Distr.
GENERAL

E/CN.4/1997/4/Add.3
13 June 1996

ENGLISH
Original: ENGLISH/FRENCH

COMMISSION ON HUMAN RIGHTS
Fifty-third session

Item 8 of the provisional agenda

QUESTION OF ALL PERSONS SUBJECTED TO ANY FORM OF DETENTION OR IMPRISONMENT, IN PARTICULAR: TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Report submitted by the Working Group on Arbitrary Detention

Follow-up visit to Bhutan

CONTENTS

INTRODUCTION

I. STEPS TAKEN, ACCORDING TO THE GOVERNMENT, TO ENSURE THE IMPLEMENTATION OF THE RECOMMENDATIONS MADE BY THE WORKING GROUP DURING ITS FIRST VISIT

II. OBSERVATIONS BY THE GROUP ON PROGRESS MADE IN THE ADMINISTRATION OF JUSTICE

III. INITITIATIVES FOR STRENGTHENING THE IMPLEMENTATION OF THE RECOMMENDATIONS

IV. CONCLUSIONS AND FINAL RECOMMENDATIONS

Introduction

1. The Working Group on Arbitrary Detention, represented by its Chairman/Rapporteur, Mr. L. Joinet, and two of its members, Mr. L. Kama, andMr. K. Sibal, made an initial visit to Bhutan from 17 to 22October1994 at the invitation of the Government (see E/CN.4/1995/31/Add.3). At the end ofthat visit, the Group presented to the Bhutanese authorities, at their request- and the point is to be stressed - a memorandum containing a list of15 recommendations. The Group was invited to return to the country to verify that its recommendations were being implemented. That visit, which took place from 29 April to 6 May 1996, was made by the Chairman/Rapporteur ofthe Working Group. In the meantime, through a communication dated3July1995, the Bhutanese authorities had sent the Group a memorandum informing it of the first steps taken to implement some of the recommendations.

2. There were three dimensions to the follow-up visit: (a)to follow up on recommendations made by the Group during its first visit; (b)to visit courts, prisons and police stations not only in the capital, but also in the provinces, which it had not done during the first visit; (c)to evaluate a case on which the Group had declared the detention to be non-arbitrary, a decision which the interested party had asked to be reviewed.

3. During its visit to Bhutan, the Working Group was granted an audience with H.M. King Jigme Singye Wangchuck. During the course of interviews on follow-up to its recommendations, the Group held lengthy discussions withtheForeign Minister, Lyonpo Dawa Tsering; the Home Minister, LyonpoDagoTshering; and the Chief Justice, Dasho Sonam Tobgye, as well as with a group of Jabmis, substitutes for lawyers. The Group also met with the Chairman of the Royal Advisory Council, Dasho Karma Letho, and the Speaker of the National Assembly, Dasho Pasang Dorji. In addition, the Group visited two prisons in the capital which it had visited during its first mission: the Thimphu Detention Centre and the Chamgang Central Jail.

4. On 2 and 3 May, the Group went to Phuentsholing, Chukha District, and Samtse, in southern Bhutan, where it was received by the local authorities (Dasho Penjor Dorji, Chukha District Commissioner; Jigme Tsultrim, Samtse District Commissioner; and Doffu Reddy, Deputy Commissioner of Chukha District; it met with district court judges (including ThinleyThongmaith, Samtse District Court Judge, and Pema Gyelsthen, Phuentsholing Sub-Division Court Judge) and visited a prison (Samtse), where it met with the Police Chief, Major Dorji Phuntso. On 4 May, the Group visited Paro, in the west of the country, where it paid an impromptu visit to the police station. It was then received by the local authorities (Dasho Dophu Tshering, Paro District Commissioner; Sonam Tschering, Deputy Commissioner of Paro District; and Kunzang Tobgay, Paro District Court Judge).

5. It also held a long working meeting with the Resident Coordinator of the UnitedNations Development Programme (UNDP) in Bhutan, Mrs.AkikoNaito-Yuge.

