Report of the Committee against Torture : . 09/16/1998.
A/53/44. (Sessional/Annual Report of Committee)

Convention Abbreviation: CAT
Official Records
Fifty-third session
Supplement No. 44 (A/53/44)



Report of the Committee against Torture General Assembly


[Original: English/French/Russian/Spanish]
[16 September 1998]



Contents
ChapterParagraphs
I. Organizational and other matters1–21
A. States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment1–2
B. Opening and duration of the sessions of the Committee against Torture3–4
C. Membership and attendance5–8
D. Solemn declaration by the newly elected members of the Committee9–10
E. Election of officers11
F. Agendas12–13
G.Question of a draft optional protocol to the Convention14–15
H.Cooperation between the Committee, the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture, the Special Rapporteur of the Commission on Human Rights on questions relating to torture and the United Nations High Commissioner for Human Rights16–18
I. Request for an extension of the sessions of the Committee 19–21
II. Effective implementation of international instruments on human rights, including reporting obligations under those instruments22–27
III. Submission of reports by States parties under article 19 of the Convention28–35
Action taken by the Committee to ensure the submission of reports28–35
IV.Consideration of reports submitted by States parties under article 19 of the Convention36–257
A. Cyprus42–51
B. Argentina52–69
C. Portugal70–79
D. Switzerland80–100
E. Cuba101–118
F. Spain119–136
G. France137–148
H. Norway149–156
I. Guatemala157–166
J. New Zealand167–178
K. Germany179–196
L. Peru197–205
M. Panama206–219
N. Kuwait220–231
O. Israel232–242
P. Sri Lanka243–257
V. General comment of the Committee258
VI. Activities of the Committee under article 20 of the Convention259–264
VII.Consideration of communications under article 22 of the Convention265–286
VIII.Amendments to the rules of procedure of the Committee287
IX.Adoption of the annual report of the Committee288–290
Annexes
I. States that have signed, ratified or acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as at 22 May 1998
II. States parties that have declared, at the time of ratification or accession, that they do not recognize the competence of the Committee provided for by article 20 of the Convention, as at 22 May 1998
III. States parties that have made the declarations provided for in articles 21 and 22 of the Convention, as at 22 May 1998
IV. Membership of the Committee against Torture in 1998
V. Joint Declaration for the United Nations Day in Support of Victims of Torture
VI.Guidelines regarding the form and content of periodic reports to be submitted by States parties under article 19, paragraph 1 of the Convention
VII. Status of submission of reports by States parties under article 19 of the Convention, as at 22 May 1998 (offset pages)
VIII. Country rapporteurs and alternate rapporteurs for the reports of States parties considered by the Committee at its nineteenth and twentieth sessions
(offset pages)
IX. General comment on the implementation of article 3 of the Convention in the context of article 22
X. Views and decisions of the Committee under article 22 of the Convention
A. Views
1.Communication No. 28/1995: E. A. v. Switzerland
2. Communication No. 57/1996: P. Q. L. v. Canada
3. Communication No. 59/1996: Encarnación Blanco Abad v. Spain
4. Communication No. 61/1996: X., Y. and Z. v. Sweden
5. Communication No. 65/1997: I. A. O. v. Sweden
6. Communication No. 83/1997: G. R. B. v. Sweden
7. Communication No. 89/1997: Ali Falakaflaki v. Sweden
8. Communication No. 90/1997: A. I. N. v. Switzerland
9. Communication No. 94/1997: K. N. v. Switzerland
B. Decisions
1. Communication No. 42/1996: R. K. v. Canada
2. Communication No. 45/1996: D. v. France
3. Communication No. 47/1996: V. V. v. Canada
4. Communication No. 48/1996: H. W. A. v. Switzerland
5. Communication No. 52/1996: R. v. France
6. Communication No. 58/1996: J. M. U. M. v. Sweden
7. Communication No. 64/1997: L. M. V. R. G. and M. A. B. C. v. Sweden
XI. Amended rules of procedure
XII. List of documents for general distribution issued for the Committee during the reporting period

Chapter I

A. States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment


1. As at 22 May 1998, the closing date of the twentieth session of the Committee against Torture, there were 105 States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention was adopted by the General Assembly in resolution 39/46 of 10 December 1984 and opened for signature and ratification in New York on 4 February 1985. It entered into force on 26 June 1987 in accordance with the provisions of its article 27. The States that have signed, ratified or acceded to the Convention is contained in annex I to the present report. The States parties that have declared that they do not recognize the competence of the Committee provided for by article 20 of the Convention are listed in annex II. The States parties have made the declarations provided for in articles 21 and 22 of the Convention are listed in annex III.

2. The declarations, reservations or objections made by States parties with respect to the Convention are reproduced in document CAT/C/2/Rev.5.



B. Opening and duration of the sessions of the Committee against Torture


3. The Committee against Torture held two sessions since the adoption of its report for 1997. The nineteenth and twentieth sessions of the Committee were held at the United Nations Office at Geneva from 10 to 21 November 1996 and from 4 to 22 May 1998.

4. At its nineteenth session the Committee held 19 meetings (299th to 317th meeting) and at its twentieth session it held 27 meetings (318th to 344th meeting). An account of the deliberations of the Committee at those sessions is contained in the relevant summary records (CAT/C/SR.299-344).



C. Membership and attendance


5. In accordance with article 17 of the Convention, the Sixth Meeting of States parties to the Convention was convened by the Secretary-General at the United Nations Office at Geneva, on 26 November 1997. The following five members of the Committee were elected for a term of four years beginning on 1 January 1998: Mr. Sayed Kassem El Masry, Mr. António Silva Henriques Gaspar, Mr. Bent Sørensen, Mr. Alexander M. Yakovlev and Mr. Yu Mengjia.

6. In accordance with article 17, paragraph 6, of the Convention and rule 13 of the rules of procedure of the Committee, Mr. Georghios Pikis, by a letter dated 16 March 1998, informed the Secretary-General of his decision to cease his functions as a member of the Committee. By a note dated 19 March 1998, the Government of Cyprus informed the Secretary-General of its decision to appoint, subject to the tacit approval of half or more of the States parties, Mr. Andreas Mavrommatis to serve for the remainder of Mr. Pikis’s term on the Committee, which will expire on 31 December 1999.

7. Since only one of the States parties to the Convention responded negatively within the six-week period after having been informed by the Secretary-General of the proposed appointment, the Secretary-General considered that the States parties had approved the appointment of Mr. Mavrommatis as a member of the Committee, in accordance with the above-mentioned provisions. The list of the members of the Committee in 1998, with their terms of office, appears in annex IV to the present report.

8. All the members attended the nineteenth and the twentieth session of the Committee.



D. Solemn declaration by the newly elected members of the Committee


9. At the 318th meeting, on 4 May 1998, the five members of the Committee who had been elected at the Sixth Meeting of States parties to the Convention made the solemn declaration upon assuming their duties, in accordance with rule 14 of the rules of procedure.

10. At the 322nd meeting, on 6 May 1998, the newly appointed member, Mr. Mavrommatis, made the solemn declaration upon assuming his duties, in accordance with rule 14 of the rules of procedure.



E. Election of officers


11. At the 318th meeting, on 4 May 1998, the Committee elected the following officers for a term of two years in accordance with article 18, paragraph 1, of the Convention and rules 15 and 16 of the rules of procedure:

Chairman: Mr. Peter Burns



F. Agendas


12. At its 299th meeting, on 10 November 1997, the Committee adopted the following items listed in the provisional agenda submitted by the Secretary-General in accordance with rule 6 of the rules of procedure (CAT/C/41), as the agenda of its nineteenth session:

1. Adoption of the agenda.

2. Organizational and other matters.

3. Submission of reports by States parties under article 19 of the Convention.

4. Consideration of reports submitted by States parties under article 19 of the Convention.

5. Consideration of information received under article 20 of the Convention.

6. Consideration of communications under article 22 of the Convention.

13. At its 318th meeting, on 4 May 1998, the Committee adopted the items listed in the provisional agenda submitted by the Secretary-General in accordance with rule 6 of the rules of procedure (CAT/C/45) as the agenda of its twentieth session and added a new item entitled “Amendments to the rules of procedure of the Committee”. The agenda therefore was composed of the following items:

1. Opening of the session by the representative of the Secretary-General.

2. Solemn declaration by the newly elected members of the Committee.

3. Election of the officers of the Committee.

4. Adoption of the agenda.

5. Organizational and other matters.

6. Submission of reports by States parties under article 19 of the Convention.

7. Consideration of reports submitted by States parties under article 19 of the Convention.

8. Consideration of information received under article 20 of the Convention.
9. Consideration of communications under article 22 of the Convention.

10. Amendments to the rules of procedure of the Committee.

11. Effective implementation of international instruments on human rights, including reporting obligations under international instruments on human rights.

12. Annual report of the Committee on its activities.



G. Question of a draft optional protocol to the Convention


Nineteenth session

14. At the 301st meeting, on 11 November 1997, Mr. Sørensen, who had been designated by the Committee as its observer in the inter-sessional open-ended working group of the Commission on Human Rights elaborating the protocol, informed the Committee on the progress made by the working group at its sixth session, held at the United Nations Office at Geneva from 13 to 24 October 1997.


Twentieth session

15. At its 328th meeting, on 11 May 1998, the Committee decided that Mr. Sørensen would continue to act as its observer in the working group of the Commission on Human Rights elaborating the draft optional protocol to the Convention.



H. Cooperation between the Committee, the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture, the Special Rapporteur of the Commission on Human Rights on questions relating to torture and the United Nations High Commissioner for Human Rights


16. A joint meeting was held, on 19 May 1998, between the Committee (340th meeting), the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture and the Special Rapporteur of the Commission on Human Rights on questions relating to torture. The United Nations High Commissioner for Human Rights participated in the meeting. The main topics discussed were: (a) the question of impunity of perpetrators of acts of torture; and (b) the training of law enforcement officials and medical personnel to respect the right of each individual not to be tortured and to detect signs of torture.

17. The Committee took note with satisfaction of General Assembly resolution 52/149 of 12 December 1997, by which the Assembly decided to proclaim 26 June United Nations International Day in Support of Victims of Torture, with a view to the total eradication of torture and the effective functioning of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

18. The Committee, the Board of Trustees, the Special Rapporteur and the High Commissioner for Human Rights decided to issue a joint declaration for the United Nations International Day in Support of Victims of Torture. The text of the declaration appears in annex V to the present report.



I. Request for an extension of the sessions of the Committee


19. At its 344th meeting, on 22 May 1998, the Committee recalled that it had requested an additional week of meetings to the General Assembly since 1995 and that it had included that request in its annual reports to the General Assembly at its fiftieth1 and fifty-second2 sessions as well as in a letter that its Chairman addressed to the Secretary-General on the Committee’s behalf on 8 August 1997.

20. The Committee took note with appreciation of the authorization granted by the Committee on Conferences to extend the twentieth session of the Committee by one additional week from 18 to 22 May 1998. However, it recalled that it had requested the Assembly to authorize the Secretary-General to extend its spring sessions by one additional week on a regular basis.

21. The Committee reiterated its concern over the lack of time available during its two annual regular meetings to cope with the great complexity of its work and the intensive pace of its operations resulting from the increase in the number of States parties to the Convention, the new cycle of periodic reports submitted by States parties, the increasing amount of information received under the inquiry procedure and the growing number of communications submitted under the individual communications procedure. The Committee therefore decided to request once again the General Assembly to authorize the Secretary-General to extend its spring sessions by one additional week on a regular basis,beginning with its twenty-second session in April/May 1999.



Chapter II

Nineteenth session


22. The Committee took note of the report of the eighth meeting of persons chairing the human rights treaty bodies (A/52/507, annex). The Chairman of the Committee had participated in that meeting.



Twentieth session


23. The Committee had before it General Assembly resolution 52/118 of 12 December 1997 and Commission on Human Rights resolution 1998/27 of 17 April 1998.

24. The Committee took note of the above-mentioned resolutions. At the 320th and 339th meetings, held on 5 and 18 May 1998, Mr. Sørensen, who had participated in the ninth meeting of persons chairing the human rights treaty bodies held at the United Nations Office at Geneva from 25 to 27 February 1998, provided information on the main issues debated during that meeting as well as on its conclusions and recommendations. An advance, unedited copy of the report of that meeting was made available to the Committee.

25. As recommended by the meeting of Chairpersons, the Committee at its 339th meeting, on 18 May 1998, revised its general guidelines regarding the form and contents of periodic reports to be submitted by States parties under article 19, paragraph 1, of the Convention (CAT/C/14) by adding a third part, according to which States parties should provide information on measures they take to comply with the recommendations addressed to them by the Committee at the end of its consideration of their initial and periodic reports. The text of the revised guidelines appears in annex VI to the present report.

26. At its 339th meeting, on 18 May 1998, the Committee also decided to designate thematic rapporteurs who, on the basis of reports of States parties and other information available to them, would bring to the attention of the Committee issues related to women’s rights, children’s rights and discriminatory practices relevant to or affecting the implementation of the Convention. Mr. Burns, Mr. Sørensen and Mr. Yakovlev were designated, respectively, as rapporteurs for each of the issues referred to above.

27. Furthermore, at its 342nd meeting, on 20 May 1998, the Committee discussed measures to improve the quality of its concluding observations. It acknowledged that it had experienced some difficulties in elaborating them immediately after the consideration of the report of the State party concerned. It decided that, starting from its next session, conclusions and recommendations at the end of the consideration of a State party report would normally be elaborated the day after that consideration and read out to the representatives of the reporting State two days after the consideration.



