66th Session of the Convention of the Committee against torture and other cruel, inhuman or degrading treatment or punishment.

C.A.T. – Convention of the Committee against torture and other cruel, inhuman or degrading treatment or punishment.

66th Session between the 23rd april 2019 to 17th may 2019.

23rd of april 2019; Meeting n. 1720th:
Opening of the session of the works.

Introductory remarks:
The Committee against Torture this morning opened its sixty-sixth session, hearing a statement by Ibrahim Salama, Director of the Human Rights Treaties Division of the Office of the High Commissioner for Human Rights, and adopting its agenda.
Mr. Salama remarked that the Committee’s session was taking place at a time when the human rights agenda was losing ground in many parts of the world, but also at a time of powerful movements for human rights. Mr. Salama said that the United Nations High Commissioner for Human Rights in her 2019 human rights appeal committed the Office to further enhance the work on prevention; human rights treaty bodies such as this Committee played a key role in this regard as they were essentially preventive in nature.
It was therefore essential that the human rights treaty body system was efficient and produced concrete outcomes for the victims. With the recent accession of Samoa to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the number of States parties now stood at 166, Mr. Salama said, and commended the Committee’s commitment to cooperation with other anti-torture mechanisms, such as the United Nations Working Group on arbitrary detention.
The 2020 review of the human rights treaty bodies system by the General Assembly was of utmost importance to ensure its sustainability and impact on the ground, Mr. Salama stressed, and welcomed the Committee’s active engagement in this process. The Office of the United Nations High Commissioner for Human Rights had created a webpage dedicated to the 2020 review with all available information and background documents. The Committee’s upcoming informal meeting with States and non-governmental organizations would present an opportunity to exchange views on the issue.
In response to the Experts’ questions concerning the holding of the Committee’s third session in 2019, Mr. Salama said that the Office of the United Nations High Commissioner for Human Rights was examining the potential impact of the recent budgetary cuts for the treaty bodies.
Jens Modvig, Committee Chairperson, in his remarks, presented the agenda and programme of work for the sixty-sixth session and, among other things, highlighted the meetings with national human rights institutions and national prevention mechanisms from countries under review, noting that those from South Africa, United Kingdom and Mexico had confirmed their participation. During the session, the Committee would consider 12 individual complaints and eight discontinuances, consider the reports on reprisals and its annual report, and hold its second meeting with the United Nations Working Group on arbitrary detention. Further, the Chair would brief the Experts on the meeting co-organized with the Danish Institute against Torture for and all treaty bodies focal points on the 2020 review, which had taken place in February 2019 in Copenhagen.
The Committee then adopted the agenda and programme of work for the sixty-sixth session, which will run from 23 April to 17 May 2019, and during which the Committee will review reports presented by the Democratic Republic of the Congo, Mexico, Germany, South Africa, Benin and the United Kingdom. All the documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage. The webcast of the Committee’s public meetings will be available via the following link:http://webtv.un.org/meetings-events/.
The Committee will next meet in public on Wednesday, 24 April at 10 a.m. to consider the second periodic report of the Democratic Republic of the Congo submitted under the optional reporting procedure (CAT/C/COD/2).

CAT/19/1E

24th april 2019; Meeting n. 1722nd:
🇨🇩 Democratic Republic of the Congo.
Considerations of the Representatives:

Delegation of Democratic Republic of the Congo:
01.
Son Excellence Madame Marie-Ange MUSHOBEKWA,
Ministre des Droits Humains, Chef de délégation;
02. Son Excellence Monsieur Zénon MUKONGO NGAY,
Ambassadeur et Représentant Permanent (Mission RDC – Genéve);
03.
Madame Thérèse TSHIBOLA-tshia-KADIEBUE,
Ministre Conseiller d’Ambassade (Mission RDC-Geneve);
04.
Monsieur Marcel NDALA KAUMBU,
Directeur de Cabient adjoint, Ministère des Droits Humains;
05.
Monsieur Serge NDAIE MUSENGE,
Premier Conseiller d’Ambassade (Mission RDC – Genéve);
06.
Monsieur Vincent UMBA KETSHI,
Conseiller Politique et Diplomatique, Cabinet du Ministre des Droits Humains;
07.
Monsieur Jean KINONGI KIMAFU,
Conseiller juridique en charge de la médiation, Ministère des Droits Humains;
08.
Monsieur Guy-Nicolas YUMA MORISHO,
Chargé d’Etudes de la lutte contre la délinquance juvénile, Cabinet du Ministre des Droits Humains;
09.
Monsieur Jacques MALOYI MANTAMU, Attaché Culturel (Mission RDC – Geneve);
10.
Monsieur Jean-Pierre ONEMA,
Attaché de Presse (Mission RDC – Geneve);
11.
Madame Melissa BASHEHGEZI SIFA,
Chef du Protocole Adjoint, Cabinet du Ministre des Droits Humains.

25th april 2019; Meeting n. 1724th:
🇲🇽 United Mexican States; Estados Unidos Mexicanos.
Considerations of the Representatives:

Delegation of United Mexican States; Estados Unidos Mexicanos:
01.
Sra. Marta DELGADO PERALTA,
Subsecretaria para Asuntos Multilaterales y Derechos Humanos, Secretaría de Relaciones Exteriores, Jefa de Delegación;
02.
Sra. Sara Irene HERRERIAS GUERRA,
Subprocuradora de Derechos Humanos, Prevención del Delito y Servicios a la Comunidad, Fiscalía General de la República;
03.
Embajadora Socorro FLORES LIERA,
Representante Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
04.
Embajador Raúl HEREDIA ACOSTA,
Representante Permanente Alterno de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
05.
Sr. Cristopher BALLINAS VALDÉS,
Director General de Derechos Humanos y Democracia, Secretaría de Relaciones Exteriores;
06.
Sr. César GARCÍA MONDRAGÓN,
Director General de Asuntos Jurídicos, Secretaría de Relaciones Exteriores;
07.
Sr. Sergio Jaime ROCHIN DEL RINCON,
Comisionado Ejecutivo, Comisión Ejecutiva de Atención a Víctimas;
08.
Sra. María Candelaria OCHOA AVALOS,
Comisionada Nacional para Prevenir y Erradicar la Violencia contra las Mujeres;
09.
Sr. Francesco Manuel PIPITONE DE LA ROCHE,
Titular de la Unidad de Asuntos lnternos de la Policía Federal, Secretaria de Seguridad y Protección Ciudadana;
10.
Sr. Aníbal TRUJILLO SÁNCHEZ,
Director General de Derechos Humanos, Secretaría de la Defensa Nacional;
11.
Sra. Ana TOVAR FERNÁNDEZ,
Directora General de Protección al Migrante y Vinculación, lnstituto Nacional de Migración;
12.
Sr. Guillermo FONSECA LEAL,
Coordinador de Asuntos lnternacionales y Agregadurías, Fiscalía General de la República;
13.
Sr. Javier JILETA VERDUZCO,
Jefe de Oficina de la Subsecretaria para Asuntos Multilaterales y Derechos Humanos, Secretaría de Relaciones Exteriores;
14.
Sra. Erika MARTÍNEZ LIÉVANO,
Ministra, Misión Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
15.
Sr. Oscar GARCÍA PONCE DE LEÓN,
Consejero Militar, Misión Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
16.
Sr. Rafael BARCELÓ DURAZO,
Director General Adjunto de Política lnternacional sobre Derechos Humanos, Secretaría de Relaciones Exteriores;
17.
Sra. Laura Angelina MORENO BORBOLLA,
Directora General Adjunta de Servicio a Estados y Municipios, Secretaria de Seguridad y Protección Ciudadana;
18.
Sr. David Ricardo URIBE GONZÁLEZ,
Director General Adjunto de Atención a Víctimas de Violaciones a Derechos Humanos, Comisión Ejecutiva de Atención a Víctimas;
19.
Sra. Ana Paula LAVALLE ARROYO,
Directora de Política lnternacional de Derechos Civiles, Políticos y Democracia, Secretaría de Relaciones Exteriores;
20.
Sra. Mitzi Anaid ROGEL ALFARO,
Directora de Derechos Humanos, Instituto Nacional de Migración;
21.
Sr. Diego RUIZ GAYOL,
Segundo Secretario, Misión Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
22.
Sra. Lucía RAMÓN TORRES,
Asesora, Misión Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
23.
Sra. Montserrat MIRANDA AGUILAR,
Asesora, Misión Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra.

25th april 2019; Meeting n. 1725th:
🇨🇩 Democratic Republic of the Congo.
Considerations of the Representatives, Cont’d:

Delegation of Democratic Republic of the Congo:
01.
Son Excellence Madame Marie-Ange MUSHOBEKWA,
Ministre des Droits Humains, Chef de délégation;
02. Son Excellence Monsieur Zénon MUKONGO NGAY,
Ambassadeur et Représentant Permanent (Mission RDC – Genéve);
03.
Madame Thérèse TSHIBOLA-tshia-KADIEBUE,
Ministre Conseiller d’Ambassade (Mission RDC-Geneve);
04.
Monsieur Marcel NDALA KAUMBU,
Directeur de Cabient adjoint, Ministère des Droits Humains;
05.
Monsieur Serge NDAIE MUSENGE,
Premier Conseiller d’Ambassade (Mission RDC – Genéve);
06.
Monsieur Vincent UMBA KETSHI,
Conseiller Politique et Diplomatique, Cabinet du Ministre des Droits Humains;
07.
Monsieur Jean KINONGI KIMAFU,
Conseiller juridique en charge de la médiation, Ministère des Droits Humains;
08.
Monsieur Guy-Nicolas YUMA MORISHO,
Chargé d’Etudes de la lutte contre la délinquance juvénile, Cabinet du Ministre des Droits Humains;
09.
Monsieur Jacques MALOYI MANTAMU, Attaché Culturel (Mission RDC – Geneve);
10.
Monsieur Jean-Pierre ONEMA,
Attaché de Presse (Mission RDC – Geneve);
11.
Madame Melissa BASHEHGEZI SIFA,
Chef du Protocole Adjoint, Cabinet du Ministre des Droits Humains.

Introduction:
The Committee against Torture this afternoon concluded its consideration of the second periodic report of the Democratic Republic of the Congo on measures taken to implement the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Marie-Ange Mushobekwa, Minister for Human Rights of the Democratic Republic of the Congo, said that until 2011, both the 1940 Penal Code and the Military Penal Code had defined torture as an aggravating factor in acts of arbitrary detention and illegal detention. Following the ratification of the Optional Protocol to the Convention against Torture in 2010, the State had adopted a law against torture which strengthened and completed the Penal Code. It prohibited torture, incorporated the definition of torture as contained in the Convention, and clearly stipulated the sanctions applicable to perpetrators of torture. The National Institute for Judiciary Training, inaugurated in February 2019, would strengthen the judicial capacity to effectively apply the provisions of the Convention and the 2011 law on the criminalization of torture. This reflected the will of the Democratic Republic of the Congo, as a Member State of the United Nations, to work towards the total elimination of torture in the world. Torture was most practiced in prisons; detainees were victims of torture and cruel and degrading treatment, not only at the hands of prison guards but by other detainees as well. The only way to eliminate torture in prison settings was the sanctioning of all acts of torture commensurate to the gravity of the crime, as well as the prevention of torture through the dissemination of the law against torture in the Democratic Republic of the Congo, concluded Mrs. Mushobekwa.
In the dialogue that followed, Committee Experts deplored the deteriorating human rights situation in the Democratic Republic of the Congo and the fact that 63 per cent of the numerous human rights violations were committed by State agents. The suppression of and crack down on human rights defenders, journalists, and political opposition throughout the country was a serious concern, as was the use of force to repress protests and demonstrations. The national prevention mechanism had not yet been set up and the 2011 law on the criminalization of torture had not yet achieved any impact due to its poor dissemination among key actors concerned, and many magistrates continued to apply the old legislation which considered torture as an aggravating factor rather than a standalone crime. The Experts were concerned about the structural and functional anomalies, and the duplication of power and authority in the judiciary and multiple authorities which had the power to arrest and bring people into custody. The lack of judicial independence, inefficiency, and judicial corruption seemed to be the order of the day. Arbitrary detention was widespread, and secret detention centres continued to exist in which torture and cruel and degrading treatment was practiced. The delegation was asked about steps taken to establish accountability for human rights violations committed during the recent outbreaks of communal violence in several parts of the country, as well as to investigate and prosecute members of the armed forces for acts of torture and sexual violence.
In her concluding remarks, Mrs. Mushobekwa said that the best way to change things was to recognize the weaknesses and that was what the Democratic Republic of the Congo was doing in order to ensure greater compliance with the Convention and the standards of the United Nations.
Jens Modvig, Committee Chairperson, thanked the delegation and said that the Committee would select three urgent recommendations for follow up, on which the State party would need to report within a year.
The delegation of the Democratic Republic of the Congo consisted of representatives of the Ministry for Human Rights and the Permanent Mission of the Democratic Republic of the Congo to the United Nations Office at Geneva.
The Committee will issue the concluding observations on the report of the Democratic Republic of the Congo at the end of its sixty-sixth session on 17 May. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at https://webtv.un.org/.
The Committee will next meet in public at 3 p.m. on Friday, 26 April to conclude the review of the seventh periodic report of Mexico (CAT/C/MEX/7), which it started today, Thursday, 25 April, in the morning.
Report:
The Committee has before it the second periodic report of the Democratic Republic of the Congo submitted under the optional reporting procedure (CAT/C/COD/2).
Presentation of the Report:
MARIE-ANGE MUSHOBEKWA, Minister for Human Rights of the Democratic Republic of the Congo, presenting the report, said that until 2011, both the 1940 Penal Code and the Military Penal Code had defined torture as an aggravating factor in acts of arbitrary detention and illegal detention. Following the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2010, the State had adopted a law against torture which strengthened and completed the Penal Code. The 2011 law prohibited torture, incorporated the definition of torture as contained in the Convention, and clearly stipulated the sanctions applicable to perpetrators of torture. It furthermore specified circumstances which aggravated the prohibited acts and rendered the commission of such acts by the public authority not subject to the statute of limitations.
The Democratic Republic of the Congo had submitted its second periodic report to the Committee against Torture in 2017 under the optional reporting procedure, in which the State party had responded to the list of issues raised by the Committee Experts. Since then, a number of new developments had occurred, said the Minister. On 15 February 2019, the National Institute for Judiciary Training had been inaugurated and would contribute to the training of the judiciary personnel and strengthening the judicial capacity to effectively apply the provisions of the Convention and the 2011 law on the criminalization of torture. This reflected the will of the Democratic Republic of the Congo, as a Member State of the United Nations, to work towards the total elimination of torture in the world.
Since 2017, the Ministry for Human Rights had been leading the commemoration of the International Day in Support of Victims of Torture, which was being done in one of the prisons in order to express the Ministry’s support for victims of all forms of torture. It was important to remember, the Minister said, that torture was most practiced in prisons; detainees were victims of torture and cruel and degrading treatment, not only at the hands of prison guards but by other detainees as well. At the same time, some inmates reserved those same treatments for penitentiary staff. All this, including sexual violence against male and female detainees, must stop. On 28 June 2017, a capacity building seminar for the judiciary police and the magistrates had been held to strengthen the implementation of the legislation on the criminalization of torture.
Although the 2011 law against torture was being applied and had been appropriated by the judiciary as evidenced by the convictions of the perpetrators, much still remained to be done. The only way to eliminate torture in prison settings was the sanctioning of all acts of torture commensurate to the gravity of the crime, as well as the prevention of torture through the dissemination of the law against torture in the Democratic Republic of the Congo, concluded Mrs. Mushobekwa.
Questions by the Committee Experts:
SÉBASTIEN TOUZÉ, Committee Co-Rapporteur for the Democratic Republic of the Congo, raised concern about the deteriorating human rights situation in the country despite the high interest of the international community, and asked the delegation to explain measures taken by the new government to address the numerous human rights violations throughout the country, 63 per cent of which were committed by State agents according to the 2018 report by the Office of the United Nations High Commissioner for Human Rights.
The Co-Rapporteur raised serious concern about the suppression of and crack down on human rights defenders throughout the Democratic Republic of the Congo, including numerous cases of arbitrary detention of human rights activists as well as threats against and intimidation of human rights defenders, journalists, victims and witnesses on human rights violations. The human rights liaison entity had been set up in 2009 and the human rights defenders protection cell in 2011 – what were their roles and mandates, and how were they cooperating with civil society organizations?
The 2011 law on the criminalization of torture had not yet achieved any impact due to its poor dissemination among key actors concerned, and many magistrates continued to apply the old legislation which considered torture as an aggravating factor rather than a standalone crime. Could the delegation explain measures to ensure that all judges and magistrates were trained on the matter?
The Co-Rapporteur reiterated the concern expressed by the Human Rights Committee about the very meagre budget allocated to the National Human Rights Commission set up in 2013, which apparently had not received any financing since 2017. The delegation was asked to reassure the Committee that the national human rights institutions had sufficient resources to function and that their decisions were adequately implemented. Furthermore, the country had not set up an effective national prevention mechanism.
Turning to measures taken to protect the civilian population in conflict affected zones and effectively respond to all allegations of violations of international human rights and humanitarian law, including in the Kasai region, the Co-Rapporteur said the Government attributed the significant increase in human rights violations to the increase in the number of militias and armed groups, the intensification of their activities, as well as operations by the national armed forces against those groups. However, he noted that State agents were said to have committed most of the registered human rights violations.
The Committee was also concerned about recent outbreaks of communal violence in several parts of the country, including in the Yumbi territory in December 2018 in which over 500 people had been killed and numerous women and children had suffered abuses and torture. Violence was facilitated by the absence of the State’s response despite clear signs of tension, the Co-Rapporteur noted.
The Committee noted with great concern the growing repression of protests since 2015, particularly those organized by the opposition and civil society organizations against the electoral results. The brutal repression of demonstrations and protests and the disproportionate use of force raised important questions about the rules that governed the national security and police forces and the legitimate use of force, as well as accountability of the perpetrators. What concrete steps were being taken to ensure that the operations to maintain public order and security respected the fundamental rights of citizens?
The Commission on Inquiry into human rights violations committed in the context of repression of manifestations had been set up in February 2018; in its report issued in March 2018, the Commission had stated that 14 people had been killed in demonstrations on 31 December 2017 and seven on 21 January 2018, figures much lower than those reported by other sources. What could explain this discrepancy and what follow up had been provided to the Commission’s conclusions and recommendations?
Numerous reports noted that secret detention centres continued to exist in the Democratic Republic of the Congo and that the majority of detainees there were victims of torture and cruel and degrading treatment. The delegation was asked to provide statistics on persons in detention and describe measures taken to ensure that all places of detention were under judicial control.
Arbitrary detention was widespread in the country. Individual files of people in detention were often very hard or even impossible to find, and there were documented cases of persons who had been acquitted but were still detained because it was impossible to locate their files. What provisions were in place to ensure that each person deprived of liberty was officially registered and received all fundamental legal guarantees? This was particularly important in the absence of the national prevention mechanism, Mr. Touzé stressed.
While the Convention did not specifically prohibit capital punishment, States parties had an obligation to ensure the dignified treatment of detainees awaiting execution. The situation of those sentenced to death in the Democratic Republic of the Congo raised numerous concerns, as did the fact that there were cases of children who received the death penalty, contrary to the provisions of international law. Was the State party considering the abolition of the death penalty?
ESSADIA BELMIR, Committee Co-Rapporteur for the Democratic Republic of the Congo, noted with concern the structural and functional anomalies and duplication of power and authority in the judiciary of the State party and multiple authorities which had the power to arrest and bring people into custody. The lack of judicial independence, inefficiency, and judicial corruption seemed to be the order of the day.
The reform of the penitentiary system seemed to be ongoing, which was of particular importance since this was where most acts of torture seemed to be committed. According to documented reports, torture had been taking place for a long time in places of detention and was “very much in fashion”; people were being tied, beaten up, and held in secret detention. The national law against torture 2011 was poorly applied and only a handful of people had been tried and found guilty of crimes of torture.
Violence against women was widespread and rape and sexual violence, including mass rape, were endemic, both in the context of armed conflict and situations not linked to conflict. Survivors had shared their testimonies of mass rape. The 2011 law did not recognize all forms of sexual violence and rape as acts of torture.
The Co-Rapporteur raised a number of concerns related to children in conflict with the law and in particular the detention of children, including the prolonged pre-trial detention of juveniles – in Kalemie, for example, children spent on average four months in detention without seeing a judge; in Kinshasa, a child had awaited a decision of the judge for a year because he was unable to pay his legal fees. A number of children associated with armed forces were kept in secret detention.
Turning to the question of accountability for acts of torture against detainees, the Co-Rapporteur noted the very few investigations and convictions and stressed that acts of torture were not subject to the statute of limitations, including those acts committed prior to the adoption of the 2011 law, which meant that the authors of acts of torture against detainees must be tried and convicted.
Other Experts asked the delegation to explain how victims of rape and sexual violence had been successfully included in the definition of victims of torture and how they could effectively access the effective reparation, indemnity, and support services. What legislative and administrative mechanisms had been adopted to effectively protect all children from acts of torture, including sexual violence, and to effectively demobilize and reintegrate all children associated with armed groups?
The delegation was asked to inform the Committee on steps taken to investigate and prosecute members of the armed forces for acts of torture and sexual violence, as well as to eradicate the practice of female genital mutilation.
Replies by the Delegation:
MARIE-ANGE MUSHOBEKWA, Minister for Human Rights of the Democratic Republic of the Congo, responding to questions raised, said that the political context in the Democratic Republic of the Congo had not made it any easier to improve the human rights situation in the country, mentioning in particular the emergence of armed groups in the east; terrorist operations by the Allied Democratic Movement, the National Army for the Liberation of Uganda (ADF-NALU) and Kamuina Nsapu; protests organized by the opposition which were sometimes infiltrated by criminal elements; and the massacres in Yumbi. All those had displaced even more people and many had been killed. In some instances, the perpetrators of crimes had been tried, in others they had been detained but not tried. The country was aware of the great legal challenges it still had to overcome.
The Human Rights Committee was a liaison entity created in 2009; it was led by the Ministry for Human Rights, was made up of representatives of human rights non-governmental organizations and of the United Nations, and was in charge of monitoring the human rights situation in the country. The human rights defenders’ protection unit had been created in 2011 and was a part of the Ministry for Human Rights. The two units were not operational at the moment due to the particularly complex situation in the country, since over the past three years, all the Government’s efforts, attention and resources had been directed at the organization of the presidential and legislative elections.
The Minister recognized that some human rights defenders had been threatened and intimidated and others had been arrested and even convicted. This was deplorable and no one must be sent to prison for defending human rights. The National Human Rights Commission did not have the necessary resources to fully discharge its duties, but it had its own building which allowed it to operate independently, and had quite a significant budget.
Law 11/008 defined torture as an autonomous crime but eight years after its adoption, it had not yet borne full fruit. An essential step was undertaking efforts to raise awareness of it and to disseminate it among the judiciary, army and the police, stressed Mrs. Mushobekwa.
As for the lack of the national prevention mechanism, the Minister said that the Ministry for Human Rights, the National Human Rights Commission, and human rights non-governmental organizations could visit places of detention. The national prevention mechanism would not be needed if the national human rights institution was enabled to fully discharge its mandate.
The Democratic Republic of the Congo was under constant attack by armed groups, foreign and domestic, and this was a great source of instability. As in every war, there was collateral damage and civilians were usually the first victims, including women and children. Mrs. Mushobekwa disagreed that State agents were guiltier of human rights violations than members of armed groups. The Interahamwe, the ADF-NALU, and other groups regularly attacked villages, killed men, and took women and girls to serve as sex slaves.
As for the violence in Yumbi in Mai-Ndombe province, a special commission of inquiry led by the United Nations had found that 535 people had died in the communal clashes, while the investigative commission set up by President Félix Tshisekedi had found that 496 persons had died. The violence was something that could have been avoided had the customary chiefs been wiser, Mrs. Mushobekwa said, and stressed that after the reports of the two inquiries were published, the Government would take all steps to ensure accountability.
The pre-electoral context in the country had been rather tense, recalled the Minister. Demonstrations challenging electoral outcomes had been organized by some opposition parties and citizen movements. The Constitution guaranteed the right to freedom of opinion and to demonstrate, which nevertheless must be done with full respect for public order. There was no justification for a police officer opening fire on civilians, but civilians too did not have the right to attack police officers or strip them of their fire-arms. Multiple civilians had been killed during the protests. A commission of inquiry had been instituted, headed by the Minister herself, to shed light on the protests of 31 December 2017 and 21 January 2018. It had worked in a very difficult context and under great pressure, but had discharged its mandate independently. Mrs. Mushobekwa wondered where the line was drawn as to the use of force against protesters, noting that this was an open issue in the current yellow vest protests in France.
As for arbitrary detention, the National Intelligence Agency could detain a person suspected of being involved in terrorist activities that threatened the security of the State, in order to obtain more information. But even in such cases, detention had to follow the law and torture was absolutely prohibited. Secret detention was strictly prohibited. The President had ordered the closure of all punishment cells in the country and all those who had been held in those secret cells had been released.
The Ministry, together with the Office of the United Nations High Commissioner for Human Rights, had initiated the examination of files of detainees to identify those who were detained without charges or who had been detained for minor crimes, such as theft of a phone or a chicken. Of the 200 detained children, only 10 had been accused of serious crimes, while all the others had been detained for minor crimes, for example, the theft of a goat.
The Government did not have sufficient resources to provide food to prisoners, who depended on the food provided by their families. The situation was similar when it came to health care: despite its best will, the Democratic Republic of the Congo did not have sufficient means to ensure access to health for all prisoners, and detainees depended on their families for healthcare. On the death penalty, Mrs. Mushobekwa remarked that her country had observed a moratorium since 2003 and there had been no executions since then. Most of the country’s population was in favour of the abolition of capital punishment, thus it was up to Parliament or the President to put the question in a referendum.
Other members of the delegation remarked that the Democratic Republic of the Congo remained committed to continue institutional development in the area of human rights, and to build on the progress evidenced by the setting up of the Human Rights Committee and the human rights defenders’ protection unit, as well as the recognition of crimes of war and crimes against humanity. In this post-electoral period, the time was now right to turn attention to those issues, and the promulgation of the law on human rights defenders was expected soon.
With regard to the application of the law against torture under military jurisdiction, a delegate said that while some members of the armed forces had been tried under this law, a study into the legal compatibility was needed.
MARIE-ANGE MUSHOBEKWA, Minister for Human Rights of the Democratic Republic of the Congo, added that rape had once been used as a weapon of war but the rate of sexual violence was declining. Female genital mutilation was not a practice in the country. The Government was working on promoting a law prohibiting the marriage of minors.
Follow-up Questions by Committee Experts:
SÉBASTIEN TOUZÉ, Committee Co-Rapporteur for the Democratic Republic of the Congo, remarked that the replies provided by the delegation simply repeated what was already known and did not “move the dialogue forward not even an inch”. General statements the delegation had given as their replies made it difficult to assess the situation. The Co-Rapporteur recognized that the tumultuous situation in the country certainly had an impact on the implementation of the Convention, but the Democratic Republic of the Congo seemed still to be at the same point as at the time of ratification; clearly, the country did not have the means and resources to implement the Convention.
To combat torture, there must be a mechanism that was at the level of the task; in this, prevention was essential and here was the value of the Optional Protocol to the Convention, which represented the State-level response through the setting up of a national prevention mechanism. The delegation questioned whether there was a need to set up one if the National Commission for Human Rights was already in, but the Co-Rapporteur pointed that it was not fully operational and there was furthermore a need to separate competences for prevention and monitoring.
When there was a protest, how did the authorities ensure keeping public order? Could military forces be deployed for the purpose and could the National Intelligence Service also be involved – if so, what were their regulations for the use of force? Where were detained children held?
ESSADIA BELMIR, Committee Co-Rapporteur for the Democratic Republic of the Congo, reiterated her concerns about structural weaknesses in the judiciary. There were a number of ways in which the population in prisons could be reduced, for example by reducing the use of pre-trial detention. The Democratic Republic of the Congo should ensure that all those who had committed crimes of torture and ill-treatment did not enjoy impunity.
Another Expert asked the delegation to explain the protection in place for over 500,000 refugees, of which over 60 per cent were children.
Replies by the Delegation:
MARIE-ANGE MUSHOBEKWA, Minister for Human Rights of the Democratic Republic of the Congo, stressed that the best way to ensure the implementation of the Convention was to strengthen the prevention of torture. A number of judges indeed abused their power and position despite “knowing better”, and it was up to the Government to sanction such judges. The statistics on the number of sentences handed down for the crime of torture would be sent in writing. The statistics on the prison population were not available in all provinces. Four members of the army were serving sentences for crimes of torture, namely rape. This number might not be high enough, but the Government was doing all it could to fight impunity against torture, said the Minister. The new Government was taking steps, but things took time. Detained children were held in adult prisons, but in separate wings. The Minister also said that children held on lesser charges and petty crimes were separated from children charged with serious crimes.
Concluding Remarks:
MARIE-ANGE MUSHOBEKWA, Minister for Human Rights of the Democratic Republic of the Congo, thanked the Committee for the opportunity to present the report and noted that the Democratic Republic of the Congo was not in denial. The best way to change things, she said, was to recognize the weaknesses and that was what the Democratic Republic of the Congo was doing in order to ensure greater compliance with the Convention and standards of the United Nations. The Government was furthermore cognizant that positive measures it took would have a good influence on other countries in the region.
JENS MODVIG, Committee Chairperson, thanked the delegation and said that the Committee would select three urgent recommendations for follow up, on which the State party would need to report within a year. All States parties were encouraged to also submit a review of the implementation of the Committee’s concluding observations.

