COMMISSION HEARS FROM SPECIAL RAPPORTEURS ON INDEPENDENCE OF JUDICIARY, TORTURE AND ARBITRARY EXECUTIONS

Commission on Human Rights
MORNING

4 April 2005


Minute of Silence Observed for Death of Pope John Paul II


The Commission on Human Rights this morning continued its consideration of civil and political rights, hearing presentations by the Special Rapporteurs on the independence of judges and lawyers; torture and other cruel, inhuman or degrading treatment or punishment; and extrajudicial, summary or arbitrary executions.

The Commission observed a minute of silence for the death of Pope John Paul II. Making statements in tribute to the Pope were Commission Chairperson Makarim Wibisono, and United Nations High Commissioner for Human Rights Louise Arbour, as well as the Holy See and Poland.

Leandro Despouy, the Special Rapporteur on the independence of judges and lawyers, addressed issues related to respect for human rights in the fight against terrorism, the situation of justice and transition, and his 2004 country visits to Kazakhstan, Brazil and Ecuador. Regretting that it had still not been possible for him to visit the detention centres at Guantanamo Bay, Cuba, and elsewhere, he noted the United States Supreme Court’s decision to extend habeas corpus protection to detainees.

Responding as a concerned country, Kazakhstan said the report of Mr. Despouy had been balanced, and the recommendations had been carefully studied. The judiciary was separated from the political sphere, and the executive did not intervene in the affairs of the judiciary. The Supreme and local courts had been made open to all.

Brazil said the basic objectives of judicial reform in Brazil had been to broaden access to juridical services, and to improve those services. In addition to making the justice system more expeditious, the reforms sought to confer greater effectiveness to the decisions of lower courts, to simplify the system of appeals and resources, and to allow a faster solution of conflicts.
Ecuador, also speaking as a concerned country, said that independence and modernisation of the judiciary had been achieved, and that no effort had been spared to clarify acts of violence committed against members of the judiciary, and to punish those responsible. The State was willing to make progress in the context of national and international law, and to reach consensus on independent and impartial courts of justice.

Manfred Nowak, the Special Rapporteur on torture, reiterated the absolute nature of the prohibition on torture, and said the obligation to prevent torture necessarily included the enactment of measures to stop the trade in instruments that could easily be used to inflict torture and ill-treatment. Concerning his country visit to Georgia, he said the Government was committed and was making efforts to tackle corruption, to reform the law enforcement and criminal justice system, to strengthen the rule of law and to combat torture. At the same time, he concluded that torture and ill treatment by officials still existed in Georgia.

Responding, as a concerned country, Georgia recalled that just one year ago, the people of Georgia had said "no" to a collapsing, incompetent and corrupt government, a ruined economy and a hopeless future, and had united behind the universal principles of freedom, democracy, human rights and democratic governance. The country was working hard to eliminate some of the worst vestiges of the past and was determined to demonstrate its commitment to offering the highest moral standards in the protection and promotion of human rights.

Philip Alston, Special Rapporteur on extrajudicial, summary or arbitrary executions, said the large number of civilians and persons "hors de combat" who were being killed in such situations were a central concern of his mandate. The Commission must reject unequivocally the killings of innocent civilians and non-combatants by no matter whom and in no matter what circumstances. He also reported on his country visit to Sudan.

Responding as a concerned country, Sudan said the Government had the responsibility for establishing peace and freedom, and remained responsible for asserting these in Darfur. The violations and horrors that had taken place in that province were due to those who had taken up arms. The Government had redoubled its efforts to re-establish law and order in Darfur.

Also this morning, the Special Secretary of the Presidency on Policies for Racial Equality of Brazil addressed the Commission. Mathilde Ribeiro noted that the federal government had decided to consecrate 2005 as the national year for the promotion of racial equality. She stressed that the complexity and magnitude of social discrimination required a head-on confrontation with various forms of inequality. A Member of the German Bundestag and Chairperson of its Committee on Human Rights and Humanitarian Aid took the floor under the general debate on civil and political rights.

Participating in the interactive dialogues with the various Special Rapporteurs of the Commission this morning were the Representatives of Guatemala, Argentina, Costa Rica, Cuba, Hungary, Luxembourg, Belarus, Sri Lanka, Canada, Peru, Switzerland, Norway, Mexico, and New Zealand.

