"Conclusions and recommendations of the Committee against Torture
5. The Committee notes with pleasure the response of the Ambassador that 'heads of cells and trusties' in prisons, as alleged by some non-governmental organizations do not exist in China.
C. Factors and difficulties impeding the application of the provisions of the Convention
3. Mr. WU Jianmin (China) said that he had listened carefully to the conclusions of the Committee and regretted that, in the section entitled "Subjects of concern", it had relied on information provided by non-governmental organizations (NGOs). Some NGOs were biased, since they drew their information from so-called "dissidents" who made their living out of accusing and blaming China. If the conclusions of the Committee were based on misinformation, they could not be considered objective. He would convey the Committee's recommendations to his Government.
4. The CHAIRMAN, having noted the remarks of the representative of China said that the conclusions of the Committee drew attention to favourable developments in China as well as to information and allegations it had received from non-governmental sources. He thanked the members of the delegation of China for the spirit of frank cooperation in which the dialogue had been conducted.
5. The delegation of China withdrew.
Initial report of Croatia (continued) (CAT/C/16/Add.6; HRI/CORE/1/Add.32)
6. At the invitation of the Chairman, the delegation of Croatia took places at the Committee table.
7. Mr. KRAPAC (Croatia) said that his Government was well aware of the distinction between law and practice. The report provided a fair account of how the terms of the Convention were reflected in Croatian legislation, while at the same time attempting to describe the difficulties that his country had experienced in achieving their implementation.
8. There were three considerations that must be borne in mind: first of all, as in all former socialist States that had undergone decades of authoritarian rule, old habits ran deep and the protection of individual rights often ranked lower than other social measures. Secondly, Croatia had experienced greater problems in its transition to democracy than any other former socialist State, because of the war that had been fought on its soil. That war had brought about profound changes in the public administration: many of Croatia's officials, who were young and newly employed, had to be educated in their duties and responsibilities toward citizens. Thirdly, apart from the war situation, there were no signs that torture - to cite the worst form of ill-treatment - was systematically practised in Croatia. As his Government well understood, the protection of human rights required not only legislation but adherence by its citizens to the rule of law.
9. Croatian law did not, in fact, identify torture per se as a crime. It did, however, recognize as crimes all of the aspects of torture covered by the Convention. For example, aggravated forms of murder, which carried far more severe penalties than simple murder, encompassed aspects of the definition of torture set out in the Convention. He agreed that serious consideration should be given to enacting a crime of torture per se, and would put the suggestion to the committee that was currently in the process of rewriting Croatian criminal law.
10. In January 1996, the President of Croatia had announced that three presidential decrees would be repealed during the current year; it thus appeared that presidential decrees would soon cease to be an issue. In any event, his delegation would provide further information on the matter to the Committee at a later stage.
11. A provision of the Code of Criminal Procedure stipulated that a person whose legal rights and freedoms had been breached could himself institute proceedings against the alleged perpetrator, with full prosecutorial powers, including the right to be assisted by counsel (in certain cases at the public expense). He must first, however, submit his complaint to the Ministry of Justice, and attempt to settle out of court. The awarding of compensation was mainly within the purview of the courts.
12. Croatia had adopted a system of administrative courts modelled on those of Austria and Germany. The relevant law contained a special provision which, in some ways, resembled habeas corpus: if an individual considered that an action by the executive had violated his rights, he could complain to an administrative court, but only after the executive had rendered a final decision and if no other judicial remedy existed.
13. The defence of superior orders as a justification for torture did not exist. Under the by-laws that regulated proceedings, any police or army officer receiving an order he thought unconstitutional must request that the order be given in writing. A subordinate who subsequently obeyed such a written order was held criminally responsible for his act.
14. Under the Code of Criminal Procedure, a person could be arrested only on well-founded suspicion of having committed an offence. In addition, grounds for detention such as risk to life, obliteration of evidence or risk of recidivism must exist. The arrested person must, in every case, be brought promptly before an investigating judge, who informed the suspect of the charges against him and his right to a defence counsel. The findings of the judge's formal interrogation were acceptable as evidence but those of informal police inquiries were not. Thus no evidence obtained through police ill-treatment or torture could be used as evidence. The victim could report such behaviour to the public prosecutor, who was obliged to prosecute if there was a well-founded suspicion of police wrongdoing.