6. In all the prisons or police stations visited, some of them in an impromptu fashion, the Working Group was able to question freely and in private, in a place of its choosing, as many detainees as it wished.

7. The main objective of the Working Group's initial visit, in October 1994, had been to draw up, at the request of the Bhutanese authorities, an inventory of existing problems in the administration of justice and to make recommendations thereon.

8. The objective of the present "follow-up" visit - which was again made at the request of the Bhutanese authorities - was therefore to ensure implementation of the recommendations made by the Group during the previous visit.

9. The following will therefore be considered in succession:

(a) Steps taken, according to the Government, to ensure the implementation of the recommendations made by the Working Group during its firstvisit;

(b) Observations by the Group on progress made in the administration of justice;

(c) Initiatives for strengthening the implementation of the recommendations.
10. The Working Group would like to express its gratitude to the Bhutanese authorities for the help and cooperation extended freely and efficiently to its members throughout their visit and for the spirit of cooperation which the State officials constantly showed at all levels. [back to the contents]

I. STEPS TAKEN, ACCORDING TO THE GOVERNMENT, TO ENSURE THE IMPLEMENTATION OF THE RECOMMENDATIONS MADE BY THE WORKING GROUP DURING ITS FIRST VISIT

11. It will be recalled that, following its firstvisit, the Working Group, inconsultation with the Bhutanese authorities, proposed a set of15recommendations. On the instructions of theKing, the administrations concerned had been invited to plan the implementation of those recommendations, and the Working Group invited to make a follow-up visit in order to evaluate the resulting implementation.

12. The steps taken in that regard by the Government and by the High Court were set out in twodetailed memoranda given to the Group during its second visit, which contain the following replies.

13. Recommendation 1: A review should be conducted by an independent body, constituted by the Government, of all cases of persons detained under the National Security Act, 1992, in order to determine that those who are not terrorists and against whom there is no evidence should not be either formally charged or tried.

14. Government: The cases of all detainees were reviewed by representatives of the Royal Bhutan Police and the Home Ministry. The matter was then brought to the attention of the LhengyelShungtshog (Cabinet), on the instruction of His Majesty the King, on 31October1994. Accordingly, the High Court was directed to set aside all common law cases for a period of sixmonths and concentrate on expediting the trial of anti-national cases. This information was communicated by the Home Minister in his letterNo.GA(9)-14/94/728 dated2November1994, addressed to Mr.KapilSibal. As a result all the detainees have either been released or tried and convicted by the High Court.

15. Recommendation 2: After the review is conducted and innocent persons identified, those prisoners against whom substantial evidence exists should be formally charged within a specific time-limit.

16. Government: As stated above, necessary action has already been taken and there is no detainee yet to be charged. A total of 19detainees in Chamgang Central Jail were granted amnesty by His Majesty the King on 26December1994 and 14February1995. This information was communicated by the Home Minister in his letterNo.GA(4)-19/95 dated 3July1995.

17. Recommendation 3: All those formally charged under the National Security Act, 1992, should be tried within a specific time-limit.

18. Government: This recommendation has been implemented. The trials of the anti-national detainees in Chamgang Central Jail during the visit of the Working Group in October1994 and other anti-nationals arrested subsequently have all been completed.

19. High Court: This recommendation was brought before the Cabinet, which decided that anti-national cases should be given priority and expedited. The Chief Justice, however, pointed out to the Cabinet that all existing common law cases registered in the High Court would have to be set aside and registration of new cases would have to be suspended if the anti-national cases were to be expedited. The Chief Justice also apprised the Cabinet that suspending cases that have already been registered in the High Court and not accepting new cases would be a contravention of the ThrimzhungChhenpo. His Majesty the King issued a special directive to set aside all common law cases for a period of sixmonths and concentrate on expediting the trial of anti-national cases. The Royal Court of Justice completed the trial of all those who had been charged as stated above and awarded judgement. The order to set aside common law cases was not in keeping with the ThrimzhungChhenpo. The Royal Court of Justice has recommended that the issuance of such executive orders should not be repeated in the future.