CAT/19/2E

26th april 2019; Meeting n. 1727th:
🇲🇽 United Mexican States; Estados Unidos Mexicanos.
Considerations of the Representatives, Cont’d:

Delegation of United Mexican States; Estados Unidos Mexicanos:
01.
Sra. Marta DELGADO PERALTA,
Subsecretaria para Asuntos Multilaterales y Derechos Humanos, Secretaría de Relaciones Exteriores, Jefa de Delegación;
02.
Sra. Sara Irene HERRERIAS GUERRA,
Subprocuradora de Derechos Humanos, Prevención del Delito y Servicios a la Comunidad, Fiscalía General de la República;
03.
Embajadora Socorro FLORES LIERA,
Representante Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
04.
Embajador Raúl HEREDIA ACOSTA,
Representante Permanente Alterno de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
05.
Sr. Cristopher BALLINAS VALDÉS,
Director General de Derechos Humanos y Democracia, Secretaría de Relaciones Exteriores;
06.
Sr. César GARCÍA MONDRAGÓN,
Director General de Asuntos Jurídicos, Secretaría de Relaciones Exteriores;
07.
Sr. Sergio Jaime ROCHIN DEL RINCON,
Comisionado Ejecutivo, Comisión Ejecutiva de Atención a Víctimas;
08.
Sra. María Candelaria OCHOA AVALOS,
Comisionada Nacional para Prevenir y Erradicar la Violencia contra las Mujeres;
09.
Sr. Francesco Manuel PIPITONE DE LA ROCHE,
Titular de la Unidad de Asuntos lnternos de la Policía Federal, Secretaria de Seguridad y Protección Ciudadana;
10.
Sr. Aníbal TRUJILLO SÁNCHEZ,
Director General de Derechos Humanos, Secretaría de la Defensa Nacional;
11.
Sra. Ana TOVAR FERNÁNDEZ,
Directora General de Protección al Migrante y Vinculación, lnstituto Nacional de Migración;
12.
Sr. Guillermo FONSECA LEAL,
Coordinador de Asuntos lnternacionales y Agregadurías, Fiscalía General de la República;
13.
Sr. Javier JILETA VERDUZCO,
Jefe de Oficina de la Subseretaria para Asuntos Multilaterales y Derechos Humanos, Secretaría de Relaciones Exteriores;
14.
Sra. Erika MARTÍNEZ LIÉVANO,
Ministra, Misión Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
15.
Sr. Oscar GARCÍA PONCE DE LEÓN,
Consejero Militar, Misión Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
16.
Sr. Rafael BARCELÓ DURAZO,
Director General Adjunto de Política lnternacional sobre Derechos Humanos, Secretaría de Relaciones Exteriores;
17.
Sra. Laura Angelina MORENO BORBOLLA,
Directora General Adjunta de Servicio a Estados y Municipios, Secretaria de Seguridad y Protección Ciudadana;
18.
Sr. David Ricardo URIBE GONZÁLEZ,
Director General Adjunto de Atención a Víctimas de Violaciones a Derechos Humanos, Comisión Ejecutiva de Atención a Víctimas;
19.
Sra. Ana Paula LAVALLE ARROYO,
Directora de Política lnternacional de Derechos Civiles, Políticos y Democracia, Secretaría de Relaciones Exteriores;
20.
Sra. Mitzi Anaid ROGEL ALFARO,
Directora de Derechos Humanos, Instituto Nacional de Migración;
21.
Sr. Diego RUIZ GAYOL,
Segundo Secretario, Misión Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
22.
Sra. Lucía RAMÓN TORRES,
Asesora, Misión Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra;
23.
Sra. Montserrat MIRANDA AGUILAR,
Asesora, Misión Permanente de México ante la ONU y otros Organismos lnternacionales con sede en Ginebra.

Introduction:
The Committee against Torture this afternoon concluded its consideration of the seventh periodic report of Mexico on measures taken to implement the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Marta Delgado Peralta, Undersecretary of Multilateral Affairs and Human Rights at the Foreign Affairs Ministry of Mexico, at the outset stressed that Mexico was in the process of profound transformation in which the new Government was promoting a new vision of the country, with the full respect for human rights as a fundamental pillar. The general law for the prevention, investigation and punishment of torture and other cruel, inhuman, or degrading treatment or punishment had entered into force in 2017; applicable throughout the country, it defined the crimes of torture and ill-treatment, general rules for their investigation, prosecution and sanction, as well as the responsibility of hierarchical superiors who knew or participated in the commission of such crimes. The 2011 constitutional reform had reinforced the legal framework for civilian courts to hear cases of alleged human rights violations committed by military personnel, while the 2014 reform of the Military Code of Justice excluded from military jurisdiction the cases in which civilians were victims. The Government was aware that in order to address the challenges, there must be a strong steadfast commitment to the fight against impunity, emphasized Mrs. Delgado Peralta.
While welcoming the adoption of the general law on torture and other positive legal steps, the Committee Experts raised concern about the high level of torture and mistreatment by the State, as torture was still being carried out in a generalized manner by State agents and security forces. The use of torture in places of detention seemed endemic, they said, while a climate of impunity prevailed – only seven per cent of the crimes were denounced and only 4.6 per cent of investigated crimes resulted in convictions. The Experts stressed that the situations in which persons were at the highest risk of being tortured – arrest, interrogation, custody, detention and imprisonment – must be under regular scrutiny and systematic review to prevent torture from taking place. The Committee was seriously concerned about the denial of fundamental legal safeguards to all persons deprived of their liberty from the moment of detention and the precarious conditions in which migrants and refugees were held. Since 2007, the Mexican Commission for Human Rights had carried out the functions of the national prevention mechanism, however, it had not had a discernible impact on preventing torture in places of detention.
In her concluding remarks, Mrs. Delgado Peralta reiterated Mexico’s firm commitment to eradicate impunity and to ensure that its institutions were free from torture.
Jens Modvig, Committee Chairperson and Co-Rapporteur for Mexico, thanked the delegation and wished Mexico all the best in its endeavours. The Committee would select three urgent recommendations for follow up, on which the State party would need to report within a year.
The delegation of Mexico consisted of representatives of the Ministry for Foreign Affairs, National Prosecutor General, Department for Citizen Security and Protection, Department for National Defence, National Institute of Migration, Executive Commission for Attention to Victims, National Commission for the Prevention and Eradication of Violence against Women, and the Permanent Mission of Mexico to the United Nations Office at Geneva.
The Committee will issue its concluding observations on the report of Mexico at the end of its sixty-sixth session on 17 May. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at https://webtv.un.org/.
The Committee will next meet in public at 10 a.m. on Monday, 29 April, to start its consideration of the sixth periodic report of Germany (CAT/C/DEU/6). On Tuesday, 30 April, the Committee will commence the review of the second periodic report of South Africa (CAT/C/ZAF/2) at 10 a.m., while at 3 p.m. it will conclude the examination of Germany’s report.
Report:
The Committee has before it the seventh periodic report of Mexico (CAT/C/MEX/7).
Presentation of the Report:
MARTA DELGADO PERALTA, Undersecretary of Multilateral Affairs and Human Rights at the Foreign Affairs Ministry of Mexico, at the outset stressed that Mexico was in the process of profound transformation in which the Government was promoting a new vision of the country where the full respect for human rights was a fundamental pillar. Mexico was aware of the challenges and, together with the United Nations and this Committee, was making progress in the construction of an institutional framework to meet the enormous challenges in the country. The general law for the prevention, investigation and punishment of torture and other cruel, inhuman, or degrading treatment or punishment had entered into force in 2017, the result of an important consultation process with scholars, international organizations, and civil society organizations, Mrs. Delgado Peralta said. Applicable throughout the country, the law defined the crimes of torture and ill-treatment, general rules for their investigation, prosecution and sanction, as well as the responsibility of hierarchical superiors who knew or participated in the commission of such crimes. It criminalized torture as a crime without a statute of limitation and prohibited amnesty or impunity to anyone convicted for the crime of torture.
The 2011 constitutional reform on human rights had reinforced the legal framework for civilian courts to hear cases of alleged human rights violations committed by military personnel, while the 2014 reform of the Military Code of Justice excluded from military jurisdiction cases of civilian victims of human rights violations. The 2017 law on the execution of penal sanctions had regulated preventive detention, which was now subject to criteria of exceptionality and presumption of innocence. It was imposed by a judge and according to due process, and currently represented 19.5 per cent of precautionary measures imposed by judges. The Supreme Court had established that evidence obtained under torture was inadmissible in criminal proceedings and should be excluded from trials.
On the criminal concept of house arrest or “arraigo”, Mrs. Delgado Peralta noted that it was a precautionary and exceptional measure applied only in most serious cases; in its execution, any use of incommunicado detention, intimidation, or torture was prohibited. The armed and police forces received continued training in human rights and Mexico had recently signed a technical assistance agreement with the Office of the United Nations High Commissioner for Human Rights. Furthermore, the mechanisms for the protection of human rights defenders and journalists had implemented protective measures for 1,144 individuals, including 22 cases of allegations of torture. As for gender-based violence, the Supreme Court of Justice had declared sexual violence an act of torture and had set out that a statement by the victim constituted a piece of fundamental evidence which carried a preponderant weight in all judicial sentences on the matter.
The Government was aware that in order to address the challenges, there must be a strong steadfast commitment to the fight against impunity, emphasized Mrs. Delgado Peralta. The reform of the criminal justice system, concluded in 2016, had transformed the judicial process into an accusatory system in which the rights of victims were fully respected. According to the first national survey of the population deprived of liberty and studies from the World Justice Project, the new criminal justice system had made judicial decisions more swift and transparent. The law to prevent torture had provided for the creation of the special prosecutor for torture and the national programme for the prevention and sanctioning of torture. A harmonized protocol for the investigation process had been developed that abided with the highest human rights standards. The organic law of 14 December 2018 had transformed the Office of the Attorney General into the Office of the Prosecutor General, which ceased to be subordinate to the executive power and attained full autonomy and independence. The new Government of Mexico was currently in the process of consulting with a wide range of stakeholders with a view to developing a national development plan which contained human rights and the fight against torture. The outcomes of the dialogue with the Committee against Torture would be integrated into this plan, said Mrs. Delgado Peralta.
Questions by the Committee Experts:
DIEGO RODRÍGUEZ-PINZÓN, Committee Co-Rapporteur for Mexico, welcomed the adoption of the general law on torture, which criminalized torture, and its entry into force in 2017, and remarked that as of June 2018, only two federal states had harmonized their anti-torture legislation. In addition, there were concerns about the implementation of some of the aspects of the general law on torture, for example the national programme for the prevention of torture had not yet been put in place and civil society organizations had not been invited to participate in its preparation.
Despite the positive legislative steps, numerous reports denounced the high level of torture and mistreatment by the State, as torture was still being carried out in a generalized manner by State agents and security forces. The use of torture in places of detention seemed endemic: over 63 per cent of respondents in the first national survey of persons deprived of liberty had stated that they had experienced physical violence by State agents during the arrest, while 35 per cent had suffered simulated asphyxiation.
A climate of impunity prevailed as only seven per cent of the crimes were denounced and only 4.6 per cent of investigated crimes resulted in convictions. The Co-Rapporteur requested the delegation to provide trustworthy figures on the number of cases of torture which were being criminally prosecuted under this law, and to explain the indicators used to monitor the implementation and effectiveness of the general law for the prevention of torture.
The Committee was seriously concerned about the denial of fundamental legal safeguards to all persons deprived of their liberty from the moment of detention. According to the first national survey, 41 per cent of detainees had been arrested without a proper arrest order and 58 per cent had been kept incommunicado. Access to a lawyer had been impeded by the authorities, while public defenders and judges did not seem to serve as guarantors of fundamental rights and safeguards. What measures had been adopted to ensure the vigorous maintenance of detention registers?
House arrest or “arraigo” allowed for preventive detention for 40 days which could be extended to 80 days to allow for the investigation of persons involved in organized crimes. Since detained persons were not officially charged, fundamental legal safeguards were not applicable, thus the practice represented a form of arbitrary detention.
The delegation was further asked to explain measures taken to ensure that all detainees received an independent medical examination at the moment of arrest and to inform the Committee on the application in Mexico of the Istanbul Protocol, or the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Since 2007, the Mexican Commission for Human Rights had carried out the functions of the national prevention mechanism. Although by December 2015 it had visited more than 4,000 places of detention, it had not had a discernible impact on preventing torture in places of detention. The Committee welcomed the reform of the national prevention mechanism, which had been initiated by the general law on torture, and asked the delegation to provide an update on the process and the steps that would be taken to render it more effective.
Mr. Rodríguez-Pinzón requested the delegation to provide data on victims of gender-based violence, including domestic violence and femicide, disaggregated by age, ethnicity and nationality, as well as data on investigations, convictions and sentences meted out to perpetrators of those crimes. What measures had been adopted to confront the impunity for gender-based violence, to comply with the judgement of the Inter-American Court of Human Rights concerning women victims of sexual violence, and to address femicides in Ciudan Juares.
Human trafficking seemed to be concentrated in some parts of Mexico and very few cases – only about 10 per cent – had been sentenced. What was the status of the reform of the general law on trafficking and what steps were being taken to ensure effective access to remedy for victims of human trafficking? Had Mexico set up a mechanism for the identification of victims of trafficking in persons among migrants?
The delegation was asked to inform on the number of cases of extradition and expulsion after having accepted diplomatic guarantees, and the number of cases in which Mexico had offered diplomatic guarantees to other countries. Reiterating the duty of the State party to ensure protection from torture, the Co-Rapporteur asked about the mechanisms in place to ensure that the content of diplomatic guarantees was aligned with the Convention against Torture and the Inter-American Convention on Human Rights.
A great source of concern were the precarious conditions in which migrants and refugees were held. The 50 migration hubs were truly detention centres in which people – including children – were subjected to verbal, physical and psychological violence by State agents. Were migration centres open to visits by the national prevention mechanism and non-governmental organizations? What measures were in place to ensure the application of the principle of non-refoulement?
Following the reform of the Criminal Code in 2007, Mexican criminal courts had universal jurisdiction for the crimes of torture, regardless of the nationality of the perpetrator or the victim and regardless of where the crime had taken place. However, universal jurisdiction was limited only to crimes committed in countries in which torture was defined as a crime. Could the delegation comment on this unusual application of the principle of dual criminality and inform on any cases tried by Mexican courts in their exercise of universal jurisdiction? The delegation was asked to inform on mutual legal assistance agreements it had with other States or international institutions and how those had helped in the prosecution of crimes of torture.
In terms of human rights training for various agents of the State, particularly for security forces and penitentiary officers, the Co-Rapporteur asked the delegation to inform on the content of those training programmes, their coverage, target beneficiaries, and the methods used to ascertain their impact on reducing the level of torture and ill treatment in the institutions in which training participants worked.
JENS MODVIG, Committee Chairperson and Co-Rapporteur for Mexico, stressed that the situations in which persons were at the highest risk of being tortured – arrest, interrogation, custody, detention and imprisonment – must be under regular scrutiny and systematic review to prevent torture from taking place. What efforts was Mexico taking to systematically review norms, instructions, methods, and practices of provisions relating to detention and to adopt concrete measures to prevent torture in relation to detention?
Mr. Modvig raised concern about overcrowding in some prisons, which stood at 425 per cent in Chalco prison, 296 per cent in Lerma prison, and 256 per cent in Jilotepec prison, all in the state of Mexico. Half of the detainees in federal prisons were pre-trial detainees following the recent expansion (tripling) of the list of crimes under the Constitution’s article 19 which allowed for automatic detention of individuals.
How much did pre-trial detainees contribute to prison overcrowding? While the duration of pre-trial detention should not exceed two years according to the law on the execution of penal sanctions, there were numerous cases in which people were detained for longer periods, said the Chairperson, citing the case of Daniel Garcia who had been detained for 16 years without a verdict. According to some reports, 40 per cent of people in pre-trial detention should be released.
More than half of the prisons in Mexico were either ruled or co-ruled by criminal gangs, which carried important consequences for the security of prisoners and staff and the rule of law in the management of the prisons. What was being done to eliminate the inmate self-rule in prisons and was there a connection between the self-rule and insufficient prison staff? Bribery seemed to be widespread and chronic, with 87 per cent of the inmates reporting that they had paid custodial staff for services, benefits, or permissions, and the vast majority (94 per cent) did not complain for fear of reprisals.
One of the common punishments, often used arbitrarily, was solitary confinement, held in small cells under very poor conditions, for excessively long periods – even months – and with restrictions on family visits and phone calls.
The Chairperson invited Mexico to engage in a more constructive dialogue on death in custody, noting that with a prison population of more than 200,000 it was unlikely that the figure of 38 deaths in a year represented the full picture and that mortality in prisons was likely much higher. A confrontation between two rival gangs in the Topo Chico prison in Monterrey had resulted in 49 deaths in February 2016; in July 2017, 28 inmates had been killed during a riot in a state prison in Acapulco; and in October 2017, 13 inmates had been killed in a state prison in Nuevo Leon. Death in custody reflected several problems, Mr. Modvig noted – torture by prison staff, violence from other inmates, or insufficient health care. Why was Mexico not collecting and analysing data on death in custody and what procedures were applicable in such cases? How were the health services in prisons organized?
The Committee was concerned by the lack of information in Mexico’s report concerning complaints of torture and ill-treatment in places of detention. The National Commission for Human Rights had reported that during the period 2013 through to January 2019, it had received 285 complaints of torture and 3,239 complaints of ill-treatment. What steps were being taken to investigate those complaints and prosecute and punish perpetrators?
On enforced disappearances, the location of approximately 37,400 people who had gone missing since 2006 remained unknown, and thousands of bodies had been found in numerous clandestine graves since 2007. While there was a specialized office to investigate and prosecute disappearances, from 2013 to 2018 it had opened 1,255 investigations and only pressed charges in 11 cases. What progress was being made in clarifying cases of enforced disappearance apparently committed by members of the security forces or by individuals acting with the direct or indirect support of Government officials? The delegation was asked to provide statistics, year by year, of the number of cases on human rights violations against civilians processed by military courts.
The Committee commended the establishment of the Special Unit for the Investigation of the Crime of Torture under the Attorney General’s office, which was an impressive result, although concerns remained about the capacity of this mechanism to address the mounting problem as the number of special prosecutors was insufficient and there was a backlog of torture cases. What would the Special Unit do to build trust and encourage victims to submit complaints without fear, since this was essential for the effectiveness of the complaint system for allegations of torture? What considerations was Mexico giving to establish an independent forensic medical institute to strengthen, inter alia, the compliance with the Istanbul Protocol, and to provide the necessary independence and integrity of the medical professionals involved in the evaluation of alleged cases of torture?
The number of confessions extracted under torture was substantial – people were found guilty based on confessions extracted by the use of torture and victims themselves were under the obligation to prove to the court that torture had taken place. According to some reports, 40 per cent of those who pleaded guilty before the Public Prosecutor had been subjected to physical attacks, threats, and other pressure. The Committee had been informed about 29 cases where detained women had been sexually tortured.
Mr. Modvig appreciated the steps taken by the mechanism for the protection of human rights defenders and journalists, including the formulation of protection and prevention guidelines and the putting in place of the national system of monitoring risks and attacks. However, the system remained insufficient to provide effective protection, and there were even cases of human rights defenders under protection who had been killed. The Committee requested information on investigations conducted in connection with the abduction and killing of Herón Sixto López, a lawyer, in 2013; the killing of Alberto López Bello, a journalist in 2013; and the abduction and killings of Arturo Hernández Cardona, Félix Rafael Bandera Román, and Ángel Román Ramírez, members of the organization Unidad Popular, in 2013.
Other Experts were concerned about the protection of the rights of refugees and migrants, particularly those from El Salvador and Honduras, which were the countries with the highest suicide rates in the world. Particularly concerning was the fact that 20 per cent of those sent back were unaccompanied minors and that impunity for crimes against refugees and migrants continued to reign. The Experts welcomed the adoption of the Criminal Code in 2016 and the reform of the criminal justice system, but raised concern about the involvement of the military security forces in civilian affairs, especially as they had not been trained in lawful arrest and detention. One consequence was the dramatic increase in unlawful arrests, from 6,000 in 2006 to 72,000 in 2013. The delegation was also asked about juvenile justice systems and steps taken to improve the situation of children in conflict with the law in Mexico.
Replies by the Delegation:
MARTA DELGADO PERALTA, Undersecretary of Multilateral Affairs and Human Rights at the Foreign Affairs Ministry of Mexico, recalled that in December 2018, Mexico had changed not only its Government but a political regime, a decision made by the population tired of the situation of violence and corruption it had lived in for the previous 15 years. Mexico, as a country of institutions, was able to implement this change of government and regime in a peaceful way. The new Government was composed largely of civil society organization activists who were now working on building a country of legality and the rule of law, a question closely linked with the prevention of torture. This was not something that could be resolved in a short period of time, but the Government, which had been in power for five months only, had already starting steps in the right direction, including in addressing the challenge of migration based on human rights and regional cooperation, said Mrs. Delgado Peralta. Mexico reiterated its commitment to protect the rights of migrants, including those who wished to apply for asylum in the United States, and to allow, on humanitarian grounds, the entry and transit of persons traveling to or being returned from the United States.
The delegation said that the general law to prosecute and punish the crimes of torture defined various forms of torture and ill-treatment and their punishment, and set the minimum standard. It was not necessary for all the federal states to harmonize their laws with the general law. On 30 April, a meeting would take place between various stakeholders to garner consensus on the drafting and coordination of the national programme for the prevention of torture, provided for under the general law. Up to January 2019, the Prosecutor’s Office had 4,296 prior inquiries related to allegations of the use of torture and 645 casefiles under the accusatorial system. Between 2013 and 2018, the federal courts had handed down 45 sentences for the crime of torture.
The concept of “arraigo” was only used in cases involving organized crime and the procedure could be challenged before the courts. Since the entry into force of the accusatorial system, there had been a significant drop in the number of such cases, from 1,933 in 2011 to only 21 in 2018. A draft constitutional reform to repeal “arraigo” had been submitted to Parliament in 2018 and was still under review.
Complaints could be submitted to the Prosecutor’s Office directly or through the Visitel platform. In addition, the citizens’ complaint window had been created to facilitate the communication between the Prosecutor’s Office and citizens, using modern information and communication technology.
Mexico was aware of the critical importance of independent forensic medical experts in the prevention of torture. All medical certificates were issued by the General Office of Expert Services, whose experts operated using international standards and in their examinations followed the Istanbul Protocol to the letter. The medical certificates were issued at the point of entry of a person into the penitentiary system or when a detained person addressed the General Office with a request for a medical examination. To ensure that medical examinations were thorough and independent, the experts were supervised throughout. The General Office had hired 46 psychologists and 12 medical doctors in 2018, who had received 400 hours of expert training in forensic medicine and psychology.
A number of bilateral and multilateral treaties had been signed with other countries to combat and prevent organized crime, including trafficking in persons. Mexico had taken part in the Regional Coalition against Human Trafficking and Illegal Trafficking of Migrants, together with eight other countries in the region. As for the investigation of the disappearance of 43 students in the Ayotzinapa case, which had attracted much international attention, the delegation said that the Prosecutor’s Office was carrying out the investigation, including into allegations of torture. Mexico was resolute to provide accountability in this case.
Torture was a serious problem in Mexico but the Government was addressing it head on, including in the Police Force, National Institute of Migration, and the Ministry of Defence. Torture was not systematic in the country and there had been a noticeable drop in the number of allegations in recent years. The complaints received by the federal police had dropped from 360 in 2016 to 40 in 2018; those received by the National Commission for Human Rights had dropped from 836 in 2013 to 347 in 2018; while the Prosecutor’s Office had handled 42 possible cases of torture in 2013 and 32 cases in 2018. One of the factors that had played a role in the reduction in cases of torture was training provided to the security forces and State officers. Furthermore, the President of Mexico had repeatedly stated that he would never order the security forces to repress or commit human rights violations and that the new Government would not allow impunity to reign. The national strategy of public security contained eight objectives, one of which was the full respect and promotion of human rights which was essential for the rule of law.
The national law for the registration of detention, expected to be adopted in June 2019, would provide for the setting up of a national registry of all detainees in the country. This would be an important tool to ensure the prevention of torture. All public security institutions would use harmonized procedures, and the system would allow access to detainee information by families, lawyers, and other interested parties. A total of 1,400 minors in conflict with the law were detained in Mexico whose conditions of detention were fully aligned with international standards.
Mexico reiterated the full autonomy and independence of the National Commission for Human Rights, whose budgetary allocations were decided upon by the Senate. The National Commission conducted annual diagnostic surveys of the federal penitentiary system, which included the assessment of the general conditions of detention through in situ visits and questionnaires sent to the prison administration, prison guards, and inmates and their families.
A mechanism to protect human rights defenders and journalists had been set up in July 2012. A part of its board of governors was a Citizen Council composed of four human rights defenders and four journalists. The mechanism facilitated cooperation between the federal and state entities in the implementation of protection measures for persons under risk and worked to strengthen the prevention by, inter alia, raising awareness on the importance of the work of defenders and journalists.
The legal and policy framework to address gender-based violence included the general law for gender equality, the law for access of women to a life free of violence, the national system for equality between women and men, the national system for the prevention and eradication of violence against women, and the programme for the prevention of domestic violence and gender-based violence. Furthermore, the legislation in 32 federal states criminalized femicide, and there were 44 centres for justice for women in 27 federal states which provided comprehensive support to women, including referrals to shelters and specialized services. During the 2015-2018 period, 2,745 femicides had been recorded; 709 sentences had been handed down between 2011 and 2017. The National Commission to Address and Eradicate Violence against Women was in place. The mechanism for the follow up of cases of sexual torture of women had been set up in 2015 and it embodied the State’s commitment to address the issue throughout the country. The mechanism produced periodic reports which contained a diagnosis of sexual torture and proposed public policies to prevent it.
As for the questions raised on military jurisdiction, the Congress had approved in 2014 an amendment to the Military Court of Justice, thus excluding from the jurisdiction of military courts cases in which civilians were victims. This enabled Mexico to comply with the decision of the Inter-American Court of Human Rights.
Turning to training activities to prevent torture, the delegation said that almost all the staff of the Prosecutor’s Office had been trained. In the department of citizen security and protection, over 100,000 state and federal officials had received the relevant training, while over 1.7 million staff of the department of national defense had been trained over the past six years, including generals, supervisors, officials and foot soldiers. The agreement signed with the Office of the United Nations High Commissioner for Human Rights in April 2019 contained, among others, points related to training and the evaluation of the impact of various training and capacity-building activities.
Mexico firmly believed that each recognized victim had the right to comprehensive redress. The Executive Commission for the Attention to Victims had coordinated cases involving 2,949 direct and 754 indirect victims of torture and ill-treatment during the 2014 to 2018 period; of those 691 had been included in the National Registry of victims. Each victim was entitled to legal assistance provided through the Office of the Public Defender in which more than 1,000 defence lawyers worked. To date, 51 resolutions of comprehensive redress to victims of torture to the tune of over $10 million had been made and 13 cases were currently being considered. Mexico was a contributor to the United Nations Voluntary Trust Fund for Victims of Torture.
The principle of non-refoulement was enshrined in the law and Mexico never extradited, expelled, or deported individuals to another State if it had reason to believe that the person ran a risk of being tortured or forcibly disappeared. The Criminal Code of Mexico provided for the competence of the country’s courts over its legal framework which enabled the prosecution of crimes which were not provided for in the national legislation but were a crime under an international treaty that Mexico was a party to.
Questions by Committee Experts:
DIEGO RODRÍGUEZ-PINZÓN, Committee Co-Rapporteur for Mexico, remarked that the implementation of the general law against torture was still pending and asked the delegation to provide a timetable for the implementation of its components, for example the national prevention programme. What was the reason for the harmonized protocol for the investigation of crimes of torture, and why did the investigation of such crimes not follow the usual investigative process of the Office of the Prosecutor? The Co-Rapporteur wondered why the Government decided to cancel the future national surveys of individuals deprived of liberty and stressed that this was an important instrument in understanding the conditions of detention in the country.
With regard to ex officio pre-trial detention, the Co-Rapporteur was concerned that Mexican law did not provide judicial discretion to review cases on a regular basis, thus violating the essential norms of international law. The dramatic situation of femicide in Ciudad Juárez continued. Civil society organizations continued to experience serious problems in accessing migrant holding centres. It was urgent to take measures to address impunity for acts of torture, the Co-Rapporteur said, urging the Government to make public statements at the highest levels that torture was not acceptable and would not be tolerated.
JENS MODVIG, Committee Chairperson and Co-Rapporteur for Mexico, took positive note of the reduction in the number of complaints of torture and asked the delegation to explain how the statistics were kept and who assessed the complaints. What steps were being taken to discontinue the participation of the military in public security? The Chairperson remarked that the number of deaths in detention that the delegation provided – 220 for a six-year period since 2013 – was rather low and asked the delegation to comment. Commenting on the steps taken to strengthen independent forensic medical examination, Mr. Modvig remarked that the Istanbul Protocol examination were still not being fully applied in the country and they seemed often to fall short of the standards.
Other Experts asked about steps and measures adopted to alleviate the hardship of juveniles held in detention in the Monterrey prison, and reiterated the concern about the adverse impact of the substantial role of the army in maintaining public order on fundamental rights and safeguards of persons deprived of liberty.
Replies by the Delegation:
Concerning the implementation of the general law against torture, the delegation said that a number of civil society organizations and academic institutions had been invited to the upcoming meeting on the drafting of the national torture prevention programme. Part of the national registry of detainees would be ready in a few weeks’ time, and meetings were ongoing with state-level prosecutors to ensure that all were linked up to the federal registry.
Explaining the specialized investigation protocols, the delegation said that the Office of the Prosecutor received all the cases, which it then allocated to specialized prosecutors who dealt with issues such as enforced disappearance, human trafficking, and torture. The specialized investigation protocols were adapted to the specificity and complexity of each crime they addressed.
There were three levels of authority in Mexico, said the delegation; there were national and federal laws, while general laws directly stemmed from the Constitution and established the operating rules for all the authorities within the federal state. International treaties held the highest place in the legal hierarchy in the country. “Arraigo” had not been eradicated from the legislation but had been extensively legislated in order to limit its use to only the cases of most serious crimes, under Ministerial oversight.
The delegation said that the decline in the number of complaints of torture was observed in all three bodies which received complaints – the National Commission for Human Rights, the police force and the Office of the Prosecutor. While this was not a complete victory, it was an observable trend, the delegate stressed.
The recent constitutional reform had provided for the setting up of the National Guard, a security body made up of police officers; it was entirely civilian and was under civilian oversight. The National Guard had been given a period of five years to fully develop and spread throughout the territory; in the meantime, the President could authorize the use of the army in the maintaining of public order. Withdrawing the army from certain parts of the territory would be a mistake, for there were some areas where the complexity of the problems and lack of local capacity warranted the continued presence of the national armed forces.
Concluding Remarks:
MARTA DELGADO PERALTA, Undersecretary of Multilateral Affairs and Human Rights at the Foreign Affairs Ministry of Mexico, reiterated the firm commitment of the Government of Mexico to eradicate impunity and to ensure that its institutions were free from torture. The new Government had received the mandate from the citizens who were tired of corruption, violations, and violence and that was why it had placed the respect of human rights at the top of its agenda. There must be a change in culture, from one that deeply believed that torture was needed to one of the rule of law and the fight against impunity. The Committee could help the State with its concluding observations and through sharing best practices from other countries.
JENS MODVIG, Committee Chairperson and Co-Rapporteur for Mexico, thanked the delegation and wished it all the best in its endeavours. The Committee would select three urgent recommendations for follow up, on which the State party would need to report within a year. All States parties were encouraged to also submit a review of the implementation of the Committee’s concluding observations.

