CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION (agenda item 4) (continued)
Second periodic report of Poland (continued)(CAT/C/25/Add.9); conclusions and recommendations of the Committee
1. The Polish delegation resumed their seats at the Committee table.
2. The CHAIRMAN (Country Rapporteur) read out the draft conclusions and recommendations of the Committee on the second periodic report of Poland. The text read:
16. Finally, the Committee considers that the likelihood of commission of acts of torture or of other cruel, inhuman or degrading treatment would be limited if, under the Code of Penal Procedure, suspects had easy access to a lawyer, a doctor or a family member during the 48 hours of police custody."
3. Mr. DZIALUK (Poland) thanked the members of the Committee for their warm welcome and their valuable recommendations.
4. The Polish delegation withdrew.
Initial report of Georgia (continued) (CAT/C/28/Add.1)
5. The Georgian delegation resumed its place at the Committee table.
6. Mr. KAVSADZE (Georgia) began by recalling that his country was fully engaged in a transition to the establishment of a democratic State, but recognized that, of course, no circumstances could justify violations of human rights. In reply to questions on the subject of members of the judiciary, he stated that under article 80 of the Constitution a judge must be a Georgian citizen over 30 years of age who had completed higher education and could prove at least five years' experience in a specialist subject. Judges were appointed for 10-year terms. The role of the Supreme Court was to ensure that justice was meted out in strict accordance with the law in all the ordinary courts. The President and members of the Supreme Court were appointed by the legislature. Appeals were examined by the Court of Cassation.
7. Separation of powers was ensured in the classical manner. Parliament was the supreme legislative body. As the Senate was currently not functioning, Parliament was dealing with all the important legislative matters and supervising practice in legislative matters. Executive power was exercised by the President and the Government. The judicial power, in accordance with the express provisions of the Constitution, enjoyed an independence which was deemed essential.
8. It had been asked whether there existed a possibility of appeal against a death sentence. At present there was a major gap in the law on that subject. Under the previous regime appeals against death sentences had been referred to the Supreme Court of the Soviet Union. Under the new Georgian Constitution a death sentence could only be pronounced by the Supreme Court of Georgia; since that court was the supreme judicial authority, no appeal was possible. The only course open to counsel for the condemned person was to make an application to the President of the Supreme Court. That shortcoming would be remedied in the course of the reform of the judiciary. The power to pardon a condemned person was the prerogative of the Head of State. The latter had established by decree a board of pardons made up of respected and eminent persons such as teachers, researchers, etc. The current president of the board was an academician who was a professor at Tbilisi University. Its membership also included members of Parliament who were specialists in human rights or penitentiary matters. He himself had been a member of the board before he joined the Committee for Human Rights and Relations between Peoples. The board held its hearings in public and made recommendations to the Head of State, with whom the final decision rested. No condemned person could be executed without prior examination of his case by the Commission, even if he did not seek a pardon. No executions had taken place during the last three years, and a draft bill on the whole question was under consideration.
9. He was not in a position to state the exact number of complaints lodged concerning acts of torture. The Committee for Human Rights and Relations between Peoples had begun to examine the problem in 1994 because complaints were accumulating and the President of Georgia had issued a decree to remedy the situation and improve the protection of human rights. Since 1992 the Committee had received between 120 and 130 complaints relating to cases of torture and other violations. It was to be noted that torture was designated as a crime in the Criminal Code; complaints relating to torture had to be examined by the bodies responsible for criminal investigations. At the time when Georgia was in a state of chaos, the investigating function was assigned to the Committee for Human Rights and Relations between Peoples; on completing its investigations it was to refer the cases to the bodies empowered to initiate criminal proceedings. The study of those cases was extremely complex, and the eradication of all the faults of a penitentiary system inherited from the totalitarian regime of the Soviet era was an extremely difficult task which could only be carried out by means of concrete legislative measures. For the performance of its task the Committee for Human Rights and Relations between Peoples had published the telephone number of its President, and an office had been opened to enable concrete cases of violations of human rights to be reported at any time and for preliminary investigations to be conducted immediately. But the task of the Committee was extremely complex at a time when the country was emerging from a period of turmoil and anarchy and when criminality had to be countered simultaneously with the protection of human rights.