20. Recommendation 4: The prison authorities must ensure that all persons being tried are aware of the institution of the Jabmi and are represented by a Jabmi of their choice.

21. Government: It has always been a practice in the High Court to permit the accused to engage a Jabmi of his choice. It is a principle enshrined in the ThrimzhungChhenpo (sect.DHA3-10) and ResolutionNo.10 of the fifty-fifth session of the National Assembly. In keeping with this principle, persons being tried are also being made aware of the institution of the Jabmi by the prison authorities and by the courts as a matter of practice.

22. High Court: Persons being tried are always adequately made aware of the institution of the Jabmi through the preliminary hearing. It is an established procedure in the Court. The provision of Jabmi is enshrined under sectionDA3-10 of the ThrimzhungChhenpo and ResolutionNo.10 of the fifty-fifth session of the National Assembly.

23. Recommendation 5: Some form of assistance should be provided to the accused for representing their cases before the High Court since many of them do not seem to be adequately possessed of the qualities needed to represent their own case. They should be provided Jabmis of their choice.

24. Government: As per existing practice, a defendant is given the choice of taking the assistance of a Jabmi. The provision of engaging a Jabmi is explained during the preliminary hearing. This provision is contained in subparagraph1.1.8. of the court procedure. The court procedure is also covered in the draft on civil and criminal court procedures.

25. High Court: The accused persons are informed of their right to have their case defended by a Jabmi of their choice, if they desire. The procedure of the Royal Court of Justice requires it to inform every person being tried about the institution of the Jabmi. The Royal Court of Justice follows this practice during the trials. The draft on civil and criminal court procedures has incorporated the Jabmi system more elaborately. To disseminate this information and create public awareness, and in keeping with the recommendation, the Royal Court of Justice conducted a month-long training workshop on Jabmi from 29February to 26March1996 that was attended by72Jabmis. This was aimed at strengthening the age-old Bhutanese tradition of the Jabmi system.

26. Recommendation 6: All detainees who have not yet been convicted under the National Security Act, 1992 should be produced before the High Court periodically and be given the right personally to state any grievances they may have before a judge.

27. Government: This has been implemented.

28. High Court: The Royal Government of Bhutan has implemented this recommendation. All detainees who were not convicted under the National Security Act, 1992 were produced before the High Court periodically and they were given the right to state any grievance before a judge.

29. Recommendation 7: All common law prisoners should be regularly produced before a judge and given the assistance of a Jabmi.

30. Government: All common law prisoners are being produced before the Thrimkhang and have access to the assistance of a Jabmi. It may be noted that, in keeping with His Majesty the King's command, a legal course for Jabmis was conducted from 29February to 26March1996.

31. High Court: Every common law prisoner is regularly produced before a court of law and informed about the institution of the Jabmi and given the assistance of a Jabmi according to his/her choice. The one-month Jabmi training course was intended to popularize the Jabmi system so that the public at large would resort to the assistance of Jabmis.

32. Recommendation 8: Those common law prisoners who have been detained for years without having been brought before a judge and who have not been formally charged should also have their cases reviewed by an appropriately constituted body to consider whether it is at all necessary to prosecute them.

33. Government: This recommendation has been implemented as stated in letterNo.G(4)-19/95 dated 3July1995: "The status of common law prisoners, i.e.whether charge-sheeted, brought before a judge, under trial and convicted, was reviewed by the High Court (and the Royal Bhutan Police) after the visit of the Working Group. As a result of the review, the cases of eightcommon law prisoners, six of whose cases had not been heard at the time of the Working Group's visit, were expedited and the eightpersons were subsequently released. In addition, a total of 56non-national convicted common law prisoners were released or handed over to the Indian Police."

34. Recommendation 9: Those who have been detained for years without having been formally charged or produced before a judge should be entitled to be released on bail and the conditions of bail should relate closely to their economic condition.

