Concluding observations of the Committee against Torture
53. Argentina ratified the Convention without reservation on 24 September 1986 and, on the same date, made the declarations provided for in articles 21 and 22.
54. Like its two predecessors, the third report was submitted within the time limits provided for in article 19 of the Convention and was drafted in accordance with the Committee’s general guidelines regarding the form and content of periodic reports. The information it contains was supplemented and updated orally by the representative of the State party at the beginning of the Committee’s consideration of the report.
2. Positive aspects
55. The text of article 75, paragraph 22, of the Constitution of Argentina, added as part of the 1994 constitutional reform, bestows constitutional rank on the various international human rights treaties and conventions, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and also provides that they should be interpreted as complementary to the rights and guarantees recognized in the first part of the Constitution.
56. Another welcome development is Argentina’s ratification of the Inter-American Convention on the Forced Disappearance of Persons and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women. Those two international instruments contain provisions and lay down obligations whose observance will contribute to the prevention and punishment of torture and the compensation of victims.
57. The bilateral treaties on extradition and judicial assistance recently concluded by the State party contain provisions consistent with article 8 of the Convention.
58. The new Code of Criminal Procedure, which entered into force during the period covered by the report, contains provisions whose implementation should help to prevent the practice of torture. Especially important for the achievement of that goal are the provisions prohibiting the police from taking a statement from a person who has been charged; strictly limiting cases in which the police may detain persons without a court order and obliging them to bring the detainee before the competent judicial authority immediately or within six hours; limiting the length of incommunicado detention; and stipulating that the fact that an individual is being held incommunicado may under no circumstances prevent him from communicating with his defence counsel before making any statement or before any proceeding requiring his personal participation.
59. The creation of the Office of Government Procurator for the Prison System as a mechanism to monitor respect for the human rights of persons being held in prisons administered by the federal prison service, with the power to receive and investigate complaints and claims, to make recommendations to the competent authorities and to initiate criminal complaints, introduces an external supervisory procedure into an environment which, as the facts have shown, lends itself particularly to abuse, victimization and torture of persons in a vulnerable and unprotected situation.
3. Factors and difficulties impeding the application of the provisions of the Convention
60. The severe penalties laid down in article 144 ter of the Penal Code for acts of torture, particularly torture resulting in the death of the victim, although formally satisfying the requirements of article 4 of the Convention, are weakened in their practical application by the courts, which, as the Committee has noted in its consideration of a large number of cases, often prefer to try the offenders on less serious charges attracting lighter penalties, thus reducing the deterrent effect. The Committee notes that, while there have been many cases of death resulting from torture since the entry into force of the reform of the Penal Code, which introduced this penal provision, in only six cases have the culprits been sentenced to life imprisonment, which the law prescribes as the only penalty.
61. The protracted nature of judicial inquiries into complaints of torture nullifies the exemplary and deterrent effect which prosecution of the perpetrators of such crimes should have. The report refers to cases of torture resulting in death, or of torture aggravated by the clandestine disposal of the victims’ remains, where investigations have still not been completed, six or seven years after the events. Such slow procedures intensify the suffering of relatives, inducing them to give up their legitimate demands for the punishment of the guilty parties and delaying the moral and material redress to which they are entitled.
4. Subjects of concern
62. The Committee notes a discrepancy between the body of legislation adopted by the State for the prevention and punishment of the practice of torture, which contains provisions that qualitatively and quantitatively meet the requirements of the Convention, and the actual situation as revealed by the information which continues to be received on instances of torture and ill-treatment by police and prison staff both in the provinces and in the federal capital; this seems to indicate a failure to take effective action to eliminate these reprehensible practices.
63. The information received by the Committee on a number of cases of torture is indicative not only of a lack of effective and prompt police cooperation in judicial inquiries into complaints of torture and ill-treatment, but also of impediments to those inquiries denoting a relatively systematic modus operandi, rather than occasional failure to cooperate faithfully with the inquiries.
64. The Committee is also concerned about information brought to its attention showing an increase in the number and gravity of instances of police brutality, many of which result in the death of or serious injury to the victim and which, while not constituting torture as defined in article 1 of the Convention, represent cruel, inhuman and degrading treatment which the State party is obligated to punish, under article 16 of the Convention.
65. The Committee is also concerned about the fact that, despite the mandatory limitations on the situations in which the police can make arrests without a court order, the provisions for the protection of the safety of citizens are infringed by the application of lesser rules or provisions such as police regulations concerning misdemeanours and arrests for identity checks. According to the information provided to the Committee, the arrests made under such provisions represent a large proportion of the cases of police detention and only a minimal proportion of the arrests were authorized by court order.
66. The Committee recalls that, during its consideration of the preceding report, it had informed the representatives of the State party that it would like future information on compliance with the obligations arising from the Convention to be representative of the situation throughout the country. At that time, the State party pointed out that a register of cases of illegal detention and ill-treatment had been established in the Office of the Attorney-General to be used, according to the delegation, to record information from all courts throughout the country and provide data enabling action for the prevention and punishment of such illegal acts to be made more effective, thus bringing the general situation under tighter control. The Committee has recently learned that the register has been done away with and notes that the report suffers from the shortcoming already observed, namely, that it does not adequately reflect the situation throughout the country. The Committee calls upon the authorities of the State party to take all necessary measures to remedy that deficiency.
67. Also during its consideration of the previous report, the Committee was informed of a decision by the Attorney General in October 1991 instructing prosecutors in appeal courts to urge prosecutors in criminal courts of first instance to comply faithfully with their obligations, with particular emphasis on the exercise of their functions in order to exhaust all avenues of inquiry and all means of obtaining evidence during the investigation of the unlawful acts characterized in articles 144, 144 bis and 144 ter of the Penal Code. The Committee notes that, seven years after that decision was taken, investigations into illegal acts proceed at the same slow pace and with the same inefficiency that prompted the decision in the first place. It calls upon the competent authorities of the State party to monitor closely the way in which State law enforcement bodies and officials comply with their obligations, particularly regarding the offences characterized in the above-mentioned provisions of the Penal Code.
68. The Committee calls upon the competent authorities of the State party to revise criminal procedure legislation by setting a reasonable time limit for preliminary investigations since, although article 207 of the Code of Criminal Procedure sets a time limit of four months, the unlimited extension provided for in the last paragraph of that article as a special measure appears to be the general rule. In the view of the Committee, the undue prolongation of this pre-trial stage represents a form of cruel treatment of the individual concerned, even if he is not deprived of his freedom. The law should also specify a reasonable time limit for pre-trial detention and for the completion of criminal proceedings.
69. The Committee requests the State party to provide it with early replies to those questions raised during the consideration of the report to which no answers or only partial or inadequate answers were given. It also calls upon the State party to provide it with information on the performance of the obligations arising from the Convention which are representative of the situation throughout the country, as soon as that information becomes available and without waiting for the submission of the next periodic report.