Follow-up: State Reporting - CAT

HUNGARY

Follow‑up ‑ State Reporting

i) Action by Treaty Bodies

CAT, A/62/44 (2007)

...

IV. FOLLOW UP ON CONCLUSIONS AND RECOMMENDATIONS ON 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 Ato 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 Afollow 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 Afollow 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 Aeach State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture Y@ (art. 2, para. 1) and the undertaking Ato prevent Y other acts of cruel, inhuman and degrading treatment or punishment Y@ (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.

...

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

...

Thirty seventh session (November 2006)

State party

Information

due in

Information received

Action taken

Hungary

November 2007

‑

...

CAT, A/63/44 (2008)

...

CHAPTER IV. FOLLOW‑UP ON CONCLUSIONS AND RECOMMENDATIONS

ON STATES PARTIES REPORTS

46. In this chapter, the Committee updates its findings and activities that follow‑up on the conclusions and recommendations adopted under article 19 of the Convention, in accordance with the recommendations of its Rapporteur on Follow‑Up to Country conclusions. The Rapporteur=s activities, responses by States parties, and the Rapporteur=s views on recurring concerns encountered through this procedure are presented below, and updated to through May 2008, following the Committee=s fortieth session.

47. 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 2008.

48. 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 2008 on the results of the procedure.

49. The Rapporteur has emphasized that the follow‑up procedure aims Ato 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.

50. In its follow‑up procedure, the Committee has identified a number of these recommendations as requiring additional information specifically for this procedure. 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.

51. Since the procedure was established at the thirtieth session in May 2003, through the end of the fortieth session in May 2008, the Committee has reviewed 67 States for which it has identified follow‑up recommendations. Of the 53 States parties that were due to have submitted their follow‑up reports to the Committee by 16 May 2008, 33 had completed this requirement (Albania, Argentina, Austria, Azerbaijan, Bahrain, Bosnia and Herzegovina, Canada, Chile, Czech Republic, Colombia, Croatia, Ecuador, Finland, France, Georgia, Germany, Greece, Guatemala, Hungary, Republic of Korea, Latvia, Lithuania, Monaco, Morocco, Nepal, New Zealand, Qatar, Russian Federation, Sri Lanka, Switzerland, United Kingdom of Great Britain and Northern Ireland, United States of America and Yemen). As of 16 May, 20 States had not yet supplied follow‑up information that had fallen due (Bulgaria, Burundi, Cambodia, Cameroon, Democratic Republic of the Congo, Denmark, Guyana, Italy, Japan, Luxembourg, Mexico, Moldova, the Netherlands, Peru, Poland, South Africa, Tajikistan, Togo, Uganda and Ukraine). In March 2008, the Rapporteur sent a reminder requesting the outstanding information to each of the States whose follow‑up information was due in November 2007, but had not yet been submitted, and who had not previously been sent a reminder.

52. The Rapporteur noted that 14 follow‑up reports had fallen due since the previous annual report.³ However, only 2 (Hungary and the Russian Federation) 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, 25 of the 33 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.

53. Through this procedure, the Committee seeks to advance the Convention=s requirement that Aeach State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture Y@ (art. 2, para. 1) and the undertaking Ato prevent Y other acts of cruel, inhuman and degrading treatment or punishment Y@ (art. 16).

54. The Rapporteur 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 has been needed, she has written to the concerned State party with specific requests for further clarification. With regard to States that have not supplied the follow‑up information at all, she requests the outstanding information.

55. At its thirty‑eighth session in May 2007, the Committee decided to make public the Rapporteur=s letters to the States parties. These would be 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 to the follow‑up and also place them on its website (http://www2.ohchr.org/english/bodies/cat/sessions.htm).

56. 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.

...

58. The chart below details, as of 16 May 2008, the end of the Committee=s fortieth session, the state of the replies with respect to follow‑up.

_______________________

3/ Official Records of the General Assembly, Sixty‑second Session, Supplement No. 44 (A/62/44).

