2. The CHAIRMAN, speaking in his capacity as Country Rapporteur, read out the conclusions and recommendations of the Committee concerning the second periodic report of Israel:
C. Factors and difficulties impeding the application
3. Mr. LAMDAM (Israel) expressed surprise and deep disappointment regarding the conclusions, which appeared at first sight to be a reiteration of the substance of the previous year's conclusions with a certain modulation of tone and some recognition of Israel's dilemmas.
4. During its oral presentation, the delegation had cooperated extensively with the Committee, responding to all questions asked and offering wide-ranging information to the effect that Israeli law totally prohibited the use of torture and that the High Court of Israel ensured that interrogation procedures and all treatment of detainees remained within permitted guidelines, in conformity with the law. Israel had hoped that the Committee would utilize the opportunity of the review process to enter into a substantive dialogue, rather than to make arbitrary determinations, without regard to the authoritative testimony submitted to it.
5. He welcomed the Chairman's effort to focus on the material concerns of the Committee and to avoid politicization.
6. He wished, however, to take the opportunity to draw attention to the very fundamental difference in interpretation of the intent of article 1 and article 16 of the Convention. Israel believed that its judicial system, which prohibited outright the use of torture, was in conformity with the Convention; many questioned why Israel should continue to submit to the review process, almost like a sacrificial lamb going to the altar, while the difference of legal interpretation remained unresolved.
7. It appeared that Israel was being held to a higher standard than many other countries, possibly because its judicial system was more open than most and that, somewhat exceptionally, detainees could appeal to the High Court while their interrogations were in progress. The members of the Committee were invited to consider whether the transparency of the Israeli system and the openness with which it related to the Committee had not prompted a double standard.
8. It was simply not serious for the Committee to submit some 70 questions in the morning and expect, by the afternoon, to receive considered and in-depth replies which were supposed to serve inter alia as the basis for the Committee's conclusions. Moreover, it might reasonably be concluded that many of the questions were being asked for the sake of asking, and perhaps also for the gallery.
9. Finally, he wondered whether it was appropriate that the role of rapporteur should be taken by a member of the Committee who had already decided, when Israel appeared before the Committee the previous year, that Israel used methods amounting to torture in interrogating suspected terrorists. The implied comparison, made by the same rapporteur and another member of the Committee, with the experience of the Jewish people during the Holocaust was deeply offensive, unmerited and unacceptable.
10. The CHAIRMAN thanked the Israeli delegation for the spirit of cooperation they had displayed; they had set the stage for a new spirit of dialogue.
11. The delegation of Israel withdrew.
The meeting was suspended at 3.20 p.m. and resumed at 3.40 p.m.
ORGANIZATIONAL AND OTHER MATTERS (agenda item 5) (continued)
12. After a brief general discussion, the CHAIRMAN announced that Mr. Sørensen, Mr. Yakovlev and he himself would act as thematic rapporteurs on issues relating respectively to gender, children and discrimination in the reports submitted to the Committee, and would also report back on any issues of concern to the Committee against Torture touched on by the committees responsible for those matters.
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION (agenda item 7) (continued)
Initial report of Sri Lanka (continued)(CAT/C/28/Add.3)
13. At the invitation of the Chairman, Mr. Palihakkara, Mr. Yapa, Mr. Grero and Mr. Arachchi (Sri Lanka) resumed their places at the Committee table.
14. Mr. PALIHAKKARA (Sri Lanka) said that Sri Lanka had ratified the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) in October 1997, in keeping with the Government's policy of openness to local and international scrutiny, including the right to submit information to international bodies. The ICCPR did not preclude the declaration under article 22, and he would certainly draw the matter to the attention of the authorities.
15. He apologized for Sri Lanka's late submission of its initial report; as a party to 13 international instruments, Sri Lanka had heavy reporting responsibilities. However, a coordinating body had been established to streamline the drafting of reports, so they would in future be submitted more punctually.