10. It had been asked whether the standards laid down in the Convention had been incorporated in Georgia's domestic law. Parliament had begun that task and was currently examining the draft civil code which had been submitted to it. That draft, with its many different aspects, had been prepared with the assistance of legal specialists from different countries and also with the aid of the European Union and, for certain sections, the United Nations Centre for Human Rights. A criminal code and a code of criminal procedure were also in course of preparation, and the task of preparing the reform of the judiciary had been assigned to a government commission whose Chairman was the President of the Committee for Human Rights and Relations between Peoples; the Procurator-General and the Minister of Justice were also members. The basic legislative instrument in Georgia was its Constitution; it was followed, in order of precedence, by the provisions of treaties and agreements entered into by Georgia and by domestic legislation. The Georgian Constitution stipulated that all national laws and legislative instruments must be in conformity, first, with the Constitution, and secondly, with generally recognized legal principles and international law. International instruments which are not at variance with the Constitution took precedence over Georgian legislation. The Constitution expressly reaffirmed that human rights and fundamental freedoms were inalienable values of humankind and must be respected by the Government and the people of Georgia, who were required not to contravene them.
11. The Committee for Human Rights and Relations between Peoples had been established in 1992 by President Edward Shevarnadze on his return to the country, which was then passing through a period of such difficulty that some people thought the measure laughable - an empty gesture in the light of the prevailing conditions. But the President of the Committee was invested with extremely wide powers and the rank of Deputy Prime Minister (following a widespread practice in the Soviet Union, where some committees enjoyed greater powers than ministers). Initially the Committee for Human Rights and Relations between Peoples had been subject to the general principles of Georgian legislation; but subsequently it had been given a specific legal framework under a Presidential Decree issued in October 1994. Its President had been elected by Parliament by simple majority on the nomination of the Head of State. It had to be emphasized that from the outset the Committee had been thought of as a provisional body with three tasks: to ensure respect of human rights generally; to examine specific complaints brought before it; and, lastly, to draw up proposals for the establishment of a national body for the protection of human rights on the basis of international practice and Georgia's experience in that field.
12. On the subject of training and education, further information had been requested on the draft Presidential Decree on urgent measures for the halting of torture in places of detention. That important text had not yet been signed, but, as was permitted by the Constitution, certain elements of it were already being implemented. A substantial amount of work had already been done on the dissemination of the text of the Convention against Torture.
13. It had been asked whether the Committee for Human Rights and Relations between Peoples could intervene in cases before the courts if complaints concerning torture were advanced. As a lawyer, he was categorically opposed to any interference of that kind, whatever court was hearing the case. However, in view of Georgia's current situation and realizing that the penitentiary system in that country was far from perfect, the Committee, which considered itself competent in matters relating to the treatment of detainees, sometimes came to the assistance of bodies dealing with cases of that kind. Furthermore, in the report it had published in 1995 on the situation in Georgia concerning human rights, the Committee, although it had no remit to do so, had studied the proceedings of the Supreme Court, raising a number of hitherto unanswered questions concerning serious violations of human rights, and in particular, cases of torture. The Committee had drawn the attention of the Supreme Court to the seriousness of those cases and had called on it to examine them. Measures of that kind would become the responsibility of the Public Defender.
14. The fact that the Public Prosecutor's department had been converted into an organ of the judiciary, whatever certain people might think, was unquestionably a positive step. A balance had to be struck between the rights of the defence and those of the Public Prosecutor's department. In that regard, the draft law currently before Parliament seemed to constitute a real step forward. Once the law was in force it should make for greater independence for the courts, which was an essential guarantee and one of the most effective means of combating torture.