35. Government: This recommendation has been carried out as stated in letterNo.G(4)-19/95 dated 3July1995: "Based on the review of the status of common law prisoners following the visit of the Working Group, the cases of eightcommon law prisoners were expedited and they were subsequently released. There are now no old cases that have not been charge-sheeted or produced before a judge. The procedure for new cases has been speeded up in the district courts. Hearing of new cases and trial of existing cases in the High Court are at present on hold because of the priority given to anti-national cases. The system of bail does not exist in Bhutan. However, taking into account the financial condition of the common people, in cases of offences that are compoundable, a person can be released if any upright citizen undertakes to stand surety on his/her behalf." The provision for release of an accused in the event of surety stood by any upright citizen is enshrined in sectionsDHA3-1, 3-2 and 3-10 of the ThrimzhungChhenpo.

36. High Court: This recommendation has been implemented. Nineteen of them were granted amnesty by His Majesty the King.

37. Recommendation 10: All accused against whom there is a claim for money should not be prosecuted and the claimant should be entitled to proceed for recovery of monies as a civil claim. All such accused should be released forthwith.

38. Government: This recommendation has been clarified, as stated in letterNo.GA(4)19/95 dated 3July1995: "Due consideration has been given to this recommendation. All monetary claims are dealt with in keeping with the Loan Act, 1981. Decisions on all such claims brought to court are passed in keeping with this Act. As per clauseNGHA4-17(KHA) of the Loan Act, claims against those persons who are physically unable to repay them are ruled by the court to be written off, even if such claims are found to be genuine. However, any other person against whom a claim is found to be genuine but who refuses to repay the claim as per the decision of the court is liable to imprisonment for refusing to abide by the decision of the court. The main difficulty faced by the Royal Government of Bhutan in implementing the recommendations has been the inconvenience caused to persons involved in common law cases. Although the district courts are not affected by the special priority given to expediting anti-national cases, all existing common law cases in the High Court have been suspended and new cases have not been heard since the Cabinet decision on 31October1994. The other difficulty is the acute shortage of qualified manpower faced by the judiciary and law enforcement agencies."

39. High Court: The litigation arising from monetary claims is dealt with according to the Loan Act, 1981. The Royal Government is in the process of amending the Loan Act and is preparing a draft keeping in mind the aforesaid recommendation. The draft will be submitted for the consideration of the Cabinet following which it will be submitted to the National Assembly for enactment.

40. Recommendation 11: The Code of Criminal Procedure as applicable in Bhutan should incorporate a provision which requires the investigating authorities to complete their investigation within a maximum period of time as may be stipulated in the Code. In this regard, it may be noted that in India the investigating authorities are entitled to a maximum period of 60days for completion of investigation into all offences which are not punishable with imprisonment for life. In all cases punishable with imprisonment for life the maximum period within which the investigation should be completed is 90days. Failure to complete such investigation entitles the accused to be released on bail. Such a provision may, with appropriate modifications, be incorporated in the Code of Criminal Procedure applicable in Bhutan.

41. Government: At present the Code of Criminal Procedure as applicable in Bhutan is silent on the minimum period for completion of investigation into all offences. As a matter of practice, efforts are being made to expedite investigations within reasonable time-limits, barring exceptional cases where investigations are delayed owing to constraints of qualified staff, verification of evidence and the process of producing witnesses. The Government is considering a draft on civil and criminal court procedures which provides the need for a minimum/maximum period for completion of investigation into all kinds of offences.

42. High Court: The draft on civil and criminal court procedures is under consideration by the Cabinet following which it will be submitted to the National Assembly for enactment, and the above recommendation is incorporated in the draft code.

43. Recommendation 12: Every accused should be produced before a magistrate within 24hours. Though there is such a law in Bhutan, inquiries have revealed that it is not followed either in letter or in spirit in most instances. A review body could be set up to monitor adherence to such procedure and the judge be given powers to investigate all matters in which the accused complains that he was arrested and not produced before the magistrate within 24hours.

