24 December 1997
COMMISSION ON HUMAN RIGHTS
Item 8 (a) of the provisional agenda
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO
ANY FORM OF DETENTION OR IMPRISONMENT, IN PARTICULAR:
TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted
pursuant to Commission on Human Rights resolution 1997/38
I. MANDATE AND METHODS OF WORK
II. ACTIVITIES OF THE SPECIAL RAPPORTEUR
III. INFORMATION REVIEWED BY THE SPECIAL RAPPORTEUR WITH RESPECT TO VARIOUS COUNTRIES
Democratic Republic of the Congo
1. The mandate of the Special Rapporteur on torture, assigned since April 1993 to Mr. Nigel S. Rodley (United Kingdom), was renewed for three more years by Commission resolution 1995/37 B. In conformity with this resolution and with resolution 1997/38, the Special Rapporteur hereby presents his fifth report to the Commission. Chapter I deals with a number of aspects pertaining to the mandate and methods of work. Chapter II summarizes his activities during 1997. Chapter III consists mainly of a review of the information transmitted by the Special Rapporteur to Governments, as well as the replies received, from 15 December 1996 to 5 December 1997. Chapter IV contains conclusions and recommendations.
2. In addition to the above-mentioned resolutions, several other resolutions adopted or reaffirmed by the Commission on Human Rights at its fifty-third session are also pertinent within the framework of the mandate of the Special Rapporteur and have been taken into consideration in examining and analysing the information brought to his attention. These resolutions are, in particular: decision 1997/106 reaffirming resolution 1996/32, "Human rights in the administration of justice, particularly with respect to children and juveniles in detention"; resolution 1997/16, "Rights of persons belonging to national or ethnic, religious and linguistic minorities"; resolution 1997/27, "Right to freedom of opinion and expression"; resolution 1997/28, "Hostage-taking"; resolution 1997/37, "Human rights and thematic procedures"; resolution 1997/39, "Internally displaced persons"; resolution 1997/42, "Human rights and terrorism"; resolution 1997/43, "Integrating the human rights of women throughout the United Nations system"; resolution 1997/44, "The elimination of violence against women"; resolution 1997/46, "Advisory services, technical cooperation and the Voluntary Fund for Technical Cooperation in the Field of Human Rights"; resolution 1997/56, "Cooperation with representatives of the United Nations human rights bodies"; resolution 1997/69, "Comprehensive implementation of and follow-up to the Vienna Declaration and Programme of Action"; resolution 1997/75, "Human rights and mass exoduses"; resolution 1997/78, "Rights of the Child". [back to the contents]
I. MANDATE AND METHODS OF WORK
3. No mandate-related issues have arisen during the year under review, nor have there been any new developments in the methods of work of the Special Rapporteur. Nevertheless, the Special Rapporteur wishes to assure the Commission on Human Rights that he has continued its practice of cooperating with the holders of other Commission mandates to avoid duplication of activity in respect of country-specific initiatives. Thus, he has sent urgent appeals or transmitted information alleging violations within his mandate to Governments, or sought joint missions to Member States, in conjunction with the following mechanisms: the Working Groups on Enforced or Involuntary Disappearances and on Arbitrary Detention and the Special Rapporteurs on extrajudicial, summary or arbitrary executions; independence of judges and lawyers; freedom of opinion and expression; elimination of violence against women; Afghanistan; the Islamic Republic of Iran; Myanmar; the Sudan; the Democratic Republic of the Congo; Rwanda; and Burundi. [back to the contents]
II. ACTIVITIES OF THE SPECIAL RAPPORTEUR
4. During the period under review the Special Rapporteur undertook a mission to Mexico (7-16 August 1997). The report of the visit may be found in addendum 2 to the present report. The Government of Turkey has invited the Special Rapporteur to visit the country in the last quarter of 1998, an initiative for which he is most grateful. Requests made this year for invitations to visit Algeria and Egypt in the coming year received a positive reaction in a first contact with the Permanent Missions of the two States. The Permanent Mission of Cameroon contacted the Special Rapporteur in respect of his outstanding request for an invitation to visit the country leading him to hope that progress could be made in this respect. The outstanding requests for invitations to visit China, India, Indonesia and Kenya remain without positive response.
5. The Special Rapporteur participated in the fourth meeting of special rapporteurs/representatives, experts and chairmen of working groups of the special procedures of the Commission on Human Rights and of the Advisory Services Programme which took place in Geneva from 20 to 23 May 1997. From 5 to 7 May he attended part of the sixth session of the Commission on Crime Prevention and Criminal Justice which took place in Vienna from 28 April to 8 May 1997.