CAT/19/3E

29th april 2019; Meeting n. 1728th:
🇩🇪 Federal Republic of the Germany.
Considerations of the Representatives:

Delegation of Germany:
01.
Dr. Peter JUGEL, Ambassador,
Deputy Permanent Representative of the Federal Republic of Germany, Permanent Mission of the Federal Republic of Germany to the United Nations and to the other International Organizations in Geneva, Head of Delegation;
02.
Dr. Almut WITTLING VOGEL,
Head of Directorate IV C (Human Rights, EU Law, International Law), Representative of the Federal Government for Matters Relating to Human Rights, Federal Ministry of Justice and Consumer Protection, Head of Delegation;
03.
Mr. Ulrich WEINBRENNER,
Head of Directorate-General M (Migration; Refugees; Return Policy), Federal Ministry of the Interior, Building and Community;
04.
Mrs. Ulrike BENDER,
Desk Officer, Division V I 4 (European Law, International Law), Federal Ministry of the Interior, Building and Community;
05.
Dr. Hans-Jörg BEHRENS,
Head of Division IV C 1 (Human Rights), Federal Ministry of Justice and Consumer Protection;
06.
Dr. Petra VIEBIG-EHLERT,
Desk Officer, Division IV C 1 (Human Rights), Federal Ministry of Justice and Consumer Protection;
07.
Mrs. Claudia RADZIWILL,
Assistant Desk Officer Division IV C 1 (Human Rights), Federal Ministry of Justice and Consumer Protection;
08.
Mrs. Samiah EL SAMADONI,
Public Ombudsperson for Social Affairs, Commissioner for the Land Police, Ombudsperson for Child and Youth services, Head of the Land Anti-Discrimination Agency, Schleswig-Holstein;
09.
Mr. Horst HUND, Head of Directorate-General (Prisons), Ministry of Justice Rhineland-Palatinate
10.
Mr. Joachim FERK, Head of the Executive Staff, Police Hamburg;
11. Mr. Ralf SCHROEER,
Head of Political Affairs, Permanent Mission of the Federal Republic of Germany to the United Nations and to the other International Organizations in Geneva;
12.
Mr. Fridtjof DUNKEL,
Second Secretary, Political Affairs, Permanent Mission of the Federal Republic of Germany to the United Nations and to the other International Organizations in Geneva;
13.
Mr. Christopher YIANNI, Interpreter Division Z A 4 Language Services, Federal Ministry of Justice and Consumer Protection;
14. Mrs. Marie-Christine SEHMER,
Interpreter Division IUD III 5 Language Services, Federal Ministry of Defense;
15. Mr. Reinhard MECKE,
Second Secretary, Political Affairs, Permanent Mission of the Federal Republic of Germany to the United Nations and to the other International Organizations in Geneva.

30th april 2019; Meeting n. 1730th:
🇿🇦 Republic of the South Africa.
Considerations of the Representatives:

Delegation of South Africa:
01.
Deputy Minister Honorauble Mr. John JEFFERY,
DOC&CD, Head of delegation
02.
Mr. V. SENNA,
IPID, Acting Executive Head
03.
Mr. Mathews SESOKO,
IPID, National Head of Investigations
04.
Mrs. Fikile MDHLULI,
IPID, Senior Legal Administration Officer (Legal Services)
05.
Mr. Mkhine N. SAPS,
Deputy Director – International Relations
06.
Mrs. Thandiwe MOTLONYE,
DCS, Deputy Commissioner-Personal Corrections;
07.
Mrs. Kalayvani PILLAY,
DOJ&CD, DDG;
08.
Mr. Pieter DU RAND,
DOJ&CD, Chief Director;
09.
Mr. John JEFFERY,
DOJ&CD, Deputy Minister;
10.
Mrs. Esther MALULEKE,
Department of Women, Acting Deputy Director General;
11.
Mr. Prince MAPONYANE,
Department of Women, Deputy Director;
12.
Mrs. Thanisa NAIDU-LEWIN,
State Law Advisor, OCSLA;
13.
Mrs. Nuria GIRALT,
ASD Human Rights, DIRCO.

30th april 2019; Meeting n. 1731st:
🇩🇪 Federal Republic of the Germany.
Considerations of the Representatives, Cont’d:

Delegation of Germany:
01.
Dr. Peter JUGEL, Ambassador,
Deputy Permanent Representative of the Federal Republic of Germany, Permanent Mission of the Federal Republic of Germany to the United Nations and to the other International Organizations in Geneva, Head of Delegation;
02.
Dr. Almut WITTLING VOGEL,
Head of Directorate IV C (Human Rights, EU Law, International Law), Representative of the Federal Government for Matters Relating to Human Rights, Federal Ministry of Justice and Consumer Protection, Head of Delegation;
03.
Mr. Ulrich WEINBRENNER,
Head of Directorate-General M (Migration; Refugees; Return Policy), Federal Ministry of the Interior, Building and Community;
04.
Mrs. Ulrike BENDER,
Desk Officer, Division V I 4 (European Law, International Law), Federal Ministry of the Interior, Building and Community;
05.
Dr. Hans-Jörg BEHRENS,
Head of Division IV C 1 (Human Rights), Federal Ministry of Justice and Consumer Protection;
06.
Dr. Petra VIEBIG-EHLERT,
Desk Officer, Division IV C 1 (Human Rights), Federal Ministry of Justice and Consumer Protection;
07.
Mrs. Claudia RADZIWILL,
Assistant Desk Officer Division IV C 1 (Human Rights), Federal Ministry of Justice and Consumer Protection;
08.
Mrs. Samiah EL SAMADONI,
Public Ombudsperson for Social Affairs, Commissioner for the Land Police, Ombudsperson for Child and Youth services, Head of the Land Anti-Discrimination Agency, Schleswig-Holstein;
09.
Mr. Horst HUND, Head of Directorate-General (Prisons), Ministry of Justice Rhineland-Palatinate
10.
Mr. Joachim FERK, Head of the Executive Staff, Police Hamburg;
11. Mr. Ralf SCHROEER,
Head of Political Affairs, Permanent Mission of the Federal Republic of Germany to the United Nations and to the other International Organizations in Geneva;
12.
Mr. Fridtjof DUNKEL,
Second Secretary, Political Affairs, Permanent Mission of the Federal Republic of Germany to the United Nations and to the other International Organizations in Geneva;
13.
Mr. Christopher YIANNI, Interpreter Division Z A 4 Language Services, Federal Ministry of Justice and Consumer Protection;
14. Mrs. Marie-Christine SEHMER,
Interpreter Division IUD III 5 Language Services, Federal Ministry of Defense;
15. Mr. Reinhard MECKE,
Second Secretary, Political Affairs, Permanent Mission of the Federal Republic of Germany to the United Nations and to the other International Organizations in Geneva.