44. Government: Bhutanese law, under provisionOM of the ThrimzhungChhenpo, provides equal justice for all persons before the law. In keeping with section30 of the Police Act, 1980, concerted efforts are being made to ensure that every accused person is produced before a magistrate within 24hours. In this regard, it may be mentioned that law enforcement officers have time and again pointed out the difficulties of producing every accused person before a magistrate or court of law within 24hours, owing to the remoteness of some of the villages and the time needed to bring the accused to the district court, and when the accused are apprehended during weekends and national holidays when all the offices are closed. Any accused/detainee is free to lodge a complaint, if any, at his own discretion or with the help of a Jabmi, before a court of law or even to His Majesty the King (ThrimzhungChhenpo, chap.11, sect.DHA1-8).

45. High Court: According to section30 of the Police Act every accused should be produced before a magistrate (Thrimpon) within 24hours. The courts interpret the law and shall take the necessary steps if the provisions of law are violated and brought to the notice of the court. The Jabmis have been briefed accordingly during the training workshop.

46. Recommendation 13: The law must also provide that every accused is physically produced before a judge periodically, so that the judge concerned assures himself of the well-being of the accused. Such a procedure will also give an opportunity to the accused to state such grievances as he may have when produced before the judge.

47. Government: In keeping with the principle enshrined in sectionDHA2-2 of the ThrimzhungChhenpo, all detainees are required to be produced before the court as and when summons are received. All detainees may appeal to the Chief Justice in person during the "Miscellaneous Hearing". The convicted prisoners can also appeal against the judgement within 10days of the court verdict.

48. High Court: The cases of the detainees who had not yet been tried during the Working Group's visit have been tried as recommended. Amnesty was granted to 19 of them and trials of all the others have been completed. As stated above under recommendation10, litigation arising from monetary claims is dealt with according to the Loan Act, 1981. Further, the Royal Government is in the process of amending the Loan Act and is preparing a draft keeping the aforesaid recommendation in mind.

49. Recommendation 14: A complete list of all occupants of Thimphu Detention Centre and Chamgang Central Jail at the time of the visit of the Working Group should be prepared to indicate the following:

(a) Name of prisoner;

(b) Date of arrest;

(c) Date when first produced before the magistrate;

(d) How many times thereafter he was produced before the magistrate, giving dates;

(e) Date when he was formally charged;

(f) Date when the trial began;

(g) Was he defended by a Jabmi or did he defend himself;

(h) Date of conviction.

50. Government: The recommendation of the Working Group has been implemented.

51. Recommendation 15: All the above recommendations, wherever applicable, except for recommendation14, should be applied to all prisoners in all jails within Bhutan.

52. Government: All recommendations of the Working Group on Arbitrary Detention have been carefully reviewed and implemented as reflected in the foregoing paragraphs. Besides, the Government is also considering a draft on civil and criminal court procedure which covers issues that have been raised in the Working Group's recommendations. In keeping with recommendation3, the High Court had been directed to set aside all common law cases for a period of sixmonths and concentrate on expediting the trial of anti-national cases. Though concerted efforts were made, the trial of anti-national cases could not be completed within the recommended time-frame of sixmonths from the day of visit of the Working Group. As a result an extension of the mandate had to be given to complete the cases.[back to the contents]

II. OBSERVATIONS BY THE GROUP ON PROGRESS MADE IN THE ADMINISTRATION OF JUSTICE

53. Efforts focused on attempts to observe, in practice, the rules of criminal procedure. From the initiation of proceedings to the judgement and sentencing, the procedure is now as follows:

(a) Arrest and custody. When the police are alerted - either by a complaint from the victim, by public initiative such as a petition or by hue and cry, in the case of a flagrant offence - they undertake the questioning and then issue a warrant authorizing the person to be placed in custody for a 24-hour period reckoned from the time of arrest. The person is then taken to the appropriate police station, where the preliminary investigations are conducted (questioning of the arrested person, the victim and the witnesses, search for evidence and so forth). At the end of that initial phase, the police file a preliminary indictment in the form of a report;