Follow‑up procedure to conclusions and recommendations

from May 2003 to May 2008

...

Thirty‑seventh session (November 2006)

State party

Information

due in

Information received

Action taken

Hungary

November 2007

15 November 2007

CAT/C/HUN/CO/4/Add.1

Response under review

...

CAT, A/64/44 (2009)

IV. FOLLOW UP ON CONCLUDING OBSERVATIONS ON STATES PARTIES REPORTS

53. In this chapter, the Committee updates its findings and activities that follow‑up to concluding observations adopted under article 19 of the Convention, in accordance with the recommendations of its Rapporteur on follow‑up to concluding observations. The Rapporteur's activities, responses by States parties, and the Rapporteur's views on recurring concerns encountered through this procedure are presented below, and updated through 15 May 2009, following the Committee's forty‑second session.

54. 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 concluding observations 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 2009.

55. In accordance with rule 68, paragraph 2, of the rules of procedure, the Committee established the post of Rapporteur for follow up to concluding observations 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 2009 on the results of the procedure.

56. 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 ill‑treatment, and thereby assists States parties in bringing their law and practice into full compliance with the obligations set forth in the Convention.

57. In its follow‑up procedure, the Committee has identified a number of these recommendations as requiring additional information specifically for this procedure. 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.

58. Since the procedure was established at the thirtieth session in May 2003, through the end of the forty‑second session in May 2009, the Committee has reviewed 81 States for which it has identified follow up recommendations. Of the 67 States parties that were due to have submitted their follow up reports to the Committee by 15 May 2009, 44 had completed this requirement. As of 15 May 2009, 23 States had not yet supplied follow up information that had fallen due. The Rapporteur sends reminders requesting the outstanding information to each of the States whose follow up information was due, but had not yet been submitted, and who had not previously been sent a reminder. The status of the follow‑up to concluding observations may be found in the web pages of the Committee (http://www2.ohchr.org/english/bodies/cat/ sessions.htm).

59. The Rapporteur noted that 14 follow up reports had fallen due since the previous annual report. However, only 4 (Algeria, Estonia, Portugal and Uzbekistan) 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. One State party (Montenegro) had already submitted information which was due only in November 2009. While comparatively few States had replied precisely on time, 34 of the 44 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.

60. 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 Y" (art. 2, para. 1) and the undertaking "to prevent Y other acts of cruel, inhuman and degrading treatment or punishment Y" (art. 16).

61. The Rapporteur 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 has been needed, she has written to the concerned State party with specific requests for further clarification. With regard to States that have not supplied the follow up information at all, she requests the outstanding information.

62. At its thirty eighth session in May 2007, the Committee decided to make public the Rapporteur's letters to the States parties. These would be 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 to the follow up and also place them on its website (http://www2.ohchr.org/english/bodies/cat/sessions.htm).

63. 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.

...

65. The chart below details, as of 15 May 2009, the end of the Committee's forty‑second session, the state of the replies with respect to follow up.

Follow‑up procedure to conclusions and recommendations from May 2003 to May 2009

...

Thirty-seventh session (November 2006)

State party

Information

due in

Information received

Action taken

Hungary

November 2007

15 November 2007

CAT/C/HUN/CO/4/Add.1

Request for further clarification

...

CAT, A/65/44 (2010)

Chapter IV. Follow-up to concluding observations on States parties= reports

65. In this chapter, the Committee updates its findings and activities that constitute follow-up to concluding observations adopted under article 19 of the Convention, in accordance with the procedure established on follow-up to concluding observations. The follow-up responses by States parties, and the activities of the Rapporteur for follow-up to concluding observations under article 19 of the Convention, including the Rapporteur=s views on the results of this procedure, are presented below. This information is updated through 14 May 2010, the end of the Committee=s forty-fourth session.

66. 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 concluding observations on States parties reports submitted under article 19 of the Convention. In that report and each year thereafter, the Committee has presented information on its experience in receiving information on follow-up measures taken by States parties since the initiation of the procedure in May 2003.