6. He also attended a number of pertinent NGO meetings including an expert group meeting convened by REDRESS on the role of victims of crimes within the jurisdiction of the proposed International Criminal Court (Geneva, 15-16 March 1997); an Amnesty International meeting on universal jurisdiction (Netherlands, 9-11 May 1997); and an international conference on impunity organized by the International Institute for High Studies in the Criminal Sciences (Siracusa, Italy, 17-20 September 1997). The subject matter of these meetings contributed substantially to the recommendations that conclude the present report. He also participated in a panel of the annual meeting of the American Society of International Law (Washington D.C., 10-12 April 1997) examining the work of United Nations human rights protection machinery. [back to the contents]
III. INFORMATION REVIEWED BY THE SPECIAL RAPPORTEUR WITH RESPECT TO VARIOUS COUNTRIES
7. During the period under review, the Special Rapporteur sent 48 letters to 45 Governments on behalf of 380 individuals and 24 groups involving about 655 persons. About 74 were known to be women and about 56 were known to be minors. The Special Rapporteur also transmitted 119 urgent appeals to 45 countries on behalf of some 563 individuals (at least 19 known to be women and 9 known to be minors), as well as 22 groups of persons (one involving about 780 children) with regard to whom fears that they might be subjected to torture had been expressed. Together with individual cases the Special Rapporteur also transmitted to Governments allegations of a more general nature regarding torture practices, whenever these allegations were brought to his attention. In addition, 28 countries provided the Special Rapporteur with replies on some 345 cases submitted during the current year, whereas 19 did so with respect to some 290 cases submitted in previous years.
8. This chapter contains, on a country-by-country basis, summaries of the general allegations transmitted by letter to Governments and the latter's replies, as well as a numerical breakdown of the individual cases and urgent appeals transmitted by the Special Rapporteur and the replies received from Governments. Information about follow-up action to reports and recommendations made after previous years' visits to countries are also included. Finally, observations by the Special Rapporteur have also been included where applicable. Information about individual cases transmitted and replies received are contained in addendum 1 to this report. [back to the contents]
9. The Special Rapporteur sent two urgent appeals, one in conjunction with the Special Rapporteur on the situation of human rights in Afghanistan concerning the application of amputation as a form of punishment, and the other on behalf of one individual in conjunction with the Special Rapporteurs on the situation of human rights in Afghanistan and on extrajudicial, summary or arbitrary executions.
10. In the light of the information contained in the interim report of the Special Rapporteur on the situation of human rights in Afghanistan (A/42/493) and in the addendum to the present report (E/CN.4/1998/38/Add.1, paras. 1-2), the Special Rapporteur is concerned at the incidence of torture or other cruel, inhuman or degrading treatment or punishment, in particular extreme forms of corporal punishment often specifically inflicted on women determined to have been involved in offences of a moral nature. [back to the contents]
11. The Special Rapporteur transmitted to the Government one urgent appeal on behalf of persons arrested during demonstrations and received one reply from the Government. [back to the contents]
12. By letter of 17 November 1997, the Special Rapporteur informed the Government that he had received reports that torture and ill-treatment occurred frequently during periods of incommunicado detention in police and gendarmerie stations, military security centres and secret detention centres. Incommunicado or garde à vue detention could reportedly be extended to 12 days, since the issuance of decree No. 92-03 of 30 September 1992.
13. The main purpose of torture and ill-treatment was said to be the extraction of information and the signing of confessions in the form of written statements (procès verbaux) during interrogation, but it was also said to have been used as a form of punishment. The information received suggested that persons suspected of having links with armed opposition groups were particularly vulnerable to torture.
14. Torture methods most commonly used by the security forces were said to include: "chiffon", whereby a detainee is tied to a bench and a cloth is stuffed in his mouth after which large quantities of dirty water and chemicals are poured into his mouth; "chalumeau", whereby a torch is used for inflicting burns on the body; electric shocks to sensitive parts of the body; tying a rope around the penis and/or testicles or placing the genitals between drawers; beatings; burnings by cigarettes; insertion of objects or glue into the anus; and suspension. Information had also been received alleging that persons had been subjected to rape, pumping of salt water into the stomach - sometimes reportedly leading to death, boring of holes in limbs or breaking of them. Detainees were further said often to be blindfolded during prison transfers and sometimes also during interrogation and the initial period of detention.
15. Independent medical supervision during incommunicado detention, but also thereafter, had allegedly frequently been denied. If a medical examination took place, it was reportedly often carried out after a delay and by a Government-appointed doctor. Some detainees had reportedly died in detention as a result of torture.
16. Since 1992, the authorities had reportedly not carried out any official judicial investigations into allegations of torture and ill-treatment and preventive measures had allegedly not been taken. Confessions obtained under duress were said to have been used as evidence in court. Furthermore, no independent human rights or humanitarian organization was reportedly able to carry out private interviews with detainees in prison.
17. The Special Rapporteur also transmitted four individual cases. In addition, he sent an urgent appeal on behalf of one person, and received a reply from the Government. In his letter of 17 November 1997, the Special Rapporteur also requested the Government's agreement on the possibility of a visit to the country, in order to enable him to better fulfil his mandate.
18. In the light of the information before the Special Rapporteur and of preliminary contacts with the Permanent Mission, he has reason to hope that the Government will see fit to extend to him an invitation to visit the country in the coming year. [back to the contents]
19. The Special Rapporteur transmitted to the Government information received on the treatment to which a group of prisoners in the Persons on Charge Unit (Unidad de Encausados) of the city of Córdoba had allegedly been subjected. [back to the contents]
20. The Special Rapporteur transmitted 6 newly reported cases, some of them collective, concerning 11 individuals and a number of unnamed persons. He also retransmitted the cases sent by the Special Rapporteur in 1996 to which no reply had been received.
