 5 October 1998, it has still not adopted legislation that explicitly defines and criminalizes torture. Acts of torture are criminalized only when they constitute crimes against humanity or war crimes (arts. 208.2–208.4) or aggravating circumstances (arts. 244, 267 and 399.12) The Subcommittee notes, moreover, that the rules for the handling of evidence established under the Code of Criminal Procedure (arts. 414–443) are not always clear enough to give reason to believe that confessions extracted under torture would not be admitted by the courts. At the time of the visit, the delegation was informed by the Minister of Justice that a bill on torture was to be considered by the Cabinet. The Minister provided the definition of the crime of torture proposed under the bill, which appeared to be in line with article 1 of the Convention against Torture. Regrettably, however, the State party did not provide the delegation with a copy of the bill as requested.
104.The Subcommittee reminds the State party that the definition and criminalization of torture should be considered a priority. The Subcommittee calls on the State party to expedite the legislative reform process and to take the necessary measures to promulgate and adopt the new law on torture as soon as possible in order to fill the current legal gap, which encourages impunity.
105. The Subcommittee also recommends that the State party put in place the necessary legislative measures to establish explicitly under domestic law that, in accordance with article 15 of the Convention against Torture, confessions obtained illegally, particularly under torture, cannot have evidentiary value in court.
2.Use of pretrial detention and alternatives to detention
106.The Code of Criminal Procedure provides for pretrial detention (arts. 132 and 132.1) for a maximum of 6 months for ordinary offences (with the possibility of one extension for the same period) and 18 months for criminal offences (with the possibility of one extension for a maximum of 12 months). The Subcommittee is concerned that, according to various sources and interviews, pretrial detention often extends beyond these maximum time limits. The new Act No. 2016-21 of 16 June 2016 increases the maximum duration of pretrial detention to four years in terrorism-related criminal matters.
107.The Subcommittee is alarmed that pretrial detention appears to be the rule rather than the exception. Although the Code of Criminal Procedure (art. 138) provides for the possibility of bail, most detainees cannot afford to pay the required amount. The Subcommittee is of the view that the systematic use of pretrial detention, in addition to being a major cause of overcrowding, is symptomatic of a dysfunctional justice system.
108.The Subcommittee recommends that the State party: (a) avoid the systematic use of pretrial detention; the imposition of pretrial detention should be decided on a case-by-case basis, with due consideration of whether it is reasonable and necessary in the circumstances; (b) explore the possibility of using alternatives to pretrial detention, such as house arrest, the obligation to report regularly to an administrative department or confiscation of identity documents; (c) release detainees who have been held for a period equivalent to the maximum sentence for the offence in question.
Sentence enforcement mechanism and reintegration policy
109.The Code of Criminal Procedure provides for the suspension of a sentence without or with probation (sections IV and V). However, the interviews conducted by the delegation indicate that these measures are rarely used. With regard to community service, Ordinance No. 99-11 of 14 May 1999, on the establishment, composition, organization and functions of juvenile courts, supplemented by Decree No. 2006-023/PRN/MJ of 20 January 2006, provides for the possibility of ordering minors to carry out community service. However, these measures are rarely used. At the time of the visit, the delegation was informed that the Government was considering a bill on community service, which would extend the possibility of this alternative to all courts and all categories of convicted persons. The Subcommittee welcomes this initiative and looks forward to its early adoption and implementation.
110.The Subcommittee recommends that the State party accelerate the process of amending its criminal legislation and that it take the necessary measures to review sentencing practices and implement alternative sanctions that could help to relieve prison overcrowding. The State party should extend the possibility of community service to all categories of convicted persons and make greater use of conditional release.
111.The Subcommittee wishes to emphasize that this report is only the continuation of a constructive dialogue initiated with the authorities of the Niger on the above-mentioned challenges.
112. The Subcommittee requests the Government of the Niger to reply, within six months of the date of transmission of the present report, with details of the measures taken by the State party to follow up on its recommendations.
113. In view of the educational and preventive nature of the recommendations made in the present report, the Subcommittee recommends that the Niger should request its publication.
