Burundi

Initial

CAT/C/BDI/1

Guyana

Initial

CAT/C/GUY/1

Hungary

Fourth periodic

CAT/C/55/Add.10

Mexico

Fourth periodic

CAT/C/55/Add.12

Russian Federation

Fourth periodic

CAT/C/55/Add.11

South Africa

Initial

CAT/C/52/Add.3

Tajikistan

Initial

CAT/C/TJK/1

26.The following reports were before the Committee at its thirty‑eighth session:

Denmark

Fifth periodic

CAT/C/81/Add.2

Italy

Fourth periodic

CAT/C/67/Add.3

Japan

Initial

CAT/C/JPN/1

Luxembourg

Fifth periodic

CAT/C/81/Add.5

The Netherlands

Fourth periodic

CAT/C/67/Add.4

Poland

Fourth periodic

CAT/C/67/Add.5

Ukraine

Fifth periodic

CAT/C/81/Add.1

27.In accordance with rule 66 of the rules of procedure of the Committee, representatives of each reporting State were invited to attend the meetings of the Committee when their report was examined. All of the States parties whose reports were considered sent representatives to participate in the examination of their respective reports. The Committee expressed its appreciation for this in its conclusions and recommendations.

28.Country rapporteurs and alternate rapporteurs were designated by the Committee for each of the reports considered. The list appears in annex VIto the present report.

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

(a)General guidelines regarding the form and contents of initial reports to be submitted by States parties under article 19, paragraph 1, of the Convention (CAT/C/4/Rev.2);

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

30.The Committee has adopted a new format for these as a result of consultations held by the Inter‑Committee Meeting and the meeting of Chairpersons of the human rights treaty bodies. The text of conclusions and recommendations adopted by the Committee with respect to the above‑mentioned States parties’ reports is reproduced below.

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

32. Burundi

(1)The Committee considered the initial report of Burundi (CAT/C/BDI/1) at its 730th and 733rd meetings, held on 9 and 10 November 2006 (CAT/C/SR.730 and 733), and, at its 745th meeting, held on 20 November 2006 (CAT/C/SR.745), adopted the following conclusions and recommendations.

A. Introduction

(2)The Committee welcomes the submission of the initial report of Burundi, which is in conformity with the Committee’s guidelines for the preparation of initial reports, but regrets that the report was submitted 13 years late. The Committee notes with satisfaction the frankness with which the State party acknowledges the gaps in its legislation relating to the elimination and prevention of torture. It also appreciates the effort made by the State party to identify the corrective steps needed. The Committee also welcomes the constructive dialogue that was held with the high‑level delegation sent by the State party, as well as the replies to the questions raised during the dialogue.

B. Positive aspects

(3)The Committee welcomes the signing, on 7 September 2006, of the ceasefire between the Government and the National Liberation Forces, which ended the armed conflict that has ravaged Burundi for almost 13 years.

(4)The Committee takes note of the statement made by the delegation of the State party concerning the planned revision of the Criminal Code, and its intention to include in the Code provisions criminalizing acts of torture and other cruel, inhuman or degrading treatment, including violence against women and children. The Committee also welcomes the delegation’s announcement that the Code of Criminal Procedure will be reviewed in 2007.

(5)The Committee welcomes the establishment of the Ministry of Solidarity, Human Rights and Gender, the Government Commission on Human Rights and the Centre for the Promotion of Human Rights and the Prevention of Genocide.

(6)The Committee takes note of the announcement made by the delegation that the State party plans to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment.

(7)The Committee welcomes the announcement by the delegation of the State party concerning the recent ratification of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, as well as the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

C. Subjects of concern and recommendations

(8)While it welcomes with satisfaction the planned revision of the Criminal Code, which should contain a definition of torture, as announced by the delegation of the State party, the Committee is concerned at the lack of provisions in the Criminal Code in force containing an explicit definition of torture and criminalizing torture, in accordance with articles 1 and 4 of the Convention. The Committee is also concerned at the lack of clarity with regard to the status of the Convention in Burundi’s domestic law, and the fact that the Convention is not invoked before the competent judicial and administrative authorities (arts. 1 and 4).

The State party should take urgent measures to include in its Criminal Code a definition of torture that is in conformity with article 1 of the Convention, as well as provisions criminalizing acts of torture and imposing criminal penalties proportionate to the gravity of the acts committed. The State party should also clarify the status of the Convention in its domestic law in order to enable all persons who claim to have been subjected to torture to invoke the Convention before the competent judicial and administrative authorities.

(9)While it welcomes the planned reform of Burundi’s judicial system, which was announced by the delegation of the State party, the Committee notes with concern that the current provisions of the Code of Criminal Procedure relating to police custody do not explicitly refer to the notification of rights, including the presence of a lawyer from the first hours in police custody and the medical examination of persons held in police custody. The Committee is also concerned at the lack of provisions on legal aid for disadvantaged persons. Moreover, the Committee is concerned at the length of police custody, which can last as long as 14 days, a period that is not in keeping with the generally accepted international norms on the subject. Finally, the Committee is deeply concerned at reports that there have been several hundred cases of illegal detention owing to the fact that persons were held in police custody longer than the period authorized by law (arts. 2 and 11).

The State party should amend the provisions of the Code of Criminal Procedure relating to police custody in order to ensure the effective prevention of violations of the physical and mental integrity of persons held in police custody, including by guaranteeing their right to habeas corpus, the right to inform a close relation and the right to consult a lawyer and physician of their choice or an independent physician during the first hours in police custody, as well as access to legal aid for the most disadvantaged persons.

The State party should, in addition, bring the practice of pretrial detention into conformity with the international standards relating to a fair trial and should ensure that the trial takes place within a reasonable time.

(10)The Committee is alarmed at reports that torture is a widespread practice in the State party. According to these reports, which were not challenged by the delegation of the State party, several hundred cases of torture were registered between July 2005 and July 2006. Moreover, the Committee is deeply concerned at reports received concerning a high number of forced disappearances, arbitrary arrests and incommunicado detentions, the main perpetrators of which are allegedly officials of the National Intelligence Service. In this regard, the Committee is concerned at the dual mandate of the National Intelligence Service, which is responsible for State security and is also active in criminal investigation, since this entails the risk that the Service might be used as a means of political repression (art. 2).

The State party should take effective legislative, administrative and judicial measures to prevent all acts of torture and all ill ‑ treatment in any territory under its jurisdiction, including by ensuring that military personnel are not in any way involved in the arrest and detention of civilians. The State party should take steps, as a matter of urgency, to bring all places of detention under judicial control and to prevent its officials from making arbitrary arrests and engaging in torture. It should also include in its domestic legislation a provision clearly stipulating that an order from a superior officer or a public authority may not be invoked as a justification of torture.

Moreover, the State party should clarify, as a matter of urgency, the mandate of the National Intelligence Service within the framework of the ongoing reform of the judiciary in order to prevent any use of the Service as a means of political repression and ensure that its officials do not engage in criminal investigation.

(11)The Committee is alarmed at reports of large‑scale sexual violence against women and children by State officials and members of armed groups, as well as at the systematic use of rape as a weapon of war, which constitutes a crime against humanity. In this regard, according to information received, a large number of victims of rapes were identified between October 2005 and August 2006. Moreover, the Committee is deeply concerned at the apparent impunity enjoyed by the perpetrators of such acts. The Committee is also concerned at the extrajudicial or amicable settlement of rape cases, including by the administrative authorities, when emphasis is placed on practices such as marriage between rapist and victim (arts. 2, 4, 12 and 14).

The State party should take vigorous measures to eliminate the impunity enjoyed by the perpetrators of acts of torture and ill ‑ treatment, whether they are State officials or non ‑ State actors; conduct timely, impartial and exhaustive inquiries; try the perpetrators of such acts and, if they are found guilty, sentence them to punishment commensurate with the gravity of the acts committed; and provide adequate compensation to the victims. Moreover, the State party should guarantee that victims have access to the means required for their fullest possible rehabilitation.

The State party should take the necessary measures to include in its Criminal Code a provision criminalizing acts of violence, including domestic violence and sexual violence, and especially rape, in accordance with article 4 of the Convention.

(12)The Committee is concerned at the judiciary’s de facto dependence on the executive, which poses a major obstacle to the immediate institution of an impartial inquiry when there are substantial grounds for believing that an act of torture has been committed in any territory under its jurisdiction. In this regard, the Committee is concerned at the decision of the Attorney‑General overruling the Supreme Court’s decision to release on bail the seven persons, including the former transitional President, Mr. DomitienNdayizeye, who were being held for attempting a coup. The Committee is also concerned at reports that several of the detainees have been tortured. Lastly, the Committee is concerned at the fact that the Attorney‑General is able, in certain circumstances, to influence judicial decisions (arts. 2 and 12).

The State party should adopt effective measures to guarantee the independence of the judiciary in accordance with the relevant international norms. The State party should also conduct an immediate and impartial inquiry pursuant to reports that several of the persons detained for allegedly attempting a coup were subjected to torture. The State party should also fulfil its obligation to respect the decisions of the Supreme Court.

(13)The Committee takes note of the delegation’s announcement that the State party intends to raise the age of criminal responsibility from 13 to 15 years. The Committee is nevertheless concerned at the absence of a juvenile justice system, and at the fact that children are often subject to the same procedures as adults. In this regard, the Committee notes with concern that a child accused of a criminal offence is obliged to wait for a very long time before being tried and that the length of pretrial detention for children often exceeds the length of the maximum prison terms that they could receive if found guilty (art. 2).

The State party should take the necessary measures to raise the minimum age of criminal responsibility in order to bring it into line with the generally accepted international norms on the subject. The State party should also guarantee the proper functioning of a juvenile justice system by treating minors in a manner appropriate to their age, in conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (the Tokyo Rules).

(14)The Committee takes note of the Asylum Bill, prepared with the assistance of the Office of the United Nations High Commissioner for Refugees, which establishes a national commission for refugees with the authority to provide refugees and asylum‑seekers with legal and administrative protection. The Committee also takes note of the statement by the delegation that only refugees and asylum‑seekers wishing to return voluntarily to their country of origin are invited to do so. The Committee is nevertheless concerned that in June 2005, some 8,000 Rwandan asylum‑seekers were returned to their country of origin. Moreover, the Committee is concerned that, since the State party does not have an extradition system, asylum‑seekers or refugees from Rwanda and the Democratic Republic of the Congo could be returned to their countries of origin even though they risk being subjected to torture (art. 3).

The State party should take legislative and any other necessary measures to prohibit the expulsion, return or extradition of persons to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture, in accordance with article 3 of the Convention. The State party should also guarantee absolute respect for their physical and mental integrity. In addition, the State party should take the necessary measures to adopt legislation on the protection of stateless persons in order to protect them from expulsion, return or extradition.

(15)The Committee notes that Burundi makes extradition contingent on the existence of an extradition treaty. The Committee is nevertheless concerned by the fact that the State party, when it receives a request for extradition from another State party with which it has no extradition treaty, does not invoke the present Convention as a legal basis for extradition in respect of the crimes enumerated in article 4 of the Convention (art. 8).

The State party should take appropriate legislative and administrative measures to ensure that the present Convention can be invoked as a legal basis for extradition in respect of the crimes enumerated in article 4 of the Convention, when it receives a request for extradition from another State party with which it has no extradition treaty, while at the same time observing the provisions of article 3 of the Convention .

(16)The Committee is concerned at the inadequacy of training for law enforcement personnel, which fails to focus on the elimination and prevention of torture. Moreover, the numerous allegations of acts of torture and cruel, inhuman or degrading treatment received by the Committee testify to the limited scope of such training (art. 10).

The State party should:

(a) Organize regular training for law enforcement personnel, including police and prison administration staff, in order to ensure that they all have a thorough understanding of the provisions of the Convention and are aware that violations are not acceptable and will be investigated, and that the perpetrators are liable to prosecution. All such personnel should be given specific training in methods of detecting torture. This training should also be accessible to physicians, lawyers and judges;

(b) Prepare a manual listing methods of questioning that are prohibited and contrary to the Standard Minimum Rules for the Treatment of Prisoners, as well as the fundamental principles governing the treatment of prisoners, including the obligation to keep a bound registration book with numbered pages containing information on each prisoner’s identity, the reasons for his or her detention and the authority therefore, and the day and hour of his or her admission and release;

(c) Ensure that law enforcement personnel and members of the armed forces, as well as the general public, are aware of the prohibition on sexual violence, in particular against women and children;

(d) Encourage the involvement of non ‑ governmental organizations active in the field of human rights protection in the training of law enforcement personnel.

(17)The Committee has taken note of the announcement by the delegation of the State party that the Government of Burundi has obtained assistance from the European Union in improving conditions of detention and bringing them into line with international standards. However, the Committee remains deeply concerned at the appalling detention conditions prevailing in Burundi, which amount to inhuman and degrading treatment. Such conditions include overcrowding, lack of food and medical care that puts lives at risk, poor hygiene and a shortage of material, human and financial resources. The treatment of prisoners remains a matter of concern for the Committee, in particular the fact that minors and women are not segregated from adults and men respectively, and that those awaiting trial are not segregated from convicted prisoners, except in Ngozi prison, where the men’s quarters are separate from the women’s and children’s quarters (arts. 11 and 16).

The State party should adopt practices that are in conformity with the United Nations Standard Minimum Rules for the Treatment of Prisoners. It should also take immediate steps to reduce overcrowding in prisons, including through the release of first ‑ time offenders or suspects held in connection with petty offences, particularly if they are under 18 years of age, and the construction of new prison facilities.

The State party should also ensure that minors and women are segregated from adults and men respectively, and that those in pretrial detention are segregated from convicted prisoners. The State party should also ensure that women prisoners are guarded exclusively by female prison staff.

(18)The Committee is deeply concerned about the widespread sexual violence against women and children, particularly in places of detention (art. 11).

The State party should establish and promote an effective mechanism for receiving complaints of sexual violence, including in custodial facilities, investigating these complaints and providing victims with psychological and medical protection and care. The State party should consider adopting a national plan of action to eradicate violence against women and children.

(19)The Committee is concerned at the lack of systematic and effective monitoring of all places of detention, notably through regular unannounced visits by national inspectors and a mechanism for legislative and judicial monitoring. The Committee is also concerned at reports that non‑governmental organizations have limited access to places of detention (art. 11).

The State party should consider establishing a national system to monitor all places of detention and follow up on the outcome of such systematic monitoring. It should also ensure that forensic doctors trained in detecting signs of torture are present during such visits. The State party should also strengthen the role of non ‑ governmental organizations in this process by facilitating their access to places of detention.

(20)The Committee is deeply disturbed at reports of the murder of several people suspected of being supporters of the National Liberation Forces between November 2005 and March 2006, including RamazaniNahimana, Jean‑BaptisteNtahimpereye and Raymond Nshimirimana. According to information received, those responsible for the murders are agents of the National Intelligence Service (art. 12).

The State party should inform the Committee in writing of steps taken to institute a prompt and impartial investigation of these murders and to punish the perpetrators, in accordance with article 12 of the Convention.

(21)The Committee takes note of the negotiations under way between the State party and the United Nations with regard to the implementation of the recommendation of the assessment mission dispatched by the Secretary‑General to Burundi in May 2004, adopted by the Security Council in resolution 1606 (2005) and aimed at creating a truth commission of mixed composition and a special chamber within Burundi’s court system. The Committee is nevertheless concerned at the absence of impartial inquiries to establish the individual responsibility of perpetrators of acts of torture and cruel, inhuman or degrading treatment, a situation that fosters a general climate of impunity. The Committee is also concerned at the absence of any measures to ensure that the complainant and witnesses are protected against all ill‑treatment or intimidation following the lodging of a complaint or the provision of evidence, as a result of which there have been very few complaints of acts of torture or cruel, inhuman or degrading treatment (arts. 12 and 13).

The State party should take urgent steps to combat impunity, in particular by establishing transitional justice mechanisms, in particular a truth and reconciliation commission and a special court, as recommended by the Security Council in its resolution 1606 (2005).

The State party should inform all persons under its jurisdiction, clearly and unequivocally, that it condemns torture and ill ‑ treatment. It should take effective legislative, administrative and judicial measures to ensure that all allegations of torture and cruel, inhuman or degrading treatment will be the subject of prompt investigation, followed as appropriate by prosecution and punishment. All persons under suspicion of torture should be suspended from duty for the duration of the inquiry if it would place the investigation at risk for them to remain in their post s. In addition, the State party  should take the necessary steps to shed light on the Gatumba massacre and punish those responsible.

(22)The Committee is concerned at the system of assessing the appropriateness of prosecution, which leaves State prosecutors free to decide not to prosecute perpetrators of acts of torture and ill‑treatment involving law enforcement officers or even to order an inquiry, which is clearly in conflict with the provisions of article 12 of the Convention (art. 12).

The State party should consider introducing an exception to the current system of assessing the appropriateness of prosecution in order to conform with the letter and spirit of article 12 of the Convention and to remove all doubt regarding the obligation of the competent authorities to institute, systematically and on their own initiative, impartial inquiries in all cases where there are substantial grounds for believing that an act of torture has been committed.

(23)The Committee takes note of the announcement by the delegation of the State party that a department to assist torture victims has been created within the Ministry of Solidarity, Human Rights and Gender. It also notes the State party’s intention to set up a compensation fund for torture victims with assistance from the international community. The Committee is nevertheless concerned at the absence to date of any measures to compensate victims of torture in judicial practice in Burundi. The Committee is also concerned at the failure to provide victims, including child soldiers, with the means to exercise the right to the fullest possible physical, psychological, social and financial rehabilitation (art. 14).

The State party should take urgent steps to facilitate the establishment of a compensation fund for victims of torture. The State party should also provide victims, including child soldiers, with the means to exercise their right to the fullest possible rehabilitation, including physical, psychological, social and financial rehabilitation.

(24)While the Committee notes with satisfaction that, under article 27 of the Code of Criminal Procedure, “if it is found or proven that confessions of guilt have been obtained under duress, they are declared null and void”, it is disturbed at the Supreme Court ruling of 29 September 2002 to the effect that “a confession is … merely one piece of evidence that must be corroborated by other evidence”, which could lead to the acceptance of confessions obtained under torture provided that they are corroborated by other evidence (art. 15).

The State party should take the necessary legislative and administrative measures to ensure that any statement that is found to have been made as a result of torture may not be directly or indirectly invoked as evidence in proceedings, in accordance with article 15 of the Convention.

(25)The Committee notes with concern allegations of reprisals, serious acts of intimidation and threats against human rights defenders, particularly those who report acts of torture and ill‑treatment (arts. 2 and 16).

The State party should take effective steps to ensure that all persons reporting torture or ill ‑ treatment are protected from intimidation and from any unfavourable consequences that they might suffer as a result of making such a report. The Committee encourages the State party to strengthen its cooperation with civil society in its efforts to prevent and eliminate torture.

(26)The Committee is concerned at reports that hospitalized patients, including children, who are unable to pay their medical expenses are detained in hospitals for several months until they are able to pay. The Committee is alarmed at the conditions under which such patients are held, particularly the fact that they are denied food and medical treatment (art. 16).

The State party should take urgent steps to release persons detained in hospitals, in accordance with article 16 of the Convention and article 11 of the International Covenant on Civil and Political Rights, to which Burundi is a party, and which states that “ no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation ” .

(27)The Committee encourages the State party to continue to request technical cooperation from the Office of the United Nations High Commissioner for Human Rights in Burundi and from the United Nations Integrated Office in Burundi, which is to replace the United Nations Operation in Burundi on 1 January 2007.

(28)The State party should provide in its next periodic report detailed statistical data, disaggregated by crime, ethnicity and gender, on complaints relating to torture and ill‑treatment allegedly committed by law enforcement officials, and on the related investigations, prosecutions and criminal and disciplinary sanctions. Information is further requested on measures taken to compensate and provide rehabilitation services for the victims.

(29)The Committee is encouraged to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as soon as possible.

(30)The State party is encouraged to disseminate widely the reports submitted by Burundi to the Committee and the latter’s conclusions and recommendations, in appropriate languages, through official websites, the media and non‑governmental organizations.

(31)The Committee requests the State party to provide, within one year, information on measures taken in response to the Committee’s recommendations, as contained in paragraphs 9, 10, 19, 20, 21, 23 and 25 above.

(32)The State party is invited to submit its second periodic report on 31 December 2008.

33. Guyana

(1)The Committee considered the initial report of Guyana (CAT/C/GUY/1) at its 734th and 737th meetings (CAT/C/SR.734 and 737), held on 13 and 14 November 2006, and adopted, at its 748th meeting on 22 November 2006 (CAT/C/SR.748), the following conclusions and recommendations.

A. Introduction

(2)The Committee welcomes the presentation of the initial report of Guyana, which complies partly with the Committee’s guidelines on the form and content for the preparation of initial reports, but nevertheless regrets that it was submitted with a 17‑year delay.

(3)The Committee commends the report’s frankness and the State party’s acknowledgement of shortcomings in the implementation of the Convention. The Committee welcomes the constructive and frank dialogue conducted with the representative of the State party and appreciates the answers provided to the questions raised during the dialogue.

B. Positive aspects

(4)The Committee acknowledges the ongoing efforts of the State party to reform its legal and institutional system. In particular, the Committee notes with satisfaction the following positive developments:

(a)The ratification by the State party of most of the core international human rights treaties;

(b)The ratification by the State party of the Rome Statute of the International Criminal Court, on 24 July 2004;

(c)The recent efforts made to reform and strengthen the national legislative base, including the following legislation:

Combating of Trafficking in Person Act in 2005, which provides measures to combat trafficking in persons;

Witness Protection Bill, in May 2006;

Mutual Cooperation in Criminal Matters Bill, in April 2006;

Justice Protection Bill, in May 2006.

C. Factors and difficulties impeding the implementation of the Convention

(5)The Committee notes that the State party has for several years been going through a period of economic constraints, social violence and widespread criminality which has had and continues to have an impact on the country. The Committee points out, however, that, as stated in article 2, paragraph 2, of the Convention, no exceptional circumstances whatsoever may be invoked as a justification of torture.

D. Subjects of concern and recommendations

(6)The Committee notes that it is not clear whether all acts of torture are offences under the State party’s criminal law(arts. 1 and 4).

The State party should take the necessary legislative measures to ensure that all acts of torture are offences under its criminal law in accordance with the definition contained in article 1 of the Convention, and that these offences are punishable by appropriate penalties which take into account their grave nature.

(7)The Committee is concerned about past irregularities in the approval of firearm licences in Guyana, whereby licences have been allegedly granted indiscriminately and the firearms used to commit offences prohibited by the Convention (art. 2).

The State party should strengthen the administrative measures to control the indiscriminate issuance of firearms licences, ensuring that the process of application for firearms is streamlined and that the Firearm Regulations are applied uniformly and amended where necessary.

(8)The Committee regrets the lack of information on the compliance by the State party with article 3 of the Convention.

The Committee would like to remind the State party of the absolute nature of the prohibition on expelling, returning ( refouler ) or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture, as established by article 3 of the Convention. The State party should submit in its next periodic report information regarding the implementation of article 3 of the Convention in cases of extradition, expulsion or return (refoulement) of foreigners.

(9)While taking note of the efforts made by the State party in addressing the issue of the ethnic composition in the Guyana Police Force, the Committee is concerned at the reduced presence of persons of Indo‑Guyanese origin in the police force, which would appear to be among the underlying causes of the high number of deaths in custody of persons of Indo‑Guyanese origin.

The State party should continue its efforts to diversify the ethnic composition of the Guyana Police Force and take appropriate measures to prevent the incidence of deaths in custody.

(10)While taking note of the low number of health personnel in the country, the Committee is concerned at the absence of training for medical officers on their obligations under the Convention, particularly to identify and document cases of torture and to assist in the rehabilitation of victims (art. 10).

The State party should take the necessary steps to ensure that adequate training is provided to the medical personnel in the country regarding their obligations under the Convention and in accordance with the Istanbul Protocol . The State party is encouraged to seek international cooperation and technical assistance to conduct such trainings.

(11)The Committee is concerned about reports on the excessive length of pretrial detention, which, despite existing legislation limiting its duration, can occasionally last between three and four years (art. 11).

The State party should take all necessary measures to guarantee that the mandatory limits established by law are respected in practice in order to ensure that pretrial detention is only used as an exceptional measure for a limited period of time.

(12)The Committee has noted the unacceptable detention conditions prevailing in Guyana, in particular in the Georgetown and Mazaruni prisons.The most widespread problems are overcrowding, poor hygienic and physical conditions, as well as lack of human, material and financial resources.

The State party should take immediate steps to reduce overcrowding in prisons by improving the infrastructure and hygienic conditions and making available the necessary material, human and budgetary resources to ensure that the conditions of detention in the country are in conformity with minimum international standards . The State party is encouraged to seek and/or devote technical assistance for this purpose.

(13)The disciplinary measures used in the treatment of prisoners are a matter of concern for the Committee, in particular section 37 of the Prison Act, 1998, which allows whipping, flogging and reduction of diet (arts. 2 and 11).

While taking note of the statement of the representative of the State party that these disciplinary measures have not been used, the State party should review all legal provisions which authorize these practices with a view to abolishing them as a matter of priority. The State party is reminded that treatment of prisoners should guarantee full respect for the dignity and human rights of all prisoners in conformity with the Standard Minimum Rules for the Treatment of Prisoners.

(14)The Committee is concerned at allegations that children (ages 10‑16) are not always separated from adults while on remand and at the dire conditions of detention (art. 11).

The State party should adopt urgent measures to ensure that children (ages 10 ‑ 16) are always separated from adults while on remand. The State party should also take measures to bring the conditions of detention in conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty.

(15)The Committee is particularly concerned about reports of widespread police brutality, the use of force and firearms by the police, as well as the lack of accountability of the Guyana Police Force. While the Committee welcomes the additional information provided by the representative of the State party with respect to the cases of two members of the police who had been charged and sentenced for abuses, it regrets the absence of data on enquiries, cases and convictions related to abuses by the police (arts. 11 and 12).

The State party should:

(a) Ensure that the circumstances under which police officers are authorized to use force and firearms, are exceptional and clearly defined, and that members of the Guyana Police Force are adequately trained on the appropriate use of force and firearms in accordance with international standards, including the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;

(b) Take effective steps to guarantee the accountability of the Guyana Police Force and, to this effect, carry out prompt, impartial and effective investigations, try the perpetrators of acts of abuse and, when convicted, impose appropriate sentences and adequately compensate the victims.

(16)The Committee is concerned about allegations of extrajudicial killings by the police and the ineffective efforts made by the police in investigating those killings and apprehending the perpetrators (arts. 11 and 12).

The State party is urged to take immediate steps to prevent acts such as the alleged practice of extrajudicial killings by members of the police. The State party should take the necessary measures to guarantee that prompt and impartial inquiries are conducted, perpetrators are prosecuted and effective remedies are provided to victims.

(17)The Committee is concerned at the Constitutional provision that allows the employment of part‑time judges could jeopardize their independence and impartiality. The Committee is also concerned about reports that indicate that this provision has been used to deal with the backlog of cases awaiting trial (arts. 12 and 13).

While the Committee takes note of the statement made by the representative of the State party that the Constitutional provision allowing for the use of part ‑ time judges has not been applied, the Committee encourages the State party to amend the Constitution and delete this provision.

(18)The Committee is concerned at the provision in the Criminal Code that establishes the minimum age of criminal responsibility, which is set at 10 years of age (art. 13).

The State party should take the necessary measures to raise the minimum age of criminal responsibility to an internationally acceptable level, as previously recommended by the Committee on the Rights of the Child (CRC/C/15/ Add.224 ).

(19)The Committee is concerned about reports of widespread sexual violence, including in places of detention, and about the extremely low rate of convictions in such cases. The Committee is also concerned about reports of numerous cases of intimidation and threats against victims of sexual violence and of the absence of a witness protection programme.

The State party is urged to take effective and comprehensive measures to combat sexual violence in the country, inter alia ( arts. 12 and 13 ), to:

(a) Establish and promote an effective mechanism for receiving complaints of sexual violence, including in custodial facilities;

(b) Ensure that law enforcement personnel are instructed on the absolute prohibition of violence and rape in custody as a form of torture as well as trained to deal with charges of sexual violence;

(c) Carry out prompt, impartial and effective investigations, try the perpetrators of such acts and, when convicted, impose appropriate sentences, and adequately compensate victims;

(d) Ensure that the complainant and witnesses are protected against all ill ‑ treatment and intimidation as a consequence of the complaint or any evidence given;

(e) Establish a monitoring mechanism to investigate and deal with cases of sexual violence in the country.

(20)The Committee is concerned about the reports regarding the high number of cases of domestic violence in the country.

The State party should take urgent measures to reduce cases of domestic violence, including training of police, law enforcement personnel and health personnel, in order to investigate and deal with instances of domestic violence. The State party should make more effective use of the Domestic Violence Act of  1996.

(21)While the Committee expresses satisfaction for the creation of institutions for the promotion and protection of human rights, such as the Human Rights Commission, the Women and Gender Commission, the Indigenous Peoples Commission, the Rights of the Child Commission, it regrets the fact that the necessary appointments to enable these institutions to begin work have not yet been made by Parliament, apparently due to political reasons (art. 13).

The State party is strongly encouraged to take effective steps to expedite appointments to these institutions for the promotion and protection of human rights.

(22)The Committee expresses its concern about the inability of the Office of the Ombudsman to continue functioning as a result of the non‑appointment, since January 2005, of an Ombudsman by Parliament apparently due to political reasons (art. 13).

The State party is urged to take the necessary measures to ensure the resumption of the activities of the Office of the Ombudsman and provide it with the human and financial resources in order to allow it to carry out its mandate.

(23)The Committee expresses its concern about the deplorable conditions of detention of those persons held on death row, which could amount to cruel, inhuman or degrading treatment (art. 16).

The State party should take all necessary measures to improve conditions of detention of persons on death row in order to guarantee their basic needs and fundamental rights.

(24)The Committee notes with concern the lack of statistics, especially with regard to cases of torture, in relation to complaints, convictions of perpetrators and compensation provided to victims of torture.

The State party should provide in its next periodic report detailed statistical data, disaggregated by crime, ethnicity and gender, on complaints relating to torture and ill ‑ treatment allegedly committed by law enforcement officials, and on the related investigations, prosecutions and criminal and disciplinary sanctions. Information is further requested on any measures taken to compensate and provide rehabilitation services for the victims.

(25)The Committee encourages the State party to consider ratifying the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

(26)The State party is encouraged to disseminate widely the reports submitted by Guyana to the Committee and the latter’s conclusions and recommendations, in appropriate languages, through official websites, the media and non‑governmental organizations.

(27)The Committee requests the State party to provide, within one year, information on measures taken in response to the Committee’s recommendations contained in paragraphs 12, 16, 19, 20 and 21 above.

(28)The Committee, having concluded that during the consideration of the report of Guyana sufficient information was adduced to cover the 17‑year period of delay in submitting the initial as well as the periodic reports, decided to request the second periodic report by 31 December 2008.

34. Hungary

(1)The Committee considered the fourth periodic report of Hungary (CAT/C/55/Add.10) at its 738th and 741st meetings (CAT/C/SR.738 and 741), held on 15 and 16 November 2006, and adopted, at its 748th and 749th meetings (CAT/C/SR.748 and 749), the following conclusions and recommendations.

A. Introduction

(2)The Committee welcomes the submission of the fourth periodic report of Hungary and the information presented therein. The Committee expresses its appreciation for the dialogue with the State party’s delegation and welcomes the extensive responses to the list of issues in written form (CAT/C/HUN/Q/4/Add.1), which facilitated discussion between the delegation and Committee members. In addition, the Committee appreciates the delegation’s oral responses to questions raised and concerns expressed during the consideration of the report.

B. Positive aspects

(3)The Committee notes with appreciation that in the period since the consideration of the last periodic report, the State party has acceded to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women and ratified the Rome Statute of the International Criminal Court.

(4)The Committee notes with satisfaction the ongoing efforts at the State level to reform its legislation, policies and procedures in order to ensure better protection of human rights, including the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment, in particular:

(a)Act No. CXXXV of 2005 on the Assistance to be afforded to Victims of Crimes and on the Mitigation of Damages by the State;

(b)Act No. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities;

(c)Act No. XXXIX of 2001 on the Entry and Stay of Foreigners (“the Aliens Act”) and Government Decree No. 170/2001 on the implementation of the Aliens Act;

(d)Act No. XIX of 1998 on the Code of Criminal Procedure;

(e)The adoption of the Code of Conduct for Police Interrogations in 2003;

(f)The establishment of a shelter for unaccompanied minors in 2003, in conjunction with the United Nations High Commissioner for Refugees;

(g)The ongoing grant programme for secondary school pupils of Roma origin in disadvantageous situations, supporting them to become police officers; and

(h)The publication in June 2006 of the last report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT/Inf (2006) 20) and the State party’s responses to it (CPT/Inf (2006) 21).

(5)The Committee also welcomes the oral assurances given by the State party’s representatives that ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is envisaged shortly.

C. Principal subjects of concern and recommendations

Definition of torture

(6)Notwithstanding the State party’s assertion that, under the Hungarian Criminal Code (section 226 on ill‑treatment in official proceedings, section 227 on forced interrogation and section 228 on unlawful detention), all acts that may be described as “torture” within the meaning of article 1 of the Convention are punishable, the Committee observes that all elements of the definition of torture as provided by article 1 of the Convention are still not included in the Criminal Code of the State party.

The State party should adopt a definition of torture that covers all the elements contained in article 1 of the Convention.

Pretrial detention

(7)The Committee expresses its concern at the length of the initial pretrial detention phase (up to 72 hours), at ongoing pretrial detention on police premises and the high risk of ill‑treatment which it entails and greatly regrets that pretrial detention of up to three years is provided for under the Criminal Procedure Act. Furthermore, the Committee is concerned that pretrial detainees under and over 18 years are accommodated in the same cell in the course of the procedure and notes that the need for separation of children and adults is included in the Draft Penitentiary Code (arts. 2, 11 and 16).

The State party should take appropriate measures to ensure that its pretrial detention policy meets international standards, including by reducing pretrial detention on police premises, further reducing the period of pretrial detention and using the alternative measures outlined in the Code of Criminal Proceedings under the chapter “ Coercive Measures ” in cases where the accused does not pose a threat to society. Furthermore, the State party should take the necessary measures to ensure that children in pretrial detention are kept separately from adults, and adopt the Draft Penitentiary Code.

Fundamental safeguards

(8)The Committee is concerned at allegations that fundamental legal safeguards for persons detained by the police or Border Guard staff, including the rights of access to a lawyer and medical examination, are not being observed in all situations. In this respect, the Committee notes with concern that a high number of persons with an ex officio defence counsel remain without actual assistance from their attorney in the investigation phase of the procedure. Furthermore, the Committee is concerned at information that the compulsory medical examination upon arrival at the police station is often carried out by physicians who are not independent from the police and in the physical presence of police officers, and that the same applies in the case of illegal foreigners in the presence of Border Guard staff (arts. 2, 13 and 16).

The State party should take effective measures to ensure that the fundamental legal safeguards for persons detained by the police or Border Guard staff are respected, including the right to inform a relative, have access to a lawyer as well as to an independent medical examination or a doctor of their own choice, and the right to receive information about their rights.

