Distr. GENERAL CAT/C/SR.294/Add.1 13 May 1997 Original: ENGLISH

1. The Committee considered the third periodic report of Sweden (CAT/C/34/Add.4) at its 291st, 292nd and 294th meetings on 5 and 6 May 1997 (CAT/C/SR.291, 292 and 294) and formulated the following conclusions and recommendations.

2. The third periodic report of Sweden was submitted on 9 August 1996, in accordance with the reporting schedule under the Convention. It conformed fully to the requirements laid down in the reporting guidelines. In addition, the Swedish representatives drew the Committee's attention to relevant developments, that had occurred in the State party since the completion of the report. The Committee and the Swedish representatives engaged in a frank and open discussion of the report.

3. The Committee took note with satisfaction of the revised law relating to refugees as well as the way in which the Swedish Government now offers protection to many displaced persons who would not technically be identified as refugees under the Refugee Convention.

4. The Committee is also pleased to acknowledge the way in which Sweden provides material and political support for the rehabilitation of the victims of torture - both within the country and internationally.

5. Because Sweden adopts a dualist theory of incorporation of international treaty norms into its domestic law, the provisions of the Convention against Torture require enabling legislation before they become part of Sweden's domestic law. The continued failure of Sweden to do this renders the full implementation of the Convention's terms more difficult.

6. The continued failure of the Swedish Government to incorporate the Convention against Torture's definition of torture, in accordance with the Convention's article 1, into its domestic law.

7. The use of 'restrictions', some leading to solitary confinement for a prolonged period of time, for persons held in pre-trial detention centres and prisons.

8. The Committee is concerned that it received information on isolated cases of ill-treatment by the police.

9. The Committee expressed concern with regard to certain methods used by Swedish police in dealing with detainees or with public demonstrations, such as, in the latter case, crowd control with the use of dogs.

10. The Committee recommends that the State party should proceed to incorporate the provisions of the Convention against Torture in Swedish law, as it has already done with regard to the European Convention on Human Rights.

11. The Committee specifically renews its recommendation made during the consideration of the previous reports of the State party that Sweden should incorporate into its domestic legislation the definition of torture as contained in article 1 of the Convention.

12. While the Committee welcomes the information that the question of restrictions, including solitary confinement during pre-trial detention, is under review by the Swedish authorities, the Committee recommends the abolition of the institution of solitary confinement, particularly during the period of pre-trial detention, including, inter alia, when the security or the well-being of persons is in danger, in accordance with the law and under judicial control.

13. The Committee recommends that the State party should reconsider the methods used by the police with regard to crowd control."

Initial report of Namibia (CAT/C/28/Add.2) (continued)

2. At the invitation of the Chairman, Mr. Nujoma, Mr. Tjivikua and Mr. Makando (Namibia) resumed places at the Committee table.

3. Mr. NUJOMA (Namibia), replying to questions raised by the Committee at its 293rd meeting, said that his country's report (CAT/C/28/Add.2) was a State party report, not a report on the activities of the South West Africa People's Organization (SWAPO) during the struggle for liberation or as a liberation movement because a report of that kind was clearly not within his country's mandate. The issue of detainees had been investigated by the International Committee for the Red Cross (ICRC) and a report on it was available.

4. The words "common law of Namibia" referred to the jurisprudence of both Roman Dutch law in regard to substantive law and English common law. As to the laws of evidence and the Criminal Procedure Act, the latter criminalized acts of torture, if proven. Namibia did not yet have a criminal penal code. The words "justiciable bill of rights" referred to the Constitution, which was Namibia's supreme law and to which national and municipal law were subordinate. The Constitution provided that the Supreme Court was empowered to declare any legislation in conflict with it to be invalid or unconstitutional.

5. In relation to arbitrary arrest and solitary confinement, he referred to article 11, paragraph 1, of the Constitution, according to which "No person shall be subject to arbitrary arrest or detention. Persons arrested should be brought to court within 48 hours and should be informed of the grounds of the arrest in the language they understand. Persons arrested are entitled to legal representation. All indigent persons are entitled to legal aid and legal counsel of their choice". Despite its limited resources, the State had a special budget item for legal aid. Section 300 of the Criminal Procedure Code provided for the compensation of victims in criminal cases. The Criminal Procedure Act stated that the accused was entitled to remain silent from the moment of his arrest and during the trial.

6. The Ombudsman had the power to investigate all cases and could make recommendations to Parliament, the Attorney-General or the Prosecutor-General, who decided whether or not to prosecute.