Chapter III

Action taken by the Committee to ensure the submission of reports


28. The Committee, at its 299th, 318th and 330th meetings, held on 10 November 1997 and 4 and 12 May 1998, considered the status of submission of reports under article 19 of the Convention. The Committee had before it the following documents:

(a) Notes by the Secretary-General concerning initial reports of States parties which were due from 1988 to 1998
(CAT/C/5, 7, 9, 12, 16/Rev.1, 21/Rev.1, 24, 28/Rev.1, 32/Rev.2, 37 and 42);

(b) Notes by the Secretary-General concerning second periodic reports which were due from 1992 to 1998 (CAT/C/17, 20/Rev.1, 25, 29, 33, 38 and 43);

(c) Notes by the Secretary-General concerning third periodic reports which were due from 1996 to 1998 (CAT/C/34, 39 and 44).

29. The Committee was informed that, in addition to the 16 reports that were scheduled for consideration by the Committee at its nineteenth and twentieth sessions (see paras. 38 and 39), the Secretary-General had received the initial reports of Iceland (CAT/C/37/Add.2) and Yugoslavia (CAT/C/16/Add.7), the second periodic reports of Croatia (CAT/C/33/Add.4) and Tunisia (CAT/C/33/Add.3) and the third periodic reports of Hungary (CAT/C/34/Add.10) and the United Kingdom of Great Britain and Northern Ireland (CAT/C/44/Add.1).

30. The Committee was also informed that the revised version of the initial report of Belize, which had been requested for 10 March 1994 by the Committee at its eleventh session, had not yet been received in spite of five reminders sent by the Secretary-General and a letter that the Chairman of the Committee addressed to the Minister for Foreign Affairs and Economic Development of Belize on 20 November 1995.

31. In addition, the Committee at its nineteenth and twentieth sessions, was informed about the reminders that had been sent by the Secretary-General to States parties whose reports were overdue. The situation with regard to overdue reports as at 22 May 1998 was as follows:



Initial reports

State partyDate on which the report was due
Number of reminders
Uganda
25 June 1988
15
Togo
17 December 1988
15
Guyana
17 June 1989
12
Brazil
27 October 1990
10
Guinea
8 November 1990
11
Somalia
22 February 1991
8
Venezuela
27 August 1992
7
Estonia
19 November 1992
7
Yemen
4 December 1992
7
Bosnia and Herzegovina
5 March 1993
6
Benin
10 April 1993
6
Latvia
13 May 1993
6
Seychelles
3 June 1993
6
Cape Verde
3 July 1993
5
Cambodia
13 November 1993
5
Burundi
19 March 1994
4
Slovakia
27 May 1994
4
Slovenia
14 August 1994
4
Antigua and Barbuda
17 August 1994
4
Costa Rica
10 December 1994
4
Ethiopia
12 April 1995
3
Albania
9 June 1995
3
United States of America
19 November 1995
2
Chad
9 July 1996
1
Uzbekistan
27 October 1996
1
Republic of Moldova
27 December 1996
1
Côte d’Ivoire
16 January 1997
1
Lithuania
1 March 1997
Democratic Republic of the Congo
16 April 1997
Malawi
10 July 1997
El Salvador
16 July 1997
Azerbaijan
14 September 1997
Honduras
3 January 1998
Kenya
22 March 1998


Second periodic reports

State partyDate on which the report was due
Number of reminders
Afghanistan
25 June 1992
8
Belize
25 June 1992
8
Bulgaria
25 June 1992
8
Cameroon
25 June 1992
8
Philippines
25 June 1992
8
Uganda
25 June 1992
7
Austria
27 August 1992
8
Luxembourg
28 October 1992
8
Togo
17 December 1992
7
Guyana
17 June 1993
6
Turkey
31 August 1993
6
Australia
6 September 1994
4
Brazil
27 October 1994
4
Guinea
8 November 1994
4
Somalia
22 February 1995
2
Malta
12 October 1995
2
Liechtenstein
1 December 1995
2
Romania
16 January 1996
1
Nepal
12 June 1996
1
Venezuela
27 August 1996
1
Yugoslavia
9 October 1996
1
Estonia
19 November 1996
1
Yemen
4 December 1996
1
Jordan
12 December 1996
1
Monaco
4 January 1997
1
Bosnia and Herzegovina
5 March 1997
Benin
10 April 1997
Latvia
13 May 1997
Seychelles
3 June 1997
Cape Verde
3 July 1997
Cambodia
13 November 1997
Czech Republic
31 December 1997
Mauritius
7 January 1998
Burundi
19 March 1998



Third periodic reports

State partyDate on which the report was dueNumber of reminders
Afghanistan
25 June 1996
1
Belarus
25 June 1996
1
Belize
25 June 1996
1
Bulgaria
25 June 1996
1
Cameroon
25 June 1996
1
Egypt
25 June 1996
1
France
25 June 1996
1
Hungary
25 June 1996
1
Philippines
25 June 1996
1
Russian Federation
25 June 1996
1
Senegal
25 June 1996
1
Uganda
25 June 1996
1
Uruguay
25 June 1996
1
Canada
23 July 1996
1
Austria
27 August 1996
1
Luxembourg
28 October 1996
1
Togo
17 December 1996
1
Colombia
6 January 1997
1
Ecuador
28 April 1997
Guyana
17 June 1997
Peru
5 August 1997
Turkey
31 August 1997
Tunisia
22 October 1997
Chile
29 October 1997
China
2 November 1997
Greece
4 November 1997
United Kingdom
6 January 1998
Netherlands
19 January 1998
Italy
10 February 1998
Portugal
10 March 1998



32. The Committee expressed concern at the number of States parties that did not comply with their reporting obligations. With regard, in particular, to States parties whose reports were more than five years overdue, the Committee deplored the fact that, in spite of several reminders sent by the Secretary-General and letters or other messages of its Chairman to their respective Ministers for Foreign Affairs, those States parties continued not to comply with the obligations they had freely assumed under the Convention. The Committee noted that the following States parties had failed to comply for more than five years with their obligation to submit their initial reports: Benin, Bosnia and Herzegovina, Brazil, Estonia, Guinea, Guyana, Latvia, Somalia, Togo, Uganda, Venezuela and Yemen. In addition, second periodic reports from the following States parties were more than five years overdue: Afghanistan, Austria, Belize, Bulgaria, Cameroon, Luxembourg, Philippines, Togo and Uganda. The Committee stressed that it had the duty to monitor the Convention and that the non-compliance of a State party with its reporting obligations constituted an infringement of the provisions of the convention. In this connection, the Committee decided to continue its practice of making available lists of States parties whose reports are overdue during the press conferences that the Committee usually hold at the end of each session.

33. The Committee again requested the Secretary-General to continue sending reminders automatically to those States parties whose initial reports were more than 12 months overdue and subsequent reminders every six months.

34. The Committee also envisaged the possibility that information that it may receive from United Nations, non-governmental organizations and other sources on the implementation of the Convention in States parties whose reports were long overdue be sent to those non-reporting States requesting them to give their views on that information.

35. The status of submission of reports by States parties under article 19 of the Convention as at 22 May 1998, the closing date of the twentieth session of the Committee, appears in annex VII to the present report.



Chapter IV

36. At its nineteenth and twentieth sessions, the Committee considered reports submitted by 16 States parties, under article 19, paragraph 1, of the Convention. At its nineteenth session, the Committee devoted 13 of the 19 meetings held to the consideration of reports (see CAT/C/SR.301-312 and 314). The following reports, listed in the order in which they had been received by the Secretary-General, were before the Committee at its nineteenth session:


Cyprus (second periodic report)CAT/C/33/Add.1
Argentina (third periodic report)CAT/C/34/Add.5
Portugal (second periodic report)CAT/C/25/Add.10
Switzerland (third periodic report)CAT/C/34/Add.6
Cuba (initial report)CAT/C/32/Add.2
Spain (third periodic report)CAT/C/34/Add.7

37. At its twentieth session, the Committee devoted 20 of the 27 meetings held to the consideration of reports submitted by States parties (see CAT/C/SR.320-339). The following reports, listed in the order in which they had been received by the Secretary-General, were before the Committee at its twentieth session:

France (second periodic report)CAT/C/17/Add.18
Norway (third periodic report)CAT/C/34/Add.8
Guatemala (second periodic report)CAT/C/29/Add .3
New Zealand (second periodic report)CAT/C/29/ Add.4
Germany (second periodic report)CAT/C/29/Add .2
Peru (second periodic report)CAT/C/20/Add.6
Panama (third periodic report)CAT/C/34/Add.9
Kuwait (initial report)CAT/C/37/Add.1
Sri Lanka (initial report)CAT/C/28/Add.3
Israel (second periodic report)CAT/C/33/Add.3


38. In accordance with rule 66 of the rules of procedure of the Committee, representatives of all the reporting States were invited to attend the meetings of the Committee when their reports were examined. All of the States parties whose reports were considered by the Committee sent representatives to participate in the examination of their respective reports.

39. In accordance with the decision taken by the Committee at its fourth session,3 country rapporteurs and alternate rapporteurs were designated by the Chairman, in consultation with the members of the Committee and the secretariat, for each of the reports submitted by States parties and considered by the Committee at its seventeenth and eighteenth sessions. The list of those reports and the names of the country rapporteurs and their alternates for each of them appear in annex VIII to the present report.

40. In connection with its consideration of reports, the Committee also had before it the following documents:

(a) Status of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and reservations and declarations under the Convention (CAT/C/2/Rev.5);

(b) General guidelines regarding the form and content of initial reports to be submitted by States parties under article 19 of the Convention (CAT/C/4/Rev.2);

(c) General guidelines regarding the form and content of periodic reports to be submitted by States parties under article 19 of the Convention (CAT/C/14).

41. In accordance with the decision taken by the Committee at its eleventh session,4 the following sections, arranged on a country-by-country basis according to the sequence followed by the Committee in its consideration of the reports, contain references to the reports submitted by the States parties and to the summary records of the meetings of the Committee at which the reports were considered, as well as the text of conclusions and recommendations adopted by the Committee with respect to the States parties’ reports considered at its nineteenth and twentieth sessions.



A. Cyprus


42. The Committee considered the second periodic report of Cyprus (CAT/C/33/Add.1) at its 301st and 302nd meetings, on 11 November 1997 (CAT/C/SR.301 and 302), and adopted the following conclusions and recommendations.


1. Introduction

43. The second periodic report of Cyprus was received in timely fashion and complied with the general guidelines for periodic reports (CAT/C/14) adopted by the Committee.

44. The oral presentation by the delegation complemented the written report, informing the Committee of the most recent developments in Cyprus. The ensuing discussion was open and fruitful.


2. Positive aspects

45. The Committee endorses the conclusions it found in this respect at the time of its consideration of the initial report and welcomes the legislative initiatives concerning mental health, the proposed creation of a National Institution for the Promotion and Protection of Human Rights and reform of the law of evidence.

46. Moreover, the Committee acknowledges the activities of the Ombudsman and the response of the Council of Ministers to established cases of police violence.

47. The Committee especially welcomes the way in which the Convention has been incorporated into the domestic law of Cyprus, in particular the Convention definition of “torture” itself.


3. Factors and difficulties impeding the application of the provisions of the Convention

48. As stated in the Committee’s views on the initial report, there appears to be no structural impediment to the implementation of the Convention in Cyprus.


4. Subjects of concern

49. A few cases of casual violence by police officers continue to be reported, emphasizing the continuous need for programmes of education and vigorous legal response to such instances.

50. The fact that a victim is unable or unwilling to give evidence should not be a reason for non-prosecution where the case can otherwise be made.


5. Recommendations

51. The legal and administrative constructs in Cyprus are excellent; in implementing them the Committee advocates a strong programme of re-education directed to field law enforcement personnel that emphasizes the policy of the Government to honour its commitment to human rights.



B. Argentina


52. The Committee considered the third periodic report of Argentina (CAT/C/34/Add.5) at its 303rd, 304th and 306th meetings, on 12 and 13 November 1997 (CAT/C/SR.303, 304 and 306), and adopted the following conclusions and recommendations.


1. Introduction

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.


5. Recommendations

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.



C. Portugal


70. The Committee considered the second periodic report of Portugal (CAT/C/25/Add.10) at its 305th and 306th meetings, on 13 November 1997 (CAT/C/SR.305 and 306), and adopted the following conclusions and recommendations:


1. Introduction

71. The Committee notes with satisfaction that the report of Portugal conforms to the general guidelines regarding the presentation of periodic reports. It expresses its great satisfaction at the full, detailed and frank nature of the report.

72. The Committee listened with the greatest interest to the oral statement and explanations and clarifications from the delegation of Portugal, which displayed a real willingness to enter into dialogue and great professionalism.


2. Positive aspects

73. The Committee expresses its gratification at the State party’s impressive efforts in the legislative and institutional spheres to bring its legislation into line with the obligations resulting from its accession to the Convention.

74. The Committee particularly appreciates the following innovations:

(a) The adoption of a new Penal Code containing a definition of torture;

(b) The opening of certain courts on Saturdays, Sundays and public holidays so that arrested persons can be brought before them without delay;

(c) The adoption of the Physicians’ Code of Ethics;

(d) The establishment of criminal sanctions for officials who fail to report acts of torture within three days of learning of them;

(e) The adoption of the rule aut dedere, aut judicare;

(f) The adoption and implementation of an extensive programme for education in the sphere of human rights in general and in that of the prevention of torture in particular;

(g) The establishment of the office of Provedor de Justiça and of the Inspeccão-Geral da Administracão Interna and, in particular, the powers vested in those institutions;

(h) The recognition of the right of victims of torture and similar acts to compensation, as well as the general system for the compensation of victims of offences;

(i) The provisions of article 32, paragraph 6, of the Constitution invalidating evidence obtained by torture;

(j) The revision of the Constitution, especially the ending of the status of military courts as special courts.