The State party should, inter alia, ensure that:

(a) Persons in the custody of police or Border Guard staff benefit from an effective right of access to a lawyer, as from the very outset of their deprivation of liberty;

(b) Police officers and Border Guard staff are not present during medical examinations of persons under custody in order to guarantee the confidentiality of medical information, save under exceptional and justifiable circumstances (i.e. risk of physical aggression).

Detention of asylum‑seekers and non‑citizens

(9)The Committee is concerned at the detention policy applied to asylum‑seekers and other non‑citizens, including reports that they often face lengthy periods of detention, including in the context of the so‑called “alien policing procedure”, with detention for up to 12 months in alien policing jails maintained by the Border Guard service (arts. 2, 11 and 16).

The State party should take measures to ensure that detention of asylum ‑ seekers and other non ‑ citizens is used only in exceptional circumstances or as a last resort, and then only for the shortest possible time, and that the rules of maximum ‑ severity penitentiaries do not apply to these detention facilities. The State party should also ensure that courts carry out a more effective judicial review of the detention of these groups.

Non‑refoulement

(10)The Committee notes with concern that individuals may not have been able, in all instances, to enjoy full protection under the relevant articles of the Convention in relation to expulsion, return or extradition to another country. The Committee is also concerned at information that the right of non‑citizens seeking protection to haveaccess to the asylum procedure is not fully guaranteed at the border, and at reports of unlawful expulsions of asylum‑seekers and other non‑citizens to third countries implemented by the Border Guard service (arts. 3 and 16).

The State party should ensure that it complies fully with article 3 of the Convention and that individuals under the State party’s jurisdiction receive appropriate consideration by its competent authorities and guaranteed fair treatment at all stages of the proceedings, including an opportunity for effective, independent and impartial review of decisions on expulsion, return or extradition.

In this respect, the State party should ensure that the relevant alien policing authorities carry out a thorough examination in accordance with section 43 (1) of the Aliens Act, prior to making an expulsion order, in all cases of foreign nationals who have entered or stayed in Hungary unlawfully, in order to ensure that the person concerned would not be subjected to torture, inhuman or degrading treatment or punishment in the country where he/she would be returned. The State party should expand and update its country of origin (COI) information database and take effective measures to certify that the internal regulation about the obligatory use of the COI system is respected.

Training

(11)The Committee is concerned at the lack of specific training on the prohibition of torture, inhuman or degrading treatment or punishment provided for law enforcement officials at all levels, including police officers, prison staff, and personnel of the Border Guard and the Office of Immigration and Nationality (OIN). In addition, the Committee regrets that there is no available information on the impact of the training conducted for law enforcement officials and border guards, and how effective the training programmes have been in reducing incidents of torture, violence and ill‑treatment (art. 10).

The State party should further develop educational programmes to ensure that law enforcement officials, prison staff and border guards are fully aware of the provisions of the Convention, that breaches will not be tolerated and will be investigated, and that offenders will be prosecuted. All personnel should receive specific training on how to identify signs of tor ture and ill ‑ treatment, and the Committee recommends that the Istanbul Protocol of 1999 ( Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) become an integral part of the training provided to physicians. Furthermore, the State party should develop and implement a methodology to assess the effectiveness and impact of such training/educational programmes on the reduction of cases of torture, violence and ill ‑ treatment.

Data collection

(12)The Committee regrets the fact that for certain areas covered by the Convention, the State party was unable to supply statistics, or appropriately disaggregate those supplied (e.g. by age, gender and/or ethnic group). During the current dialogue, this occurred with respect to, for example, the ethnicity of inmates and detainees, particularly the Roma (art. 11).

The State party should take such measures as may be necessary to ensure that its competent authorities, as well as the Committee, are fully apprised of these details when assessing the State party’s compliance with its obligations under the Convention.

Conditions of detention

(13)The Committee is concerned that, notwithstanding the measures taken by the State party to improve conditions of detention, there is continuing overcrowding in prisons. The Committee is also concerned at allegations of some cases of ill‑treatment by custodial/prison staff, including beatings and verbal abuse (arts. 11 and 16).

The State party should continue its efforts to alleviate the overcrowding of penitentiary institutions, including through the wider application and use of alternative sentencing introduced by the new Act on Criminal Proceedings and the establishment of additional prison facilities as needed. The prison management should deliver a clear message to custodial/prison staff that ill ‑ treatment is not acceptable.

Ill‑treatment and excessive use of force

(14)The Committee notes with concern some allegations of excessive use of force and ill‑treatment by law enforcement officials, especially in the course of or in relation to apprehension. In this respect, the Committee is particularly concerned at reports emerging of alleged excessive use of force and ill‑treatment by the police during the demonstrations in Budapest in September and October 2006 (arts. 12 and 16).

The State party should give higher priority to efforts to promote a culture of human rights by ensuring that a policy of zero tolerance is developed and implemented at all levels of the police ‑ force hierarchy as well as for all staff in penitentiary establishments. Such a policy should identify and address the problems, and should include the new Code of Conduct for Police Interrogations and introduce a code of conduct for all officials as well as regular monitoring by an independent oversight body. The State party should take measures to ensure that law enforcement officials only use force when strictly necessary and to the extent required for the performance of their duty.

(15)The Committee is concerned at reports that law enforcement officers did not carry identification badges during the Budapest demonstrations, which made it impossible to identify them in case of a complaint of torture or ill‑treatment (art. 13).

The State party should ensure that all law enforcement officials be equipped with visible identification badges to ensure the protection against torture , inhuman or degrading treatment or punishment.

Prompt and impartial investigations

(16)The Committee is concerned at the number of reports of ill‑treatment by law enforcement agencies, the limited number of investigations carried out by the State party in such cases, and the very limited number of convictions in those cases which are investigated (arts. 12 and 16).

The State party should:

(a) Strengthen its measures to ensure prompt, impartial and effective investigations into all allegations of torture and ill ‑ treatment committed by law enforcement officials. In particular, such investigations should not be undertaken by or under the authority of the police, but by an independent body. In connection with prima facie cases of torture and ill ‑ treatment, the suspect should be subject to suspension or reassignment during the process of investigation, especially if there is a risk that he or she might impede the investigation;

(b) Try the perpetrators and impose appropriate sentences on those convicted in order to eliminate the de facto impunity for law enforcement personnel who are responsible for violations prohibited by the Convention.

Compensation and rehabilitation

(17)While noting that the Act on Assistance to Victims contains provisions regarding the right to compensation for victims of crimes and supporting services available for such victims, the Committee regrets the lack of a specific programme to safeguard the rights of victims of torture and ill‑treatment. The Committee also regrets the lack of available information regarding the number of victims of torture and ill‑treatment who may have received compensation and the amounts awarded in such cases as well as the lack of information about other forms of assistance, including medical or psychosocial rehabilitation, provided to these victims (art. 14).

The State party should strengthen its efforts in respect of compensation, redress and rehabilitation in order to provide victims with redress and fair and adequate compensation, including the means for as full rehabilitation as possible. The State party should develop a specific programme of assistance in respect of victims of torture and ill ‑ treatment. Furthermore, the State party should provide in its next periodic report information about any reparation programmes, including treatment of trauma and other forms of rehabilitation provided to victims of torture and ill ‑ treatment, as well as the allocation of adequate resources to ensure the effective functioning of such programmes.

Prisoners placed under a special security regime

(18)The Committee is concerned at the situation of the so‑called “Grade 4 prisoners” who may be placed in a maximum security cell or ward with severe restrictions of their rights resulting in extreme isolation and deprivation of human contact. Furthermore, the Committee notes with concern that, according to information before the Committee, neither the Admission Committee of a given penitentiary institution nor the special committee appointed by the national commander issue formal resolutions and that the “Grade 4 prisoners” cannot appeal to any higher‑level authorities or any courts (arts. 2, 13 and 16).

The State party should review and refine the system of classifying prisoners as Grade 4 with a view to ensuring that this grade is only applied ‑ and retained ‑ in respect of prisoners who genuinely require to be accorded such a status and review without further delay their current policy with regard to the application of means of restraint to prisoners placed under this system. Furthermore, the State party should establish a proper appeal procedure relating to this special security regime as well as adequate review mechanisms relating to its determination and duration.

The Roma

(19)The Committee is deeply concerned at reports of a disproportionately high number of the Roma in prisons and ill‑treatment of and discrimination against the Roma by law enforcement officials, especially the police (arts. 11 and 16).

The State party should intensify its efforts to combat discrimination against and ill ‑ treatment of the Roma by law enforcement officials, especially the police, including through the strict application of relevant legislation and regulations providing for sanctions, adequate training and instructions to be given to law enforcement bodies and the sensitization of the judiciary. Furthermore, the State party should strengthen its support to the grant programme for support of police officers of Roma origin and to the Roma Police Officers Association.

National minorities and non‑citizens

(20)The Committee notes with concern reports of ill‑treatment of and discrimination against persons belonging to national minorities and non‑citizens by law enforcement officials, especially the police (arts. 11 and 16).

The State party should strengthen its efforts to combat ill ‑ treatment of and discrimination against persons belonging to national minorities and non ‑ citizens by law enforcement officials.

Trafficking

(21)The Committee is concerned about persistent reports of trafficking in women and children for sexual and other exploitative purposes. The Committee regrets the lack of information about any assistance provided to victims of trafficking and training of law enforcement personnel and other relevant groups (arts. 2, 10 and 16).

The State party should continue to take effective measures to prosecute and punish trafficking in persons, including by strictly applying relevant legislation, raising awareness of the problem, and including the issue in training of law enforcement personnel and other relevant groups.

(22)The Committee requests the State party to provide in its next periodic report detailed statistical data, disaggregated by crime, ethnicity, age and sex, on complaints relating to torture and ill‑treatment allegedly committed by law enforcement officials and on the related investigations, prosecutions, and penal or disciplinary sanctions. Information is further requested on any compensation and rehabilitation provided to the victims.

(23)The State party is encouraged to disseminate widely the reports submitted by Hungary to the Committee and the conclusions and recommendations, in appropriate languages, through official websites, the media and non‑governmental organizations.

(24)The Committee requests the State party to provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 7, 9, 12 and 17 above.

(25)The State party is invited to submit its fifth and sixth periodic reports which will be considered as its sixth periodic report by 31 December 2010.

35. Mexico

(1)The Committee considered the fourth periodic report of Mexico (CAT/C/55/Add.12) at its 728th and 731st meetings, held on 8 and 9 November 2006 (CAT/C/SR.728 and CAT/C/SR.731), and, at its 747th meeting held on 21 November 2006 (CAT/C/SR.747), adopted the following concluding observations.

A. Introduction

(2)The Committee welcomes the submission of the fourth periodic report of Mexico and the constructive and fruitful dialogue with the competent and high‑level delegation.The Committee also expresses appreciation to the State party for its detailed responses to the list of issues, and for the additional information presented by the delegation.

B. Positive aspects

(3)The Committee welcomes the State party’s completely open attitude to international human rights monitoring mechanisms in recent years, and in particular the submission of the State party’s reports to six of the seven human rights treaty bodies in recent months.

(4)The Committee commends the State party on ratifying the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 11 April 2005.This introduced into the State party’s legal system an additional tool for prevention in efforts to combat torture, and confirmed the State party’s resolve to combat and eradicate this practice.

(5)The Committee also commends the State party on the statement it made on 15 March 2002 recognizing the Committee’s competence to receive individual complaints relating to cases of torture under article 22 of the Convention.

(6)The Committee appreciates the efforts made by the State party in the field of training relating to the prohibition of torture and the protection of human rights in general, and also the setting‑up of human rights protection units in the various sections of the Office of the Attorney‑General of the Republic.

(7)The Committee commends the State party on the reform of article 18 of the Constitution, setting up a new system of criminal justice for young people, whose provisions include the promotion of alternatives to custodial sentences.

(8)The Committee commends the State party on the incorporation of the Istanbul Protocol into Mexican law both at the federal level and in several states, and also the establishment of collegiate bodies to monitor the introduction of the special medical and psychological report in relation to possible cases of torture and ensure greater transparency in its use.

(9)The Committee congratulates the National Human Rights Commission on its work in monitoring and reporting human rights violations.

(10)The Committee also welcomes the fact that the State party has become a party to the following treaties:

(a)The Optional Protocol to the International Covenant on Civil and Political Rights, on 15 March 2002;

(b)The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, on 15 March 2002;

(c)The Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict, on 15 March 2002;

(d)The Rome Statute of the International Criminal Court, on 28 October 2005;

(e)The Inter‑American Convention on Forced Disappearance of Persons, on 28 February 2002;

(f)Convention 182 (1999) of the International Labour Organization concerning the prohibition and immediate action for the elimination of the worst forms of child labour, on 30 June 2000.

C. Principal subjects of concern and recommendations

(11)The Committee notes that the Federal Act to Prevent and Punish Torture defines torture in accordance with the provisions of the Convention.However, the Committee is concerned that in most cases the definition of the crime of torture differs from one state to another, and that the crime is not mentioned in the Penal Code of the State of Guerrero.

The State party should ensure that both federal and state legislation characterizes the crime of torture in keeping with international and regional standards, including the Convention against Torture and the Inter ‑ American Convention to Prevent and Punish Torture.

(12)The Committee takes note of the proposed reform of the whole system of justice, whose main objectives include the introduction of an accusatory and oral procedure for criminal cases, elimination of the evidentiary value of confessions not made before a judge, and the introduction of the presumption of innocence.However, the Committee is concerned that this reform has not yet been adopted.The Committee is also concerned about reports that in many cases greater evidentiary value is still attached to the first statement made to a prosecutor than to all subsequent statements made to a judge.

The State party should finalize the reform of the whole system of justice in order to, inter alia, introduce an oral accusatory model of criminal proceedings which fully incorporates the presumption of innocence and guarantees the application of the principles of due process in the evaluation of evidence.

(13)The Committee notes with concern the reports it has received about the existence of the practice of arbitrary detention in the State party.

The State party should take the necessary steps to prevent all forms of detention which may be conducive to the practice of torture, investigate allegations of arbitrary detention and punish any persons who have committed an offence.

(14)The Committee notes with concern that cases of torture committed by military personnel against civilians during the performance of their duties continue to be tried in military courts.The Committee is also concerned that, while reforms have been proposed in this area, torture inflicted on military personnel is still not defined as an offence under military law.

The State party should ensure that cases involving violations of human rights, especially torture and cruel, inhuman or degrading treatment, committed by military personnel against civilians, are always heard in civil courts, even when the violations are service ‑ related [see also the Committee’s recommendation to this effect contained in its report on Mexico in the context of article 20 of the Convention (CAT/C/75, para . 220 (g))) . The State party should also reform the Code of Military Justice to include the crime of torture.

(15)The Committee is concerned about the institution of arraigo penal (short‑term detention), which is reported to have been converted into a form of pretrial detention using units guarded by the judicial police and personnel from the Public Prosecutor’s Office, where suspects can be held for 30 days ‑ up to 90 days in some states ‑ while an investigation is being carried out to gather evidence and question witnesses.The Committee notes with satisfaction the federal Supreme Court’s decision in September 2005 declaring arraigo penal unconstitutional, but it is concerned that the court’s decision relates only to the Penal Code of Chihuahua State and would seem not to be binding on courts in other states.

In the light of the federal Supreme Court’s decision, the State party should ensure that arraigo penal is eliminated both from legislation and in actual practice, at the federal and state levels.

(16)The Committee is concerned at the fact that the authorities classify acts which could be described as acts of torture as less serious offences ‑ a possible explanation of the low number of trials and convictions for torture. The Committee is also concerned that, although a proposed reform in this area is before the Congress, crimes against humanity, including the crime of torture, remain subject to limitation.

The State party should:

(a) Investigate all allegations of torture as such, in a prompt, effective and impartial manner, and ensure that in all cases a medical examination is carried out by an independent doctor in accordance with the Istanbul Protocol (see also the Committee’s recommendation to this effect contained in its report on Mexico in the context of article 20 of the Conven tion (CAT/C/75, para . 220  (k));

(b) Take the necessary steps to provide professional training for medical personnel whose task it is to attend to alleged victims and check their condition, and guarantee the independence of such personnel and extend the implementation of the Istanbul Protocol to all states (see paragraph 8 above);

(c) Ensure that if acts of torture are evidenced by independent medical examinations carried out in accordance with the Istanbul Protocol, these examinations are considered to be unchallengeable in court;

(d) Try and punish persons responsible for acts of torture in a manner consistent with the seriousness of the acts committed;

(e) Finalize the penal reform so as to ensure that crimes against humanity, and in particular torture, are not subject to limitations.

(17)The Committee takes note of the concern recently expressed by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families as regards article 33 of the Constitution, which grants the executive branch exclusive powers to expel any foreigner whose stay is deemed inappropriate from the national territory immediately and without need for a prior court decision. The Committee is concerned at the failure to grant full access to judicial remedies whereby each case can be properly reviewed.

In the light of article 3 of the Convention, the State party should take all necessary steps to ensure that interested parties have access to judicial remedies enabling them to challenge the expulsion decision, and that such remedies have the effect of staying the decision.

(18)The Committee notes with concern reports of the excessive use of force by the police during the events and disturbances in Guadalajara (Jalisco) on 28 May 2004, and in San Salvador Atenco (Atenco) on 3 and 4 May 2006. The Committee is concerned at reports that during those operations there was indiscriminate use of arbitrary detention and incommunicado detention, and also ill‑treatment and all kinds of abuse. The Committee has also heard allegations of this type relating to recent incidents in Oaxaca.

The State party should:

(a) Ensure that force will be used only as a last resort and in strict conformity with the international rules of proportionality and necessity in the light of the existing threat;

(b) Implement recommendation No. 12 concerning “ the unlawful use of force and firearms by officials or public servants responsible for law enforcement ” proposed by the National Human Rights Commission in January 2006;

(c) Investigate all allegations of human rights violations by public officials, especially those suffered by persons arrested during these police operations, and try and properly punish those responsible.

(19)The Committee is concerned about reports of violence suffered by women in particular during the police operation carried out in May 2006 in San Salvador Atenco, and especially the alleged cases of torture, including rape, as well as other forms of sexual violence such as molestation and threats of rape, ill‑treatment, and other abuses committed by members of the security forces and other law enforcement officials. In this regard, the Committee notes with satisfaction the creation, in February 2006, of a post of Special Prosecutor to handle offences involving acts of violence against women, whereby a gender perspective is introduced into the investigation of serious human rights violations. However, the Committee is concerned that the activities of the Special Prosecutor may be limited to ordinary offences under federal law.

The State party should:

(a) Conduct a prompt, effective and impartial investigation into the incidents which occurred during the security operation in San Salvador Atenco on 3 and 4 May 2006, and ensure that those responsible for the violations are tried and properly punished;

(b) Ensure that the victims of the acts complained of secure fair and effective compensation;

(c) Ensure that all women who have been subjected to sexual violence have access to appropriate services offering physical and psychological rehabilitation and social reintegration;

(d) Establish transparent criteria to make it possible to determine clearly, in the event of jurisdictional disputes between judicial authorities, cases where the Special Prosecutor responsible for handling offences involving acts of violence against women can exercise jurisdiction in respect of specific offences against women.

(20)The Committee takes note of the efforts made by the State party to address the cases of violence against women in Ciudad Juárez, including the establishment in 2004 of the post of Special Prosecutor to handle offences involving the murder of women in the municipality, and also the Commission to Prevent and Eradicate Violence against Women in Ciudad Juárez. However, the Committee is concerned that many of the cases in which over 400 women in Ciudad Juárez have been murdered or have disappeared since 1993 remain unsolved and that acts of violence, and even murders, continue to occur in Ciudad Juárez. The Committee is also concerned at reports of a failure to draw conclusions as to responsibility from the fact that over 170 state officials are alleged to have committed disciplinary and/or criminal offences during the investigation of these cases, including the use of torture to extract confessions.

The State party should:

(a) Step up its efforts to find and properly punish the persons responsible for these crimes;

(b) Investigate and properly punish public servants who are reported for using methods of torture in order to obtain evidence;

(c) Step up its efforts to fully comply with the recommendations made by the Committee on the Elimination of Discrimination against Women following its inquiry undertaken under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women.

(21)The Committee is concerned at reports that, up to the present, in only two cases has compensation been granted to victims of acts of torture following a judicial procedure.

In accordance with article 14 of the Convention against Torture, the State party should guarantee to every victim of an act of torture, both in legislation and in practice, redress and the right to fair and adequate compensation, including the means for as full a rehabilitation as possible.

(22)The Committee is concerned about reports that, despite legal provisions to the contrary, the judicial authorities continue to accord evidentiary value to confessions obtained using physical or psychological violence, if they are corroborated by other evidence.

The State party should ensure that any statement which is established to have been obtained as a result of torture shall not be invoked, either directly or indirectly, as evidence in any proceeding, in accordance with article 15 of the Convention, except against a person accused of torture as evidence that the statement has been made.

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

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

(25)The Committee requests the State party to inform it within one year of steps taken in pursuance of the recommendations contained in paragraphs 14, 16, 19 and 20 of the present concluding observations.

(26)The State party is invited to submit its fifth and sixth reports, which will be considered as the sixth periodic report, by 31 December 2010 at the latest.

36. Russian Federation

(1)The Committee against Torture considered the fourth periodic report of the Russian Federation (CAT/C/55/Add.11) at its 732nd, 733rd and 735th meetings, held on 10 and 13 November 2006 (CAT/C/SR.732, 733 and 735), and adopted, at its 751st meeting on 23 November 2006 (CAT/C/SR.751), the following conclusions and recommendations.

A. Introduction

(2)The Committee welcomes the fourth periodic report of the Russian Federation and the lengthy written responses it provided to the list of issues (CAT/C/RUS/Q/4/Add.1). While the Committee welcomes the dialogue held with the delegation, it regrets the absence of a representative from the General Prosecutor’s Office. It appreciates the additional oral and written information provided by the representatives of the State party.

B. Positive aspects

(3)The Committee welcomes the following positive developments:

(a)The entry into force between 1 July 2002 and 1 January 2004 of the new Code of Criminal Procedure adopted in December 2001, which, inter alia, introduces jury trials, stricter limits on detention and interrogation, provisions for exclusion of evidence obtained in absence of a defence lawyer, and authorizes a judge rather than a procurator to order an arrest, as well as limiting to 48 hours the time a criminal suspect can be held in detention;

(b)Entry into force on 1 July 2002 of the new Code of Administrative Offences, under which decisions and acts or omissions that degrade human dignity which occur while applying measures of administrative coercion are inadmissible;

(c)The adoption on 25 August 2003 of Decision No. 523, approving a new federal programme that provides for staffing in parts of the armed forces by contract, thus reducing the number of conscripts;

(d)The adoption in August 2004 of the federal law on the state of protection of victims, witnesses and other participants in criminal proceedings, which provides for a system of government protection for crime victims, witnesses and other people involved in criminal proceedings and their relatives;

(e)The ratification in 2004 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women.

(4)The Committee further welcomes the numerous administrative and other measures taken, including in consultation with the Council of Europe, to upgrade the conditions of detention and the State party’s commitment to continuing these efforts, and notes in particular:

(a)The Order No. 205 of 2 August 2005 of the Ministry of Justice establishing minimum food rations for suspects, accused and convicted persons;

(b)The substantial measures taken by the State party to reduce overcrowding in places of detention and the adoption in September 2006 of the Strategic framework for the development of the penitentiary system.

C. Subjects of concern and recommendations

(5)The Committee’s concerns and recommendations are presented below in paragraphs 7 to 23 and address matters throughout the territory of the State party; paragraph 24 specifically addresses the situation in the Chechen Republic, as in the Committee’s previous recommendations.

(6)The Committee is concerned about the areas set out below.

Definition

(7)While noting the State party’s assertion that all acts that may be described as “torture” within the meaning of article 1 of the Convention are punishable in the Russian Federation, the definition of the term “torture” as contained in the annotation to article 117 of the Criminal Code does not fully reflect all elements of the definition in article 1 of the Convention which includes the involvement of a public official or other person acting in an official capacity in inflicting, instigating, consenting to or acquiescing to torture. The definition, moreover, does not address acts aimed at coercing a third person as torture.

The State party should take measures to bring its definition of torture into full conformity with article 1 of the Convention, in particular to ensure that police, army, as well as prosecutorial officials, can be prosecuted under article 302 as well as under article 117 of the Criminal Code.

Safeguards for detainees

(8)Laws and practices that obstruct access to lawyers and relatives of suspects and accused persons, thus providing insufficient safeguards for detainees, include:

(a)Internal regulations of temporary facilities i.e. IVS (temporary police detention) and SIZOs (pretrial establishments), failure of the courts to order investigations into allegations that evidence has been obtained through torture, as well as reported reprisals against defence lawyers alleging that their client has been tortured or otherwise ill‑treated, and which appear to facilitate torture and ill‑treatment;

(b)The possibility of restricting access to relatives of suspects in the interest of the secrecy of the investigations provided for in article 96 of the Code of Criminal Procedure;

(c)The Law on Operative‑Search Activity, as well as the federal Law No. 18‑FZ of 22 April 2004, amending article 99 of the Code of Criminal Procedure, according to which suspects of “terrorism” may be detained for up to 30 days without being charged;

(d)The reported practice of detention of criminal suspects on administrative charges, under which detainees are deprived of procedural guarantees.

The State party should ensure the implementation in practice of the right to access a lawyer and other guarantees of protection from torture starting from the moment of actual deprivation of liberty at the request of the detainee and not solely at the request of a public official.

The State party should ensure that criminal suspects are afforded their rights and procedural guarantees so that they are not arbitrarily detained on administrative charges.

Widespread use of torture

(9)The Committee is concerned at:

(a)The particularly numerous, ongoing and consistent allegations of acts of torture and other cruel, inhuman or degrading treatment or punishment committed by law enforcement personnel, including in police custody;

(b)The law enforcement promotion system based on the number of crimes solved, which appears to create conditions that promote the use of torture and ill‑treatment with a view to obtaining confessions;

(c)The information of the State party that representatives of international organizations other than the European Committee for the Prevention of Torture can talk to prisoners only when accompanied by representatives of the administration.

The State party should ensure prompt, impartial and effective investigations into all allegations of torture and ill ‑ treatment and the prosecution and punishment of those found responsible, as well as the protection of complainants and witnesses of torture.

The State party should consider setting up a national system to review all places of detention and cases of alleged abuses of persons while in custody , ensuring regular, independent, unannounced and unrestricted visits to all places of detention. To that end, the State party should establish transparent administrative guidelines and criteria for access, and facilitate visits by independent monitors, such as independent non ‑ governmental organizations.

The State party should finalize and adopt the draft federal Law No. 11807 ‑ 3, which was adopted by the State Duma on first reading in September 2003 and is now in preparation for a second reading.

The State party should take appropriate measures to eliminate any adverse effect that the current law enforcement promotion system may have on the prevalent use of torture and ill ‑ treatment.

(10)The Committee is further concerned at:

(a)Continuing reports of hazing in the military (dedovshchina) as well as of torture and other cruel, inhuman or degrading treatment or punishment in the armed forces, conducted by or with the consent, acquiescence or approval of officers or other personnel, notwithstanding the State party’s reported intention to develop an action plan to prevent hazing in the armed forces;

(b)Documented reports that victims who lodge complaints are subjected to further reprisals and abuse and that there is no system of protection for witnesses of such acts;

(c)Hundreds of reports that investigations are inadequate or absent, and that despite thousands of officers charged with such offences, that there is widespread impunity.

The State party should apply a zero ‑ tolerance approach to the continuing problem of dedovshchina in the armed forces, take immediate measures of prevention and ensure prompt, impartial and effective investigation and prosecution of such abuses.

The State party should ensure the protection of victims and witnesses of violence in the armed forces and establish a rehabilitation programme, including appropriate medical and psychological assistance, for victims.

Violence against women and children, including trafficking

(11)The Committee is concerned at:

(a)The lack of formal complaints, according to the State party, despite reliable allegations of violence against women in custody;

(b)Reports of prevalent domestic violenceand the lack of sufficient shelters for victims;

(c)Continued reports of trafficking in women and children for sexual exploitation.

The State party should ensure the protection of women in places of detention, and the establishment of clear procedures for complaints as well as mechanisms for monitoring and oversight.

The State party should ensure protection of women by adopting specific legislative and other measures to address domestic violence, providing for protection of victims, access to medical, social and legal services and temporary accommodation and for perpetrators to be held accountable.

The State party should strengthen measures to prevent and combat the sexual exploitation and abuse of children.

The State party should continue its efforts to ensure effective implementation of anti ‑ trafficking legislation. The State party should adopt the proposed legislative amendments as well as the draft act “ On Counteracting the Trafficking of People ” to ensure more effective protection of victims and the prosecution of traffickers.

Investigations and impunity

(12)The insufficient level of independence of the Procuracy, in particular due to the problems posed by the dual responsibility of the Procuracy for prosecution and oversight of the proper conduct of investigations, and the failure to initiate and conduct prompt, impartial and effective investigations into allegations of torture or ill‑treatment.

As a matter of priority, the State party should pursue efforts to reform the Procuracy , in particular by amending the current federal Law on the Prosecutor’s Office to ensure its independence and impartiality as well as to separate the function of criminal prosecution from the function of supervision of preliminary investigations into allegations of torture. The State party should establish effective and independent oversight mechanisms to ensure prompt, impartial and effective investigations into all reported allegations, and legal prosecution or punishment of those found guilty.

Independence of the judiciary

(13)The Committee is concerned about:

(a)The system of tenure of judges and its impact on the independence of the judiciary;

(b)The system of election of jurors, which does not automatically exclude from jury duty heads of legislative or executive bodies, army servicemen, judges, prosecutors and officers of law enforcement bodies.

The State party should reform the system of selection of jurors to ensure that the participation of such persons in juries is banned and to exclude any possibility for arbitrary selection, which could undermine their neutrality and impartiality. The State party should continue its efforts to strengthen the independence of the judiciary, in particular in relation to the security of tenure of judges.

Juvenile justice system

(14)While noting several legislative initiatives in progress, the Committee is concerned that the State party has not established a juvenile justice system.

The State party should pursue the reforms of the juvenile justice system and adopt the draft federal law “ On the foundations of a juvenile system ” , which, inter alia, provides for the creation of juvenile courts.

Asylum, non‑refoulement and extradition

(15)Matters related to article 3 of the Convention, including:

(a)Reports of more than 300 people returned this year to other neighbouring countries, according to the Ministry of Internal Affairs, and the lack of safeguards to ensure respect for the obligation of non‑refoulement under article 3 of the Convention;

(b)The widespread and broad use of administrative expulsion according to article c18.8 of the Code of Administrative Offences for minor violations of immigration rules.

The State party should ensure that no person is expelled, returned or extradited to a country where there are substantial grounds for believing that he/she would be in danger of being subjected to torture.

The State party should further clarify the violations of immigration rules which may result in administrative expulsion and establish clear procedures to ensure they are implemented fairly. The State party should ensure compliance with the requirements of article 3 of the Convention for an independent, impartial and effective administrative or judicial review of the decision to expel.

The State party should issue identity documents to all asylum ‑ seekers at the outset of the asylum process, including at Sheremetyevo 2 airport.

(16)The reported use of written assurances in the “refoulement” context, in circumstances where its minimum standards for such assurances, including effective post‑return monitoring arrangements and appropriate due process guarantees followed, are not wholly clear and thus cannot be assessed for compatibility with article 3 of the Convention.

The State party should provide the Committee with detailed statistical information on the number of assurances sought for the period since 2002, the persons concerned and the outcome of each case, as well as on minimum contents for any assurances. The State party should moreover establish and implement clear procedures for obtaining such assurances, adequate judicial mechanisms for review, as well as effective post ‑ return monitoring mechanisms.

Detention and places of deprivation of liberty

(17)While noting the significant efforts undertaken by the State party (see paragraph 4), the Committee remains concerned at:

(a)Conditions in detention facilities and the continuing problem of overcrowded penal institutions and juvenile institutions;

(b)The failure of the new Criminal Procedure Code (2001) to impose mandatory limits on pretrial detention during judicial proceedings;

(c)The situation of inadequate health care provided to persons in pretrial detention centres and prison colonies.

The Committee encourages the State party to implement the Strategic framework for the development of the penitentiary system, which was adopted in September 2006, and to continue its efforts to address the problem of overcrowding in penal institutions and to improve conditions in prisons, including juvenile detention centres and pretrial detention facilities, to ensure their conformity with the requirements of the Convention.

The State party should establish mandatory limits on pretrial detention during judicial proceedings.

The State party should consider the establishment of a health service independent from the Ministries of Internal Affairs and Justice to conduct examinations of detainees upon arrest and release, routinely and at their request , alone or together with an appropriate independent body with forensic expertise, so that serious medical cases, particularly deaths in custody, are examined by impartial experts and results are made available to relatives of the deceased.

(18)While noting the efforts undertaken by the State party to improve the situation, there continue to be inadequate living conditions in psychiatric hospitals for patients, including children, and there is also overcrowding in such institutions, which may be tantamount to inhuman or degrading treatment, as well as lengthy periods of confinement.

The State party should further develop outpatient services to reduce the problem of overcrowded psychiatric hospitals and reduce the time of hospitalization as well as take appropriate measures to improve the living conditions in inpatient institutions, for all patients, including children.

Training

(19)The Committee is concerned at:

(a)The absence of training to detect signs of torture and ill‑treatment for medical personnel in general and for personnel at temporary police detention facilities, in particular;

(b)The insufficient level of practical training regarding the obligations under the Convention for law enforcement personnel, judges as well as the military.

The State party should ensure practical training for doctors to detect signs of torture and ill ‑ treatment of persons in accordance with the Istanbul Protocol, as well as for prosecutorial and military personnel in relation to the State party’s obligations under the Convention.

The State party should further expand existing training programmes, including with non ‑ governmental organizations, in the sphere of training of law enforcement and penitentiary personnel.

Compensation and rehabilitation of victims of torture

(20)The lack of adequate compensation of victims of torture, as recognized by the Constitutional Court, as well as the absence of appropriate measures for rehabilitation of victims of torture and other cruel, inhuman or degrading treatment.

The State party should revise the current procedure of compensation, to bring it in line with constitutional requirements and obligations under article 14 of the Convention, ensuring that appropriate compensation is provided to victims of torture. The State party should ensure that appropriate medical and psychological assistance is also provided to victims of torture and ill ‑ treatment.

Use of evidence obtained through torture

(21)While the Code of Criminal Procedure states that evidence obtained by torture shall be inadmissible, in practice there appear to be no instruction to the courts to rule that the evidence is inadmissible, or to order an immediate, impartial and effective investigation.

The State party should adopt clear legal provisions prescribing the measures to be taken by courts should evidence appear to have been obtained through torture or ill ‑ treatment, in order to ensure in practice the absolute respect for the principle of inadmissibility of evidence obtained through torture, except against a person accused of torture, as required by article 15 of the Convention.