21. The Special Rapporteur considers the observations he made in his report last year (E/CN.4/1997/7, para. 23) remain pertinent. [back to the contents]
22. The Government provided additional information concerning two cases which were transmitted and first replied to in 1996. [back to the contents]
23.The Special Rapporteur transmitted to the Government two newly reported cases: one individual case and one collective case on behalf of two individuals and a group of unnamed persons. He also retransmitted one individual case already sent in 1996 but to which no reply had been received. [back to the contents]
24. The Special Rapporteur transmitted one individual case and three urgent appeals. The Government replied to the urgent appeals.
25. The Special Rapporteur appreciates the Government's responses to his urgent appeals. He would welcome the Government's reaction to the observations he formulated in his report of last year (E/CN.4/1997/7, para. 29). [back to the contents]
26. The Special Rapporteur transmitted three urgent appeals, all of which the Government replied to. [back to the contents]
27. The Special Rapporteur sent an urgent appeal on behalf of one person, and the Government replied.
28. The Special Rapporteur notes the recommendation of the Human Rights Committee that the Government should institute investigations into human rights violations "to bring to justice the perpetrators and to provide proper compensation to the victims, particularly with respect to continuing occurrences of torture and ill-treatment by the police and security forces" (A/52/40, para. 218). [back to the contents]
29. On 26 May 1997 the Special Rapporteur advised the Government that he had received information that the forensic medicine services were subordinate to the security forces, which compromised the independence they ought to enjoy. Moreover, under Brazilian law only a medical examination authorized by a police authority was valid in court. This meant that victims of possible acts of torture or ill-treatment would be reluctant to seek such authorization for fear of reprisals, thus making it difficult to obtain evidence.
30. The Brazilian Forensic Medicine Society and the Brazilian Society of Forensic Criminology Experts had apparently been seeking financial and administrative autonomy from the police since 1989 and had proposed legislative initiatives to this effect. The Government, however, was said not to have attached priority to this matter. To date, only in the State of Amapá had forensic services ceased to be subordinate to the police authorities and they now reported directly to a secretariat linked to the Governor's Office.
31. It was also reported that doctors had been asked to indicate the physical cause of death in autopsy forms but had not been instructed to include comments on the means which had provoked the death, nor had they been instructed about submitting the kind of information that might be relevant to a legal investigation. Therefore, important data were often lost.
32. The Special Rapporteur also received information that the police, both civil and military, and also the federal police, frequently resorted to torture in much of the country. Contributory factors were the lack of training and the impunity usually enjoyed by those responsible. Moreover, the legislature still had not adopted measures to criminalize torture. Although the lower house had approved the appropriate bill on 2 July 1996 it was still pending in the Senate.
33. The Special Rapporteur also transmitted to the Government information on three individual cases and one urgent appeal together with the Special Rapporteur on extrajudicial, summary or arbitrary executions. [back to the contents]
34. By letter of 11 July, the Special Rapporteur advised the Government that he had received information on what was alleged to be a substantial incidence of torture or other ill-treatment inflicted by members of the police against street children, especially those of Roma ethnicity. The ill-treatment, which was said to take place both at the time of arrest and during detention at police stations, was allegedly carried out to intimidate or to extract a "confession". The children so detained were reportedly sometimes picked up on suspicion of such crimes as theft, but might also be arrested as part of generalized "street sweeps". The abuse reported included beatings with fists, boots, electric shock batons, clubs, chains, rubber hosing, boxing gloves or a metal rod with a ball attached to its end (beech) and beatings on the soles of the feet, sometimes with electric batons (falaka). Detained children who were held at police stations were said frequently to be held without beds, blankets and sometimes without food or use of toilets. The parents of such detainees were reportedly rarely informed of their detention. Children were also reported to be sometimes held together in lock-ups with adult detainees.
35. The Special Rapporteur also informed the Government of newly received allegations concerning seven persons, two of them minors. In connection with a number of cases transmitted in 1996 on which replies had been received, the Special Rapporteur sent to the Government the observations made by the source on the replies. In addition to that, the Special Rapporteur retransmitted the cases which had not been replied to.
36. The Special Rapporteur's observations of last year (E/CN.4/1997/7, para. 37) appear to remain pertinent.[back to the contents]
37. The Special Rapporteur transmitted to the Government four urgent appeals, including one in conjunction with the Special Rapporteur on the situation of human rights in Burundi. [back to the contents]
38. The Special Rapporteur transmitted to the Government information on three individual cases and one case involving three persons and received a reply in each case. He also sent two urgent appeals, both collective.
39. The Special Rapporteur notes his outstanding request for an invitation to visit the country. Contacts with the Permanent Mission lead him to hope that progress may be made in this respect. [back to the contents]
40. In a letter dated 26 May 1997, the Special Rapporteur informed the Government that he had received information that the torture of persons arrested for political reasons was a widespread practice throughout Chadian territory. One of the commonly used methods of torture reported is known as "arbatachar" which involves tying the victim's arms and legs behind his back, thus causing extreme pain, open wounds and, in some cases, gangrene. Another technique is to use two metal rulers or two pieces of iron held together with two elastic bands which the torturers fit onto the head of the victim, who is tied in the "arbatachar" position against a tree or a pole; they then beat in time on the metal rulers or pieces of iron several times for at least one hour using another piece of iron. Cases of prisoners stuffed into burlap sacks and thrown into the Logone river had also been reported.