3. Factors and difficulties impeding the application of the provisions of the Convention

75. The Committee observes that there are no particular factors or difficulties impeding the application of the provisions of the Convention in Portugal.


4. Subjects of concern

76. The Committee is seriously concerned about the recent cases of ill-treatment, torture and, in some instances, suspicious death attributed to members of the forces of law and order, especially the police, as well as the apparent lack of any appropriate response by the competent authorities.

77. The rules on extradition and deportation are not conducive to full observance by the State party of the Convention, especially article 3 thereof.


5. Recommendations

78. The State party should revise its practice regarding the protection of human rights so as to make the rights and freedoms recognized in Portuguese law more effective, and to narrow or even eliminate the gap between the law and its implementation. To that end it should devote the greatest possible attention to the handling of files concerning accusations of violence made against public officials, with a view to initiating investigations and, in proven cases, applying appropriate penalties.

79. Even though the principle of due process applies in Portugal, the legislation should be clarified in order to remove any doubts concerning the obligation on the part of the competent authorities to initiate investigations of their own accord and systematically in all cases where there are reasonable grounds for believing that an act of torture has been committed on any territory within their jurisdiction.



D. Switzerland


80. The Committee considered the third periodic report of Switzerland (CAT/C/34/Add.6) at its 307th and 308th meetings, on 14 November 1997 (CAT/C/SR.307 and 308), and adopted the following conclusions and recommendations.


1. Introduction

81. The Committee against Torture expresses appreciation to the State party for its third periodic report, which was submitted within the time limit, and is drafted in accordance with the Committee’s guidelines regarding periodic reports.

82. The Committee is satisfied with the clarifications and the clear and detailed replies provided by the delegation which made it possible to conduct a fruitful and constructive dialogue.


2. Positive aspects

83. The Committee notes with satisfaction that no governmental or non-governmental body has confirmed the existence of cases of torture in the terms of article 1 of the Convention.

84. The Committee notes with satisfaction that a provision has entered into force prohibiting racial discrimination.

85. The Committee welcomes the fact that, on 21 December 1994, the Swiss Parliament adopted a provision concerning cooperation with international tribunals under which Switzerland undertook to respond to requests for the arrest and transfer of persons accused of serious violations of humanitarian law in the former Yugoslavia and in Rwanda.

86. The Committee welcomes the revision of a number of provisions of the codes of criminal procedure in various cantons, to strengthen the rights of the defence and the rights of persons in pre-trial detention.

87. The Committee also welcomes the fact that a 24-hour medical service attached to the police and run by the Geneva University Institute of Forensic Medicine has been in operation since 15 October 1992.

88. Lastly, the Committee welcomes the financial support that Switzerland has been providing for a number of years to the United Nations Voluntary Fund for Victims of Torture and to non-governmental organizations (NGOs) operating in various countries throughout the world.


3. Factors and difficulties impeding the application of the provisions of the Convention

89. The Committee observes that the lack of an appropriate and specific definition of torture makes the full application of the Convention difficult.


4. Subjects of concern

90. The Committee is concerned about frequent allegations of ill-treatment in the course of arrests or in police custody, particularly in respect of foreign nationals. Independent machinery for recording and following up complaints of ill-treatment does not seem to exist in all the cantons. The Committee is seriously concerned at the lack
of an appropriate response on the part of the competent authorities.

91. The Committee regrets the non-existence in some cantons of legal guarantees, such as the possibility for a detainee to contact a family member or lawyer immediately after his or her arrest and to be examined by an independent doctor at the commencement of police custody or when he or she is brought before an examining magistrate.

92. The Committee is concerned about the non-existence of a suspect’s right to remain silent.

93. The Committee is concerned about allegations made by non-governmental organizations that, during the expulsion of certain aliens, doctors have engaged in medical treatment of those persons without their consent.


5. Recommendations

94. The Committee recommends that machinery should be set up in all cantons to receive complaints against members of the police regarding ill-treatment during arrest, questioning and police custody.

95. The Committee recommends harmonization of the various cantonal laws governing criminal procedure, especially as regards fundamental guarantees during police custody or when persons are held incommunicado.

96. The Committee emphasizes the need to allow suspects to contact a lawyer or family member or friend and to be examined by an independent doctor immediately upon their arrest, or after each session of questioning, and before they are brought before an examining magistrate or released.

97. The Committee recommends that an explicit definition of torture should be included in the Criminal Code.

98. The Committee recommends to the State party that it should devote the greatest possible attention to the handling of files concerning accusations of violence made against public officials with a view to the opening of investigations and, in proven cases, the application of appropriate penalties.

99. The Committee recommends the adoption of legislative measures granting suspects the right to remain silent.

100. Lastly, the Committee recommends that the authorities should investigate the allegations of medical treatment carried out on persons who are being expelled, without their consent.



E. Cuba


101. The Committee considered the initial report of Cuba (CAT/C/32/Add.2) at its 309th, 310th, 312th and 314th meetings, on 17, 18 and 19 November 1997 (CAT/C/SR.309, 310/Add.1, 312 and 314), and adopted the following conclusions and recommendations.


1. Introduction

102. The report was submitted on 15 November 1996, nearly within the time limit envisaged by the Convention on the submission of the initial report by the parties following their accession to the Convention.

103. The Committee expresses its appreciation to the representatives of Cuba on the presentation of their report and the efforts made to answer most of the many questions raised by the rapporteur, the co-rapporteur and the members of the Committee.


2. Positive aspects

104. The Cuban Constitution commits the State to upholding the dignity of the individual and safeguards the inviolability of the person and his/her home.

105. Cuba acknowledges the universal jurisdiction for the trial of crimes against humanity, to which category, many would argue, torture belongs.

106. The provision of the Cuban labour code that persons acquitted of criminal offences are entitled to compensation for any period in which they were deprived of their liberty as a result of pre-trial detention is a salutary one.

107. The constitutional prohibition of the use of violence or pressure “against people to force them to testify” associated with the declaration that statements obtained in breach of this principle are null and void and the holding of those responsible for such violations as liable to punishment is a most welcome one.

108. The Committee welcomes the criminalization of every form of complicity in crimes against humanity, human dignity and offences laid down in international treaties.


3. Factors and difficulties impeding the application of the Convention

109. The deteriorating economic conditions attributable, inter alia, to the embargo in force make it difficult for the State party to provide appropriate nutrition and essential medical supplies to prisoners.


4. Subjects of concern

110. The failure to establish a specific crime of torture as required by the Convention leaves a gap in the application of its provisions that is not filled by any of the existing offences directed against violations of the bodily integrity or the dignity of the individual. Moreover, the absence of the specific offence of torture renders difficult the monitoring of the application of the Convention.

111. The report of the Special Rapporteur appointed by the Commission on Human Rights on the situation of human rights in Cuba is a matter of great concern to the Committee. Reports of NGOs raise similar concerns, a fact that intensifies our concern. The information disclosed in the above reports suggests that there occur serious violations of the Convention with regard to arrest, detention, prosecution, access to counsel and imprisonment of individuals, especially persons referred to in the reports as dissidents, and that serious violations occur in prisons affecting the safety, dignity and health of prisoners.

112. The failure of the Cuban authorities to make a response to allegations made in the above reports is an additional subject of concern.

113. Certain nebulous offences, namely “disrespect”, “resisting authority” and “enemy propaganda”, arouse the concern of the Committee because of the uncertainty of their constituent elements and the room they provide for misuse and abuse.

114. Certain types of punishment primarily directed at the limitation of the liberty of citizens, i.e. internal exile and confinement at home, are matters of great concern to the Committee.

115. The absence of specific training in the norms of the Convention for law enforcement personnel, of civil and military, medical personnel and personnel generally involved in the arrest, custody, interrogation, detention and imprisonment of individuals is a matter of concern, more serious still in view of the absence of the stipulation of the specific crime of torture.

116. The absence of adequate information about the investigation of complaints of torture and other inhuman and degrading treatment and the outcome of any such investigations is cause for concern. In the absence of such information, the Committee cannot make a proper assessment as to whether there is compliance on the part of the State party with the provisions of article 12 of the Convention. Our concerns in these areas are enhanced because of the many complaints made that certain categories of persons referred to in the reports as dissidents
are targeted and their fundamental rights violated without having satisfactory means of redress.

117. The Committee is concerned about the absence of satisfactory information as to the rights of victims of torture and other inhuman and degrading treatment to seek redress including satisfactory compensation.


5. Recommendations

118. The Committee recommends that the following actions be taken by the State Party:

(a) The criminalization of torture, as defined in the Convention, by the creation of a specific crime or crimes giving effect to every aspect of it;

(b) The establishment of a transparent permanent procedure for receiving complaints about torture and other inhuman and degrading treatment or punishment, the prompt examination of such complaints and bringing to justice those responsible;

(c) The incorporation into the law of the right of the suspect or detainee to silence at all stages of investigation;

(d) The establishment of a system of recurrent review of prisons as required by article 11 of the Convention with a view to improving conditions in prisons;

(e) Revision of the rules to the organization of the judicial system in accordance with international instruments on the subject, namely the United Nations guidelines on the independence of the judiciary;

(f) The setting up of a comprehensive programme, which should be kept under constant review, for educating and training law enforcement personnel, medical personnel, public officials and all those involved in the interrogation, custody or treatment of any person arrested, detained or imprisoned;

(g) The establishment of a central register containing adequate statistical data about complaints of torture and other inhuman or degrading treatment or punishment, investigation of such complaints, the time within which the investigation is conducted and any prosecution mounted thereafter and its outcome;

(h) The establishment of a compensation fund for the compensation of the victims of torture and other prohibited treatment;

(i) Allowing into the country human rights NGOs and cooperating with them in the identification of cases of torture and other inhuman and degrading treatment;

(j) Urgently addressing complaints about torture and other cruel, inhuman or degrading treatment or punishment raised in NGO reports and the reports of the Special Rapporteurs; taking such action as the obligations of the State party under the Convention warrant; and reporting to the Committee the outcome of such investigations and any action taken in the next periodic report.



F. Spain


119. The Committee considered the third periodic report of Spain (CAT/C/34/Add.7) at its 311th, 312th and 313th meetings, on 18 and 19 November 1997 (CAT/C/SR.311, 312 and 313), and adopted the following conclusions and recommendations.


1. Introduction

120. Spain ratified the Convention against Torture on 10 October 1987 and made the declarations under articles 21 and 22 of the Convention. Spain has also been a party to the European Convention for the Prevention of Torture since 1989.

121. The third periodic report was submitted within the time limit and was prepared in accordance with the Committee’s guidelines regarding the form and content of periodic reports.

122. The Committee welcomes the presence of a large and qualified delegation to present the report as an indication of the Spanish Government’s desire to cooperate with the Committee in the discharge of the functions entrusted to it under the Convention and thanks the State party for its explicit recognition of the work of the Committee.

123. The Committee welcomes with satisfaction the very detailed report, which was amplified and updated orally, and the additional information provided by the delegation in replying to questions and comments in the course of a frank and constructive dialogue.


2. Positive aspects

124. Spain has incorporated the offence of torture and other cruel, inhuman, or degrading treatment or punishment into its domestic legislation in terms which not only conform to the definition in article 1 of the Convention, but also expand on it in certain important respects, thus providing its citizens with greater protection against such unlawful acts; the penalties laid down in the new legislation
are commensurate with the gravity of the offences, as prescribed in article 4 of the Convention.

125. The Committee stresses the special importance of the final abolition of the death penalty.

126. In addition to the special legal provisions, the provisions of the Penal Code strengthen protection against torture, especially the provisions of the chapter on acts by State officials which infringe constitutional guarantees. The Committee is confident that the faithful and strict observance of these provisions will have the desired preventive and deterrent effects.


3. Factors and difficulties impeding the application of the Convention

127. According to information provided to the Committee, judicial proceedings instituted following complaints of acts of torture, at both the pre-trial and trial stages, are often of a duration which is completely incompatible with the promptness required by article 13 of the Convention. The Committee has heard of cases in which sentences were pronounced up to 15 years after the events in question.

128. The sentences imposed on public officials accused of acts of torture, which frequently involve token penalties not even entailing a period of imprisonment, seem to indicate a degree of indulgence which deprives the criminal penalty of the deterrent and exemplary effect that it should have and is also an obstacle to the genuine elimination of the practice of torture. The Committee is confident that the severity of the penalties, which has been increased in the new legislation, will help to remedy this shortcoming.


4. Subjects of concern

129. The Committee continued to receive frequent complaints of acts of torture and ill-treatment during the period covered by the report.

130. The Committee also received information of many cases of ill-treatment which appear to constitute manifestations of racial discrimination.

131. Notwithstanding the legal guarantees as to the conditions under which it can be imposed, there are cases of prolonged detention incommunicado, when the detainee cannot receive the assistance of a lawyer of his choice, which seems to facilitate the practice of torture. Most of these complaints concern torture inflicted during such periods.

132. The Committee is also concerned about reports that although, in accordance with article 15 of the Convention, judges do not accept as incriminating evidence statements
regarded as invalid because they have been obtained under duress or torture, they nevertheless accept those same statements as incriminating other co-defendants.