Violent attacks on human rights defenders

(22)The Committee is concerned at:

(a)Reliable reports of harassment and killing of journalists and human rights defenders, including the recent murder of Anna Politkovskaya, who, according to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, was preparing a report on serious allegations of torture by officials in the Chechen Republic;

(b)The entry into force on 17 April 2006 of the new law governing the activities of non‑commercial organizations, which expands the State’s discretion to interfere in and severely hamper the activities of non‑governmental organizations.

The State party should take effective steps to ensure that all persons monitoring and reporting torture or ill ‑ treatment are protected from intimidation and from any unfavourable consequences they might suffer as a result of making such a report, and ensure the prompt, impartial and effective investigation and punishment of such acts.

The State party should ensure that the applicability of the new law is clearly defined and that the State’s discretion to interfere in NGO activities is limited, and therefore, amend legislation governing the activities of non ‑ governmental organizations to ensure its actual conformity with international human rights standards on the protection of human rights defenders, including the United Nations Declaration on Human Rights Defenders, as well as with best practices internationally.

Violent attacks because of race, ethnicity or identity of the victim

(23)The reported rise in violent attacks because of the race, ethnicity or identity of the victim, including forced evictions in the Kaliningrad area, and the alleged absence of effective investigations into such crimes.

The State party should ensure that all officials are instructed that racist or discriminatory attitudes will not be permitted or tolerated and that any official who is complicit in such attacks will be prosecuted and suspended from his/her post pending resolution of the case or, if there is a danger of recurrence, transferred to a post which does not enable him/her to come into direct contact with potential victims. The State party should ensure prompt, impartial and effective investigations into all such acts of violence.

The situation in the Chechen Republic

(24)The Committee is concerned at:

(a)Reliable reports of unofficial places of detention in the North Caucasus and the allegations that those detained in such facilities face torture or cruel, inhuman or degrading treatment;

(b)Numerous, ongoing and consistent allegations that abductions and enforced disappearances in the Chechen Republic, in particular during anti‑terrorist operations, are inflicted by or at the instigation or with the consent or acquiescence of public officials or other persons acting in official capacities and the failure to investigate and punish the perpetrators;

(c)The dual system of jurisdiction in the Chechen Republic involving both military and civilian prosecutors and courts;

(d)Allegations of torture in the temporary holding facility within the Second Operational Investigative Bureau (ORB‑2) of the North Caucasian Operative Administration of the Central Administrative Board of the Ministry of Internal Affairs in the Southern Federal District, as well as in several sub‑offices of ORB‑2 in the Chechen Republic;

(e)The federal law “On counteracting terrorism” signed on 6 March 2006 fails to explicitly outline the applicability of the safeguards for detainees in the Code of Criminal Procedure to counter‑terrorist operations;

(f)Allegations of widespread practice of detaining relatives of suspects of terrorism;

(g)The reported practice of detention of persons for non‑compliance with the requirements of the system for registration of residence.

The State party should ensure that no one is detained in any unofficial place of detention under its de facto effective control. The State party should investigate and disclose the existence of any such facilities and the authority under which they have been established and the manner in which detainees are treated. The State party should publicly condemn any resort to secret detention and prosecute anyone engaged in or complicit in this practice.

The State party should take all necessary measures to prohibit and prevent abductions and enforced disappearances in any territory under its jurisdiction, and prosecute and punish the perpetrators.

The State party should ensure effective use of joint investigative groups including representatives of both military and civil (territorial) Office of the Public Prosecutor until such time as the competence and jurisdiction of any case can be determined and ensure the right to fair trial to all suspects.

The State party should conduct a thorough and independent inquiry into the methods used in holding facilities in ORB ‑ 2 when questioning prisoners.

The State party should conduct prompt, impartial and effective investigations into all allegations of torture and ill ‑ treatment in these and other facilities, including examination of medical reports supplied to court cases documenting mistreatment, and ensure that persons responsible are subject to prosecution with appropriate sanctions.

Reiterating its previous recommendation, the State party should clarify the applicable legal regime that currently prevails in the Chechen Republic , as there is no state of exception and there is also a non ‑ international armed conflict in progress. Such clarification could provide individuals with an effective means of seeking redress for any violations committed, so that they will not be caught in a vicious circle of various military and civilian departments and agencies with differing degrees of responsibility.

The State party should ensure that any counter ‑ terrorism measures taken with regard to the Chechen Republic and any other territory under its jurisdiction, remain in full conformity with the Convention’s prohibitions against torture and ill ‑ treatment.

The State party should establish safeguards against reprisals in order to protect all complainants, including, inter alia, those who submit cases on torture or disappearances to the European Court of Human Rights or under article 22 of the Convention.

(25)The Committee appreciates the data submitted by the representatives of the State party regarding hazing (dedovshchina) in the armed forces as well as on the application of articles 117 and 302 of the Criminal Code, but regrets the absence of comprehensive official statistics on investigations of complaints about torture in police custody and penal institutions in the territory under the State party’s jurisdiction. The State party should provide to the Committee detailed statistical data, disaggregated by crimes and sex, and with a breakdown by region, on complaints alleging torture and ill‑treatment by law enforcement officials and prison officers and on any related investigations and prosecutions, as well as penal and disciplinary measures. The Committee also requests statistical information on the number of cases, if any, where courts rejected prosecutorial requests for pretrial detention because law enforcement bodies violated legal procedures relating to custody.

(26)The Committee encourages the State party to continue to permit international inspection of places of detention, including by the European Committee for the Prevention of Torture (CPT) and, recalling that representatives of the State party referred repeatedly to recent findings by the individual members of the CPT on the Chechen Republic, recommends that the State party authorize the publication of the CPT’s reports on the Chechen Republic and other areas.

(27)The Committee regrets that the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment could not yet conduct a visit to the North Caucasus Republics of Chechnya, Ingushetia, North Ossetia and Kabardino‑Balkaria and urges the State party to permit this visit, in full conformity with the Terms of Reference for fact‑finding missions by special procedures of the United Nations. The Committee also encourages the State party to ratify the Optional Protocol to the Convention against Torture.

(28)The State party should widely disseminate its report, and its reply to the list of issues, and the summary records, conclusions and recommendations of the Committee, in all appropriate languages through official websites and the media.

(29)The Committee requests that the State party provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 8, 10, 12, 16, 22, 23 and 24 above.

(30)The State party is invited to submit its fifth periodic report by 31 December 2010.

37. South Africa

(1)The Committee against Torture (“the Committee”) considered the initial report of South Africa (CAT/C/52/Add.3) at its 736th and 739th meetings (CAT/C/SR.736 and 739), held on 14 and 15 November 2006, and adopted, at its 750th meeting, on 23 November 2006 (CAT/C/SR.750) the following conclusions and recommendations.

A. Introduction

(2)The Committee takes this opportunity to express its profound satisfaction for the termination of the apartheid regime, which brought so much suffering to the South African people, as well as for the measures taken to ensure that no such regime, based on systematic grave human rights violations, especially torture and cruel, inhuman or degrading treatment, could ever come to being again.

(3)The Committee welcomes the initial report of South Africa, as well as the opportunity to initiate a constructive dialogue with the representatives of the State party. It regrets, however, that the report, due in January 2000, was submitted in June 2005. It also notes that the report does not fully conform to the Committee’s guidelines for preparation of initial reports and limits itself mainly to statutory provisions rather than analysing the implementation of the Convention’s provisions. However, through the dialogue with the State party’s delegation, the Committee was able to obtain information on how the Convention’s provisions are applied in practice in the State party.

(4)The Committee commends the State party’s delegation for the detailed responses provided both in writing and orally to the questions posed by the members during the examination of the report. The Committee expresses its appreciation for the large and high‑level delegation, comprising representatives from several departments of the State party, which facilitated a constructive oral exchange during the consideration of the report.

B. Positive aspects

(5)The Committee commends the State party for the peaceful transition from the apartheid regime and the establishment of a democratic South African society as well as for the adoption of the Constitution of 1996, which includes a Bill of Rights enshrining, inter alia, the rights “to be free from all forms of violence from either public or private sources”, “not to be tortured in any way” and “not to be treated or punished in a cruel, inhuman or degrading way”, and sets legal safeguards for detained persons.

(6)The Committee acknowledges with appreciation the wide ratification of international human rights instruments by the State party since the end of apartheid, in particular: the International Covenant on Civil and Political Rights, and its Protocols; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Rights of the Child; the Convention on the Elimination of All Forms of Discrimination against Women; the Rome Statute of the International Criminal Court; the Convention on the Prevention and Punishment of the Crime of Genocide; the Convention relating to the Status of Refugees, and its Protocol; and the Convention against Transnational Organized Crime.

(7)The Committee welcomes the adoption of numerous legislative measures designed to entrench, promote and enforce human rights, including the abolition of the death penalty and solitary confinement, the adoption of the Standard Minimum Rules for the Treatment of Prisoners and, especially, the enactment of: (a) the Correctional Services Act of 1998, prescribing the Code of Ethics and Conduct for Correctional Officials; (b) the Refugees Act of 1998; (c) the Domestic Violence Act of 1998; (d) the Immigration Act of 2002; and (e) the Prison Act of 2004.

(8)The Committee also welcomes the establishment of the Law Reform Commission, the South African Human Rights Commission, the Independent Complaints Directorate, with specific investigation powers regarding allegations of torture and the appointment, under the Correctional Services Act, of Independent Prisons Visitors, who report to the Judicial Inspectorate of Prisons.

(9)The Committee notes with satisfaction the State party’s assurances that more financial and human resources have been allocated to the Independent Complaints Directorate, that its independence is guaranteed, and that an amendment to its structure is being considered to reinforce and broaden its powers.

(10)The Committee also acknowledges with satisfaction the establishment of a Policy on the Prevention of Torture and Treatment of Persons in Custody of the South African Police Service, and the issuing of Standing Orders for the Police.

C. Factors and difficulties impeding the implementation of the Convention

(11)The Committee recognizes that the heritage of the apartheid regime, in which torture and cruel, inhuman or degrading treatment, including arbitrary detention, enforced disappearances and other grave human rights violations, were widespread and institutionalized, continues to have some impact on the State party’s criminal justice system and presents obstacles impeding the full implementation of the Convention.

(12)Beyond the dismantling of the former apartheid structures, the Committee acknowledges that the establishment of a justice system respectful of human rights in general, and of the provisions of the Convention in particular, represents a challenge for South Africa and it encourages the State party to strengthen this reform. The Committee points out, however, that, as stated in article 2, paragraph 2, of the Convention, no exceptional circumstances whatsoever may be invoked as a justification of torture.

D. Principal subjects of concern and recommendations

(13)Notwithstanding the provisions of the Constitution and the fact that courts may consider torture as an aggravating circumstance, the Committee is concerned with regard to the absence of a specific offence of torture, as well as of a definition of torture, in the State party’s criminal law, more than seven years after the Convention entered into force (arts. 1 and 4).

The State party should enact legislation with a specific offence of torture under its criminal law, with a definition fully consistent with article 1 of the Convention, which should include appropriate penalties that take into account the grave nature of the offence, in order to fulfil its obligations under the Convention to prevent and eliminate torture and combat impunity.

(14)Notwithstanding the provisions of the Constitution, the Committee regrets the absence of clear legal provisions in the State party’s domestic legislation ensuring that the absolute prohibition against torture is not derogated from under any circumstances (arts. 2 and 15).

The State party should adopt appropriate legislation implementing the principle of absolute prohibition of torture, prohibiting the use of any statement obtained under torture and establishing that orders from a superior may not be invoked as a justification of torture.

(15)While acknowledging the jurisprudence of the Constitutional Court on this matter (Mohamed and Another v. President of the Republic of South Africa and Others, of 2001, and S v. Makwanyane, of 1995), the Committee is concerned by the return of persons by the State party to States where there are substantial grounds for believing that they would be in danger of being subjected to torture or sentenced to death (art. 3).

Under no circumstances should the State party expel, return or extradite a person to a State where there are substantial grounds for believing that this person would be in danger of being subjected to torture. When determining the applicability of its non ‑ refoulement obligations under article 3 of the Convention, the State party should examine thoroughly the merits of each individual case, ensure that adequate judicial mechanisms for the review of the decision are in place and ensure effective post ‑ return monitoring arrangements.

The State party should provide detailed information to the Committee on all cases of extradition, return or removal that are subject to receipt of assurances or guarantees and that have occurred since the entry into force of the Convention; what the minimum contents for such assurances or guarantees are; and what measures of subsequent monitoring it has undertaken in such cases. The State party should also provide the Committee with updated informa tion regarding the cases of Mr.  Rashid and Mr. Mohamed.

(16)The Committee is concerned with the difficulties affecting documented and undocumented non‑citizens detained under the immigration law and awaiting deportation in repatriation centres, who are unable to contest the validity of their detention or claim asylum or refugee status and without access to legal aid. The Committee is also concerned about allegations of ill‑treatment, harassment and extortion of non‑citizens by law enforcement personnel as well as with the absence of an oversight mechanism for those centres and with the lack of investigation of those allegations (arts. 2, 13 and 16).

The State party should take all necessary measures to prevent and combat ill ‑ treatment of non ‑ citizens detained in repatriation centres, especially in the Lindela Repatriation Centre, provide non ‑ citizens with adequate information about their rights and the legal remedies available against any violation of these rights and continue to accelerate its measures to reduce the backlog of asylum applications. Prompt, thorough and independent investigation of all allegations of ill ‑ treatment of non ‑ citizens should also be ensured and an effective monitoring mechanism should be established for those centres.

(17)The existence of the necessary legislative measures establishing the State party’s jurisdiction over acts of torture in accordance with the provisions of the Convention remains unclear for the Committee (arts. 5, 6, 7 and 8).

The State party should take the necessary measures to establish its jurisdiction over acts of torture in cases where the alleged offender is present in any territory under its jurisdiction, either to extradite or prosecute him or her, in accordance with the provisions of the Convention.

(18)While noting with appreciation the remarkable work of the Truth and Reconciliation Commission and its role in the peaceful transition in the State party, the Committee notes that de facto impunity persists regarding persons responsible for acts of torture during apartheid and that compensation has not yet been given to all the victims (arts. 12, 2 and 14).

The State party should consider bringing to justice persons responsible for the institutionalization of torture as an instrument of oppression to perpetuate apartheid and grant adequate compensation to a ll victims. The State party should also consider other methods of accountability for acts of torture committed under the apartheid regime , and thus combat impunity .

(19)The Committee is concerned about the wide discretionary powers available to the National Prosecuting Authority with regard to criminal justice (art. 12).

The State party should take all appropriate measures to ensure that its criminal justice system effectively guarantees that everyone is entitled to a fair trial.

(20)The Committee is concerned at the high number of deaths in detention and with the fact that this number has been rising. The Committee is also concerned at the lack of investigation of alleged ill‑treatment of detainees and with the apparent impunity of law enforcement personnel (art. 12).

The State party should promptly, thoroughly and impartially investigate all deaths in detention and all allegations of acts of torture or cruel, inhuman or degrading treatment committed by law enforcement personnel and bring the perpetrators to justice, in order to fulfil its obligations under article 12 of the Convention.

(21)Noting the existence of legal‑aid mechanisms, the Committee is concerned about the difficulties vulnerable persons or groups experience in efforts to exercise their right to complain, including for linguistic reasons, to obtain redress and fair and adequate compensation as victims of acts of torture. It is further concerned at the lack of awareness of the Convention’s provisions by vulnerable groups (arts. 13 and 10).

The State party should take the necessary measures to strengthen legal ‑ aid mechanisms for vulnerable persons or groups, ensuring that all victims of acts of torture may exercise their rights under the Convention and disseminate the Convention in all appropriate languages, in particular to groups made vulnerable.

(22)While recognizing some improvement of the situation in the State party’s detention system, the Committee remains concerned about the overcrowding in prisons and other detention facilities as well as with the high rate of HIV/AIDS and tuberculosis amongst detainees. The overcrowding affects, inter alia, detainees on remand and children, and the Committee is particularly concerned about detention conditions of pretrial detainees placed in police cells, which are inappropriate for long periods of detention, and which place detainees in a situation of great vulnerability. The Committee also expresses its concern that there is no effective oversight mechanism established to monitor the conditions for persons placed in police custody and that time spent in pretrial detention is not taken into account for the calculation of the final sentence (arts. 16 and 11).

The State party should adopt effective measures to improve the conditions in detention facilities, reduce the current overcrowding and meet the fundamental needs of all those deprived of their liberty, in particular regarding health care; periodic examinations of prisoners should be carried out. The State party should also ensure that detained children are kept in facilities separate from those for adults in conformity with international standards, reconsider the systematic pretrial detention for certain crimes, especially for children, and establish an effective monitoring mechanism for persons in police custody.

(23)The Committee is concerned about widespread acts of violence against women and children, especially rapes and domestic violence, and with the lack of an effective State policy to prevent and combat such violence (arts. 16 and 1).

The State party should adopt all necessary measures to prevent, combat and punish violence against women and children and reinforce its cooperation with civil society organizations in combating such violence. The State party should also undertake research into the root causes of the high incidence of rape and sexual violence so that effective preventive measures can be developed; establish awareness ‑ raising campaigns; investigate thoroughly those grave human rights violations; and work towards a “ no tolerance ” policy.

(24)The Committee is concerned with human trafficking in the State party and notes the lack of effective specific measures to combat such a phenomenon, including the absence of national legislation criminalizing human trafficking (art. 16).

The State party should adopt legislation and other effective measures, in order to adequately prevent, combat and punish human trafficking, especially that of women and children.

(25)While noting that the State party’s legislation, as well as the jurisprudence of the Constitutional Court (S v.  Williams and Others, of 1995), prohibits corporal punishment, the Committee remains concerned at even its infrequent use in some schools and other public institutions and at the absence of an oversight mechanism to monitor these institutions (art. 16).

The State party should ensure that legislation banning corporal punishment is strictly implemented, in particular in schools and other welfare institutions for children, and establish a monitoring mechanism for such facilities.

(26)While the Committee expresses its satisfaction that the State party has recognized the competence of the Committee to consider communications from or on behalf of individuals claiming to be victims of a violation by the State party of the provisions of the Convention, it notes the absence of communications received (arts. 22 and 10).

The State party should widely disseminate the Convention and information about it, in all appropriate languages, including the mechanism established under its article 22.

(27)The Committee requests the State party to provide in its next periodic report detailed disaggregated statistical data on complaints related to acts of torture, or cruel, inhuman or degrading treatment committed by law enforcement officials as well as of the investigations, prosecutions and convictions relating to such acts, including with regard to the abuses reportedly committed by South African peacekeepers. It further requests the State party to provide detailed information on compensation and rehabilitation provided to the victims.

(28)The Committee also requests detailed information on the bills criminalizing torture and on child justice and on any other bills or laws related to the implementation of the Convention. It further requests information on the existing training programmes for law enforcement officials and on monitoring mechanisms in mental health and other welfare institutions as well as on the measures to prevent and prohibit the production, trade and use of equipment specifically designed to inflict torture or other cruel, inhuman or degrading treatment.

(29)The Committee requests the State party to provide, within one year, information on its response to the recommendations in paragraphs 15, 16, 21, 23, 27 and 28 above.

(30)The Committee requests the State party to disseminate its report, with the written answers to the Committee’s oral questions, and the conclusions and recommendations of the Committee widely, in all appropriate languages, through official websites, the media and non‑governmental organizations.

(31)The Committee, having concluded that during the consideration of the report of South Africa sufficient information was presented to cover the seven‑year period of delay in submitting the initial report, decided to request the second periodic report by 31 December 2009.

38. Tajikistan

(1)The Committee considered the initial report of Tajikistan (CAT/C/TJK/1) at its 726th and 729th meetings (CAT/C/SR.726 and 729), held on 7 and 8 November 2006, and adopted, at its 744th meeting, held on 20 November 2006 (CAT/C/SR.744), the following conclusions and recommendations.

A. Introduction

(2)The Committee welcomes the initial report of Tajikistan and the valuable information presented therein, although observing that the report is submitted 10 years late. Also, the report should have covered the entire period from 1995 to 2004, instead of only 2000 to 2004.

(3)The Committee welcomes the additional information provided by the high‑level delegation in its introductory remarks and its readiness to answer the questions raised. The Committee notes, however, that, due to lack of time, many of the questions asked by the Committee in the review of the initial report remained unanswered.

B. Positive aspects

(4)The Committee notes the following positive measures:

(a)The ratification by the State party of the major international human rights treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;

(b)The ratification of other important instruments that contribute to the protection of human rights, such as the Rome Statute of the International Criminal Court and the United Nations Convention against Corruption;

(c)The establishment of the Government Commission on Ensuring Compliance with International Human Rights Obligations and the Office for Constitutional Guarantees of Citizens’ Rights;

(d)The transfer of authority over the prison system from the Ministry of Internal Affairs to the Ministry of Justice;

(e)The opening to international scrutiny as seen in its authorizing the visit by the Special Rapporteur on the independence of judges and lawyers in 2005;

(f)The assurance by the representative of the State party that due consideration will be given to introducing arrest warrants in the draft Criminal Code;

(g)The current policy of commuting of all existing death sentences in the State party;

(h)The adoption of article 130 of the Criminal Code, establishing that human trafficking is a criminal offence.

C. Principal subjects of concern and recommendations

Definition

(5)The definition of torture provided in domestic law (arts. 117, 316 and 354 of the 1998 Criminal Code) is not fully in conformity with the definition in article 1 of the Convention, particularly regarding purposes of torture and its applicability to all public officials and others acting in an official capacity.

The State party should adopt domestic legislation in line with article 1 of the Convention to address all the purposes therein, and it should ensure that acts of torture by State agents, including the acts of attempting to torture or complicity in it, ordering or participating in torture, are criminal offences punishable in a manner proportionate to the gravity of the crimes committed.

Torture

(6)There are numerous allegations concerning the widespread routine use of torture and ill‑treatment by law enforcement and investigative personnel, particularly to extract confessions to be used in criminal proceedings. Further, there is an absence of preventive measures to ensure effective protection of all members of society from torture and ill‑treatment.

The State party should publicly condemn the practice of torture and take immediate and effective measures to prevent all acts of torture throughout the country, with particular attention to preventing any such acts by law enforcement and criminal justice personnel.

Detention

(7)The Committee is also concerned at:

(a)The lack of a legal obligation to register detainees immediately upon loss of liberty, including before their formal arrest and arraignment on charges, the absence of adequate records regarding the arrest and detention of persons, and the lack of regular independent medical examinations;

(b)Numerous and continuing reports of hampered access to legal counsel, independent medical expertise and contacts with relatives in the period immediately following arrest, due to current legislation and actual practice allowing a delay before registration of an arrest and conditioning access on the permission or request of officials;

(c)Reports that unlawful restrictions of access to lawyers, doctors and family by State agents are not investigated or perpetrators duly punished;

(d)The lack of fundamental guarantees to ensure judicial supervision of detentions, as the Procuracy is also empowered to exercise such oversight;

(e)The extensive resort to pretrial detention that may last up to 15 months; and

(f)The high number of deaths in custody.

The State party should:

(a) Adopt measures to ensure detainees prompt access to a lawyer, doctor and family members from the time they are taken into custody and ensure that legal assistance and independent medical expertise be provided at the request of detained persons rather than solely when permitted or requested by officials;

(b) Take measures to establish registers of detainees at each place of custody with the names of each person detained, the time and date at which notifications of lawyers, doctors and family members took place and the results of independent medical examinations. These registers should be accessible to the detainee and his/her lawyers;

(c) C onsider the establishment of a health service independent from the Ministries of Internal Affairs and Justice to conduct examinations of detainees upon arrest and release, routinely and at their request , alone or together with an appropriate independent body with forensic expertise;

(d) Take steps to shorten the current pretrial detention period ( doznanie );

(e) Ensure independent judicial oversight separate from the Procuracy of the period and conditions of pretrial detention, including that imposed by the Ministry of Security; and

(f) Ensure prompt, impartial and full investigations into all complaints and into all instances of deaths in custody, making results available to relatives of the deceased.

Trafficking and violence against women and children

(8)There are persistent reports of trafficking in women and children, the alleged involvement of officials in acts of trafficking and a notable absence of information on sentences handed down to State agents under articles 130 and 132 of the Criminal Code. The Committee is concerned about continuing allegations of violence and abuse of women and children, including sexual violence.

The State party should take effective measures to prosecute and punish violence against women and children and trafficking in persons, including developing, monitoring, adopting appropriate legislation and raising awareness of the problem, and including the issue in training of law enforcement personnel and other relevant groups.

Juvenile justice system

(9)The State party lacks a well‑functioning juvenile justice system in the country, with children often being subjected to the same procedures, laws and violations as adults.

The State party should take the necessary steps to protect juveniles from breaches of the Convention, and ensure the proper functioning of a juvenile justice system in compliance with international standards.

Independence of the judiciary

(10)In the State party, there is inadequate independence and effectiveness of the judiciary, as judges are both appointed and dismissed by the President and the Procuracy has the double responsibility for prosecution and oversight of investigations into complaints, and it is empowered to prevent implementation of court decisions.

The State party should:

(a) Make every effort to guarantee the independence of the judiciary fully in line with the Basic Principles on the Independence of the Judiciary;

(b) Establish a fully independent body outside the Procuracy to provide oversight on the proper conduct of investigations, which is empowered to receive and investigate individual complaints.

(11)There is a limited practice of the Constitutional Court in reviewing the conformity of domestic legislation with the Constitution and international human rights norms.

The State party should expand the scope of the Constitutional Court to ensure that domestic legislation is in line with the Constitution and international human rights instruments.

Applicability of the Convention

(12)There is a failure by courts to invoke directly the Convention in proceedings as well as a failure to train judges on its direct applicability.

The State party should take all appropriate measures, including legislation and training, to ensure that domestic courts of general jurisdiction actively apply international human rights norms, and in particular the Convention, in proceedings, as provided in article 10 of the Constitution of the State party.

Non‑refoulement and extraditions

(13)There is a failure by the State party to provide access to lawyers and to appeal bodies for the purpose of challenging a deportation decision for persons at risk of deportation to countries where there are substantial grounds for believing that they would be in danger of being subjected to torture.

The State party should fully implement its obligations under article 3 of the Convention, and cooperate with representatives of the Office of the United Nations High Commissioner for Refugees, including granting effective access to files pertaining to asylum ‑ seekers.

Training

(14)There is a lack of training by officials on the prohibition against torture.In particular, the Committee is concerned about the lack of practical training for (a) doctors, in the detection of signs of torture or ill‑treatment of persons who have been or are in custody; and (b) law enforcement personnel and judges, in initiating prompt and impartial investigations.

The State party should ensure that law enforcement, judicial, medical and other personnel who are involved in custody, interrogation or treatment or who otherwise come into contact with detainees, are provided with the necessary training with regard to the prohibition of torture. It should also ensure that the requalification procedure ( “ re ‑ attestation ” ) of those personnel include both verification and an awareness of the Convention’s requirements and a review of their records in treating detainees.

Interrogation

(15)There are continuing and reliable allegations concerning the frequent use of interrogation methods that are prohibited by the Convention by both law enforcement officials and investigative bodies.

The State party should ensure that no recourse is made by law enforcement personnel, under any circumstance, to interrogation methods that constitute torture or ill ‑ treatment . Further, the State party should ensure that interrogation guidelines and methods are in full conformity with the Convention.

Systematic review of all places of detention

(16)There are reports that there is no systematic review of all places of detention, by national or international monitors, and that regular and unannounced access to such places is not permitted.

The State party should consider setting up a national system to review all places of detention and cases of alleged abuses while in custody , ensuring that national and international monitors are granted permission to carry out regular, independent, unannounced and unrestricted visits to all places of detention. To that end, the State party should establish transparent administrative guidelines and criteria for access, and facilitate visits by independent national monitors and others such as the International Committee of the Red Cross, the Office of the United Nations High Commissioner for Human Rights and independent non ‑ governmental organizations. The State party should consider becoming party to the Optional Protocol to the Convention.

Impunity

(17)There is an apparent lack of convictions under article 117 of the Criminal Code of public officials or others acting in an official capacity for acts of torture and ill‑treatment and a very small number of convictions under domestic law for violations of the Convention, despite numerous allegations of torture and ill‑treatment. Further, the Committee is concerned about the fact that acts of torture and ill‑treatment in the years 1995 to 1999 were immunized from punishment by amnesty laws, thereby entrenching impunity of those responsible for torture, and a lack of reparation for the victims.

The State party should take effective legislative, administrative and judicial measures, such as the establishment of an independent body, to ensure that all allegations of acts of torture and ill ‑ treatment by State agents are investigated, prosecuted and the perpetrators punished, including for acts of torture and ill ‑ treatment that occurred during the years 1995 to 1999. In connection with prima facie cases of torture, the suspects should be subject to suspension or reassignment during the investigation.

Right to complain and obtain redress

(18)The Committee is concerned at:

(a)The lack of appropriate legislation and any effective, independent mechanism to permit victims of acts of torture and ill‑treatment to complain and have their case examined promptly and impartially; and

(b)The lack of witness protection legislation and mechanisms, and of compensation for victims.

The State party should establish a fully independent complaints mechanism, outside the Procuracy , for persons who are held in official custody; amend its current and planned legislation so that there is no statute of limitation for registering complaints against acts of torture; and ensure that all persons who report acts of torture or ill ‑ treatment are adequately protected. The State party should consider establishing a national human rights institution in accordance with the Paris Principles. Further, the State party should enable victims of all forms of torture to file complaints and receive fair and adequate compensation in a timely manner, including cases from 1995 to 1999.

Statements made as a result of torture

(19)There is a reported failure of judges to dismiss or return cases for further investigation in instances where confessions were obtained as a result of torture, and numerous allegations of statements obtained as a result of torture being used as evidence in legal proceedings. This is facilitated by the absence of legislation expressly prohibiting the use of evidence obtained as a result of torture in legal proceedings.

The State party should review cases of convictions based solely on confessions in the period since Tajikistan became a party to the Convention, recognizing that many of these may have been based upon evidence obtained through torture or ill ‑ treatment, and, as appropriate, provide prompt and impartial investigations and take appropriate remedial measures. The State party should provide to the Committee information on any jurisprudence that excludes statements obtained as a result of torture being admitted as evidence. In addition, the State party should revise its legislation to prohibit the use of evidence obtained as a result of torture in court proceedings.

Prison conditions

(20)There are allegations of poor conditions of detention, in particular, overcrowding, poor sanitation, staffing shortages and a lack of medical attention for detainees.

The State party should take all necessary measures to improve conditions of detention.

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

(22)The Committee requests the State party to provide in its next periodic report detailed statistical data regarding cases of torture and other forms of cruel, inhuman or degrading treatment or punishment reported to administrative authorities and the related investigations, prosecutions and penal and disciplinary sentences, including details of applied articles of the Criminal Code, disaggregated by, inter alia, gender, ethnic group, geographical region, and type and location of place of deprivation of liberty, where it occurred. In addition, information is also requested on any compensation and rehabilitation provided to victims, including cases from 1995 to 2000.

(23)The State party is encouraged to disseminate widely its initial periodic report, summary records and the conclusions and recommendations, in appropriate languages, through official websites, the media and non‑governmental organizations.

(24)The Committee welcomes the assurances given by the delegation that written information will be submitted regarding the questions that remained unanswered, including information on the period from 1995 to 1999 and on the arrest of MahmadruziIskandarov.

(25)The Committee requests the State party to provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 7, 16, 17 and 19 above.

(26)The State party is invited to submit its next periodic report, which will be considered as the second periodic report, by 31 December 2008.

39. Denmark

(1)The Committee considered the fifth periodic report of Denmark, including Greenland, (CAT/C/81/Add.1 (Part I) and CAT/C/81/Add.2, Part II) at its 757th and 760th meetings, held on 2 and 3 May 2007 (CAT/C/SR.757 and CAT/C/SR.760), and adopted, at its 773rd meeting on 14 May 2007 (CAT/C/SR.773), the following conclusions and recommendations.

A. Introduction

(2)The Committee welcomes the submission of the State party’s fifth periodic report which was submitted on time and follows the Committee’s guidelines for reporting. The Committee welcomes the information provided on the measures taken to follow‑up to the Committee’s previous recommendations and on Greenland’s judicial system and its reform in the second part of the State party’s report (CAT/C/81/Add.2, Part II). The Committee also welcomes the State party’s thorough written replies to the list of issues (CAT/C/DNK/Q/5/Rev.1/Add.1), which provided additional information on the legislative, administrative, judicial and other measures taken by the State party in order to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment.

(3)The Committee notes with satisfaction the constructive efforts made by the multi‑sectoral delegation of the State party to provide additional information and explanation during the dialogue.

B. Positive aspects

(4)The Committee welcomes the State party’s ongoing efforts to improve conditions in prisons, including the additional resources allocated to administer the daily occupancy rates. In particular, the Committee welcomes the State party’s efforts to introduce alternative measures to custodial ones, such as the use of electronic monitoring, so called “tagging”.

(5)With regard to traumatized refugees and their families residing in Denmark, the Committee notes with appreciation funds allocated to special projects, which are set to run until 2010, to facilitate their rehabilitation and improve their living conditions.

(6)The Committee also notes with appreciation the State party’s decision to allocate additional funds to improve the living conditions in asylum centres, in particular the living conditions of families with children.

(7)The Committee welcomes the State party’s cooperation with non‑governmental organizations engaged in eradicating torture and providing assistance and rehabilitation to victims of torture in Denmark and internationally.

(8)The Committee commends the State party for its global efforts to promote respect for human rights, in particular to combat and eradicate torture, such as:

(a)Being one of the world’s largest bilateral donors in terms of development assistance per capita, and in this context developing a national framework for bilateral cooperation against torture;

(b)Contributing to United Nations agencies, programmes and funds, including the United Nations Voluntary Fund for the Victims of Torture;

(c)Promoting the universal ratification of the Optional Protocol to the Convention, including the State party’s early ratification of the Optional Protocol in 2004, and supporting its implementation;

(d)Presenting a draft resolution against torture to the Third Committee of the General Assembly of the United Nations as well as the former Commission on Human Rights, and taking initiatives to structure and strengthen the newly established Human Rights Council’s action against torture;

(e)Playing an active role in the implementation of the Guidelines to European Union policy towards third countries on torture and other cruel, inhuman or degrading treatment or punishment.

C. Principal subjects of concern and recommendations

Incorporation of the Convention

(9)The Committee regrets that the State party has not changed its position with regard to the incorporation of the Convention into Danish law. The Committee is of the view that the incorporation of the Convention into Danish law would not only be of a symbolic nature but that it would strengthen the protection of persons allowing them to invoke the provisions of the Convention directly before the courts.

The Committee recommends that the State party incorporate the Convention into Danish law in order to allow persons to invoke it directly in courts, to give prominence to the Convention as well as to raise awareness of its provisions among members of the judiciary and the public at large.

Definition of torture

(10)The Committee notes that the Ministry of Justice has recently requested the Standing Committee on Criminal Matters to consider the possibility of inserting a special provision on torture in the Criminal Code. Notwithstanding the State party’s ongoing efforts to review this issue and the existing provisions of the Criminal Code, the Committee reiterates the concern expressed in its previous conclusions and recommendations (CAT/C/CR/28/1, para. 6 (a)) with regard to the absence of a specific offence of torture, consistent with articles 1 and 4, paragraph 2, of the Convention. While noting the introduction of a Defence Command Directive on the prohibition of torture and other cruel, inhumane or degrading treatment or punishment in the Armed Forces, the Committee regrets the State party’s decision to exclude a special provision of torture from the new Military Criminal Code (arts. 1 and 4).