16. Mr. YAPA (Sri Lanka) referred to the three cases in which the Supreme Court had awarded compensation, and subsequent action to be taken by the Inspector General of Police under the directives of the Supreme Court. In the first case, the State had been ordered to pay 7,000 rupees compensation and 750 rupees costs, the first respondent police officer had been ordered personally to pay 7,000 rupees in compensation, and the second respondent police officer 5,000 rupees. As instructed, the Inspectorate General kept a record of the activities of the police officers and had subsequently reported to the Supreme Court that they had paid the compensation. The Attorney-General's Department also monitored the cases in question and the subsequent action of the Inspector General, who was also expected to investigate the attendant circumstances. Annex I contained details of cases of human rights violations including torture, where the Supreme Court had ordered compensation and instructed to the Inspector General to take appropriate steps. The Attorney-General's Department had examined all such cases and had requested information from the Inspector General regarding follow-up.
17. In human rights applications, unlike criminal trials, the Supreme Court conducted an inquiry on the basis of the affidavits before it and reached a finding on the balance of probability. Where appropriate, it then ordered compensation and instructed the Inspector General of Police to take further steps. Subsequently, the criminal justice system would come into operation, upon the receipt of a complaint of physical harm from a victim. Investigations were then conducted, the notes from which were submitted to the Attorney-General who would decide if an indictment was to be filed. However, after receiving compensation, victims frequently failed to lodge the complaint necessary for the initiation of criminal proceedings.
18. In order to make a Convention applicable, enabling legislation was required; Act No. 22 (CAT Act) had been promulgated in December 1994. Where it existed, legislation prevailed over international instruments, although when an exact interpretation was necessary the relevant international instrument was also taken into account: for example, section 9 of the Act, which referred to extradition arrangements, stipulated that a person could be extradited "in respect of ... the offence of torture as defined in the Convention".
19. The definition of torture contained in the Act was broader than that in the Convention insofar as the Convention referred to acts that were "intentionally inflicted" whereas Act No. 22 did not introduce a mens rea element. The prohibition of the use of torture to obtain information from a person and the other "purposes" listed in article 1 of the Convention were covered in the Act. However, his delegation had taken the point that the reference in the Act to the "following purposes" could be seen as more restrictive than the Convention's wording "for such purposes as".
20. The Human Rights Commission of Sri Lanka had advisory powers and could steer the Government in the right direction when it came to amending or drafting legislation, to ensure that it was in line with international norms and standards.
21. Sri Lanka's body of legislation included the Corporal Punishment Ordinance, which had for the most part fallen into disuse. However, there had recently been a few cases in which magistrates had used the provision to order caning of juvenile offenders. Human rights organizations in Sri Lanka were looking into the matter, which had been brought to the attention of the Government.
22. The Supreme Court could request the Inspector General of Police to initiate an investigation and then, when it had been carried out, refer the matter to the Attorney-General for prosecution.
23. Sri Lanka had taken steps to ensure that investigations in which the accused were police officers and that were dealt with by the police were independent. New special units had been set up to carry out investigations and monitor investigations that were being conducted elsewhere. Special units of the Crown and State Counsel had been set up in the Attorney-General's Department to supervise the investigations that were being carried out.
24. In the case of Wimal Vidyamani v. Lt. Col. L.E.P.W. Jayatilake and others (SC Appn. 852/91), the Supreme Court had ordered the State to compensate the petitioner for violation of his fundamental rights. On the basis of the Supreme Court judgement, the Inspector General of Police had launched a criminal investigation and finally criminal proceedings had been instituted against all the suspects. The cases, Nos. 77817 and 77818, had been pending before Embilipitiya Magistrate's Court since 1993 owing to the large volume of cases being dealt with in magistrates' courts.
25. Under the Evidence Ordinance, confessions made to police officers, even voluntarily, were not admissible. Confessions made before a magistrate, without inducement by a police officer, were admissible, if accepted by the judge. The emergency regulations and the Prevention of Terrorism Act provided for a departure from the normal rules of evidence, whereby confessions made to a senior police officer were admissible if it could be proved to the judge that no inducement or coercion had been used.
26. Mr. GRERO (Sri Lanka) said that under the emergency regulations, the Secretary for Defence could order the detention of a person for a period not exceeding three months at a time, up to a maximum of one year. However, those provisions did not preclude the need for an arrested person to be produced before a magistrate within 24 hours of his or her arrest.