5. Recommendations

133. The competent authorities should take the necessary measures to eliminate problems related to the excessive length of investigations into complaints of torture and ill-treatment.

134. State officials or agents responsible for conducting criminal proceedings on behalf of the State and society should use all available procedural means for the effective and exemplary punishment of acts of torture, rather than leave that responsibility to be discharged solely through the actions of those who have suffered direct and personal injury.

135. Consideration should be given to eliminating instances in which extended detention incommunicado and restrictions of the rights of detainees to be assisted by a defence lawyer of their choice are authorized.

136. The Committee calls upon the authorities of the State party to institute procedures for the automatic investigation of any case of torture or ill-treatment brought to their attention by any means whatsoever, even when the victims do not lodge complaints through the prescribed legal channels.



G. France


137. The Committee considered the second periodic report of France (CAT/C/17/Add.18) at its 320th, 321st and 322nd meetings, on 6 May 1998 (CAT/C/SR.320, 321 and 322), and adopted the following conclusions and recommendations.


1. Introduction

138. The Committee is gratified to note that the second periodic report of France complies with the general guidelines for periodic reports (CAT/C/14), although it was submitted some six years late.

139. The Committee listened with great interest to the oral presentation which, like the report, revealed the efforts of the State party to be honest, specific and comprehensive, and to the explanations and clarifications furnished by the French delegation, which displayed a clear desire for constructive dialogue and a solid professionalism.

140. The Committee is particularly gratified at the fact that the composition and size of the delegation clearly demonstrated France’s interest in the work of the Committee.


2. Positive aspects

141. The Committee was pleased to note the following positive aspects:

(a) The manifest determination of the French Government to combat torture, shown in particular in certain provisions of the new Criminal Code, for example, articles 221-1, 222-1 and 432-4 to 432-6;

(b) The numerous projected improvements to legislation and current practice, such as the creation of a supreme ethics council; the drafting of a practical ethics handbook for use by the police forces; the guidelines on prison monitoring; the reactivation of the supreme prison administration council; the principle that a lawyer should be present from the outset of custody for most offences; and the curtailment of the duration of pre-trial detention;

(c) The announcement of a further contribution to the United Nations Voluntary Fund for Victims of Torture.


3. Factors and difficulties impeding the application of the provisions of the Convention

142. The Committee notes that there are no particular impediments to the implementation of the Convention in France.


4. Subjects of concern

143. The Committee is concerned about the following:

(a) The absence, in French positive law, of a definition of torture which conforms fully with article 1 of the Convention;

(b) The system of “appropriateness of prosecution”, leaving public prosecutors free to decide not to prosecute perpetrators of acts of torture, or even to order an inquiry, which is clearly in conflict with the provisions of article 12 of the Convention;

(c) That aspect of the procedure for taking evidence under which the courts are not explicitly prohibited from admitting evidence obtained under torture, which contravenes article 15 of the Convention;

(d) The practice whereby the police hand over individuals to their counterparts in another country, despite the fact that a French court has declared such practices to
be illegal; this is contrary to the duties of the State party under article 3 of the Convention;

(e) Sporadic allegations of violence committed by members of the police and gendarmerie at the time of arrest of suspects and during questioning.


5. Recommendations

144. The State party should consider incorporating into its criminal law a definition of torture which conforms with article 1 of the Convention.

145. The State party should pay greater attention to the provisions of article 3 of the Convention, which applies equally to expulsion, refoulement and extradition and, as demanded by a number of non-governmental organizations and as proposed by the National Advisory Committee on Human Rights, the possibility should exist of lodging a suspensive appeal against a refusal to allow entry into France and subsequent refoulement.

146. The State party should pay maximum attention to allegations of violence by members of the police forces, with a view to instigating impartial inquiries and, in proven cases, applying appropriate penalties.

147. In this connection, and in the interest of conforming with the letter and spirit of article 12 of the Convention, the State party should consider abrogating the current system of “appropriateness of prosecution” in order to remove all doubt regarding the obligation of the competent authorities to institute systematically and on their own initiative impartial inquiries in all cases where there are reasonable grounds for believing that an act of torture has been committed anywhere within the territory under their jurisdiction.

148. The State party is invited to submit its third periodic report as soon as possible in order to adhere to the schedule for the submission of reports laid down in the Convention.



H. Norway


149. The Committee considered the third periodic report of Norway (CAT/C/34/Add.8) at its 322nd and 323rd meetings, held on 6 May 1998 (CAT/C/SR.322 and 323), and adopted the following conclusions and recommendations.


1. Introduction

150. The third periodic report of Norway was submitted on 6 February 1997. It conformed fully with the
requirements laid down in the Committee’s reporting guidelines. It provided information, article by article, on new measures to implement the Convention taken since the submission of its last report and answered questions raised during the discussion of the second periodic report. The Committee also thanks the delegation for its oral information and its frank and precise replies to the questions raised by members of the Committee.

2. Positive aspects

151. Norway continues to do its utmost to secure respect for human rights, including the prohibition of torture, in law and in practice, inter alia, with the creation and constant development of special bodies such as Special Investigation Bodies.

152. Norway has made a generous donation to the United Nations Voluntary Fund for the Victims of Torture.


3. Subjects of concern

153. The Committee is concerned over the fact that Norway has not yet introduced the offence of torture into its penal system, including a definition of torture in conformity with article 1 of the Convention.

154. The Committee is concerned about the institution of solitary confinement, particularly as a preventive measure during pre-trial detention.


4. Recommendations

155. The Committee reiterates the recommendation it made during its consideration of the initial and second periodic report of Norway, that the State party should incorporate into its domestic law provisions on the crime of torture, in conformity with article 1 of the Convention.

156. Except in exceptional circumstances, inter alia, when the safety of persons or property is involved, the Committee recommends that the use of solitary confinement should be abolished, particularly during pre-trial detention, or at least that it should be strictly and specifically regulated by law and that judicial supervision should be strengthened.



I. Guatemala


157. The Committee considered the second periodic report of Guatemala (CAT/C/29/Add.3) at its 324th and 325th meetings, on 7 May 1998 (CAT/C/SR.324 and 325), and adopted the following conclusions and recommendations.


1. Introduction

158. Guatemala acceded to the Convention on 5 January 1990. It has not submitted the declarations provided for under articles 21 and 22 of the Convention.

159. Guatemala is also a State party to the Inter-American Convention to Prevent and Punish Torture.

160. The report was submitted on 17 February 1997 and covers the period between 31 July 1995, when the first report was submitted, and 30 August 1996. During the Committee’s consideration of the report, the Guatemalan delegation gave updated information in its oral presentation and submitted an addendum containing information covering the period between 1 January 1997 and 31 March 1998.

161. The Committee’s work was complicated by the fact that the report does not adhere to the general guidelines adopted by the Committee on the form and content of periodic reports, which stipulated that reports should follow the order of the articles of the Convention (arts. 1 to 16).


2. Positive aspects

162. The Committee is pleased to note the following positive aspects:

(a) The Agreement on a Firm and Lasting Peace, signed on 29 December 1996, which ended the prolonged armed conflict;

(b) The elimination of all State-promoted policies that violate human rights;

(c) The stated wish of the State authorities to promote a thorough reform of the administration of justice and of public security, with a view to rectifying the shortcomings of the Judiciary, the Public Prosecutor’s Office and the National Police;

(d) The demobilization of the Voluntary Civil Defence Committees, whose members were reported in the past to have committed the most serious violations of human rights;

(e) The restriction of military jurisdiction to essentially military crimes and misdemeanours and the consequent transfer to ordinary courts of all proceedings against members of the armed forces for ordinary crimes and similar acts;

(f) The demilitarization of the police forces and the start made on restructuring them into a single National Civil Police with the disbandment of the Mobile Military Police and the professionalization of the police function through the establishment of the Police Academy where anybody
wishing to join the force, obtain promotion or specialize must undergo training. The Committee notes with satisfaction that the training of members of the police will henceforth include, as a priority subject, the study of human rights and the analysis of the principal international instruments in this sphere, in accordance with the provisions of article 10 of the Convention;

(g) The implementation of intensive training programmes in substantive criminal law for serving judges and the strengthening of the College of Legal Studies to ensure that posts are filled by the best-qualified judges, through a selection process based on objective technical criteria;

(h) The process of purging the National Police and the Financial Police through the dismissal of members suspected of involvement in human rights violations;

(i) The raising of the minimum age for bearing firearms to 25 years;

(j) The numerical reduction in the strength of the armed forces.


3. Factors and difficulties impeding the application of the provisions of the Convention

163. The application of the Convention is being hindered by:

(a) Continued grave qualitative and quantitative weaknesses in the Judiciary, the Public Prosecutor’s Office and the Police, which are the State institutions responsible for ensuring the safety of persons and laying the foundations for the functioning of a State which will respect and guarantee human rights;

(b) The repeated instances of intimidation of judges, prosecutors, witnesses, victims and their relations, human rights activists and journalists, which largely account for the absence of decisive action by the bodies that should investigate and try crimes and for the continuance of impunity. Article 13 of the Convention makes States responsible for the protection of victims and witnesses;

(c) The delay in putting into operation the Service for the Protection of Persons involved in Proceedings and Persons connected with the Administration of Justice;

(d) The inadequacy of the funds allocated by the State to the Human Rights Procurator, which limits his activities in the investigation of alleged human rights violations by State agents, and in the promotion of a culture of tolerance and respect for these rights, at a time in the country’s history when particular importance should be attached to those functions;

(e) The spread in Guatemalan society of a deep-rooted culture of violence, which it has not proved possible to reverse.


4. Subjects of concern

164. The Committee is concerned about the following:

(a) The persistence of impunity for crimes, particularly grave human rights violations;

(b) The fact that, although the number of reports of torture has declined, there are still problems resulting from incompetence in the Public Prosecutor’s Office, the Judiciary and the Police, which are the State bodies responsible for investigating such reports, identifying and arresting the perpetrators and bringing them to trial;

(c) The increase in the number of reports of cruel, inhuman or degrading treatment by State agents;

(d) The proliferation of the unlawful possession of weapons by private individuals, which is largely responsible for the high levels of criminal violence that seriously jeopardizes the safety of citizens and undermines confidence in the institutions of the rule of law;

(e) The faulty definition of the crime of torture in article 201-A of the Penal Code, which is not consistent with article 1 of the Convention.


5. Recommendations

165. The Committee recommends to the State party that the following actions be taken:

(a) Intensification of efforts to elucidate past grave violations and to ensure that such situations do not recur. Articles 11 and 12 of the Convention require the State to proceed ex officio to a prompt and impartial investigation of any report of torture;

(b) Completion of the process of setting up a single National Civil Police, with the disbandment or demobilization of the Financial Police;

(c) Continuation of the process of reducing the number of permits to carry firearms to the strictly essential minimum;

(d) The putting into operation as soon as possible of the Service for the Protection of Persons involved in Proceedings and Persons connected with the Administration of Justice;

(e) The allocation to the Human Rights Procurator of the necessary funds for effectively carrying out, throughout the national territory, the functions and duties
assigned to and enjoined upon him under the Constitution and the law;

(f) Harmonization of article 201-A of the Penal Code with the definition of torture contained in article 1 of the Convention;

(g) The prompt submission, if possible during the coming year, of the third report, the form and content of which should comply with the previously mentioned guidelines on the presentation of reports.

166. The Committee reminds the State authorities that their representatives informed it, during its consideration of the initial report, that the process of preparing the declaration referred to in article 22 of the Convention had been initiated and that in their view no obstacles existed to completing the process.



J. New Zealand


167. The Committee considered the second periodic report of New Zealand (CAT/C/29/Add.4) at its 326th, 327th and 334th meetings, held on 8 May 1998 (CAT/C/SR.326 and 327), and adopted the following conclusions and recommendations.


1. Introduction

168. New Zealand ratified the Convention on 10 December 1989 and made declarations recognizing the competence of the Committee against Torture to receive and consider communications made in accordance with articles 21 and 22 of the Convention. Both the initial report which was presented by New Zealand on 29 July 1992 and the second periodic report were prepared in accordance with article 19 of the Convention and with the Committee’s general guidelines concerning the form and content of reports. The second periodic report of New Zealand covers the period from 9 January 1991 to 8 January 1995 and provides information on some significant changes in the legislative and executive activities. Important information is included also in the basic document prepared by New Zealand on 28 September 1993 (HRI/CORE/1/Add.33).


2. Positive aspects

169. Section 9 of the New Zealand Bill of Rights recognizes the rights of persons not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment.

170. The Crimes of Torture Act 1989 has specific and directly enforceable provisions to prohibit acts of torture.
The definition of “act of torture” in the Act is in accordance with the relevant definition of article 1 of the Convention.

171. As stated in the second periodic report, the procedures for considering refugee application are implemented at present not by part-time staff, but by regular staff.

172. The Committee is satisfied that the periodic review of the clinical status of mental patients committed to mental hospitals ensures that such compulsory treatment will not violate the mental patients’ right to freedom.

173. The prohibition against torture contained in the Crimes of Torture Act now is specifically included in the training manuals of prison officers.

174. The Committee views as a positive development the establishment of “Refugees as Survivors Centres”.


3. Subjects of concern

175. A subject of concern to the Committee is the instances of use of physical violence against prisoners of Mangaroa prison by the members of prison personnel. The allegations are that the prisoners were molested by the guards with fists and legs, they were not provided with medical treatment and were deprived of food and proper places of detention. Although these facts, pending the results of the ongoing investigation, cannot be considered as instances of torture, they already amount to cruel and degrading treatment.