Introduction:
The Committee against Torture this afternoon concluded its consideration of the sixth periodic report of Germany on measures taken to implement the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Peter Jugel, Deputy Permanent Representative of Germany to the United Nations Office at Geneva, recalled that Germany was a supporter of the Committee against Torture and the United Nations Voluntary Fund for Victims of Torture, and then introduced the German delegation.
Introducing the report of Germany, Almut Wittling Vogel, Head of Directorate IV C (Human Rights, European Union Law, and International Law) and the Representative of the Federal Government for Matters Relating to Human Rights, Federal Ministry of Justice and Consumer Protection, said that Germany had substantially improved the law on preventive detention and its’ practise; in 2018, the Grand Chamber of the European Court of Human Rights had recognized that in its current form, preventive detention was fully in line with the European Convention. The criminal and procedural law provided for the legal means to investigate alleged criminal conduct by police officers, and constituent states (Länder) had taken steps to further improve the corresponding complaint mechanisms, including by resorting to new instruments such as the Public Ombudspersons, who were independent and not bound by any instructions. Speaking about the violent clashes between demonstrators and police at the Group of 20 Summit in Hamburg in 2017, Mrs. Wittling Vogel said that Germany attached great importance to thoroughly investigating all allegations of disproportionate use of force by law enforcement officers, which was also of great significance for the public’s confidence in the police.
In the dialogue that followed, Committee Experts reiterated concern that serious discrepancies between the Convention’s definition of torture and that incorporated into domestic law created actual or potential loopholes for impunity. They urged Germany to amend the existing definition so that it covered a broader range of offences, to repeal the statute of limitations, and to include torture as a specific offence in its general criminal law. Commending Germany’s work to prevent extremism and radicalization, the Experts expressed concern about the far-reaching measures to combat terrorism adopted in the wake of the attack on the Berlin Christmas market in 2016, which weakened the right to a fair trial, and the right to free movement. They raised concern about the rise in attacks and violence against refugees and asylum-seekers and asked the delegation to outline the measures taken to protect this group and investigate and prosecute all acts of violence. The Experts discussed the training of state and law enforcement officials in preventing and combatting torture. The delegation was asked to inform on actions taken to address the reports of the complicity and involvement of some police officers in right-wing and neo-Nazi activities, including threats and intimidation of individuals.
In her concluding remarks, Mrs. Wittling Vogel thanked the Committee for a very fruitful dialogue in which the delegation was treated in a very fair manner.
Jens Modvig, Committee Chairperson, thanked the delegation and wished it all the best in its endeavours.
The delegation of Germany consisted of representatives of the Federal Ministry of Justice and Consumer Protection, Federal Ministry of the Interior, Building and Community, Federal Ministry of Defence, Land Anti-Discrimination Agency of Schleswig-Holstein, Ministry of Justice of Rhineland-Palatinate, and the Permanent Mission of Germany to the United Nations Office at Geneva.
The Committee will issue its concluding observations on the report of Germany at the end of its sixty-sixth session on 17 May. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at https://webtv.un.org/.
The Committee will next meet in public at 3 p.m. on Wednesday, 1 May, to conclude its consideration of the second periodic report of South Africa (CAT/C/ZAF/2).
Report:
The Committee has before it the sixth periodic report of Germany (CAT/C/DEU/6) and the list of issues prior to reporting (CAT/C/DEU/QPR/6)
Presentation of the Report:
PETER JUGEL, Deputy Permanent Representative of Germany to the United Nations Office at Geneva, recalled that Germany was a supporter of the Committee against Torture and the United Nations Voluntary Fund for Victims of Torture. Mr. Jugel then introduced the German delegation.
ALMUT WITTLING VOGEL, Head of Directorate IV C (Human Rights, European Union Law, and International Law) and the Representative of the Federal Government for Matters Relating to Human Rights, Federal Ministry of Justice and Consumer Protection of Germany, presenting the report, said that Germany had done its utmost to comply with the requirements defined by the European Court of Human Rights and the Committee’s concerns regarding preventive detention, as well as the requirements of the judgement of the German Federal Constitutional Court. The law on preventive detention and its practise had been substantially improved. The Federal authorities and all of the constituent states (Länder) had enacted new statutes on preventive detention, €200 million had been spent on new buildings, and a large number of additional personal had been hired, qualified to care specifically for persons in preventive detention. This reform had once and for all clarified the fundamental difference between penal imprisonment and preventive detention that aimed to protect the general public against dangerous persons. As recognized by the Grand Chamber of the European Court of Human Rights in 2018, preventive detention in Germany in its current form was fully in line with the Convention.
German criminal and procedural law provided for the legal means to investigate alleged criminal conduct by police officers, and constituent states had taken steps to further improve the corresponding complaint mechanisMrs. New instruments that the Länder were resorting to were the Public Ombudspersons, who were independent and not bound by any instructions. Turning to the extensive protests, including violent clashes between demonstrators and police at the Group of 20 Summit in Hamburg in 2017, Mrs. Wittling Vogel said that criminal investigations had been part of the analysis of the course of action taken by the authorities, and a parliamentary committee of inquiry had been set up in Hamburg. Germany attached great importance to thoroughly investigating all allegations of disproportionate use of force by law enforcement officers, which was also of great significance for the public’s confidence in the police.
On the prosecution of international crimes, Mrs. Wittling Vogel stressed that Germany had always been a strong supporter of international criminal justice. An important part of its efforts was the domestic prosecution of international crimes in accordance with the principle of universal jurisdiction. In 2008, a War Crimes Unit had been established in the Office of the Federal Prosecutor General, which pursued a very active policy to implement in practice the German Code of Crimes against International Law. This Code, together with the Rome Statute, allowed for the prosecution of acts of torture through its provisions on crimes against humanity and war crimes. The achievements of the War Crimes Unit, which had been repeatedly enlarged over the years, included the three convictions for war crimes by Higher Regional Courts, one of a member of the so-called “Islamic State”, another of a leader of a Syrian militia that had been in control of parts of Aleppo, and most recently, a member of another Syrian militia. All three convictions included allegations of torture. The Federal Prosecutor General was currently conducting criminal investigations in 80 cases and arrest warrants had been issued in 15 cases.
Questions by the Committee Experts:
CLAUDE HELLER ROUASSANT, Committee Co-Rapporteur for Germany, recognized the commitment and contribution of Germany to human rights and the prevention of torture and that in a general sense, the situation in prisons and detention centres was in step with international laws and standards. There were, however, reports of acts of violence by the security forces as well as questions related to the situation of migrants and refugees, including racist expressions and discriminatory attitudes, anti-Islamism and anti-Semitism in particular.
The delegation was asked about measures taken to incorporate the crime of torture in the general criminal legislation and not merely in the Code of Crimes against International Law, as well as to amend the articles of the Criminal Code and the Military Criminal Code to strengthen the prohibition of torture and ill-treatment, for example those related to harm inflicted in the discharge of official duties.
The Co-Rapporteur recognized that the rights enshrined by the Convention were already covered by the fundamental law and the European Convention for Human Rights, however, gaps remained in the legislation in regards to German nationals who committed acts of torture abroad. One such example was the case of Colonia Dignidad, in which German citizens participated in the commission of crimes of torture during the dictatorship in Chile in the 1970s. The absence of the stand-alone criminalization of torture in German law opened the door to impunity, Mr. Heller Rouassant stressed.
Germany maintained that, given the broad scope of judicial protection, it was not necessary to create a state body mandated with the protection of human rights. The Federal Anti-Discrimination Office, the Federal Agency for the Prevention of Torture, and the National Human Rights Institute were the three principal human rights bodies. With the adoption of the 2015 law, the National Human Rights Institute had been set up and in 2016 it had obtained A status under the Paris Principles. What were the selection criteria for its members and how was its governance structured? The Institute had taken on monitoring functions for the Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child – when would the mandate be extended to the Convention against Torture and other human rights conventions?
The delegation was asked about the appointment of members of the Federal Agency for the Prevention of Torture, a body that served as the national prevention mechanism in Germany, the resources allocated to it and the participation of civil society organizations in it work, as well as how its independence was maintained. Could the delegation comment on the claims that the budget allocated to the Agency was not sufficient to fully enable its work, in particular in relation to the investigation of allegations of violence committed by the police? The Agency was responsible for the monitoring of the 280 places of detention that existed in the country and for the monitoring of the expulsions and deportations. It had raised concern about the use of physical coercive methods and the use of violence by the police in some Länder.
Amnesty International for example had raised concerns about barriers to the effective investigation of complaints of torture and ill-treatment by the police due to the lack of investigation mechanisms of independent supervisory bodies. The European Committee for the Prevention against Torture and the Council of Europe had urged Germany to establish of an independent complaints mechanism to cover all the territory and all state agencies.
Germany firmly believed that its anti-terrorism legislation was fully in line with international law and standards, especially following the comprehensive analysis carried out by the Parliamentary Investigative Commission. In this context, the Co-Rapporteur commended Germany’s work to prevent extremism, including through education, engagement with youth, social work, and activities aimed at de-radicalization. However, Amnesty International had stated that following the attack in 2016 on the Berlin Christmas market, Germany had adopted far-reaching measures to combat terrorism which weakened the right to a fair trial, and the right to free movement.
The Co-Rapporteur took note of the reports which claimed that Germany facilitated the use of drones by a third party in countries which were not in conflict and which aimed to selectively eliminate certain individuals in violation of international law. In March 2019, the High Administrative Court of Rhine-Westphalia had made a statement in the case against Germany lodged by citizens of Yemen for its alleged participation in drone attacks in that country in 2012. The Court had found that Germany had a legal obligation to determine whether drone attacks originating from a military base on its territory were compatible with international law.
The Committee was concerned about the use of the insufficiently defined category of “potential attacker” in the recent anti-terrorism legislation, in particular the 2017 law which extended the monitoring abilities of the Federal Police and authorized the use of measures such as home arrests, electronic bracelets, and monitoring of communications of potential attackers, as well as the extension of pre-trial detention from 14 days to three months in some Länder.
The Committee commended the exceptional leadership of Germany and its response to the 2015 refugee crisis and recognized the political cost that this had incurred for the Federal Government, including political manipulation of the topic by extremist parties. In 2017, Germany had received 222,683 asylum requests, a 70 per cent drop compared to 2016, and the downward trend continued in 2018 and so far in 2019. Germany was also a leader in the return and repatriation of refugees, the Co-Rapporteur said, noting that the Federal Office for Migration and Refugees considered the risk of torture in the country of origin while examining asylum requests.
In spite of the worsening conditions in Afghanistan, the return of asylum-seekers from this country continued, and Committee was concerned about the prolonged detention of asylum-seekers awaiting deportation, including those deported under the Dublin procedure, as well as lack of procedures that would allow for the identification of vulnerable asylum-seekers and refugees, including victims of torture.
The attacks and violence against refugees and asylum-seekers continued to be an issue of concern, Mr. Heller Rouassant said, and recognized the seriousness with which the Federal Government had approached the issue, including the extensive consultations with civil society organizations and the adoption of the national action plan against racism and other forms of discrimination. On 16 April 2019, the law on organized return had been presented to Parliament; it included harsher measures against refugees and asylum-seekers, deprivation of their rights, and the withdrawal of welfare support. Could the delegation comment?
Mr. Heller Rouassant raised concern about the non-consensual genital mutilation of intersex persons, as 1,700 operations had been conducted without consent and not for urgent reasons.
Finally, the Co-Rapporteur raised the controversial issue of arms exports to Saudi Arabia and the United Arab Emirates and the link to the conflict in Yemen where numerous human rights violations and violations of international humanitarian law were ongoing. What legislation was in place to govern this issue in line with the human rights policy of Germany?
BAKHTIYAR TUZMUKHAMEDOV, Committee Co-Rapporteur for Germany, reiterated the concern that the serious discrepancies between the Convention’s definition of torture and that incorporated into domestic law created actual or potential loopholes for impunity. The German Criminal Code hardly reflected various facets of the Convention’s definition, having defined torture as “inflicting bodily harm or bodily injury”. The Committee urged Germany to amend the existing definition so that it covered a broader range of offences, to repeal the statute of limitations, as well as to include torture as a specific offence in its general criminal law.
As for the use of the Convention against Torture as a source of law or terms of reference in German courts, the Co-Rapporteur noted that the Federal Constitutional Court was more inclined to cite European instruments, rather than the universal Convention against Torture, and that it was not inclined to cite, as an auxiliary source, the views of the Committee.
Reiterating the critical importance of a legal definition of torture in the Criminal Code, the country’s most apparent source of law, the Co-Rapporteur referred to a case brought to the Committee’s attention by the Berlin-based European Centre for Constitutional and Human Rights, which involved a German citizen who had allegedly collaborated with Chilean authorities during the military junta. After the restoration of civilian rule in Chile, charges had been brought against that individual and Chile had requested legal assistance from Germany, including extradition. However, the non-extradition of its own citizens’ provision of the German basic law combined with the absence of a statute of limitations for the specific crime of torture and the lack of definition of the latter, allowed that German citizen to escape from both Chilean and domestic criminal judicial procedures.
Turning to the training of law-enforcement personnel, personnel of detention facilities, and medical doctors, Mr. Tuzmukhamedov asked about specific measures taken to ensure that the Istanbul Protocol Manual was taught to specific personnel on a regular and systematic basis. Were officers dealing with asylum-seekers trained in intercultural communication skills and in identifying signs of enduring mental suffering, and were interpreters trained in assisting medical experts in communications with persons subjected to physical or mental torture? Germany had been deploying its military forces as part of international missions for a long time, the Co-Raporteur noted, and asked about the training that the troops received in matters of international law. He remarked that the Manual on the Law of Armed Conflict did not include reference to the Convention against Torture or its Optional Protocol. Furthermore, the courses in the 2019 catalogue at the German Armed Forces United Nations Training Centre seemed to be devoid of any reference to international humanitarian law or international human rights law.
As for the fundamental legal safeguards, Mr. Tuzmukhamedov pointed to the gaps in the implementation of the relevant legislation, including the failure to inform persons taken into custody of their rights in writing in police stations in Brandenburg, Hamburg, and Mecklenburg-Western Pomerania. In Lower Saxony, leaflets for persons taken into custody under the Police Act were only available in German. The delegation was asked to comment on the systematic application of fundamental legal safeguards, and in particular the use of physical restraints on persons in custody.
Other Experts remarked that Germany’s legal system was well structured and robust, and in this legal machinery, the Federal Constitutional Court held a very important place. This Court had taken a raft of decisions, based on complaints filed by individuals whose rights had been infringed on by the authorities. In its 2009 decision, the Court had found that illegal transfers and secret detention had violated the Constitution of the State, the Experts noted, and asked the delegation to explain the steps taken to follow up on this decision. Recently, a group of journalists had filed a complaint with the Constitutional Court concerning the power granted to the intelligence services to monitor communications of foreign nationals, in violation of the freedom of expression.
Another Expert raised concern about the excessive length of solitary confinement, which for adults was up to four weeks and for juveniles up to two weeks. The recommended length of solitary confinement was 14 days for adults, while for juveniles, there was an increasing trend towards the abolition of this disciplinary sanction.
FELICE GAER, Committee Vice-Chairperson, reiterated the Committee’s concern about the rise in attacks and violence against refugees and asylum-seekers and asked the delegation to outline the measures taken to protect this group and investigate and prosecute all acts of violence. Turning to the issue of universal jurisdiction, Mrs. Gaer took positive note of the three convictions for war crimes and the substantial number of cases before German courts and asked how many charges involved human rights violations against the Yazidis in Iraq and crimes against humanity in Syria and Iraq. Raising concern about the reports of the complicity and involvement of some police officers in right-wing and neo-Nazi activities, including threats and intimidation of individuals, the Vice-Chairperson asked the delegation to inform on measures taken to address this issue.
Replies by the Delegation:
The delegation said that the German Institute of Human Rights played an important role in the protection of human rights in the country, and explained that the body was entirely independent. Its director and deputy director were selected by the Board of Trustees following a public announcement of the vacancy. The Board of Trustees was a group of independent individuals from various stakeholders, including academia, non-governmental organizations, and Parliament; only those had voting rights. Other members were various representatives of the Government and its agencies, who did not have voting rights. All the members were appointed by the Forum for Human Rights and by the Human Rights Committee of the German Parliament.
The current Coalition Government included in its work programme the adoption of a statutory regulation to prevent unnecessary operations on intersex children. Sex alignment surgery was only allowed if it was a life-saving measure. A brochure for parents had been issued which encouraged the parents not to resort to surgery.
As for the judgement of the Munster Upper Administrative Court judgement related to the German facilitation of the use of drones by a third party, the delegation explained that it concerned the role of the Ramstein Air Base and said that the drones were being steered by the United States army from the United States. Germany was discussing the incidents and the related international obligation with the United States and the personnel in the Ramstein Air Base. The judgement was unclear in that it had requested the Government “to do more” without clarifying what that entailed, and was not yet final as the Government was submitting an appeal.
Germany was conscious of the precarious financial situation of the national prevention mechanism and the insufficiency of its resources, the delegation said, and explained that a meeting between the Federal Government and the Länder would be convened to discuss the issue, since the mechanism needed to be funded by all.
Preventive detention was different from pre-trial detention, the delegation explained, and said that the legislation had been reformed in line with the recommendations made to Germany by the European Court of Human Rights, the Committee against Torture, and the German Federal Constitutional Court.
SAMIAH EL SAMADONI, Public Ombudsperson for Social Affairs, Commissioner for the Land Police, Ombudsperson for Child and Youth Services, Head of the Land Anti-Discrimination Agency of Schleswig-Holstein, explained that she was a part of the legislative branch, rather than the executive branch, from which the Ombudsperson was fully independent. The Office received complaints from citizens against the police as well as petitions by police officers concerning irregularities in the service; the Office also received and processed anonymous complaints and petitions. After the assessment of the situation, the Office would issue a recommendation for action to public authorities or Parliament, and a case could be referred to relevant authorities for disciplinary or criminal sanction. The Office could also take action on its own. The Ombudsperson was funded by the Länder’s Parliament. Since October 2016, the Ombudsperson had received 128 complaints by the public, which concerned mostly impolite treatment at police traffic checks, obstruction of justice, but also bodily harm and illegal detention. During the same period, the Office had received 371 petitions by police officers that addressed issues such as lack of equipment, irregularities in recruitment, mobbing and sexual harassment, or legitimacy of police internal investigations. To date, the Office had not identified any structural probleMrs.
The delegation said that the crime of torture was covered by a number of provisions in the German legislation, and the weight of the Convention and Germany’s understanding of the gravity of the crime could be seen in the sentencing range foreseen by the law. The Convention against Torture, by virtue of its implementing legislation which was based on the Constitution, had the status of a federal law.
In German law, an ongoing investigation in a foreign country did not suspend the statute of limitations, which was due to the role of the statute of limitations in ensuring legal peace and the obligation of German lawmakers to provide for uniform procedures. In the case of Colonia Dignidad, there had been intensive cooperation between Chilean and German authorities, which reflected the importance that Germany attached to the issue. A joint Commission had been set up to provide support to the victims and support the investigation.
The German law provided for the autonomy of the Länder to decide how to identify police officers, and different Länder used different models. As for the Federal Police, the Government did not see a reason for the police officers to wear identification badges or other forms of identification, and there had not been a single case or complaint which could not be processed because a person was not wearing an identification tag. Introducing the complaint mechanisms or procedures was within the competence of the Länder, and again, the picture was very diverse. For the Federal Government, it was important to have mechanisms in place to identify and address ill conduct and there was no need to introduce a complaints agency. Procedures for internal or external complaints were in place and were being used, including online. Several Länder had independent agencies, often in the form of an Ombudsperson.
Germany was currently in the second cycle of reporting on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings. The Coalition Agreement, on which the current Government was based, explicitly mentioned the action to enhance structures to fight human trafficking. A Working Group on human trafficking had been in place since 1997 to promote cooperation between the Federal Government and the Länder on the issue. Two new working groups had been set up, on human trafficking for purposes of labour exploitation, and on the protection of children from sexual violence and child trafficking. Among others, the Act to Protect People Working in Prostitution had been enacted in 2017.
The placement of asylum-seekers was within the competence of Länder, although the federal authorities were closely involved, namely the Federal Office of Migration and Refugees. The Coalition Agreement provided for the creation of the so-called “anchor centres” in order to streamline and solidify the arrival, decision and return process. An asylum-seeker would be placed in the centre upon arrival and would be moved into another accommodation once their request was processed. The centres had been set up in three Länder so far; the responsibility for their financing and running was with each Land while the Federal authorities provided tools for better and early identification of asylum-seekers and were responsible for assessing the asylum request. The anchor centres were not closed units nor were there centres for persons deprived of their liberty; the asylum-seekers were free to move and leave the centre, however, the right to asylum benefits were attached to their staying in the centre.
In terms of resettlement of refugees and asylum-seekers from third countries, Germany was a part of the European Union scheme under which it had agreed to accept 10,200 individuals in 2018/19. Under the scheme, Germany would receive 6,000 individuals from Turkey; 3,200 from Libya and Niger; 2,900 from Egypt, Ethiopia, Jordan and Lebanon; 500 would arrive as part of a pilot project based on private sponsoring; and another 500 would be received by Schleswig-Holstein.
At the moment, there were 240,000 persons awaiting deportation. Those were asylum-seekers whose requests had been rejected and denied on appeal; of those 180,000 had “tolerated status” as their deportation decisions had been suspended. The Orderly Return Act had lowered the threshold for immigration detention and strengthened the provisions to manage the deportation of deportees who avoided deportation, committed a criminal offence, or falsified documents. Those individuals could now be detained.
As far as deportations to Afghanistan were concerned, the delegation explained that following the attacks on the Embassy in Kabul, the deportations had been suspended since the local-level support was not available. The deportations were now resuming, on a case-by-case basis, for individuals fulfilling one of the three conditions: a potential terrorist threat, falsified identity, or criminal who had committed serious crimes. There was certainly no deportation of families or children.
The Istanbul Protocol had been translated into German and standards and guidelines for the identification and assessment of traumatized individuals were being developed. A number of training materials and training activities had been developed, often in cooperation with professional associations, for example of medical doctors. Prohibition and prevention of torture was an essential part of the basic training of the armed forces.
In terms of international justice, the delegation said that during the 2011-2019 period, the War Crimes Unit had conducted 55 investigative proceedings, which contained allegations of torture, and there were 37 investigations still open; the majority dealt with Iraq and Syria. As for the cases involving Yazidis, there was an ongoing case before a court in Munich in which a German citizen stood accused of the murder of a Yazidi child and the torture of the mother. The sale of arms was highly regulated and could only take place based on licences issued by the Federal Government after it assessed the impact on human rights and whether the arms would be used in a conflict.
The Code of Criminal Procedure contained the specific notification of rights procedure, which was applicable not only when a person was deprived of liberty but as soon as a person was accused, and it included a right to a lawyer, the right to refuse testimony, and others. The information leaflet on the rights of detainees was available in 48 languages in addition to German; if a police station did not have the leaflet in a required language, it could download it from the website of the Federal Ministry. The regulation of prisons had been in the competence of the Länder since 2006, and all had adopted their own prison laws, which largely implemented the provisions of the Federal Prison Act.
The delegation stressed that violence against refugees was declining; in 2018, for example, a 20 per cent drop had been registered. Violence had been registered in about two thirds of the offences. Germany had taken a number of steps to protect refugees and accommodation centres, including physical measures, information leaflets on living together, establishment of a helpline, and training of the staff in the accommodation centres on protection against violence. There was a minimum standard for the protection of women and children from violence in the accommodation centres.
Germany was interested in prosecuting its nationals who had been fighters with the Islamic State. Some were detained in Iraq; every citizen had the right to return to the country, but foreign fighters did not have the right to be actively retrieved. In individual cases, women and children had been returned from Turkey and Iraq; such returns must be prepared well in advance and with a lot of attention.
In 2018, there had been 140,000 victims of intimate violence, such as murder, stalking, or forced prostitution. Of those, 82 per cent were women and 73 per cent of all victims were German.
Follow-up Questions and Answers:
CLAUDE HELLER ROUASSANT, Committee Co-Rapporteur for Germany, reiterated the concern about the financial challenges that the national prevention mechanism continued to face and stressed that this mechanism was essential for the implementation of the Convention in Germany. The national prevention mechanism was prohibited by the legislation to publish the names of private institutions where violations of the Convention against Torture took place. The Co-Rapporteur commended the adoption of the Istanbul Protocol and its designation as the main tool in the fight against torture, and asked the delegation about tangible impacts of its implementation.
BAKHTIYAR TUZMUKHAMEDOV, Committee Co-Rapporteur for Germany, asked the delegation to explain the process by which rules and principles of international law were integrated in the German law, and in particular who decided on those principles. In this context, it was particularly important to ensure that national law contained a specific definition and prohibition of torture, especially as Germany had a fundamentally continental system of law where the “black letter of the law” mattered.
Responding, the delegation said that the National Agency for the Prevention of Torture was mandated to monitor the implementation of the Convention against Torture, thus it was not necessary to add the same mandate to the German Institute for Human Rights. Medical care was provided to refugees and asylum-seekers by the anchor centres themselves, while specialized medical care was available upon referral, including for traumatized individuals.
Germany was aware of the weaknesses in the Colonia Dignitas case and reiterated its commitment to ensuring the accountability of all its citizens who had committed serious crimes. The decisive movement in this case had been the entry into force of the statute of limitations, explained the delegate.
The national prevention mechanism had the obligation to report all violations of the Convention against Torture in all places of detention and institutions, including private ones; it had to report all those to the supervisory authority which was then under the obligation to take measures. However, it was difficult to publish the names of the offending institutions in the annual report, which was available to the public, and this was due to the fact that the national prevention mechanism could not visit all the private institutions, like care homes for the elderly, and publishing negative information about only some of them would amount to unfair treatment.
Concluding Remarks:
ALMUT WITTLING VOGEL, Head of Directorate IV C (Human Rights, European Union Law, and International Law) and the Representative of the Federal Government for Matters Relating to Human Rights, Federal Ministry of Justice and Consumer Protection of Germany, thanked the Committee for a very fruitful dialogue in which the delegation was treated in a very fair manner.
JENS MODVIG, Committee Chairperson, thanked the delegation and wished it all the best in its endeavours. The Committee would select three urgent recommendations for follow up, on which the State party would need to report within a year. All States parties were encouraged to also submit a review of the implementation of the Committee’s concluding observations.

CAT/19/4E

1st may 2019; Meeting n. 1733rd:
🇿🇦 Republic of the South Africa.
Considerations of the Representatives, Cont’d:

Delegation of South Africa:
01.
Deputy Minister Honorauble Mr. John JEFFERY,
DOC&CD, Head of delegation
02.
Mr. V. SENNA,
IPID, Acting Executive Head
03.
Mr. Mathews SESOKO,
IPID, National Head of Investigations
04.
Mrs. Fikile MDHLULI,
IPID, Senior Legal Administration Officer (Legal Services)
05.
Mr. Mkhine N. SAPS,
Deputy Director – International Relations
06.
Mrs. Thandiwe MOTLONYE,
DCS, Deputy Commissioner-Personal Corrections;
07.
Mrs. Kalayvani PILLAY,
DOJ&CD, DDG;
08.
Mr. Pieter DU RAND,
DOJ&CD, Chief Director;
09.
Mr. John JEFFERY,
DOJ&CD, Deputy Minister;
10.
Mrs. Esther MALULEKE,
Department of Women, Acting Deputy Director General;
11.
Mr. Prince MAPONYANE,
Department of Women, Deputy Director;
12.
Mrs. Thanisa NAIDU-LEWIN,
State Law Advisor, OCSLA;
13.
Mrs. Nuria GIRALT,
ASD Human Rights, DIRCO.