(b) First appearance before the judge. The police take the person before the judge and present the preliminary indictment. The judge may order either:

(i) Release, if he believes that there are insufficient grounds, or none at all, for the charge (innocence established); or

(ii) Continued detention, if an additional period seems necessary to conclude the investigation. This extension is decided at the initiative of the judge or, more frequently, at the request of the police, who must then back up the request with concrete evidence;

(c) Rights of the defence. From this stage onwards, the detainee may in principle be assisted by a defender Jabmi (or Jamani) unless he states that he wishes to defend himself or to be assisted by a friend or a member of his family. The Jabmi is generally a person qualified to carry out this function because of his experience and wisdom, although, since this is not a permanent position, he continues to pursue his own occupation;

(d) Close of the investigation. When the investigation is completed, the police draw up the indictment. They hand it over to the court when they bring the accused before the judge, and then withdraw. The police are not present during the hearing, and the institution of public prosecutor exists only at the level of the Supreme Court, known as the "High Court". The judge reads out the indictment and then conducts the proceedings and, as appropriate, hands down a decision either to release the accused (innocence established, or insufficient evidence) or to impose a sentence. If the accused appeals, he is transferred from the police station to the district prison while awaiting his hearing;

(e) Appeals procedure and appeal to the High Court. The procedure followed before the District Court of Appeals is largely identical to that just described. The procedure before the High Court, on the other hand, requires additional explanations. This court of highest jurisdiction, the number of whose judges has just been raised from six to eight, rules not only on law but also on fact. It can pronounce itself both on the merits of the evidence or guilt and on how correctly the law is being enforced. It is furthermore directly and solely competent for judging perpetrators of offences under the National Security Act. The case for the prosecution is argued by a public prosecutor. The rest of the procedure is not particularly unusual. As a last resort, a convicted person may always ask H.M. the King for a pardon. Amnesty may also be granted collectively to a particular category of convicted person, by royal decision. The most recent amnesties were granted on the occasions of the national holiday, the New Year and the King's birthday. [back to the contents]

III. INITIATIVES FOR STRENGTHENING THE IMPLEMENTATION OF THE RECOMMENDATIONS

54. Although most of the difficulties encountered in implementing the recommendations have been overcome, some remain. They were the subject of an agreement with the authorities concerned, as follows:

(a) To adjust the length of police custody (24 hours) to travel problems. Almost all the police officers and judges interviewed especially in the provinces, drew the attention of the Working Group to the impossibility of respecting the 24-hour custody period owing to the remoteness of many villages, a fact compounded by the Himalayan terrain and the scarcity of telephones in the rural areas. The information gathered by the Group shows the scale of the problem. In Samtse, for example, the most remote villages are accessible only by foot; the journey takes six days round trip, to which must be added the previous three-day journey needed for the villagers to alert the police. In order to shorten the length of time involved, the peasants, when possible, travel by foot for one or two days to the closest government office, which generally has a telephone line. In Gasa (Punakha district), for example, and in Lhuntshi district, the journey can take six or seven days one way. In practical terms, the following procedure is generally followed:

(i) The men, gathered by the village Chief, arrest the person against whom charges will be brought. Under the protection of the Chief, the person is placed in a confined space while waiting to be taken into police custody;

(ii) One or two messengers are sent to alert the police;

(iii) On their arrival, the police conduct the preliminary investigations (including questioning and collecting testimony, evidence and exhibits). If they believe the accusations to be unfounded or inadequate, they release the individual. If not, they escort him to the police station. The normal procedure then continues (indictments, appearance before a judge, etc.).

The Working Group's proposed solution is to calculate the 24-hour custody period (which runs from the arrest) from the person's arrival at the police station, as long as the length of the journey is specified in the up-to-date register of the detainees' legal status, which each detention centre has now begun to keep.