4. Recommendations

176. The Committee recommends the completion of the investigation of the incidents of physical violence on prisoners at Mangaroa prison. The State party should inform the Committee on the results.

177. The Committee considers it important to strengthen the supervision of the prisons to prevent the misuse and abuse of power by prison personnel.

178. The Committee considers it desirable that the State party continue its efforts to adopt the new law on extradition, which would simplify the extradition procedure and thus enable it to establish the relevant relations (treaty-based or otherwise) with non-Commonwealth countries.



K. Germany


179. The Committee considered the second periodic report of Germany (CAT/C/29/Add.2) at its 328th and 329th meetings, on 11 May 1998 (CAT/C/SR.328 and 329), and adopted the following conclusions and recommendations.


1. Introduction

180. Germany signed the Convention on 13 October 1986 and deposited its instrument of ratification on 1 October 1990. The Convention entered into force in Germany on 31 October 1990. Upon ratification Germany made declarations concerning its understanding of article 3 of the Convention and the presumptive concordance of German law with the Convention. Germany has not declared in favour of articles 21 and 22. Both the initial report submitted by Germany on 9 March 1992 and the present second periodic report submitted on 17 December 1996 were prepared in accordance with article 19 of the Convention and in accordance with the general guidelines concerning the form and content of reports. The second periodic report covers the period from 9 March 1992 to 17 December 1996. Important information concerning the State party is also included in the basic document prepared by Germany on 8 August 1996.


2. Positive aspects

181. The Committee is encouraged by the fact that the Domestic Affairs Committee of the German Federal Parliament, the Permanent Conference of the Interior Ministers and Senators of the Länder and the Conference of Ministers of Justice of the Länder have addressed Amnesty International’s report on the 70 alleged cases of police ill-treatment, especially against foreigners, between January 1992 and March 1995.

182. The Committee is satisfied that no cases of torture within the strict meaning of article 1 of the Convention have been reported, and that tainted evidence has not been reported as having been used in any judicial proceedings.

183. The Committee is encouraged by the establishment of 12 torture rehabilitation centres and welcomes the fact that the German Government contributes to the United Nations Voluntary Fund for Victims of Torture.


3. Factors and difficulties impeding the application of the provisions of the Convention

184. The Committee is aware of the State party’s problems with the integration and management of large numbers of refugees and other minorities of non-German descent and of the problems deriving from the State party’s attempts to maintain fair and equitable asylum and immigration procedures.


4. Subjects of concern

185. The Committee is concerned that the precise definition of torture, as contained in article 1 of the
Convention, has still not been integrated into the German legal order. While section 340 of the German Criminal Code and the Act on the Suppression of Crime, dated 28 October 1994, would seem to cover most incidents of torture, statistical coverage of the incidence of torture, aggravated forms of torture with specific intent (dolus specialis) and incidents causing severe mental pain or suffering (“mental torture” insofar as not covered by article 343 of the German Penal Code) are not covered by current legislative provisions, as required by the Convention. Likewise, it is not absolutely clear that all exculpation by justification and superior order is categorically excluded as required by the Convention.

186. The Committee is concerned at the large number of reports of police ill-treatment, mostly in the context of arrest, received from domestic and international non-governmental organizations in recent years, as well as at the conclusions of the study entitled “The police and foreigners” commissioned by the Conference of Ministers of Internal Affairs in 1994 and presented in February 1996, to the effect that police abuse of foreigners represents more than “just a few isolated cases”.

187. The Committee is concerned about the incidents of suicide of persons in detention while awaiting deportation.

188. The Committee is particularly concerned about the apparently low rate of prosecution and conviction in the alleged incidents of ill-treatment by the police, especially of people of foreign descent.

189. The Committee is concerned at the existence of certain open-ended legal provisions permitting, under certain circumstances, the discretionary but significant reduction of the legal guarantees of those detained by the police, such as provisions permitting the police in certain cases to refuse permission to someone detained at a police station to notify a relative of his arrest. Likewise, references to “the principle of proportionality”, unless with respect to specific and binding decisions of the German courts, may lead to arbitrary reductions in such guarantees.


5. Recommendations

190. The Committee recommends that the State party adopt the precise definition of the crime of torture foreseen by the Convention and integrate it into the internal German legal order (art. 4, para. 2, of the Convention).

191. The Committee requests the German Government to envisage the possibility of making the necessary declarations so that Germany is bound by articles 21 and 22 of the Convention.

192. The Committee recommends that both internal disciplinary measures against offending police officers and the external prosecutorial and judicial measures be significantly strengthened to ensure that in future all police officers accused of ill-treatment of domestic and foreign nationals alike are brought to justice. In order to ensure that in cases of alleged ill-treatment by police officers such conduct is open to the fullest scrutiny, the Committee recommends, without prejudice to ordinary State procedures, that German criminal procedures be open to subsidiary prosecution by the victims of ill-treatment and that adherence procedures (Adhäsionsprozesse) and civil procedures for damages be made more widely applicable and possible. Adequate legal assistance by competent German legal counsel should be made available. Furthermore, the length of the investigation of complaints of police ill-treatment should be shortened.

193. The Committee recommends that further legislative attention be paid to the strict enforcement of article 15 of the Convention and that all evidence obtained directly or indirectly by torture be strictly prevented from reaching the cognizance of the deciding judges in all judicial proceedings.

194. The Committee recommends that police and immigration officers of all ranks, as well as medical personnel, receive compulsory training concerning human rights in general and especially concerning the Convention against Torture; in view of the fact that most reports of ill-treatment come from foreigners, the Committee recommends that these officers also receive compulsory training in the areas of conflict management and ethnic minorities.

195. The Committee further recommends that Germany continue its efforts to ensure that all detainees, at the outset of their custody, be given a form in a language they understand, outlining their rights, including the right to be informed of the reason for their arrest, to contact a relative and a lawyer of their choice, to submit a complaint about their treatment and to receive medical assistance.

196. In order to make future judicial proceedings against those suspected of ill-treatment possible, police officers should be required to wear a form of personal identification that would make them identifiable to those who allege ill-treatment.



L. Peru


197. The Committee considered the second periodic report of Peru (CAT/C/20/Add.6) at its 330th, 331st and 333rd meetings, held on 12 and 13 May 1998 (see CAT/C/SR.330, 331 and 333), and adopted the following conclusions and recommendations.


1. Introduction

198. The Committee welcomes the submission of the second periodic report of Peru which, despite the six year delay, nonetheless reflects the manifest wish of the State party to maintain dialogue.

199. The Committee also appreciates the fact that the size, quality and highly representative nature of the delegation of Peru is proof of the State party’s interest in the work of the Committee.


2. Positive aspects

200. The Committee notes the following positive aspects.

(a) Peru’s willingness to give effect to the recommendations that the Committee put forward during the consideration of the State party’s initial report;

(b) The abolition of the “faceless judges” system;

(c) The introduction into Peruvian legislation of a definition of torture consistent with the provisions of article 1 of the Convention;

(d) The planned or actual reforms announced by the Minister of Justice, who headed the delegation of Peru, and which are designed to improve the human rights situation in the framework of the fight against terrorist violence and to reaffirm the independence of the judiciary.


3. Factors and difficulties impeding the application of the provisions of the Convention

201. The Committee finds no factors or difficulties impeding the effective application of the Convention by Peru.


4. Subjects of concern

202. The Committee is concerned about the following:

(a) The frequent and numerous allegations of torture;

(b) The maintenance of the competence of military courts to try civilians;

(c) The excessive role still assigned to military courts at the expense of civil courts;

(d) The laws passed between 1995 and 1998, which arguably seem designed as a renewed challenge to the independence of the judiciary:

(i) Act No. 26546 of 26 November 1995 establishing the Executive Commission of the Judiciary;

(ii) Act No. 26623 of 19 June 1996 reorganizing the Office of the Public Prosecutor and establishing the Executive Commission of the Office of the Public Prosecutor;

(iii) Act No. 26695 of 3 December 1996 establishing temporary benches at the Supreme Court and “higher courts”;

(iv) Act No. 26933 of 12 March 1998 limiting the powers of the National Council of the Judiciary;

(e) The maintenance of emergency legislation hardly conducive to respect for human rights in general and the elimination of torture in particular.


5. Recommendations

203. While noting and welcoming the new measures that have been taken or announced, including some which are in the spirit of the recommendations made during the consideration of Peru’s initial report, the Committee reiterates those recommendations and calls upon the State party to expedite reforms designed to establish a State genuinely founded upon the rule of law.

204. The State party should consider repealing laws which may undermine the independence of the judiciary, and take account of the fact that, in this area, the competent authority with regard to the selection and careers of judges should be independent of the Government and the administration. To guarantee such independence, measures should be taken to ensure, for example, that the members of that authority are appointed by the judiciary and that the authority itself decides on its rules of procedure.

205. The State party should consider, pursuant to articles 6, 11, 12, 13 and 14 of the Convention, taking measures to ensure that victims of torture or other cruel, inhuman or degrading treatment, and their legal successors, receive redress, compensation and rehabilitation in all circumstances.



M. Panama


206. The Committee considered the third periodic report of Panama (CAT/C/34/Add.9) at its 332nd and 333rd meetings, on 13 May 1998 (CAT/C/SR.332 and 333), and adopted the following conclusions and recommendations.


1. Introduction

207. Panama ratified the Convention on 24 August 1987. It has not made the declarations provided for in articles 21 and 22 of the Convention.

208. It is also a State party to the Inter-American Convention to Prevent and Punish Torture.

209. The third periodic report covers the period from 21 September 1992, when the second periodic report was submitted, to 19 May 1997.

210. The representative of Panama provided additional information during the oral presentation, particularly regarding events after that period.

211. The Committee appreciates Panama’s sending a high-level delegation to present the report and the cordial spirit of the discussions.


2. Positive aspects

212. The Committee has received no reports of cases of torture during the period covered by the report.

213. Panamanian legislation contains appropriate safeguards for the effective protection of human rights and especially the prevention of torture, in particular the maximum period of 24 hours, subject to no exception, within which a detainee must be brought before the competent judicial authority, and the prohibition against holding anybody incommunicado.

214. The establishment of the Office of the People’s Advocate is a positive step.

215. Other positive measures include the provision in the Judicial Code for a system of monthly visits to prison establishments by judges, magistrates and investigating officers and the establishment by the Public Prosecutor’s Department of a “prison mailbox” system to facilitate the exercise by prisoners of their right to lodge complaints and petitions.

216. The implementation of a human rights training project for members of the National Police and the introduction of a technical course on penology at the Faculty of Law and Political Sciences of the University of Panama seem to demonstrate an intention to professionalize this area of public service.

217. The State authorities demonstrate a commendable concern for restructuring the Judiciary to improve the performance of its important role in the effective functioning of a State under the rule of law.


3. Subjects of concern

218. The Committee is concerned about the following:

(a) The absence in Panama’s legislation of a stipulated maximum duration of pre-trial detention;

(b) The high proportion of unsentenced detainees in Panama’s prisons;

(c) The possibility that compliance with article 3, paragraph 1, of the Convention may be jeopardized by the repatriation of refugees coming from neighbouring countries.


4. Recommendations

219. The Committee recommends that the State party:

(a) Consider the possibility of making the declaration provided for in article 22 of the Convention;

(b) Adopt all necessary safeguards for the protection of refugees from neighbouring countries, in particular so as to ensure that in case of repatriation they are not placed in the situation referred to in article 3, paragraph 1, of the Convention.



N. Kuwait


220. The Committee considered the initial report of Kuwait (CAT/C/37/Add.1) at its 334th and 335th meetings, on 13 May 1998 (CAT/C/SR.334 and 335), and adopted the following conclusions and recommendations.


1. Introduction

221. Kuwait acceded to the Convention against Torture on 8 March 1996 and its initial report was due on 7 March 1997. The report was received in timely fashion on 15 October 1997.

222. The report accords generally with the guidelines for such reports.


2. Positive aspects

223. Kuwait seems to have in place the necessary legal institutions to combat torture.

224. Kuwait has confronted incidents of torture and prosecuted those responsible.

225. The Committee views as a positive step the setting up of a government-funded Torture Victims’ Rehabilitation Centre in Kuwait.


3. Factors and difficulties impeding the application of the provisions of the Convention

226. The Committee is not aware of any factors that might impede the application of the provisions of the Convention.


4. Subjects of concern

227. The Committee is concerned that there is no defined crime of torture in Kuwait.


5. Recommendations

228. The Committee recommends that Kuwait consider withdrawing its reservations to the Committee’s article 20 jurisdiction.

229. The Committee also recommends that Kuwait consider declaring in favour of articles 21 and 22 of the Convention.

230. The Committee further recommends that Kuwait consider enacting in its Criminal Code a defined crime of torture or, if the Convention applies by incorporation, an independent crime of torture.

231. The Committee looks forward to the additional explanations to be provided to it in writing as promised.



O. Israel


232. The Committee considered the second periodic report of Israel (CAT/C/33/Add.3) at its 336th and 337th meetings, on 14 and 18 May 1998 (CAT/C/SR.336 and 337), and adopted the following conclusions and recommendations.


1. Introduction

233. Israel signed the Convention on 22 October 1986 and deposited its instrument of ratification on 3 October 1991. The Convention entered into force in Israel on 2 November 1991. Upon ratification, Israel made a reservation in respect of articles 20 and 30. Israel has not declared in favour of articles 21 and 22. The second periodic report was due on 1 November 1996 and was received on 6 March 1998.