15. A member of the Committee had asked about the functions of the Public Defender. They were very different from those of a lawyer. The establishment of that institution was the outcome of three years' work, during which the functions of the Ombudsman in Sweden and the other Scandinavian countries had been studied as well as the situations in Poland, Spain, Australia and Russia and other countries. The United Nations Centre for Human Rights had also been consulted. From all those contacts it had become apparent that, particularly during the current period of transition, the Public Defender should be completely independent of the executive and judicial powers. He had to have extensive powers so as to be able to verify any allegation and obtain all necessary information from any institution. Although he could not initiate criminal proceedings, he could open an investigation, in which case every agency in the country was required, on pain of sanctions, to reply to his requests within one month. Similarly, he could not intervene in legal proceedings; but once a case had been closed, and if, for example, a procedural violation had occurred in a case concerning human rights, he could make recommendations. Thus the Public Defender had a wide range of means of action. He could even, under the terms of the Constitution, and in particular on the lodging of a complaint by an individual citizen, request the Constitutional Court to give a ruling on the constitutionality of parliamentary enactments. When called upon to do so by the President of the Republic or the Public Defender, the Constitutional Court had to rule on the constitutionality of measures taken by Parliament and by the apex agencies of government in the autonomous territories.
16. The question of compensation was a vital one. There was not as yet any legislation on the subject; but the civil code did contain relevant provisions. The question of compensation was to be dealt with in a separate law, which would be one of the key instruments for the combating of torture.
17. It had been asked when a suspect could confer with his lawyer. A member of the Committee had recalled that under the Soviet system a lawyer could not intervene until after the investigation had been completed, i.e. at the end of a procedure which might take three years. This question was considered one of crucial importance within the framework of judicial reform, and in 1992 the first ruling of the Supreme Court was to declare that, when a suspect was questioned, the competent body must ensure that the questioning took place in the presence of a lawyer. In practice the problem was not yet resolved. In cases concerning particularly serious acts of terrorism, for example, there was suspicion of lawyers, and they were not allowed to be present. However, the principle that a lawyer should be present during the questioning of a suspect had been recognized by Parliament. It was accepted that during the actual trial the accused person should be defended by a lawyer.
18. The situation with regard to medical and psychiatric care might, in the present state of the penitentiary system, be described as critical on account of the lack of resources. Certain medical and psychiatric examinations were carried out on the premises of the Ministry of the Interior under appalling material conditions, and the President of the Republic, to whom the problem had been referred, had decided to allocate $1 million to improve the situation. However, the results of that measure were still awaited.
19. It had been asked when the new code of criminal procedure would be adopted. The final date for adoption set in the Constitution was approaching, and the work was going ahead rapidly.
20. A question had been asked on the subject of the duration of each of the forms of pre-trial detention. The relevant provisions of the Constitution were described in the report. It had in particular to be remembered that placing under arrest was a sanction; it used to be pronounced by the Public Prosecutor but was now the responsibility of the courts. It had to be remembered that the Penal Code of the Soviet era was still in force and that work was proceeding on its reform. However, some preliminary measures had been taken; for instance, only the courts were empowered to take measures with the character of a sanction.
21. It had been remarked that the penalties provided for in cases of acts of torture were light, the Penal Code providing for three years' imprisonment in respect of such acts. It was true that the texts were not yet in conformity with the provisions of the Convention; but the latter would be fully incorporated in legislation. It should, moreover, be remembered that, although the penalties stipulated might appear light, where a public official committed the crime of torture, his status was an aggravating circumstance.
22. In 1992 and 1993, during a period of turmoil and at a time when the new Constitution had not yet been adopted, a state of emergency had been decreed in Georgia. The 1995 Constitution restricted the possibility of declaring a state of emergency. Amnesty International had recently pointed out a contradiction in the Constitution; the disputed item would be studied by the Constitutional Court and Parliament.
23. Under the Constitution the maximum permissible period of pre-trial detention was nine months. Efforts were being made to ensure that the assistance of a lawyer was available from the start of criminal proceedings. Under the old criminal code, proceedings could only be initiated on application by an individual. The new legislation provided that, in cases of torture, in particular involving public officials, the State could initiate proceedings and had a duty to do so.