(b) To provide clearer guidelines on how custody may be extended. As noted by the Working Group, the police often have to ask the judge to extend custody beyond 24 hours to meet the demands of the investigation. It seemed to the Working Group that several criteria should be specified so that the judges can make their professional practice consistent and ensure effective monitoring. Some of them grant an extension without specifying the length, some call for limited but renewable periods, and still others - a minority - seem quite willing to impose fixed lengths. It is proposed that in the texts, limitations should be envisaged and conditions for a possible renewal stipulated (for example, proof), in order better to distinguish between custody following arrest and detention pending trial;

(c) To make the penalty system more flexible. According to law, the judge may pronounce only a prison sentence, even for minor misdemeanours and first offences. He may not suspend a prison sentence nor substitute a fine for imprisonment, except in the case of minors. The only possibility is to reduce the sentence to the minimum imprisonment called for by law. Based on the UnitedNations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), alternative measures should be considered, such as suspended sentences and probation. The possibility of suspending sentences seems to be desired by many judges, firstly because of its deterrent and therefore preventive effect (if the accused repeats his offence, he must serve the first and second prison terms non-concurrently; and secondly, in order to avoid the risk of overcrowding in the prisons. If fines were to be allowed for the same reason, the law should stipulate that the judge must take into account the standard of living of the convicted person. The Government does not rule out the possibility of such provisions being introduced in the draft reform of the Code of Criminal Procedure. A similar initiative could be envisaged while a sentence is being served, based on probation: a prisoner who has been on good behaviour and who shows a clear willingness to re-adapt can, after serving a significant part of his term (for example, at least one half), enjoy a measure of freedom, as long as he fulfils certain obligations (for example, not frequenting a given place or person, reporting periodically to the police, or compensating the victim. Such an initiative could also be taken as part of the draft reform of the Criminal Code;

(d) To strengthen the role of the Jabmi as defender. The Working Group noted that the function of lawyer stricto sensu does not exist as such in the Bhutanese legal system, as the role of defending the accused (or victim) is played by a Jabmi (see paras. 21, 22, 53 (c) above), a traditional Bhutanese institution. The Working Group believes that this tradition should be used as a basis for allowing the institution of Jabmi progressively to develop into that of lawyer. To that end, bearing in mind the present situation, the Working Group has made the following observations:

(i) The institution of Jabmi appears to be insufficiently known by the people. The function should therefore be popularized as long as there are enough candidates to meet a growing demand, if one arises. Based on the registers of the status of detainees in the Thimphu District Prison (52) and the Chamgang Central Jail (153), none of them has been assisted by a Jabmi. All of them defended themselves, sometimes with the help of either parents or friends;

(ii) If the function of Jabmi demands experience and wisdom above all, the modernization of the legal system undertaken by the authorities will increasingly require that Jabmis improve their legal training. An early and laudable initiative has been taken in this regard by the Chief Justice, who organized a training seminar for them. A call for candidates was launched nationwide. Of approximately 100 candidates, 71Jabmis were selected to take part in this first further training course.

The Working Group, which met at length with a group of interns noted the exceptional interest of the Jabmis in this initiative, which they hoped would be repeated, and which the Working Group can but commend.[back to the contents]

IV. CONCLUSIONS AND FINAL RECOMMENDATIONS

A. Conclusions

55. Following the two invitations by the Royal Government of Bhutan (on-site and follow-up visits), the Working Group notes that the 15recommendations it made in October1994 have generally been implemented.

56. Almost all the cases of detention considered by the Working Group during its October1994 visit to be irregular or arbitrary have been rectified.

(a) Innocent persons, or those against whom there was insufficient evidence, have been released;

(b) Those who had been in prison for a long time without being brought promptly before a judge have all been taken before a judge and then either released or put on trial; that measure, which was initially applied to about300detainees in the Chamgang Central Jail under the National Security Act, has subsequently been extended to all categories of detainees, as recommended by the Group;

(c) Nineteen of those sentenced under the National Security Act have been granted an amnesty by royal decree;

(d) New cases have been dealt with according to the same rules, namely:

(i) Appearance before a judge within the 24hours called for by law or at least promptly where practical difficulties arise, and for those in remote areas within a reasonable period of time considering the travel problems caused by distance, lackof roads or the terrain;

(ii) Judgement rendered within a reasonable period of time.