234. Israel had presented a special report (CAT/C/33/Add.2/Rev.1) at the Committee’s request, and the Committee’s conclusions and recommendations included the recommendation that the second periodic report of Israel be presented for consideration at the November 1997 session of the Committee. The second periodic report was prepared in accordance with the general guidelines concerning the form and content of such reports.


2. Positive aspects

235. Israel has embarked upon a number of reforms, such as the creation of the Office of Public Defender, the creation of the Kremnitzer Committee to recommend oversight of police violence, amendments to the Criminal Code, ministerial review of several security service interrogation practices and the creation of the Goldberg Committee relating to the rules of evidence.

236. Another positive aspect was the genuine dialogue that engaged the Committee and the Israeli delegation.

3. Factors and difficulties impeding the application of the provisions of the Convention

237. Israel points to the state of insecurity with which it copes, but the Committee notes that, pursuant to article 2, paragraph 2, this cannot justify torture.


4. Subjects of concern

238. The Committee is concerned about the following:

(a) The continued use of the “Landau rules” of interrogation permitting physical pressure by the General Security Services, based as they are upon domestic judicial adoption of the justification of necessity, a justification which is contrary to article 2, paragraph 2, of the Convention;

(b) Resort to administrative detention in the occupied territories for inordinately lengthy periods and for reasons that do not bear on the risk posed by releasing some detainees;

(c) The fact that, since military law and laws going back to the Mandate pertain in the occupied territories, the liberalizing effect of the reforms referred to in paragraph 235 above will not apply there;

(d) Israel’s apparent failure to implement any of the recommendations of the Committee that were expressed with regard to both the initial and the special report.5


5. Conclusions and recommendations

239. Israel expressed concern that the Committee had not set out in extenso the reasoning behind its conclusions and recommendations with regard to Israel’s special report. Of course, the dialogue between a State and the Committee forms part of the context upon which the Committee’s conclusions and recommendations are made. However, in order to ensure that there is no room for doubt, it was on the basis of the following that the Committee found that its conclusions and recommendations with regard6 to the Israeli special report should continue to form part of its conclusions and recommendations to the present report:

(a) Since the State party admits that it applies force or “physical pressure” to those in the custody of its officials, the State party bears the burden of persuading the Committee that such force or pressure offends neither articles 1 or 2 nor article 16 of the Convention;

(b) Since the State party admits to hooding, shackling in painful positions, sleep deprivation and shaking of detainees (through its delegates and courts, and supported by the findings of the United Nations Special Rapporteur on Torture)7 the bare assertion that it is “not severe” is not in and of itself sufficient to satisfy the State’s burden and justify such conduct. This is particularly so when reliable evidence from detainees and independent medical evidence made available to Israel reinforce the contrary conclusion;

(c) Given that Israel itself asserts that each case must be dealt with on its own “merits”, but that for matters of security, material particulars of the interrogation cannot be revealed to the Committee, it follows that the conclusions of breach of articles 1, 2 and 16 must remain.

240. Accordingly, the Committee reaffirms its conclusions and recommendations with regard to Israel’s initial and special reports:

(a) Interrogations applying the methods referred to above are in conflict with articles 1, 2 and 16 of the Convention and should cease immediately;

(b) The provisions of the Convention should be incorporated by legislation into Israeli law, particularly the definition of torture contained in article 1 of the Convention;

(c) Israel should consider withdrawing its reservations to article 20 and declaring in favour of articles 21 and 22;

(d) Interrogation procedures pursuant to the “Landau rules” should in any event be published in full.

241. The practice of administrative detention in the occupied territories should be reviewed in order to ensure its conformity with article 16.

242. The Committee would be remiss if it did not acknowledge that the Israeli delegation had initiated upon this occasion a genuine dialogue that revealed Israel’s unhappiness with the current situation (without acknowledging any breach of the Convention) and its desire to cooperate with the Committee. The Committee, in its turn, respects Israel’s right to present its position, even if the Committee disagrees with its reasons and conclusions, and expresses the genuine desire to continue the dialogue and to resolve the differences between Israel and itself.



P. Sri Lanka


243. The Committee considered the initial report of Sri Lanka (CAT/C/28/Add.3) at its 338th, 339th and 341st meetings, on 18 and 19 May 1998 (CAT/C/SR.338, 339 and 341), and adopted the following conclusions and recommendations.


1. Introduction

244. Sri Lanka acceded to the Convention against Torture on 3 January 1994 but has not recognized the competence of the Committee to consider communications made in accordance with articles 21 and 22 of the Convention.

245. The Committee expresses appreciation for the report of Sri Lanka, which is consistent with the guidelines for such reports, for the annexed material and the introduction and replies by the delegation of the State party to questions put by members of the Committee.

246. The report, which was due in 1995 and was submitted more than two years later, covers the period from accession to 21 November 1997.


2. Positive aspects

247. The Committee welcomes with satisfaction the following positive developments:

(a) The accession to the Convention during extremely difficult times for the country;

(b) The adoption of the Convention against Torture Act No. 22 of 1994 to give effect to the Convention in accordance with the legal system of the State party;

(c) The recent establishment of the Human Rights Commission with several regional offices, including one in Jaffna;

(d) The unequivocal position taken by the Supreme Court as well as other courts on the question of torture and the awards of compensation to victims of torture under the fundamental rights jurisdiction of the Supreme Court;

(e) Seminars and other work carried out by the International Committee of the Red Cross (ICRC) and the participation of the medical profession in such seminars;

(f) The recent accession by the State party to the First Optional Protocol to the International Covenant on Civil and Political Rights;

(g) The State party’s readiness to cooperate with the Committee in order to comply with the Convention;

(h) The support of victims of torture as expressed by both donations to the United Nations Voluntary Fund for the Victims of Torture and support to the Centre for Rehabilitation.


3. Factors and difficulties impeding the application of the provisions of the Convention

248. The Committee takes note of the following:

(a) The serious internal situation faced by the State party, which however in no way justifies any violation of the Convention;

(b) A very low per capita income;

(c) The fact that for years in the past police officers appeared to be immune from prosecution.


4. Subjects of concern

249. The Committee is gravely concerned by information on serious violations of the Convention, particularly regarding torture linked with disappearances.

250. The Committee regrets that there were few, if any, prosecutions or disciplinary proceedings despite continuous Supreme Court warnings and awards of damages to torture victims.

251. The Committee notes the absence, until recently, of independent and effective investigation of scores of allegations of disappearances linked with torture.

252. The Committee noted that, while the Convention against Torture Act 22/94 covers most of the provisions of the Convention, there were certain significant omissions.

253. The question of the admissibility under the emergency regulation of confessions is also a matter of concern, as well as the absence of strict legislation governing detention consistent with international norms.


5. Recommendations

254. The Committee urges the State party to review Convention against Torture Act 22/94 and other relevant laws in order to ensure complete compliance with the Convention, in particular in respect of: (a) the definition of torture; (b) acts that amount to torture; and (c) extradition, return and expulsion.

255. The Committee furthermore recommends that the State party:

(a) Review the emergency regulations and the Prevention of Terrorism Act as well as rules of practice pertaining to detention to ensure that they conform with the provisions of the Convention;

(b) Ensure that all allegations of torture – past, present and future – are promptly, independently and effectively investigated and the recommendations implemented without any delay;

(c) While continuing to remedy, through compensation, the consequences of torture, give due importance to prompt criminal prosecutions and disciplinary proceedings against culprits;

(d) Take the necessary measures to ensure that justice is not delayed, especially in the cases of trials of people accused of torture;

(e) Strengthen the Human Rights Commission and other mechanisms dealing with torture prevention and investigation and provide them with all the means that are necessary to ensure their impartiality and effectiveness.

256. The Committee urges the State party to declare in favour of articles 21 and 22 of the Convention.

257. The Committee would be remiss if it did not acknowledge that the Sri Lankan delegation made every effort to make the dialogue with the Committee fruitful, so that the State party might be helped to put an end to violations of the Convention.



Chapter V
General comment of the Committee


258. The Committee against Torture at its sixteenth session decided, on 10 May 1996, to set up a working group to examine questions relating to articles 3 and 22 of the Convention. In fact, the Committee had noticed that most of the individual communications received under article 22 of the Convention in recent years had concerned cases of persons under an order of expulsion, return or extradition who alleged that they would have been in danger of being subjected to torture if they were expelled, returned or extradited. The Committee felt that some guidance should be given to the States parties and to the authors of communications to enable them to apply correctly the provisions of article 3 in the context of the procedure set forth by article 22 of the Convention. The working group was composed of Ms. Iliopoulos-Strangas, Mr. Pikis and Mr. Zupancic. They prepared separate proposals taking into account an informal document submitted to them by Canada on 10 December 1996. Owing to lack of time, the Committee was not able to discuss the issue until its nineteenth session, in November 1997. At that session, Mr. Burns acted as coordinator of the proposals put forward by the members of the working group. On 21 November 1997, the Committee adopted the general comment on the implementation of article 3 in the context of article 22 of the Convention. It was the first general comment elaborated by the Committee since the beginning of its mandate in 1988. The text of the general comment appears in annex IX to the present report.


Chapter VI
Activities of the Committee under article 20 of the Convention


259. In accordance with article 20, paragraph 1, of the Convention, if the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State party, the Committee shall invite that State party to cooperate in the examination of the information and, to this end, to submit observations with regard to the information.

260. In accordance with rule 69 of the Committee’s rules of procedure, the Secretary-General shall bring to the attention of the Committee information which is, or appears to be, submitted for the Committee’s consideration under article 20, paragraph 1, of the Convention.

261. No information shall be received by the Committee if it concerns a State party which, in accordance with article 28, paragraph 1, of the Convention, declared at the time of ratification of or accession to the Convention that it did not recognize the competence of the Committee provided for in article 20, unless that State party has subsequently withdrawn its reservation in accordance with article 28, paragraph 2, of the Convention.

262. The Committee’s work under article 20 of the Convention thus commenced at its fourth session and continued at its fifth to twentieth session. During those sessions the Committee devoted the following number of closed meetings to its activities under that article:

Sessions Number of closed meetings

Fourth 4
Fifth 4
Sixth 3
Seventh 2
Eighth 3
Ninth 3
Tenth 8
Eleventh 4
Twelfth 4
Thirteenth 3
Fourteenth 6
Fifteenth 4
Sixteenth 4
Seventeenth 4
Eighteenth 5
Nineteenth 4
Twentieth 5

263. In accordance with the provisions of article 20 of the Convention and rules 72 and 73 of the rules of procedure, all documents and proceedings of the Committee relating to its functions under article 20 are confidential and all the meetings concerning its proceedings under that article are closed.

264. However, in accordance with article 20, paragraph 5, of the Convention, the Committee may, after consultations with the State party concerned, decide to include a summary account of the results of the proceedings in its annual report to the States parties and to the General Assembly.



Chapter VII
Consideration of communications under article 22 of the Convention


265. Under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, individuals who claim that any of their rights enumerated in the Convention have been violated by a State party and who have exhausted all available domestic remedies may submit communications to the Committee against Torture for consideration. Thirty nine out of 104 States that have acceded to or ratified the Convention have declared that they recognize the competence of the Committee to receive and consider communications under article 22 of the Convention. Those States are: Algeria, Argentina, Australia, Austria, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Finland, France, Greece, Hungary, Iceland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Poland, Portugal, Russian Federation, Senegal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Togo, Tunisia, Turkey, Uruguay, Venezuela and Yugoslavia. No communication may be considered by the Committee if it concerns a State party to the Convention that has not recognized the competence of the Committee to do so.

266. Consideration of communications under article 22 of the Convention takes place in closed meetings (art. 22, para. 6). All documents pertaining to the work of the Committee under article 22 – submissions from the parties and other working documents of the Committee – are confidential.

267. In carrying out its work under article 22, the Committee may be assisted by a working group of not more than five of its members or by a special rapporteur designated from among its members. The working group or the special rapporteur submits recommendations to the Committee regarding the fulfilment of the conditions of admissibility of communications or assists it in any manner which the Committee may decide (rule 106 of the rules of procedure of the Committee). Special rapporteurs may take procedural decisions (under rule 108) during inter-sessional periods, thereby expediting the processing of communications by the Committee.

268. A communication may not be declared admissible unless the State party has received the text of the communication and has been given an opportunity to furnish information or observations concerning the question of admissibility, including information relating to the exhaustion of domestic remedies (rule 108, para. 3). Within six months after the transmittal to the State party of a decision of the Committee declaring a communication admissible, the State party shall submit to the Committee written explanations or statements clarifying the matter under consideration and the remedy, if any, which has been taken by it (rule 110, para. 2). In cases that require expeditious consideration, the Committee invites the States parties concerned, if they have no objections to the admissibility of the communications, to furnish immediately their observations on the merits of the case.

269. The Committee concludes examination of an admissible communication by formulating its Views thereon in the light of all information made available to it by the complainant and the State party. The Views of the Committee are communicated to the parties (art. 22, para. 7, of the Convention and rule 111, para. 3, of the rules of procedure of the Committee) and are made available to the general public. Generally, the text of the Committee’s decisions declaring communications inadmissible under article 22 of the Convention are also made public without disclosing the identity of the author of the communication but identifying the State party concerned.

270. Pursuant to rule 112 of its rules of procedure, the Committee shall include in its annual report a summary of the communications examined. The Committee may also include in its annual report the text of its Views under article 22, paragraph 7, of the Convention and the text of any decision declaring a communication inadmissible.

