UNITED
NATIONS |
|
CAT |
|
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
|
Distr.
GENERAL
CAT/C/SR.425
17 May 2000
Original: ENGLISH
|
COMMITTEE AGAINST TORTURE
Twenty-fourth session
SUMMARY RECORD OF THE FIRST PART (PUBLIC)* OF THE
425th MEETING
Held at the Palais des Nations, Geneva,
on Wednesday, 10 May 2000, at 3 p.m.
Chairman: Mr. BURNS
CONTENTS
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER
ARTICLE 19 OF THE CONVENTION (continued)
Third periodic report of Paraguay (continued)
Initial report of El Salvador (continued)
The meeting was called to order at 3 p.m.
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER
ARTICLE 19 OF THE CONVENTION (agenda item 7)
(continued)
Third periodic report of Paraguay (continued)
(CAT/C/49/Add.1)
Conclusions and recommendations of the Committee against
Torture (CAT/C/XXIV/Concl. 4)
At the
invitation of the Chairman, the members of the delegation of
Paraguay took places at the Committee table.
Mr. GONZÁLEZ
POBLETE (Country Rapporteur) read out the following concluding
observations and recommendations:
1. The Committee
considered the third periodic report of Paraguay (CAT/C/49/Add.1)
at its 418th, 421st and 425th meetings, held on 5, 8 and 10 May
2000, (CAT/C/SR.418, 421 and 425), and adopted the following
conclusions and recommendations.
A. Introduction
2. The third
periodic report of Paraguay, submitted within the time-limit
provided for in article 19 of the Convention, was not in conformity
with the general guidelines regarding form and contents adopted by
the Committee at its twentieth session.
3. During the
introduction of the report and while hearing and replying to the
comments and views of the members of the Committee, the
representatives of Paraguay provided comprehensive information
which made up for the report's shortcomings.
B. Positive aspects
4. The entry
into force of the new Penal Code and the gradual application of the
changes introduced by the new Code of Criminal Procedure, whose
enforcement should enable the State better to fulfil its
obligations under the Convention.
5. The
innovations introduced by the Penal Code, including the extension
of its application to the punishment of acts committed abroad
against rights which are universally protected under an
international treaty, a provision which is in keeping with
article 5 of the Convention.
6. The exclusion
of the probative value of any statement which is contrary to
procedural guarantees provided for in the Constitution and in
international law, as required by the new Code of Criminal
Procedure, thus giving national courts binding jurisdiction, in
accordance with article 15 of the Convention.
7. The
imposition of harsh sentences for human rights violations committed
during the dictatorship overthrown in 1989.
8. Programmes
for the training of judges and police officers under the new
criminal law system and the guarantees for which it provides.
C. Factors and difficulties impeding the
application of the Convention
9. The failure
to establish the Office of the Ombudsman eight years after the
entry into force of the 1992 Constitution, which provided for it,
and more than four years after the promulgation of the Organization
Act. The Committee hopes, as the representatives of Paraguay
said, that the legislative procedure for the appointment of the
Ombudsman will be completed soon and that the Office of the
Ombudsman will be given all the necessary resources to perform its
functions throughout the national territory.
10. The lack of programmes
for redress and the rehabilitation of the physical and mental
health of the victims of torture, as required by article 14 of
the Convention, and the legal rules which require them to file a
claim for redress and compensation against the property and assets
of their torturers; only if the victims are determined to be
insolvent may they file their claim against the State. The
Committee did not receive information on any case in which a victim
of torture obtained the right to redress.
D. Principal subjects of concern
11. In the legislation in
force, torture is not defined as an offence in accordance with
article 1 of the Convention. The offence provided for in
the new Penal Code does not include basic elements of the offence
described in the Convention.
12. The information the
Committee received from reliable sources that the practice of
torture and cruel, inhuman or degrading treatment or punishment
continues in police stations and in Armed Forces prisons and
premises, where soldiers performing compulsory military service are
subjected to frequent physical ill‑treatment.
E. Recommendations
13. The prompt appointment
of the Ombudsman and the provision of sufficient resources to
enable his Office to establish its presence throughout the national
territory.
14. The inclusion in the
Penal Code of provisions defining torture as a crime in accordance
with article 1 of the Convention.