57. The prison registers, regularly updated, are using the various headings proposed by the Working Group in its recommendation14 (name of prisoner, date of arrest, date when first produced before the magistrate, date when he was formally charged, number of appearances and audiences, date and length of sentence, date of release, whether or not assisted by a Jabmi). In some detention centres the Group even noted that the register was labelled "Working Group Register", in reference to recommendation14, which was made by the Group during its first visit.

58. In addition, such registers are also being maintained in the police stations as regards the various stages of the preliminary investigation. They have greatly facilitated the work of the Group, enabling it to have both an individual and a global vision of the legal aspects of detention for each establishment. This explains why the main purpose of the meetings with prisoners was to ensure, through interviews, the veracity of the information appearing in the registers. No significant irregularities were noted.

59. During the meetings with each detainee, which were totally private and were held at a place chosen by the Group at the last minute, tworelated questions were asked in order to verify whether there had been any major transfers of detainees in the days preceding the Group's visit and whether the prisoners had been the victims of ill-treatment at one time or another during the proceedings. Although the last question is not directly part of the Group's mandate, the Group conducted a survey and would, if necessary, have brought the findings to the attention of the Special Rapporteur on torture. The responses were negative on both points (the only twocases of alleged ill-treatment recorded in the south of the country concerned the Indian border police, just before handing the detainee over to the Bhutanese authorities, a procedure which is a part of border police cooperation agreements).

60. Debtors' prison. According to the High Court, the Government is preparing a draft reform of the Loan Act, 1981 following the lines suggested by the Working Group in its recommendation10 ("allaccused against whom thereis a claim for money should not be prosecuted and should be released forthwith"). The draft law will shortly be submitted to the Cabinet and thento the Bureau of the National Assembly with a view to its adoption.

61. Recommendations4 and7, on prisoners being able to receive assistance from a Jabmi of their choice, are the most difficult to implement, mainly for practical reasons: there is an inadequate number of Jabmis, and for the most part they are still lacking any in-depth legal training and, as previously indicated, are carrying out this function in addition to their main occupation. Aware of this difficulty, in order to begin implementing recommendations4 and7 the Bhutanese authorities organized a Jabmi training and recruitment programme (see para.25 above), which was held at the High Court from 29February to 26March1996.

62. The Working Group wishes once again to thank the Bhutanese Government forthe excellent conditions of cooperation surrounding the twovisits, and for having taken the initiative for the follow-up visit, since, to the knowledge of the Working Group, this was the first time that a Government itself had requested such a visit. The Working Group recommends that the Commission on Human Rights should encourage Governments to follow the example of Bhutan by requesting follow-up visits.

B. Recommendations

63. In the light of these conclusions, the Working Group makes the following recommendations:

(a) Recommendation 1: The draft law reforming the Code of Criminal Procedure should be adopted as early as possible; the Code should contain thefollowing proposals cited above (cf. para.54):

(i) Travel time should not be taken into account in calculating the 24-hour custody period, the starting-point of which should be considered to coincide with the arrival of the arrested person at the police station. On the other hand, this period should be specified in the registers kept in thedetention centres;

(ii) Non-custodial alternative measures, such as suspended sentences and probation, should be available, based on theTokyo Rules (see para.54(c) above);

(b) Recommendation 2: The technical cooperation programme in the field of the administration of justice, which was agreed in principle between the Bhutanese authorities and the Centre for Human Rights, should be implemented, and high priority should be given to the question of the training of judges and of Jabmis, whose function is insufficiently known to the public;

(c) Recommendation 3: To the extent possible, Jabmis should be officially appointed to assist persons who lack financial means.


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