67. In accordance with rule 68, paragraph 2, of the rules of procedure, the Committee established the post of Rapporteur for follow-up to concluding observations under article 19 of the Convention and appointed Ms. Felice Gaer to that position. In November 2009 and May 2010, the Rapporteur presented a progress report to the Committee on the results of the procedure.

68. At the conclusion of the Committee=s review of each State party report, the Committee identifies concerns and recommends specific measures to prevent acts of torture and ill-treatment. Thereby, the Committee assists States parties in identifying effective legislative, judicial, administrative and other measures to bring their laws and practice into full compliance with the obligations set forth in the Convention.

69. In its follow-up procedure, the Committee has identified a number of these recommendations as requiring additional information within one year. 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 information within one year on the measures taken to give effect to the follow-up recommendations. In the concluding observations on each State party report, the recommendations requiring follow-up within one year are specifically identified in a paragraph at the end of the concluding observations.

70. Since the procedure was established at the thirtieth session in May 2003, through the end of the forty-fourth session in May 2010, the Committee has reviewed 95 reports from States parties for which it has identified follow-up recommendations. It must be noted that periodic reports of Chile, Latvia, Lithuania and New Zealand have been examined twice by the Committee since the establishment of the follow-up procedure. Of the 81 States parties that were due to have submitted their follow-up reports to the Committee by 14 May 2010, 57 had completed this requirement. As of 14 May 2010, 24 States had not yet supplied follow-up information that had fallen due: Republic of Moldova, Cambodia, Cameroon, Bulgaria, Uganda, Democratic Republic of the Congo, Peru, Togo, Burundi, South Africa, Tajikistan, Luxembourg, Benin, Costa Rica, Indonesia, Zambia, Lithuania (to the 2009 concluding observations), Chad, Chile, Honduras, Israel, New Zealand, Nicaragua and the Philippines.

71. The Rapporteur sends reminders requesting the outstanding information to each of the States for which follow-up information is due, but not yet submitted. The status of the follow-up to concluding observations may be found in the web pages of the Committee at each of the respective sessions. As of 2010, the Committee has established a separate web page for follow-up (http://www2.ohchr.org/english/bodies/cat/follow-procedure.htm).

72. Of the 24 States parties that did not submit any information under the follow-up procedure as of 14 May 2010, non-respondents came from all world regions. While about one-third had reported for the first time, two-thirds were reporting for a second, third or even fourth time.

73. The Rapporteur expresses 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 has been needed, she has written to the concerned State party with specific requests for further clarification. With regard to States that have not supplied the follow-up information at all, she requests the outstanding information.

74. At its thirty-eighth session in May 2007, the Committee decided to make public the Rapporteur=s letters to the States parties which are posted on the web page of the Committee. The Committee further decided to assign a United Nations document symbol number to all States parties= replies to the follow-up and also place them on its website.

75. 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.

76. Among the Rapporteur=s activities in the past year, have been the following: attending the inter-committee meetings in Geneva where follow-up procedures were discussed with members from other treaty bodies, and it was decided to establish a working group on follow-up; addressing the Committee on the Elimination of Discrimination against Women at its August 2009 meeting in New York concerning aspects of the follow-up procedure; assessing responses from States parties and preparing follow-up letters to countries as warranted and updating the information collected from the follow-up procedure.

77. Additionally, the Rapporteur initiated a study of the Committee=s follow-up procedure, beginning with an examination of the number and nature of topics identified by the Committee in its requests to States parties for follow-up information. She reported to the Committee on some preliminary findings, in November 2009 and later in May 2010, and specifically presented charts showing that the number of topics designated for follow-up has substantially increased since the thirty-fifth session. Of the 87 countries examined as of the forty-third session (November 2009), one to three paragraphs were designated for follow-up for 14 States parties, four or five such topics were designated for 38 States parties, and six or more paragraphs were designated for 35 States parties. The Rapporteur drew this trend to the attention of the members of the Committee and it was agreed in May 2010 that, whenever possible, efforts would henceforth be made to limit the number of follow-up items to a maximum of five paragraphs.