41. Violence against women, including the rape of young girls, also seemed to be very widespread. The persons responsible seemed to be not only the security forces, but also armed opposition groups. Because of the social stigma attached to rape, the victims hardly dare to seek medical attention, much less speak out or file a complaint.
42. The reports also stated that persons suspected of belonging to the armed opposition were singled out for ill-treatment. In the majority of cases, they were allegedly tortured at the time of arrest or inside gendarmerie premises by soldiers and gendarmes trying to obtain information. Some prisoners were also said to be tortured in National Security Agency premises. According to the information received, it was unusual for complaints to be filed because the victims were afraid of reprisals or considered that the persons who were guilty would never be brought to justice. In addition, the authorities allegedly did not take account of requests by judges in connection with investigations of human rights violations. For example, when orders were given by the public prosecutor for the interrogation of soldiers responsible for human rights violations, the gendarmes would refuse on the grounds that they could not interrogate their superiors. The authorities also made sure that jails and places of detention were beyond the prosecutors' control and set up obstacles to the prosecutors' work in this regard.
43. The Special Rapporteur has transmitted information to the Government on 13 cases, some of them collective, relating to 19 persons, as well as to a number of unidentified persons. He also transmitted an urgent appeal on behalf of eight persons.
44. The Special Rapporteur regrets the absence of a response from the Government, in the light of information indicating the probability that there is extensive resort to torture by the forces charged with keeping public order. [back to the contents]
45. In a letter dated 22 September 1997 the Special Rapporteur, as a follow-up to the recommendations he had addressed to the Government after his visit to the country in 1995, requested the Government to provide information on the following matters:
(a) The follow-up given to the report by the Constitutional, Legislative and Judicial Committee of the Chamber of Deputies, which proposed eliminating the "arrest on suspicion" provision from the current Code of Criminal Procedure;
(b) The follow-up to the bill, shown to the Special Rapporteur during the course of his visit, reforming the Code of Criminal Procedure and the Penal Code with regard to detention and introducing rules to strengthen the protection of civic rights;
(c) The situation concerning the draft Code of Criminal Procedure and of the Organization Act relating to the Prosecution Service;
(d) The follow-up to the bill submitted by the Government to the Chamber of Deputies in 1996 in order specifically to characterize torture as an offence;
(e) Whether or not in the years 1996 to 1997 officers of the forces of law and order had been punished for offences relating to violation of the right to physical integrity of detained persons, and if so, details of these cases.
46. In the same letter the Special Rapporteur transmitted to the Government information on 12 alleged cases of torture. In addition, the Special Rapporteur sent an urgent appeal on behalf of four persons.
47. In the light of information suggesting that torture and ill-treatment continue to be resorted to by the police, it is a matter of concern that the Government has not been in a position to elaborate on developments, subsequent to its response of 10 September 1996 (see E/CN.4/1997/7, paras. 45-53) by way of follow-up to the recommendations he made in the report of his 1995 visit to the country (E/CN.4/1996/35/Add.2). [back to the contents]
48. The Special Rapporteur transmitted 7 newly reported cases, some of them collective, concerning 11 individuals and a number of unnamed persons. He also retransmitted the cases sent by the Special Rapporteur in 1996, and a number of allegations transmitted in 1995 on which no reply had been received. The Special Rapporteur further made three urgent appeals on behalf of seven persons. The Government replied to two of the urgent appeals.
49. The Special Rapporteur appreciates the Government's replies in respect of the first two urgent appeals. He is also relieved at the later (November) release of Wei Jingsheng. He notes the absence of response in respect of other cases transmitted to the Government. In the light of continuing worrying allegations of torture and ill-treatment, particularly in Tibet, he again stresses his outstanding request for an invitation to visit the country. [back to the contents]
50. The Government sent information with regard to a case transmitted by the Special Rapporteur in 1996.
Follow-up to the recommendations made by the Special Rapporteur on torture and the Special Rapporteur on extrajudicial, summary or arbitrary executions subsequent to their visit to Colombia in 1994
51. On 29 October 1996 the Special Rapporteurs reminded the Colombian Government of recommendations made after their visit to the country in October 1994 and requested information on measures taken to implement those recommendations, particularly in connection with certain aspects of the recommendations detailed in a questionnaire. On 8 January 1997 the Government replied to this request. During 1997 non-governmental sources provided the Rapporteurs with information relating to subjects covered by the recommendations and to the Government's comments.
52. The recommendations (see E/CN.4/1995/111), a summary of the Government's reply and a summary of the information received from non-governmental sources are given below. They were transmitted to the Government on 31 October 1997.
53. "The Special Rapporteurs call on the Government to fulfil its obligation under international law to conduct exhaustive and impartial investigations into all allegations of extrajudicial, summary or arbitrary executions and torture, to identify, prosecute and punish those responsible, grant adequate compensation to the victims or their families and take all appropriate measures to prevent the recurrence of such acts."
54. The Government indicated with regard to the obligation to compensate victims that Act No. 288 of 1996 established methods for compensating victims of violations by virtue of the provisions adopted by certain international bodies, specifically the Inter-American Commission on Human Rights and the Human Rights Committee. The Act established an obligational content specifically for the Government.