Introduction:
The Committee against Torture this afternoon concluded its consideration of the second periodic report of South Africa on measures taken to implement the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, John Jeffery, Deputy Minister at the Department of Justice and Constitutional Development of South Africa, recalled that the horror of torture was embedded in South Africa’s history and that its past bore memories of widespread and institutionalized torture, which for the apartheid security forces had been a matter of routine. South Africa had enacted the Prevention and Combatting of Torture of Person Act in 2013, while the amendment to the Criminal Procedure Act had removed the previous 20-year statute of limitation in respect of torture. The principle of non-refoulement had been firmly codified in the Anti-Torture Act and the Refugees Act. The Independent Police Investigative Directorate had become operational in 2012, and worked to ensure accountability and transparency of the police, including through investigating cases of death in police custody as a result of police actions and complaints of torture or assault filed against a police officer. In March 2019, Parliament had approved the ratification of the Optional Protocol to the Convention. A number of bodies with an oversight mandate over places of detention – the Judicial Inspectorate for Correctional Service, the Independent Police Investigative Directorate, the Military Ombud, the Health Ombud – would play an important role in the national prevention mechanism under the auspices of the South African Human Rights Commission. Various initiatives had been implemented to reduce pre-trial detention, Mr. Jeffery said, and the Judicial Case Flow Management Committees had been set up at national, regional and local levels to ensure speedier investigation and finalization of cases, address blockages, and improve overcrowding in prisons in relation to un-sentenced and pre-trial detainees.
Committee Experts remarked that the anti-torture law failed to stipulate minimum sentence for acts of torture, thus opening up the space for a suspended sentence to be given to perpetrators of this most serious crime, and its implementation was a problem too as to date no public official had been prosecuted under this law. The Experts raised concern about the announced withdrawal of South Africa from the Rome Statute of the International Criminal Court and in particular about the International Crimes Bill, which would effectively provide for immunity of certain persons for international crimes, thus making the prohibition of the crime of torture not absolute. The Committee stressed the critical importance of ensuring adequate funding, transparent selection of members, and the full independence and impartiality of the South African Human Rights Commission, particularly in its upcoming role as coordinator of the national prevention mechanism. There was an increase in arbitrary detention for minor offences such as common assault, failure to provide proof of identity, or petty theft, as well as an increasing reliance on life imprisonment, which had recorded an 818 per cent growth since the turn of the millennium. In addition, most persons deprived of their liberty seemed to be young, marginalized, and vulnerable persons, usually under the age of 25, and 80 per cent were non-whites; almost half were held in pre-trial detention, with male non-whites more likely to be detained prior to trial.
In his concluding remarks, Mr. Jeffery said that over the past 25 years, the new democratic government had removed old apartheid laws and institutions, built new democratic institutions and initiated laws based on constitutional rights and freedoMrs. It had taken a collective responsibility to eradicate torture, including through the ratification of the Optional Protocol under which the national prevention mechanism would be created.
Jens Modvig, Committee Chairperson, in his concluding remarks, said that the question of intersectionality was being heavily debated during the treaty bodies review process. All treaty bodies aimed to avoid unnecessary duplication but the question was what was unnecessary duplication and what were the intersecting areas. He underlined that torture could be committed against women, children, or persons with disabilities, and it must be acceptable for the Committee against Torture to address those issues in the dialogue.
The delegation of South Africa consisted of representatives of the Department of Justice and Constitutional Development, Department of Home Affairs, Independent Police Investigative Directorate, Department of Correctional Services, Department of Women, Department of International Relations and Cooperation, Department of Social Development, Office of the Chief State Law Adviser, South African Police Service, as well as the representatives of the Permanent Mission of South Africa to the United Nations Office at Geneva.
The Committee will issue its concluding observations on the report of South Africa at the end of its sixty-sixth session on 17 May. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at https://webtv.un.org/.
The Committee will next meet in public at 10 a.m. on Thursday, 2 May, to review the third periodic report of Benin (CAT/C/BEN/3).
Report:
The Committee has before it the second periodic report of South Africa (CAT/C/ZAF/2) and its reply to the list of issues (CAT/C/ZAF/Q/2/Add.2).
Presentation of the Report:
JOHN JEFFERY, Deputy Minister at the Department of Justice and Constitutional Development of South Africa, recalled that the horror of torture was embedded in his country’s history, as its past bore memories of widespread and institutionalized torture, which for the apartheid security forces had been a matter of routine. Mindful of its tragic past, South Africa had ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1998. In July 2013, acting on the Committee’s concluding observations following the review of the initial report in 2006, South Africa had incorporated the Convention into its domestic law by enacting the Prevention and Combatting of Torture of Person Act. The Act provided for the offence of torture of persons and for the prevention and combatting of torture of persons within or across the national borders, and imposed a maximum penalty of R100 million or life imprisonment, or both, in the case of a conviction. By prescribing a penalty of up to life imprisonment, the Act reflected the gravity of the crime, and upheld the absolute, non-derogable character of the prohibition of torture, the Deputy Minister stressed.
The amendment to the Criminal Procedure Act had removed the previous 20-year statute of limitation in respect of torture, and the principle of non-refoulement had been firmly codified in the Anti-Torture Act and the Refugees Act 1998. Furthermore, the Independent Police Investigative Directorate had become operational in 2012, and worked to ensure accountability and transparency of the police, including through investigating cases of death in police custody as a result of police actions and complaints of torture or assault filed against a police officer. In March 2019, both Houses of Parliament – the National Assembly and the National Council of Provinces – had approved the ratification of the Optional Protocol to the Convention against Torture, the Deputy Minister said, and added that a significant amount of work had already gone into the establishment of the national prevention mechanism. South Africa already had a number of institutions which had an oversight mandate over places of detention and carried out many of the functions required by the national prevention mechanism in terms of their respective mandates. The funding of the national prevention mechanism had commenced on 1 April 2019; the Department of Justice and Constitutional Development had allocated the funding, ring-fenced for the next three years, amounting to 1.6 million rand for 2019/20, 2.3 million rand for 2020/21, and 2.4 million rand for 2021/22.
Corporal punishment had been prohibited in detention settings in 1995 and banned in schools in 2000. The common law defence of ‘reasonable chastisement’ allowed parents to use corporal punishment in the home as a form of discipline; it had been prohibited and declared unconstitutional by the South Gauteng High Court in October 2017, and the matter was now before the Constitutional Court. Various initiatives had been implemented to reduce pre-trial detention, Mr. Jeffery said, including the comprehensive national human rights framework aligned to the Luanda Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa and the Mandela Rules. Judicial Case Flow Management Committees had been set up at national, regional and local levels to ensure speedier investigation and finalization of cases, address blockages, and improve overcrowding in prisons in relation to un-sentenced and pre-trial detainees. A number of bodies had an oversight mandate over places of detention, such as the Judicial Inspectorate for Correctional Service, the Independent Police Investigative Directorate, the Military Ombud, the Health Ombud, and others, who would place an important role in the national prevention mechanism under the auspices of the South African Human Rights Commission.
Questions by the Committee Experts:
ANA RACU, Committee Co-Rapporteur for South Africa, welcomed the adoption of a number of laws in South Africa, in particular on the prevention of torture, on combatting trafficking in persons, on sexual offences, and on the enactment of the Independent Police Investigative Directorate Act.
Turning to the definition of torture and its criminalization, the Co-Rapporteur noted that the Prevention and Combatting of Torture of Person Act highlighted the seriousness of the crime of torture through its harsh punishment and represented a significant framework contributing to the prevention and investigation of acts of torture and punishment of its perpetrators. Still, significant gaps remained both in the legal protection and the implementation of the laws. The Act did not categorize torture as one of the serious crimes and consequently did not stipulate a minimum sentence, thus creating a possibility for perpetrators to be given a suspended sentence, which was not commensurate with the gravity of the crime. Furthermore, it did not adequately address the responsibility of the State to provide redress to victims of torture, and to date, no public official had been prosecuted under this Act. Which specific norms and legislation had been used to prosecute State officials for isolated incidents of assault, murder or torture? What was the status of the ongoing revision of the enabling legislation for the Independent Police Investigative Directorate, mandated to investigate cases of assault and torture by the members of the police?
The Committee was concerned about the announcement in 2016 that South Africa would withdraw from the Rome Statute of the International Criminal Court and its subsequent repeal of the domestic enacting legislation. This decision had been challenged by civil society organizations and political parties before the North Gauteng High Court, which in February 2017 had declared that the decision by the National Executive to deliver the notice of withdrawal from the Rome Statute without prior parliamentary approval was unconstitutional. In this context, what was the status of the international criminal jurisdiction in the country?
The South African Human Rights Commission had a broad mandate and had received A status under the Paris Principles. However, there were concerns about the lack of financial resources to enable it to fulfil its mandate, lack of clarity concerning the selection of personnel, and the lack of a specific mandate to monitor places of detention. These questions were increasingly important in the light of the recent developments related to the establishment of a national prevention mechanism under the Optional Protocol to the Convention, said Mrs. Racu. The preferred model proposed for South Africa was a multiple-body national prevention mechanism with the South African Human Rights Commission playing a lead functional and coordinating role. In this context, ensuring adequate funding, transparent selection of members, and the full independence and impartiality of the mechanism was essential.
As for the monitoring of places of detention, the Judicial Inspectorate for Correctional Services had appointed an Independent Correctional Centre Visitor for each correctional centre to monitor prison conditions. However, non-governmental organizations claimed that many lacked independence in their oversight and raised concerns about the lack of regular and independent monitoring of police cells.
The Co-Rapporteur commended South Africa for the legal provisions adopted in order to ensure the implementation of the fundamental legal safeguards, noting in particular that the country was among the few in the region which had a functional and successful system of legal aid, including a system of free legal aid for vulnerable groups. A custody register was kept in all police stations, and every action taken by the police officers regarding persons in custody, from their arrest to their release from police custody, must be recorded in the occurrence book. Were those accessible to lawyers, Human Rights Commissioners, monitoring entities and family members? Were police officers who failed to make an entry into the book held accountable? Had the law been amended to provide for the mandatory audio and video recording of interrogation rooms?
Access to a doctor was another vital safeguard – could the delegation explain how all detainees in police custody could access a doctor and medical examination? The Committee was concerned that since the entry into force of the Anti-Torture Act in 2013, the number of deaths in custody had increased but no torture cases had been brought before the courts under this Act.
Another issue of concern was the increase in arbitrary detention for minor offences such as common assault, failure to provide proof of identity, or petty theft. There were reports of security forces arbitrarily arresting migrants and refugees, even those with documentation. From the legal point, all relevant procedures for the protection of refugees and asylum-seekers were in place, including the appeal procedure, the principle of non-refoulement, and access to legal aid. However, concerns had been noted about the treatment by the police in prisons and the Lindela Repatriation Centre, as well as detention of asylum-seekers for deportation purposes. What steps were in place to ensure that migrants and refugees were not returned to a country where they ran a risk of being tortured?
Xenophobic violence was on the rise throughout the country, often targeted at foreign nationals running small shops and migrant workers who were accused of “stealing jobs” from the nationals. The Co-Rapporteur requested information on xenophobic incidents and steps taken to investigate them, and measures put in place to protect the most affected ethnic and religious groups.
South Africa had made significant institutional and legislative advances to address gender-based violence, the Co-Rapporteur said, noting in particular the establishment of specialized courts dealing with sexual offences, the setting up of the community-based Thutuzela centres for the care for victims of gender-based violence, and the adoption of the National Instructions on Domestic Violence. Still, domestic violence remained pervasive and included physical, sexual, emotional and verbal abuse, and the rate of reporting and prosecution of violence against women remained very low. How many cases of gender-based violence had been investigated and prosecuted over the past five years and what were the sentences handed down?
The Committee noted with concern the increasing reliance on life imprisonment in South Africa, which had recorded an 818 per cent growth in such sentences since the turn of the millennium. Legal provisions for parole were very complicated, and it seemed that minors could be sentenced to life imprisonment without parole. How many persons had been sentenced to life imprisonment so far, and what was being done to reduce the number of life prisoners and to amend the relative legislation?
The Committee was alarmed by the number of deaths in custody: 216 deaths in police custody and 366 deaths as a result of police action during the 2015-2016 period. The investigations into those deaths conducted by the Judicial Inspectorate of Correctional Service did not seem to be efficient, especially when deaths occurred at the hand of police officers.
ESSADIA BELMIR, Committee Vice-Chairperson and Co-Rapporteur for South Africa, raised the question of training for public officials and law enforcement officers in preventing and combatting torture, particularly in detention facilities, and asked whether it included the provisions of the Istanbul Protocol and how the impact of the training activities was measured. Was such training incorporated in the basic instruction of law enforcement officers, the so-called national instruction? What initiatives were in place to disseminate the Convention, including in collaboration with civil society organizations? Mrs. Belmir raised concern about the frequency of torture and ill treatment at the hand of public officials, as well as the pattern and acceptance of violence in the society.
Most persons deprived of their liberty seemed to be young, marginalized and vulnerable persons, usually under the age of 25, and 80 per cent were non-whites; almost half were held in pre-trial detention, with male non-whites more likely to be detained prior to trial. The 2008 legal amendment had replaced the use of solitary confinement with the practice of “segregation”, under judicial orders. What complaint mechanism was available to detainees? The rampant prison overcrowding was often at the root of multiple forms of violence that occurred in prisons, including torture, sexual violence, and excessive use of force, and which sometimes resulted in deaths. A contributing factor to overcrowding was the high rate of pre-trial detention, which could last up to two years. The data on the number of complaints of acts of torture and the number of convictions seemed to indicate that police officers were charged with and prosecuted for acts of torture only exceptionally.
South Africa had made substantial progress concerning reparations, including the provisions contained in the Anti-Torture and the Anti-Trafficking Acts. What was the status of the victim in the law? The Co-Rapporteur urged the State party to adopt a clear legal definition which would then facilitate access to reparation and rehabilitation. What forms of reparations and redress were available and provided to victims?
The Truth and Reconciliation Commission had done excellent work, but some of its recommendations, especially those related to the accountability of perpetrators, investigation of enforced disappearance, and restitution for victims, had not been implemented as yet. There were still people in South Africa who enjoyed impunity.
Turning to the situation of refugees, migrants and asylum-seekers, the Co-Rapporteur raised concern about the proposals contained in the Government’s white paper on migration, such as to process foreign citizens on the border, including their detention. What was the age of majority in South Africa and how were children treated by the criminal justice system, Mrs. Belmir asked? She noted cases in which minors in conflict with the law were put in the same places as children in need of care.
Other Experts noted the conflicting statements from various South African officials concerning the withdrawal from the Rome Statute of the International Criminal Court and asked the delegation to clarify the situation and brief on the status of the International Crimes Bill, which proposed that a person might enjoy immunity from international crimes under certain conditions, including for crimes of torture.
The Anti-Trafficking Act established the extra-territorial jurisdiction of South African courts over the crime of child trafficking – had any persons been charged, prosecuted, and/or convicted under this law? Had there been any investigations and prosecutions of State officials involved in crimes of trafficking in persons, including those who reportedly had falsified birth certificates and other official documentation? What was being done to resolve the chronic and long-standing lack of funding for the implementation of the Domestic Violence Act?
An Expert recalled that reparation to victims of torture was an obligation of the State party and noted that in South Africa, civil proceedings by the victim could only take place if there was a criminal conviction of torture for the perpetrators, which was a concern given the limited number of convictions under the 2013 Anti-Torture Act. Another Expert remarked that segregation had replaced the abolished practice of solitary confinement but it was in fact a disguised form of solitary confinement as it allowed for isolation for a period of two months, in clear violation of the Nelson Mandela Rules.
JENS MODVIG, Committee Chairperson, addressed the issue of healthcare for detainees, and asked whether there were any formal agreements in place with subcontracting non-governmental organizations which provided health care and what systems of oversight of the treatment of prisoners were in place.
Replies by the Delegation:
Responding to the questions and comments, the delegation said that South Africa held human rights activists in high regard and stressed that without those brave people, the struggle for freedom in the country would not have been possible. Their rights, like all those living in South Africa, were enshrined in the Constitution and systems were in place to ensure that complaints of rights violations could be lodged and punished.
South Africa’s long history of oppression and subjugation was well known and expertly documented and the struggle for emancipation had not been easily won nor was it something the Government took for granted, stressed the delegation. South Africans knew what it meant to fight for freedom and shared the collective responsibility to never again go back to the dark and awful place that sought to dehumanize. Thus, to label South Africa violent and by extension, its people violent, was to undermine the legacy that the country lived with every single day, stressed the delegation.
The systematic manner in which the law had been used for generations to subjugate, dehumanize, and rob people of their dignity on an enormous scale must be recognized. Instead of holding those most responsible for committing crimes against humanity – apartheid had been and still was a crime against humanity – South Africa had decided to establish a Truth and Reconciliation Commission and begin the process of healing and forgiving. It had been a time for peace and the need for healing and forgiveness had been paramount. This had motivated the Government to take an unprecedented step, unlike its apartheid predecessors, to sign and ratify myriad international human rights instruments, chief amongst them the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That was also why South Africa had recently ratified the Optional Protocol to the Convention.
In a general comment on the questions raised, the delegation said that many of the issues related to issues that fell under other treaties and some went beyond the scope of the Convention against Torture. An example was a host of questions raised on xenophobia and its causes, and details of xenophobic attacks, which were considered under the International Convention on the Elimination of All Forms of Racial Discrimination. In South Africa, xenophobia was about class issues and competition over resources, notably for the poorest in society, the delegation underlined.
As far as the parole system was concerned, the delegation said that at present, a person who had received a life imprisonment had to serve at least 25 years of the sentence before parole could be considered. There were different periods for the qualification of parole for such inmates, depending on when they had been sentenced; the parole of persons sentenced to life before 1 October 2004 had been identified in 2018 as a priority project for review and had been placed on the permanent agenda of the National Management Committee.
A victim of torture did not need to secure a criminal conviction to claim compensation from the perpetrator of torture and could choose both criminal and civil avenues to seek redress. The South African law did not provide for a mere administrative award of damages but required a judicial process initiated by the issuance of a civil claim.
The Department for Correctional Services coordinated and ensured the provision of primary healthcare to the inmate population, including babies of incarcerated women.
As for the long periods of pre-trial detention, the delegation said that case flow management was under judicial responsibility, and it was the Chief Justice who issued norms and standards for the finalization of cases. The postponement of cases was dealt with through the judiciary who generally readily granted postponement to accommodate the accused. Various measures had been initiated to limit long outstanding cases through specific monitoring of such cases and addressing blockages across the criminal justice system. The correctional services legislation had been amended and it now provided for referral of remand prisoners to court before completion of a period of two years in detention; if the court decided that the remand detainee must continue with detention, subsequent applications were submitted annually. There were approximately 46,000 remand detainees and those detained for longer than two years constituted less than five per cent.
Segregation as a penalty did not amount to solitary confinement under any circumstances, the delegate stressed. It could be administered upon the written request of the inmate, or be prescribed by the correctional medical practitioner on medical grounds, when the inmate displayed violence or was threatened with violence, or for escape attempts.
The Independent Correctional Centre Visitors was an oversight mechanism of the Inspecting Judge which was appointed for each correctional facility to inspect the conditions of detention and report on the treatment of inmates and on corrupt or dishonest practices. All deaths in custody were reported to the Inspecting Judge, whether they were natural or not, and an independent senior official was appointed to conduct the investigation into the death of a prisoner. If the death was due to unknown or undetermined causes, a medical post-mortem and legal full investigation must be conducted without exception to determine the causes and circumstances.
South Africa had chosen not to provide for minimum sentences in the anti-torture legislation, said the delegate, adding that a study of practices of other States indicated diverging approaches to sentencing.
The President of South Africa was personally leading the fight against gender-based violence and had called a Presidential Gender-Based Violence and Femicide Summit in November 2018, during which he had acknowledged the brutal reality of those crimes. In addition to passing legislation preventing and prohibiting domestic violence, harassment, sexual offences, and trafficking in persons, there were various policies and programmes in place to support victims and prevent secondary traumatization. Sexual violence was the most prevalent form of gender-based violence, and in 2017 almost 50,000 cases had been reported. Since 2013, South Africa had established 84 sexual offences courts which offered a catalogue of victim-centric services, including court preparation services, and intermediaries who conveyed questions and statements received from the court to the victim in a sensitive and age-appropriate manner, and who could appear in cases involving child witnesses and witnesses with intellectual disabilities. There were 55 Thuthuzela care centres in support of victims, which were attached to hospitals or clinics where a survivor could go for medical attention and have evidence of the crime collected.
South Africa had moved away from the death penalty in 1994, which had been replaced by long-term imprisonment with the maximum being a life sentence. Sentencing was a matter of judicial independence and judicial discretion. The South African Human Rights Commission was institutionally independent and would be the coordinating body for the national prevention mechanism.
The notice of withdrawal from the Rome Statute, as well as the International Crimes Bill, had been tabled in Parliament. Neither of the houses of the Parliament had pronounced themselves on the notice of withdrawal, thus the current status was that South Africa was a State party to the Rome Statute. Both bills would have to be reviewed by the next administration. South Africa remarked that three of the permanent members of the United Nations Security Council were not States parties to the International Criminal Court and yet could exercise a veto in relation to the referral of cases to the Court. The restructuring of the International Criminal Court was something that the international community needed to consider. Furthermore, the cases before the court were only from Africa; the success rate in recent cases had not been great and could lead to the argument that the decisions on who to prosecute were subjected to a political agenda. South Africa was outraged by the recent denial of United States visas to the prosecutors of the International Criminal Court.
There were currently 130 shelters for victims of gender-based violence in the country. Survivors from rural areas were reluctant to be admitted to shelters due to stigma and cultural beliefs and largely preferred to use psychological support services and skills empowerment. In addition to shelters, there were 206 White Door Safe Spaces of Hope, an emergency temporary intervention which provided 72-hour service response to the challenge of the lack of safe accommodation for women victims of gender-based violence whose lives were in danger. Khuseleka One Stop Centres were community-based centres that provided comprehensive services, including medical, legal and skills development services by multi-disciplinary teams comprised of social workers, nurses, doctors, police officers, court preparation officers, and prosecutors.
Restorative and healing programmes had been developed to support victims of trafficking in persons, contribute towards their psycho-social restoration and healing, and enable them to reintegrate in their families and communities.
As for minors in conflict with the law, the delegation said that the age of majority in South Africa was 18 years. In terms of the Child Justice Act, a child under the age of 10 did not have a criminal responsibility and could not be prosecuted for the offence, but had to be referred to the probation officer for assessment and placement in an accredited therapeutic programme, as part of the intervention. The age of criminal responsibility was 10. Children between the ages of 10 and 18 were referred to as young offenders or children in conflict with the law and were dealt with by the child justice court.
The Prevention and Combatting of Hate Crimes and Hate Speech Bill was before Parliament, but would have to be reviewed by the next administration. The Bill defined hate crime as an offence recognized under any law, the commission of which was motivated on the basis of that person’s prejudice, bias, or intolerance toward the victim. The crime was based on the characteristics of the victim, including race, gender, sex including intersex, ethnic or social origin, colour, sexual orientation, religion, belief, language, birth, disability, gender identity, albinism, and others.
The amendment bill on the Independent Police Investigative Directorate, which was currently with the National Council of Provinces, proposed that torture be elevated as a stand-alone offence. All death in custody cases and post-mortem examinations were conducted by pathologists. There were 23 cases involving torture with the National Prosecution Authority.
With regard to arbitrary arrests by the police, including the arrests of asylum-seekers and refugees, the delegation stressed that arrest was defined by a comprehensive legal framework, which could not be selectively and restrictively applied. Once an arrest was affected, arrested persons were brought before courts within a period of 48 hours. If arrested persons were migrants, refugees or asylum-seekers, the police would inform the Department of Home Affairs to assist in determining whether the arrestee was legally residing in the country and whether they could be accordingly released or processed for deportation.
South Africa did not detain migrant children, and children intercepted in the course of anti-trafficking operations were handed over to the Department of Social Development. Asylum-seekers were only detained at Lindela facility, once their asylum application had been rejected. To ensure that asylum applications were not arbitrarily refused, the Standing Committee under the Refugees Act was in place as an independent structure to formulate and implement asylum-granting procedures and review decisions of the Refugees Status Determination Officers. An independent refugee appeal board was also in place.
The Lindela facility had a permanent health clinic and a referral system to specialist medical care providers. It was regularly inspected by the International Committee of the Red Cross and the South African Human Rights Commission to ensure compliance with international standards.
The Citizenship Act of 1995 made provisions for the documentation of stateless children. The principle of non-refoulement was fully embedded in the law in terms of the Anti-Torture Act, the Refugees Acts, and court decisions, and South Africa did not return any person to a country where his or her life was likely to be harmed.
In terms of protests, the Constitutional Court had found the section on public gatherings of people unconstitutional and the Government was working to amend the legislation. Unfortunately, a number of protests had become violent, for example the 2015/16 student protest for free tertiary education which had caused 492 million rand in damages to university property.
Questions by Committee Experts:
ANA RACU, Committee Co-Rapporteur for South Africa, reminded the delegation that the Convention covered not only acts of torture but all acts of cruel, inhuman or degrading treatment or punishment. The Co-Rapporteur reiterated the concern that the Anti-Torture Act did not stipulate a minimum sentence for acts of torture which opened up the space for a suspended sentence to be given to perpetrators. How efficient were the monitoring visits to correctional facilities? Over the last five years, how many medical reports containing findings of torture had been transmitted to the prosecution and how many cases had been instigated?
ESSADIA BELMIR, Committee Vice-Chairperson and Co-Rapporteur for South Africa, said that the legal provisions allowed for a prolonged pre-trial detention of up to two years and it was estimated that four per cent of all pre-trial detainees already exceeded this limit. Furthermore, pre-trial detainees had a different legal status from the sentenced inmates and should be held separately. As for the use of violence by the law enforcement officers, the Co-Rapporteur noted that in KwaZulu-Natal province, 257 deaths in custody had been recorded, and asked the delegation to explain.
Other Experts referred to the replies concerning the withdrawal of South Africa from the International Criminal Court and said that the problem was not whether the country was a party to the Rome Statute or not. The heart of the problem was that the International Crimes Bill, which would probably accompany withdrawal, would effectively provide for immunity of certain persons for international crimes, thus making the prohibition of the crime of torture not absolute.
The Experts stressed the intersectionality of many of the issues that were under the remit of the Committee, and cited as an example the Convention against Apartheid, which was not too long, but the issues it dealt with were relevant to the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and a number of other international human rights instruments. Human rights issues could not be compartmentalized, the Experts stressed.
Replies by the Delegation:
The delegation said that Parliament had decided against introducing a minimum sentencing in the anti-torture legislation. The number of life prisoners had been dramatically reduced. The national prevention mechanism that South Africa had chosen was the multi-body model in which the monitoring and inspections were carried out by existing agencies, which were coordinated by the South African Human Rights Commission.
Segregation was not solitary confinement and was provided for under the correctional services act. The delegation stressed that all laws in South Africa must be constitutional and those which were not were struck down. The law prescribed for the prisoner in segregation to be checked upon by a prison guard every four hours, and visited by the head of the prison, a registered nurse and a psychologist once a day.
South Africa believed in the interdependence and indivisibility of human rights and understood the intersectionality of the areas of the Committee’s work. The treaty bodies needed to acknowledge the reporting challenges for developing countries, said the delegation, and urged Committee Experts to refer to the proceedings from South Africa’s review by other treaty bodies, and in which a number of similar questions had been asked and answered.
South Africa had recently adopted the white paper on the management of international migration, in which it had recognized the nexus between migration management and development. The reality should also be acknowledged in that the management of international migration could not be divorced from security considerations, stressed the delegation. South Africa did not have a security approach to migration as attested by the institution of special procedure for fast-tracking of asylum requests, which had been used to process more than 200,000 nationals of neighbouring countries.
Concluding Remarks:
JOHN JEFFERY, Deputy Minister at the Department of Justice and Constitutional Development of South Africa, said that over the past 25 years, the new democratic government had removed old apartheid laws and institutions, built new democratic institutions, and initiated laws based on constitutional rights and freedoMrs. Still, poverty, inequality, and unemployment remained critical challenges, as was the fight against corruption. South Africa had taken a collective responsibility to eradicate torture, including through the ratification of the Optional Protocol under which the national prevention mechanism would be created.
JENS MODVIG, Committee Chairperson, thanked the delegation for the dialogue and said that the question of intersectionality was being heavily debated during the treaty bodies review process. All treaty bodies aimed to avoid unnecessary duplication but the question was what was unnecessary duplication and what were the intersecting areas. Torture could be committed against women, children, or persons with disabilities, and it must be acceptable for the Committee against Torture to address those issues in the dialogue. The Committee would select three urgent recommendations for follow up, on which the State party would need to report within a year. All States parties were encouraged to also submit a review of the implementation of the Committee’s concluding observations.