78. The Rapporteur also found that certain topics were more commonly raised as a part of the follow up procedure than others. Specifically, for all State parties reviewed since the follow-up procedure began, the following topics were most frequently designated:

Ensure prompt, impartial and effective investigation(s) 76 per cent

Prosecute and sanction persons responsible for abuses 61 per cent

Guarantee legal safeguards 57 per cent

Enable right to complain and have cases examined 43 per cent

Conduct training, awareness-raising 43 per cent

Ensure interrogation techniques in line with the Convention 39 per cent

Provide redress and rehabilitation 38 per cent

End gender-based violence, ensure protection of women 34 per cent

Ensure monitoring of detention facilities/visit by independent body 32 per cent

Carry out data collection on torture and ill-treatment 30 per cent

Improve condition of detention, including overcrowding 28 per cent

79. In the correspondence with States parties, the Rapporteur has noted recurring concerns which are not fully addressed in the follow-up replies and her concerns (illustrative, not comprehensive) have been included in prior annual reports. To summarize them, she finds there is considerable value in having more precise information being provided, e.g. lists of prisoners, details on deaths in detention and forensic investigations.

80. As a result of numerous exchanges with States parties, the Rapporteur has observed that there is need for more vigorous fact-finding and monitoring in many States parties. In addition, there is often inadequate gathering and analysing of police and criminal justice statistics. When the Committee requests such information, States parties frequently do not provide it. The Rapporteur further considers that conducting prompt, thorough and impartial investigations into allegations of abuse is of great protective value. This is often best undertaken through unannounced inspections by independent bodies. The Committee has received documents, information and complaints about the absence of such monitoring bodies, the failure of such bodies to exercise independence in carrying out their work or to implement recommendations for improvement.

81. The Rapporteur has also pointed to the importance of States parties providing clear-cut instructions on the absolute prohibition of torture as part of the training of law-enforcement and other relevant personnel. States parties need to provide information on the results of medical examinations and autopsies, and to document signs of torture, especially including sexual violence. States parties also need to instruct personnel on the need to secure and preserve evidence. The Rapporteur has found many lacunae in national statistics, including on penal and disciplinary action against law-enforcement personnel. Accurate record keeping, covering the registration of all procedural steps of detained persons, is essential and requires greater attention. All such measures contribute to safeguard the individual against torture or other forms of ill-treatment, as set forth in the Convention.

82. The chart below details, as of 14 May 2010, the end of the Committee=s forty-fourth session, the replies with respect to follow-up. This chart also includes States parties= comments to concluding observations, if any.

Follow-up procedure to concluding observations from May 2003 to May 2010

...

Thirty-seventh session (November 2006)

State party

Information

due in

Information received

Action taken

Hungary

November 2007

15 November 2007

CAT/C/HUN/CO/4/Add.1

Request for further clarification

...

ii) Action by State Party

CAT, CAT/C/HUN/CO/4/Add.1 (2007)

Comments by the Government of the HUNGARY* to the conclusions and

recommendations of the Committee against Torture (CAT/C/HUN/CO/4)

[15 November 2007]

Recommendation 7

1. Sections 126‑128 of Act No 19 of 1998 on criminal procedure (henceforth: Be.) governs custody. Custody may last for maximum seventy‑two hours [Section 126 subsection (3) of Be.]. During this period the public prosecutor shall determine whether the conditions of pre‑trial detention are met and whether pre‑trial detention is to be motioned. Within the period of custody the court shall decide on the prosecutor=s motion for pre‑trial detention. The defendant shall immediately be released if the court has not ordered his pre‑trial detention, even if the seventy‑two hours time limit has not expired at the time of release [Section 126 subsection (3) of Be.].

2. According to Section 1 subsection (1) of Act No. 107 of 1995 on penitentiary organization this organization is an armed, law enforcement state organ with the task of enforcing sentences and measures entailing imprisonment, forced measures applied in criminal proceedings and confinements imposed for minor offences as sentences converted from fines. Since custody is regulated under the Be. among forced measures, in theory it can be enforced in a penitentiary institution as well, but in practice custody is never enforced in such an institution.