7. His Government denied reports of shooting at civilians as devoid of all truth. It should, however, be pointed out that the duties of the Namibian Defence Force were clearly spelled out in article 118 of the Constitution and the Defence Act and were, inter alia, to defend the territorial integrity of Namibia and its national interest in line with internationally accepted rules. The Government did not and would not shoot at civilians because it did not consider them to be military objects. The Defence Forces received training in international humanitarian law and the laws of armed conflict and were assisted by the ICRC in that regard. Many workshops had been conducted and attended by defence commanders.

8. Namibia did not have a definition of torture. Torture was, however, taken to mean the application of force on a person in an attempt to extract information. Cases of assault should not be associated with torture, as reported by so-called credible NGOs. Government investigations had found the contents of such reports to be false and clearly in conflict with its own records.

9. With regard to the Prison Act of 1959, a bill was currently in the final drafting stages and would soon be submitted to Parliament. It contained adequate built-in mechanisms for the protection of prisoners. Confessions were made under the terms of the Criminal Procedure Act of 1977 and before a magistrate, not a police officer.

10. Regarding pre-trial and lengthy detention, although Namibia had limited financial and human resources, it did its utmost to bring arrested persons before a magistrate within 48 hours, as stipulated in the Constitution, despite the fact that the vastness of the country and the limited means of transport caused many problems.

11. The Legal Assistance Centre was an independent NGO which had existed prior to independence. It had assisted many victims of torture by ensuring their defence. It was credible and it had brought cases to court.

12. Mr. CAMARA said that he had not received answers to his questions on what the penalties for torture were, what the status of bodies responsible for prosecuting violations of criminal law was and whether the Prosecutor's Office was independent of the police and other authorities. No answer had been given to his question on the disciplinary and criminal proceedings mentioned in paragraph 7 of the report. He had also asked for information on discriminatory treatment of lower-ranking officers in disciplinary and criminal proceedings.

13. Mr. NUJOMA (Namibia) said that his country had an independent judiciary. The award of damages for compensation was decided on by the court. There was a clear separation of powers and the Executive could not influence judicial decisions. The Police Court deliberated in disciplinary proceedings where superior officers had committed a breach, such as assaulting a suspect. Proceedings were normally instituted against the offending officer. The Police Code provided for adequate measures to protect those whose rights had been violated, as well as for measures to be taken against all offenders. Those investigating allegations of breaches came from a different region than that in which the alleged act had been committed.

14. Mr. PIKIS said that, according to the report, acts of torture were punishable under common law, but he wished to know what the exact form of punishment was. He also requested clarification of the statement that torture was a civil wrong - a tort. Was there a civil wrong of torture and how was it defined?

15. Mr. MAKANDO (Namibia) said that, as common law was unwritten, penalties under common law were at the discretion of the court and the amount of the award was determined in proportion to the extent to which the victim had provided proof of the injury. A civil wrong could give rise to a civil trial.

16. Mr. PIKIS asked whether criminal penalties under common law were prescribed in a code or were meted out at the discretion of the court.

17. Mr. MAKANDO (Namibia) said that, as his country had neither a criminal code nor a penal code, discretion lay with the court.

18. The CHAIRMAN said he presumed that it was therefore the judge who determined the penalty.

19. Mr. ZUPANCIC (Country Rapporteur) said that the questions he had raised about specific alleged cases of torture had not been answered. He wished to know whether victims of torture had the right to institute criminal proceedings against the perpetrator in cases where the State authorities would not do so and whether the dependants of deceased victims of torture could institute civil proceedings for damages.

20. Mr. NUJOMA (Namibia) said that his delegation was unable to comment on the alleged cases of torture that had been mentioned as there was no record of some of them. Those that had been recorded had been looked into and appropriate action had been taken. With regard to criminal proceedings, a victim of torture could report his allegations to the police. An investigation would then be conducted and, on the basis of the evidence, the Prosecutor-General would decide whether or not there were grounds for prosecution.

21. Dependants of a person who had died as a result of torture could file a civil claim for damages.

22. Mr. MAKANDO (Namibia) said that, if a case of torture had been reported and duly investigated, but the Prosecutor-General had not considered the case to be admissible or had issued a nolle prosequi certificate, the victim could take private action.

23. Mr. ZUPANCIC (Country Rapporteur) read out the Committee's conclusions and recommendations on the initial report of Namibia:

"Conclusions and recommendations of the Committee against Torture