55. Non-governmental sources pointed out that, although Act No. 288 of 1996 marked a step forward in making domestic arrangements consistent with international instruments for the protection of human rights, it did not encompass the broader view of reparation for violations of human rights developed by international doctrine and case law and was confined solely to financial compensation, without any mechanisms which, for example, envisaged social redress, clearing of the names of the victims and fulfilment of the State's obligation to guarantee the rights to truth and justice. Similarly, Act No. 288 of 1996 limited the State's commitment to fulfilling only the Recommendations on Compensation made by the Inter-American Commission on Human Rights and by the United Nations Human Rights Committee and excluded any equally binding recommendations from other intergovernmental bodies for the protection of human rights, such as the International Labour Organization or the Committee against Torture.
56. As regards the civil justice system the Rapporteurs recommended, inter alia, the following: "As long as the Regional Justice System exists, the crimes falling under this jurisdiction should be clearly defined ... defendants before regional courts must enjoy full respect for their right to a fair trial. The severe restrictions currently in place, including those affecting the right to habeas corpus, ... should be eliminated."
57. With reference to the Regional Justice System the Government said that the Administration of Justice Act specifically mentions the period of operation of the Act, which should cease to apply no later than 30 June 1999. This Act originally contained provisions to limit the anonymity of witnesses and of the public prosecutor. Now the Constitutional Court had declared that it was impossible to eliminate these provisions on procedural grounds. Nevertheless, from all the criticisms, recommendations and suggestions made, it can be inferred that the tendency is to reduce the scope of the Regional Justice System, the principal factors for applying it being the danger posed by the accused and the seriousness of the offence. More and more restrictions have been placed on the anonymity of judges and witnesses.
58. Non-governmental sources indicated that, further to the decision by the Constitutional Court, the previous rules were still in force. This continued to make it easy for members of the police force to act as secret witnesses and accuse, in court, those whom they considered their enemies, who were usually nothing more than social activists. The Rapporteurs recommended that "provision should be made for effective protection of persons providing testimony in proceedings involving human rights violations".
59. The Government pointed out that the Programme for the Protection of Prosecution Witnesses operated on a limited basis, as the requirements were rather strict and few people were willing to submit to them. Resources continued to be insufficient for the needs. The Government had made progress in implementing the Special Programme for the protection of officials and activists of political, trade union, social and human rights organizations and witnesses. This programme was run by the Special Human Rights Administrative Unit of the Ministry of the Interior.
60. Non-governmental sources pointed out that the Programme for the Protection of Prosecution Witnesses in cases of human rights violations had not produced particularly good results. On the few occasions it had been used the conditions were very strict, the greatest difficulty being to ensure complete separation of the protected person from his or her family. Moreover, witnesses lacked confidence in the conditions of protection, and understandable that victims of human rights violations were afraid of any State official. The rigidity of the Programme conflicted with the lack of confidence of potential protectees, to the detriment of their safety. The main problem with this type of programme was that it was designed for criminals who turned State's witness, rather than for victims of human rights violations. Victims were exposed to the possibility of being placed on a charge, since the function of the Prosecutor's Office was to investigate and accuse, so it was natural for victims not to feel confident about the body required to protect them. These programmes had very little coverage and their focus was debatable; there was a tendency to act on threats against the safety of individuals, but in the overwhelming majority of cases investigation into the causes of and those responsible for the threats was left aside.
61. With regard to the special programme for the protection of officials and activists of political, trade union and social organizations, non-governmental sources pointed out that the programme had been presented to non-governmental human rights organizations by the Government in March 1997. Since that date the safety conditions for human rights institutions and their members had been seriously deteriorating, with many cases of assassinations, disappearances, court proceedings in which human rights activities were criminalized, threats, exile and forced displacement. These acts contrasted with governmental policy since the middle of this year, as exemplified by Presidential Directive No. 011 of 16 July 1997 and the dialogue begun between human rights organizations and the Government through the Ministry of the Interior, the Ministry of Foreign Affairs and the Ministry of Defence, principally on the situation of human rights defenders.
62. Non-governmental sources also pointed out that Directive No. 011 recognized the legitimacy of the work of non-governmental human rights organizations, their contribution to democracy and the rule of law, and to preventing further violations, overcoming impunity and ensuring reparations for the victims. It ordered public servants to refrain from making insulting or injurious statements against members of these organizations and to give priority to petitions by human rights defenders. The non-governmental organizations acknowledged the importance of this type of measure. Nonetheless, in the dialogue begun with the Government they had declared that these measures should be more far-reaching and more effective. Among the measures suggested were confronting and eradicating illegal paramilitary groups, dismissing those members of the public forces and other State organizations involved in serious human rights violations, and implementing strategies for prosecuting and punishing those responsible for threats and attacks against human rights defenders.
63. The Rapporteurs recommended, with regard to military justice, that a reform of the Code should include the following elements: (a) a clear distinction between those carrying out operational activities and members of the military judiciary, who should not form part of the normal chain of command; (b) reconstitution of the military tribunals with a corps of legally trained judges; (c) ensuring that investigation and prosecution officials were independent of the normal military hierarchy; (d) elimination of the principle of obedience to superior orders in connection with executions, torture and enforced disappearances; (e) involvement of the claimant for criminal indemnification (parte civil); and (f) explicitly excluding from military jurisdiction the crimes of execution, torture and enforced disappearance. Furthermore, the body deciding on conflicts of jurisdiction between the civil and military justice systems should be composed of independent judges.