271. During the period covered by the present report (nineteenth and twentieth sessions), the Committee had 70 communications before it for consideration.

272. At its nineteenth session, the Committee decided to declare three communications admissible, to be considered on the merits.

273. Also at its nineteenth session, the Committee declared inadmissible communications Nos. 42/1996 (R. K. v. Canada), 45/1996 (D. v. France), 52/1996 (R. v. France) and 64/1997 (L. M. V. R. G. and M. A. B. C. v. Sweden) because they did not meet the conditions laid down in article 22, paragraph 5 (b), of the Convention. The text of those decisions is reproduced in annex X to the present report.

274. At its nineteenth session, the Committee adopted Views in respect of communications Nos. 28/1995 (E. A. v. Switzerland) and 57/1996 (P. Q. L. v. Canada).

275. In its Views on communication No. 28/1995 (E. A. v. Switzerland), the Committee considered that the return of the applicant to Turkey would not violate Switzerland’s obligations under article 3 of the Convention. The Committee came to its conclusion on the basis of the fact that the applicant’s political activities dated from the beginning of the 1980s and that there was no substantiation that the authorities were looking for him since. The text of the Committee’s Views is reproduced in annex X to the present report.

276. In its Views on communication No. 57/1996 (P. Q. L. v. Canada), the Committee found that the return of the applicant to China would not violate Canada’s obligations under article 3 of the Convention. The Committee considered that the author had not claimed to have participated in political activities in China, nor did he belong to a political, professional or social group targeted by the authorities for repression or torture. The text of the Committee’s Views is reproduced in annex X to the present report.

277. At its twentieth session, the Committee decided to discontinue the consideration of communications Nos. 19/1994, 50/1996, 85/1997 and 98/1997. It also decided to declare two communications admissible, to be considered on the merits.

278. Also at its twentieth session, the Committee declared inadmissible communications Nos. 47/1996 (V. V. v.Canada) and 58/1996 (J. M. U. M. v. Sweden) because they did not meet the conditions laid down in article 22, paragraph 5 (b), of the Convention. It also declared inadmissible communication 48/1996 (H. W. A. v. Switzerland) since, the author having left the State party’s territory, article 3 of the Convention no longer applied. The text of those decisions is reproduced in annex X to the present report.

279. At its twentieth session, the Committee adopted Views in respect of communications Nos. 59/1996 (Blanco Abad v. Spain), 61/1996 (X., Y. and Z. v. Sweden), 65/1997 (I. A. O. v. Sweden), 83/1997 (G. R. B. v. Sweden), 89/1997 (Ali Falakaflaki v. Sweden), 90/1997 (A. L. N. v. Switzerland) and 94/1997 (K. N. v. Switzerland). The text of the Views is reproduced in annex X to the present report.

280. In its Views on communication No. 59/1996 (Blanco Abad v. Spain), the Committee considered that the facts before it revealed a violation of articles 12 and 13 of the Convention. The Committee found that the lack of investigation of the allegations made by the author to the forensic physician and the judge of the National High Court as well as the amount of time elapsed between the reporting of the facts and the initiation of proceedings by the Criminal Investigation Court were incompatible with the obligation to proceed to a prompt investigation, as provided for in article 12 of the Convention. The Committee also considered that the judicial investigation did not satisfy the requirement for promptness in examining complaints prescribed by article 13 of the Convention. Moreover, the Committee found no justification for the refusal of the judicial authorities to allow evidence proposed by the author and considered those omissions to be incompatible with the obligation to proceed to an impartial investigation, as provided for in article 13.

281. With respect to communication No. 61/1996 (X., Y. and Z. v. Sweden), the Committee was of the view that the information available did not show that substantial grounds existed for believing that the authors would be in danger of being subjected to torture if returned to the Democratic Republic of the Congo. The Committee considered, inter alia, that the authors’ fear of being subjected to torture was originally based on their political activities for the People’s Revolutionary Party (PRP). It noted, however, that that party was currently part of the alliance forming the Government in the Democratic Republic of the Congo and that the authors’ fear thus appeared to lack substantiation.

282. With respect to communication No. 65/1997 (I. A. O. v. Sweden), the Committee considered that the information available did not show that substantial grounds existed for believing that the author would be in danger of being subjected to torture if returned to Djibouti. The Committee noted that a risk of being detained as such was not sufficient to trigger the protection of article 3 of the Convention.

283. In its Views on communication No. 83/1997 (G. R. B. v. Sweden), the Committee found that the issue of whether the State party had an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a non-governmental entity, without the consent or acquiescence of the Government, fell outside the scope of article 3 of the Convention. It also considered that the aggravation of the author’s state of health possibly caused by her deportation would not amount to the type of cruel, inhuman or degrading treatment envisaged by article 16 of the Convention.

284. In its Views on communication No. 89/1997 (Ali Falakaflaki v. Sweden) the Committee considered that, under article 3 of the Convention, the State party had an obligation to refrain from forcibly returning the author to the Islamic Republic of Iran or to any other country where he would run a real risk of being expelled or returned to the Islamic Republic. In reaching its decision the Committee took into account the author’s claim that he was a political activist and that he had been tortured previously, as well as medical evidence that he suffered from a post-traumatic stress disorder.

285. With respect to communication No. 90/1997 (A. L. N. v. Switzerland), the Committee considered that the information before it did not show substantial grounds for believing that the author ran a personal risk of being tortured if sent back to Angola. It noted, inter alia, that the author based his fear of torture on the fact that he was being sought by forces of the Popular Movement for the Liberation of Angola (MPLA). However, he had put forward no reason to suggest that he was indeed still wanted. Accordingly, the Committee concluded that the facts did not indicate a breach of article 3 of the Convention.

286. In its Views on communication No. 94/1997 (K. N. v. Switzerland), the Committee considered that the facts before it did not reveal a breach of article 3 of the Convention, since no substantial grounds existed for believing that the author would be personally at risk of being subjected to torture if he were to be returned to Sri Lanka. The Committee noted that the author’s main reason for leaving his country appeared to be that he felt caught between the two parties in the ongoing internal conflict in the country. However, there was no indication that the author himself was personally targeted by the Sri Lankan authorities for repression.



Chapter VIII
Amendments to the rules of procedure of the Committee


287. At its 328th meeting, on 11 May 1998, the Committee adopted amendments to rules 14, 18 and 78 of its rules of procedure (see CAT/C/3/Rev.2) which concerned: (a) modalities relating to the solemn declaration of Committee members; (b) criteria to designate one of the Vice-Chairmen as Acting Chairman and the extension of his functions in the period between session; and (c) the consideration of a State party report when the State concerned is under the inquiry procedure established by article 20 of the Convention. The text of the amended rules appears in annex XI to the present report.



Chapter IX
Adoption of the annual report of the Committee


288. In accordance with article 24 of the Convention, the Committee shall submit an annual report on its activities to the States parties and to the General Assembly.

289. Since the Committee will hold its second regular session of each calendar year in late November, which coincides with the regular sessions of the General Assembly, the Committee decided to adopt its annual report at the end of its spring session for appropriate transmission to the General Assembly during the same calendar year.

290. Accordingly, at its 343rd and 344th meetings, held on 20 and 22 May 1998, the Committee considered the draft report on its activities at the nineteenth and twentieth sessions (CAT/C/XX/CRP.1 and Add.1-8). The report, as amended in the course of the discussion, was adopted by the Committee unanimously. An account of the activities of the Committee at its twenty-first session (9 to 20 November 1998) will be included in the annual report of the Committee for 1999.



Notes

1 Official Records of the General Assembly, Fiftieth Session, Supplement No. 44 (A/50/44), paras. 207-209.

2 Ibid., Fifty-second Session, Supplement No. 44 (A/52/44), paras. 287-290.

3 Ibid., Forty-fifth Session, Supplement No. 44 (A/45/44), paras. 14-16.

4 Ibid., Forty-ninth Session, Supplement No. 44 (A/49/44), paras. 12-13.

5 See ibid., paras. 159-171; and ibid., Fifty-second Session, Supplement No. 44 (A/52/44), paras. 253-260.

6 See ibid., Fifty-second Session, Supplement No. 44 (A/52/44), para. 260 (a)-(d).

7 E/CN.4/1998, 38, para. 121.

Annex I

States that have signed, ratified or acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as at 22 May 1998


StateDate of signatureDate of receipt of the instrumentof ratification or accession
Afghanistan4 February 19851 April 1987
Albania11 May 1994a
Algeria26 November 198512 September 1989
Antigua and Barbuda19 July 1993a
Argentina4 February 198524 September 1986
Armenia13 September 1993a
Australia10 December 19858 August 1989
Austria14 March 198529 July 1987
Azerbaijan16 August 1996a
Bahrain6 March 1998a
Belarus19 December 198513 March 1987
Belgium4 February 1985
Belize17 March 1986a
Benin12 March 1992a
Bolivia4 February 1985
Bosnia and Herzegovina6 March 1992b
Brazil23 September 198528 September 1989
Bulgaria10 June 198616 December 1986
Burundi18 February 1993a
Cambodia15 October 1992a
Cameroon19 December 1986a
Canada23 August 198524 June 1987
Cape Verde4 June 1992a
Chad9 June 1995a
Chile23 September 198730 September 1988
China12 December 19864 October 1988
Colombia10 April 19858 December 1987
Costa Rica4 February 198511 November 1993
Côte d’Ivoire18 December 1995a
Croatia8 October 1991b
Cuba27 January 198617 May 1995
Cyprus9 October 198518 July 1991
Czech Republic1 January 1993b
Democratic Republic of the Congo18 March 1996a
Denmark4 February 198527 May 1987
Dominican Republic4 February 1985
Ecuador4 February 198530 March 1988
Egypt25 June 1986a
El Salvador17 June 1996a
Estonia21 October 1991a
Ethiopia14 March 1994a
Finland4 February 198530 August 1989
France4 February 198518 February 1986
Gabon21 January 1986
Gambia23 October 1985
Georgia26 October 1994a
Germany13 October 19861 October 1990
Greece4 February 1985 6 October 1988
Guatemala5 January 1990a
Guinea30 May 198610 October 1989
Guyana25 January 198819 May 1988
Honduras5 December 1996a
Hungary28 November 198615 April 1987
Iceland4 February 198523 October 1996
India14 October 1997
Indonesia23 October 1985
Ireland28 September 1992
Israel22 October 19863 October 1991
Italy 4 February 198512 January 1989
Jordan13 November 1991a
Kenya21 February 1997a
Kuwait8 March 1996a
Kyrgyzstan5 September 1997a
Latvia14 April 1992a
Libyan Arab Jamahiriya16 May 1989a
Liechtenstein27 June 19852 November 1990
Lithuania1 February 1996a
Luxembourg22 February 198529 September 1987
Malawi11 June 1996a
Malta13 September 1990a
Mauritius9 December 1992a
Mexico18 March 198523 January 1986
Monaco6 December 1991a
Morocco8 January 198621 June 1993
Namibia28 November 1994a
Nepal14 May 1991a
Netherlands4 February 198521 December 1988
New Zealand14 January 198610 December 1989
Nicaragua15 April 1985
Nigeria28 July 1988
Norway4 February 19859 July 1986
Panama22 February 198524 August 1987
Paraguay23 October 198912 March 1990
Peru29 May 19857 July 1988
Philippines18 June 1986a
Poland13 January 198626 July 1989
Portugal4 February 19859 February 1989
Republic of Korea9 January 1995a
Republic of Moldova28 November 1995a
Romania18 December 1990a
Russian Federation10 December 19853 March 1987
Saudi Arabia23 September 1997a
Senegal4 February 198521 August 1986
Seychelles5 May 1992a
Sierra Leone18 March 1985
Slovakia29 May 1993a
Slovenia16 July 1993a
Somalia24 January 1990a
South Africa29 January 1993
Spain4 February 198521 October 1987
Sri Lanka3 January 1994a
Sudan4 June 1986
Sweden4 February 19858 January 1986
Switzerland4 February 19852 December 1986
Tajikistan11 January 1995a
The former Yugoslav Republic of Macedonia12 December 1994b
Togo25 March 198718 November 1987
Tunisia26 August 198723 September 1988
Turkey25 January 19882 August 1988
Uganda3 November 1986a
Ukraine27 February 198624 February 1987
United Kingdom of Great Britain and
Northern Ireland15 March 19858 December 1988
United States of America18 April 198821 October 1994
Uruguay4 February 198524 October 1986
Uzbekistan28 September 1995a
Venezuela15 February 198529 July 1991
Yemen5 November 1991a
Yugoslavia18 April 198910 September 1991
a Accession.

b Succession.




Annex II

States parties that have declared, at the time of ratification or accession, that they do not recognize the competence of the Committee provided for by article 20 of the Convention, as at 22 May 1998

Total of eleven (11) States parties.



Annex III

States parties that have made the declarations provided for in articles 21 and 22 of the Convention, The United Kingdom of Great Britain and Northern Ireland and the United States of America made only the declarations provided for in article 21 of the Convention. as at 22 May 1998
Total of 39 States parties.