27. Mr. PALIHAKKARA (Sri Lanka) said that allegations of disappearances were of major concern to the Government. Three commissions on the question of disappearances had concluded their investigations and their reports had been published and submitted to the United Nations Working Group on Enforced or Involuntary Disappearances, which had been invited to visit Sri Lanka. An interministerial committee was looking into ways to implement the commissions' recommendations, including those on compensation and prosecution. Thus far, 188 cases had been referred to the Attorney-General's Department; specific action had been taken on four cases; there had been 20 indictments; and 14 cases had been dismissed.
28. There had been concern at the allegations of disappearances in Jaffna. However, stringent measures had been put in place to deal with abuses by the military and the Government, keen to demonstrate that they would not enjoy impunity, had taken a hard line in cases where soldiers had been found guilty of human rights abuses.
29. The place of detention mentioned by a member of the Committee, presumably on the basis of an Amnesty International report, was in fact, as far as he knew, a place where soldiers were billeted. There were no secret places of detention in Sri Lanka. All detention centres were documented and the International Committee of the Red Cross was free to visit them at any time.
30. Section 2 of the Human Rights Commission Act provided for appointment of Commission members by the President on a recommendation by the Prime Minister, who was obliged to consult the Speaker of the House of Parliament and the leader of the opposition party. Of the five serving members, three were Sinhalese, one was a Tamil and one a Muslim. The formal and informal wide-ranging consultations undertaken prior to their appointment had led to criticism of the unwieldiness of the procedure. However, the authorities felt that the consensus eventually achieved had been worth the effort.
31. A legal aid system was operated by the Ministry of Justice and the Bar Association of Sri Lanka. Legal aid centres were also run by the Sri Lanka Law College, the University of Colombo and the Open University and additional assistance was provided by international organizations.
32. The courses for law enforcement officers conducted by the Faculty of Medicine of the University of Colombo were highly appreciated by the authorities and the University had been urged to increase their number. However, such courses placed severe time constraints on busy teaching staff.
33. Mr. YAPA (Sri Lanka), while admitting that prisons were overcrowded, said that an ambitious building programme had been launched recently. A majority of detainees were not convicted prisoners and many were being held on remand because they had been unable to furnish bail. To remedy that situation, a Bail Act had been adopted in December 1997 containing new provisions regarding the granting of bail. For example, magistrates would no longer remand accused persons in the first instance but release them on bond, i.e. on an undertaking to appear in court on the date set for the trial. As soon as the practical effects of that provision began to be felt, overcrowding would be greatly alleviated. The Prison Ordinance provided for advisory committees and prison visits. Prisoners who had been ill-treated or were dissatisfied with existing conditions were entitled to complain and an inquiry would be held. The Emergency Regulations required all detention centres to be authorized and contained provisions governing supervision, questioning of suspects and reporting to magistrates.
34. Article 107 of the Constitution, entitled "The independence of the Judiciary" established the procedure for the appointment of judges to the Supreme Court and the Court of Appeal. The Chief Justice, the President of the Court of Appeal and all other judges of those two courts were appointed by the President of the Republic. They could not be removed before retirement save by an order of the President based on a request for removal, supported by a majority of members of Parliament, on the ground of gross misbehaviour or incapacity. The age of retirement of Supreme Court judges was 65 years and of Appeal Court judges 63.
35. High Court judges were appointed by the President but judicial control was exercised by the Judicial Service Commission composed of the Chief Justice, a judge of the Supreme Court and a judge of the Court of Appeal.
36. It was felt that Act No. 22 of 1994 (CAT Act), already referred to, fulfilled Sri Lanka's obligations under the Convention with respect to extradition. Certain provisions of Extradition Law No. 8 of 1977 might, however, need to be amended and updated. He drew attention to section 11 regarding the manner in which a request for extradition might be refused. When such a request was received, the person concerned was taken into custody pending a hearing before the High Court. The authorities were required to provide material evidence to justify extradition. On completion of the inquiry, the Court could order the release of the detainee on account of the trivial nature of the offence, the passage of time since its commission or a finding that the accusation had not been made in good faith or in the interests of justice. The possibility that an extradited person would be subjected to torture or ill-treatment would certainly be a sufficient ground for refusal by the Court and the Minister of Justice to order extradition.