The Committee calls upon the State party to incorporate a specific offence of torture, as defined in article 1 of the Convention, in its Criminal Code as well as in the Military Criminal Code making it a punishable offence as set out in article 4, paragraph 2, of the Convention.

Statute of limitations

(11)The Committee notes with concern that the offence of torture, which as such does not exist in the Danish Criminal Code, is punishable under other provisions of the Criminal Code, and is, therefore, subject to the statute of limitations. While noting that acts of torture that amount to a war crime or a crime against humanity, according to the Rome Statute of the International Criminal Court, ratified by the State party on 21 June 2001, will not be subject to any statute of limitations due to section 93a of the Criminal Code, the Committee is concerned that the statute of limitations applicable to those other provisions of the Criminal Code may prevent investigation, prosecution and punishment of these grave crimes, in particular when the punishable act has been committed abroad. Taking into account the grave nature of acts of torture, the Committee is of the view that acts of torture cannot be subject to any statute of limitations(arts. 1 and 4).

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

Non‑refoulement

(12)The Committee takes note of the information received that the Danish Special Forces captured 34 men and handed them over to allied forces during a joint military operation in Afghanistan in February‑March 2002, in circumstances where allegations later emerged of ill‑treatment while the men were in allied forces’ custody. The Committee also notes the State party’s assurance that it undertook a full investigation of the incident reaching the conclusion that it did not violate article 12 of the Third Geneva Convention by handing over the detainees. Finally, the Committee takes note of the State party’s assurances that all detainees were released shortly after their transfer to allied forces’ custody and that none of them were ill‑treated while in the said custody.

(13)The Committee recalls its constant view (CAT/C/CR/33/3, paras. 4 (b) and (d), and 5 (e) and (f) and CAT/C/USA/CO/2, paras. 20 and 21) that article 3 of the Convention and its obligation of non‑refoulement applies to a State party’s military forces, wherever situated, where they exercise effective control over an individual. This remains so even if the State party’s forces are subject to operational command of another State. Accordingly, the transfer of a detainee from its custody to the authority of another State is impermissible when the transferring State was or should have been aware of a real risk of torture (art. 3).

With regard to the transfer of detainees within a State party’s effective custody to the custody of any other State, the State party should ensure that it complies fully with article 3 of the Convention in all circumstances.

Solitary confinement

(14)The Committee notes with appreciation that the upper limit for solitary confinement of persons under the age of 18 is reduced from eight weeks to four weeks. Despite the amendments of the Administration of Justice Act to limit the use of solitary confinement in general, and in particular with respect to persons under the age of 18, the Committee remains concerned at the placement of persons in prolonged solitary confinement during pretrial detention. It notes with particular concern that persons, including persons under the age of 18, suspected of offences against the independence and security of the State (chapter 12 of the Criminal Code) or against the Constitution and the supreme authorities of the State (chapter 13 of the Criminal Code) may be held indefinitely in solitary confinement during their pretrial detention. However, the Committee notes that there is a judicial review mechanism in place to review the need to continue the solitary confinement (art. 11).

The State party should continue to monitor the effects of solitary confinement on detainees and the effects of the 2000 and 2006 amendments to the Administration of Justice Act which have reduced the number of grounds that may give rise to solitary confinement and its duration. The State party should limit the use of solitary confinement as a measure of last resort, for as short a time as possible under strict supervision and with a possibility of judicial review. Solitary confinement of persons under the age of 18 should be limited to very exceptional cases. The State party should aim at its eventual abolition (CRC/C/ DNK /CO/3, paras. 58 ‑ 59).

With regard to persons suspected of offences against the independence and security of the State (chapter 12 of the Criminal Code) or against the Constitution and the supreme authorities of the State (chapter 13 of the Criminal Code) who may be held indefinitely in solitary confinement during their pretrial detention, t he State party should ensure respect for the principle of proportionality and establish strict limits on its use. In addition, the State party should increase the level of psychological meaningful social contact for detainees while in solitary confinement.

Prompt and impartial investigations

(15)The Committee notes that the State party has responded to the criticism raised by the case of the death in police custody of Jens Arne Ørskov in June 2002, and other individual cases, by setting up a broad‑based committee to review and evaluate the current system for handling complaints against the police and processing criminal cases against police officers. Nevertheless, the Committee is concerned at allegations of violations committed by law enforcement officials and, in particular, at the fact that the impartiality of subsequent investigations has been questioned (arts. 12, 13 and 14).

The State party should ensure that all allegations of violations committed by law enforcement officials, and in particular any deaths in detention, are investigated promptly, independently and impartially. It should also ensure the right of victims of police misconduct to obtain redress and fair and adequate compensation, as provided for in article 14 of the Convention. The State party should expedite the ongoing review process and provide the Committee with detailed information on the results of this process.

Excessive use of force, including killings, by law enforcement officials

(16)The Committee is concerned at reports emerging of alleged excessive use of force, such as the use of physical violence and tear gas, by law enforcement officials during the “Ungdomshus” Youth House riots in Copenhagen in March 2007. The Committee also notes with concern reports suggesting that a number of persons had been killed by Danish law enforcement officials over the past two years (arts. 10, 12, 13, 14 and 16).

The State party should review the existing framework to handle allegations of excessive use of force, including the use of weapons, by law enforcement officials to ensure its compliance with the Convention. The State party should ensure prompt and impartial investigations into all complaints or allegations of misconduct, in particular when a person dies or is seriously injured following contact with law enforcement officials. In addition, the State party should review and strengthen its education and training programmes relating to the use of force, including the use of weapons, by law enforcement officials in order to ensure that the use of force is strictly limited to that required to perform their duties.

Long waiting periods in asylum centres

(17)Despite the measures taken to improve the living conditions and activities in asylum centres, in particular the conditions for asylum‑seeking families with children, the Committee is concerned at unduly long waiting periods in asylum centres and the negative psychological effects of long‑term waiting and of the uncertainty of daily life on asylum‑seekers (art. 16).

The State party, while improving the living conditions in asylum centres, should take into consideration the effects of long waiting periods and provide both children and adults living in asylum centres with educational and recreational activities as well as adequate social and health services.

Reform of Greenland’s judicial system

(18)The Committee notes with interest the proposals and recommendations of the Commission on Greenland’s Judicial System (report No. 1442/2004), particularly with regard to the treatment of remand prisoners and other detainees, the preparation of pre‑sentence reports, the surrender or presentation to the court of documents or other issues of importance in relation to the conduct of criminal proceedings, and the prison structure. It also notes with interest the ongoing drafting of a new Special Criminal Code and a new Special Administration of Justice Act for Greenland.

The State party should expedite the ongoing drafting and adoption of a new Special Criminal Code and a new Special Administration of Justice Act for Greenland, ensuring that all provisions of these new acts are in full conformity with the Convention as well as with other relevant international standards.

(19)The Committee requests the State party to provide detailed statistical data, disaggregated by crime, ethnicity, age and sex, on complaints relating to torture and ill‑treatment allegedly committed by law enforcement officials and on the related investigations, prosecutions, and penal or disciplinary sanctions. Information is further requested on any compensation and rehabilitation provided to the victims.

(20)The State party is encouraged to disseminate widely the reports submitted by Denmark to the Committee and the conclusions and recommendations of the Committee, in appropriate languages, through official websites, to the media and non‑governmental organizations.

(21)The Committee invites the State party to submit its core document in accordance with the requirements regarding the common core document in the harmonized guidelines on reporting under international human treaties, approved by the Fifth Inter‑Committee meeting of the human rights treaty bodies in June 2006 (HRI/MC/2006/3 and Corr.1).

(22)The Committee requests the State party to provide, within one year, information on the measures taken to implement the Committee’s recommendations contained in paragraphs 15, 16 and 19.

(23)The State party is invited to submit its seventh periodic report by 30 June 2011.

40. Italy

(1)The Committee considered the fourth periodic report of Italy (CAT/C/67/Add.3) at its 762nd and 765th meetings (CAT/C/SR.762 and 765), held on 4 and 7 May 2007, and adopted, at its 777th and 778th meetings (CAT/C/SR.777 and 778), the following conclusions and recommendations.

A. Introduction

(2)The Committee welcomes the submission of the fourth periodic report of Italy and the information presented therein, but it regrets that the report did not follow the Committee’s guidelines for reporting. The Committee expresses its appreciation for the dialogue with the State party’s large and high‑level delegation and welcomes the extensive responses to the list of issues in written form (CAT/C/ITA/Q/4/Rev.1/Add.1), which facilitated discussion between the delegation and Committee members. In addition, the Committee appreciates the delegation’s oral and written responses to questions raised and concerns expressed during the consideration of the report.

B. Positive aspects

(3)The Committee notes with appreciation that in the period since the consideration of the last periodic report, the State party has ratified the following international instruments:

(a)The United Nations Convention against Transnational Organized Crime, on 2 August 2006;

(b)The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, on 2 August 2006;

(c)The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child pornography and child prostitution, on 9 May 2002;

(d)The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, on 9 May 2002;

(e)The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, on 22 September 2000; and

(f)The Rome Statute of the International Criminal Court, on 26 July 1999.

(4)The Committee notes with satisfaction the ongoing efforts at the State level to reform its legislation, policies and procedures in order to ensure better protection of human rights, including the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment, in particular:

(a)Act No. 38/2006, which amends Act No. 269/1998, entitled “Provisions against the exploitation of child prostitution, child pornography, sexual tourism, as new forms of “reduction into slavery” and updates the existing legislation on unlawful acts against children;

(b)Act No. 7/2006 on the prohibition of female genital mutilation;

(c)Act No. 74/2005, entitled “Voluntary contributions to the United Nations Fund for Victims of Torture”;

(d)Act No. 228/2003 on “Measures against trafficking in human beings”;

(e)The introduction in 2002 of the crime of torture in article 185 bis of the Military Penal Code in Time of War;

(f)Act No. 154/2001, entitled “Measures against violence within the household”;

(g)The entry into force of the Guidelines on the management of centres for immigrants, issued under the Directive of the Minister of Interior on 8 January 2003;

(h)The Directive by the Minister of the Interior which entered into force on 8 March 2007 in order to facilitate the taking into care, by the National System of Protection for Asylum‑seekers, of unaccompanied minors who reach the Italian borders;

(i)The establishment of the Committee for the Protection of Foreign Minors to set the methods and modalities for the reception and temporary protection of unaccompanied foreign minors at the national level; and

(j)The establishment of the National Anti‑Racial Discrimination Office (UNAR) which started its activities in September 2004.

C. Principal subjects of concern and recommendations

Definition of torture/introduction of a crime of torture

(5)Notwithstanding the State party’s assertion that, under the Italian Criminal Code all acts that may be described as “torture” within the meaning of article 1 of the Convention are punishable and while noting the draft law (Senate Act No. 1216) which has been approved by the Chamber of Deputies and is currently awaiting consideration in the Senate, the Committee remains concerned that the State party has still not incorporated into domestic law the crime of torture as defined in article 1 of the Convention (arts. 1 and 4).

The Committee reiterates its previous recommendation (A/54/44, para . 169 (a)) that the State party proceed to incorporate into domestic law the crime of torture and adopt a definition of torture that covers all the elements contained in article 1 of the Convention. The State party should also ensure that these offences are punished by appropriate penalties which take into account their grave nature, as set out in article 4, paragraph 2 , of the Convention.

Preventive detention

(6)The Committee expresses its concern at the length of preventive detention. It also regrets that the maximum period for preventive detention is set by reference to the penalty for the offence of which the person stands accused (arts. 2, 11 and 16).

The State party should urgently take appropriate measures to considerably reduce the length of preventive detention and restrict such detention to those cases, where it is deemed to be strictly necessary. Furthermore, the Committee encourages the State party to apply alternative non ‑ custodial measures.

Fundamental safeguards

(7)The Committee is concerned at allegations that fundamental legal safeguards for persons detained by the police, including the rights of access to a lawyer, are not being observed in all situations. In this respect, the Committee is concerned that Act. No. 155/2005 (the “Pisanu Decree”) includes a provision that extends the permissible period of deprivation of liberty by the police for identification purposes from 12 to 24 hours. Furthermore, an accused person may be held in detention for five days under a reasoned decree adopted by an investigating judge before being allowed to contact an attorney (arts. 2, 13 and 16).

The State party should take effective measures to ensure that the fundamental legal safeguards for persons detained by the police are respected. The State party should reduce the maximum period during which a person may be held in custody following arrest on a criminal charge, even in exceptional circumstances, to less than the present five days. Furthermore, the State party should ensure that persons in police custody benefit from an effective right of access to a lawyer, as from the very outset of their deprivation of liberty.

National human rights institution

(8)The Committee notes that the State party has not yet established a national human rights institution. However, it takes note of the approval of the Chamber of Deputies on 4 April 2007 of Senate Act No. 1463 on the establishment of a national institution for the protection of human rights, including a Guarantor for the rights of detainees (art. 2).

The State party should proceed with the establishment of an independent national human rights institution, in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles), annexed to General Assembly resolution 48/134. In this respect, the State party is encouraged to promptly adopt the necessary legislation.

Detention of asylum‑seekers and non‑citizens

(9)The Committee is concerned at the detention policy applied to asylum‑seekers and other non‑citizens, including reports that they often face lengthy periods of detention in the Temporary Detention Centres (CPTs) and the “temporary stay and assistance centres” (CPTAs). In this respect, the Committee regrets the change in the legislative framework resulting from Law No. 189/2002 (the “Bossi‑Fini law”) which permits the detention of undocumented migrants and doubles the detention period (from 30 to 60 days) (arts. 2, 11 and 16).

The State party should take effective measures to ensure that detention of asylum ‑ seekers and other non ‑ citizens is used only in exceptional circumstances or as a measure of last resort, and then only for the shortest possible time. The State party should also ensure that courts carry out a more effective judicial review of the detention of these groups.

Access to a fair and prompt asylum procedure

(10)The Committee welcomes the new draft law on asylum (NO. C. 2410) which was submitted to the Chamber of Deputies on 19 March 2007, and it notes with appreciation the statement by the State party’s delegation that the adoption of a comprehensive legislation on political asylum is under due consideration. However, the Committee is concerned that some asylum‑seekers may have been denied the right to apply for asylum and to have their asylum claim assessed individually in a fair and satisfactory procedure (arts. 2 and 16).

The State party should adopt appropriate measures to ensure that all asylum ‑ seekers have access to a fair and prompt asylum procedure. In this respect, the Committee recalls the obligation of the State party to ensure that the situation of each migrant is processed individually, and the Committee further recommends that the State party proceed with the adoption of a comprehensive legislation on political asylum.

Non‑refoulement

(11)The Committee notes with concern that individuals may not have been able, in all cases, to enjoy full protection under the relevant articles of the Convention in relation to expulsion, return or deportation to another country. The Committee is particularly concerned at reports of forcible and collective expulsions from the island of Lampedusa to Libya of persons not of Libyan origin (arts. 3 and 16).

The State party should ensure that it complies fully with article 3 of the Convention and that individuals under the State party’s jurisdiction receive appropriate consideration by its competent authorities and guaranteed fair treatment at all stages of the proceedings, including an opportunity for effective, independent and impartial review of decisions on expulsion, return or deportation.

In this respect, the State party should ensure that the relevant alien policing authorities carry out a thorough examination, prior to making an expulsion order, in all cases of foreign nationals who have entered or stayed in Italy unlawfully, in order to ensure that the person concerned would not be subjected to torture, inhuman or degrading treatment or punishment in the country where he/she would be returned to.

(12)The Committee is particularly concerned that article 3 of the “Pisanu Decree” has introduced a new procedure of expulsion of both regular and irregular migrants suspect of being involved in terrorist activities, which, according to the State party, will be in force until 31 December 2007 as an exceptional measure of prevention. The Committee also expresses its concern at the immediate enforcement of these expulsion orders, without any judicial review, and is concerned that this expulsion procedure lacks effective protection against refoulement (arts. 2 and 3).

The Committee recalls the absolute nature of the right of each person not to be expelled to a country where he/she may face torture or ill ‑ treatment and urges the State party to reconsider this new expulsion procedure. When determining the applicability of its non ‑ refoulement obligations, under article 3 of the Convention, the State party should examine thoroughly the merits of each individual case and ensure that adequate judicial mechanisms for the review of the decision are in place.

Universal jurisdiction

(13)The Committee notes the State party’s assurances that the Convention applies to the acts of Italian troops or police officers who are stationed abroad, whether in a context of peace or armed conflict. However, the Committee expresses its concern at the way in which the competent authorities, notably the judicial authorities, conducted the proceedings in respect of the incidents in Somalia involving Italian troops as well as the lack of detailed information on the progress and result of the judicial proceedings resulting from these incidents, as requested by the Committee in its previous conclusions and recommendations (A/54/44, para. 169 (b)) (arts. 5 and 12).

The State party should make sure that it acts in compliance with article 5 of the Convention and take the necessary measures to ensure prompt, impartial and effective investigations into all allegations of torture and ill ‑ treatment committed by law enforcement officials and Italian troops, in Italy or abroad, and try perpetrators as well as impose appropriate sentences on those convicted.

Extradition

(14)The Committee notes with concern how the competent judicial authorities have dealt with a request for extradition in respect of an Argentinean military officer caught in Italian territory in 2001 under an international warrant of arrest issued by France for the abduction and torture of a French citizen in Argentina in 1976 (arts. 7 and 9).

The State party should take the necessary measures to establish its jurisdiction over acts of torture in cases where the alleged offender is present in any territory under its jurisdiction, either to extradite or prosecute him or her, in accordance with the provisions of the Convention.

Training

(15)The Committee takes note with appreciation of the detailed information provided by the State party on training for its law enforcement officials, penitentiary staff, border guards and armed forces. However, the Committee regrets the lack of information on training on the employment of non‑violent means, crowd control and the use of force and firearms. In addition, the Committee regrets that there is no available information on the impact of the training conducted for law enforcement officials and border guards, and how effective the training programmes have been in reducing incidents of torture and ill‑treatment (art. 10).

The State party should further develop and implement educational programmes to ensure that:

(a) All law enforcement officials, border guards and personnel working in the CPTs and CPTAs are fully aware of the provisions of the Convention, that breaches will not be tolerated and will be investigated, and that offenders will be prosecuted; and

(b) All law enforcement officers are adequately equipped and trained to employ non ‑ violent means and only resort to the use of force and firearms when strictly necessary and proportionate. In this respect, the Italian authorities should conduct a thorough review of current policing practices, including the training and deployment of law enforcement officials in crowd control and the regulations on the use of force and firearms by law enforcement officials.

Furthermore, the Committee recommends that all relevant personnel receive specific training on how to identify signs of torture and ill ‑ treatment and that the Istanbul Protocol of 1999 (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) become an integral part of the training provided to physicians.

In addition, the State party should develop and implement a methodology to assess the effectiveness and impact of its training/educational programmes on the reduction of cases of torture and ill ‑ treatment.

Conditions of detention

(16)The Committee is concerned that, notwithstanding the measures taken by the State party to improve conditions of detention, including the practice of collective pardon (Law No. 241 of 31 July 2006) and the prison‑building programme adopted through the Ministerial Order of 2 October 2003, there is continuing overcrowding and understaffing in prisons. The Committee notes information provided on the improvement in penitentiary health care but it is concerned at reports of ill‑treatment, including unsuitable infrastructures and unhygienic living conditions, in CPTAs and identification centres. While noting the recent Directive concerning the access to centres for immigrants by the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM) and the International Committee of the Red Cross (ICRC), the Committee is also concerned at the absence of an independent organization that can systematically monitor the management of the centres (arts. 11 and 16).

The State party should continue its efforts to alleviate the overcrowdin g of penitentiary institutions,  including through the application of alternative measures to imprisonment and the establishment of additional prison facilities as needed. The State party should also take appropriate measures to ensure the prompt appointment of additional prison staff, including staff in the educational and health areas.

The State party should take effective measures to further improve livin g conditions in the immigration  centres and ensure that a system of systematic monitoring be set up. In this respect, the Committee recommends that an independent body should monitor the management of these centres, respect for the human rights of the people held there and the health, psychological and legal assistance provided.

Treatment and excessive use of force

(17)The Committee notes with concern continued allegations of excessive use of force and ill‑treatment by law enforcement officials. In this respect, the Committee is particularly concerned at reports emerging of alleged excessive use of force and ill‑treatment by law enforcement officials during the demonstrations in Naples (March 2001) in the context of the Third Global Forum, the G8 Summit in Genoa (July 2001) and in Val di Susa (December 2005). The Committee is also concerned that such incidents have reportedly occurred during football matches but it notes the recent adoption of Act No. 41/2007, entitled “Urgent measures on the prevention and the repression of violence cases occurring during football matches” (arts. 12, 13 and 16).

The Committee recommends that the State party should take effective measures to:

(a) Send a clear and unambiguous message to all levels of the police force hierarchy and to prison staff that torture, violence and ill ‑ treatment are unacceptable, including through the introduction of a code of conduct for all officials;

(b) Certify that those who report assaults by law enforcement officials are protected from intimidation and possible reprisals for making such reports; and

(c) Ensure that law enforcement officials only use force when strictly necessary and to the extent required for the performance of their duty.

Furthermore, the State party should report to the Committee on the progress of the judicial and disciplinary proceedings related to the above ‑ mentioned incidents.

(18)The Committee is concerned at reports that law enforcement officers did not carry identification badges during the demonstrations in connection with the 2001 G8 summit in Genoa which made it impossible to identify them in case of a complaint of torture or ill‑treatment (arts. 12 and 13).

The State party should make sure that all law enforcement officials on duty be equipped with visible identification badges to ensure individual accountability and the protection against torture, inhuman or degrading treatment or punishment.

Prompt and impartial investigations

(19)The Committee is concerned at the number of reports of ill‑treatment by law enforcement agencies, the limited number of investigations carried out by the State party in such cases, and the very limited number of convictions in those cases which are investigated. The Committee notes with concern that the offence of torture, which as such does not exist in the Italian Criminal Code but rather is punishable under other provisions of the Criminal Code, might in some cases be subject to the statute of limitations. The Committee is of the view that acts of torture cannot be subject to any statute of limitations and it welcomes the statement made by the State party’s delegation that it is considering a modification of the time limitations (arts. 1, 4, 12 and 16).

The Committee recommends that the State party should:

(a) Strengthen its measures to ensure prompt, impartial and effective investigations into all allegations of torture and ill ‑ treatment committed by law enforcement officials. In particular, such investigations should not be undertaken by or under the authority of the police, but by an independent body. In connection with prima facie cases of torture and ill ‑ treatment, the suspect should as a rule be subject to suspension or reassignment during the process of investigation, especially if there is a risk that he or she might impede the investigation;

(b) Try the perpetrators and impose appropriate sentences on those convicted in order to eliminate impunity for law enforcement personnel who are responsible for violations prohibited by the Convention; and

(c) Review its rules and provisions on the statute of limitations and bring them fully in line with its obligations under the Convention so that acts of torture as well as attempts to commit torture and acts by any person which constitute complicity or participation in torture, can be investigated, prosecuted and punished without time limitations.

Compensation and rehabilitation

(20)The Committee regrets the absence of a specific programme to safeguard the rights of victims of torture and ill‑treatment. The Committee also regrets the lack of available information regarding the number of victims of torture and ill‑treatment who may have received compensation and the amounts awarded in such cases as well as the lack of information about other forms of assistance, including medical or psychosocial rehabilitation, provided to these victims. However, the Committee welcomes information provided by the State party on the amendment in March 2007 of Senate Act No. 1216 referring to the introduction of the crime of torture, in order to introduce a domestic fund for the victims of torture(art. 14).

The State party should strengthen its efforts in respect of compensation, redress and rehabilitation provided to victims, including the means for as full rehabilitation as possible and develop a specific programme of assistance in respect of victims of torture and ill ‑ treatment.

Furthermore, the State party should provide in its next periodic report information about any reparation programmes, including treatment of trauma and other forms of rehabilitation provided to victims of torture and ill ‑ treatment, as well as the allocation of adequate resources to ensure the effective functioning of such programmes. The State party is encouraged to adopt the necessary legislation, establish a domestic fund for victims of torture and allocate sufficient financial sources for its effective functioning.

Vulnerable groups, including the Roma

(21)While noting a number of measures adopted by the State party, including the establishment of UNAR and the Registry of Associations Working against Discrimination, the Committee expresses its concern at reports of acts of violence against and discrimination of vulnerable groups, in particular the Roma, foreigners and Italians of foreign origin and the reluctance on the part of the police and authorities to provide adequate protection to the victims and to effectively investigate those crimes (arts. 2, 12, 13 and 16).

The State party should intensify its efforts to combat discrimination against and ill ‑ treatment of vulnerable groups, including the Roma, foreigners and Italians of foreign origin. In this respect, the Committee recommends that the State party should:

(a) Combat racial discrimination, xenophobia and related violence, ensure prompt, impartial and thorough investigations into all such motivated violence and prosecute and punish perpetrators with appropriate penalties which take into account the grave nature of their acts;

(b) Publicly condemn racial discrimination, xenophobia and related violence and send a clear and unambiguous message that racist or discriminatory acts within the public administration, especially with regard to law enforcement personnel, are unacceptable; and

(c) Provide detailed information to the Committee on the effective measures adopted to prevent and combat such violence.

Trafficking

(22)The Committee welcomes the variety of measures, projects and programmes undertaken by the State party to combat trafficking, including the establishment of an ad hoc inter‑ministerial Committee to manage and implement programmes for victims of trafficking as well as the so‑called “Article 18 approach”, the release of stay permits for social protection reasons for all victims of trafficking providing for their participation in social integration programmes, and Law Decree No. 300 which extends the scope of the system of assistance to and social integration of victims of trafficking to both non‑EU and EU citizens. However, the Committee expresses its concern at persistent reports of trafficking in women and children for sexual and other exploitative purposes and, while noting a high number of investigations, it is concerned at the lack of information on prosecutions and sentences in matters of trafficking (arts. 2, 10, 12 and 16).

The State party should continue to strengthen its efforts to combat trafficking in women and children and take effective measures to prosecute and punish trafficking in persons, including by strictly applying relevant legislation, raising awareness of the problem, and including the issue in training of law enforcement personnel and other relevant groups.

Domestic violence

(23)While noting various measures taken by the State party, including the survey issued on 21 February 2007 by the National Institute of Statistics (ISTAT) on the issue of physical and sexual violence against women, and the establishment on 8 March 2006 of an ad hoc toll‑free number 1522, called “Anti‑violence against Women (Anti‑violenza Donna)”, the Committee remains concerned about the persistence of violence against women and children, including domestic violence. The Committee further regrets that the State party did not provide statistical data on complaints, prosecutions and sentences in matters of domestic violence (arts. 1, 2, 12 and 16).

The State party should increase its efforts to prevent, combat and punish violence against women and children, including the adoption of the Bill on “ Awareness raising and prevention measures as well as the repression of crimes against the individual or within the household, on account of sexual orientation, gender identity and any other reason of discrimination ” (Chamber Act No. 2169) which envisages, inter alia, the systematic collection and analysis of data on violence, including domestic violence.

Data collection

(24)The Committee regrets the lack of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions of cases of torture and ill‑treatment by law enforcement officials, as well as on trafficking and domestic and sexual violence. However, the Committee takes note of the statement by the State party’s delegation that the Ministry of Justice is updating its system for the collection of statistical data which is due to be completed by the end of 2007 (arts. 11 and 12).

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

(25)While noting the oral assurances given by the State party’s representatives that ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is envisaged shortly, the Committee encourages the State party to ratify it.

(26)The Committee recommends that the State party consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

(27)The Committee invites the State party to submit its core document in accordance with the requirements of the Common Core Document in the Harmonized Guidelines on Reporting, recently approved by the international human rights treaty bodies (HRI/MC/2006/3 and Corr.1).

(28)The State party is encouraged to disseminate widely the reports submitted by Italy to the Committee and the conclusions and recommendations, in appropriate languages, through official websites, the media and non‑governmental organizations.

(29)The Committee requests the State party to provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 7, 12, 16 and 20 above.

(30)The State party is invited to submit its next periodic report, which will be considered as the sixth report, by 30 June 2011.

41. Japan

(1)The Committee considered the initial report of Japan (CAT/C/JPN/1) at its 767th and 769th meetings, held on 9 and 10 May 2007 (CAT/C/SR.767 and CAT/C/SR.769), and adopted, at its 778th and 779th meetings on 16 and 18 May 2007 (CAT/C/SR.778 and CAT/C/SR.779), the following conclusions and recommendations.

A. Introduction

(2)The Committee welcomes the submission of the initial report of Japan, as well as the opportunity to initiate a constructive dialogue. In particular, the Committee notes with appreciation the clarifications and explanations provided by the delegation to the numerous oral questions posed by the Committee. The Committee also welcomes the large delegation, representing various departments of the Government, demonstrating the importance given by the State party to meeting its obligations under the Convention. It further welcomes non‑governmental organizations present during the discussion of the report.

(3)The Committee regrets, however, that the report, due in July 2000, was submitted over five years late. It also notes that the report does not fully conform to the Committee’s guidelines for the preparation of initial reports, insofar as it lacks thorough information on how the provisions of the Convention have been applied in practice in the State party. The initial report is mainly limited to statutory provisions rather than providing an analysis of the implementation of the rights enshrined in the Convention, supported by examples and statistics.

B. Positive aspects

(4)The Committee welcomes the ratification by the State party of the majority of international human rights conventions.

(5)The Committee also welcomes the adoption of:

(b)The Law for Partial Amendment of Immigration Control and Refugee Recognition (Law No. 73 of 2004);

(c)The Act on Penal and Detention Facilities and the Treatment of Inmates, which entered into force on 24 May 2005, and was revised on 2 June 2006.

(6)The Committee notes the establishment of new mechanisms aimed at improving the oversight of detention facilities and to prevent the recurrence of violence, such as the Board of Visitors for Inspection of Penal Institutions and the Review and Investigation Panel on Complaints by Inmates in Penal Institutions. In addition, the Committee welcomes the announcement of the establishment, as of June 2007, of the Board of Visitors for Inspection of Police Custody.

(7)The Committee welcomes the activities of the Corrections Bureau concerning training curricula and practice for penal institution staff, which now include human rights standards as well as behavioural science and psychology.

(8)The Committee also welcomes actions taken by the State party to combat trafficking, and in particular the adoption of the National Plan of Action to combat trafficking in persons of December 2004, and the revisions of the relevant laws and regulations in the Penal Code and the Immigration Control and Refugee Recognition Act.

(9)The Committee welcomes the consultations with civil society undertaken by the State party in the framework of the preparation of the report.

C. Principal subjects of concern and recommendations

Definition of torture

(10)Notwithstanding the State party’s assertion that all acts that may be described as “torture” within the meaning of article 1 of the Convention are punishable as a crime under Japanese criminal law, the Committee notes with concern that a definition of torture as provided by article 1 of the Convention, is still not included in the Penal Code of the State party. In particular, the Committee is concerned that “mental torture” as per the Convention’s definition is not clearly defined under articles 195 and 196 of the Penal Code and penalties for related acts, such as intimidation, are inadequate. In addition, the Committee is concerned that Japanese legislation does not cover all types of public officials, individuals acting in an official capacity, or individuals acting at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity, such as members of the Self Defence Forces and immigration officials.

The State party should incorporate into domestic law the definition of torture as contained in article 1 of the Convention, encompassing all its constituent elements which characterize torture as a specific crime with appropriate penalties.

Internal applicability of the Convention

(11)The Committee regrets the lack of information on the direct applicability of the Convention, and in particular on any instances of its application by the domestic courts, as well as in times of war.

The State party should provide the Committee with information on the measures taken to ensure the direct applicability by the courts of the Convention, and of examples thereof. The State party should provide information on the applicability of the Convention in times of war.

Statute of limitations

(12)The Committee notes with concern that acts amounting to torture and ill‑treatment are subject to a statute of limitations. The Committee is concerned that the statute of limitations for acts amounting to torture and ill‑treatment may prevent investigation, prosecution and punishment of these grave crimes. In particular, the Committee regrets the dismissal of cases filed by victims of military sexual slavery during the Second World War, the so‑called “comfort women”, for reasons related to statutory limitations.

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

Independence of the judiciary

(13)The Committee is concerned at the insufficient level of independence of the judiciary, in particular the tenure of judges and the lack of certain necessary safeguards.

The State party should take all necessary measures to reinforce the independence of the judiciary, and in particular ensure the security of tenure of judges.

Non‑refoulement

(14)The Committee is concerned that certain provisions in domestic law and practices of the State party do not conform to article 3 of the Convention, and in particular:

(a)The 2006 Immigration Control and Refugee Recognition Act which does not expressly prohibit deportation to countries where there is a risk of torture; in addition, reviewing authorities do not systematically investigate the applicability of article 3;

(b)The lack of an independent body to review refugee recognition applications;

(c)The conditions of detention in landing prevention facilities and immigration detention centres, with numerous allegations of violence, unlawful use of restraining devices during deportation, abuse, sexual harassment, lack of access to proper health care. In particular, the Committee is concerned that, so far, only one case in such a detention centre has been recognized as ill‑treatment;

(d)The lack of an independent monitoring mechanism for immigration detention centres and landing prevention facilities, and in particular the lack of an independent agency to which detainees can complain about alleged violations by Immigration Bureau staff members. The Committee is also concerned that the criteria for the appointment of third‑party refugee adjudication counsellors are not made public;

(e)The lack of an independent body to review decisions by immigration officials, in light of the fact that the Ministry of Justice does not allow refugee recognition applicants to select legal representatives at the first stage of application, and governmental legal assistance is de facto restricted for non‑residents;

(f)Insufficient guarantees of access to judicial review for all asylum‑seekers, and allegations of deportations carried out immediately after the administrative procedure has ended;

(g)The undue length of time asylum‑seekers spend in custody between rejection of an asylum application and deportation, and in particular reports of cases of indefinite and long‑term detention;

(h)The strict character and limited effect of the provisional stay system adopted in the revised 2006 Immigration Law.

The State party should ensure that all measures and practices relating to the detention and deportation of immigrants are in full conformity with article 3 of the Convention. In particular, the State party should expressly prohibit deportation to countries where there are substantial grounds for believing that the individuals to be deported would be in danger of being subjected to torture, and should establish an independent body to review asylum applications. The State party should ensure due process in asylum applications and deportation proceedings and should establish without delay an independent authority to review complaints about treatment in immigration detention facilities. The State party should establish limits to the length of the detention period for persons awaiting deportation, in particular for vulnerable groups, and make public information concerning the requirement for detention after the issuance of a written deportation order.