State partyDate of entry into force
Algeria12 October 1989
Argentina26 June 1987
Australia29 January 1993
Austria28 August 1987
Bulgaria12 June 1993
Canada24 July 1987
Croatia8 October 1991
Cyprus8 April 1993
Czech Republic3 September 1996
Denmark26 June 1987
Ecuador29 April 1988
Finland29 September 1989
France26 June 1987
Greece5 November 1988
Hungary26 June 1987
Iceland22 November 1996
Italy11 February 1989
Liechtenstein2 December 1990
Luxembourg29 October 1987
Malta13 October 1990
Monaco6 January 1992
Netherlands20 January 1989
New Zealand9 January 1990
Norway26 June 1987
Poland12 June 1993
Portugal11 March 1989
Russian Federation1 October 1991
Senegal16 October 1996
Slovakia17 April 1995
Slovenia16 July 1993
Spain20 November 1987
Sweden26 June 1987
Switzerland26 June 1987
Togo18 December 1987
Tunisia23 October 1988
Turkey1 September 1988
Uruguay26 June 1987
Venezuela26 April 1994
Yugoslavia10 October 1991


Annex IV

Membership of the Committee against Torture in 1998

Name of memberCountry of nationalityTerm expires on 31 December
Mr. Peter Thomas BURNSCanada
1999
Mr. Guibril CAMARASenegal
1999
Mr. Sayed Kassem EL MASRYEgypt
2001
Mr. Alejandro GONZÁLEZ POBLETEChile
1999
Mr. Andreas MAVROMMATISCyprus
1999
Mr. António SILVA HENRIQUES GASPARPortugal
2001
Mr. Bent SØRENSENDenmark
2001
Mr. Alexander M. YAKOVLEVRussian Federation
2001
Mr. YU MengjiaChina
2001
Mr. Bostjan M. ZUPANCICSlovenia
1999

Joint Declaration for the United Nations Day in Support of Victims of Torture





Annex VI

Guidelines regarding the form and content of periodic reports to be submitted by States parties under article 19, paragraph 1 of the Convention


Adopted by the Committee at its 85th meeting (sixth session), on 30 April 1991, and revised at its 318th meeting (twentieth session), on 18 May 1998

The consolidated guidelines for the initial part of State party reports to be submitted under the various international human rights instruments, including the Convention (HRI/1991/1), were sent to States parties by note verbale G/SO 221 (1) of 26 April 1991.



Part I: Information on new measures and new developments relating to the implementation of the Convention following the order of articles 1 to 16, as appropriate

(iii) Complaints, inquiries, indictments, proceedings, sentences, reparation and compensation for acts of torture and other cruel, inhuman or degrading treatment or punishment;

Part II: Additional information requested by the Committee


Part III: Compliance with the Committee’s conclusions and recommendations


pp. 41-51 are offset pages



Annex IX

General comment on the implementation of article 3 of the Convention in the context of article 22



Admissibility


Merits




Annex X

Views and decisions of the Committee under article 22 of the Convention


A. Views


1. Communication No. 28/1995

(represented by counsel)

State party: Switzerland

Date of communication: 14 June 1995


The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,


The facts as submitted by the author


The complaint


Admissibility considerations

5.2 The Committee observed that at the time of the submission of the author’s communication, he was under the jurisdiction of the State party and that the communication was properly registered. The Committee needed not to examine the reasons why the author left the jurisdiction of the State party and did not consider his absence from Switzerland a ground for inadmissibility. In the absence of other obstacles to admissibility, and bearing in mind that domestic remedies had been exhausted in Switzerland, the Committee found that it should proceed to an examination of the merits of the claim.


State party’s observations on the merits of the communication


Counsel’s comments on the State party’s submission


State party’s further submission and counsel’s comments thereon


Examination of the merits


(represented by counsel)




The facts as submitted by the author


The complaint


State party’s observations


Additional observations by the State party


The Committee’s admissibility decision


Consideration of the case on its merits


(represented by counsel)

Alleged victim: The author

State party: Spain

Date of communication: 12 February 1996

Date of decision on
admissibility: 28 April 1997



The facts as submitted by the author


State party’s observations on the admissibility of the communication

Comments by the author


The Committee’s decision on admissibility


Submission of the State party on the merits


Comments by the author

– With regard to virtually all the acts of aggression described by the author (blows to the head, kicks to the genitals, hair-pulling and loss of consciousness), it was argued that these involved the use of methods intended to leave no physical marks on the victim. Neither the alleged forms of psychological or sexual torture, nor most of the physical torture (“bagging”, “hooding” and low-voltage electric shocks) left external signs of injury on the body;


Examination of the merits













Facts as presented by the author








[represented by counsel]



Facts as presented by the author


The complaint


State party’s observations


Counsel’s comments


Issues and proceedings before the Committee



7. Communication No. 89/1997

(represented by counsel)



Facts as presented by the author


The complaint


State party’s observations


Counsel’s comments


Issues and proceedings before the Committee

6.7 In the circumstances, the Committee considers that substantial grounds exist for believing that the author would be in danger of being subjected to torture if returned to Iran.




8. Communication No. 90/1997




Views under article 22, paragraph 7, of the convention

Draft recommendation by the Rapporteur


The facts as submitted by the author


The complaint


The State party’s observations on the admissibility and merits of the communication


Author’s comments


Issues and proceedings before the Committee



Alleged victim: The author

State party: Switzerland

Date of communication: 30 October 1997




Facts as presented by the author


The complaint


State party’s observations


The author’s comments


Issues and proceedings before the Committee


1. Communication No. 42/1996




Decision on admissibility


The complaint


Comments of the State party


Counsel’s comments


Issues and proceedings before the Committee


Submitted by: D. (name deleted)
(represented by AFIDRA)

Alleged victim: The author

State party: France

Date of communication: 13 December 1995


The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 10 November 1997,

Adopts the following decision:


Decision on admissibility

1. The author of the communication is D., a citizen of the Democratic Republic of the Congo (formerly Zaire), born on 25 May 1959, currently residing in France. He is represented by the Association pour la formation, l’insertion et le développement rural en Afrique (AFIDRA).


Facts submitted by the author

2. The Association states that D. is a member of the Union pour la démocratie et le Progrès Social and participated in activities for that party in Zaire, such as printing leaflets and posters. On 13 February 1990, he was arrested by the Division Spéciale Présidentielle (Special Presidential Division) on the grounds of a breach of public order. He was held for three months in prison without being tried or brought before a judge, and was subjected to ill-treatment by his prison warders. The author states that after his family intervened he was provisionally released on 20 May 1990 and told to report to the police once a month. However, in his request to the Office Francais de Protection des réfugiés et Apatrides (French Office for the Protection of Refugees and Stateless People) on 16 August 1990, D. stated that he had escaped from prison on 20 May 1990, and a “wanted” notice confirming this statement is enclosed by the author.

2.2 It is submitted that, following the massacres of students at Lubumbashi in May 1990, D. was again suspected of printing leaflets, and decided to leave the country with a false passport and visa. He entered France through Belgium on 1 August 1990.

2.3 On 16 August 1990, D. filed a request for refugee status, which was turned down by the Office Francais de Protection des Réfugiés et Apatrides on 24 August 1990, on the grounds that the alleged facts and risk of persecution were not sufficiently substantiated. His appeal was then rejected by the Commission de Recours des Réfugiés (Commission of Appeal in Refugee Matters) on 22 February 1991. As a result, his application for a residence permit was refused by the police authorities of Paris on 2 May 1991, and D. was ordered to leave France by 2 June 1991. Despite this, he apparently stayed in France.

2.4 On 15 July 1993, D. filed a further request on the grounds of his father’s alleged murder in Zaire on 10 July 1993, which was rejected by the Office Francais des Réfugiés, et Apatrides. His appeal was again rejected on 17 December 1993 by Commission de Recours des Réfugiés, on the grounds that there were no new facts, since he had stated that the political situation in Zaire had not changed. It is submitted that D. was unable to file an appeal against this decision with the Conseil d’Etat, because he was not provided with legal aid.

2.5 Following an order of escort to the frontier (arrêté de reconduite à la frontière), D. was arrested in 1994 during an identity check and kept for 48 hours in custody and 6 days in detention. He then had to be released because there was no flight available for his deportation to Zaire. D. claims that he only heard of the order of escort to the frontier when he was already under arrest. In this connection, it is submitted that the order apparently had been sent by registered mail, and that the French post office does not hand over mail to foreigners without residence permits. It is further stated that no arrest warrant was shown to D., although he had requested it in order to appeal against his arrest. It is submitted that it was for that reason that D. was not able to appeal against the order of escort to the frontier or against his arrest.


The complaint

3. D. says that he fears for his life if forced to return to the Democratic Republic of the Congo.


State party’s observations on the admissibility of the communication

4.1 By submission of 29 April 1997, the State party argues that the communication is inadmissible because domestic remedies had not been exhausted.

4.2 The State party explains that any foreigner whose appeal has been definitively rejected by the Commission de Recours des Réfugiés is requested to leave French territory within a month of being notified of the decision. The decision is notified by registered letter with acknowledgement of receipt delivered to the address given by the person concerned. If the person is not at home when the postal official delivers the letter, a notice is left at the address informing the person that the letter may be collected at the post office indicated on the notice. According to the State party, the postal administration, contrary to the author’s allegations, usually hands over the letter if the recipient can show proof of identity, and is not responsible for judging the validity of the residence permit shown, with respect to its expiry. The summons to leave the territory states that the person concerned has 15 days to submit comments, especially regarding any risks he may be exposed to in the event of returning to his country of origin.

4.3 The State party argues that several appeal procedures were available to D., and that he did not use them. According to the State party, he was entitled to submit an application for judicial review to the Conseil d’Etat against the Commission’s decisions of 28 February 1991 and 17 December 1993. Secondly, he could have requested the cancellation of the summons to leave French territory before the administrative court.

4.4 Lastly, the State party points out that D. did not appeal against the order of escort to the frontier dated 25 November 1991. The State party says that the law allows a specific appeal against orders of escort to the frontier to be lodged before the judge for escort to the frontier of the administrative court with territorial jurisdiction. Such appeal must be lodged within 24 hours of the order being notified. On hearing the appeal, the judge has 48 hours to issue a ruling, during which time proceedings are suspended. When the appeal has been submitted, the judge must, where appropriate, entertain the complaint that the person concerned runs the risk of being subjected to torture or to inhuman and degrading treatment in the event of a return to the country of origin, in conformity either with international rules, or with rules of domestic law.


The author’s comments

5.1 In his comments on the State party’s observations, the author alleges that many post offices will not hand over registered mail to persons without a residence permit who show only a passport or a residence permit which has expired, even though they have no legal authority to decide whether a residence permit is valid or not. According to the author, some post offices even go so far as to call the police if a foreigner appears without a residence permit.

5.2 As for the appeal for judicial review, the author explains that this appeal is admissible only on legal grounds, and must be submitted by a lawyer. The author also maintains that decisions of the Conseil d’Etat suffer considerable delays and do not have the effect of suspending proceedings.

5.3 With regard to the order of escort to the frontier, the author claims that he never received the summons and was first acquainted with it only when questioned by police. He claims that by the time he had been informed by the police, it was too late to appeal, since appeals have to be lodged within 24 hours of notification.


Issues and proceedings before the Committee

6.1 Before considering any claim in a communication, the Committee against Torture must decide whether or not it is admissible under article 22 of the Convention.

6.2 Article 22, paragraph 5 (b), of the Convention precludes the Committee from considering any communication unless it has ascertained that all available domestic remedies have been exhausted. That rule does not apply, however, if it is established that remedies have been or might be unreasonably prolonged or that they are unlikely to bring effective relief to the alleged victim. In the present case, the author acknowledged that he had not exhausted all available remedies provided for under French law – before the Conseil d’Etat against the decision of the Commission de Recours des Réfugiés, before the administrative court against the order to leave the territory, or before the administrative tribunal against the order of escort to the frontier. The reasons given by the author do not show that such appeals were unlikely to succeed. The Committee therefore finds that the conditions stipulated in article 22, paragraph 5 (b), of the Convention have not been met.

7. The Committee therefore decides:

(a) That the communication is inadmissible;

(b) That this decision shall be notified to the author of the communication and to the State party.

[Done in French (original version), and translated into English, Spanish and Russian.]

3. Communication No. 47/1996




Decision on admissibility


The facts as submitted by the author


3.2 The author asks the Committee to request Canada not to send him back to Sri Lanka. He argues that there is a consistent pattern of gross, flagrant or mass violations of human rights in Sri Lanka.


State party’s observations on the admissibility of the communication




(represented by counsel)



Decision on admissibility


Issues and proceedings before the Committee

5. Communication No. 52/1996

State party: France

Date of communication: 20 June 1996



Decision on admissibility



The complaint


Comments of the State party on the admissibility of the communication

Comments of the author

Considerations of the Committee


6. Communication No. 58/1996

(represented by counsel)



Decision on admissibility


The facts


Issues and proceedings before the Committee





7. Communication No. 64/1997

(represented by counsel)

State party: Sweden

Date of communication: 14 October 1996



Decision on admissibility

(a) That the communication is inadmissible;






Annex XI

Amended rules of procedure










Annex XII

List of documents for general distribution issued for the Committee during the reporting period


A. Nineteenth session
CAT/C/32/Add.2 Initial report of Cuba
CAT/C/33/Add.1 Second periodic report of Cyprus
CAT/C/34/Add.5 Third periodic report of Argentina
CAT/C/34/Add.6 Third periodic report of Switzerland
CAT/C/34/Add.7 Third periodic report of Spain
CAT/C/41 Provisional agenda and annotations
CAT/C/SR.299-317/Add.1 Summary records of the nineteenth session of the Committee


B. Twentieth session

©1996-2001
Office of the United Nations High Commissioner for Human Rights
Geneva, Switzerland