15. The legal regulation of
the right of victims of torture to redress and fair and adequate
compensation at the expense of the State, which must then institute
proceedings against the guilty parties in order to recover what it
has had to pay out for this purpose. The State should also
provide the necessary treatment for the rehabilitation of
victims.
16. The Committee welcomes
with satisfaction the announcement by the representatives of
Paraguay that a ratification bill will soon be submitted
recognizing the competence referred to in articles 21 and 22
of the Convention.
Mr. RAMÍREZ
BOETTNER (Paraguay) thanked the members of the Committee for
their open-minded approach and the frankness of their
comments. Although his delegation was fully aware that
Paraguay's third periodic report was not as complete as the
Committee's general guidelines required, it would like the
Committee to note the major difficulties his Government had faced
in attempting to reflect aspects of the human rights situation in
Paraguay. During a troubled period in which attempts had been
made to thwart the people's determination to consolidate democracy,
necessitating urgent political solutions, many of the agencies
involved had simply had no time to prepare information for such
reports. Furthermore, as a landlocked country Paraguay stood
somewhat apart from the rest of the world, so that even the
genocide which had been committed had gone largely unremarked by
the international community.
Among the positive
aspects, he welcomed the Committee's citing of the new Penal Code
and Code of Criminal Procedure: immense efforts had been made
to bring Paraguay's penal system into line with international
standards. He took note with approval of the Committee's
recommendations.
Turning to the
subjects of concern, he was pleased to announce that in the very
near future elections would be held to appoint Paraguay's first
Ombudsman. In the troubled period of upheaval following the
end of dictatorship, that represented a major triumph for
Paraguay's political parties. The other concerns listed,
namely the absence of a full definition of torture in domestic
legislation consistent with article 1 of the Convention, the
continuing existence of torture and cruel, inhuman and degrading
treatment in police stations, prisons and the armed forces, and the
absence of rehabilitation programmes for torture victims, were
matters for further consideration. Congress would have the
last say in approving the relevant legislation, but in the meantime
he asked the Committee to bear in mind that under Paraguay's
Constitution international treaties took precedence over domestic
law.
Though Paraguay had
already taken major steps to establish universal respect for human
rights, it was fully aware that its future efforts would require
higher levels of education and greater resources. In that
regard, he emphasized that developed countries, by blocking markets
and subsidizing their own exports, often denied countries such as
Paraguay the opportunity to trade competitively and thus develop
their own resources for such undertakings.
The delegation of
Paraguay withdrew.
The meeting was suspended at 3.15 p.m. and resumed
at 3.30 p.m.
Initial report of El Salvador (continued)
(CAT/C/37/Add.4)
At the invitation
of the Chairman, the members of the delegation of El Salvador took
places at the Committee table.
Mr. LAGOS
PIZZATI (El Salvador) thanked the Committee for its
appreciation of the format of his country's initial report, which
was a tribute to the many bodies that had contributed to its
preparation. Likewise, the Committee's recognition of El
Salvador's efforts to give effect to the provisions of the
Convention indicated the progress El Salvador had made in recent
years in asserting and protecting human rights and in strengthening
its democratic institutions. Above all, his delegation was
grateful for the indications the Committee had provided of the
areas in which changes to legislation and institutional practice
might bring improvements. The thorough scrutiny of the
initial report and of El Salvador's national legislation carried
out by the Rapporteur and assistant Rapporteur, together with their
perceptive comments, would greatly assist his authorities' efforts
to fully implement their commitments under the Convention. No
less welcome was the guidance several Committee members had
provided on making future reports more complete and
accessible.
He was afraid it
would not be possible at the present stage to respond to requests
for statistical information, which it would take some time to
compile in collaboration with the agencies concerned but which
would be transmitted to the Committee in writing as soon as
possible.
With regard to the
Rapporteur's comments on El Salvador's failure to make declarations
under articles 21 and 22 of the Convention, the information
available to his delegation indicated that the omission was not
deliberate. In the light of the Rapporteur's comments, the
delegation would recommend that the appropriate authorities should
examine the question of making the declarations. His
delegation also accepted the Rapporteur's analysis and arguments
with regard to the conflicts that might arise when judges in El
Salvador attempted to apply the definition of torture contained in
domestic legislation to crimes covered by the Convention.