37. There was no provision or regulation permitting incommunicado detention, despite allegations to the contrary which had been investigated by the courts. There was also no provision barring a person taken into custody from obtaining legal assistance. Counsel had been retained by the legal aid authority for a large number of cases relating to alleged human rights abuses. Where a case was referred to the High Court, State assistance for the assignment of counsel was available in all cases.
38. Mr. PALIHAKKARA (Sri Lanka) said that the Government was deeply aware of concerns regarding possible derogations from the constitutional and legislative prohibition of torture under the Emergency Regulations and the Prevention of Terrorism Act and had introduced a number of administrative, regulatory and supervisory safeguards, described on pages 14 to 16 of the report, which were designed to minimize the scope for abuse. He admitted, however, that abuses could still occur. The Government had permitted several national and international organizations to investigate conditions of detention, arrest and other procedures and the law enforcement authorities were subject to criticism and complaints.
39. Medical professionals participated in training courses for law enforcement officers, and representatives of international organizations such as the International Committee of the Red Cross were invited to deliver lectures and, if possible, conduct specially designed training courses. The authorities were aware that changes in police attitudes were necessary and welcomed the salutary role played by such initiatives. The higher defence authorities had conveyed a strong message to that effect to all branches of the law enforcement system.
40. In response to a question concerning ad hoc review mechanisms, he said that the mechanism described in paragraph 108 of the report was not held to be exhaustive. It was to be hoped that the Human Rights Commission would eventually serve as an ongoing review mechanism. Although it was experiencing some teething problems and had not yet attained maximum capacity, its financial and human resources would be enhanced in due course and its activities broadened to include recommendatory activities.
41. He would communicate both to the authorities and to the non-governmental sector Mr. Sørensen's suggestion regarding the observance on 26 June of United Nations International Day in Support of Victims of Torture.
42. Mr. YAPA (Sri Lanka), replying to a question by Mr. Zupancic concerning the proposed provision in the draft new Constitution which would confer on the Supreme Court the power to review future legislation up to a period of two years from the date of enactment, said that it could indeed be argued that the review period should be open-ended since problems relating to incompatibility with a fundamental principle could arise at any time. Such objections had already been raised by a number of Sri Lankan organizations and would be taken into account by the Parliamentary Select Committee entrusted with the task of drafting the Constitution.
43. There had been one instance where compensation had been ordered against a respondent, who had failed to pay. The Supreme Court had held that there was no question of vicarious liability in the case of fundamental rights, and that the State was directly liable and must pay. That position had not changed. The Supreme Court had, however, recently begun a procedure of ordering compensation to be paid by individual respondents as a sort of punishment, but the fundamental principle that the State should pay compensation remained. In the event of a respondent failing to pay, the Supreme Court could consider citing him for contempt or for violating an order, and penal provisions would apply.
44. The delegation of Sri Lanka withdrew.
EFFECTIVE IMPLEMENTATION OF INTERNATIONAL INSTRUMENTS ON HUMAN RIGHTS, INCLUDING REPORTING OBLIGATIONS UNDER INTERNATIONAL INSTRUMENTS ON HUMAN RIGHTS (agenda item 11) (continued)
General guidelines regarding the form and contents of periodic reports to be submitted by States parties under article 19, paragraph 1, of the Convention (CAT/C/14/Rev.1)
45. The CHAIRMAN called attention to the proposed amended version (CAT/C/14/Rev.1) of the Committee's general guidelines regarding the form and contents of periodic reports to be submitted by States parties under article 19, paragraph 1, of the Convention. Part II, "Additional information requested by the Committee", was merely a reiteration with slightly different wording of the requirement that States that had not provided any information requested by the Committee should do so.