List of persons with whom the Subcommittee met
Ministère de l’intérieur, de la sécurité, de la décentralisation et des affaires religieuses
Mohamed Bazoum, Ministre d’État, Ministre de l’intérieur, de la sécurité publique, de la décentralisation et des affaires religieuses
Boubacar Issaka Oumarou, Office central de répression du trafic illicite des stupéfiants, Direction générale de la police nationale (DGPN)
Yaou Diaouga, Direction de la police judiciaire, DGPN
Zakari Hamadou, Direction générale de l’administration, de la sécurité pénitentiaire et de la réinsertion
Kaka Abdoulaye, Service central de lutte contre le terrorisme et la criminalité transnationale organisée
Hassan Zakari Mahamadou Bassirou, Direction de la sécurité publique
Ministère de la justice et des droits de l’homme
Marou Amadou, Ministre de la justice et Garde des Sceaux
Ibrahim Jean Étienne, Protection judiciaire juvénile
Rabiou Assetou Traoré, Direction des droits de l’homme
Idé Oumazou Zazi, Division des affaires pénales
Ministère des affaires étrangères, de l’intégration africaine et des Nigériens à l’étranger
Cabinet du Premier Ministre
Oumaria Mamane, Conseiller principal du Premier Ministre
Ousseini Tinni, Président
Souley Dioffo, député
Karimoun Niandou, député
Abdou Madougou, Cabinet du Président
III.Cour d’appel de Niamey
Mai Moussa Elhadji Basshir, Président du Tribunal de grande instance hors classe
Cheibou Samna Soumana, Procureur de la République
Maïdama Hadiza Malam Manzo, Premier substitut du Procureur de la République
Mahamadou Mourtala, Substitut du Procureur
Nouhou Abdourahamane Soumaïla, Substitut du Procureur
Ibrahim Boukari Sally, Pôle antiterrorisme
Aly Akine, doyen des juges d’instruction
Yousouf Salao, juge d’instruction
IV.Organismes des Nations Unies
Viviane Van Steirteghem, Fonds des Nations Unies pour l’enfance (UNICEF)
Giuseppe Loprete, Organisation internationale pour les migrations
Nicole Kouassi, Programme des Nations Unies pour le développement
Belkacem Machane, Programme alimentaire mondial
Abdouraouf Gnon-Konde Traoré, Haut-Commissariat des Nations Unies pour les réfugiés
Alpha Pathe Barry, BCR
Ismail Kane Abdoulaye, Haut-Commissariat aux droits de l’homme
Hervé Kuate, Haut-Commissariat des Nations Unies pour les réfugiés
Dimitri Sanga, Commission économique pour l’Afrique
Marina Schramm, Organisation internationale pour les migrations
Valérie Svobodovà, Haut-Commissariat des Nations Unies pour les réfugiés
Commission nationale des droits humains
Khalid Ikhiri, Président
Tahirou Issa, Commissaire
Amadou Doro, Commissaire
Houssa Hamidou Talibi, Commissaire
Fatoumata Sidikou, Commissaire
Ordre des avocats du Niger
Yayé Mounkaila, bâtonnier
Nassirou Lawali, avocat
Ibrah Mahamane Sani, avocat
Ordre des médecins-pharmaciens et chirurgiens-dentistes
Almoustapha Illo, Président du Conseil national de l’ordre
Maman Kaka, Vice-Président du Conseil national de l’ordre
Organisations non gouvernementales
Collectif des organisations de défense des droits de l’homme et de la démocratie (CODDHD)
Réseau nigérien des organisations non gouvernementales et associations de développement de défense des droits de l’homme et de la démocratie (RODADDH)
Mouvement nigérien pour la promotion et la défense des droits de l’homme et des peuples (MNDHP)
Réseau des défenseurs des droits humains (RDDH)
Prisonniers sans frontières (PRSF Niger)
Association nigérienne pour la défense des droits de l’homme (ANDDH)
VI.Organismes internationaux et donateurs
Benjamin Gnaléga, Commission de l’Union africaine
Francesca Moledda, Union Européenne
Liza Finelli, Comité international de la Croix-Rouge
Boukar Youra, Institut danois pour les droits de l’homme (IDDH)
Rebecca Doffina, Ambassade des États Unis
Nils Wortmann, Ambassade d’Allemagne
Ignacio Vitorica, Ambassade d’Espagne
Places of deprivation of liberty visited by the Subcommittee
Gendarmerie nationale (brigade de recherche)
Commissariats de police
Criminal Investigation Department
Direction de la police de Niamey/Commissariat central de Niamey
Service de protection des femmes et des mineurs (logé au commissariat central)
Commissariat de Yantala
Cellule antiterroriste de la police à Niamey
Centre de réinsertion de Kollo