64. The Government referred to its decision to present to Congress the reform of the Military Criminal Justice System beginning in March 1997. The Government had an official position with regard to the two most relevant points at issue: whether or not to limit the concept of service-related crimes, and whether or not to restrict the concept that obedience to superior orders conferred exemption from responsibility. In connection with the first matter, the Government had opted not to include definitions or regulatory details and to leave it to the discretion of the court to determine whether or not the acts were connected with active service. As for obedience to superior orders, this could only be invoked when the act was the result of a legitimate order and did not infringe fundamental rights.
65. Other important advances had also been achieved such as a clear distinction drawn between those who carried out operational activities and members of the military judiciary, who should not form part of the normal chain of command; the technical training of investigation and trial personnel; the introduction of the indictment system; the involvement of the claimant for indemnification (parte civil) in legal proceedings, and the introduction of a chapter in which the most relevant infringements of international humanitarian law were characterized as offences.
66. Non-governmental sources pointed out that the draft Military Criminal Code submitted by the Government reproduced the content of article 221 of the Constitution and, in connection with serious violations of human rights, excluded application in the military courts. As to obedience to superior orders, it established that an order should be carried out with the due legal formalities and by a competent authority. Nevertheless, it was not explicit about the duty not to carry out express orders which involved violations of human rights. Action by the claimant for indemnification (parte civil) was extremely limited within legal proceedings, for under article 301 of the draft that party could not oppose rulings and decisions unless they related to claims for compensation.
67. The same sources pointed out that the conditions in which the draft was presented had been substantially modified by the decision of the Constitutional Court on 5 August 1997, which had ruled on a claim of unconstitutionality concerning various articles of the Military Criminal Code. The decision fixed three rules for the application of military criminal law. The first was that such application was restrictive, which meant that it could apply only in crimes committed by members of the public security forces on active service and in connection with their duties. The act had to be part of the lawful activities of the police service or armed forces; therefore, if the intention of the agent was criminal from the outset the case fell to the ordinary courts. The second rule was that certain crimes did not and could not constitute service-related acts and were not covered by military law, for example, crimes against humanity. In those circumstances the case should be assigned to the ordinary courts in view of the total incompatibility between the crime and the tasks of the public security forces under the Constitution. Thirdly, the evidence presented in legal proceedings should fully demonstrate the active service relationship. This meant that, in situations in which there was doubt about the jurisdiction competent to rule on a particular case, the decision should be in favour of the ordinary courts, since it had not been possible to fully demonstrate that the case constituted an exception.
68. The rules fixed by the Constitutional Court were binding on the country's other jurisdictional authorities. Non-governmental sources nonetheless showed concern about their application in this instance. This was due to the fact that, since the ruling, the Government had not made the necessary arrangements for referral to the Attorney-General's Office or to the ordinary courts of cases currently under the military criminal justice system that did not fulfil the conditions for a hearing in the military courts, in conformity with the Constitutional Court's ruling.
69. The Special Rapporteurs recommended the establishment of a mechanism which could contribute to providing justice for past offences.
70. The Government pointed out that it had actively participated in the friendly settlements being reached within the framework of the Inter-American Commission, also mentioning some of the headway made in the Trujillo, Uvos, Caloto and Villatina cases.
71. Non-governmental sources recognized the importance of the investigative commissions mechanism. They noted, however, that progress was minimal in clearing up cases, punishing the guilty and securing social redress for the victims of violence. None of the judicial investigations had been completed.
72. The Rapporteurs recommended taking effective priority measures to disarm and dismantle paramilitary groups.
73. The Government indicated that the activity of private vigilante groups had been rejected by the highest governmental authorities. The Attorney-General's Office had described the fight against impunity for acts committed by these groups as one of its priorities. The Human Rights Unit was currently engaged in 29 investigations in that connection and had issued arrest warrants for members of those groups.
74. Non-governmental sources said that, since the beginning of 1997, the actions of paramilitary groups had spread throughout the national territory. In carrying out their actions the groups had committed serious violations consisting of executions, forced disappearances and torture of a dreadfully cruel nature on all kinds of victims. They had also caused the displacement of entire populations. In addition, as was typical since they had emerged, they had carried out their actions in highly militarized zones and no clashes had occurred with public security forces. In some cases joint actions with the army had even been reported.
75. These same sources note that the Government's attitude towards these groups was permissive, inasmuch as they had not adopted policies to combat them. Moreover, a tendency was observed to actually legitimize them by creating and encouraging the so-called "Convivir" (coexistence) groups. These were organizations of private individuals called on to provide special vigilante and private security services, with official authorization to use weapons meant for the exclusive use of the public security forces. Although the law was not clear in determining the activities of these organizations, they were officially pictured as engaged in intelligence work in armed conflict zones, helping the army to combat the guerrillas. This meant that tasks which were rightly the work of the military were being delegated to private individuals, which was contrary to the provisions of the Constitution, according to which these tasks could only be carried out by the military and the police forces. An application of unconstitutionality against the decree creating these groups was currently under examination by the Constitutional Court.