3. Upon the authorisation of Law‑decree No. 11 of 1979 on the implementation of sentences and measures (henceforth: Bv. tvr.) Decree No. 19/1995 (XII.13.) BM on the order of police cells was issued. Section 1 subsection (1) of this Decree provides that a person taken into custody under criminal or minor offence laws or for public security reasons, a pre‑trial detainee, a convict and a person detained in a police cell for having committed minor offence shall be regarded as a detainee for the purposes of this Decree.

4. The enforcement of pre‑trial detention is governed by Section 135 of Be. It provides that pre‑trial detention shall, as a rule, be enforced in a penitentiary institution but if it is justified by the necessity of carrying out an investigatory act the public prosecutor may order to keep the suspect ‑ for a period of maximum thirty days ‑ in a police cell. After the expiry of this period, upon the public prosecutor=s motion, the court shall decide on the suspect=s placement in a police cell for an additional thirty‑day long period. It means that pre‑trial detention can, for a period of maximum sixty days, be enforced in a police cell as well.

5. The duration of pre‑trial detention is governed under Sections 131‑132 of Be. Pre‑trial detention ordered prior to filing the indictment may continue up to the decision of the first instance court taken during the preparation for the hearing, but may never be longer than one month. Pre‑trial detention may be extended by the investigating judge by three months at a time, but the overall period may not exceed one year from the date of issue of the order. Thereafter pre‑trial detention may be extended by the regional court acting as a single judge by two months at a time.

6. The relevant figures taken from past years= practice show that approximately three‑fourths of pre‑trial detentions are terminated within four months from the date when they were ordered. Having regard to this fact the Act provides that after the expiry of one month the investigating judge may extend the duration of pre‑trial detention by three months at a time.

7. Section 176 subsection (2) of Be. provides that investigation against a definite suspect may last for maximum two years from the date of his interrogation. This is the maximum period of pre‑trial detention prior to the preferment of the bill of indictment.

8. Pre‑trial detention ordered or upheld by the first instance court after the preferment of the bill of indictment may continue up to the pronouncement of the first instance decision on the merits. Pre‑trial detention ordered or upheld by the first instance court or ordered by the second instance court may continue up to the termination of the second instance proceedings. Pre‑trial detention ordered or upheld by the second instance court after the pronouncement of the second instance decision on the merits or ordered by the third instance court may continue up to the termination of the third instance proceedings but in each case it shall not last longer than the term of imprisonment imposed under the non‑final decision.

9. If the first or second instance decision on the merits is quashed or the case is remitted to the first or second instance court pre‑trial detention ordered or upheld by the second or third instance court may continue up to the decision taken by the court to which the case was remitted during the preparation for the hearing.

10. The Be. provides that the justification of the placement of the accused in pre‑trial detention during the trial phase shall be reviewed periodically. Therefore, if the period of the pre‑trial detention ordered or upheld after the preferment of the indictment exceeds six months and the first instance court has not taken a decision on the merits within this period, the first instance court shall review whether the placement in pre‑trial detention is justified; if the duration of the pre‑trial detention exceeds one year the second instance court shall review whether the placement in pre‑trial detention is justified. Thereupon ‑ that is, if the duration of the pre‑trial detention exceeds one year ‑the second instance court or ‑ if the proceedings are conducted at third level ‑ the third instance court shall review every six months whether the placement in pre‑trial detention is justified.

11. The period of pre‑trial detention shall not exceed an overall period of three years unless pre‑trial detention has been ordered or upheld after the pronouncement of the decision on the merits, or proceedings are pending at third instance or as a result of the remittal of the case. This is the maximum length of time a defendant is lawfully allowed to be exposed to uncertainty about his fate. Therefore this provision requires speedier administration on the part of the investigating authority, the public prosecutor and the court, in compliance with Section 136 subsection (1) of Be., according to which the court, the prosecutor and the investigating authority shall make all efforts to reduce the term of pre‑trial detention as much as possible. If the defendant is held in pre‑trial detention the case must be given priority.