15. If the public prosecutor did not act, the victim had the option of initiating an action. Such actions, which tarnished the image of the public prosecutor concerned, were initiated in about 2 per cent of all cases.
16. Croatia was the only State of the former Yugoslavia to have extradited one of its citizens to appear before the International Criminal Tribunal for the Former Yugoslavia in The Hague. The Croatian Parliament had just passed a constitutional act on cooperation by the Republic of Croatia with the Tribunal.
17. Mr. SO_ANEC (Croatia), replying to questions by Mr. Pikis and Mr. Regmi, said that his Government had not had access to the United Nations Protected Areas (UNPAs) until August 1995 and could not be held responsible for events in those territories between 1991 and August 1995. During the liberation of the territories in August 1995, the police force and army units had respected international humanitarian law. The Government deeply regretted the criminal acts committed after the operation by a number of individuals or groups outside the control of the authorities. The regular and military courts were currently trying 1,005 persons (868 Croats, 39 Serbs and 98 members of other ethnic groups) for such acts.
18. There had been no further cases of arson since October 1995 and the human rights situation in general had been improving, as evidenced by the Secretary-General's report on Croatia to the Security Council (S/1996/109) of 14 February 1996.
19. Mr. NAD (Croatia), replying to a question by Mrs. Iliopoulos-Strangas, said that Croatia had accommodated over 380,000 refugees in the last five years. When refugees from Bosnia and Herzegovina accommodated in United Nations Protected Areas left to receive medical treatment or for other reasons, the Government had been unable to admit permanently the large numbers involved and 1,149 persons had had to be sent back to the UNPA areas.
20. Mr. LOVRIC (Croatia) said that military courts, which had been set up in Croatia in December 1991 by a presidential decree, came under the supervision of the Ministry of Justice and the judges were not military personnel but experienced members of the judiciary. They were thus not military courts in the traditional sense of the term and appeals lay to the regular civil courts. The Government had recently taken steps to abolish the military courts.
21. Mr. NAD (Croatia) said that tear gas had been used by the police on three occasions to restore law and order at football matches. Nobody had suffered bodily injuries.
22. Mr. VEIC (Croatia) said that the judges of the disciplinary court that investigated police conduct in Croatia were appointed by the Minister of Internal Affairs. Convicted police officers could appeal to a superior court. A police code of ethics was being prepared and would help to enhance awareness of human rights.
23. Mr. HENISBERG (Croatia) said that the provision of treatment for victims of torture was a key health-care problem in Croatia. Over 6,600 formerly detained persons and a considerable number of displaced persons and refugees had suffered physical or mental injuries of varying degrees of severity.
24. Like other health-care personnel, medical personnel working in prisons were required to respect medical ethics. Prisoners requiring special treatment were referred to the appropriate specialized institutions, where they were treated without discrimination. They included persons with mental disorders acquired under torture during the period of Serb aggression, who were transferred to psychiatric institutions.
25. Special training for physicians in caring for torture victims was provided mainly at the undergraduate level. The disaster medicine course covered psychosocial and psychiatric support for victims of torture and rehabilitation. Medical students also received training in human rights. Financial and other assistance from the international community would be welcome to help enhance such activities and establish special rehabilitation centres for victims of torture.
26. Ms. MEŠTROVIC (Croatia) said, in answer to a question by Mr. Regmi, that the Constitutional Court had jurisdiction over the activities and programmes of political parties. A party could be banned if it threatened by violent means the constitutional order or territorial integrity of Croatia. No party had so far been banned. About 60 parties were registered with the Ministry of Public Administration and only one application for registration had been refused. That case was currently before the Administrative Court.
27. Mr. KRAPAC (Croatia) said he agreed with Mr. Sorensen that an arrested person had four fundamental rights. Such a person had to be brought promptly before the investigating judge whose duty it was to inform the person of those rights. The Code of Criminal Procedure provided that an arrested person could request that his or her relatives or friends be informed of the detention. The relevant provision did not explicitly say that persons in custody must have access to a telephone, but that was implicit in the provision.