DaiyoKangoku (detention in the substitute prison system)

(15)The Committee is deeply concerned at the prevalent and systematic use of the DaiyoKangoku substitute prison system for the prolonged detention of arrested persons even after they appear before a court, and up to the point of indictment. This, coupled with insufficient procedural guarantees for the detention and interrogation of detainees, increases the possibilities of abuse of their rights, and may lead to a de facto failure to respect the principles of presumption of innocence, right to silence and right of defence. In particular the Committee is gravely concerned at:

(a)The disproportionate number of individuals detained in police facilities instead of detention centres during investigation and up to the point of indictment, and in particular during the interrogation phase of the investigation;

(b)The insufficient separation between the functions of investigation and detention, whereby investigators may be engaged in the transfer of detainees, and subsequently be in charge of investigating their cases;

(c)The unsuitability of the use of police cells for prolonged detention, and the lack of appropriate and prompt medical care for individuals in police custody;

(d)The length of pretrial detention in police cells before indictment, lasting up to 23 days per charge;

(e)The lack of effective judicial control and review by the courts over pretrial detention in police cells, as demonstrated by the disproportionately high number of warrants of detention issued by the courts;

(f)The lack of a pre‑indictment bail system;

(g)The absence of a system of court‑appointed lawyers for all suspects before indictment, regardless of the categories of crimes with which they are charged. Currently, court‑appointed lawyers are limited to cases of felony;

(h)The limitations of access to defence counsel for detainees in pretrial detention, and in particular the arbitrary power of prosecutors to designate a specific date or time for a meeting between defence counsel and detainees, leading to the absence of defence counsel during interrogations;

(i)The limited access to all relevant material in police records granted to legal representatives, and in particular the power of prosecutors to decide what evidence to disclose upon indictment;

(j)The lack of an independent and effective inspection and complaints mechanism accessible to detainees held in police cells;

(k)The use of gags at police detention facilities, in contrast with the abolition of their use in penal institutions.

The State party should take immediate and effective measures to bring pretrial detention into conformity with international minimum standards. In particular, t he State party should amend the  2006 Prison Law, in order to limit the use of police cells during pretrial detention. As a matter of priority, the State party should:

(a) Amend its legislation to ensure complete separation between the functions of investigation and detention (including transfer procedures), excluding police detention officers from investigation and investigators from matters pertaining to detention;

(b) Limit the maximum time detainees can be held in police custody to bring it in line with international minimum standards;

(c) Ensure that legal aid is made available to all detained persons from the moment of arrest, that defence counsel are present during interrogations and that they have access to all relevant materials in police records after indictment, in order to enable them to prepare the defence, as well as ensuring prompt access to appropriate medical care to persons while in police custody;

(d) Guarantee the independence of external monitoring of police custody, by measures such as ensuring that prefectural police headquarters systematically include a lawyer recommended by the bar associations as a member of the Board of Visitors for Inspection of Police Custody, to be established as of June 2007;

(e) Establish an effective complaints system, independent from the Public Safety Commissions, for the examination of complaints lodged by persons detained in police cells;

(f) Consider the adoption of alternative measures to custodial ones at pretrial stage;

(g) Abolish the use of gags at police detention facilities.

Interrogation rules and confessions

(16)The Committee is deeply concerned at the large number of convictions in criminal trials based on confessions, in particular in light of the lack of effective judicial control over the use of pretrial detention and the disproportionately high number of convictions over acquittals. The Committee is also concerned at the lack of means for verifying the proper conduct of interrogations of detainees while in police custody, in particular the absence of strict time limits for the duration of interrogations and the fact that it is not mandatory to have defence counsel present during all interrogations. In addition, the Committee is concerned that, under domestic legislation, voluntary confessions made as a result of interrogations not in conformity with the Convention may be admissible in court, in violation of article 15 of the Convention.

The State party should ensure that the interrogation of detainees in police custody or substitute prisons is systematically monitored by mechanisms such as electronic and video recording of all interrogations; that detainees are guaranteed access to and the presence of defence counsel during interrogation; and that recordings are made available for use in criminal trials. In addition, the State party should promptly adopt strict rules concerning the length of interrogations, with appropriate sanctions for non ‑ compliance. The State party should amend its Code of Criminal Procedure to ensure full conformity with article 15 of the Convention. The State party should provide the Committee with information on the number of confessions made under compulsion, torture or threat, or after prolonged arrest or detention, that were not admitted into evidence.

Conditions of detention in penal institutions

(17)The Committee is concerned over the general conditions of detention in penal institutions, including overcrowding. While welcoming the abolition of the use of leather handcuffs in penal institutions, the Committee notes with concern allegations of instances of improper use of “type 2 leather handcuffs” as punishment. The Committee is concerned at allegations of undue delays in the provision of medical assistance to inmates as well as the lack of independent medical staff within the prison system.

The State party should take effective measures to improve conditions in places of detention, to bring them in line with international minimum standards, and in particular take measures to address current overcrowding. The State party should ensure strict monitoring of restraining devices, and in particular adopt measures to prevent them being used for punishment. In addition, the State party should ensure that adequate, independent and prompt medical assistance be provided to all inmates at all times. The State party should consider placing medical facilities and staff under the jurisdiction of the Ministry of Health.

Use of solitary confinement

(18)The Committee is deeply concerned at allegations of continuous prolonged use of solitary confinement, despite the new provisions of the 2005 Act on Penal Institutions and the Treatment of Sentenced Inmates limiting its use. In particular, the Committee is concerned at:

(a)The de facto absence of a time limit for solitary confinement, as there is no limit on the renewal of the three‑month rule;

(b)The number of detainees who have been in isolation for over 10 years, with one case exceeding 42 years;

(c)Allegations of the use of solitary confinement as a punishment;

(d)The inadequate screening of inmates subject to solitary confinement for mental illness;

(e)The lack of effective recourse procedures against decisions imposing solitary confinement upon persons serving sentences;

(f)The absence of criteria to determine the need for solitary confinement.

The State party should amend its current legislation in order to ensure that solitary confinement remains an exceptional measure of limited duration, in accordance with international minimum standards. In particular, the State party should consider systematically reviewing all cases of prolonged solitary confinement, through a specialized psychological and psychiatric evaluation, with a view to releasing those whose detention can be considered in violation of the Convention.

Death penalty

(19)While noting the recent legislation broadening visiting and correspondence rights for death row inmates, the Committee is deeply concerned over a number of provisions in domestic law concerning individuals sentenced to death, which could amount to torture or ill‑treatment, and in particular:

(a)The principle of solitary confinement after the final sentence is handed down. Given the length of time on death row, in some cases this exceeds 30 years;

(b)The unnecessary secrecy and arbitrariness surrounding the time of execution, allegedly in order to respect the privacy of inmates and their families. In particular, the Committee regrets the psychological strain imposed upon inmates and families by the constant uncertainty as to the date of execution, as prisoners are notified of their execution only hours before it is due to take place.

The State should take all necessary measures to improve the conditions of detention of persons on death row, in order to bring them into line with international minimum standards.

(20)The Committee is seriously concerned at the restrictions imposed on the enjoyment of legal safeguards by death row inmates, in particular with respect to:

(a)The limitations imposed on death row prisoners concerning confidential access to their legal representatives, including the impossibility to meet with them in private, while on appeal requesting retrial; the lack of alternative means of confidential communication and the lack of access to State defence counsel after the final sentence is handed down;

(b)The lack of a mandatory appeal system for capital cases;

(c)The fact that a retrial procedure or a request for pardon do not lead to suspension of the execution of sentence;

(d)The absence of a review mechanism to identify inmates on death row who may be suffering from mental illness;

(e)The fact that there has been no case of commutation of a death sentence in the last 30 years.

The State party should consider taking measures for an immediate moratorium on executions and a commutation of sentences and should adopt procedural reforms which include the possibility of measures of pardon. A right of appeal should be mandatory for all capital sentences. Furthermore, the State party should ensure that its legislation provides for the possibility of the commutation of a death sentence where there have been delays in its implementation. The State party should ensure that all persons on death row are afforded the protections provided by the Convention.

Prompt and impartial investigations, right to complain

(21)The Committee is concerned at:

(a)The lack of an effective complaints system for persons in police custody. It regrets the fact the 2006 Penal Law does not introduce an independent body with such a mandate. The Committee notes the lack of information on the Board of Visitors for Inspection of Police Detention Cells, to be established in June 2007;

(b)The lack of authority of the Board of Visitors for Inspection of Penal Institutions to investigate cases or allegations of acts of torture or ill‑treatment;

(c)The lack of independence of the Review and Investigation Panel on Complaints by Inmates in Penal Institutions, as its secretariat is staffed by personnel of the Ministry of Justice, and its limited powers to investigate cases directly, as it cannot interview prisoners and officers, nor does it have direct access to any related documents;

(d)The statutory limitations on the right of inmates to complain and the impossibility of defence counsel assisting clients to file a complaint;

(e)Reports of adverse consequences to inmates as a result of having filed a complaint and of law suits rejected on the grounds that the term for claiming compensation had expired;

(f)The lack of information on the number of complaints received, as well as the number of investigations initiated and completed and their outcome, including information on the number of perpetrators and sentences received.

The State party should consider establishing an independent mechanism, with authority to promptly, impartially and effectively investigate all reported allegations of and complaints about acts of torture and ill ‑ treatment from both individuals in pretrial detention at police facilities or penal institutions and inmates in penal institutions. The State party should take all necessary measures to ensure that the right of inmates to complain can be fully exercised, including the lifting of any statute of limitations for acts of torture and ill ‑ treatment; ensuring that inmates may avail themselves of legal representation to file complaints; establishing protection mechanisms against intimidation of witnesses; and reviewing all rulings limiting the right to claim compensation. The State party should provide detailed statistical data, disaggregated by crime, ethnicity, age and sex, on complaints relating to torture and ill ‑ treatment allegedly committed by law enforcement officials and on the related investigations, prosecutions, and penal or disciplinary sanctions.

Human rights education and training

(22)The Committee notes the allegations of the existence of a training manual for investigators, with interrogation procedures which are contrary to the Convention. In addition, the Committee is concerned that human rights education, and in particular education on the rights of women and children, is only offered systematically to penal institution officials, and has not been fully included in the curricula for police detention officers, investigators, judges or immigration security personnel.

The State party should ensure that all materials related to the education curriculum of law enforcement personnel, and in particular investigators, are made public. In addition, all categories of law enforcement personnel, as well as judges and immigration officials, should be regularly trained in the human rights implications of their work, with a particular focus on torture and the rights of children and women.

Compensation and rehabilitation

(23)The Committee is concerned over reports of difficulties faced by victims of abuse in obtaining redress and adequate compensation. The Committee is also concerned over restrictions on the right to compensation, such as statutory limitations and reciprocity rules for immigrants. The Committee regrets the lack of information on compensation requested and awarded to victims of torture or ill‑treatment.

The State party should take all necessary measure to ensure that all victims of acts of torture or ill ‑ treatment can exercise fully their right to redress, including compensation and rehabilitation. The State party should take measures to establish rehabilitation services in the country. The State party should furnish the Committee with information on any compensation or rehabilitation provided to the victims.

(24)The Committee is concerned at the inadequate remedies for the victims of sexual violence, including in particular survivors of Japan’s military sexual slavery practices during the Second World War and the failure to carry out effective educational and other measures to prevent sexual violence‑ and gender‑based breaches of the Convention. The survivors of the wartime abuses, acknowledged by the State party representative as having suffered “incurable wounds”, experience continuing abuse and re‑traumatization as a result of the State party’s official denial of the facts, concealment or failure to disclose other facts, failure to prosecute those criminally responsible for acts of torture, and failure to provide adequate rehabilitation to the victims and survivors.

The Committee considers that both education (article 10 of the Convention) and remedial measures (article 14 of the Convention) are themselves a means of preventing further violations of the State party’s obligations in this respect under the Convention. Continuing official denial, failure to prosecute, and failure to provide adequate rehabilitation all contribute to a failure of the State party to meet its obligations under the Convention to prevent torture and ill ‑ treatment, including through educational and rehabilitation measures. The Committee recommends that the State party take measures to provide education to address the discriminatory roots of sexual and gender ‑ based violations, and provide rehabilitation measures to the victims, including steps to prevent impunity.

Gender‑based violence and trafficking

(25)The Committee is concerned at continued allegations of gender ‑ based violence and abuse against women and children in custody, including acts of sexual violence by law enforcement personnel. The Committee is also concerned at the restrictive scope of the State party’s legislation covering rape, referring only to sexual intercourse involving male and female genital organs, excluding other forms of sexual abuse and rape of male victims. In addition, the Committee is concerned that cross‑border trafficking in persons continues to be a serious problem in the State party, facilitated by the extensive use of entertainment visas issued by the Government, and that support measures for identified victims remain inadequate, leading to victims of trafficking being treated as illegal immigrants and deported without redress or remedy. The Committee is also concerned over the lack of effective measures to prevent and prosecute violence perpetrated against women and girls by military personnel, including foreign military personnel stationed on military bases.

The State party should adopt preventive measures to combat sexual violence and violence against women, including domestic violence and gender ‑ based violence, and promptly and impartially investigate all allegations of torture or ill ‑ treatment with a view to prosecuting those responsible. The Committee calls on the State party to strengthen its measures to combat trafficking in persons, including restricting the use of entertainment visas to ensure they are not used to facilitate trafficking, allocate sufficient resources for this purpose, and vigorously pursue enforcement of criminal laws in this regard. The State party is also encouraged to undertake training programmes for law enforcement officials and the judiciary to ensure that they are sensitized to the rights and needs of victims, to establish dedicated police units, and to provide better protection and appropriate care for such victims, including, inter alia, access to safe houses, shelters and psychosocial assistance. The State party should ensure all victims can claim redress before courts of law, including victims of foreign military personnel stationed on military bases.

Individuals with mental disabilities

(26)The Committee is concerned at the role played by designated private psychiatrists in private hospitals in issuing detention orders for individuals with mental disabilities, and the insufficient judicial control over detention orders, management of private mental health institutions and complaints by patients concerning acts of torture or ill‑treatment.

The State party should take all necessary measures to ensure effective and thorough judicial control over detention procedures in public and private mental health institutions.

(27)The Committee encourages the State party to consider making the declaration under article 22, thereby recognizing the competence of the Committee to receive and consider individual communications, as well as ratifying the Optional Protocol to the Convention.

(28)The Committee encourages the State party to consider becoming party to the Rome Statute of the International Criminal Court.

(29)The State party is encouraged to disseminate widely the reports submitted to the Committee and the conclusions and recommendations of the Committee, in appropriate languages, through official websites, the media and non‑governmental organizations.

(30)The Committee invites the State party to submit its core document in accordance with the requirements of the common core document in the harmonized guidelines on reporting, recently recommended by the international human rights treaty bodies (HRI/MC/2006/3 and Corr.1).

(31)The Committee requests the State party to provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 14, 15, 16 and 24.

(32)The State party is invited to submit its second periodic report by 30 June 2011.

42.Luxembourg

(1)The Committee considered the fifth periodic report of Luxembourg (CAT/C/81/Add.5) at its 759th and 762nd meetings, held on 3 and 4 May 2007 (CAT/C/SR.759 and 762), and adopted the following conclusions and recommendations at its 773rd meeting, on 14 May 2007 (CAT/C/SR.773).

A. Introduction

(2)The Committee welcomes the fifth periodic report of Luxembourg, which is in conformity with the guidelines regarding the form and contents of periodic reports, and notes that it was submitted on time. The Committee takes note with satisfaction of the written replies by Luxembourg to the list of issues and the additional information provided orally during consideration of the report. Lastly, the Committee welcomes the constructive dialogue with the high‑level delegation sent by the State party and thanks it for its frank and direct replies to Committee members’ questions.

B. Positive aspects

(3)The Committee commends the State party for striving to comply with its obligations concerning the protection of human rights in general and those under the Convention in particular.

(4)The Committee notes with satisfaction the following positive developments:

(a)Adoption of the Act of 8 September 2003 on the prevention of domestic violence;

(b)Adoption of the Act of 22 August 2003 establishing the Office of the Ombudsman;

(c)The establishment, pursuant to the Act of 25 July 2002, of a children’s rights committee;

(d)The introduction on 1 January 2006 of a new Charter of Ethical Values in the Grand Ducal police force;

(e)The announcement by the delegation of Luxembourg that a bill prohibiting all physical and sexual violence within the family, including genital mutilation, has been submitted to Parliament;

(f)The clarification provided by the delegation of the State party concerning the access of persons detained for preliminary police questioning to a lawyer;

(g)The guarantees contained in the Grand Ducal Regulation establishing a list of safe countries of origin within the meaning of the Act of 5 May 2006 relating to the right of asylum and the right to related forms of protection, which are in conformity with article 3 of the Convention;

(h)The excellent cooperation between the Luxembourg authorities and non‑governmental human rights organizations, particularly in the context of assistance to aliens in administrative detention; and

(i)The regular support given by the State party since 1983 to the United Nations Voluntary Fund for Victims of Torture, as well as the increase in the State party’s contribution to the Fund.

C. Subjects of concern and recommendations

Non‑refoulement and treatment of persons at the disposal of the authorities

(5)The Committee takes note of the statement by the delegation of Luxembourg that a bill concerning the construction of a centre for aliens in administrative detention on a site separate from the Luxembourg Prison has been submitted to Parliament. However, the Committee is concerned by the fact that, pursuant to article 10 of the Act of 5 May 2006, administrative detention can also be applied in some cases to asylum‑seekers, who are then placed in a closed facility within the Luxembourg Prison for a period of up to 12 months to prevent evasion of any subsequent deportation order; this could constitute administrative detention without judicial supervision (arts. 3 and 11).

The State party should take the requisite legislative and administrative measures to clarify the situation of asylum ‑ seekers for whom no deportation order has been issued in order to ensure that, in the absence of behaviour that might compromise security or public order, they are not detained and are properly treated. In particular, the State party should ensure that such asylum ‑ seekers are brought before a judge so that he or she may rule on the legality of their detention. The State party should also guarantee that they have a right to effective remedies. It should also take appropriate measures to ensure that aliens at the disposal of the authorities are placed in a facility that is separate from a penal correction facility.

(6)The Committee is concerned about the provisions of article 6, paragraph 12, of the Act of 5 May 2006, which stipulates that “the asylum‑seeker may be handed over or extradited, where applicable, either to a State member of the European Union pursuant to the obligations arising from a European arrest warrant or, for other reasons, to a third State, or to an international criminal tribunal or court”; in some cases, this provision may be inconsistent with the principle of non‑refoulement as laid down in article 3 of the Convention (art. 3).

The State party should take the requisite legislative measures to amend article 6, paragraph 12, of the Act of 5 May 2006 on asylum by including a provision stipulating that no person may be returned, expelled or extradited to a State where there are substantial grounds for believing that that person would be in danger of being subjected to torture.

(7)While taking note of some of the clarifications provided by the delegation of Luxembourg regarding the circumstances surrounding the forced removal of Mr. Igor Beliatskii, the Committee regrets that the State party has not ordered an official investigation to ascertain why the officers responsible for the removal operation resorted to certain practices, such as the wearing of a mask and the use of a BodyCuff, which might constitute degrading treatment of the person being removed (arts. 3, 12 and 16).

The State party should take the necessary steps to order an investigation when there are grounds for believing that a person may have been subjected to torture or cruel, inhuman or degrading treatment, including during removal operations. The State party should also allow the presence of human rights observers or independent physicians during all forced removals. It should also systematically allow a medical examination to be conducted prior to this form of removal and whenever an attempted removal has been unsuccessful.

Provisions concerning the detention and treatment of arrested persons

(8)While noting that the Charter of Ethical Values of the Grand Ducal Police stipulates in appendix 4 that “(a police officer) shall have absolute respect for persons, without discrimination of any kind”, the Committee is concerned about reports that foreign detainees are subjected to arbitrary behaviour and racist or xenophobic insults by law enforcement and prison personnel (arts. 11 and 16).

The State party should take the necessary steps to:

(a) Provide law enforcement and prison personnel with more training in respect for the physical and psychological integrity of detainees, regardless of their origin, religion or sex;

(b) Make such behaviour a criminal offence;

(c) Order systematic investigations and, in all confirmed cases, bring the accused before the competent courts.

(9)While taking note of the explanations provided by the delegation of Luxembourg regarding solitary confinement, the Committee regrets the persistence of this disciplinary practice and Luxembourg’s intention to maintain it despite the earlier recommendations of the Committee against Torture (CAT/C/CR/28/2, paras. 5 and 6) and those of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (arts. 11 and 16).

The Committee urgently reiterates its recommendation that solitary confinement be strictly and specifically regulated by law and that judicial supervision be strengthened. The State party should take the necessary steps to put an end to this disciplinary practice and change the relevant regulations accordingly.

Treatment of minors in conflict with the law and minors at risk

(10)The Committee takes note of the information provided by the State party in its written replies, according to which negotiations have been held between the Ministry of the Family, the Ministry of Public Works and the municipality of Wormeldange with a view to reaching an agreement on completion of the project to build the Dreiborn closed security unit for minors. It also notes that, at the time of consideration of this report, the municipal council had yet to issue a construction permit. However, the Committee continues to be concerned about the placement of minors in the Luxembourg Prison, which cannot be regarded as a suitable environment for them, especially as it cannot be guaranteed that there will be no contact whatsoever between minors and adult detainees. The Committee is also concerned that minors in conflict with the law and those with social or behavioural problems are placed in the same facilities and that minors aged between 16 and 18 may be brought before ordinary courts and tried as adults for particularly serious offences (arts. 11 and 16).

The Committee urgently reiterates its previous recommendation that minors should not be placed in adult prisons for disciplinary purposes (CAT/C/CR/28/2, paras. 5 and 6) . The State party should also take the necessary steps to build the Dreiborn security unit as soon as possible and, in the interim, to ensure that minors are kept strictly separate from adult detainees.

The State party should also keep children in conflict with the law separate from minors with social or behavioural problems, do everything possible to ensure that minors are never tried as adults, and set up an independent monitoring body to inspect juvenile facilities regularly (CRC/C/15/ Add.250 , para .  61 (c), (d) and (e)) .

Impartial investigation

(11)The Committee is concerned about the system which gives the public prosecutor discretion to decide not to prosecute perpetrators of acts of torture and ill‑treatment involving law enforcement officers or even to order an investigation, in blatant violation of the provisions of article 12 of the Convention (art. 12).

In order to respect the letter and spirit of the provisions of article 12 of the Convention, the State party should consider departing from the system which gives the public prosecutor discretion to decide whether to prosecute so that there can be no doubt as to the obligation for the competent authorities to launch impartial investigations immediately and systematically in all cases in which there are reasonable grounds for believing that an act of torture has been committed anywhere in the territory under its jurisdiction.

Human trafficking

(12)The Committee is concerned by the continued trafficking of human beings in the State party and the inadequate nature of the checks made when artistes’ visas are issued, which entails the risk that these visas might be used for the purposes of this illegal activity (art. 16).

The State party should strengthen existing measures to combat human trafficking in such a way as to make it possible, on the one hand, to conduct more effective checks when artistes’ visas are issued and to ensure that they are not used for unlawful purposes and, on the other, to protect the witnesses and victims of such acts. In addition, the State party should prosecute persons committing and instigating them.

Next periodic report

(13)The Committee invites the State party to include in its next periodic report detailed statistical data, disaggregated by offence, age, ethnic origin and sex, on complaints of acts of torture and other cruel, inhuman or degrading treatment or punishment allegedly committed by law enforcement officials as well as on investigations, prosecutions and relevant criminal and disciplinary sanctions, if relevant. The State party is also invited to include data disaggregated by age, sex and ethnic origin on:

(a)The number of asylum applications registered;

(b)The number of successful asylum applications;

(c)The number of asylum‑seekers whose applications were accepted because they had been tortured or might be tortured if returned to their country of origin;

(d)The number of refoulements or expulsions.

(14)The State party is encouraged to consider ratifying the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

(15)The State party is encouraged to disseminate widely the reports submitted by Luxembourg to the Committee, as well as the Committee’s conclusions and recommendations, in the appropriate languages, through official Internet sites, the media and non‑governmental organizations.

(16)The Committee invites the State party to present its core document in accordance with the requirements concerning the common core document contained in the harmonized guidelines on reporting under the international human rights treaties, adopted by the Fifth Inter‑Committee Meeting of the human rights treaty bodies (HRI/MC/2006/3 and Corr.1).

(17)The Committee requests the State party to provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 8, 9, 10 and 11 above.

(18)The State party is invited to submit its seventh periodic report by 30 June 2011.

43 .The Netherlands

(1)The Committee considered the fourth periodic report of the Netherlands (CAT/C/67/Add.4) at its 763rd and 766th meetings (CAT/C/SR.763 and 766), held on 7 and 8 May 2007, and adopted on 14 May 2007, at its 774th meeting (CAT/C/SR.774), the following conclusions and recommendations.

A. Introduction

(2)The Committee welcomes the submission of the fourth periodic report of the Netherlands (European part of the Kingdom and Aruba) and the information presented therein. The Committee expresses its appreciation for the frank dialogue with the State party’s delegation and welcomes the extensive responses to the list of issues in written form (CAT/C/NET/Q/4/Rev.1/Add.1), including elaborate information on the implementation of the Convention in the Netherlands Antilles, which facilitated discussion between the delegation and members of the Committee. In addition, the Committee appreciates the delegation’s oral responses to questions raised and concerns expressed during the consideration of the report.

B. Positive aspects

(3)The Committee notes with satisfaction the ongoing efforts undertaken by the State party to combat torture and to guarantee the rights of persons not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment in the Kingdom of the Netherlands, in particular:

(a)The incorporation of the definition of torture into the domestic legislation of the European part of the Kingdom of the Netherlands;

(b)The entry into force of an amendment of the Dutch Civil Code in April 2007 which prohibits physical and mental violence “for educational purposes”, including in the family environment;

(c)The adoption of new legislation on trafficking in human beings in the European part of the Kingdom of the Netherlands in January 2005 and in Aruba in May 2006;

(d)The National Ordinance AB 1999 No. 8 implementing the Convention against Torture in Aruba and the new National Penal System Ordinance AB 2005 No. 75 of December 2005;

(e)The establishment of the Internal Investigations Bureau to receive and investigate complaints and reports of ill‑treatment by police officers in Aruba;

(f)The improvement of prison conditions in the Netherlands Antilles, as reported by the State party;

(g)The notable work undertaken by the special team set up in 1998 to investigate and prosecute war crimes and crimes against humanity (“the NOVO team”) to bring to justice perpetrators of acts of torture and war crimes;

(h)The State party’s cautious approach with regard to the use of diplomatic assurances and its policy of not practising extraordinary rendition of suspects;

(i)The State party’s contributions to the United Nations Voluntary Fund for Victims of Torture.

(4)The Committee notes with appreciation the ratification of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women in 2002 and the Rome Statute of the International Criminal Court and the entry into force of its implementing act in the Netherlands in 2003.

(5)The Committee also welcomes the assurances given by the State party’s representatives that the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment will be ratified in the second half of 2007.

C. Principal subjects of concern and recommendations

Fundamental safeguards

(6)Notwithstanding the State party’s establishment in 2006 of a “programme to enhance and strengthen the quality of the performance of police officers and prosecutors” (CAT/C/NET/Q/4/Rev.1/Add.1, para. 50) in the European part of the Kingdom, the Committee is concerned that persons in police detention do not have access to legal assistance during the initial period of interrogation. Similarly, the Committee is concerned that in the Netherlands Antilles, the presence of a lawyer during interrogation is only permitted with the prior authorization of a magistrate.

The State party should review its criminal procedures so that access to a lawyer, as a fundamental legal safeguard, is guaranteed to persons in police custody from the very outset of their deprivation of liberty, particularly where video or audio recording of interrogations, which cannot in any way substitute the presence of legal counsel, are not in place.

Non‑refoulement

(7)The Committee is concerned at the difficulties faced by asylum‑seekers in the European part of the Kingdom of the Netherlands in substantiating their claims under the accelerated procedure of the 2000 Aliens Act, which could lead to a violation of the non‑refoulement principle provided for in article 3 of the Convention. The Committee is particularly concerned that:

(a)The 48‑hour time frame of the accelerated procedure may not allow asylum‑seekers, in particular, children, undocumented applicants and others made vulnerable to properly substantiate their claims;

(b)The time provided for legal assistance between the issuance of the report from the first interview and the Immigration and Naturalization Service’s decision is allegedly only five hours and that an asylum‑seeker may not be assisted by the same lawyer throughout the proceedings;

(c)The accelerated procedure requires asylum‑seekers to submit supporting documentation that they are “reasonably expected to possess”, leaving a wide margin of discretion in relation to the burden of proof;

(d)The appeal procedures only provide for a “marginal scrutiny” of rejected applications and that the opportunity to submit additional documentation and information is restricted.

The Committee takes note of the State party’s intention to revise the accelerated procedure, notwithstanding which, the State party should consider the following when reviewing the procedure:

(a) Applications from all asylum ‑ seekers, in particular, children, undocumented applicants and others made vulnerable are processed in such a way that those in need of international protection are not exposed to the risk of being subjected to torture. This may require the State party to establish criteria for cases which may or may not be processed under the accelerated or the normal procedure;

(b) All asylum ‑ seekers have access to adequate legal assistance and may be, as appropriate, assisted by the same lawyer from the preparation of the first interview to the end of the proceedings;

(c) The procedures with regard to required supporting documentations for asylum are clarified;

(d) The appeal procedures entail an adequate review of rejected applications and permit asylum ‑ seekers to present facts and documentation which could not be made available, with reasonable diligence, at the time of the first submission.

(8)The Committee notes with concern that medical reports are not taken into account on a regular basis in the Dutch asylum procedures and that the application of the Istanbul protocol is not encouraged.

The State party should reconsider its position on the role of medical investigations and integrate medical reports as part of its asylum procedures. The Committee also encourages the application of the Istanbul Protocol in the asylum procedures and the provision of training regarding this manual to relevant professionals.

Unaccompanied children and young asylum‑seekers

(9)While taking into consideration the State party’s clarification that unaccompanied children asylum‑seekers in the European part of the Kingdom of the Netherlands are placed in detention centres only when there is doubt about their age, the Committee remains concerned at the situation of young asylum‑seekers.

The State party should take measures to ensure that when the age of an unaccompanied child is uncertain, verification should be made before placing the child in detention. The State party should pay particular attention to the situation of young asylum ‑ seekers and only use detention as a measure of last resort. The State party should provide adequate housing and education for young returnees awaiting expulsion (CRC/C/15/ Add.227 , para . 54 ( d )).

Pretrial detention

(10)The Committee expresses its concern at the excessive length of pretrial detention and the high number of non‑convicted detainees in Aruba and in the Netherlands Antilles.

The State party should take appropriate measures to reduce the length of pretrial detention and the number of non ‑ convicted detainees and should consider alternative measures to limit the use of preventive detention.

Custody and treatment of arrested, detained and imprisoned persons

(11)While acknowledging the effort undertaken to provide suitable facility to house juveniles aged 15 and under and the continuous effort carried out by the State party to improve prison conditions in the Netherlands Antilles, the Committee is concerned at:

(a)The lack of a separate unit for offenders aged between 16 and 18 who are currently held with either adult offenders or prisoners undergoing psychological observation;

(b)The reported lack of educational programmes for juveniles held in prison;

(c)The slow classification process and allocation of cells where prisoners are currently placed regardless of their age, length of sentence or legal status.

The State party should take measures:

(a) To urgently ensure that juveniles are separated from adult offenders;

(b) To provide educational and training programmes to help the social reintegration of juveniles;

(c) To undertake prompt action to implement a new classification of inmates and allocation of cells.

Right to complaint

(12)The Committee is concerned at the State party’s indication that information related to sexual abuse or assault in the Aruban prison rarely reaches the prison board and that victims are not likely to lodge complaints for privacy concerns.

The State party should put in place specific mechanisms to receive complaints of sexual abuse that will ensure the privacy of victims and protect both victims and witnesses against ill ‑ treatment or intimidation as a consequence of the complaint (art. 13).

Prompt and impartial investigations

(13)The Committee is concerned at the number of reports of assaults committed by Aruban law enforcement officials. It is also concerned that, as reported by the State party, of the 49 cases, which include complaints of assault and other offences, lodged at the Internal Investigations Bureau between 1 September 2005 and 21 March 2007, only two have been dealt with in court and did not lead to a conviction due to insufficient evidence.

The State party should take all appropriate measures to send a clear and unambiguous message to the Police Force and to prison staff that torture, violence and ill ‑ treatment are unacceptable. Similarly, the State party should implement its obligation to investigate promptly, impartially and thoroughly all complaints submitted, so as to ensure that appropriate penalties are imposed on those convicted. The State party should also ensure that effective measures are put in place to guarantee that those who report assaults by law enforcement officials are protected from intimidation and possible reprisals for making such reports.

Education on the prohibition against torture

(14)While noting the different training programmes for police and prison officers in the three constituent parts of the Kingdom, which cover human rights and rights of detainees including the prohibition of torture, the Committee regrets that there is no available information on the impact of the training or its efficacy in reducing incidents of torture, violence and ill‑treatment.

The State party should ensure that through educational programmes, law enforcement personnel and justice officials are fully aware of the provisions of the Convention. Furthermore, the State party should develop and implement a methodology to assess the effectiveness and impact of these training programmes on the incidence of cases of torture, violence and ill ‑ treatment.

Trafficking

(15)While taking positive note of the recent criminalization of trafficking in human beings in Aruba and the State party’s domestic effort to prosecute traffickers, the Committee remains concerned at the practice and lack of information about existing mechanisms to effectively prevent trafficking and prosecute traffickers in Aruba.

The State party should reinforce international cooperation mechanisms to fight trafficking in persons, prosecute perpetrators in accordance with the law, and provide adequate protection and redress to all victims.

(16)The Committee recommends that, in order to have a clearer view of the situation regarding protection against torture, the State party systematically include in its future reports, data which are disaggregated by age, sex and ethnicity, on:

(a)The number of asylum applications registered and the number of applications processed respectively under the normal and accelerated procedures;

(b)The number of applications accepted;

(c)The number of applicants whose application for asylum was accepted on grounds that they had been tortured or might be tortured if returned to their country of origin and data on asylum granted on grounds of sexual violence;

(d)The number of cases of refoulement or expulsion.

(17)The Committee requests the State party to provide in its next periodic report detailed statistical data, disaggregated by crime, ethnicity, age and sex, on complaints relating to torture and ill‑treatment allegedly committed by law enforcement officials and on the related investigations, prosecutions, and penal or disciplinary sanctions. The report should also include statistics on pretrial detainees and convicted prisoners, disaggregated by crime, ethnicity, age and sex.

(18)The Committee invites the State party to submit its core document in accordance with the requirements of the common core document in the harmonized guidelines on reporting under international human rights treaties, recently approved by the Fifth Inter‑Committee meeting of the human rights treaty bodies (HRI/MC/2006/3 and Corr.1).

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

(20)The State party is encouraged to disseminate widely the reports submitted to the Committee and the conclusions and recommendations of the Committee, in appropriate languages, through official websites, to the media and non‑governmental organizations.

(21)The State party is invited to submit its sixth periodic report which should cover all parts of the Kingdom of the Netherlands, in particular more detailed and comprehensive information on the Netherlands Antilles, by 30 June 2011.

44.Poland

(1)The Committee considered the fourth periodic report of Poland, (CAT/C/67/Add.5) at its 769th and 772nd meetings, held on 10 and 11 May 2007 (CAT/C/SR.769 and CAT/C/SR.772), and adopted, at its 776th meeting on 15 May 2007 (CAT/C/SR.776), the following conclusions and recommendations.