12. As to the separation of juveniles and adults in pre‑trial detention the provisions of the Bv. tvr. have to be invoked. Section 119 subsection (2) of the Bv. tvr. provides that juveniles and adults in pre‑trial detention shall be separated.

Recommendation 9

13. At the time of the 2006 November CAT session immigration was still governed by Act No. 39 of 2001 on the entry and stay of aliens (henceforth: Idtv.) Since the harmonisation of the rules governing the entry and stay of nationals of European Economic Area Member States (EEA nationals) with the special requirements of Community law constituted a prerequisite to Hungary=s accession to the European Union and new tendencies have emerged in the field of international migration since the adoption of Idtv., also having regard to the experience gained from the application of Idtv., immigration regulation had to be reviewed.

In December 2006 the National Assembly adopted two new laws which replaced Idtv. and which entered into force on 1 July 2007: Act No 1 of 2007 on the admission and residence of persons with the right of free movement and residence, and Act No. 2 of 2007 on the admission and right of residence of third‑country nationals (henceforth: Harmtv.) which, in compliance with the EU rules, order to apply different set of rules to the two circles of persons. Some of the provisions will enter into force only after Hungary=s accession to the Schengen Area. Harmtv. contains several new provisions, in line with the recommendations of the Committee and the Courts. In contrast to Idtv. Harmtv. does not regulate custody under a separate title, the rules pertaining to custody are set forth among the rules governing law enforcement, including detention under immigration laws, detention carried out in order to secure expulsion, complaint, extension of detention by court order and the common provisions of court procedures.

14. As to the legal grounds of detention under immigration laws the possibility of placing into such detention a foreigner under an expulsion order who has committed a minor offence or a criminal offence prior to his departure from the country is no longer allowed under the law. The rationale behind the new regulation is that in case a well‑founded suspicion of the commission of a criminal offence exists the prosecuting authorities are competent to determine whether the perpetrator=s personal liberty should or should not be restricted; whereas the commission of a minor office has no such immigration relevance which, in itself, might justify detention. The new regulation does no longer contain obligatory grounds for detention under immigration laws, for the same reasons that have been presented in connection with expulsion: Idtv. contained grounds on the basis of which criminal proceedings must be instituted, therefore the prosecuting authorities are competent to determine whether personal liberty should or should not be restricted in the given case and if the decision is yes, the restriction of liberty has to be effected not within the framework of immigration control but within the framework of criminal procedure. This regulation provides stronger guarantees and allows for the possibility of detaining persons from third countries only as a last resort.

15. Detention under immigration laws shall be ordered by way of a formal decision, and shall be carried out when communicated. In contrast to the five‑day long duration contained in Idtv., according to the regulation in force since July detention under immigration laws may be ordered for a maximum duration of seventy‑two hours. This provision is based on Section 14 subsection (2) of the final Committee recommendation No. COM(2005)391 which provides that orders on temporary detention shall be issued by judicial authorities. In urgent cases temporary detention may be issued by administrative authorities as well but in such cases detention shall be approved by the judicial authorities within 72 hours from the date of issue of the detention order. In contrast to the regulation contained in Idtv., detention can no longer be extended for a period of maximum six months but only for a period of maximum thirty days at a time, by the court with jurisdiction over the place of detention, until the departure of the third‑country national. This modification ensures compliance with Section 14 subsection (3) of the final Committee recommendation No. COM(2005)391, according to which temporary detention orders shall be reviewed by the judicial authorities minimum once a month. Detention ordered under immigration laws shall be terminated immediately when the conditions for carrying out the expulsion are secured, when it becomes evident that the expulsion cannot be executed, or after six months from the date of issue of the order. In contrast to the earlier regulation contained under Idtv., the maximum duration of temporary detention is reduced from one year to six months which complies with Section 14 subsection (4) of the final Committee recommendation No. COM(2005)391, according to which the duration of temporary detention shall not last longer than six months.