28. The court would appoint a defence counsel ex officio, if someone was involved in a complicated case or serious crime and was unable to pay for a lawyer and, in other cases an application could be made to the court for the appointment of counsel. In practice, the courts were normally fairly receptive to such requests.
29. The three-day deadline for submitting a complaint of ill-treatment to the public prosecutor could be extended if the person concerned had been badly injured and was in hospital, for example. If a complaint was lodged, the public prosecutor was obliged to initiate action.
30. As far as the exclusion of evidence was concerned, he had already pointed out that a statement extorted by torture was inadmissible as evidence in a trial and had to be removed from the case file. That was an effective way of ensuring that the judges could not be influenced by information obtained through torture.
31. The death penalty had been abolished in Croatia in 1989 and had not been reinstated, even during the war. Moreover, Croatia had adhered to the Optional Protocol.
32. The eight or nine restrictions on criminal proceedings introduced by presidential decree did not relate to the subject-matter of concern to the Committee and were designed merely to expedite fully fledged proceedings and to widen judges' competence in criminal cases. The fundamental right of defence was not restricted in summary proceedings. The only difference was that no extensive judicial investigation was conducted before the trial. At the appeal stage, the parties no longer had to appear in court and the court could rule on the case in camera.
33. The principle of aut dedere, aut punire, or rather aut dedere, aut judicare, did exist both in the extradition agreements Croatia had signed and in Croatian domestic law.
34. Mr. NAD (Croatia) said that, in 1995, 62,000 crimes had been recorded, including 213 murders. The solution rate for murders was 94 per cent. Some cases were still being investigated and the files would not be closed until the guilty parties had been captured. Croatia was open to visits from international organizations and was grateful for international assistance in apprehending war criminals.
35. Mr. YAKOVLEV asked whether it was true that the disciplinary court was part of the hierarchical structure of the Ministry of Internal Affairs and whether a person could lodge a complaint of unlawful arrest with the investigating judge.
36. Mr. VEIC (Croatia) said that the disciplinary court and criminal court were separate entities. If a police officer exceeded his authority, he had to answer to a disciplinary court, but his criminal liability would be the subject of separate proceedings before a criminal court. It was thus possible for a disciplinary court to dismiss a police officer who would subsequently have to be tried by a criminal court. Although the disciplinary court was a police body, its judges were appointed by the Minister of the Interior and were trained lawyers.
37. Mr. KRAPAC (Croatia) said that a victim of police ill-treatment could lodge a complaint with the public prosecutor or investigating judge. If the investigating judge received such an allegation, he was obliged to have the victim examined by a doctor and to send a report to the public prosecutor who had to decide whether there were grounds for suspecting that a criminal offence had been committed.
38. Mrs. ILIOPOULOS-STRANGAS said that she would like to know whether Croatia had specific legislation applicable to aliens and, if so, whether such legislation was in keeping with article 3 of the Convention. She asked whether the cases of persons who had been expelled had been dealt with individually and whether the requirements of article 3 had been met.
39. Mr. NAD (Croatia) said that Croatia did have an aliens law, according to which the case of every alien who was unlawfully present in Croatian territory, or who broke the law, was heard and decided individually by the relevant court.
40. Mr. CAMARA asked whether the offence of incitement existed in Croatian law.
41. Mr. KRAPAC (Croatia) said that the Penal Code provided that any person guilty of incitement to commit an offence was punishable as if he had committed it himself. Similarly anyone who deliberately aided and abetted the commission of an offence was also punishable as if he himself had committed it.
42. Mr. BURNS (Alternate Country Rapporteur) read out the conclusions and recommendations of the Committee on the initial report of Croatia:
43. Mr. NAD (Croatia) said he hoped that the members of the Committee would understand that Croatia was a young country and was currently in the process of drafting legislation to regulate all the matters that had been mentioned.
44. His delegation fully accepted the Committee's conclusions and recommendations, and replies to them would be included in the second periodic report of Croatia.
45. The CHAIRMAN, having thanked the representative of Croatia for his statement, said that the Committee's role was not to accuse or reprimand the States parties but to help ensure that the Convention was implemented. It was essential that all the obligations assumed under the Convention were honoured.