The Commission will meet at 3 p.m. this afternoon to hear presentations by the Special Rapporteur on freedom of religion or belief and the Chairpersons of the Working Groups on arbitrary detention and on enforced or involuntary disappearances, and to continue its general debate on civil and political rights.

Tributes to Pope John Paul II

MAKARIM WIBISONO, Chairperson of the Commission on Human Rights, said that all had been saddened by the passing of Pope John Paul II, who had been one of the most prominent spiritual leaders of the day. The Pope had been a man of untiring commitment to the defense of human dignity, fundamental freedoms and social justice, an advocate for peace in all regions. His message and work had touched the life of all, particularly the most vulnerable. The Commission expressed its condolences to the Holy See, and to the Pope's home country, Poland.

The Commission then observed a minute of silence.

SILVANO M. TOMASI (Holy See), said the delegation of the Holy See appreciated the Commission's gesture of solidarity and respect. Pope John Paul II had stood for the values of human dignity, peace and freedom. To the family of nations, most of whom he had visited in a pilgrim of peace, he had brought the message of coexistence and opened the path of dialogue. The Pope would be remembered as a man who had opened new horizons for both the church and history. His legacy would be one of positive accomplishment, and would serve as an indication of a future path for all.

ZDZISLAW RAPACKI (Poland) said the death of Pope John Paul II constituted a loss, not just for the Polish people, but also for the entire community of peoples and nations. The Holy Father had been an exceptional person -- one to be ranked among the most important architects of the modern world. His aim had been to make wisdom, justice and good prevail, and his strength of faith, energy and devotion had been sources of common hope. That hope had come into being as the Iron Curtain had retreated into memory and democracies had emerged. John Paul II's strength, courage and untiring call for respect of human rights, freedom, equality, brotherhood and dignity had had an enormous impact on the course of history. John Paul II had been a European, a citizen of the world and a pilgrim of peace. His perseverance and openness of mind had enabled new dimensions for dialogue between people, societies and religions. He had been the first Pope in history to cross the door of both a synagogue and a mosque; he had transformed rivalry into a constructive exchange of ideas.

LOUISE HARBOUR, High Commissioner for Human Rights, said the depth of feeling and emotion triggered across the world by the death of His Holiness Pope John Paul II was more than an expression of grief for the passing of a historic figure. He had touched many with his tireless work to touch many across faiths and cultures. He had denounced tyranny wherever it sprang from. There was hope that his tireless quest for peace would be remembered and would be an inspiration for all in the future.

Documents on Civil and Political Rights

Under its agenda item on civil and political rights, the Commission has before it a number of documents.

There is the report of the former Special Rapporteur on the question of torture, Theo van Boven, (E/CN.4/2005/62), which summarizes the activities of the Special Rapporteur in 2004 since the submission of his interim report to the General Assembly and includes information on his findings on the situation of trade in and the production of equipment which is specifically designed to inflict torture or other cruel, inhuman or degrading treatment, its origin, destination and forms. Among other things, the Special Rapporteur calls upon States and, where appropriate, competent review and monitoring mechanisms to designate and prohibit the manufacture, transfer and use of certain forms of equipment "specifically designed for" or which "has no or virtually no, practical use other than for the purpose of" torture, whose use is inherently cruel, inhuman or degrading; to monitor research and development of security and law enforcement technologies; and to introduce legislation to control and monitor the activities of private providers of military, security and police services to ensure that they do not facilitate or perpetrate torture.

The first addendum to the report (Add.1) contains the summary of communications sent by the Special Rapporteur from 16 December 2003 to 30 November 2004, and the replies received thereto from Governments by 15 December 2004, as well as a number of country-specific observations.

The second addendum (Add.2) provides a summary of the information provided by Governments and non-governmental organizations on the implementation of recommendations of the Special Rapporteur following country visits to Azerbaijan, Chile, Mexico, the Russian Federation, Spain, Turkey and Uzbekistan.

The third addendum to the report (Add.3) is a preliminary note by the new Special Rapporteur on torture, Manfred Nowak, on his mission to Georgia in February 2005, which included the territories of Abkhazia and South Ossetia. The Special Rapporteur noted the enormous and rapid change the country was experiencing following the "Rose Revolution" in late 2003, and credited those who assumed leadership on the platform of human rights and democratic principles. Based on his meetings he concludes that torture and ill-treatment by law enforcement officials still exist in Georgia. He recommends, among other things, that all allegations of torture and ill-treatment be promptly and thoroughly investigated; that non-violent offenders be removed from confinement in pre-trial detention facilities, subject to non-custodial measures; and that all investigative enforcement bodies establish procedures for internal monitoring and disciplining of the behaviour of their agents, with a view to eliminating practices of torture and ill-treatment.