16. The duration of detention prior to expulsion shall be included in the maximum duration of the detention under immigration laws. If the detention under immigration laws is terminated because it becomes evident that the expulsion cannot be executed or because six months have already elapsed but the expulsion cannot be enforced yet, the immigration authority ordering the detention shall designate a compulsory place of confinement for the third‑country national concerned. Harmtv. also regulates detention prior to expulsion: The immigration authority may order the detention of the third‑country national prior to expulsion in order to secure the conclusion of pending immigration proceedings if his identity or the legal grounds of his residence is not conclusively established. Detention prior to expulsion shall be ordered by way of a formal decision and shall be carried out when communicated. Detention prior to expulsion may be ordered for a maximum duration of seventy‑two hours, and it may be extended by the court with jurisdiction over the place of detention until the third‑country national=s identity or the legal grounds of his residence is conclusively established, or for maximum thirty days.

17. Detention shall be terminated immediately when the grounds thereof cease to exist. AIn such proceedings a review role, more efficient than at present, must be ensured for the courts.@ Harmdtv. has introduced the institution of complaint. A third‑country national may file a complaint ‑ as a form of remedy, by reference to violation of law ‑ against an order for detention under immigration laws or prior to expulsion (henceforth together: detention) within seventy‑two hours from the date of issue of the order. The third‑country national placed under detention may file a complaint in the event of the immigration authority=s failure to comply with its obligations set out under Sections 60‑61 (duty to provide information and to carry out the detention according to the circumstances specified under the law). The complaint shall be determined by the court with jurisdiction over the place of detention. Depending on the court=s decision detention shall be terminated immediately, the omitted measure shall be taken or the infringement shall be terminated. The court shall decide on a complaint about a breach of law immediately or simultaneously with the extension of the detention beyond the seventy‑two‑hour time limit, whereas it shall decide on a complaint about failure to comply with the duties specified under Section 60‑61 within eight days.

18. The immigration authority shall request the local court to extend the detention beyond the seventy‑two‑hour time limit within twenty‑four hours from the issue of the detention order. The immigration authority shall support its request with reasons.

19. The court may grant an extension of detention under immigration laws for a maximum duration of thirty days at a time. Any additional thirty‑day extension of detention under immigration laws may be requested at the court by the immigration authority, where the court must receive the request within eight working days prior to the due date for extension. Thus, in contrast to the previous regulation ‑ according to which detention could be ordered for six months with monthly court review ‑ the court itself shall order detention for a maximum period of thirty days which can be extended in case extension is justified. The maximum duration of detention under immigration laws is six months ‑ in contrast to the one year under the previous regulation ‑ into which the duration of detention prior to expulsion shall be included.

20. With some exceptions, the common provisions of court procedures remained unaltered in Harmtv. The court shall proceed with a single judge presiding in proceedings concerning complaints and the extension of detention and shall adjudicate the case by way of an order. If a complaint or a motion for extension has been dismissed by the court another request or motion may not be submitted on the same grounds. In the court proceedings representation for the third‑country national may only be provided by a legal representative. The court shall appoint a representative ad litem for any third‑country national who does not understand the Hungarian language and is unable to contract the services of a legal representative of his own.

21. The rules governing personal hearing have, however, been altered. If the seventy‑two‑hour time limit is extended by the court the detainee shall be heard in person; in proceedings related to complaints and further extensions the detainee shall be heard in person upon his request. The hearing may be held at the place of detention and in the absence of the third‑country national=s legal representative. The court may dispense with a hearing if the third‑country national is unable to attend it due to medical treatment in an in‑patient medical institution, or if the complaint or the motion does not originate with a party entitled to do so. The third‑country national and the immigration authority shall present their evidence in writing or orally during the hearing. The persons present shall be given the opportunity to inspect the evidence presented. If the third‑country national or the immigration authority having made the motion are absent from the hearing but submitted their observations in writing the court shall present their observations.