Although it would be possible to demonstrate how the risk of such
conflict could be reduced in certain cases through strict
application of the rules of judicial interpretation - and El
Salvador had certainly made significant progress in seeking to
establish an adequate definition of torture in its legislation -
his delegation accepted that the current definition left room for
improvement. Accordingly, it would transmit the Committee's
recommendations on the matter to the relevant authorities, with a
view to amending the legislation so as to give full expression to
the concept of torture contained in article 1 of the
Convention.
In response to the
Committee's comments on the absence of specific legislation dealing
with refoulement in connection with article 3 of the Convention, he
agreed that the inclusion of specific provisions would greatly
facilitate the work of the administrative authorities in the areas
concerned, although it regarded the current regulations and
procedures for implementing article 3 as adequate. Moreover,
since draft legislation on migration, refugees and the status of
foreigners was currently being prepared, his delegation considered
that it could feasibly be made to incorporate clear provisions
expressly prohibiting the expulsion or return of any person to a
State in which he might run the risk of being subjected to
torture. An example of such legislation was the draft law on
the status of refugees, soon to be transmitted to the Legislative
Assembly for consideration. Chapter IX, article 47,
entitled "On non‑refoulement", read:
"A refugee may not be expelled or returned to another country,
be it or not his country of origin, in which his right to life,
personal integrity, freedom and security are at risk of violation
on grounds of race or ethnic origin, gender, religion or creed,
nationality, membership of a specific social group, or his
political opinions, or because of generalized violence, foreign
aggression, internal conflict, mass human rights violations or
other disturbances of public order."
Given the amount of other legislation on such matters currently
being prepared, the time was ripe for incorporating the Committee's
recommendations on article 3 of the Convention.
Turning to the
Committee's comments on the statistics kept by the Office of the
Procurator for the Protection of Human Rights and on deficiencies
in the clarification of human rights‑related crimes, he said
that the Procurator investigated cases in response to complaints
from members of the public. The law governing the
Procurator's Office, which had been in force since 1992, classified
such crimes as follows: (a) torture; (b) cruel, inhuman or
degrading treatment or punishment; (c) maltreatment; (d)
disproportionate use of force; (e) inhuman treatment of
prisoners. One of the results of an ongoing UNPD technical
assistance project aimed at strengthening the functions of the
Procurator for the Defence of Human Rights was a research protocol
intended to establish a new classification of the human rights for
whose protection the Procurator was responsible. Thus records
of human rights violations, graded by degree of seriousness, which
were kept by the Procurator's Office, showed that, since the 1992
peace accords, cases of torture had been diminishing rather than
increasing in frequency.
The ending of armed
conflict and the progress made in the areas of democratization and
human rights since 1992 made it inappropriate to speak currently of
"death squadrons" supposedly engaged in "social cleansing".
On the other hand, a criminal reaction to the wave of delinquency
beginning in 1996 had given rise to the self-styled "Black Shadow"
group which, particularly in the east of the country, had carried
out murders of delinquents and gang members. The civil police
had succeeded in smashing the group and in capturing its
members. Apart from the Black Shadow, there was no evidence
of a resurgence of other groups carrying out vigilante
activities.
As to whether the
public prosecutor's office was the only body entitled to request a
detention order, according to the Code of Criminal Procedure that
was indeed the case.
Replying to questions raised by Mr. Silva Henriques
Gaspar, he said there were ongoing mechanisms to evaluate training
programmes for law enforcement officers. It was too soon,
however, to assess the overall effectiveness of such
programmes. Human rights training programmes for the prison
system were conducted by the Prison Academy and by the regional and
national Criminology Councils; their effectiveness was also
monitored by those institutions. In addition, human rights
awareness was included in retraining and promotion courses
conducted by the National Public Security Academy.
The Inspector-General of the National Civil Police
also conducted annual human rights awareness evaluations of police
officers. The annual report described the means used to
obtain such evaluations, presented the findings, and set forth
general conclusions and recommendations for the National Public
Security Academy and the National Civil Police. The purpose
of the evaluation was to improve future performance. Some
courses were conducted jointly by the National Public Security
Academy and the Police Training Department.
A number of training courses were also administered
by the European Union and the United Nations High Commissioner for
Human Rights (UNHCHR), among other international bodies. The
goals of the human rights technical cooperation programme conducted
by UNHCHR included consolidating the public security model
contained in Salvadoran law, and promoting the application of
international human rights standards among law enforcement
personnel. That programme involved the Ministry of Public
Security, the National Civil Police, the National Public Security
Academy, the Inspector-General of the National Civil Police, the
Ministry of Justice, the Director-General of Prisons, and the
Prison Academy.