CAT/19/5E

2nd may 2019; Meeting n. 1734th:
🇧🇯 Republic of the Benin.
Considerations of the Representatives:

Delegation of the Benin:
01.
Her Excellency Séverin M. QUENUM,
Minister of Justice, Minister of Justice and Legislation;
02.
Her Excellency Mr. Eloi LAOUROU,
Ambassador, Permanent Representative of Benin to Geneva;
03.
Mrs. Akouavi Ines L. HADONOU-TOFFOUN,
Director of the Penitentiary Administration and Protection of Human Rights;
04.
Mr. Bienvenu A. HOUNGBEDJI,
Director of Legal Affairs at the Ministry of Foreign Affairs and Cooperation (MAEC);
05.
Mr. Jiles Sèdjro YEKPE,
Director General of the Penitentiary Agency of Benin;
06.
Mr. Elonm Mario Pierre-Cécil METONOU,
Public Prosecutor at the Court of First Instance of Cotonou;
07.
Mr. Urbain LALOU,
Central Director of the Judiciary Police;
08.
Mr. Randal OGUIDAN, in service at the Directorate of Legal Affairs at the Ministry of Foreign Affairs and Cooperation;
09.
Mr. Chite Flavien AHOVE,
Counselor at the Permanent Mission of Benin in Geneva;
10.
Mrs. Fifamè GOUSSOUEMEDE-DOVONOU,
Attached.

3rd may 2019; Meeting n. 1737th:
🇧🇯 Republic of the Benin.
Considerations of the Representatives, Cont’d:

Delegation of the Benin:
01.
Her Excellency Séverin M. QUENUM,
Minister of Justice, Minister of Justice and Legislation;
02.
Her Excellency Mr. Eloi LAOUROU,
Ambassador, Permanent Representative of Benin to Geneva;
03.
Mrs. Akouavi Ines L. HADONOU-TOFFOUN,
Director of the Penitentiary Administration and Protection of Human Rights;
04.
Mr. Bienvenu A. HOUNGBEDJI,
Director of Legal Affairs at the Ministry of Foreign Affairs and Cooperation (MAEC);
05.
Mr. Jiles Sèdjro YEKPE,
Director General of the Penitentiary Agency of Benin;
06.
Mr. Elonm Mario Pierre-Cécil METONOU,
Public Prosecutor at the Court of First Instance of Cotonou;
07.
Mr. Urbain LALOU,
Central Director of the Judiciary Police;
08.
Mr. Randal OGUIDAN, in service at the Directorate of Legal Affairs at the Ministry of Foreign Affairs and Cooperation;
09.
Mr. Chite Flavien AHOVE,
Counselor at the Permanent Mission of Benin in Geneva;
10.
Mrs. Fifamè GOUSSOUEMEDE-DOVONOU,
Attached.

Introduction:
The Committee against Torture this afternoon concluded its consideration of the third periodic report of Benin on measures taken to implement the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Timothee Yabit, Deputy Director of the Cabinet of Ministers of Benin, outlined the progress made since the report’s submission to the Committee. The new Criminal Code had entered into force on 1 January 2019 and represented an embodiment of Benin’s commitment to abolishing the death penalty. It incorporated a full definition of the crime of torture as a stand-alone crime, in line with the Convention. The new Criminal Procedure Code of 2012, the Law on Judicial Organization of 2018, and the creation of a judge for freedoms and detention would ensure greater rights for defence and greater autonomy for investigative and prosecution bodies. The establishment of six new courts to guarantee and facilitate access to justice and the setting up of criminal chambers in the tribunals in 2018 to expedite criminal proceedings would greatly contribute to reducing the duration of pre-trial detention. In December 2018, the National Human Rights Committee pursuant to the Paris Principles had been set up, which also served as a national prevention mechanism and had the right to conduct unannounced visits to all places of detention. Benin continued to pursue measures to improve the conditions of detention, including the construction of four new prisons, and had mandated the independent Penitentiary Agency of Benin with the management of prisons. All those measures demonstrated the will of the Government of Benin to implement the Convention, the Deputy Director said, noting that much still remained to be done, including in improving material conditions of custody in police units.
In the discussion that followed, Committee Experts welcomed the 2018 law establishing the National Human Rights Committee and noted that the text did not specifically mandate this body with the functions of a national prevention mechanism. What steps would Benin take to resolve this legal ambiguity and to respect the preventive nature of the national mechanism? The definition of torture in the new Criminal Code did not contain the critical assumption of instigation, consent or acquiescence of a public official or any other person acting under State authority, they said, stressing that a crime of torture must not be subjected to a statute of limitations or to amnesty. Furthermore, the definition must also include the prohibition of other cruel, inhuman, or degrading treatment or punishment. Pre-trial detention remained an important problem as Benin seemed to resort to this measure often and rather abusively. The Committee was particularly concerned about the detention of minors and that over 90 per cent of detained children were awaiting judgement. Experts decried the conditions of detention and noted that Benin had the second highest rate of incarceration in West Africa which greatly contributed to the chronic problem of prison overcrowding.
In his concluding remarks, Mr. Yabit said the delegation had taken due note of the Committee’s recommendations. He expressed hope that the Committee would be patient and support Benin’s efforts to implement them. He recalled that Benin faced numerous challenges in meeting the obligations stemming from the Convention.
Jens Modvig, Committee Chairperson, thanked the delegation for the numerous responses it had provided as well as its constructive approach.
The delegation of Benin consisted of representatives of the Directorate for Prison Administration and Protection of Human Rights, Penitentiary Agency of Benin, Judicial Police, and the Permanent Mission of Benin to the United Nations Office at Geneva.
The Committee will issue the concluding observations on the report of Benin at the end of its sixty-sixth session on 17 May. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at https://webtv.un.org/.
The Committee will next meet in public at 10 a.m. on Tuesday, 7 May to consider the sixth periodic report of the United Kingdom (CAT/C/GBR/6).
Report:
The Committee has before it the third periodic report of Benin (CAT/C/BEN/3).
Presentation of the Report:
TIMOTHEE YABIT, Deputy Director of the Cabinet of Ministers of Benin, said that in 1992 Benin had ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adding that the third periodic report that was before the Committee had been drafted in a participative manner with a whole range of stakeholders, including non-governmental organizations and relevant United Nations agencies and organizations. In his update to the Committee on the progress Benin had made since the submission of that report, Mr. Yabit said that in July 2012, Benin had acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming to abolish the death penalty, which had been followed with the immediate commutation of the death sentence for 14 individuals. All references to capital punishment had been removed from the new Criminal Code, which had entered into force on 1 January 2019 and which was an embodiment of the commitment to abolish the death penalty.
The new Criminal Code had incorporated a full definition of the crime of torture as a stand-alone crime, in line with the Convention. With the adoption of the new Criminal Procedure Code in 2012 and the new Law on Judicial Organization in 2018, as well as the creation of a judge for freedoms and detention, Benin had taken concrete steps to ensure greater rights for legal defence, and greater autonomy for investigative and prosecution bodies, and had strengthened the responsibility of the judicial administration. Benin had established six new courts to guarantee and facilitate access to justice and had set up criminal chambers in the tribunals in 2018 to expedite criminal proceedings. These measures would greatly contribute to reducing the duration of pre-trial detention. The new Criminal Procedure Code clarified extradition procedures, cooperation with the International Criminal Court, and the access of independent organizations to places of detention. In December 2018, the National Human Rights Committee pursuant to the Paris Principles had been set up, which also served as a national prevention mechanism and had the right to conduct unannounced visits to all places of detention.
In addition, Benin continued to pursue measures that aimed to improve the conditions of detention, including the construction of four new prisons, in Savalou, Abomey, Parakou, and Abomey-Calavi. With a view to improve efficiency, the independent Penitentiary Agency of Benin had been mandated with the management of prisons, while Benin was developing a law on the penitentiary regime which would provide for the creation of a specialized body of prison agents. The Republican Police had been created by the fusion of the police and national gendarmerie and it followed two key rules: training and discipline. As a result, abusive detention practices had been rejected and custody registers were now standardized and kept up to date. All those measures demonstrated the will of the Government of Benin to implement the Convention, the Deputy Director said, noting that much still remained to be done, including in improving material conditions of custody in police units.
Acting on the recommendations made to Benin by this Committee and the Sub-Committee for Prevention of Torture, Benin had taken a range of measures to strengthen the prevention of torture, and was currently studying an ambitious programme to build and rehabilitate prisons and bring them in line with international standards and so address one of the root causes of prison overpopulation. The number of judges had grown from 73 in 2008 to 290, with 77 judges still in training, and the setting up of the National Human Rights Commission would, without doubt, accelerate the promotion and adoption of good practices at all levels of the judiciary. As far as juvenile justice was concerned, Mr. Yabit noted that the principle of the best interest of the child, enshrined in the Children’s Code of 2015, had begun to be understood and accepted by all. A specialized training module had been produced and disseminated among juvenile judges and personnel in the centres for minors in conflict with the law.
Questions by the Committee Experts:
ABDELWAHAB HANI, Committee Co-Rapporteur for Benin, remarked that Benin had ratified the Optional Protocol to the Convention in 2006 but no steps had been taken to implement the national prevention mechanism. The Co-Rapporteur welcomed the law establishing the National Human Rights Committee of 2018 and noted that this text did not contain a specific provision mandating this body with the functions of a national prevention mechanism. What steps would Benin take to resolve this legal ambiguity and to respect the preventive nature of the national mechanism?
Mr. Hani commended Benin for enshrining the protection from torture in its Constitution and welcomed the judicial activity of the Constitutional Court and several judgements in cases involving torture, including the February 2012 judgement involving charges against a brigade commander for arbitrary arrests, bodily harm, and “savage treatment”. What was meant by “savage treatment” and what was its status in the law?
The Co-Rapporteur welcomed the criminalization of torture as a stand-alone crime in the revised Criminal Code in 2018 and remarked that the definition of torture did not contain the critical assumption of instigation, consent or acquiescence of a public official or any other person acting under State authority. A crime of torture must not be subjected to a statute of limitations nor to amnesty, stressed Mr. Hani. The prohibition of torture must contain a definition of torture as per article 1 of the Convention, as well as the definition and prohibition of other cruel, inhuman, or degrading treatment or punishment.
The Sub-Committee on Prevention of Torture had carried out two visits to Benin, in 2008 and in 2016, and had made a number of recommendations concerning the full implementation of the fundamental legal safeguards in practice, including through the respect for the Code of Criminal Procedure and the Nelson Mandela Rules. Concern had been raised about the right to a legal counsel and access to a lawyer, since most lawyers seemed to be concentrated in the capital. Also, the right to a medical examination did not seem to be systematically implemented in practice, and a number of detainees had not been allowed to contact their family and relatives. Prison registers did not seem to be managed properly and some had altered or torn pages, which might indicate an attempt to change the reality and facts. This was a very serious shortcoming.
What was the situation of prisoners who were serving their sentences in Benin’s prisons based on the request of the International Criminal Tribunal for Rwanda? The Committee was concerned about the use of solitary confinement and other disciplinary measures for those prisoners.
Pre-trial detention seemed to be the rule rather than the exception. The Sub-Committee on Prevention of Torture had found some 40 children in Cotonou prison and among them several had spent a very long time in pre-trial detention. This was illegal, the Co-Rapporteur stressed and asked the delegation to provide data on pre-trial detainees and steps taken to address the gaps in the implementation of the law. Civil society organizations were authorised to carry out monitoring visits to places of detention, but the carrying out of the visits was hampered by a number of obstacles and restrictions. For example, the civil society organizations had to renew their authorization and permits every three months.
The cooperation agreement Benin had with the United States, under which Benin agreed not to transfer United States nationals to the International Criminal Court for prosecution for crimes against humanity and international crimes, was contrary to the provisions of the Convention, stressed the Co-Rapporteur.
The Committee was very concerned about the prosecution and killing of children deemed to be “sorcerers” under traditional beliefs, which in some instances seemed to amount to infanticide. Mr. Hani stressed the responsibility of Benin to protect these children.
HONGHONG ZHANG, Committee Co-Rapporteur for Benin, remarked that the third periodic report of Benin was rather poor on data and statistics, making it hard for the Committee to assess the progress. Could the delegation inform on training provided to law enforcement officials, the penitentiary staff, and the judiciary on the prevention of torture, namely its content and how it incorporated the Istanbul Protocol, Tokyo Rules, Bangkok Rules, and Mandela Rules.
Pre-trial detention remained an important problem as the State party seemed to resort to this measure often and rather abusively. The maximum length of pre-trial detention was five years for serious crimes and three years for infractions, but in reality, for a significant proportion of detainees, time spent in pre-trial detention was longer than the sentences they received. In March 2019, 60 per cent of the 1,129 detainees in the Abomay prison were pre-trial detainees. The Committee was particularly concerned about the high number of children in pre-trial detention; some children were detained for months and even years, and almost all the detained children (between 90 and 99 per cent) were awaiting judgement. A recent visit to Cotonou prison by a non-governmental organization had found that of the 41 detained children, only four were actually serving a sentence.
Mrs. Zhang raised a number of concerns related to conditions of detention. Zambia had the second highest rate of incarceration in West Africa, which greatly contributed to the chronic problem of prison overcrowding. The quantity and quality of food provided to inmates was deplorable in all the prisons in the country, and there were occasions when inmates had been fed only once a day – including detained children – due to a delay in the payment of food suppliers. The poor hygiene conditions, lack of access to clean water and proper toilets, and inadequate health care and services contributed to poor health, and even deaths, among the inmates. What steps was Benin taking to guarantee that the conditions of detention conformed to international and regional standards?
The Committee was greatly concerned about the inhuman and degrading conditions in which minors were detained, including violence against children in police stations. A number of children stated that they had been handcuffed and beaten by the police, and most questioning took place without a lawyer present, which opened up the space for brutality and coerced confessions. The age of criminal responsibility was 13 years, and despite recommendations by a number of human rights bodies, Benin had not yet taken steps to apply international standards in this regard.
The delegation was asked to outline the complaint mechanisms for torture and ill treatment and provide data on the number of complaints received, police inquiries opened, as well as on the prosecutions and sentencing. What measures were in place to protect witnesses?
Turning to the question of impunity for acts of torture and ill treatment, the Co-Rapporteur recalled that the Committee had already requested Benin to set up a truth commission to look into the allegations of torture committed during the 1972-1990 period, repeal the 1999 amnesty law, and ensure that there was no impunity for torture. Could the delegation update the Committee on the steps taken on these issues?
The 2015 Children’s Code prohibited infanticide, including ritual infanticide, however, the killing of “sorcerer children” was still being practiced in the north of the country with seemingly full impunity. There were cases of child abduction and kidnapping, and several mutilated corpses of disappeared children had been found, with their organs missing, but it seemed that these cases had not been investigated or prosecuted. The Committee remained concerned about wide-spread child labour and child marriages, and the trafficking or exploitation of children under the guise of vidomégons, a traditional practice under which parents allow their children to live and work for richer relatives. Children placed in couvents vadous for traditional and religious reasons were at risk of ill treatment and being deprived of education, particularly girls.
Other Experts raised questions concerning sexual violence in schools and sexual exploitation of children in couvents vadous, as well as allegations of sexual violence by the police, and in this context asked the delegation to provide data and statistics on the measures taken to address those issues. The Experts took positive note of the new law against child trafficking and asked the delegation to inform on cases in which individuals had been prosecuted for and convicted of child trafficking. Marriage by abduction, whereby a girl would be abducted, raped and married by the perpetrator, used to be widespread in rural areas, but civil society organizations had raised concerns that this practice continued and was concealed by the communities.
Replies by the Delegation:
TIMOTHEE YABIT, Deputy Director of the Cabinet of Ministers of Benin, said the delegation was pleased at the opportunity to take part in the dialogue. He thanked the Committee Experts for their questions as well as civil society organizations for their interest in Benin.
Concerning the delay in setting up the national prevention mechanism, which Benin regretted, this was now a thing of the past. The law setting up the National Human Rights Committee covered the tasks of the national preventive mechanism. The key mission of the National Human Rights Committee was to ensure the implementation of the provisions of the international instruments that Benin was a party to, including the Committee against Torture. Benin believed that this was sufficient to allow the National Human Rights Committee to carry out the duties of the national prevention mechanism.
Citizens could bring cases directly to the Constitutional Court, in which case the competent authorities and the relevant magistrates could do the following: annul the relevant procedural acts affected by this case; provide reparations for the violations; or hand down criminal sanctions against the perpetrators. When violations were carried out by officials, administrative sanctions could be levied. This was how the Constitutional Court ruled concerning custody and detention.
Regarding “savage or harsh treatment”, Mr. Yabit said that it was not a legal concept. The Constitutional Court used plaintiffs’ words – hence the quotation marks. On the jurisprudence and statistics department, it was not abolished but it faced difficulties in meeting expectations due to human and material shortages, so it was difficult for the delegation to provide the requested statistics for the Committee.
On the criminalization of torture in the new Criminal Code, Mr. Yabit said that there were some shortcomings regarding the Criminal Code’s reference to torture. As soon as possible, the Government would ask Parliament to amend the Criminal Code to explicitly address cases where a person committed torture at the request or with the consent of a civil servant. In Benin, torture was clearly a crime, clearly established in the Criminal Code, and punished by harsh punishments of five to 10 years’ imprisonment. Furthermore, the Constitution established disobedience as a duty in a situation where carrying out the order would lead to the violation of fundamental rights.
On the Nelson Mandela Rules, access to a lawyer was guaranteed as soon as the preliminary investigation was launched. Minutes would become null and void if a person’s right to legal counsel was not respected. However, outside of urban centres, the lack of legal counsel nearby could make it difficult for an individual to enjoy this right. The Government was aware of this problem. While the State could not intervene in the legal counsel recruitment process, it would encourage the order of attorneys to take bold measures to facilitate access to legal counsel.
Turning to access to a doctor, it was a legally guaranteed by law, said Mr. Yabit, adding that this right was scrupulously respected by police units. The police reminded the defendant of his rights in that regard and it was recorded in the minutes. Doctors had to be chosen by the person who had been accused. In Benin, all doctors took an oath of office testifying to their independence. The obligation to provide information to parents was strictly observed. The family often came in to offer financial assistance to the accused. Custody was under the oversight of the Prosecutor of the Republic, who was also responsible for extensions. The eight-day timeframe for custody was in everyone’s interest as it allowed for thorough investigations. It gave the victim time to calm down before facing the prosecutor.
The Government was currently putting in place a centralized digitized registry. A pilot phase was ongoing in Cotonou, Porto-Novo and Parakou. Regarding prison registries, training sessions had been held for prison staff. There was a uniform system in place, which included registries with numbered pages. There was also a health and death registry system pertaining to the court and the infirmary.
Pursuant to an agreement entered into by Benin with the International Criminal Court, a prison was set up with Beninese public funds, whereby 17 Rwandans inmates were housed in the country. Their imprisonment conditions complied with criteria established by the United Nations, which also provided oversight via its specialized agencies.
In reaction to the discrimination that took place in the Cotonou Prison, measures had been taken to put an end to the corruption that had led to inequalities. A census of the inmates per building had been conducted. This had led to an equitable distribution of inmates in the facilities. The provisions of decree 72-293 were not in step with the provisions of the Nelson Mandela Rules: for instance, solitary confinement was not subject to judicial review. A draft bill was being examined to address these shortcomings. Efforts were also being made to renovate solitary confinement cells. The Ministry of Justice oversaw this practice, which was on the decline.
While it was true that pre-trial detentions were too long, their average length had gone down to 17.27 months in 2017 from 21.76 months in 2016 and 30 months in 2015. The investigative and sentencing judges had to step up efforts with regards cases related to people in pre-trial detention, Mr. Yabit said. Too often, the identification and location of alleged perpetrators of crimes remained random, as a lot of people did not have a fixed or permanent job which would facilitate their identification. In that context, detention was considered as a mean of ensuring access to the accused or appeasing victims’ anger, he explained.
There were two categories of stakeholders that were active in prisons. There were those who were able to visit prisons as per international conventions, such as Amnesty International, which visited the Cotonou Prison on 1 April 2019 for instance. There were also associations that considered themselves partners of the penitentiary administration, and purported to organize activities for the benefit of inmates. The latter type of activities required in-depth verifications that warranted the restrictions imposed by the Government.
Five courts supporting children were in place and benefitted from the help of the United Nations Children’s Fund. This mechanism aimed to effectively implement domestic and international norms related to the protection of children. In addition, 164 cases of violence against children had led to sentences being handed down against perpetrators. There was no tolerance of violence against children in Benin; the Government sought, through its criminal policy, to strictly enforce laws related to such violence, notably when it had a sexual component. Mr. Yabit assured that male minor inmates were separated from adults. There was however no specific infrastructure for female minor inmates, as there were very few of them – no more than 13 in all of Benin.
Pursuant to the Beninese Constitution, which firmly prohibited torture, the risk of being subjected to torture could be invoked to deny a request for extradition. On asylum seekers, the Government did not have a deportation policy. Expulsion remained an administrative or judicial sanction which resulted from a foreigner’s violation of national laws or regulations.
While acknowledging that overcrowding was an issue in prisons, Mr. Yabit said efforts were deployed to improve inmates’ living conditions. If ill, inmates had access to healthcare services free of charge at the prison infirmary, which also offered basic medication. A study ordered by the Ministry of Justice had shown that the illness rate in prisons was inferior to that of the population in general.
Questions by Committee Experts:
ABDELWAHAB HANI, Committee Co-Rapporteur for Benin, asked for clarifications on the aftermath of demonstrations that had recently taken place in Benin. He recalled the importance of respecting the rights of human rights defenders and peaceful demonstrators, amongst others. Regarding the study on inmates’ health, he pointed out that there were children suffering from malaria. Could the delegation provide more information on that issue? He also reiterated his request for information on Benin’s amnesty laws. The delegation had not replied to the Committee’s questions on the Children’s Code. The Optional Protocol had been ratified by Benin, and while the State had some room to manoeuver, there had to be a formal procedure of appointment and a protection of the national prevention mechanism’s mandate and ability to visit detentions centres, he stated. He expressed hope that the Government would open the Pandora’s box of crimes that took place between 1972 and 1990, to address them.
On access to doctors, with whom did the responsibility to ensure access to healthcare during custody fall, he asked. On solitary confinement, the Committee expected Benin to adopt new rules. Could the delegation provide information on the renewal rates related to corruption charges and the removal of air-conditioning systems, which the Government should make more widespread rather than uninstall? Did the Government have any figures on administrative expulsions that could be shared with the Committee?
HONGHONG ZHANG, Committee Co-Rapporteur for Benin, said while some responses were encouraging, others had not been as satisfactory. But on the whole, the delegation had been candid, she said, thanking its members. With respect to custody questioning, there were provisions but no specific training programmes. Were there methods in place to assess the effectiveness of measures against torture and contributing to its prevention? She requested more information about the educational programmes on human rights which the Government intended to roll out.
The Co-Rapporteur said that judges seemed to use pre-trial detention as the preferred method, whereas it should be a last-resort measure. Efforts should be made to reduce the length of pre-trial detention. Could the delegation submit figures on the inmate population, she asked, pointing out that the State party had shown difficulties in providing data to the Committee. Noting that the delegation had been honest about the overcrowding problems, she stressed that much remained to be done in that regard. She asked about the implementation decree pursuant to the Children’s Code.
Other Experts asked if there needed to be a legal sentence for civil compensation to be provided to victims.
ABDELWAHAB HANI, Committee Co-Rapporteur for Benin, enquired about the staggering figures on ritual infanticides. On the agreement between Benin and the United States, the Committee had not received an answer. Did Benin intend to include non-refoulement and the universal jurisdiction referred to in article 8 in its domestic laws?
HONGHONG ZHANG, Committee Co-Rapporteur for Benin, while acknowledging that there were criminal legal rules on the violence against children, said information was still lacking on the measures in place by the State. She asked for information on the disappearances of children in the northern part of the country and the prosecution of those responsible for those crimes.
Replies by the Delegation:
TIMOTHEE YABIT, Deputy Director of the Cabinet of Ministers of Benin, responding to the questions on the protests, said that in some regions they had made voting impossible. And yet, there had been no civil victims because the rules of engagement had been clear: Government forces were not to use force. Protestors had looted buildings, set administrative vehicles on fire and thrown Molotov cocktails: these were not peaceful demonstrations.
On the judicial map, links between courts and prisons were satisfactory. Measures had been adopted to ensure that issues relating to transport of detainees no longer arose. Turning to the national prevention mechanism, another delegate said Benin sought to have a single institution with various mandates. A process was underway to provide the National Human Rights Committee with adequate resources.
Pointing out that the Government had concluded an agreement with the Bar Association on the proper use of legal aid, he expressed hope that this accord would allow the establishment of an improved mechanism. While he was unable to provide a timeline for the implementation of these changes, he assured the Committee that the provision of legal aid was an absolute necessity in the Government’s opinion.
Regarding healthcare costs incurred during custody, he said they were dealt with directly with the detainee who had requested the healthcare services. If the detainee’s health suddenly deteriorated and required a transfer to a hospital, the cost was borne by the State.
The amnesty law was one of the bases of the “Republican Pact” in Benin. The rule of law in Benin came about as a result of this amnesty law, he recalled. There were no plans to review it; it was considered an achievement in the country. There were mechanisms to compensate victims of torture and other atrocities during the revolution. The delegation did not have figures at hand, however.
On the training for law enforcement officials, another delegate said courses were imparted to ensure proper understanding of human rights as well as the way in which they were defended. When specific training was needed, academics and experts from Benin and other countries were invited.
The agreement with the United States was bilateral and would not undergo any revisions, stated another delegate. Due note was taken of the Committee’s recommendations on this matter and the non-refoulement issue.
Mr. Yabit said that disciplinary proceedings were underway in relation to corruption charges as measures had been promptly taken by the hierarchy of the penitentiary facility.
Concluding remarks:
TIMOTHEE YABIT, Deputy Director of the Cabinet of Ministers of Benin, said the delegation had taken due note of the Committee’s recommendations. He expressed hope that the Committee would be patient and support Benin’s efforts to implement these recommendations. He recalled that Benin faced numerous challenges in meeting the obligations stemming from the Convention.
JENS MODVIG, Committee Chairperson, thanked the delegation for the responses provided and its constructive approach.