24. The Constitution stipulated that military courts could only exist in wartime and that they functioned in the same way as ordinary courts. During the conflict in Abkhazia, before the adoption of the Constitution, a military tribunal had been set up and functioned for some time; eventually it had been abolished. The types of evidence which appeared admissible by the courts were listed in the Code of Criminal Procedure. In all cases confessions obtained under constraint were inadmissible, and the courts were responsible for assessing the value of evidence submitted.
25. Most of the cases concerning individuals alleged to have been tortured were still under consideration. They were being followed by the Committee for Human Rights and Relations between Peoples, Amnesty International, Human Rights Watch and other bodies. Whenever possible, members of the Committee for Human Rights and Relations between Peoples went to places of detention to meet the individuals alleged to have been ill-treated. In certain cases they were accompanied by representatives of diplomatic missions or of the OSCE. However, in many cases the facts were difficult to prove, and the shortcomings of the penitentiary system were a powerful constraining factor. It was true that certain detainees (Badri Zarandia was one) had been condemned to death. The Committee for Human Rights and Relations between Peoples opposed the death penalty and was consequently conducting a campaign to have the sentence of that prisoner (who had been sentenced for committing a murder during the civil war) commuted. To combat the practice of torture the Committee had established a group of independent experts to apply to the Public Defender to have certain medical and other investigations carried out with prisoners, thus enabling the facts to be established. At the present time the most important task was certainly that of reforming the penitentiary system, which must not be left under the authority of the Ministry of the Interior. Two projects were currently under consideration, one to make the penitentiary administration a completely autonomous body, and the other to attach it to another ministry.
26. With regard to the training of the staff of the agencies responsible for implementing the law, he said that measures had been taken to acquaint all officials working in investigating agencies and penitentiary establishments with the Convention against Torture. Documents in Russian had been distributed to them, and training courses and seminars on human rights were being organized with the assistance of NGOs. Recently a group of officials had attended a two-week course in England. The next task was to enshrine the principles thus disseminated in legislation, and it could only be regretted that there was still no law concerning the penitentiary administration. The structures were those of the old system, and unfortunately mentalities often dated back to that system as well. All the measures currently being undertaken were based on the Constitution, which took precedence over ordinary legislation. The Committee for Human Rights and Relations between Peoples had written to the Ministry of Foreign Affairs and the Public Prosecutor's Department requesting them to authorize detainees to receive correspondence, to make information sources available to them and to authorize visits by lawyers and members of their families. It was, however, clear that such a reform would take time.
27. The conditions under which detainees were held were a matter of serious concern. They reflected the poor general economic and health situation, from which the population generally was suffering as well. The assistance supplied in that field by the United Nations agencies, the Red Cross, diplomatic missions such as the Embassies of France and the United States and the OSCE was particularly valuable. It was true that many detainees were suffering from tuberculosis. Out of 120 individuals who died in prison in 1994, 70 per cent died of tuberculosis and the others of cardiovascular diseases. It had to be pointed out that the crime rate was not very high, since the number of persons in detention had fallen from 15,000 in 1990 to about 8,000 at present. The situation of young persons and women in detention was particularly grave. It had to be mentioned that the health examinations of detainees were currently carried out by members of the penitentiary staff. One of the demands of the Committee on Human Rights and Relations between Peoples was that such examinations should be carried out by independent experts.
28. With regard to the organization of the judiciary, Georgia had undertaken the establishment of a new system which would be independent of the administrative authorities. The judicial boundaries would be redefined, and there would be courts of first instance, courts of appeal and, in final instance, the Supreme Court.
29. Detention orders were still a prerogative of the Public Prosecutor's department; but Parliament had before it a proposal for amendment of the Code of Criminal Procedure, stipulating in particular that detention must be ordered by a court.