76. During 1997 the activity of these groups has been stepped up in the municipalities of Yondó, Dadeiba, Remedios and Santa Rosa de Osos, in the Department of Antioquia; Carmen de Bolívar, Río Viejo and Tiquisio Nuevo, in the Department of Bolívar; Milán, in the Department of Caquetá; La Jagua de Ibirico, El Copey and La Paz, in the Department of César; Riosucio, in the Department of Chocó; Abrego, in the Department of Norte de Santander, and Mapiripán, in the Department of Meta.
77. The Special Rapporteurs recommended the adoption of measures to protect those at risk of "social cleansing" killings, in particular street children.
78. The Government pointed out that the President's Social Solidarity Network was conducting a special programme to promote the rights and the protection of the homeless in 12 cities. This was currently being worked on in an inter-agency committee trying to strengthen the "Care for street children" programme.
79. Non-governmental sources said that, between October 1995 and September 1996, 314 people had died as a consequence of violence against the socially marginalized. In almost 40 per cent of the cases those responsible for the actions were unknown. Among the other cases, the paramilitary groups were mainly responsible, accounting for 57 per cent of cases. Moreover, the responsibility for 15 of 24 collective executions of marginalized people was attributed to them. Two and a half per cent of the cases were attributed to guerrillas and 1.3 per cent to members of the public security forces. Sixty per cent of these executions occurred in the country's six main cities (Medellín, Barranquilla, Bogotá, Cartagena, Cali and Cúcuta).
80. The Special Rapporteur appreciates the Government's detailed response by way of follow-up to the joint report of the Special Rapporteurs. He hopes that the Constitutional Court's ruling that crimes against humanity could not be service related and thus were amenable to civil and not military jurisdiction would result in the transfer to the civilian justice system of all cases of torture presently before the military justice system. He also notes that the Human Rights Committee has deplored "the fact that gross and massive human rights violations continue to occur in Colombia... [in particular] torture and other degrading treatment" (A/52/40, para. 278). While information has started reaching him from the Bogotá office of the High Commissioner for Human Rights, the Special Rapporteur believes that over the coming period, it will be desirable to review procedures for the exchange of information. He believes the work of this office could be enhanced by working in cooperation with a Special Rapporteur on the human rights situation in Colombia. [back to the contents]
81. The Special Rapporteur transmitted three new cases to the Government. In addition, he again transmitted those already sent in 1995 and 1996, on which no reply had yet been received.
82. In the light of the conclusions and recommendations of the Committee against Torture, as well as the information referred to in the addendum to the present report(E/CN.4/1998/38/Add.1, paras. 82-84), the Special Rapporteur can only reaffirm his observations of last year (E/CN.4/1997/7, para. 68). [back to the contents]
83. The Special Rapporteur sent one new case to which the Government replied. The Government also replied to one case transmitted in 1996. [back to the contents]
Democratic Republic of the Congo
84. The Special Rapporteur addressed two urgent appeals to the Government in conjunction with the Special Rapporteur on the situation of human rights in the Democratic Republic of the Congo. One was on behalf of three persons, the other on behalf of ten persons. [back to the contents]
85. The Special Rapporteur transmitted to the Government an urgent appeal on behalf of five persons. [back to the contents]
86. The Special Rapporteur sent an urgent appeal on behalf of a group of prisoners. In addition, he received a reply from the Government on cases transmitted in 1995. [back to the contents]
87. By letter dated 28 April 1997, the Special Rapporteur advised the Government that he had received information indicating that torture of persons detained for political reasons continued to take place on a systematic basis. In addition, the use of torture against persons detained in ordinary criminal cases was said to occur with frequency. Torture was reported to be carried out in the State Security Investigations Department (SSI) headquarters in Lazoghly Square, SSI branches throughout the country, police stations and Firaq al-Amn (security brigades), where detainees were said to be held incommunicado. The methods of torture reported include the administration of electric shocks, beatings, suspension by the wrists or ankles, burning the body with cigarettes, threats of rape or sexual abuse to the detainee or to female relatives in his presence.
88. The Special Rapporteur also advised the Government that he had continued to receive information according to which conditions of a number of prisons were said to be extremely poor. On the whole, the prison system was said to be characterized by the use of torture and other ill-treatment as a means of discipline and punishment, the prevalence of contagious diseases such as tuberculosis, lack of adequate medical care for prisoners and bans on visits from relatives and lawyers. In this connection, particular allegations had been received in respect of the High Security Prison (Al-Aqrab or the Scorpion). Prisoners were said to receive insufficient quantities of food and the food received was said typically to be served from filthy buckets and often infested with insects. Tuberculosis was reported to be widespread inside the prison. Prisoners requiring hospitalization or specialized tests such as x-rays were said to be denied access to such medical care, even upon the recommendation of the prison doctor. According to a decision taken by the Minister of the Interior on 20 December 1993, the prison was said to be considered "closed", meaning that visits of families and relatives are banned. The Administrative Court was said to have issued five rulings cancelling the closing decision, none of which were reportedly complied with by the Ministry of the Interior. Torture and ill-treatment of prisoners was reportedly widespread at the High Security Prison. Inmates were said to undergo "reception parties" at Fayyom Prison upon entering (see E/CN.4/1997/7, para. 71).