CAT/19/6E

7th may 2019; Meeting n. 1740th:
🇬🇧 United Kingdom of Great Britain and 🇮🇪 Northern Ireland.
Considerations of the Representatives:

Delegation of the United Kingdom of Great Britain and Northern Ireland:
01.
Paul CANDLER,
Head of Delegation, Director for International and Rights, Ministry of Justice;
02.
Alice ADAMSON,
Deputy Director for Global Strategy and Rights, Ministry of Justice;
03.
Alison STRADLING,
Team Leader for United Nations Human Rights, Ministry of Justice;
04. Naomi SEPHTON,
Senior Lawyer, Government Legal Department;
05. Gill HUNTER,
Head of International Strategy and Funding, Home Office;
06.
Angela HAWLEY,
Policy Lead for Serious Mental Illness, Legislation and Justice, Department of Health and Social Care;
07.
Raphaela THYNNE,
Senior Policy Adviser for Rights and Equality Policy, Northern Ireland Office;
08.
Brian GRZYMEK,
Deputy Director for Criminal Justice Policy and Legislation, Department of Justice Northern Ireland (Northern Ireland Executive);
09.
Donna MacKINNON,
Deputy Director for Community Justice, Scottish Government;
10.
Alyson FRANCIS,
Deputy Director for Communities, Welsh Government;
11.
Bob LAST,
Deputy Head, Political and Human Rights Team, UK Mission to the United Nations, Foreign and Commonwealth Office.

8th may 2019; Meeting n. 1743rd:
🇬🇧 United Kingdom of Great Britain and 🇮🇪 Northern Ireland.
Considerations of the Representatives, Cont’d:

Delegation of the United Kingdom of Great Britain and Northern Ireland:
01.
Paul CANDLER,
Head of Delegation, Director for International and Rights, Ministry of Justice;
02.
Alice ADAMSON,
Deputy Director for Global Strategy and Rights, Ministry of Justice;
03.
Alison STRADLING,
Team Leader for United Nations Human Rights, Ministry of Justice;
04. Naomi SEPHTON,
Senior Lawyer, Government Legal Department;
05. Gill HUNTER,
Head of International Strategy and Funding, Home Office;
06.
Angela HAWLEY,
Policy Lead for Serious Mental Illness, Legislation and Justice, Department of Health and Social Care;
07.
Raphaela THYNNE,
Senior Policy Adviser for Rights and Equality Policy, Northern Ireland Office;
08.
Brian GRZYMEK,
Deputy Director for Criminal Justice Policy and Legislation, Department of Justice Northern Ireland (Northern Ireland Executive);
09.
Donna MacKINNON,
Deputy Director for Community Justice, Scottish Government;
10.
Alyson FRANCIS,
Deputy Director for Communities, Welsh Government;
11.
Bob LAST,
Deputy Head, Political and Human Rights Team, UK Mission to the United Nations, Foreign and Commonwealth Office.

Introduction:
The Committee against Torture this afternoon concluded its consideration of the sixth periodic report of the United Kingdom on measures taken to implement the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Paul Candler, Director of International and Rights Policy in the Ministry of Justice of the United Kingdom, introducing the report, stressed that the United Kingdom would remain a party to the European Convention on Human Rights and did not plan to repeal or reform the Human Rights Act in the aftermath of its departure from the European Union. The United Kingdom’s obligations under the Convention reached across its three devolved administrations in Northern Ireland, Scotland and Wales. Mr. Candler outlined work done to address domestic violence and modern slavery for which the Government had pledged increased funding of 100 million pounds through 2020 to tackle violence against women and girls, including protecting funding to Rape Support Centres. Work on this area from the devolved administrations included the Welsh Government’s Live Fear Free website and helpline and the Department of Justice in Northern Ireland’s delivery of a wide range of initiatives under its seven-year domestic and sexual violence strategy. The Human Trafficking and Exploitation Act 2015 consolidated criminal laws against human trafficking and exploitation in Scotland. The Act gave police and prosecutors greater power to detect and prosecute those responsible and improve protection for victims. The United Kingdom continued to stand up for a rules-based international system and for international law and as a strong advocate of the Human Rights Council and mechanisms at its disposal, it was seeking re-election for the 2021-2023 term.
The Committee Experts remarked that the United Kingdom had not transposed all the Convention’s provisions in its domestic legislation and were concerned that the general terms in which the Criminal Justice Act 1988 had been drafted could allow an application contrary to the absolute prohibition of torture. No one had been prosecuted for acts of torture during the reporting period, they remarked and asked how many of the 1,070 alleged incidents of child sexual abuse that had taken place in custodial estates in England and Wales between 2009 and 2017 had been made the subject of criminal investigations. The Committee was concerned that deficiencies in the approach to preventing torture and ill-treatment at home had led it to adopt policies that had caused it to fail to prevent torture beyond its territories in situations in which its personnel exercised some degree of control. Furthermore, the Committee was particularly concerned about the United Kingdom’s response to allegations of torture and ill-treatment in Northern Ireland. While recognizing that the Government may need to sometimes classify information, the Experts were concerned that the restrictions imposed by the Justice and Security Act 2013 might amount to granting a blank check to the State and thus impede greater scrutiny of human rights violations. Furthermore, according to independent reports, 17,501 persons had been held for questioning under the anti-terrorism laws despite the absence of suspicion of infractions. The age of criminal responsibility in the United Kingdom and Northern Ireland was not in line with international standards, as numerous international bodies had pointed out.
Mr. Candler said in his concluding remarks that the delegation had striven to explain the United Kingdom’s approach to the many areas covered by the Convention, including in the areas which seemed to be of particular interest to the Committee, such as the impact of Brexit on the United Kingdom’s human rights framework, immigration and asylum issues, Northern Ireland legacy issues, as well as the conditions of custody and treatment of those in custody, particularly youth and women.
Jens Modvig, Committee Chairperson, thanked the delegation for their exhaustive replies to most of the Committee’s questions and encouraged the United Kingdom to submit a plan for the implementation of the Committee’s concluding observations.
The delegation of the United Kingdom consisted of representatives of the Ministry of Justice, Government Legal Department, Department of Health and Social Care, Northern Ireland Office, Department of Justice Northern Ireland, Scottish Government, Welsh Government, Home Office, Foreign and Commonwealth Office, as well as representatives of the Permanent Mission of the United Kingdom to the United Nations Office at Geneva.
The Committee will issue the concluding observations on the report of the United Kingdom at the end of its sixty-sixth session on 17 May. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at https://webtv.un.org/.
The Committee will resume in public at 10 a.m. on Thursday, 10 May, to meet with the Subcommittee on Prevention of Torture.
Report:
The Committee had before it the sixth periodic report of the United Kingdom (CAT/C/GBR/6).
Presentation of the Report:
PAUL CANDLER, Director of International and Rights Policy in the Ministry of Justice of the United Kingdom, acknowledged the hard work of all the members of civil society and the independent United Kingdom National Prevention Mechanism and National Human Rights Institutions who put forward reports to the Committee. He thanked the Committee for inviting the delegation and said that he looked forward to hearing its views and responding to its questions.
The Government consistently and unreservedly condemned torture and cruel, inhuman or degrading treatment or punishment, including through working closely with international partners, such as the United Nations. The United Kingdom had a long-standing tradition of ensuring that rights and liberties were protected domestically, and of fulfilling its international rights obligations. The concept of rights went back a long way, to the Magna Carta in 1215, and rights had evolved across the nation through common law and statute. While acknowledging that many of the civil society organizations represented at the meeting had expressed concerns about the impact of Brexit on the United Kingdom’s human rights framework, he stressed that the decision to leave the European Union did not change the fact that the recognition and protection of rights were fundamental values for the United Kingdom. The Government was clear that its future relations with the European Union should be underpinned by their shared values of respect for human rights and fundamental freedoms. The Government had reaffirmed its commitment to the European Convention on Human Rights and would remain a party to it after Brexit. The Secretary of State for Justice had reiterated in February that the Government had no plans to repeal or reform the Human Rights Act in the aftermath of the United Kingdom’s departure from the European Union. The United Kingdom’s obligations under the Convention reached across its three devolved administrations in Northern Ireland, Scotland and Wales.
On the protection of women and girls and efforts to tackle modern slavery, he outlined work done by the Government to address domestic violence and modern slavery. The United Kingdom had pledged increased funding of 100 million pounds through 2020 to tackle violence against women and girls, including protecting funding to Rape Support Centres. It was also doing more to tackle modern slavery, which included sexual exploitation, compulsory labour and human trafficking. Work on this area from the devolved administrations included the Welsh Government’s Live Fear Free website and helpline and the Department of Justice in Northern Ireland’s delivery of a wide range of initiatives under its seven-year domestic and sexual violence strategy. The Human Trafficking and Exploitation Act 2015 consolidated strengthened criminal laws against human trafficking and exploitation in Scotland. The Act gave police and prosecutors greater power to detect and prosecute those responsible and improve protection for victims.
The United Kingdom’s delegation approached this session with a spirit of openness and receptiveness to challenges. The United Kingdom remained an advocate of the United Nations treaty body mechanism, and was committed to it. The Government continued to stand up for a rules-based international system and for international law. The United Kingdom was a strong advocate of the Human Rights Council and mechanisms at its disposal to strengthen human rights protection globally. That was why the United Kingdom was seeking re-election to the Human Rights Council for the 2021-2023 term.
Questions by Committee Experts:
FELICE GAER, Committee Member and Country Co-Rapporteur for the United Kingdom, said it was always a special occasion when periodic reports were reviewed. She said the vibrant organizations that had submitted independent briefing reports to the Committee had pointed out the uncertainty surrounding the impact of the referendum on the United Kingdom’s exiting the European Union on the implementation of the Convention against Torture. Would this lead to regression or reinforcement of the legal protections set forth therein and to implementing the obligations of the State party under the Convention? She also asked for clarification about the members of the delegations that represented and could speak for the overseas territories and Crown dependencies.
The Committee had not received the statistics on torture and acts of ill-treatment that it had requested, Ms. Gaer said. The Committee understood that the Government had not prosecuted anyone for torture during the reporting period. Was it really true that there had been no cases of complaints of conduct potentially amounting to torture for that period? She also asked the delegation to provide more information about the number and type of complaints it had received in connection with the allegations from the Medway Centre, where staff were apparently videotaped punching, choking and slapping children. Could the delegation provide more data on the outcome of the official investigation as well as information on the kind of disciplinary sanctions that were applied and any other action taken by the State party?
Citing a report by the Independent Inquiry into Child Sexual Abuse, the Rapporteur asked how many of the 1,070 alleged incidents of child sexual abuse that had taken place in custodial estates in England and Wales between 2009 and 2017 had been made the subject of criminal investigations. What was the State party doing to ensure that allegations of child sexual abuse and exploitation were detected, investigated and prosecuted? On inter-prisoner violence, she expressed disappointment about the State’s failure to provide information about the number of complaints implicating its personnel and their outcome. The Committee had been told that an increase of violence and overall decline in safety in prisons had happened, while there had been steep cuts in prison service staffing and resources. Did the State recruit 2,500 additional staff by the end of 2018, as it had planned?
The Co-Rapporteur asked whether the Government was considering measures to improve the training of those responsible for making the statelessness determination; make it mandatory for people to be referred to the determination procedure as soon as they were detained; and provide applicants with legal aid and a right to appeal negative decisions? Taking into account the unique structure of the United Kingdom’s National Preventive Mechanism, which was comprised of 21 bodies, was the Government considering significantly increasing its Secretariat’s budget? Turning to violence against women, Ms. Gaer requested additional data on the Government’s record on prosecuting perpetrators and information on its plan to ensure the effective implementation of the Violence against Women and Girls Strategy, in a way that notably involved victims’ groups. On human trafficking, she asked the delegation to explain why the Government was not collecting data about the number of complaints or investigations related to modern slavery, including human trafficking. What measures did the Government intend to take to improve law enforcement’s ability to punish perpetrators of trafficking?
The Co-Rapporteur said the Committee was concerned that deficiencies in the United Kingdom’s approach to preventing torture and ill-treatment at home had led it to adopt policies that had caused it to fail to prevent torture beyond its territories in situations in which its personnel exercised some degree of control. Was the Government considering, for instance, collecting and reporting data on the number of asylum claims involving allegations of past torture and their outcome, disaggregated by country of origin? Furthermore, the Committee was particularly concerned about the United Kingdom’s response to allegations of torture and ill-treatment in Northern Ireland. Could the Government provide assurances that it remained committed to ensuring accountability for violations of the Convention committed during the Troubles? Could it confirm that it would not seek to interfere with the decision of the Public Prosecution Service or enact an amnesty or otherwise extinguish criminal liability for perpetrators of such violence? Was it considering additional measures to prevent the imposition of suffering in Northern Ireland that amounted to ill-treatment of women seeking termination of pregnancy in cases of fatal foetal impairment, rape and incest?
CLAUDE HELLER ROUASSANT, Committee Member and Country Co-Rapporteur for the United Kingdom, welcomed the delegation and thanked them for the presentation of the report. He noted that the United Kingdom had not transposed all the Convention’s provisions in its domestic legislation, which would have allowed citizens to invoke them before courts. It was concerning that provisions of the 1988 law on criminal justice had been drafted in general terms that could allow an application contrary to the absolute prohibition of torture. This provision contravened article 2 of the Convention, which stated that exceptional circumstances—such as war, political instability or any other public emergency—may not be invoked to justify torture. He asked the delegation to comment on these facts. Did the Government have any plans to amend the 1988 law on criminal justice to include the absolute prohibition of torture?
The Co-Rapporteur echoed concerns that the 1988 law would be replaced by a British Bill of Rights after Brexit, a change which could lead to a lesser protection of human rights, including the prohibition of torture. In considering the territorial application of human rights law, the United Kingdom should accept that its obligations under international law extended to operations conducted overseas by British forces, as well as foreign nationals that were de facto under its jurisdiction. While recognizing that the Government may need to sometimes classify information, civil society organizations had expressed concerns about restrictions imposed by the 2013 Justice and Security Law. These restrictions may amount to granting a blank check to the State and thus impede greater scrutiny of human rights violations. Could the delegation comment on this issue?
On mutual judicial assistance treaties, he asked the delegation for updated information on requests made or received by the United Kingdom that were related to torture. The Co-Rapporteur pointed out that the report stated that broad and varied training on human rights was offered to law enforcement officials. He asked which entities were responsible for elaborating these training programmes on human rights. How and how often were these training programmes evaluated? Regarding the use of Taser guns, he underlined that British doctors had warned about the serious health risks they posed. In that regard, what had been the impact of the data collection and reporting process mentioned in the report? Had there been a greater number of complaints against the police since then?
Mr. Heller Rouassant requested information on the number of cases detected under the 2016 updated regulations that required that doctors report the cases of detainees that might have been subjected to torture. He also asked whether the Government was contemplating alternative measures to deprivation of liberty in addressing the overcrowding of prisons. The age of criminal responsibility in the United Kingdom and Northern Ireland was not in line with international standards, as numerous international bodies had pointed out, he stated. Could the delegation comment on this? For minors under the age of criminal responsibility, was a form of judicial authorization necessary for them to be detained? Did they have access to legal representation free of charge?
The generalized and systematic detention of migrants in the United Kingdom was a source of preoccupation for the Committee, said the Co-Rapporteur. It should only be a last resort. It was necessary to put in place an instrument to collect information and identify vulnerable persons and those at risk, as well as those with psychological or physical weaknesses, who should be released. He asked the delegation to provide information on deaths of migrants or asylum seekers in detention centres. He drew the delegation’s attention to the Windrush scandal, which related to the years of ill-treatment suffered by people from the Caribbean and other parts of the Commonwealth at the hand of immigration officials and other official bodies in the United Kingdom. The ill treatments included detention and deprivation of access to healthcare services and accommodation. Was the Government contemplating the creation of a reparation scheme?
Since 2017, 17,501 persons had been held for questioning under British anti-terrorism laws despite the absence of suspicion of infractions, according to Amnesty International. Had the application of anti-terrorism legislation been challenged before British courts?
Other Experts noted the absence of references to the Convention in military personnel training manuals. Shouldn’t the Convention be explicitly cited in these manuals? What kind of rehabilitation and psychosocial support did victims of torture receive if they were migrants or asylum seekers located in the United Kingdom, including in detention centres, they asked? The Committee felt that torture victims that were asylum seekers should be identified as soon as possible, to avoid detention when it was counterproductive from a medical point of view. What did the State party intend to do to identify such persons effectively and reliably at an early stage? Committee Experts also enquired about the people who could allow the continued detention of vulnerable persons by overriding medical certificates.
On intersex persons, the Committee was concerned that they were subjected to medical procedures that may result in suffering potentially comparable to ill-treatment. Could the delegation comment on the possibility of adopting a “watchful waiting” approach rather than imposing irreversible surgical treatment?
Experts also requested more information on the use of force against children who were passively resisting, by refusing to go to bed for instance, in institutions like the Medway Centre.
FELICE GAER, Committee Member and Country Co-Rapporteur for the United Kingdom, said there had been reports that asylum seekers’ right of appeal was removed when they were nationals of a country included on a list of safe countries. Could the delegation confirm this was true? If so, was the Government considering how often it reviewed this list? More specifically, was it reconsidering Ukraine’s designation as a safe country of origin?
Replies by the Delegation:
Responding to questions raised on the United Kingdom’s human rights framework, the delegation reiterated the commitment to protecting and respecting human rights and stressed that the United Kingdom’s legal framework was solid and offered clear protections and guarantees. The United Kingdom would remain a party to the European Convention for Human Rights even after it left the European Union, and there were no plans to repeal, amend, or replace the Human Rights Act. Leaving the European Union would not affect the United Kingdom’s obligations under the European Convention for Human Rights.
The Criminal Justice Act 1988 was consistent with the obligations imposed by the Convention against Torture. The United Kingdom maintained a dualist approach to international law, which meant that the obligations must be given effect in domestic law through legislation. The courts would first refer to domestic law, and would and did refer to international conventions if there was ambiguity in domestic law. As far as the Convention against Torture was concerned, there was a combination of policies and legislation to give effect to the Convention, while the text itself was not incorporated into the law.
The national prevention mechanism was not set in statute and the United Kingdom would continue to discuss possible legislative options. There were sufficient guarantees in place to ensure that the independence of the national prevention mechanism was not compromised.
Formal political talks to restore the Northern Ireland executive had started on 7 May, said the delegation, reaffirming the responsibility of the United Kingdom’s Government towards Northern Ireland. The Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 had been passed to provide the Northern Ireland civil services with the clarity and certainty to provide services in the absence of the executive. The aim of the political talks was to quickly re-establish the full operation of the executive function provided for under the Belfast Agreement 1998.
The United Kingdom’s Government was committed to finding the best ways to support the people in Northern Ireland to address the impact of the Troubles and enable the communities to move forward, including through investigations and prosecutions. The delegation stressed that the United Kingdom’s Government did not support proposals offering amnesty or exception from prosecution. The funding of the six-year plan to address the outstanding legacy issues had been approved in March 2019. The Police Service of Northern Ireland was fully committed to providing disclosure to the Police Ombudsman in line with the statutory obligations.
The United Kingdom’s Government was committed to ending the use of non-jury trials in Northern Ireland when safe and compatible with the need of justice, and to keep its use under regular review. The extension of the use of non-jury trials had been recently extended for another two years, said the delegation and stressed that less than two per cent of all Crown cases were non-jury trials. The “Tackling the Paramilitaries Programme” was in place and ran in parallel with activities of multi-agency hubs which were working to address the needs of young people in communities in Northern Ireland.
The Closed Material Procedure was provided for by the Justice and Security Act 2013, which contained strong judicial safeguards, and the regular use of the procedure was regularly monitored. There had been three trials under universal jurisdiction, one ongoing, one conviction in 2005, and one acquittal in 2016. The War Crimes Team (SO15) was responsible for investigations of war crimes, crimes against humanity, and the crimes of genocide, and the Crown Prosecution was responsible for the prosecution of such crimes.
The Iraq Historic Allegations Team had been closed in 2017 and remaining allegations had been transferred to the Service Police, which published quarterly statistics on the progress in the cases. As of 31 December 2018, the Service Police had closed 1,127 of the over 2,000 allegations transferred to it, and there were 90 full and 18 limited investigations ongoing. In November 2018, the Government had issued the response to the Report on Detainee Mistreatment and Rendition. Both documents were available publicly. The United Kingdom’s Government continued to give serious consideration to detainee issues. The Iraq Fatality Investigations, a form of judicial inquiry, was in place and was chaired by a retired High Court judge.
As far as redress to victims of torture was concerned, the delegation said that there was no specific programme which provided redress to victims of torture committed by other sovereign nations. All individuals who claimed the complicity of the United Kingdom in acts of torture could submit a civil damages claim against the Government, based on the domestic legislation and the European Convention for Human Rights. The United Kingdom had contributed £25,000 to the United Nations Voluntary Fund for Victims of Torture in the 2018-2019 funding cycle.
As far as arms exports to Saudi Arabia were concerned, the delegation stressed that the United Kingdom took its arms exports seriously and had one of the most robust arms export regimes in the world. Arms exports were only possible based on a licence issued by the Secretary of State for International Trade under the Consolidated Criteria. The assessment was implemented on a case by case basis, during which all available information, including reports by non-governmental organizations, was considered. The United Kingdom did not export equipment where it assessed there was a clear risk that it might be used for internal repression, or would provoke or prolong conflict within a country, or where the United Kingdom assessed there was a clear risk that the intended recipient would use the items aggressively against another country. The United Kingdom was providing training for the Libyan Coast Guard with the aim of increasing their capacity to secure borders in a human rights compatible way, and support search and rescue. The training emphasized that human rights violations were unacceptable. The United Kingdom would keep this training programme under continued review.
Responding to questions asked about the conditions in prisons, the delegation said that in England and Wales, there was a commitment to build an additional 10,000 prison places, which in combination with the ongoing reconfiguring of the existing estate and the recruitment of 2,500 extra prison guards, would improve the conditions of detention and increase educational, training, and rehabilitative outcomes. The creation of a new corruption unit had been announced on 5 May 2019. In 2018, there had been 317 deaths in custody, including four women. All deaths were under the purview of the Ministerial Board on Deaths in Custody, while an independent advisory panel worked to circulate official regulations.
In Scotland, reducing the prison population was a top priority. The Scottish Government and the Prison Service were working together to relieve the pressure on prison estates and had undertaken a number of measures which were seeing a notable success, such as the lowest number of young offenders in prison in the past 19 years. A substantive Management of Offenders Bill was currently going through Parliament, as was the bill to support the judiciary in applying non-custodial sentences. Scotland knew that community sentences were more effective than short-term custodial sentences and would shortly be introducing legislation on the matter.
The Hate Crime Action Plan 2016 covered five strands of hate crime that the United Kingdom’s Government recognized: race, religion, sexual orientation, transgender identity, and disability. The plan contained actions in five key areas: preventing hate crime by challenging beliefs and attitudes, responding to hate crimes, increasing the reporting, improving support for victims, and building the understanding of hate crimes. The plan had been refreshed in 2018, and now included a number of actions to improve the police training on hate crime, including on the identification of victims.
The Windrush Compensation Scheme had been set up for those who had suffered a loss of employment, housing, or education because they could not demonstrate a lawful right to live in the United Kingdom.
The United Kingdom did not seek to return anyone who demanded protection in the United Kingdom if there was a risk of torture or persecution. During the period October 2017 to October 2018, a total of 36,605 asylum requests had been received, in addition to over 8,500 other requests for protection. Asylum decision makers assessed each request individually, including specific protection needs; they received extensive training on establishing an asylum claim and must follow all official policies.
The Modern Slavery Act 2015 had been recently reviewed independently in order to identify where the legislation was working well and where improvements should be made. The review findings and recommendations would be delivered to the Government in a few weeks’ time, which would be taken seriously. The national referral mechanism was currently being strengthened and now had a new single competent authority that allowed it to make quicker decisions. The Government was committed to ensure that the United Kingdom remained a world leader in the fight against modern slavery. The Child Trafficking Fund had been set up in 2016 to provide victim support and recovery and reduce vulnerability to trafficking and exploitation.
As far as the definition of trafficking in persons and slavery was concerned, the delegation stressed that the Modern Slavery Act 2015 had been explicitly drafted to ensure the United Kingdom’s compliance with its obligations under the Palermo Protocol and to ensure that there were no gaps in domestic legislation that would allow perpetrators to escape prosecution. The Independent Anti-Slavery Commissioner was working with courts to ensure that judges were not applying a too narrow definition of trafficking in persons.
Criminal responsibility at the age of 10 allowed the Government to have the needed flexibility with children who offended and to intervene and start working with children as soon as possible. This provision reflected the requirements of the justice system in England and Wales. Very few of the young children who offended received custodial sentences, which could only be given by a judge. In 2018, only 17 per cent of the offending children were aged 10 to 14 and 82 per cent of the sentences resulted in community service. The Age of Criminal Responsibility (Scotland) Bill had been passed by the Scottish Parliament on 7 May. The bill would raise the age of criminal responsibility from 8 to 12 years of age.
The United Kingdom’s Government recognized the sensitivity of the issue of abortion in Northern Ireland and the strongly held positions on both sides of the debate. It was the responsibility of devolved administrations to ensure that their legislation was compatible with international obligations and standards.
The United Kingdom had taken a number of steps to strengthen the legislative framework to protect women and girls from violence, including domestic violence and stalking, while female genital mutilation and forced marriages had been criminalized. Since 2010, the number of prosecutions for violence against women and girls had increased by 23 per cent and the number of sentences by 30 per cent. New mandatory reporting duty on female genital mutilation had been introduced and £100 million in funding to tackle violence against women and girls had been allocated. In 2015, Wales had introduced legislation, a strategy and an action plan on the protection of women and girls against violence.
Questions by Committee Experts:
FELICE GAER, Committee Member and Country Co-Rapporteur for the United Kingdom, asked the delegation about the applicability of the Convention in the overseas territories and whether there was a plan for the implementation of the Committee’s recommendations. Would civil society organizations and national human rights institutions be involved in the implementation and how? Ms. Gaer asked the delegation to outline the efforts to further investigate and establish accountability for the 1,070 alleged incidents of child sexual abuse in custodial care between 2009 and 2017 as identified by the independent inquiry into child sexual abuse, as well as put in place an effective complaints system that would be accessible to children in detention.
The discovery of historic documents in 2016 which pointed to acts of torture committed by the United Kingdom’s military in the 1970s in Northern Ireland were very disturbing. What measures was the United Kingdom’s Government taking to ensure that allegations of torture committed during the conflict were subject to an effective investigation? Were records of investigations accessible to victims? The Co-Rapporteur requested a more detailed explanation of how the United Kingdom was addressing the abuse and mistreatment in residential institutions in Northern Ireland, and whether the Government intended to undertake a comprehensive review of the human rights situation in Northern Ireland that would include the legacy of the conflict and the abuse in institutions such as mother and baby homes and the Magdalene laundries.
CLAUDE HELLER ROUASSANT, Committee Member and Country Co-Rapporteur for the United Kingdom, reiterated concern about the long time it took to decide on asylum cases over and beyond the six months’ timeframe laid out by the law. The Committee took note of the United Kingdom’s position on minimum age of criminal responsibility and raised concern that the laws in England, Wales, and Scotland were not in line with international standards in this domain. In August 2018, the Council of Europe had urged the United Kingdom to start legal proceedings on legal renditions, the Co-Rapporteur noted, and asked whether the United Kingdom was ready to accept an independent investigation into the involvement of the British armed forces in acts of torture and ill treatment committed in Iraq since 2001, and so close a controversial chapter in the country’s history?
Other Experts referred again to the Report on Detainee Mistreatment and Rendition and in this context stressed that the Government had the responsibility to investigate claims of acts of torture that could be attributed to the Intelligence Service of the United Kingdom and provide reparation to victims. The Committee remained concerned about the use of restraints and segregation of children in young offenders’ institutions.
JENS MODVIG, Committee Chairperson, commended the United Kingdom’s commitment to identifying and protecting victims of modern slavery and violence against women and girls, and the numerous measures and funds allocated to support that commitment, and regretted that the same was not being done for victims of torture, to identify them and treat them comprehensively.
Replies by the Delegation:
The delegation explained that the application of the Convention was extended to all overseas territories which had permanent populations and that the governments of the overseas territories were responsible for the implementation. The Ministry of Justice reached out to each overseas territory to establish that they had the capacity to effectively implement the provisions. The delegation stressed that the prevention of torture remained among key priorities of the Foreign and Commonwealth Office, and that the torture prevention strategy continued to operate.
The United Kingdom would continue to give the issue of detainee mistreatment and rendition serious consideration, including whether there should be further judge-led inquiries into the matter. The Government was taking the allegations of child abuse, including sexual abuse in youth homes very seriously, and recognized the need for the fundamental reform of youth custody to ensure the safety and rehabilitation of young people. Among the steps already taken was strengthening of safeguards, specialist training for staff, and the increase in the number of frontline youth workers by one third compared to 2018.
All military personnel received training, which included international humanitarian law, as well as the applicability of the law of armed conflict, protection of persons and places, and the enforcement of the law of armed conflict. Similar training was provided to the private security contractors.
Concluding Remarks:
PAUL CANDLER, Director of International and Rights Policy in the Ministry of Justice of the United Kingdom, in conclusion said that the delegation had striven to explain the United Kingdom’s approach to the many areas covered by the Convention, including in the areas which seemed to be of particular interest to the Committee. Those included the impact of Brexit on the United Kingdom’s human rights framework, immigration and asylum issues, Northern Ireland legacy issues, as well as the conditions of custody and treatment of those in custody, particularly youth and women.
JENS MODVIG, Committee Chairperson, thanked the delegation for their exhaustive replies to most of the Committee’ questions. Among its concluding observations, the Committee would select three urgent recommendations for follow up, on which the State party would need to report within a year. All States parties were encouraged to also submit a plan for the implementation of the Committee’s concluding observations.