A. Introduction

(2)The Committee welcomes the submission of the State party’s fourth periodic report and the information therein. The Committee expresses its appreciation for the dialogue with the State party’s delegation and commends the State party for the detailed responses to the list of issues in written form (CAT/C/POL/Q/4/Rev.1/Add.1), which facilitated the discussion between the delegation and the Committee members.

(3)The Committee expresses its appreciation for the high‑level delegation, comprising representatives from several departments of the State party, and the efforts made to provide additional information which facilitated a constructive oral exchange during the consideration of the report.

B. Positive aspects

(4)The Committee notes with satisfaction that in the period since the consideration of the last periodic report, the State party has ratified or acceded to the following international human rights conventions and protocols:

(a)The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, on 7 May 2005;

(b)The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, on 4 March 2005;

(c)The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, on 22 March 2004;

(d)The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment, on 14 September 2005;

(e)The Rome Statute of the International Criminal Court, on 1 July 2002;

(f)The United Nations Convention against Transnational Organized Crime, on 29 September 2003;

(g)The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime,on 25 December 2003; and

(h)The Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, on 28 January 2004.

(5)The Committee also notes with appreciation the ongoing efforts at the State level to reform its legislation, policies and procedures in order to ensure better protection of human rights, including the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment, in particular:

(a)Law of June 2003 Granting Protection to Aliens on the Territory of Poland;

(b)Law of January 2005 on National and Ethnic Minorities and on Regional Languages;

(c)The ongoing National Plan for Combating and Preventing Trafficking in People;

(d)The National Programme for the Prevention of Racial Discrimination, Xenophobia and Related Intolerance established in 2003;

(e)The setting up in 2006 of the institution of the Ombudsman for Mental Hospitals Patients; and

(f)The National Programme for Crime Victims set up in February 2006.

C. Principal subjects of concern and recommendations

Definition of torture

(6)The Committee regrets that the State party has not changed its position not to incorporate the Convention into Polish law and it reiterates the concern expressed in its previous conclusions and recommendations (A/55/44, paras. 85‑95) with regard to the absence of a specific offence of torture, consistent with articles 1 and 4, paragraph 2, of the Convention (arts. 1 and 4).

The Committee, recalling its previous recommendations (A/55/44, paras. 85 ‑ 95), reiterates its view that the State party should enact a specific offence of torture, as defined in article 1 of the Convention, in its Criminal Code making it a punishable offence as set out in article 4, paragraph 2, of the Convention.

Pretrialdetention

(7)The Committee expresses its concern at the length of pretrial detention, which under the Code of Criminal Procedure can last up to two years, and at the fact that Polish legislation does not establish a time limit for pretrial detention upon the commencement of the court proceedings (arts. 2 and 11).

The State party should adopt appropriate measures to ensure that its pretrial detention policy meets international standards and it is only used as an exceptional measure for a limited period of time. The State p arty should consider using measures alternative to pretrial detention.

Fundamental safeguards

(8)The Committee is concerned at restrictions that might be imposed on fundamental legal safeguards for persons detained by the police, particularly on the right of access to a lawyer from the outset of the detention, including during the stages of the preliminary investigation, as well as to consult a lawyer in private (arts. 2 and 11).

The State party should take effective measures to ensure that all fundamental legal safeguards for persons detained by the police, particularly the right to access a lawyer and to consult with him/her in private, are respected from the very outset of the detention, including during the stages of the preliminary investigation.

(9)The Committee notes the adoption of a “shortened trial procedure” as a component of the reform of the Code of Criminal Procedure (art. 387) and it would be concerned if it gave rise to undue pressure being brought to bear on suspects to avail themselves of the procedure (art. 2).

The State party should take all necessary measures to guarantee the voluntary nature of any such agreements.

(10)The Committee regrets the lack of an appropriate system of legal aid in Poland and, in particular, the delay in submitting the draft law on access to free legal aid to the Parliament (Sejm) considering the impact that the delay might have on the protection of persons without resources (art. 2).

The State p arty should take effective steps to expedite the adoption of the law on access to free legal aid in order to ensure appropriate protection and access to the legal syste m of persons without resources.

(11)The Committee expresses its concern at the persistent allegations of the involvement of Poland in extraordinary renditions in the context of the fight against international terrorism. On the other hand, the Committee takes note of the statement made by the Polish delegation that Poland has not participated and is not participating in any form whatsoever in extraordinary renditions of persons suspected of acts of terrorism (arts. 2 and 3).

The State party should apply the non ‑ refoulement guarantee to all detainees in its custody and take all the necessary measures to avoid and prevent the rendition of suspects to States where they might face a real risk of torture, in order to comply with its obligations under article 3 of the Convention. The State party should always ensure that suspects have the possibility to challenge decisions of refoulement .

Detention of asylum‑seekers and other non‑citizens

(12)The Committee notes with concern the absence of specific laws concerning the detention of aliens after the deadline for their expulsion and the fact that some have been detained in transit zones beyond the deadline of their expulsion without a court order (arts. 3 and 11).

The State p arty should take the necessary measures to address this situation and ensure that the detention of aliens in transit zones is not excessively protracted and that, if the detention were to be extended beyond a few days, the decision is adopted by a court.

(13)The Committee also notes with concern the regime and material conditions of detention in transit zones or deportation detention centres where foreign nationals awaiting deportation under the aliens’ legislation are held (arts. 3 and 11).

The State p arty should review the regime and material conditions of deportation detention centres, including the size of cells and the regime of activities of the detainees, in order to ensure that they are in conformity with minimum international standards.

Treatment and excessive use of force, including killings, by law enforcement officials

(14)The Committee is concerned about reports on the excessive use of force by law enforcement officials, with particular reference to the incidents which occurred during the student holiday in Lódz in May 2004 and the use of penetrating ammunition“by error”. The Committee is particularly concerned by the fact that the investigation is still underway as well as by the lack of information on the disciplinary measures imposed on the police officers held responsible and who are currently under investigation (arts. 10 and 12).

The State party should:

(a) Ensure prompt, impartial and effective investigations into all complaints or allegations of misconduct, in particular when a person dies or is seriously injured following contact with law enforcement officials. In connection with prima facie cases of torture and ill ‑ treatment, the suspect(s) as a rule should be subject to suspension or reassignment during the process of inve stigation, especially if there is a risk that he or she might impede the investigation;

(b) Try the alleged perpetrators of acts of abuse and, when convicted, impose appropriate sentences and adequately compensate the victims in order to eliminate the de facto impunity for law enforcement personnel who are responsible for violations prohibited by the Convention;

(c) Review and strengthen its education and training programmes relating to the use of force and weapons by law enforcement officials in order to ensure that the use of force is strictly limited to that required to perform their duties.

Training

(15)While the Committee acknowledges the wide range of educational programmes for law enforcement officials, prisons staff, border guards and medical personnel currently in place, the Committee notes with concern the lack of programmes to asses the impact of the trainings conducted and their effectiveness in reducing incidents of torture, violence and ill‑treatment (art. 10).

The State party should develop and implement a methodology to assess the effectiveness and impact of such training/educational programmes on the reduction of cases of torture, violence and ill ‑ treatment.

Prompt and impartial investigations

(16)The Committee is concerned at allegations regarding the existence in the territory of Poland of secret detention facilities for aliens suspected of terrorist activities. The Committee takes note of the statement of the Polish delegation emphatically refuting all allegations about the existence of secret detention facilities in its territory (arts. 3, 12 and 16).

The Committee urges the State party to share information about the scope, methodology and conclusions of the enquiry into these allegations conducted by the Polish Parliament so that this matter can be put to rest.

Prison conditions

(17)While acknowledging the efforts made by the State party to deal with the problem of overcrowding in prisons, the Committee is concerned about certain temporary measures taken by the State party to address the problem, particularly the use of common areas, such as community centres, fitness rooms, briefing halls, etc, for residential purposes and the impact that such measures might have on the regime and material conditions of detention in the country (art. 11).

The State p arty should take the necessary measures to address the current situation of overcrowding in prisons without compromising the regime and material conditions of detention. The State party should make available the necessary material, human and budgetary resources to ensure that the conditions of detention in the country are in conformity with minimum international standards.

Trafficking

(18)While acknowledging the efforts made by the State party in combating and preventing trafficking in human beings by adopting new legislation and measures, the Committee is concerned about the absence of a definition of trafficking in human beings in its Penal Code. The Committee also regrets the lack of information on the number of cases brought to court and on the penalties imposed to perpetrators (art. 16).

The State p arty should include in its Penal Code a definition of human trafficking in accordance with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ( CEDAW/C/POL/CO/6 ).

The State party should provide detailed information and statistics on the number of cases brought to court and penalties imposed to p erpetrators, where appropriate.

Hazing in the military

(19)While the Committee acknowledges the progress made by the State party in decreasing the number of cases of abuse of conscripts in the army, it remains concerned at the high number of cases that continue to be reported (arts. 2 and 16).

The State party should eradicate hazing in the armed forces; continue implementing measures of prevention as well as ensure prompt, impartial and effective investigation and prosecution of such abuses; and report publicly on the results of any such prosecutions.

The State party should guarantee the rehabilitation of victims, including appropriate medical and psychological assistance.

Minorities and other vulnerable groups

(20)The Committee notes with concern reports of intolerance and hatred towards minorities and other vulnerable groups in Poland, including alleged recent manifestations of hate speech and intolerance against homosexuals and lesbians (art. 16).

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

The State party should provide detailed information and statistics on the number and type of hate crimes as well as on the administrative and judicial measures taken to investigate such crimes and the sentences imposed.

Data collection

(21)The Committee regrets the fact that for certain areas covered by the Convention, the State party was unable to supply statistics, or appropriately disaggregate those supplied (e.g. by age, gender and/or ethnic group). During the current dialogue, this occurred with respect to data on violence against women, including rape and sexual harassment, and racially motivated crimes, particularly violence against the Roma.

The State party should take such measures as may be necessary to ensure that the competent authorities, as well a s the Committee, are fully appr ised of these details when assessing the State party ’ s compliance with its obligations under the Convention.

(22)The Committee commends the State party for its contributions between the years 1999 and 2005 to the United Nations Voluntary Fund for the Victims of Torture, and it encourages the State party to continue its contributions to the Fund.

(23)The Committee requests the State party to provide in its next periodic report detailed statistical data, disaggregated by crime, ethnicity, age and sex, on complaints relating to torture and ill‑treatment allegedly committed by law enforcement officials and on the related investigations, prosecutions, and penal or disciplinary sanctions.

(24)The State party is encouraged to disseminate widely the reports and replies to the lists of issues submitted by Poland to the Committee and the conclusions and recommendations, in appropriate languages, through official websites, the media and non‑governmental organizations.

(25)The Committee invites the State party to submit its core document in accordance with the requirements of the Common Core Document in the Harmonized Guidelines on Reporting, recently approved by the international human rights treaty bodies (HRI/MC/2006/3 and Corr.1).

(26)The Committee requests the State party to provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 8, 9, 15, 18 and 19 above.

(27)The State party is invited to submit its sixth periodic report by 30 June 2011.

45.Ukraine

(1)The Committee considered the fifth periodic report of Ukraine (CAT/C/81/Add.1) at its 765th and 768th meetings, held on 8 and 9 May 2007 (CAT/C/SR.765 and CAT/C/SR.768), and adopted, at its 779th meeting on 18 May 2007 (CAT/C/SR.779), the following conclusions and recommendations.

A. Introduction

(2)The Committee welcomes the fifth periodic report of Ukraine, which follows the Committee’s guidelines for reporting, and expresses its appreciation for the extensive written response provided to the list of issues (CAT/C/UKR/Q/5/Rev.1/Add.1). The Committee also appreciates the expertise, size and high level of the State party delegation and the extensive dialogue conducted, as well as the additional oral information provided by the representatives of the State party to questions raised and concerns expressed during consideration of the report.

B. Positive a spects

(3)The Committee welcomes the entry into force, on 1 September 2001, of a new Criminal Code, which, inter alia, makes torture a punishable offence, as well as the adoption, in 2004, of a new Penal Corrections Code.

(4)With regard specifically to the prevention of torture, the Committee welcomes the declaration made, in September 2003, under articles 21 and 22 of the Convention, that the State party recognizes the competence of the Committee to receive and consider State and individual communications, as well as the withdrawal of its reservation to article 20 of the Convention and the ratification of the Optional Protocol to the Convention in September 2006.

(5)The Committee also welcomes the ratification of the following instruments:

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

(b)The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, in July 2005;

(c)The Convention relating to the Status of Refugees and its 1967 Protocol, in June and April 2002 respectively;

(d)The United Nations Convention against Transnational Organized Crime, in May 2004.

(6)The Committee notes with satisfaction the adoption of a National Plan of Action (2001‑2005) to “Improve the Status of Women and Promote Gender Equality in Society”aimed at preventing violence against women and children and trafficking, and the State party’s efforts to combat such trafficking.

(7)The Committee welcomes the efforts of the State party to cooperate with non‑governmental organizations on human rights issues, and encourages it to further strengthen this trend with regard to the implementation of the provisions of the Convention.

C. Subjects of concern and recommendations

Definition of torture

(8)While noting that the State party amended its Criminal Code in 2005 in order to bring the definition of torture into conformity with the provisions of the Convention, the Committee regrets that the definition contained in article 127 of the Criminal Code does not fully reflect all elements contained in article 1 of the Convention, notably with respect to discrimination.

The State party should bring its definition of torture fully into conformity with article 1 of the Convention, in particular to ensure that all public officials can be prosecuted under article 127 of the Criminal Code, and that discrimination is an element of the definition.

Insufficient safeguards governing initial period of detention

(9)The Committee is deeply concerned at allegations of torture and ill‑treatment of suspects during detention, as well as reported abuses during the period between apprehension and the formal presentation of a detainee to a judge, thus providing insufficient legal safeguards to detainees. These allegations include:

(a)Detentions taking place without court warrants despite constitutional provisions to the contrary;

(b)Failure to bring detainees promptly before a judge within the prescribed 72‑hour period, as well as unnecessarily delaying this for the maximum length of the prescribed period;

(c)Failure to acknowledge and record the actual time of apprehension of a detainee, as well as unrecorded periods of pretrial detention and investigation;

(d)Restricted access to lawyers and independent doctors and failure to notify detainees fully of their rights at the time of detention;

(e)Misuse of so‑called administrative detention, for a period of up to 15 days for the purpose of criminal investigation, during which the detainee is deprived of procedural guarantees, including difficulties in appealing against such detention.

The State party should promptly implement effective measures to ensure that a person is not subject to de  facto unacknowledged detention and that all detained suspects are afforded, in practice, fundamental legal safeguards during their detention. These include, in particular, the right to access a lawyer, an independent medical examination, informing a relative, being informed of their rights at the time of detention, including as to the charges laid against them, as well as being promptly presented to a judge within the maximum 72 ‑ hour detention period, calculated from the actual moment of deprivation of liberty, as set out in article 29 of the Constitution.

The State party should also ensure, in practice, that the actual time of apprehension is recorded, that suspects in criminal investigations are not deprived of liberty under administrative detention and that all persons detained have the right to appeal against such deprivation of liberty.

Lack of effective investigation into reports of torture and the role of the General Prosecutor’s office

(10)The Committee is concerned by the failure to initiate and conduct prompt, impartial and effective investigations into complaints of torture and ill‑treatment, in particular due to the problems posed by the dual nature and responsibilities of the General Prosecutor’s office, (a) for prosecution and (b) for oversight of the proper conduct of investigations. The Committee notes the conflict of interest between these two responsibilities, resulting in a lack of independent oversight of cases where the General Prosecutor’s office fails to initiate an investigation. Furthermore, there is an absence of data on the work of the General Prosecutor’s office, such as statistics on crime investigations, prosecutions and convictions, and the apparent absence of a mechanism for data collection.

The State party should pursue efforts to reform the General Prosecutor ’ s office, in order to ensure its independence and impartiality, and separate the function of criminal prosecution from the function of supervision of investigations into allegations of torture and ill ‑ treatment.

The State party should establish an effective and independent oversight mechanism to ensure prompt, impartial and effective investigations into all allegations of torture and ill ‑ treatment during criminal investigations.

The State party should ensure that detainees who have complained about allegations of torture are protected from reprisal.

The State party should also provide the Committee with disaggregated statistical data on the work of the General Prosecutor ’ s office, including investigations into the numbers of prosecutions and cases in which confessions were obtained, as well as the numbers of convictions and acquittals.

Evidence obtained by coercion

(11)The Committee is concerned at the current investigation system in which confessions are used as a principal form of evidence for prosecution, thus creating conditions that may encourage the use of torture and ill‑treatment of suspects. The Committee regrets that the State party did not sufficiently clarify the legal provisions ensuring that any statements which have been made under torture shall not be invoked as evidence in any proceedings, as stipulated in the Convention.

The State party should take all appropriate measures to eliminate any adverse effects the current investigation system of promoting confessions may have on the treatment of suspects.

The State party should also take the necessary measures to establish that statements which have been made under torture shall not be invoked as evidence in any proceedings, in accordance with the provisions of the Convention.

Monitoring detention facilities

(12)While the establishment throughout the State party of “mobile groups”, composed of representatives of civil society and staff of the Ministry of Interior with the mandate to visit police detention facilities, monitor the situation of detainees and prevent acts of torture, is a positive development, the Committee remains concerned at their dependency on the goodwill of local authorities, their lack of formal status and the lack of adequate resources.

The State party should establish a formal status for the “ mobile groups ” , provide them with a strong mandate, guarantee their independence and provide them with adequate resources. The State party should also inform the Committee on the measures it has taken to set up a national preventive mechanism in accordance with the Optional Protocol to the Convention.

Law enforcement personnel

(13)The Committee is concerned at allegations of acts in breach of the Convention committed by law enforcement personnel, especially with regard to persons detained by the militia and in pretrial detention facilities (SIZO), and at the apparent impunity of the perpetrators. The Committee is also concerned at the reported use of masks by the anti‑terrorist unit inside prisons (e.g. in the Izyaslav Correctional Colony, in January 2007), resulting in the intimidation and ill‑treatment of inmates.

The State party should ensure that all allegations of torture and ill ‑ treatment are promptly, effectively and impartially investigated and that the perpetrators are prosecuted and convicted in accordance with the gravity of their acts.

The State party should also ensure that the anti ‑ terrorist unit is not used inside prisons so as to prevent the mistreatment and intimidation of inmates.

Violence against women and children, including trafficking

(14)While noting the measures adopted by the State party to combat trafficking, the Committee remains concerned about the persistence of trafficking in women and children for sexual exploitation. It also notes the extremely low level of cases of domestic violence brought to justice, despite the high reported incidence of domestic violence.

The State party should strengthen measures to prevent and combat trafficking and domestic violence, provide protection for victims and their access to medical, social rehabilitative and legal services, including counse lling services, as appropriate.

The State party should create adequate conditions for victims to exercise their right to complain and have each case promptly, impartially and effectively investigated. Perpetrators must be brought to justice and punished with penalties appropriat e to the gravity of their acts.

Violence against members of minorities and others

(15)The Committee expresses concern about incitement and acts of violence against persons belonging to ethnic and national minorities, including acts against Roma, anti‑Semitic attacks, and violence against persons of African and Asian origin and non‑citizens, as well as with persistent allegations of failure to investigate and reluctance on the part of the police and authorities to provide adequate protection to the victims or to conduct prompt, impartial and effective investigations of such reports.

The State party should ensure prompt, impartial and effective investigations into all ethnically motivated violence and discrimination, including that directed against Roma, Jews, persons of African and Asian origin and non ‑ citizens, and prosecute and punish perpetrators with penalties appropriate to the nature of their acts .

The State party should also publicly condemn hate crimes and other violent acts of racial discrimination, xenophobia and related violence and should work to eradicate incitement and any role p ublic officials or law enforcement personnel might have in such violence. It should ensure that officials are held accountable for actions or failures to act which breach the Convention.

The State party should give prompt consideration to expanding the recruitment into law enforcement of persons belonging to ethnic and national minorities.

The State party should also develop and adopt a comprehensive governmental programme addressing the human rights situation of national minorities, especially the Roma.

Violence in the armed forces

(16)While welcoming the decrease in the number of cases of hazing in the armed forces (dedovshchina) and the measures taken to prevent such phenomena, including the establishment of a “hotline”, the Committee remains concerned at the persistence of cases of torture and other cruel, inhuman or degrading treatment or punishment in the armed forces, as well as with the lack of investigation of all reported cases.

The State party should take effective measures to eradicate the prevalent problem of hazing in the armed forces ( dedovshchina ) , reinforce the measures of prevention and ensure prompt, impartial and effective investigation, prosecution and conviction of the perpetrators of such abuses, and report publicly on the results of any such prosecutions.

Harassment and violence against members of civil society

(17)The Committee expresses its concern at information it has received on harassment and violence against journalists, including murders (e.g. the case of Mr. GeorgiyGongadze), and against human rights defenders, which severely hamper the role of the mass media and freedom of opinion and expression, as well as the monitoring activities of civil society with regard to human rights.

The State party should take all necessary steps to ensure that all persons, including those monitoring human rights, are protected from any intimidation or violence as a result of their activities, and ensure the prompt, impartial and effective investigation of such acts.

Penitentiary system

(18)The Committee notes with concern the delay in transferring the Department for the Execution of Punishments to the authority of the Ministry of Justice.

The State party should complete the transfer of the Department for the Execution of Punishments to the Ministry of Justice as soon as possible, with the aim of institutionalizing oversight and accountability for executive decisions in the judicial branch of government.

The State party should also provide the Committee with detailed information on the penitentiary system, including deaths in custody (including suicides), and the results of any investigation into them or prosecutions relating to them, as well as on the medical situation of detainees.

Risk of return to torture

(19)The Committee is concerned by the return of persons by the State party to States where there are substantial grounds for believing that they would be in danger of being subjected to torture, e.g. the recent case of 11 Uzbek nationals who were returned to Uzbekistan.

Under no circumstances should the State party expel, return or extradite a person to a State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. When determining the applicability of its obligations under article 3 of the Convention, the State party should examine thoroughly the merits of each individual case, ensure that adequate judicial mechanisms for reviewing the decision are in place, sufficient legal defence is available for each person subject to extradition, and that effective post ‑ return monitoring arrangements are established.

The State party should provide detailed information to the Committee on any cases of extradition, return or removal that have taken place during the reporting period, including on the minimum contents of assurances, if any. In addition, the Committee requests information on measures taken by the State party to remedy any cases where article 3 safeguards have not been given effect.

Asylum‑seekers

(20)The Committee is concerned about the discrimination that asylum‑seekers face on grounds of nationality and the absence of proper asylum procedures, leading to the reported refoulementof asylum‑seekers without appropriate consideration of their individual cases. It also notes with concern the poor and overcrowded conditions of detention for asylum‑seekers.

The State party should adopt the draft laws “ On Refugees, Persons Eligible for Complementary and Temporary Protection ” and “ On Introduction of Amendments to the Law of Ukraine on the Legal Status of Foreign and Stateless Persons ” . The State party should also adopt asylum procedures in accordance with international standards as well as improve detention conditions, including by the use of alternative measures.

Ukrainian Parliament Commissioner for Human Rights

(21)While appreciating the presence of representatives from the Ukrainian Parliament Commissioner for Human Rights during the dialogue with the State party delegation, the Committee regrets the absence of detailed information regarding its compliance with the Paris Principles related to the status of national institutions for the promotion and protection of human rights (General Assembly resolution 48/134) as well as on its independence, activities and results with regard to the Convention.

The State party should ensure that the Ukrainian Parliament Commissioner for Human Rights functions effectively as an independent national human rights institutio n, in accordance with the Paris  Principles, and independently of political activities, as specified in the “ Law on the Ukrainian Parliament Commissioner for Human Rights ” of 1997.

The State party should provide the Committee with detailed information on the independence, mandate, resources, procedures and effective results of the Ukrainian Parliament Commissioner for Human Rights and ensure that the complaints received by the institution remain confidential so that complainants are not subjected to any reprisals.

Training and education

(22)The Committee regrets the insufficient training regarding the provisions of the Convention for law enforcement personnel, including penitentiary and border control staff, judges, prosecutors and the personnel of the armed forces. The Committee also notes with concern the lack of specific training for medical personnel acting in detention facilities in the detection of signs of torture and ill‑treatment.

The State party should reinforce its training programmes on the absolute prohibition of torture for all law enforcement and military personnel, as well as for all members of the judiciary and prosecutors on the State party ’ s obligations under the Convention.

The State party should also ensure adequate training for all medical personnel involved with detainees, in the detection of signs of torture and ill ‑ treatment in accordance with international standards, as outlined in the Istanbul Protocol.

Legal aid

(23)The Committee expresses its concern about the difficulties persons or groups experience in their efforts to exercise the right to complain, and to obtain redress and fair and adequate compensation as victims of acts of torture.

The State party should provide an effective free legal aid system for persons at risk or belonging to groups made vulnerable. It should provide this system with adequate resources for ensuring that all victims of acts of torture may exercise their rights under the Convention.

Compensation and rehabilitation

(24)The Committee also expresses its concern at the lack of compensation for victims of torture and other cruel, inhuman or degrading treatment, as well at the absence of appropriate measures for rehabilitation of victims of torture, ill‑treatment, trafficking, domestic and other sexual violence.

The State party should ensure that adequate compensation is provide d to victims of torture and ill ‑ treatment and that appropriate rehabilitation programmes are also provided to all victims of torture, ill ‑ treatment, trafficking, domestic and other sexual violence, including medical and psychological assistance.

Conditions of detention

(25)The Committee is concerned at the poor conditions of detention, such as overcrowding, and at the prevalence of HIV/AIDS and tuberculosis amongst detainees. The detention conditions of pretrial detainees in police custody are inappropriate for long periods and place detainees in a situation of great vulnerability. The Committee also expresses its concern at the absence of alternative measures to pretrial detention.

The State party should adopt effective measures to improve conditions in all detention facilities, reduce the current overcrowding and meet the needs of all those deprived of their liberty, in particular regarding health care, in conformity with international standards.

Data collection

(26)The Committee regrets the absence of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions of cases of torture and ill‑treatment by law enforcement and penitentiary personnel and in the armed forces, as well as on trafficking and domestic and sexual violence.

The State party should establish an effective system to compile statistical data relevant to monitoring the implementation of the Convention at the national level, including complaints, investigations , prosecutions and convictions of cases of torture and ill ‑ treatment, trafficking, and domestic, sexual and ethnically motivated violence and discrimination, as well as on compensation and rehabilitation provided to the victims.

(27)The State party should widely disseminate its report, its replies to the list of issues, and the conclusions and recommendations of the Committee, through official websites and the media, in particular to groups made vulnerable.

(28)The Committee requests that the State party provide, within one year, information on its response to the Committee’s recommendations contained in paragraphs 9, 10, 12, 15, 17 and 19 above.

(29)The Committee invites the State party to submit its core document in accordance with the requirements of the common core document on the harmonized guidelines on reporting, recently recommended by the international human rights treaty bodies (HRI/MC/2006/3 and Corr.1).

(30)The State party is invited to submit its next periodic report, which will be the sixth report, by 30 June 2011.

IV.FOLLOW‑UP ON CONCLUSIONS AND RECOMMENDATIONSON STATES PARTIES REPORTS

46.In Chapter IV of its annual report for 2005‑2006 (A/61/44), the Committee described the framework that it had developed to provide for follow‑up subsequent to the adoption of the conclusions and recommendations on States parties reports submitted under article 19 of the Convention. It also presented information on the Committee’s experience in receiving information from States parties from the initiation of the procedure in May 2003 through May 2006. This chapter updates the Committee’s experience to 18 May 2007, the end of its thirty‑eighth session.

47.In accordance with rule 68, paragraph 2, of the rules of procedure, the Committee established the post of Rapporteur for follow‑up to conclusions and recommendations under article 19 of the Convention and appointed Ms. Felice Gaer to that position. As in the past, Ms. Gaer presented a progress report to the Committee in May 2007 on the results of the procedure.

48.The Rapporteur has emphasized that the follow‑up procedure aims “to make more effective the struggle against torture and other cruel, inhuman and degrading treatment or punishment”, as articulated in the preamble to the Convention. At the conclusion of the Committee’s review of each State party report, the Committee identifies concerns and recommends specific actions designed to enhance each State party’s ability to implement the measures necessary and appropriate to prevent acts of torture and cruel treatment, and thereby assists States parties in bringing their law and practice into full compliance with the obligations set forth in the Convention.

49.Since its thirtieth session in May 2003, the Committee began the practice of identifying a limited number of these recommendations that warrant a request for additional information following the review and discussion with the State party concerning its periodic report. Such “follow‑up” recommendations are identified because they are serious, protective, and are considered able to be accomplished within one year. The States parties are asked to provide within one year information on the measures taken to give effect to its “follow‑up recommendations” which are specifically noted in a paragraph near the end of the conclusions and recommendations on the review of the States parties’ reports under article 19.

50.Since the procedure was established at the thirtieth session in May 2003, through the end of the thirty‑eighth session in May 2007 the Committee has reviewed 53 States for which it has identified follow‑up recommendations. Of the 39 States parties that were due to have submitted their follow‑up reports to the Committee by 18 May 2007, 25 had completed this requirement (Albania, Argentina, Austria, Azerbaijan, Bahrain, Canada, Chile, Czech Republic, Colombia, Croatia, Ecuador, Finland, France, Germany, Greece, Latvia, Lithuania, Monaco, Morocco, New Zealand, Qatar, Sri Lanka, Switzerland, United Kingdom and Yemen). As of 18 May, 14 States had not yet supplied follow‑up information that had fallen due (Bulgaria, Bosnia and Herzegovina, Cambodia, Cameroon, Democratic Republic of the Congo, Georgia, Guatemala, Republic of Korea, Moldova, Nepal, Peru, Togo, Uganda and United States of America). In March 2007, the Rapporteur sent a reminder requesting the outstanding information to each of the States whose follow‑up information was due in November 2006, but had not yet been submitted, and who had not previously been sent a reminder.

51.The Rapporteur noted that 14 follow‑up reports had fallen due since the previous annual report (A/61/44). However, only 4 (Austria, Ecuador, Qatar and Sri Lanka) of these 14 States had submitted the follow‑up information in a timely manner. Despite this, she expressed the view that the follow‑up procedure had been remarkably successful in eliciting valuable additional information from States on protective measures taken during the immediate follow‑up to the review of the periodic reports. While comparatively few States had replied precisely on time, 19 of the 25 respondents had submitted the information on time or within a matter of one to four months following the due date. Reminders seemed to help elicit many of these responses. The Rapporteur also expressed appreciation to non‑governmental organizations, many of whom had also encouraged States parties to submit follow‑up information in a timely way.

52.Through this procedure, the Committee seeks to advance the Convention’s requirement that “each State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture …” (art. 2, para. 1) and the undertaking “to prevent … other acts of cruel, inhuman and degrading treatment or punishment …” (art. 16).

53.The Rapporteur has expressed appreciation for the information provided by States parties regarding those measures taken to implement their obligations under the Convention. In addition, she has assessed the responses received as to whether all the items designated by the Committee for follow‑up (normally between three and six recommendations) have been addressed, whether the information provided responds to the Committee’s concern, and whether further information is required. Each letter responds specifically and in detail to the information presented by the State party. Where further information is needed, she writes to the State party concerned with specific requests for further clarification. With regard to States that have not supplied the follow‑up information at all, she writes to solicit the outstanding information.

54.At its thirty‑eighth session in May, the Committee decided to make public the Rapporteur’s letters to the States parties. These would be assigned a United Nations document symbol number and placed on the web page of the Committee. The Committee further decided to assign a United Nations document symbol number to all States parties’ replies (these symbol numbers are under consideration) to the follow‑up and also place them on its website.

55.Since the recommendations to each State party are crafted to reflect the specific situation in that country, the follow‑up responses from the States parties and letters from the Rapporteur requesting further clarification address a wide array of topics. Among those addressed in the letters sent to States parties requesting further information have been a number of precise matters seen as essential to the implementation of the recommendation in question. A number of issues have been highlighted to reflect not only the information provided, but also the issues that have not been addressed but which are deemed essential to the Committee’s ongoing work, in order to be effective in taking preventive and protective measures to eliminate torture and ill‑treatment.

56.In the correspondence with States parties, the Rapporteur has noted recurring concerns which are not fully addressed in the follow‑up replies. The following list of items is illustrative, not comprehensive:

(a)The need for greater precision on the means by which police and other personnel instruct on and guarantee detainees their right to obtain prompt access to an independent doctor, lawyer and family member;

(b)The importance of specific case examples regarding such access, and implementation of other follow‑up recommendations;

(c)The need for separate, independent and impartial bodies to examine complaints of abuses of the Convention, because the Committee has repeatedly noted that victims of torture and ill‑treatment are unlikely to turn to the very authorities of the system allegedly responsible for such acts; and the importance of the protection of persons employed in such bodies;

(d)The value of providing precise information such as lists of prisoners which are good examples of transparency, but which often reveal a need for more rigorous fact‑finding and monitoring of the treatment of persons facing possible infringement of the Convention;

(e)Numerous ongoing challenges in gathering, aggregating, and analysing police and administration of justice statistics in ways that ensure adequate information as to personnel, agencies, or specific facilities responsible for alleged abuses;

(f)The protective value of prompt and impartial investigations into allegations of abuse, and in particular information about effective parliamentary or national human rights commissions or ombudspersons as investigators, especially for instances of unannounced inspections; the utility of permitting non‑governmental organizations to conduct prison visits; and the utility of precautionary measures to protect investigators and official visitors from harassment or violence impeding their work;

(g)The need for information about specific professional police training programmes, with clear‑cut instructions as to the prohibition against torture and practice in identifying the sequellae of torture; and for information about the conduct of medical examinations, including autopsies, by trained medical staff, especially whether they are informed of the need to document signs of torture including sexual violence and to ensure the preservation of evidence of torture;

(h)The need for evaluations and continuing assessments of whether a risk of torture or other ill‑treatment results from official counter‑terrorism measures;

(i)The lacunae in statistics and other information regarding offences, charges and convictions, including any specific disciplinary sanctions against officers and other relevant personnel, particularly on newly examined issues under the Convention, such as the intersection of race and/or ethnicity with ill‑treatment and torture, the use of “diplomatic assurances” for persons being returned to another country to face criminal charges, incidents of sexual violence, complaints about abuses within the military, etc.

57.The chart below details, as of 18 May 2007, the end of the Committee’s thirty‑eighth session, the state of the replies with respect to follow‑up.