46. Mr. BRUNI (Secretary of the Committee) said that the language was a little complicated, but it reflected a certain logic. The Committee was asking States parties to submit periodic reports, which should contain a specific, separate part giving the additional information requested during the Committee's consideration of the State party's previous report. If the requested information was submitted in another report or communication, it did not need to be included again in the subsequent periodic report. The hypothetical case, referred to in the second part of the proposed amendment to Part II, where the Committee requested an additional report in accordance with rule 67, paragraph 2, of its rules of procedure, occurred very rarely, when it felt that the main report was not very informative and asked for additional information before the next periodic report.
47. Mr. ZUPANCIC suggested that perhaps the wording could be made more intelligible.
48. Mr. EL MASRY proposed deleting the subordinate clause beginning with the word "unless" and ending the amended text with the word "report". There was no harm in a State party's reproducing information contained in a report.
49. Mr. SØRENSEN said that States parties were continually asking to be helped in their work by not being required to repeat themselves. The full sentence should be retained, meaning that the State party would not have to repeat itself.
50. The CHAIRMAN suggested that a full stop should be added after the word "report" and a new sentence drafted beginning with the phrase, "If the information has already been provided by the State party ...". The precise wording could be left to the secretariat.
51. It was so decided.
52. Mr. SØRENSEN said that he understood that the point of Part III was to have been that all States parties should attempt to produce focused reports in order to facilitate both their job and that of the Committee, providing answers to specific questions. Such questions naturally included how the State party had followed up on the Committee's recommendations on its previous report.
53. Mr. MAVROMMATIS said that the heading was misleading: the words "follow-up of" should be replaced by "compliance with".
54. It was so decided.
55. Mr. SØRENSEN said that not only the amended general guidelines on periodic reports but also the general guidelines regarding the form and contents of initial reports to be submitted by States parties under article 19, paragraph 1, of the Convention (CAT/C/4/Rev.2) should be included in the compilation of general comments and general recommendations adopted by human rights treaty bodies (HRI/GEN/1/Rev.3).
56. It was so decided.
57. Mr. YU asked whether the words "concluding observations" did not mean the Committee's conclusions and recommendations.
58. MR. GONZÁLEZ POBLETE said that was indeed what they meant. As it was important for the State party to understand what the Committee wanted, and as the words used in the Committee's reports were "Conclusions and recommendations", those should be the words used in the revised guidelines as well.
59. The CHAIRMAN proposed that the heading of Part III should accordingly be amended to read, "Compliance with the Committee's conclusions and recommendations".
60. It was so decided.
61. The draft amendments to the general guidelines were adopted, as amended.
Report of the ninth (extraordinary) meeting of persons chairing the human rights treaty bodies (continued)
62. Mr. SØRENSEN, who had represented the Committee at the ninth (extraordinary) meeting of persons chairing the human rights treaty bodies, which had been held at Geneva from 25 to 27 February 1998, said that there were two points to be raised for the Committee's consideration. The first was the desirability of an action plan to follow up the decisions of the World Conference on Human Rights, in order to show not only that the Committees were functioning but also that they were expanding their functions. The Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women had already drawn up such action plans and had succeeded in obtaining more funding as a result, enabling them to undertake field work in different countries in order to facilitate the implementation of their respective conventions. Originally, the Chairpersons had requested the establishment of voluntary funds for all the committees, but he thought it was the duty of the Secretariat to ensure the Committee's functioning. The Secretariat, in conjunction with the Chairperson's and the representatives of the two committees he had referred to, was apparently preparing a paper on how the other committees could expand their work and participate in the action plan. The Committee needed merely to take note of that fact and to discuss it at its next session.
63. The second point was the question of training in human rights, which should be raised at the meeting to be held on 19 May with the Board of Trustees of the United Nations Voluntary Fund for the Victims of Torture, the Special Rapporteur on torture and the High Commissioner for Human Rights, who would meet together for the first time on that occasion. An important part of that question was training in the prevention of torture, not only locally, in States parties, but also for peace-keeping forces, which were frequently made up only of military personnel and had difficulty in performing their task as they were put to work as police. The Committee's knowledge about different aspects of torture might remedy that problem, particularly with regard to the need to differentiate between the police and the military. Also to be discussed at the meeting on 19 May were the forthcoming celebrations of the fiftieth anniversary of the Universal Declaration of Human Rights and the observance on 26 June of the United Nations International Day in Support of Victims of Torture.