22. The court=s decision shall be communicated to the third‑country national concerned and to the immigration authority. If the third‑country national has a legal representative or a representative ad litem, the decision shall be communicated to them as well. The court=s decision shall be pronounced and shall be served without delay. The court=s decision shall not be subject to further remedy. Court proceedings are exempt from charges.

23. In parallel with the modification of the immigration rules the law governing persons in need of international protection have also been altered. Act No. 80 of 2007 (henceforth: new Met.) replacing Act No. 139 of 1997 was drafted with a view to modernising asylum procedure on the basis of experience gained from the application of the law and to harmonising the regulation with the EU directives and other legal acts. The new Met. was adopted by the National Assembly on 25 June 2007 and it will enter into force on 1 January 2008. As a result of the new Met. asylum procedure became modified: at present it is divided into a preliminary examination proceedings phase and a proceedings on the merits phase. The first phase is aimed at identifying and excluding from the second phase those requests in respect of which the proceedings for surrender and take over specified under the Dublin II Regulation have to be instituted or which are inadmissible, thereby enabling the asylum authorities to focus their capacity on determining the merits of the requests. Requests for refugee status filed in the immigration proceedings are governed under Section 55 of the new Met.: if the asylum authority forwards the request to consideration on the merits and the requestor is placed in detention under immigration laws, upon the initiation of the asylum authority the immigration authority shall terminate the detention. The implementation rules related to this provision are being elaborated by the Government, upon authorization given in the Act.

24. The new rules shall be applicable from 1 January 2008, until that date the text of the 1997 Act shall remain in force. In the enactment of the implementation rules special attention is devoted to the recommendations of the Committee Against Torture.

Recommendation 12

25. In respect of this question it must be noted that according to Section 54 subsection (2) of the Constitution no one shall be subjected to torture or inhuman or degrading treatment. It means that the highest level protection is ensured for the field falling under the competence of CAT. However, in addition to the right against torture Section 59 subsection (1) of the Constitution also guarantees another fundamental right, the right to protection of personal data. Section 2 of the governing law, Act No 63 of 1992, defines data related to racial origin and affiliation to a national or ethnic minority as special data. It means that under the law in force such data can be processed only upon the prior written consent of the person concerned, or if processing of the data is based on international convention, or is provided for by an Act for the purpose of enforcing a fundamental right safeguarded under the Constitution, or in the interest of national security, crime prevention or criminal prosecution. Section 9 subsection (1) governing the transfer of personal data to a foreign state provides that personal data (including special data) shall ‑ irrespective of the data carrier or the form of data transfer ‑ be transmitted to a data handler in a third country if:

a) the person concerned has given express consent to it, or

b) such transfer is allowed under the law and proper level of protection is ensured in the third country in respect of the handling and processing of the personal data transmitted.

Recommendation 17

26. Para. 4 a) of the CAT Committee Report welcomes the fact that the National Assembly of Hungary adopted Act No 135 of 2005 on support to victims of crime and mitigation of damages by the state (henceforth: Ástv.) whereas it finds regrettable that under the Act no special compensation or support scheme is offered to victims of torture. It must be noted that in the application of Ást. any victim of a crime committed on the territory of the Republic of Hungary and any natural person who, as direct consequence of a crime, suffered injury ‑ especially bodily or mental harm, emotional shock or peculiar damages ‑ shall be regarded as a victim. Victims of crime are entitled to specific forms of support under the Act. As any person having suffered injury as a result of crime is regarded as a victim under the Act, support is based exclusively on the fact of the commission of the crime and no other circumstance (e.g. age) is taken into consideration. The Hungarian legislature started from the assumption that support for victims of crime should be based on the effect exerted by the specific crime on the victim concerned therefore victims seeking help from the victim support service are offered individualised support responding to the specific needs arisen in consequence of the crime. The law ensures that victims of crime shall receive the form of support they need. In addition to pecuniary compensation the state also offers legal advice, administration and rehabilitation programs for victims of crime.

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