CAT/19/7E

9th may 2019; Meeting n. 1744th:
Meeting with the Chairperson of the Subcommittee on Prevention of Torture. Presentation of the SPT annual report:

The Committee against Torture this morning discussed the twelfth annual report of the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT/C/66/2), with the Subcommittee’s Chair Malcom Evans.
Mr. Evans said that with the ratification by Iceland, there were now 89 States parties to the Optional Protocol and recalled that with 25 members elected for four years, the Subcommittee was the largest United Nations treaty body. Gender parity as well as the criterion of geographic representation were fully respected in its composition. During the reporting period, budget constraints had reduced the number of visits from eight to six, namely to Uruguay, Belize, Portugal, Poland, Kyrgyzstan and Liberia. Although the Subcommittee had not been able to resume its shortened visit to Rwanda that had been suspended in October 2017, it continued to maintain a rather positive relationship with the Rwandan authorities and it was possible that the visit would take place at a later date.
So far in 2019, the Subcommittee had already visited Switzerland, Costa Rica and Sri Lanka, and several members were currently visiting Senegal. Mr. Evans noted that the report contained information on the United Nations Voluntary Fund for Victims of Torture and that the Subcommittee had reviewed its approach to working with bodies such as the European Committee for the Prevention of Torture. Among other measures to ensure the effective implementation of the Optional Protocol, the Subcommittee was organizing videoconferences with national mechanisms for the prevention of torture and with representatives of States parties.
In many parts of the world, Mr. Evans said, there seemed to be a backword movement in terms of the prevention of torture. Too many States parties seemed to have resigned from their enthusiasm for the preventive enterprise by either challenging the Subcommittee’s mandate or not establishing or supporting their national preventive mechanisms under the Optional Protocol to the Convention against Torture. It was essential that all relevant bodies worked together to ensure that prevention remained a priority for States and that the “reality gap”, the gap between what was said and what was done, was addressed. The vulnerability of people in detention must be kept at the forefront of all those efforts, Mr. Evans concluded.
Committee Experts stressed the need to diagnose and identify the reasons which constrained national preventive mechanisms from functioning properly. The Experts took positive note of the number of ratifications of the Optional Protocol which had reached nearly 90 and welcomed the Subcommittee’s work with regional torture prevention mechanisms, the European Committee for the Prevention of Torture in particular, and encouraged the increased cooperation with the Committee for the Prevention of Torture in Africa as well as with the Inter-American human rights system. The Experts inquired what the Committee could do to promote the knowledge and awareness of the Subcommittee’s work in order to strengthen torture prevention and address the growing acceptance and legitimacy of torture in many countries. What was the selection process for the countries to be visited, the Experts asked, wondering whether the State’s appearance before the Committee against Torture was considered?
Jens Modvig, Committee Chairperson, noted that the Subcommittee’s assessment of the situation today concerning the prevention of torture called for a self-evaluation of the impact of the work, whether stronger tools were needed, and to identify the ways ahead.
Mr. Evans endorsed the suggestion for a structured reflection on what worked and what did not work and what could be done in addition. Both the Committee and the Subcommittee had very important tasks but there was always more that could be done to tackle torture globally in new and innovative ways. In light of the reality that the annual report outlined, the time for such a reflection might be now. With almost 90 States parties to the Optional Protocol, the Subcommittee clearly did not have the capacity to visit the States on a regular and routine basis; however, while the visits were hugely important, they were not the totality of the engagement with the States but rather a part of the process. There was more than one way of engaging with the States outside of the formal visit, Mr. Evans stressed. As far as the Subcommittee’s jurisdictional reach was concerned, it might be opportune to start issuing opinions in the form of general comments that would give greater clarity to the Optional Protocol. Mr. Evans stressed the extraterritorial reach of the Subcommittee and the national preventive mechanisms, as they had the mandate over any place where a State deprived individuals of their liberty, including outside of the State’s territory.
The sixty-sixth session of the Committee against Torture runs from 23 April to 17 May 2019. All the documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage. The webcasts of the Committee’s public meetings are available via the following link: https://webtv.un.org/meetings-events/.
The Committee will next meet in public on Thursday, 16 May at 3 p.m. to discuss follow-up to articles 19 and 22, and reprisals.

CAT/19/8E

16th may 2019; Meeting n. 1755th:
Committee against torture considers follow-up to Articles 19 and 22 to concluding observations, individual communications and reprisals:

The Committee against Torture this afternoon discussed follow-up to concluding observations, individual communications, and reprisals under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
Abdelwahab Hani, Rapporteur on follow-up to concluding observations under article 19 of the Convention, remarked that a State Party, Senegal, had submitted its report before the deadline and that, overall, the Committee found that State parties adhered to the procedure for the follow-up on recommendations. Mr. Hani noted that the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnès Calamar, would present a report concerning Jamal Kashoggi at next session of the Human Rights Council in June and July 2019, while the Committee would send a reminder to Saudi Arabia and ask for a meeting during its 67th session. The Committee would also request Cameroun to provide information on the reported arrests of political opponents, in the context of the crisis in the English speaking part of the country.
The Rapporteur said that, while there had been some progress, the rate of participation of civil society organizations, national human rights institutions, and national prevention mechanism from certain countries remained low. The Committee had considered reports from seven States parties, for which it had adopted a total of 22 recommendations, regarding notably arbitrary detentions; national prevention mechanisms and national human rights institutions; police violence and the excessive use of force; conditions of detention and fundamental legal safeguards; as well as migrants and asylum-seekers. Mr. Hani stated that the quality of information provided by State parties in that regard varied; while for some recommendations, the Committee was satisfied with the quality of information submitted and was able to gage a good degree of implementation, for others, the quality of information had been modest or mediocre and the implementation limited. There had not been any situations where the State party had failed to provide any replies at all. The trend seemed to be the provision of information that partly met the Committee’s expectations, noted Mr. Hani and remarked that unfortunately, the Committee did not find a case where one of its 22 recommendations had been implemented comprehensively.
Claude Heller Roussant, Rapporteur on follow-up to individual communications, said that, during the session, the Committee had considered 11 communications under article 22 of the Convention. There had been three cases concerning Denmark, two concerning Switzerland, two concerning Morocco, two concerning Argentina, one concerning Canada, and another one concerning Mexico. One of the Danish cases had been resolved satisfactorily, as the claimant had been granted a residence permit. The Committee would send communications in writing to permanent missions of concerned States in order to pursue dialogue in the cases in which the State’s responses had been partial, incomplete, or inexistent. While the Committee remained open to constructive dialogue with States parties, it was mindful that this could not be prolonged indefinitely, and stood ready to contemplate taking measures to address State’s failure to meet deadlines.
The Rapporteur on follow-up to reprisals, Ana Racu, said that the Office of the High Commissioner for Human Rights had organized a specialized workshop on reprisals in collaboration with a civil society organization in December 2018, which had brought together representatives of all treaty bodies to improve their cooperation in elaborating effective responses to reprisals. The Committee’s guidelines had served as a starting point and a guiding instrument in that context.
The Committee had examined two allegations of reprisals in Morocco, the Rapporteur added, and had requested the complainant’s release from detention in one of the cases. As regards the other case, while the Committee had noted modest positive developments, the complainant was still in solitary confinement and had not access to his counsel. Therefore, the follow-up dialogue would continue, and a meeting with the Permanent Mission of Morocco would be requested. The Committee had also examined another allegation of reprisal and incommunicado detention from Burundi, and would request protective measures, including monitoring of the complainant’s conditions of detention.
The Committee will next meet in public at 10 a.m. tomorrow, 17 May to publicly close its sixty-sixth session.

CAT/19/9F

17th may 2019; Meeting n. 1756th:
Committee against torture closes sixty-sixth session and adopts concluding observations on the reports of the Democratic Republic of the Congo, Mexico, Germany, South Africa, Benin and of the United Kingdom and Northern Ireland.

The Committee against Torture this morning concluded its sixty-sixth session after adopting concluding observations and recommendations on the reports of the Democratic Republic of the Congo, Mexico, Germany, South Africa, Benin, and the United Kingdom, on the implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee also adopted its annual report.
The Committee’s concluding observations and recommendations on the reviewed countries will be available on the session’s webpage.
Sébastien Touze, Committee Rapporteur, introduced the Committee’s draft annual report on the activities carried out between May 2018 and May 2019, and said that during this period, the Committee had examined sixteen country reports and 54 individual communications, of which 25 had been decided on substance, seven had been declared inadmissible, and 22 had been closed. There was a significant backlog in the examination of communications as 160 were pending, noted Mr. Touze.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment had been ratified by 166 states and 68 States parties had accepted the Committee’s competence to receive communications, leading to a significant increase in the number of communications received during the reporting period. The Committee had received 37 requests for interim measures of which it had accepted 28. In this context, the threat of the cancellation of the third session of the Committee in November 2019 due to financial reasons would be included in the report as a major concern as it would have a catastrophic effect on the organization of work, said the Rapporteur.
The Committee then adopted the annual report.
Jens Modvig, Committee Chairperson, in his closing remarks, said that on 30 April the Office of the United Nations High Commissioner for Human Rights had informed the Committee and other treaty bodies that due to a shortfall in funding it might not be able to hold a number of treaty bodies sessions scheduled for later this year. This situation might have a serious consequence for the treaty bodies system as a whole and it was unfortunate that it was happening in the run up to the review of the system by the United Nations General Assembly in 2020, the Chair said and stressed that responding to the financial crisis by cutting back on the legally obligatory oversight of human rights commitment set a poor example and merely encouraged those States whose human rights required critical scrutiny to continue to evade their responsibilities by cutting funding even further. A more effective response would be to protect the integrity of the human rights treaty body system, thereby sending a clear message to States that the legal oversight of their human rights obligations would remain intact.
During the sixty-sixth session, the Committee had heard from civil society organizations and discussed country reports on the agenda. It had also considered the follow-up to articles 19 and 22 of the Convention concerning the concluding observations and individual communications. The Committee had met with the Subcommittee on Prevention of Torture, the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture, the Working Group on Arbitrary Detention, and the Convention against Torture Initiative, and it had held its first-ever meeting with the Working Group on Business and Human Rights.
The Committee thanked the non-governmental organizations supporting the work of the Committee, inlcuding the World Organization against Torture, the Association for the Prevention of Torture, the Omega Foundation, and Amnesty International.
Summaries of the Committee’s public meetings held during the session can be read here.
The sixty-seventh session of the Committee against Torture will be held from 22 July to 9 August 2019, during which the Committee will review the reports of Greece, Poland, and Togo, and will examine the situation in Bangladesh in the absence of a report.

CAT19.010F