89. By the same letter the Special Rapporteur communicated to the Government nine newly reported cases, some of them collective, on behalf of 12 individuals and a group of 100 prisoners. He also sought follow-up information on two previous cases, involving 53 individuals, and retransmitted a number of previously transmitted allegations to which he had not yet received a reply. The Special Rapporteur further transmitted two urgent appeals on behalf of the same four individuals. One appeal also raised the case of a group of 250 farmers.
90. The Government replied to 14 cases, some of them collective, involving 99 individuals, all transmitted in previous years.
91. The Special Rapporteur again expresses his appreciation for the substantial efforts the Government has undertaken in order to respond to the numerous allegations he has transmitted. He notes that in no case has a police or security official been convicted and sentenced for torture. He detects a willingness of the agencies of the administration of justice to place too heavy a burden on the alleged victims pursuing their investigations, thus implying a great willingness to close cases. The few cases of disciplinary action, involving reduction of salary or transfer to another police station, hardly suggest a serious commitment of the institution to redress grave abuses of prisoners. His concerns as addressed last year have not abated (E/CN.4/1997/7, para. 73). Preliminary contacts with the Permanent Mission encourage him to hope that the Government will respond positively to his request for an invitation to visit the country in the coming year. [back to the contents]
92. The Special Rapporteur sent the Government four urgent appeals, to one of which the Government replied.
93. The Special Rapporteur notes that the Special Rapporteur on the human rights situation in Equatorial Guinea observed in his last report "that cases of torture and ill-treatment of prisoners continue to occur, although the number of complaints received is considerably lower than in previous years" and that the "impunity of the perpetrators of human rights violations is continuing" (E/CN.4/1997/54, paras. 40 and 44). [back to the contents]
94. The Special Rapporteur transmitted to the Government eight individual cases, one of which had also been the object of an urgent appeal. In addition, he submitted four other urgent appeals, one on behalf of a group of some 200 individuals and three on behalf of some 20 members of the Oromo ethnic group. The Government replied to the appeal concerning the group of 200 individuals, to two appeals on the Oromo members and to another urgent appeal on behalf of a large number of persons which had been transmitted in 1996 in conjunction with the Special Rapporteur on extrajudicial, summary or arbitrary executions.
95. The consistency of allegations of torture, particularly as regards persons in the hands of the army and suspected of involvement with the Oromo Liberation Front,is a matter of concern to the Special Rapporteur. A thorough inquiry into the detention and interrogation practices of the army in its counter-insurgency operations with a view to bringing such practices into line with international standards is the minimum measure that should be undertaken by the Government as a matter of urgency. [back to the contents]
96. In a letter of 5 February 1997, the Special Rapporteur informed the Government that he had received reports indicating that most persons detained for political reasons and some persons detained in ordinary criminal cases in Georgia were subjected to torture or other ill-treatment during detention and interrogation. Torture and ill-treatment were reportedly used to obtain "confessions" or extract other information from detainees. The methods of torture and ill-treatment reported included hanging upside down; scalding with hot water; extraction of fingernails or toenails; application of electric shocks; systematic beating, sometimes resulting in fractured bones or broken teeth; and issuing of threats that members of the detainee's family would be killed or tortured. Courts were said generally to refuse to exclude evidence, including "confessions", repudiated by defendants as having been obtained through torture, and to fail to investigate such claims of torture.
97. Conditions in prisons and detention centres in the country were reportedly abusive. Prisons were said to be severely overcrowded and unsanitary, with contagious diseases such as tuberculosis and dysentery widespread. Detainees also reportedly lacked adequate food and medical treatment.
98. The Special Rapporteur also transmitted allegations concerning seven persons.
99. The Special Rapporteur notes the concerns of the Committee against Torture as regards the "volume of complaints of torture, particularly related to the extraction of confessions ..., the failure to investigate claims of torture and to prosecute alleged offenders ... (and) to make proper provision for compensation, restitution and rehabilitation of victims of torture ... the grossly inadequate conditions in places of detention, including prisons ... (and) the alarming number of deaths in prison" (A/52/44, para. 120). He also stresses the Committee's recommendations, in particular, that proposing abolition of incommunicado detention. He also notes the similar concerns expressed by the Human Rights Committee (A/52/40, paras. 240-243) and its recommendations (paras. 253-255).[back to the contents]
100. By letter dated 17 November 1997, the Special Rapporteur advised the Government that he had continued to receive allegations indicating that a number of persons had been subjected to disproportionate or unnecessary force while police officers were trying to restrain or arrest them, or to ill-treatment in police custody. Victims were said to include mostly foreigners, including asylum seekers, or members of ethnic minorities. Beating, kicking and punching were the most reported forms of ill-treatment. Criminal investigations were known to have been instituted, but their promptness, thoroughness and impartiality had been questioned. Few officers were as a result said to have been prosecuted or sanctioned and compensation had in several cases reportedly not been accorded.
101. The Special Rapporteur also transmitted six individual cases. With respect to the cases previously transmitted, the Special Raporteur sent to the Government comments made by the source to the reply on three instances and requested follow-up information on another four.
102. The Special Rapporteur notes the concern of the Human Rights Committee "that there exist instances of ill-treatment of persons by the police, including foreigners and particularly members of the ethnic minorities and asylum seekers" (A/52/40, para. 181). [back to the contents]