Follow‑up procedure to conclusions and recommendations from May 2003 to May 2007

Thirtieth session (May 2003)

State party

Information due in

Information received

Action taken

Azerbaijan

May 2004

7 July 2004 CAT/C/CR/30/ RESP /1

Request for further clarification

Cambodia

August 2003

Not received

Reminder

Moldova

August 2003

Not received

Reminder

Thirty‑first session (November 2003)

State party

Information due in

Information received

Action taken

Cameroon

November 2004

Not received

Reminder

Colombia

November 2004

13 June 2006 CAT/C/COL/CO/ 3 /Add. 1

Request for further clarification

Latvia

November 2004

3 November 2004 CAT/C/CR/31/ RESP /1

14 May 2007 CAT/C/ LVA/CO/ 1/Add.2

Request for further clarification

Response under review

Lithuania

November 2004

7 December 2004 CAT/C/CR/31/ RESP /1

25 October 2006 CAT/C/ LTU/CO/ 1/Add.2

Request for further clarification

Response under review

Morocco

November 2004

22 November 2004 CAT/C/CR/31/2/ Add.1

31 July 2006 CAT/C/MAR/CO/ 3 /Add. 2

27 October 2006 CAT/C/MAR/CO/ 3 /Add. 3

Request for further clarification

Response under review

Yemen

November 2004

22 October 2004 CAT/C/CR/31/4/ Add.1

Request for further clarification

Thirty‑second session (May 2004)

State party

Information due in

Information received

Action taken

Bulgaria

May 2005

Not received

Reminder

Chile

May 2005

22 January 2007* CAT/C/38/ CRP.4

Reminder Response under review

Croatia

May 2005

12 July 2006 CAT/C/ HRV/CO/3/Add.1

Reminder Response under review

Czech Republic

May 2005

25 April 2005 CAT/C/ HRV/CO/3/Add.1

Request for further clarification

Germany

May 2005

4 August 2005 CAT/C/CR/32/7/ RESP /1

Request for further clarification

Monaco

May 2005

6 April 2006 CAT/C/ MCO/CO/4/Add.1

Reminder Response under review

New Zealand

May 2005

9 June 2005 CAT/C/CR/32/4 /RES P/ 1

19 December 2006 CAT/C/ NZL/CO/3 /Add.2

Request for further clarification

*Follow‑up information received as part of the periodic report.

Thirty‑third session (November 2004)

State party

Information due in

Information received

Action taken

Argentina

November 2005

2 February 2006 CAT/C/ ARG/CO/4/Add.1

Request for further clarification

Greece

November 2005

14 March 2006 CAT/C/ GRC/CO/4/Add.1

Response under review

United Kingdom of Great Britain and Northern Ireland

November 2005

20 April 2006 CAT/C/ GBR/CO/ 4/Add.1

Response under review

Thirty‑fourth session (May 2005)

State party

Information due in

Information received

Action taken

Albania

May 2006

15 August 2006 CAT/C/ALB/CO/1/ Add.1

Response under review

Bahrain

May 2006

15 December 2006 CAT/C/ BHR/CO/1/Add.1

Response under review

Canada

May 2006

7 June 2006 CAT/C/CAN/CO/ 4 /Add. 1

Response under review

Finland

May 2006

22 May 2006 CAT/C/FIN/CO/4/ Add.1

Response under review

Switzerland

May 2006

15 May 2007 CAT/C/ CHE/CO/ 4/Add.1

Reminder Response under review

Uganda

May 2006

Not received

Reminder

Thirty‑fifth session (November 2005)

State party

Information due in

Information received

Action taken

Austria

November 2006

24 November 2006 CAT/C/ AUT/CO/3 /Add.1

Response under review

Bosnia and Herzegovina

November 2006

Not received*

Reminder

Democratic Republic of the Congo

November 2006

Not received

Reminder

Ecuador

November 2006

20 November 2006 CAT/C/ECU/CO/3/ Add.1

Response under review

France

November 2006

15 February 2007 CAT/C/ FRA/CO/3/Add.1

Response under review

Nepal

November 2006

Not received**

Reminder

Sri Lanka

November 2006

23 November 2006 CAT/C/ LKA/CO/2 /Add.1

Response under review

*Information received after the thirty‑eighth session: CAT/C/BIH/CO/1/Add.2.

**Information received after the thirty‑eighth session: CAT/C/NPL/CO/2/Add.1.

Thirty ‑ sixth session (May 2006)

State party

Information due in

Information received

Action taken

Georgia

May 2007

Not received*

Guatemala

May 2007

Not received

Republic of Korea

May 2007

Not received**

Peru

May 2007

Not received

Qatar

May 2007

12 December 2006 CAT/C/ QAT/CO/1/Add.1

Response under review

Togo

May 2007

Not received

United States of America

May 2007

Not received***

*Information received after the thirty‑eighth session: CAT/C/GEO/CO/3/Add.1.

**Information received after the thirty‑eighth session: CAT/C/KOR/CO/2/Add.1.

***Information received after the thirty‑eighth session: CAT/C/USA/CO/2/Add.1.

Thirty‑seventh session (November 2006)

State party

Information due in

Information received

Action taken

Hungary

November 2007

Russian Fed eration

November 2007

‑ *

Mexico

November 2007

Guyana

November 2007

Burundi

November 2007

South Africa

November 2007

Tajikistan

November 2007

*Information received after the thirty‑eighth session: CAT/C/RUS/CO/4/Add.1.

Thirty‑eighth session (May 2007)

State party

Information due in

Information received

Action taken

Denmark

May 2008

Italy

May 2008

Japan

May 2008

Luxembourg

May 2008

The Netherlands

May 2008

Poland

May 2008

Ukraine

May 2008

V.ACTIVITIES OF THE COMMITTEE UNDERARTICLE 20 OF THE CONVENTION

58.In accordance with article 20, paragraph 1, of the Convention, if the Committee receives reliable information which appears to contain well‑founded indications that torture is being systematically practised in the territory of a State party, the Committee shall invite that State party to cooperate in the examination of the information and, to this end, to submit observations with regard to the information concerned.

59.In accordance with rule 69 of the Committee’s rules of procedure, the Secretary‑General shall bring to the attention of the Committee information which is, or appears to be, submitted for the Committee’s consideration under article 20, paragraph 1, of the Convention.

60.No information shall be received by the Committee if it concerns a State party which, in accordance with article 28, paragraph 1, of the Convention, declared at the time of ratification of or accession to the Convention that it did not recognize the competence of the Committee provided for in article 20, unless that State party has subsequently withdrawn its reservation in accordance with article 28, paragraph 2, of the Convention.

61.The Committee’s work under article 20 of the Convention continued during the period under review. In accordance with the provisions of article 20 and rules 72 and 73 of the rules of procedure, all documents and proceedings of the Committee relating to its functions under article 20 of the Convention are confidential and all the meetings concerning its proceedings under that article are closed. However, in accordance with article 20, paragraph 5, of the Convention, the Committee may, after consultations with the State party concerned, decide to include a summary account of the results of the proceedings in its annual report to the States parties and to the General Assembly.

62.In the framework of its follow‑up activities, the Rapporteur on article 20, continued to carry out activities aimed at encouraging States parties on which enquiries had been conducted and the results of such enquiries had been published, to take measures to implement the Committee’s recommendations.

63.During the thirty‑seventh session, the Committee had before it the fourth periodic report from Mexico, under article 19. The Committee examined the status of its recommendations under article 20 (A/56/44, paras. 144‑193).

VI.CONSIDERATION OF COMPLAINTS UNDER ARTICLE 22 OF THE CONVENTION

A. Introduction

64.Under article 22 of the Convention, individuals who claim to be victims of a violation by a State party of the provisions of the Convention may submit a complaint to the Committee against Torture for consideration, subject to the conditions laid down in that article. Sixty‑two out of 144 States that have acceded to or ratified the Convention have declared that they recognize the competence of the Committee to receive and consider complaints under article 22 of the Convention. The list of those States is contained in annex III. No complaint may be considered by the Committee if it concerns a State party to the Convention that has not recognized the Committee’s competence under article 22.

65.Consideration of complaints under article 22 of the Convention takes place in closed meetings (art. 22, para. 6). All documents pertaining to the work of the Committee under article 22, i.e. submissions from the parties and other working documents of the Committee, are confidential. Rules 107 and 109 of the Committee’s rules of procedure set out the complaints procedure in detail.

66.The Committee decides on a complaint in the light of all information made available to it by the complainant and the State party. The findings of the Committee are communicated to the parties (article 22, paragraph 7, of the Convention and rule 112 of the rules of procedure) and are made available to the general public. The text of the Committee’s decisions declaring complaints inadmissible under article 22 of the Convention is also made public, without disclosing the identity of the complainant, but identifying the State party concerned.

67.Pursuant to rule 115, paragraph 1, of its rules of procedure, the Committee may decide to include in its annual report a summary of the communications examined. The Committee shall also include in its annual report the text of its decisions under article 22, paragraph 7, of the Convention.

B. Interim measures of protection

68.Complainants frequently request preventive protection, particularly in cases concerning imminent expulsion or extradition, and invoke in this connection article 3 of the Convention. Pursuant to rule 108, paragraph 1, at any time after the receipt of a complaint, the Committee, through its Rapporteur for new complaints and interim measures may transmit to the State party concerned a request that it take such interim measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of the alleged violations. The State party shall be informed that such a request does not imply a determination of the admissibility or the merits of the complaint. The Rapporteur for new complaints and interim measures regularly monitors compliance with the Committee’s requests for interim measures.

69.The Rapporteur for new complaints and interim measures has developed working methods regarding the withdrawal of requests for interim measures. Where the circumstances suggest that a request for interim measures may be reviewed before the consideration of the merits, a standard sentence is added to the request, stating that the request is made on the basis of the information contained in the complainant’s submission and may be reviewed, at the initiative of the State party, in the light of information and comments received from the State party and any further comments, if any, from the complainant. Some States parties have adopted the practice of systematically requesting the Rapporteur to withdraw his request for interim measures of protection. The Rapporteur has taken the position that such requests need only be addressed if based on new and pertinent information which was not available to him when he took his initial decision on interim measures.

70.The Committee has conceptualized the formal and substantive criteria applied by the Rapporteur for new complaints and interim measures in granting or rejecting requests for interim measures of protection. Apart from timely submission of a complainant’s request for interim measures of protection under rule 108, paragraph 1, of the Committee’s rules of procedure, the basic admissibility criteria set out in article 22, paragraphs 1 to 5, of the Convention, must be met by the complainant for the Rapporteur to act on his or her request. The requirement of exhaustion of domestic remedies can be dispensed with if the only remedies available to the complainant are without suspensive effect, i.e. remedies that do not automatically stay the execution of an expulsion order, or if there is a risk of immediate deportation of the complainant after the final rejection of his or her asylum application. In such cases, the Rapporteur may request the State party to refrain from deporting a complainant, while his or her complaint is under consideration by the Committee, even before domestic remedies have been exhausted. As for substantive criteria to be applied by the Rapporteur, a complaint must have a substantial likelihood of success on its merits for it to be concluded that the alleged victim would suffer irreparable harm in the event of his or her deportation.

71.The Committee is aware that a number of States parties have expressed concern that interim measures of protection have been requested in too large a number of cases, especially where the complainant’s deportation is alleged to be imminent, and that there are insufficient factual elements to warrant a request for interim measures. The Committee takes such expressions of concern seriously and is prepared to discuss them with the States parties concerned. In this regard it wishes to point out that in many cases, requests for interim measures are lifted by the Special Rapporteur, on the basis of pertinent State party information received that obviates the need for interim measures.

C. Progress of work

72.At the time of adoption of the present report the Committee had registered, since 1989, 316 complaints with respect to 25 countries. Of them, 89 complaints had been discontinued and 55 had been declared inadmissible. The Committee had adopted final decisions on the merits of 142 complaints and found violations of the Convention in 42 of them. Thirty‑one complaints were pending consideration.

73.At its thirty‑seventh session, the Committee declared inadmissible complaints Nos. 284/2006 (R.S.A.N . v. Canada) and 288/2006 (H.S.T . v. Norway). Both complaints concerned claims under article 3 of the Convention. The Committee declared them inadmissible, respectively, for non‑exhaustion of domestic remedies and for being manifestly unfounded. The text of these decisions is reproduced in annex VII, section B, to the present report.

74.Also at its thirty‑seventh session, the Committee adopted Views on complaints Nos. 227/2003 (A.A.C . v. Sweden), 251/2004 (A.A . v. Switzerland),259/2004 (M.N . v. Switzerland), 262/2005 (V.L . v. Switzerland), 265/2005 (A.H. v. Sweden),277/2005 (N.Z.S . v. Sweden),279/2005 (C.T . and K.M . v. Sweden),280/2005 (Rgeig v. Switzerland),282/2005 (S.P.A . v. Canada),286/2006 (M.R.A . v. Sweden). The text of these decisions is reproduced in annex VII, section A, to the present report.

75.In its decision on complaint No. 227/2003 (A.A.C . v. Sweden), the Committee found that the complainant’s expulsion to Bangladesh, where he had allegedly been tortured as a member of an illegal political party, did not amount to a violation of article 3 of the Convention, given that seven years had lapsed since the alleged torture had taken place, that the status of charges against the complainant under the Public Safety Act remained unclear, and that the complainant’s own political party was now part of the Government of Bangladesh. Furthermore, the Committee considered that the complainant had not sufficiently substantiated, for purposes of admissibility, that his prompt removal from Sweden, despite mental health problems, violated article 16 of the Convention. In this respect, it considered that the aggravation of an individual’s physical or mental health through deportation is generally insufficient to amount to degrading treatment within the meaning of this provision. It also found inadmissible, for lack of substantiation, the complainant’s further claim that the restrictive practice used by the Swedish authorities in the granting of a residence permit itself violated articles 3 and 16 of the Convention.

76.Complaints Nos. 251/2004 (A.A . v. Switzerland), 259/2004 (M.N . v. Switzerland), 265/2005 (A.H. v. Sweden), 277/2005 (N.Z.S . v. Sweden), and 286/2006 (M.R.A . v. Sweden) concerned asylum‑seekers who claimed that their expulsion, return or extradition to their countries of origin would constitute a violation of article 3 of the Convention, as they would be at risk of being subjected to torture there. The Committee, after examining the claims and evidence submitted by the complainants as well as the arguments from the two States parties concerned, concluded that such risk had not been established. Accordingly, no breach of article 3 was found in these cases.

77.In its decision on complaint No. 262/2005 (V.L . v. Switzerland), the Committee considered that the complainant had established that her expulsion to Belarus would expose her to the risk of being subjected to torture, in violation of article 3 of the Convention. It reached this conclusion in the light of medical evidence corroborating the complainant’s allegation that she had been subjected to sexual abuse, including multiple rape, by the police in the recent past, in retaliation for her and her husband’s political activities. This abuse was also aimed at intimidating, punishing and humiliating her, and the Belarusian authorities appeared to have failed to investigate, prosecute and punish the police for such acts. In this context, the Committee stressed that the sexual abuse by the police amounted to torture, even though it had been perpetrated outside formal detention facilities. The Committee noted that the Belarusian authorities’ failure to act increased the risk of ill‑treatment after the complainant’s return to Belarus, since the perpetrators of the rape had not been investigated, let alone prosecuted, and could mistreat the complainant again with impunity. There was, therefore, substantial doubt, based on the particular facts of the case, as to whether the authorities of Belarus would take the necessary measures to protect the complainant from further harm.

78.Complaint No. 279/2005 (C.T . and K.M . v. Sweden) concerned a Rwandan citizen of Hutu origin claiming that her expulsion to Rwanda would expose her and her son to the risk of torture, in violation of article 3 of the Convention. The Committee noted her description of the treatment she had been subjected to while in detention because of her affiliation with the banned PDR‑Ubuyanja political party, which included repeated rape under the threat of execution, as a result of which she became pregnant. The Committee also considered that information provided by the complainant demonstrated that ethnic tensions in Rwanda continue to exist, thus increasing the likelihood that the complainant might be subjected to torture upon return to Rwanda. For these reasons, the Committee concluded that substantial grounds existed for believing that the complainant and her son would be at risk of torture if returned to Rwanda.

79.In the views on complaint 280/2005 (Rgeig v. Switzerland), the Committee considered that the State party had not presented sufficiently convincing arguments to demonstrate the absence of any risk that the complainant would be exposed to torture if he were to be returned to the Libyan Arab Jamahiriya. In reaching this conclusion, the Committee took into account the findings in the medical report on the presence of serious after‑effects of the acts of torture inflicted on the complainant in the past, his political activities subsequent to his departure from the Libyan Arab Jamahiriya, and the persistent reports concerning the treatment generally meted out to such activists if forcibly returned to the Libyan Arab Jamahiriya.

80.In complaint No. 282/2005 (S.P.A . v. Canada) the complainant claimed that she would be imprisoned, tortured or killed if returned to Iran, in violation of articles 3 and 16 of the Convention, since she was a known opponent to the Iranian regime, and that a court summons in her name existed. The Committee, after examining the claims and evidence submitted by the complainant as well as the arguments of the State party, concluded that she had not advanced satisfactory evidence or details relating to her custody in the basement of a detention facility in Iran or escape from detention. Further, she had failed to provide plausible explanations for her failure or inability to provide certain details regarding her stay for over three months in Iran subsequent to her escape and the names of those who helped her to escape. Finally, the Committee considered that she failed to provide plausible explanations for her subsequent journey through seven countries, before claiming refugee status in Canada. Whilst noting with concern reports of human rights violations in Iran, the Committee considered that the complainant had not substantiated that she would personally face such a real and imminent risk of being subjected to torture upon return to Iran. Accordingly, no breach of article 3 was found.

81.At its thirty‑eighth session, the Committee adopted decisions on the merits in respect of complaints Nos. 249/2004 (Dar v. Norway), 268/2005 (A.A . v. Switzerland), 270 and 271/2005 (E.R.K . and Y.K . v. Sweden), 281/2005 (Pelit v. Azerbaijan), 296/2006 (E.V.I . v. Sweden), 298/2006 (C.A.R.M . et al. v. Canada) and 300/2006 (Tebourski v. France).The text of these decisions is also reproduced in annex VII, section A, to the present report.

82.In complaints Nos. 268/2005 (A.A . v. Switzerland), 296/2006 (E.V.I . v. Sweden), and 270 and 271/2005 (E.R.K . and Y.K . v. Sweden) the complainants claimed violations of article 3 of the Convention by the respective States, should they be returned to their countries after being refused asylum. The Committee held, however, that the complainants had not demonstrated the existence of substantial grounds for believing that their return to their countries of origin would expose them to a foreseeable, real and personal risk of torture, and, therefore, no violations of the Convention were found.

83.Complaint No. 249/2004 (Dar v. Norway) concerned an Ahmadiya retired army officer accused of blasphemy in Pakistan. The complainant, who sought asylum in Norway, was deported to Pakistan although the Committee had requested the State party not to deport him while the case was under consideration by the Committee. The complainant was later allowed to return to Norway. The Committee found that the author’s deportation to Pakistan despite a standing request for interim measures constituted a breach of article 22 of the Convention. However, it considered that by facilitating his return to Norway and granting him a three‑year residence permit, the State party had remedied this breach. In view of the fact that the complainant, who was not tortured during his stay in Pakistan, had returned to the State party, where he received a residence permit for three years, the Committee considered that the issue as to whether his deportation to Pakistan constituted a violation of article 3 was moot.

84.In its decision on complaint No. 281/2005 (Pelit v. Azerbaijan), the Committee concluded that the expulsion of the complainant (a Turkish national of Kurdish origin, who was officially recognized as a refugee by Germany) to Turkey, constituted a violation of her rights under both articles 3 and 22 of the Convention. Upon registering the case, the Committee had requested the State party not to extradite the complainant while her case was under consideration by the Committee. The State party initially agreed not to do so, but subsequently deported her, after having received diplomatic assurances from Turkey to the effect that she would not be subjected to any form of ill‑treatment. The State party affirmed that a post‑expulsion monitoring mechanism had been established and that the complainant was not ill‑treated after her return. The Committee expressed its concern about the situation and reiterated that once a State party makes the declaration under article 22 of the Convention, it voluntarily accepts to cooperate in good faith with the Committee under article 22; the complainant’s expulsion has rendered null the effective exercise of her right to complain. On the issue of the diplomatic assurances, and with reference to its decision in the case of Agiza v. Sweden (communication No. 233/2003), the Committee noted that although some form of a post‑expulsion monitoring had indeed taken place, the State party had not provided any document, nor had it given sufficient details, to allow the Committee to evaluate whether these assurances were sufficient to safeguard the complainant’s rights.

85.In its decision on complaint No. 298/2006 (C.A.R.M . and others v. Canada), the Committee found that the complainants’ expulsion to Mexico, where C.A.R.M. and his family had allegedly been persecuted by the mayor of his home town in connivance with a drug cartel, did not amount to a violation of article 3 of the Convention. The Committee considered that the complainants had not sufficiently substantiated the claim that their removal to Mexico would cause them irreparable harm, noting that they had never complained about their alleged persecution in that country and had not sought refuge in another region of Mexico, nor requested protection from the Mexican authorities before seeking asylum in Canada.

86.In complaint No. 300/2006 (Tebourski v. France), the complainant was a Franco‑Tunisian national residing in France, who had been convicted on terrorist‑related charges and was considered by the authorities to be a danger to the public. As a result, after his release from prison, his French citizenship was revoked and his deportation was ordered by the French authorities. The complainant claimed that his deportation would amount to a violation of article 3 of the Convention by France, as he would be at risk of torture in Tunisia. After examining the arguments and evidence submitted to it, the Committee concluded that substantial grounds existed for believing that the complainant would be at risk of torture, and that his deportation would amount to a violation of the Convention. The Committee regretted that, despite the Committee’s request not to deport the author, the State party had deported him to Tunisia before the Committee could decide on the case. As a result, the Committee also found a violation of article 22 of the Convention.

87.Also at its thirty‑eighth session, the Committee decided to declare inadmissible complaint No. 305/2006 (A.R.A . v. Sweden), whichconcerned claims under article 3 of the Convention. The Committee noted that the complainant had filed an application with the European Court of Human Rights, which was still pending before the Court when the complainant submitted an identical complaint to the Committee. It recalled that, under article 22, paragraph 5 (a) of the Convention, the Committee shall not consider any communications from an individual unless it has ascertained that the same matter has not been and is not being examined under another procedure of international investigation or settlement. The Committee considered that a communication has been, and is being examined by another procedure of international investigation or settlement, if such examination relates to the “same matter”, which must be understood as relating to the same parties, the same facts and the same substantive rights alleged to have been violated. In the case at issue, the application before the European Court was submitted by the same complainant, was based on the same facts and related to the same substantive rights as those invoked in the communication before the Committee. Accordingly, it concluded that the communication was inadmissible. The text of this decision is reproduced in annex VII, section B, to the present report.

Complaints in which the Committee has found violations of the Convention up to the thirty-eighth session

State party

AUSTRIA

Case

Halimi‑Nedibi Quani, 8/1991

Nationality and country of removal if applicable

Yugoslav

Views adopted on

18 November 1993

Issues and violations found

Failure to investigate allegations of torture - article 12.

Interim measures granted and State party response

None

Remedy recommended

The State party is requested to ensure that similar violations do not occur in the future.

Due date for State party response

None

Date of reply

None

State party response

None

Complainant’s response

N/A

State party

AUSTRALIA

Case

Shek Elmi, 120/1998

Nationality and country of removal if applicable

Somali to Somalia

Views adopted on

25 May 1999

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning the complainant to Somalia or to any other country where he runs a risk of being expelled or returned to Somalia.

Due date for State party response

None

Date of reply

23 August 1999 and 1 May 2001

State party response

On 23 August 1999 the State party responded to the Committee’s views. It informed the Committee that on 12 August 1999, the Minister for Immigration and Multicultural Affairs decided that it was in the public interest to exercise his powers under section 48B of the Migration Act 1958 to allow Mr. Elmi to make a further application for a protection visa. Mr. Elmi’s solicitor was advised of this on 17 August 1999, and Mr. Elmi was personally notified on 18 August 1999.

On 1 May 2001, the State party informed the Committee that the complainant had voluntarily departed Australia and subsequently “withdrew” his complaint against the State party. It explains that the complainant had lodged his second protection visa application on 24 August 1999. On 22 October 1999, Mr. Elmi and his adviser attended an interview with an officer of the Department. The Minister of Immigration and Multicultural Affairs in a decision dated 2 March 2000 was satisfied that the complainant was not a person to whom Australia has protection obligations under the Refugee Convention and refused to grant him a protection visa. This decision was affirmed on appeal by the Principal Tribunal Members. The State party advises the Committee that his new application was comprehensively assessed in light of new evidence which arose following the Committee’s consideration. The Tribunal was not satisfied as to the complainant’s credibility and did not accept that he is who he says he is ‑ the son of a leading elder of the Shikal clan.

Author’s response

N/A

Committee’s decision

In light of the complainant’s voluntary departure no further action was requested under follow‑up.

State party

AZERBAIJAN

Case

Pelit, 281/2005

Nationality and country of removal if applicable

Turkish to Turkey

Views adopted on

30 April 2007

Issues and violations found

Removal - articles 3 and 22

Interim measures granted and State party response

Granted but not acceded to by the State party (assurances had been granted).

Remedy recommended

To remedy the violation of article 3 and to consult with the Turkish authorities on the whereabouts and state of well-being of the complainant.

Due date for State party response

Not yet due (not yet implemented).

State party

CANADA

Case

Tahir Hussain Khan, 15/1994

Nationality and country of removal if applicable

Pakistani to Pakistan

Views adopted on

15 November 1994

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Requested and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning Tahir Hussain Khan to Pakistan.

Due date for State party response

None

Date of reply

None

State party response

No information provided to Rapporteur, however during the discussion of the State party report to the Committee against Torture in May 2005, the State party stated that the complainant had not been deported.

Complainant’s response

None

Case

Falcon Rios, 133/1999

Nationality and country of removal if applicable

Mexican to Mexico

Views adopted on

30 November 2004

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Requested and acceded to by the State party

Remedy recommended

Relevant measures

Due date for State party response

None

Date of reply

None

State party response

On 9 March 2005, the State party provided information on follow‑up. It stated that the complainant had submitted a request for a risk assessment prior to return to Mexico and that the State party will inform the Committee of the outcome. If the complainant can establish one of the motives for protection under the Immigration and Protection of Refugee’s Law, he will be able to present a request for permanent residence in Canada. The Committee’s decision will be taken into account by the examining officer and the complainant will be heard orally if the Minister considers it necessary. Since the request for asylum was considered prior to the entry into force of the Immigration and Protection of Refugee’s Law, that is prior to June 2002, the immigration agent will not be restricted to assessing facts after the denial of the initial request but will be able to examine all the facts and information old and new presented by the complainant. In this context, it contests the Committee’s finding in paragraph 7.5 of its decision which found that only new information could be considered during such a review.

Complainant’s response

On 5 February 2007, the complainant forwarded the Committee a copy of the results of his risk assessment, in which his request was denied and he was asked to leave the State party. No further information was provided.

Case

Dadar, 258/2004

Nationality and country of removal if applicable

Iranian to Iran

Views adopted on

3 November 2005

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Yes and State party acceded

Remedy recommended

The Committee urges the State party, in accordance with rule 112, paragraph 5, of its rules of procedure, to inform it, within 90 days of the date of the transmittal of this decision, of the steps taken in response to the decision expressed above.

Due date for State party response

26 February 2006

Date of reply

Latest reply 5 April 2007 (Had previously responded on 22 March 2006 and 24 April 2006 - see annual report A/61/44 - and 9 August 2006).

State party response

The Committee will recall that the State party removed the complainant to Iran on 26 March 2006 despite a finding of a violation of the Convention. In its response of 24 April 2006, it stated that since his return a Canadian representative had spoken with the complainant’s nephew who said that Mr. Dadar had arrived in Tehran without incident, and was staying with his family. The State party had no direct contact with him since he was returned to Iran. In light of this information, as well as Canada’s determination that he did not face a substantial risk of torture upon return to Iran, the State party submits that it was not necessary for it to consider the issue of monitoring mechanisms in this case. (For a full account of the State party’s response see annual report A/61/44.)

On 9 August 2006, the State party informed the Committee that on 16 May 2006, the complainant came to the Canadian Embassy in Tehran to pursue certain personal and administrative issues in Canada unrelated to the allegations before the Committee. He did not complain of any ill‑treatment in Iran nor make any complaints about the Iranian authorities. As the complainant’s visit confirmed previous information received from his nephew, the Canadian authorities requested that this matter be removed from consideration under the follow-up procedure.

On 5 April 2007, the State party responded to counsel’s comments of 24 June 2006. It stated that it had no knowledge of the complainant’s state of well-being and that his further questioning by the Iranian authorities would have been due to the discovery of the Committee’s decision. The State party regards this decision as an “intervening factor”, subsequent to his return that it could not have taken into account at the time of his return. In addition, the complainant’s concerns do not disclose any complaint that, were it to be made to the Committee, could give rise to a violation of a right under the Convention. Questioning by the authorities does not amount to torture. In any event, his fear of torture during questioning is speculative and hypothetical. Given Iran’s ratification of the International Covenant on Civil and Political Rights and the possibility for the complainant to use United Nations special procedure mechanisms such as the Special Rapporteur on torture, it considers the United Nations better placed to make enquiries about the complainant’s well-being.

Complainant’s response

The complainant’s counsel has contested the State party’s decision to deport the complainant despite the Committee’s findings. He has not to date provided information he may have on the author’s situation since arriving in Iran.

The complainant’s counsel states that on 24 June 2006, he heard from the complainant who informed him that the Iranian authorities had delivered a copy of the Committee’s decision to his home and had requested his attendance for questioning. He was very worried over the telephone and counsel has not heard from him since. In addition, he states that Mr. Dadar is persona non grata in Iran. He cannot work or travel and is unable to obtain the medical treatment he had received in Canada to treat his condition.

Action taken

See the Committee’s annual report (A/61/44) for an account of the contents of notes verbales sent from the Special Rapporteur to the State party.

Committee’s decision

During the consideration of the follow‑up at its thirty‑sixth session, the Committee deplored the State party’s failure to abide by its obligations under article 3, and found that the State party violated its obligations under article 3 not to, “expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. The dialogue is ongoing.

State party

FRANCE

Case

Arana, 63/1997

Nationality and country of removal if applicable

Spanish to Spain

Views adopted on

9 November 1999

Issues and violations found

Complainant’s expulsion to Spain constituted a violation of article 3.

Interim measures granted and State party response

Request not acceded to by the State party who claimed to have received the Committee’s request after expulsion.

Remedy recommended

Measures to be taken

Due date for State party response

5 March 2000

Date of reply

Latest reply on 1 September 2005

State party response

The Committee will recall that on 8 January 2001, the State party had provided follow-up information, in which it stated, inter alia, that since 30 June 2000, a new administrative procedure allowing for a suspensive summary judgement suspending a decision, including deportation decisions, was instituted. For a full account of its response see the annual report of the Committee (A/61/44).

Complainant’s response

On 6 October 2006, counsel responded that on 17 January 1997, the European Committee on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had visited the complainant and stated that allegations of ill‑treatment were credible. He was convicted by the “Audiencia Nacional” on 12 June 1998 to 83 years of imprisonment, having been convicted on the basis of confessions made under torture and contrary to extradition regulations. There was no possibility of appeal from a decision of the “Audiencia Nacional”.

In addition, he stated that since the Committee’s decision and numerous protests, including hunger strikes by Basque nationals under threat of expulsion from France to Spain, the French authorities have stopped handing over such individuals to the Spanish authorities but return them freely to Spain. Also on 18 January 2001, the French Ministry of the Interior, stated, inter alia, that it was prohibited from removing Basque nationals outside an extradition procedure whereby there is a warrant for their arrest by the Spanish authorities.

However, the Ministry continued by stating that torture and inhuman treatment by Spanish security forces of Basque nationals accused of terrorism and the tolerance of such treatment by the Spanish authorities is corroborated by a number of sources.

Committee’s decision

Given that the complainant was removed nearly 10 years ago, no further action should be taken by the Committee to follow-up on this case.

Case

Brada, 195/2003

Nationality and country of removal if applicable

Algerian to Algeria

Views adopted on

17 May 2005

Issues and violations found

Removal ‑ articles 3 and 22

Interim measures granted and State party response

Granted but not acceded to by the State party

Remedy recommended

Measures of compensation for the breach of article 3 of the Convention and determination, in consultation with the country (also a State party to the Convention) to which the complainant was returned, of his current whereabouts and state of well‑being.

Due date for State party response

None

Date of reply

21 September 2005

State party response

Pursuant to the Committee’s request of 7 June 2005 on follow‑up measures taken, the State party informed the Committee that the complainant will be permitted to return to French territory if he so wishes and provided with a special residence permit under article L.523‑3 of the Code on the entry and stay of foreigners. This is made possible by a judgement of the Bordeaux Court of Appeal, of 18 November 2003, which quashed the decision of the Administrative Tribunal of Limoges, of 8 November 2001. This latter decision had confirmed Algeria as the country to which the complainant should be returned. In addition, the State party informs the Committee that it is in the process of contacting the Algerian authorities through diplomatic channels to find out the whereabouts and state of well‑being of the complainant.

Complainant’s response

None

Case

Tebourski, 300/2006

Nationality and country of removal if applicable

Tunisia

Views adopted on

1 May 2007

Issues and violations found

Removal - articles 3 and 22

Interim measures granted and State party response

Granted but not acceded to by the State party

Remedy recommended

To remedy the violation of article 3 and to consult with the Tunisian authorities on the whereabouts and state of well-being of the complainant.

Due date for State party response

13 August 2007 (not yet due)

State party

THE NETHERLANDS

Case

Ali Jeljeli, 91/1997

Nationality and country of removal if applicable

Tunisian to Tunisia

Views adopted on

13 November 1998

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Requested and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning the complainant to Tunisia or to any other country where he runs a real risk of being expelled or returned to Tunisia.

Due date for State party response

None

Date of reply

None

State party response

No information provided

Complainant’s response

N/A

State p arty

NORWAY

Case

Dar, 249/2004

Nationality and country of removal if applicable

Pakistani to Pakistan

Views adopted on

11 May 2007

Issues and violations found

Removal - article 22

Interim measures granted and State party response

Requested but not acceded to by the State party

Remedy recommended

None - State party has already remedied the breach.

Due date for State party response

Not yet due (not yet implemented)

State party

SENEGAL

Case

Suleymane Guengueng and others, 181/2001

Nationality and country of removal if applicable

N/A

Views adopted on

17 May 2006

Issues and violations found

Failure to prosecute - articles 5, paragraph 2, and 7.

Interim measures granted and State party response

N/A

Remedy recommended

In pursuance of rule 112, paragraph 5, of its rules of procedure, the Committee requests the State party to inform it, within 90 days of the date of the transmittal of this decision, of the steps it has taken in response to the views expressed above.

Due date for State party response

16 August 2006

Date of reply

8 March 2007 (had previously responded on 18 August and 28 September 2006).

State party response

On 18 August 2006, the State party denied that it had violated the Convention, and reiterated its arguments on the merits, including its argument on article 5 that under the Convention a State party is not obliged to meet its obligations within a particular time. The extradition request was dealt with under national law applicable between the State party and States with which it does not have an extradition treaty. It stated that any other way of handling this case would have violated national law. The integration of article 5 into domestic law is in its final stage and the relevant text would be examined by the Legislative Authority. To avoid possible impunity, the State party submitted that it had deferred the case to the African Union for consideration, thus avoiding a violation of article 7. As the African Union had not yet considered the case at that point, it would be impossible to provide the complainants with compensation.