The 1999 report on the impact of the technical
cooperation programme on human rights in El Salvador noted that
human rights training courses had had a positive effect on
personnel, and had been especially useful in cultivating an
understanding of women's rights. In general, the programme
had had a significant impact on all the institutions
involved. The number of requests received by the technical
training programme for new training courses and for consultation
testified to its importance.
Mr. Silva Henriques Gaspar had also asked whether
the prison supervision courts could receive complaints from
prisoners, where such complaints were filed, how they were handled,
whether they were investigated, and whether disciplinary measures
were applied. The prison supervision courts, recently-created
judicial mechanisms, were among the most innovative instruments of
that type in the world. The judges of those courts, who were
fully independent of the Director-General of Prisons, were
responsible for monitoring and ensuring strict compliance with the
norms governing the enforcement of sentences and security measures,
and with the rights of all persons deprived of their
liberty.
There were currently 10 such courts, situated in
the major cities, with jurisdiction over all places of
detention. Judges were empowered to conduct periodic visits
to prison facilities, and to interview prisoners who so
requested. Oral or written complaints could be submitted by a
prisoner or by any individual or group on his behalf. The
judges were obliged to examine and resolve the complaint at an oral
hearing attended by all parties, within 72 hours of its
receipt. If the complaint was rejected, it could be
resubmitted to the prison supervision appeal court - also a newly
created mechanism.
If it was determined that a prisoner's rights had
been violated, or that he had been subjected to an illegal measure
or punishment, the judge ordered reinstatement of the complainant
in his rights, notifying the Director-General of Prisons or the
Ministry of the Interior, for appropriate action and disciplinary
admonishment of the perpetrator of the violation.
Mr. MEJÍA TRABANINO (El Salvador) said
that the creation of the Office of the Inspector-General of the
National Civil Police had resulted from the 1992 peace agreements,
and its role was to monitor and regulate the operational and
administrative activities of the National Civil Police in respect
of human rights. The Inspector-General was appointed by the
Minister of Public Security, and must be approved by the
Attorney-General and the Procurator for the Protection of Human
Rights. The fact that he must be approved by two officials
elected by the Legislative Assembly ensured his independence and
legitimacy. The Inspector-General, who had a staff to assist
him, was responsible for ensuring that police operations were
professional
and technically up-to-date, that police administration was
efficient and honest, and that police behaviour was correct, decent
and respectful of human rights. His staff paid unannounced
visits to police stations, in particular during the investigation
of a human rights violation.
The Government had taken due note of the question
raised about the outcome of torture complaints. It would
consult the competent national bodies and would forward the
requested information to the Committee at a later date.
As to whether the public were provided with
sufficient and clear information on the right to submit a
complaint, the Office of the Procurator for the Protection of Human
Rights, the Office of the Attorney-General of the Republic and the
National Department of the Family were the principal agencies
responsible for disseminating human rights information to the
public. In addition, the technical cooperation programme of
UNHCHR had published pocket-size bulletins on human rights
standards, international humanitarian standards, the Convention on
the Rights of the Child, national and international laws concerning
violence and discrimination against women, the Universal
Declaration of Human Rights, national and international prison
standards, national and international standards regarding young
offenders, and international human rights standards regarding the
application of laws. It had also produced educational
pamphlets on rights and duties of individuals, children's rights
and duties, women's rights, the principal human rights instruments
in force in El Salvador, and the rights and obligations of persons
deprived of their liberty and of prison staff. The delegation
had brought copies for Committee members to consult.
Pamphlets on the rights and obligations of persons
deprived of their liberty were prominently displayed in all places
of detention, and clearly explained how to consult the prison
supervision judges.
Turning to questions raised by Mr. Rasmussen, he
said that the National Civil Police had medical staff which
provided treatment for detainees when necessary, as for example
when a detainee violently resisted arrest. If a detainee
required surgical attention, he was sent to a hospital. When
a detainee was transferred to facilities of the National Civil
Police, he was examined to determine whether or not he had been
injured. If, when he was brought before a judge, which must
be done within 72 hours, he stated that he had been beaten, he was
examined within the following 24 hours by a forensic medical
specialist, whose findings formed the basis for judicial and
administrative proceedings to determine whether he had been
subjected to torture or cruel or arbitrary acts. If a
detainee showed injuries or bruises, he received immediate medical
attention.