30. One member of the Committee had raised the question of the independence of the judiciary. It could be said that formally the judiciary had already been independent during the time of the ex-USSR. At present that independence was still guaranteed by the Constitution. In practice, however, it had never been, and was still not, complete. In many, and often material, respects the courts depended on the executive. In concrete terms it would be desirable that the machinery of administration of justice should have a separate budget and manage it in complete autonomy. Georgia needed to have a democratic system within which the courts, as guarantor of the application of the law, were independent. In his view, a key element in a properly functioning system of justice was a strengthening of the role of lawyers. The intervention of lawyers at an early stage in the procedure was the principal measure which could prevent acts of torture. Under the old system, lawyers rarely stood up to the prosecution and the judges. The Committee for Human Rights and Relations between Peoples and other organizations were making great efforts to strengthen that element of the system and to create a strong body of lawyers.
31. He thanked Mr. Sorensen for his work in the campaign against torture. He would certainly draw inspiration from the documents Mr. Sorensen had passed to him and the experiences he had described. With regard to participation in the United Nations Voluntary Fund for Victims of Torture, he undertook to do his best to ensure that Georgia paid a contribution - even a token one - but explained once again that the economic situation was extremely poor in every respect.
32. Finally, he thanked the Committee for its interest. The submission of periodic reports - first to the Human Rights Committee and subsequently to the Committee against Torture - was a stimulating and enriching experience. He was at the disposal of the Committee to send, if necessary, written replies to any questions he had not answered.
33. Mr. BURNS thanked the Georgian delegation for its detailed replies. He asked for precise information on whether the order of a superior could be invoked to justify an act of torture.
34. Ms. ILIOPOULOS-STRANGAS asked for information on the situation of six political dissidents who, according to the International Federation of Human Rights in Helsinki, had been tortured.
35. The CHAIRMAN thanked the Georgian delegation for raising the possibility of making a contribution to the Voluntary Fund for Victims of Torture.
36. Turning to the subject of the status of members of the judiciary, he inquired whether a judge committing a criminal act would nevertheless remain irremovable.
37. Mr. KAVSADZE (Georgia) said that under the Georgian Criminal Code there was no justification for torture; there could thus be no question of being able to invoke the orders of a superior. A person engaging in torture and his accomplices, if any, would be prosecuted. On the question of irremovability of judges, he explained that, if a judge was suspected of having committed a criminal offence, the President of the Supreme Court would decide on the action to be taken. If the President of the Supreme Court did not authorize the arrest of the judge, the latter would have to be released immediately except in cases of flagrante delicto.
38. Referring to the allegations of torture, he said that he did not know exactly who the persons concerned were; however, he could explain the procedure generally followed. As soon as an individual informed the court that his confession had been extorted from him under torture, the court had to rule on the admissibility of that confession as evidence. In principle such confessions should be rejected; but it had to be recognized that the courts did not always act in that way, especially when dealing with political dissidents. He assured the Committee that he would investigate the specific case mentioned by Ms. Iliopoulos-Strangas. He paid tribute to the non-governmental organizations for their work; he considered that they were right systematically to raise questions, even if their allegations were not always well-founded.
39. The Georgian delegation withdrew.
and resumed at 5.25 p.m.
Conclusions and recommendations of the Committee after consideration of the initial report of Georgia
40. Mr. BURNS (Country Rapporteur) read out the conclusions and recommendations of the Committee on the initial report of Georgia, which read:
C. Factors and difficulties impeding the application of the provisions of the Convention
complaints of torture and other inhuman and degrading treatment of detainees and prisoners and the unfailing prosecution of everybody responsible for such acts.
41. Mr. KAVSADZE (Georgia) thanked the Committee for its comments. He noted that in paragraph 8 of the section containing recommendations there was a recommendation that the powers of the Committee for Human Rights and Relations between Peoples be strengthened. Under a presidential decree the institution of Public Defender had been established; that institution was to replace the Committee for Human Rights and Relations between Peoples and enjoyed extensive powers.
42. Mr. BURNS proposed that, to take account of that fresh item of information, it would suffice to add the phrase "or any other appropriate body" after "Committee for Human Rights and Relations between Peoples".
43. Mr. KAVSADZE (Georgia) emphasized that the Georgian authorities attached great importance to the observations of the Committee, of which due account would be taken.
44. The Georgian delegation withdrew.