On 28 September 2006, the State party informed the Committee that the Committee of Eminent Jurists of the African Union had taken the decision to entrust Senegal with the task of trying Mr. Habré of the charges against him. It stated that its judicial authorities were looking into the judicial feasibility and the necessary elements of a contract to be signed between the State party and the African Union on logistics and finance.

On 7 March 2007, the State party provided the following update. It submitted that on 9 November 2006, the Council of Ministers had adopted two new laws relating to the recognition of genocide, war crimes, and crimes against humanity as well as universal jurisdiction and judicial cooperation. The adoption of these laws fills the legal gap which had prevented the State party from recognizing the Habré case. On 23 November 2006, a working group was set up to consider the necessary measures to be taken to try Mr. Habré in a fair manner. This working group has considered the following: texts of the National Assembly on legal changes to remove obstacles highlighted during the consideration of the request for extradition on 20 September 2005; a framework for the infrastructural, legislative and administrative changes necessary to conform with the African Union’s request for a fair trial; measures to be taken in the diplomatic sphere to ensure cooperation between all of the countries concerned as well as other States and the African Union; security issues; and financial support. These elements were included in a report to the African Union during its eighth session which was held between 29 and 30 January 2007. The report underlined the necessity to mobilize financial resources from the international community.

Complainant’s response

On 9 October 2006, the complainants commented on the State party’s submission of 18 August 2006. They stated that the State party had provided no information on what action it intends to take to implement the Committee’s decision. Even three months after the African Union’s decision that Senegal should try Mr. Habré, the State party had still failed to clarify how it intends to implement the decision.

On 24 April 2007, the complainants responded to the State party’s submission of 7 March 2007. They thanked the Committee for its decision and for the follow-up procedure which they are convinced play an important role in the State party’s efforts to implement the decision. They greeted the judicial amendments referred to by the State party, which had prevented it from recognizing the Habré affaire.

While recognizing the efforts made to date by the State party, the complainants highlighted the fact that the decision has not yet been fully implemented and that this case has not yet been submitted to the competent authorities. They also highlighted the following points:

1. The new legislation does not include the crime of torture but only of genocide, crimes against humanity and war crimes.

2. Given that the State party has an obligation to proceed with the trial or extradite Mr. Habré, the same should not be conditional upon the receipt by the State party of financial assistance. The complainants assume that this request is made to ensure that a trial is carried out in the best possible conditions.

3. Irrespective of what the African Union has decided with respect to this affair, it can have no implications as to the State party’s obligation to recognize this affair and to submit it to the competent jurisdiction.

State party

SERBIA AND MONTENEGRO

Case

Ristic, 113/1998

Nationality and country of removal if applicable

Yugoslav

Views adopted on

11 May 2001

Issues and violations found

Failure to investigate allegations of torture by police ‑ articles 12 and 13

Interim measures granted and State party response

None

Remedy recommended

Urges the State party to carry out such investigations without delay. An appropriate remedy.

Due date for State party response

6 January 1999

Date of reply

Latest note verbale 28 July 2006 (had replied on 5 August 2005 - See the annual report of the Committee, A/61/44).

State party response

The Committee will recall that by note verbale of 5 August 2005, the State party confirmed that the First Municipal Court in Belgrade by decision of 30 December 2004 found that the complainant’s parents should be paid compensation. However, as this case is being appealed to the Belgrade District Court, this decision was neither effective nor enforceable at that stage. The State party also informed the Committee that the Municipal Court had found inadmissible the request to conduct a thorough and impartial investigation into the allegations of police brutality as a possible cause of Mr. Ristic’s death.

On 28 July 2006, the State party informed the Committee that the District Court of Belgrade had dismissed the complaint filed by the Republic of Serbia and the State Union of Serbia and Montenegro in May 2005. On 8 February 2006, the Supreme Court of Serbia dismissed as unfounded the revised statement of the State Union of Serbia and Montenegro, ruling that it is bound to meet its obligations under the Convention. It was also held responsible for the failure to launch a prompt, impartial and full investigation into the death of Milan Ristic.

Complainant’s response

On 25 March 2005, the Committee received information from the Humanitarian Law Center in Belgrade to the effect that the First Municipal Court in Belgrade had ordered the State party to pay compensation of 1,000,000 dinars to the complainant’s parents for failure to conduct an expedient, impartial and comprehensive investigation into the causes of the complainant’s death in compliance with the decision of the Committee against Torture.

Case

Hajrizi Dzemajl et al., 161/2000

Nationality and country of removal if applicable

Yugoslav

Views adopted on

21 November 2002

Issues and violations found

Burning and destruction of houses, failure to investigate and failure to provide compensation ‑ articles 16, paragraph 1, 12 and 13

Interim measures granted and State party response

None

Remedy recommended

Urges the State party to conduct a proper investigation into the facts that occurred on 15 April 1995, prosecute and punish the persons responsible for those acts and provide the complainants with redress, including fair and adequate compensation.

Due date for State party response

None

Date of reply

See CAT/C/32/FU/1

State party response

See first follow‑up report (CAT/C/32/FU/1). Following the thirty‑third session and while welcoming the State party’s provision of compensation to the complainants for the violations found, the Committee considered that the State party should be reminded of its obligation to conduct a proper investigation into the case.

Complainant’s response

None

Case

Dimitrov, 171/2000

Nationality and country of removal if applicable

Yugoslav

Views adopted on

3 May 2005

Issues and violations found

Torture and failure to investigate ‑ article 2, paragraph 1, in connection with 1, 12, 13 and 14

Interim measures granted and State party response

N/A

Remedy recommended

The Committee urges the State party to conduct a proper investigation into the facts alleged by the complainant.

Due date for State party response

18 August 2005

Date of reply

None

State party response

None

Complainant’s response

N/A

Case

Dimitrijevic, 172/2000

Nationality and country of removal if applicable

Serbian

Views adopted on

16 November 2005

Issues and violations found

Torture and failure to investigate ‑ articles 1, 2, paragraphs 1, 12, 13, and 14

Interim measures granted and State party response

N/A

Remedy recommended

The Committee urges the State party to prosecute those responsible for the violations found and to provide compensation to the complainant, in accordance with rule 112, paragraph 5, of its rules of procedure, to inform it, within 90 days from the date of the transmittal of this decision, of the steps taken in response to the views expressed above.

Due date for State party response

26 February 2006

Date of reply

None

State party response

None

Complainant’s response

N/A

Case

Nikolic, 174/2000

Nationality and country of removal if applicable

N/A

Views adopted on

24 November 2005

Issues and violations found

Failure to investigate ‑ articles 12 and 13

Interim measures granted and State party response

N/A

Remedy recommended

Information on the measures taken to give effect to the Committee’s Views, in particular on the initiation and the results of an impartial investigation of the circumstances of the death of the complainant’s son.

Due date for State party response

27 February 2006

Date of reply

None

State party response

None

Complainant’s response

N/A

Case

Dimitrijevic, Dragan, 207/2002

Nationality and country of removal if applicable

Serbian

Views adopted on

24 November 2004

Issues and violations found

Torture and failure to investigate ‑ article 2, paragraph 1, in connection with articles 1, 12, 13, and 14.

Interim measures granted and State party response

None

Remedy recommended

To conduct a proper investigation into the facts alleged by the complainant.

Due date for State party response

February 2005

Date of reply

None

State party response

None

Complainant’s response

On 1 September 2005, the complainant’s representative informed the Committee that having made recent enquiries, it could find no indication that the State party had started any investigation into the facts alleged by the complainant.

State party

SPAIN

Case

Encarnación Blanco Abad, 59/1996.

Nationality and country of removal if applicable

Spanish

Views adopted on

14 May 1998

Issues and violations found

Failure to investigate ‑ articles 12 and 13

Interim measures granted and State party response

None

Remedy recommended

Relevant measures

Due date for State party response

None

Date of reply

None

State party response

No information provided

Complainant’s response

N/A

Case

Urra Guridi, 212/2002

Nationality and country of removal if applicable

Spanish

Views adopted on

17 May 2005

Issues and violations found

Failure to prevent and punish torture, and provide a remedy ‑ articles 2, 4 and 14.

Interim measures granted and State party response

None

Remedy recommended

Urges the State party to ensure in practice that those individuals responsible of acts of torture be appropriately punished, to ensure the Complainant full redress.

Due date for State party response

18 August 2005

Date of reply

None

State party response

No information provided

Complainant’s response

N/A

State party

SWEDEN

Case

Tapia Páez, 39/1996

Nationality and country of removal if applicable

Peruvian to Peru

Views adopted on

28 April 1997

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning Mr. Gorki Ernesto Tapia Páez to Peru.

Due date for State party response

None

Date of reply

23 August 2005

State party response

Pursuant to the Committee’s request of 25 May 2005 on follow‑up, the State party informed the Committee that the complainant was granted a permanent residence permit on 23 June 1997.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

Kisoki, 41/1996

Nationality and country of removal if applicable

Democratic Republic of the Congo citizen to Democratic Republic of the Congo.

Views adopted on

8 May 1996

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning Pauline Muzonzo Paku Kisoki to Democratic Republic of the Congo.

Due date for State party response

None

Date of reply

23 August 2005

State party response

Pursuant to the Committee’s request of 25 May 2005 on follow‑up, the State party informed the Committee that the complainant was granted a permanent residence permit on 7 November 1996.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

Tala, 43/1996

Nationality and country of removal if applicable

Iranian to Iran

Views adopted on

15 November 1996

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning Mr. Kaveh Yaragh Tala to Iran.

Due date for State party response

None

Date of reply

23 August 2005

State party response

Pursuant to the Committee’s request of 25 May 2005 on follow‑up, the State party informed the Committee that the complainant was granted a permanent residence permit on 18 February 1997.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

Avedes Hamayak Korban, 88/1997

Nationality and country of removal if applicable

Iraqi to Iraq

Views adopted on

16 November 1998

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning the complainant to Iraq. It also has an obligation to refrain from forcibly returning the complainant to Jordan, in view of the risk he would run of being expelled from that country to Iraq.

Due date for State party response

None

Date of reply

23 August 2005

State party response

Pursuant to the Committee’s request of 25 May 2005 on follow‑up, the State party informed the Committee that the complainant was granted a permanent residence permit on 18 February 1999.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

Ali Falakaflaki, 89/1997

Nationality and country of removal if applicable

Iranian to Iran

Views adopted on

8 May 1998

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning Mr. Ali Falakaflaki to the Islamic Republic of Iran.

Due date for State party response

None

Date of reply

23 August 2005

State party response

Pursuant to the Committee’s request of 25 May 2005 on follow‑up, the State party informed the Committee that the complainant was granted a permanent residence permit on 17 July 1998.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

Orhan Ayas, 97/1997

Nationality and country of removal if applicable

Turkish to Turkey

Views adopted on

12 November 1998

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning the complainant to Turkey or to any other country where he runs a real risk of being expelled or returned to Turkey.

Due date for State party response

None

Date of reply

23 August 2005

State party response

Pursuant to the Committee’s request of 25 May 2005 on follow‑up, the State party informed the Committee that the complainant was granted a permanent residence permit on 8 July 1999.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

Halil Haydin, 101/1997

Nationality and country of removal if applicable

Turkish to Turkey

Views adopted on

20 November 1998

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning the complainant to Turkey, or to any other country where he runs a real risk of being expelled or returned to Turkey.

Due date for State party response

None

Date of reply

23 August 2005

State party response

Pursuant to the Committee’s request of 25 May 2005 on follow‑up, the State party informed the Committee that the complainant was granted a permanent residence permit on 19 February 1999.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

A.S., 149/1999

Nationality and country of removal if applicable

Iranian to Iran

Views adopted on

24 November 2000

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party.

Remedy recommended

The State party has an obligation to refrain from forcibly returning the complainant to Iran or to any other country where she runs a real risk of being expelled or returned to Iran.

Due date for State party response

None

Date of reply

22 February 2001

State party response

The State party informed the Committee that on 30 January 2001, the Aliens Appeals Board examined a new application for residence permit lodged by the complainant. The Board decided to grant the complainant a permanent residence permit in Sweden and to quash the expulsion order. The Board also granted the complainant’s son a permanent residence permit.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

Chedli Ben Ahmed Karoui, 185/2001

Nationality and country of removal if applicable

Tunisian to Tunisia

Views adopted on

8 May 2002

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

None

Due date for State party response

None

Date of reply

23 August 2005

State party response

No further consideration under follow‑up procedure. See first follow‑up report (CAT/C/32/FU/1) in which it was stated that, on 4 June 2002, the Board revoked the expulsion decisions regarding the complainant and his family. They were also granted permanent residence permits on the basis of this decision.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

Tharina, 226/2003

Nationality and country of removal if applicable

Bangladeshi to Bangladesh

Views adopted on

6 May 2005

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

Given the specific circumstances of the case, the deportation of the complainant and her daughter would amount to a breach of article 3 of the Convention. The Committee wishes to be informed, within 90 days, from the date of the transmittal of this decision, of the steps taken in response to the views expressed above.

Due date for State party response

15 August 2005

Date of reply

17 August 2005 (was not received by OHCHR, so re-sent by the State party on 29 June 2006).

State party response

On 20 June 2005, the Board decided to revoke the expulsion decision regarding the complainant and her daughter and to grant them residence permits.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

Agiza, 233/2003

Nationality and country of removal if applicable

Egyptian to Egypt

Views adopted on

20 May 2005

Issues and violations found

Removal ‑ articles 3 (substantive and procedural violations) on two counts and 22 on two counts.

Interim measures granted and State party response

None

Remedy recommended

In pursuance of rule 112, paragraph 5, of its rules of procedure, the Committee requests the State party to inform it, within 90 days from the date of the transmittal of this decision, of the steps it has taken in response to the views expressed above. The State party is also under an obligation to prevent similar violations in the future.

Due date for State party response

20 August 2005

Date of reply

Latest information 1 September 2006 (it had provided a response on 18 August 2005 ‑ annual report of the Committee, A/61/44).

State party’s response

The Committee will recall the State party’s submission on follow-up in which it referred inter alia to the enactment of a new Aliens Act and the continual monitoring of the complainant by staff from the Swedish Embassy in Cairo. See annual report of the Committee (A/61/44) for a full account of its submission.

On 1 September 2006, the State party provided an update on its monitoring of the complainant. It stated that since its last update, embassy staff had made seven further visits to see Mr. Agiza, the last one on 7 August 2006. Mr. Agiza has been in consistently good spirits and is receiving regular visits in prison from his mother, sometimes together with his brother. He receives regular visits to hospital and his former problems with his back and knee have improved. His spinal cord was X‑rayed in February and is said to be satisfactory. His health is said to be stable and he visits Manial Hospital once a week for physiotherapy treatment.

The Egyptian National Council for Human Rights (NCHR) visited Mr. Agiza for the second time. The Embassy has not yet received its reports. In this context, he complained about his transport to and from the hospital, which he said was uncomfortable and tiring, particularly during the summer months. He said that he had sent a letter complaining about it to the NCHR. A doctor from the NCHR also visited Mr. Agiza. Mr. Agiza said that there was nothing to complain about since his last visit. However, he claimed that he had been threatened by a security guard that he would be shot if he tried to escape during his trips to the hospital. His mother has also repeatedly complained in letters to the Ministry of the Interior and the security service about his health. The State party notes that there are substantial discrepancies between the picture presented by Mr. Agiza to the Swedish Embassy and that given by his mother. The Egyptian security service denies the assertions that he was threatened. The Embassy’s staff has visited him now on 39 occasions and will continue the visits.

Complainant’s response

On 31 October 2006, the complainant’s counsel responded to the State party’s submission. He stated that he had had a meeting with the Swedish Ambassador on 24 January 2006. During this meeting, counsel emphasized that it was essential that the embassy continue their visits as regularly as it has been doing. According to information available to counsel, the post-surgery treatment for his back has been inadequate and his recovery unsatisfactory. The Embassy promised to continue to emphasize the importance of necessary medical care within the diplomatic framework. However, it was reluctant to make a request to the Egyptian Government for telephone contact between Mr. Agiza and his wife and children who remain in Sweden as refugees. The Ambassador was unclear as to whether he would request the complainant’s retrial. Counsel provided arguments as to why his trial in April 2004 was unfair and also requested that the prohibition on the complainant returning to Sweden be lifted, in the event that he is released from prison at some stage in the future. According to the Ambassador, this is up to the Migration Board. Counsel requested the State party to consider having a retrial in Sweden or to allow him to complete his imprisonment there (as suggested by the Special Rapporteur on Torture) but the State party responded that no such steps are possible. In addition, requests for compensation ex gratia have been refused and it was suggested that a formal claim should be lodged under the Compensation Act. This has been done.

According to counsel, although the monitoring aspect of the State party’s efforts is satisfactory its efforts as a whole are said to be inadequate with respect to the request for contact with his family in Sweden, a retrial etc.

Case

279/2005, C.T. and K.M.

Nationality and country of removal if applicable

Rwandan, Rwanda

Views adopted on

17 November 2006

Issues and violations found

Removal - article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The removal of the complainants to Rwanda would amount to a breach of article 3 of the Convention. The Committee urges the State party, in accordance with rule 112, paragraph 5, of its rules of procedure, to inform it, within 90 days from the date of the transmittal of this decision, of the steps taken in response to the decision expressed above.

Due date for State party response

1 March 2007

Date of reply

19 February 2007

State party response

On 29 January 2007, the Migration Board decided to grant the complainants permanent residence permits. They were also granted refugee status and travel documents.

Committee’s decision

No further consideration under the follow-up procedure, as the State party has complied with the Committee’s decision.

State party

SWITZERLAND

Case

Mutombo, 13/1993

Nationality and country of removal if applicable

Zairian to Zaire

Views adopted on

27 April 1994

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from expelling Mr. Mutombo to Zaire, or to any other country where he runs a real risk of being expelled or returned to Zaire or of being subjected to torture.

Due date for State party response

None

Date of reply

25 May 2005

State party response

Pursuant to the Committee’s request for follow‑up information of 25 March 2005, the State party informed the Committee that, by reason of the unlawful character of the decision to return him, the complainant was granted temporary admission on 21 June 1994. Subsequently, having married a Swiss national, the complainant was granted a residence permit on 20 June 1997.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

Alan, 21/1995

Nationality and country of removal if applicable

Turkish to Turkey

Views adopted on

8 May 1996

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning Ismail Alan to Turkey.

Due date for State party response

None

Date of reply

25 May 2005

State party response

Pursuant to the Committee’s request of 25 March 2005 for follow‑up information, the State party informed the Committee that the complainant was granted asylum by decision of 14 January 1999.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

Aemei, 34/1995

Nationality and country of removal if applicable

Iranian to Iran

Views adopted on

29 May 1997

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning the complainant and his family to Iran, or to any other country where they would run a real risk of being expelled or returned to Iran.

The Committee’s finding of a violation of article 3 of the Convention in no way affects the decision(s) of the competent national authorities concerning the granting or refusal of asylum. The finding of a violation of article 3 has a declaratory character. Consequently, the State party is not required to modify its decision(s) concerning the granting of asylum; on the other hand, it does have a responsibility to find solutions that will enable it to take all necessary measures to comply with the provisions of article 3 of the Convention. These solutions may be of a legal nature (e.g. decision to admit the applicant temporarily), but also of a political nature (e.g. action to find a third State willing to admit the applicant to its territory and undertaking not to return or expel him in its turn).

Due date for State party response

None

Date of reply

25 May 2005

State party response

Pursuant to the Committee’s request of 25 March 2005 for follow‑up information, the State party informed the Committee that the complainants had been admitted as refugees on 8 July 1997. On 5 June 2003, they were granted residence permits on humanitarian grounds. For this reason, Mr. Aemei renounced his refugee status on 5 June 2003. One of their children acquired Swiss nationality.

Complainant’s response

None

Committee’s decision

No further consideration under the follow‑up procedure as the State party has complied with the Committee’s decision.

Case

262/2005, Losizkaja

Nationality and country of removal if applicable

Belarusian to Belarus

Views adopted on

20 November 2006

Issues and violations found

Removal - article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The complainant’s removal to Belarus by the State party would constitute a breach of article 3 of the Convention 10. The Committee urges the State party, in accordance with rule 112, paragraph 5, of its rules of procedure, to inform it, within 90 days from the date of the transmittal of this decision, of the steps taken in response to the views expressed above.

Due date for State party response

27 February 2007

Date of reply

23 March 2007

State party response

The State party informed the Committee that the complainant has now received permission to stay in Switzerland (specific type of permission not provided) and no longer risks removal to Belarus.

Committee’s decision

No further consideration under the follow-up procedure, as the State party has complied with the Committee’s decision.

Case

280/2005, El Rgeig

Nationality and country of removal if applicable

Libyan, Libyan Arab Jamahiriya

Views adopted on

15 November 2006

Issues and violations found

Removal - article 3

Interim measures granted and State party response

Granted and acceded to by the State party

Remedy recommended

The forcible return of the complainant to the Libyan Arab Jamahiriya would constitute a breach by Switzerland of his rights under article 3 of the Convention. The Committee invites the State party to inform it, within 90 days from the date of the transmittal of this decision, of the steps it has taken in accordance with the above observations.

Due date for State party response

26 February 2007

Date of reply

19 January 2007

State party response

On 17 January 2007, the Federal Migration Office partially reconsidered its decision of 5 March 2004. The complainant has now received refugee status and no longer risks removal to Libya.

Committee’s decision

No further consideration under the follow-up procedure, as the State party has complied with the Committee’s decision.

State party

TUNISIA

Case

M’Barek, 60/1996

Nationality and country of removal if applicable

Tunisian

Views adopted on

10 November 2004

Issues and violations found

Failure to investigate ‑ articles 12 and 13.

Interim measures granted and State party response

None

Remedy recommended

The Committee requests the State party to inform it within 90 days of the steps taken in response to the Committee’s observations.

Due date for State party response

22 February 2000

Date of reply

15 April 2002

State party response

See first follow‑up report (CAT/C/32/FU/1). The State party challenged the Committee’s decision. During the thirty‑third session the Committee considered that the Special Rapporteur should arrange to meet with a representative of the State party.

Complainant’s response

None

Consultations with State party

See note below on the consultations with the Tunisian Ambassador on 25 November 2005.

Case

Thabti, Abdelli, Ltaief, 187/2001, 188/2001 and 189/2001

Nationality and country of removal if applicable

Tunisian

Views adopted on

20 November 2003

Issues and violations found

Failure to investigate ‑ articles 12 and 13.

Interim measures granted and State party response

None

Remedy recommended

To conduct an investigation into the complainants’ allegations of torture and ill‑treatment, and to inform it, within 90 days from the date of the transmittal of this decision, of the steps it has taken in response to the views expressed above.

Due date for State party response

23 February 2004

Date of reply

16 March 2004 and 26 April 2006

State party response

See first follow‑up report (CAT/C/32/FU/1). On 16 March 2004, the State party challenged the Committee’s decision. During the thirty‑third session the Committee considered that the Special Rapporteur should arrange to meet with a representative of the State party. This meeting was arranged, a summary of which is set out below.

On 26 April 2006, the State party sent a further response. It referred to one of the complainant’s (189/2001) requests of 31 May 2005, to “withdraw” his complaint, which it submitted called into question the real motives of the complainants of all three complaints (187/2001, 188/2001 and 189/2001). It reiterated its previous arguments and submitted that the withdrawal of the complaint corroborated its arguments that the complaint was an abuse of process, that the complainants failed to exhaust domestic remedies, and that the motives of the NGO representing the complainants were not bona fide.

Complainant’s response

One of the complainants (189/2001) sent a letter, dated 31 May 2005, to the Secretariat requesting that his case be “withdrawn”, and enclosing a letter in which he renounced his refugee status in Switzerland.

On 8 August 2006, the letter from the author of 31 May 2005 was sent to the complainants of case Nos. 187/2001 and 188/2001 for comments. On 12 December 2006, both complainants responded expressing their surprise that the complainant had “withdrawn” his complaint without providing any reasons for doing so. They did not exclude pressure from the Tunisian authorities as a reason for doing so. They insisted that their own complaints were legitimate and encouraged the Committee to pursue their cases under the follow‑up procedure.

On 12 December 2006, and having received a copy of the complainant’s letter of “withdrawal” from the other complainants, the complainant’s representative responded to the complainant’s letter of 31 May 2005. The complainant’s representative expressed its astonishment at the alleged withdrawal which it puts down to pressure on the complainant and his family and threats from the State party’s authorities. This is clear from the manner in which the complaint is withdrawn. This withdrawal does not detract from the facts of the case nor does it free those who tortured the complainant from liability. It regrets the withdrawal and encourages the Committee to continue to consider this case under follow-up.

Consultations with State party

On 25 November 2005, the Special Rapporteur on follow‑up met with the Tunisian Ambassador in connection with case Nos. 187/2001, 188/2001 and 189/2001. The Special Rapporteur explained the follow‑up procedure. The Ambassador referred to a letter dated 31 May 2005 which was sent to OHCHR from one of the complainants, Mr. Ltaief Bouabdallah (case No. 189/2001). In this letter, the complainant said that he wanted to “withdraw” his complaint and attached a letter renouncing his refugee status in Switzerland. The Ambassador stated that the complainant had contacted the Embassy in order to be issued with a passport and is in the process of exhausting domestic remedies in Tunisia. He remains a resident in Switzerland which has allowed him to stay despite having renounced his refugee status. As to the other two cases, the Special Rapporteur explained that each case would have to be implemented separately and that the Committee had requested that investigations be carried out. The Ambassador asked why the Committee had thought it appropriate to consider the merits when the State party was of the view that domestic remedies had not been exhausted. The Special Rapporteur explained that the Committee had thought the measures referred to by the State party were ineffective, underlined by the fact that there had been no investigations in any of these cases in over 10 years since the allegations.

The Ambassador confirmed that he would convey the Committee’s concerns and request for investigations, in case Nos. 187/2001 and 188/2001, to the State party and update the Committee on any subsequent follow‑up action taken.

State party

Bolivarian Republic of VENEZUELA

Case

Chipana, 110/1998

Nationality and country of removal if applicable

Peruvian to Peru

Views adopted on

10 November 1998

Issues and violations found

Complainant’s extradition to Peru constituted a violation of article 3.

Interim measures granted and State party response

Granted but not acceded to by the State party

Remedy recommended

None

Due date for State party response

7 March 1999

Date of reply

Most recent reply dated 9 November 2005

State party response

On 13 June 2001 (as reflected in the progress report during the thirty‑fourth session), the State party had reported on the conditions of detention of the complainant in the prison of Chorrillos, Lima. On 23 November 2000, the Ambassador of the Bolivarian Republic of Venezuela in Peru, together with some representatives of the Peruvian administration, visited the complainant in prison. The team interviewed the complainant for 50 minutes, and she informed them that she had not been subjected to any physical or psychological mistreatment. The team observed that the prisoner appeared to be in good health. She had been transferred in September 2000 from the top security pavilion to the “medium special security” pavilion, where she had other privileges such as one hour of visits per week, two hours per day in the courtyard and access to working and educational activities.

By note verbale dated 18 October 2001, the State party forwarded a second report made by the Defensor del Pueblo (Ombudsman) dated 27 August 2001 about the complainant’s conditions of detention. It included a report of a visit to the complainant in prison carried out on 14 June 2001 by a member of the Venezuelan Embassy in Peru together with the head of Criminal and Penitentiary Affairs in Peru. She stated that her conditions of detention had improved and that she could see her family more often. However, she informed them both of her intention to appeal her sentence. According to the Ombudsman, the complainant had been transferred from the medium special security pavilion to the “medium security” pavilion where she had more privileges. Furthermore, since 4 December 2000, all the top security prisons in the country have a new regime consisting of (a) visits: removal of booths. Any visit from any family member or friend will be accepted with no restrictions; (b) media: complainant has access to any media without restriction; (c) lawyers: free visits without restrictions four times a week; (d) courtyard: freedom of circulation until 2200 hours. He concluded that the complainant has more flexible conditions of detention due to her personal situation and to the changes introduced on 4 December 2000. Moreover, her health is good, except that she is suffering from depression. She had not been subjected to any physical or psychological mistreatment, she has weekly visits from her family and she is involved in professional and educational activities in the prison.

On 9 December 2005, the State party informed the Committee that on 23 November 2005, the Venezuelan Ambassador in Peru contacted Mrs. Nuñez Chipana in the maximum security prison for women in Chorrillos, Lima. According to the note, Venezuelan authorities have been lobbying to prevent the complainant from being sentenced to the death penalty, life imprisonment or more than 30 years’ imprisonment, or subjected to torture or mistreatment. In the interview held with the complainant, she regretted that the Peruvian authorities of Chorrillos had denied access to her brother, who had come from Venezuela to visit her. She mentioned that she is receiving medical treatment and that she can receive visits from her son, and that she is under a penitentiary regime which imposes minimum restrictions on detainees. She added that she received visits every six months from members of the Venezuelan Embassy in Peru. The State party pointed out that the situation in Peru has changed since the Committee adopted its decision. There is no longer a pattern of widespread torture, and the Government is engaged in redressing the human rights abuses of the past regime. The complainant has been visited on a regular basis and she has not been subjected to torture or any other ill‑treatment. The State party considers that its commitment to ensure, through monitoring, that the complainant is not subjected to treatment or punishment contrary to the Convention, has been met.

The Government also considers that it has complied with the recommendation that similar violations should be avoided in the future. It informed the Committee that since the adoption of the law on refugees in 2001, the newly established National Commission for Refugees has been duly processing all the applications of asylum‑seekers as well as examining cases of deportation.

The Government asks the Committee to declare that the former has complied with the Committee’s recommendations, and to release the Government from the duty to monitor the situation of the deportee in Peru.

Complainant’s response

None

Complaints in which the Committee has found no violations of the Convention up to the thirty-eighth session but in which it requested follow‑up information

State party

GERMANY

Case

M.A.K., 214/2002

Nationality and country of removal ifapplicable

Turkish to Turkey

Views adopted on

12 May 2004

Issues and violations found

No violation

Interim measures granted and State party response

Granted and acceded to by the State party. Request by State party to withdraw interim request refused by the Special Rapporteur on new communications.

Remedy recommended

Although the Committee found no violation of the Convention it welcomed the State party’s readiness to monitor the complainant’s situation following his return to Turkey and requested the State party to keep the Committee informed about the situation.

Due date for State party response

None

Date of reply

20 December 2004

State party response

The State party informed the Committee that the complainant had agreed to leave German territory voluntarily in July 2004 and that in a letter from his lawyer on 28 June 2004, he said he would leave Germany on 2 July 2004. In the same correspondence, as well as by telephone conversation of 27 September 2004, his lawyer stated that the complainant did not wish to be monitored by the State party in Turkey but would call upon its assistance only in the event of arrest. For this reason, the State party does not consider it necessary to make any further efforts to monitor the situation at this moment.

Complainant’s response

None

Committee’s decision

No further action is required

VII. FUTURE MEETINGS OF THE COMMITTEE

88.In accordance with rule 2 of its rules of procedure, the Committee holds two regular sessions each year. In consultation with the Secretary‑General, the Committee took decisions on the dates of its regular session for the biennium 2008‑2009. Those dates are:

Fortieth

26 April-16 May 2008

Forty‑first

3-21 November 2008

Forty‑second

4‑22 May 2009

Forty‑third

9‑27 November 2009

89.Since 1995 the Committee has received 203 reports, an average of 16 reports per year. In this same period the Committee has considered an average of 13 reports per year, a total of 163 reports. This means that at 18 May 2007, the last day of the thirty‑eighth session, there were 26 reports awaiting consideration. In 1995, 88 countries were party to the Convention against Torture. In 2007 there are 144 States parties thus constituting a 64 per cent increase. During this time there has been no increase in the plenary meeting time allocated to the Committee.

90.There are two interlinked issues that need to be considered. One is the importance of providing the Committee with sufficient meeting time for it to undertake its work in an efficient manner, and the second is to facilitate the consideration of the backlog of over 25 reports awaiting review.

91.Insofar as the first issue is concerned, dealing with the incoming workload can be addressed by the Committee meeting for two three‑week sessions per year, thereby enabling the Committee to deal with 16 reports per year or approximately the number received each year.

92.The second issue raises the important requirement of addressing the current backlog of 30 reports pending before the Committee. This represents a backlog of two years, meaning that a report submitted to the Committee in June 2007 would not be considered before November 2009. The Committee considers that it could deal with the backlog were it authorized to meet on an exceptional basis for three sessions per year during the biennium 2008‑2009. The third (exceptional) session in each of the years 2008 and 2009 would be dedicated exclusively to the consideration of States parties’ reports. The Committee would be able to consider 10 reports per exceptional session.

VIII. ADOPTION OF THE ANNUAL REPORT OF the committee ON ITS ACTIVITIES

93.In accordance with article 24 of the Convention, the Committee shall submit an annual report on its activities to the States parties and to the General Assembly. Since the Committee holds its second regular session of each calendar year in late November, which coincides with the regular sessions of the General Assembly, it adopts its annual report at the end of its spring session, for transmission to the General Assembly during the same calendar year. Accordingly, at its 780th meeting, held on 18 May 2007, the Committee considered and unanimously adopted the report on its activities at the thirty‑seventh and thirty‑eighth sessions.

Annex I

STATES THAT HAVE SIGNED, RATIFIED OR ACCEDED TO THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, AS AT 18 MAY 2007

Participant

Signature

Ratification,Accession (a),Succession (b)

Afghanistan

4 February 1985

1 April 1987

Albania

11 May 1994

Algeria

26 November 1985

12 September 1989

Andorra

5 August 2002

22 September 2006 a

Antigua and Barbuda

19 July 1993 a

Argentina

4 February 1985

24 September 1986

Armenia

13 September 1993 a

Australia

10 December 1985

8 August 1989

Austria

14 March 1985

29 July 1987

Azerbaijan

16 August 1996 a

Bahrain

6 March 1998 a

Bangladesh

5 October 1998 a

Belarus

19 December 1985

13 March 1987

Belgium

4 February 1985

25 June 1999

Belize

17 March 1986 a

Benin

12 March 1992 a

Bolivia

4 February 1985

12 April 1999

Bosnia and Herzegovina

1 September 1993

Botswana

8 September 2000

8 September 2000

Brazil

23 September 1985

28 September 1989

Bulgaria

10 June 1986

16 December 1986

Burkina Faso

4 January 1999 a

Burundi

18 February 1993 a

Cambodia

15 October 1992 a

Cameroon

19 December 1986 a

Canada

23 August 1985

24 June 1987

Cape Verde

4 June 1992 a

Chad

9 June 1995 a

Chile

23 September 1987

30 September 1988

China

12 December 1986

4 October 1988

Colombia

10 April 1985

8 December 1987

Comoros

22 September 2000

Congo

30 July 2003 a

Costa Rica

4 February 1985

11 November 1993

Côte d’Ivoire

18 December 1995 a

Croatia

12 October 1992 b

Cuba

27 January 1986

17 May 1995

Cyprus

9 October 1985

18 July 1991

Czech Republic

22 February 1993 b

Democratic Republic of the Congo

18 March 1996 a

Denmark

4 February 1985

27 May 1987

Djibouti

5 November 2002 a

Dominican Republic

4 February 1985