Medical reports were filed with other medical
documents; reports drawn up by the forensic medical specialist were
handled in accordance with law.
When a detainee arrived at a prison with minor
injuries, he was treated by the prison clinic, and the local police
disciplinary board was so informed, in accordance with the
provisions of the Prisons Act. If, however, he was seriously
injured, he was taken to the nearest hospital and the
Attorney-General was informed so that an appropriate investigation
could be conducted.
With regard to the question raised about prison
capacity, the relevant data would be forwarded to the Committee
promptly. The Ilobasco prison had a capacity of 250
prisoners, with an admission and a temporary detention
facility.
There was a register of cases of inter-prisoner and
other violence in all prisons, and it was readily accessible.
Replying to questions raised by Ms. Gaer, he said
that although the National Civil Police had its own organizational
structure, and was the only institution providing security services
throughout the country, it was supported by local police forces,
which secured such public properties as markets, parks and public
squares. There were also private security companies serving
businesses and homes on a contractual basis. The Salvadoran
armed forces carried out police duties only in exceptional
circumstances, in accordance with the Constitution and subject to
authorization by the President. Recently, the armed forces
had begun, in a limited way, to assist the National Civil Police in
combating the drug traffic and organized crime: units of one
or two police officers accompanied by members of the military were
carrying out rural, maritime and air operations for that
purpose.
The recruitment and hiring of police officers was
supervised by the National Public Security Academy, and selection
and promotion were carried out in accordance with laws governing
the National Civil Police. After an applicant had completed
an academic course of nine months for beginners and one year for
higher ranks, he appeared before an admissions and promotion court,
which checked his criminal and behaviour records and conducted
other tests. An individual who had been suspended with or
without pay or dismissed or suspended from his post could not be
hired by the National Civil Police.
The Government would forward in due course the
information requested regarding persons detained as a result of the
traffic in immigrants.
In accordance with the Code of Criminal Procedure,
an accused person had the right to be immediately informed in a
comprehensible manner of the reasons for his detention and advised
what authority had arrested him; to choose what person or entity
should be advised at once of his arrest; to be assisted by a lawyer
of his choice or by a public defender; and to be brought within the
legal time limit before a judge or another official authorized
under the law to carry out judicial duties; to refuse to make a
statement; not to be subjected to actions that infringed on his
dignity; not to be subjected to methods or techniques that
interfered with his free will; not to be subjected to measures that
inhibited his necessary freedom of movement at the place and during
the time of the trial, except in cases where special supervisory
measures were determined to be necessary by the judge or
prosecutor; and, if he did not speak Spanish, to be assisted by an
interpreter.
The accused must be immediately informed of those
rights in a comprehensible manner by prosecutors, judges or police,
who must record that they had done so. That measure was the
exclusive responsibility of the prosecutor directing the
investigation or of the judge, as the case might be.
The Code of Criminal Procedure also provided that
police officers or agents must, when making arrests, strictly
conform to certain standards of conduct. They must not use
force, except when strictly necessary and only as needed to make
the arrest; not use arms, except if the accused resisted in a way
that threatened the life or physical integrity of persons or if so
required to prevent the commission of another crime; not inflict,
encourage or tolerate any act of torture or other cruel, inhuman or
degrading treatment or punishment, during arrest or detention; and
not display detainees publicly in a way that infringed on their
dignity. In addition, at the time of arrest they must
identify themselves as police officers and verify the identity of
the person or persons they were arresting, except in the case of a
person caught in flagrante delicto. At the time
of the arrest, they must inform the person of all of his rights;
immediately inform the family or friends of the accused of the
place of detention; and enter the place, date, and hour of the
detention in a permanent register. In addition, they must
comply with standards of conduct prescribed in other laws.
As to whether cases of sexual violence in prison
were monitored, whether any person had been convicted of such a
crime, and whether there were any awareness programmes for handling
women victims, the Government would supply answers at a later
date.
Finally, the Salvadoran Government would also
provide a written text of its replies, including any additional
information it deemed useful.
The delegation of El Salvador
withdrew.
The public part of the meeting rose at 4.25
p.m.