There is also the report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, (E/CN.4/2005/60). The report focuses on two topical issues: the impact of the fight against terrorism on human rights, and the administration of justice in a period of transition. On this first theme, the Special Rapporteur examines certain recent worrying developments and shows how often the right to a fair trial by an independent and impartial court of law may be affected. He recalls the rules and principles of international law that should guide States when facing crisis situations and terrorist violence. He proposes that a study be carried out on the compatibility with the rules of international law of the laws and other measures taken by States in order to combat terrorism or preserve national security. The Special Rapporteur gives a brief overview of justice in a period of transition. He proposes that the Commission look further into the question so as rapidly to make available to States in transition the tools and references being developed to help them to respond to the challenges they face concerning justice, the fight against impunity and the right of victims to the truth, reparation and compensation.

The first addendum to the report (Add.1) contains summaries of the urgent appeals and allegations transmitted by the Special Rapporteur to governmental authorities between 1 January and 31 December 2004 and of the press releases issued during that same period. It also contains summaries of all replies received from the States concerned by 31 December 2004 as well as two tables of statistical data for an overview of the extent and nature of the problems faced by the judiciary worldwide.

The report's second addendum (Add.2) contains information on the Special Rapporteur's mission to Kazakhstan in June 2004. It provides a picture of institutional and legal developments that have affected the judiciary since 1991 and highlights crucial steps, such as a December 2003 moratorium on the death penalty. It also shows that the judiciary remains, both institutionally and in practice, highly dependent upon the will of the executive and the economically powerful. Judicial corruption remains a major source of concern and a real challenge that has to be addressed urgently and with resolve. Another crucial aspect relates to improving the level of legal education and training so as to raise the professionalism of both judges and lawyers. While including criticisms, the report reflects the Special Rapporteur's conviction that Kazakhstan is in a privileged position to perform swift and positive institutional changes, especially with a view to removing remaining obstacles affecting the independence of its judiciary.

The third addendum (Add.3) concerns the Special Rapporteur's mission to Brazil on October 2004. The report identifies the system's main shortcomings as follows: problems with access to justice, its slowness and notorious delays, the fact that there are very few women or people of African descent or indigenous origin in top positions in the judiciary, a tendency towards nepotism and the non-use of competitive examinations to appoint judicial staff. The situation is worse for particularly vulnerable groups such as children, young people, indigenous people, homosexuals, transvestites, the Quilombola (descendants of slaves), people of African descent and the sick. The problem also affects social movements such as landless workers or environmentalists, who are doubly victimized by a judicial system that reproduces in the administration of justice the discrimination they already suffer in society. A country in which over half the population (70 million people) lives below the poverty line and in which there are glaring inequalities needs the Office of the Public Defender to be more dynamic than the rather limited, though commendable, present one.

The fourth addendum (Add.4) is a preliminary report of the Special Rapporteur on his mission to Ecuador in March 2005. The purpose of the visit was to study the situation with regard to the country's highest courts, since recent decisions by the National Congress, involving the removal of judges and the appointment of their successors, may have violated the constitutional order and the independence of the judiciary, and may also have breached Ecuador's international commitments in this area. The Special Rapporteur believes that, in keeping with United Nations standards, the country should immediately arrive at a formula to govern the appointment of a Supreme Court which will, among other things, include the independence of judges, a system for the election of judges which will guarantee their suitability and probity, and a machinery to ensure transparency in the selection of judges.

There is also the report of the Special Rapporteur on extra-judicial, summary or arbitrary executions, Philip Alston (E/CN.4/2005/7), which begins with an outline of the Special Rapporteur's terms of reference, legal framework, and methods of work. The analytical part of the report focuses in depth on a narrow range of issues, with an overall emphasis on accountability. The four principal topics addressed are: genocide and crimes against humanity; violations of the right to life in armed conflict and internal strife; capital punishment; and violations of the right to life by non-State actors. The report concludes with a succinct set of conclusions and recommendations. The Special Rapporteur calls on permanent members of the Security Council to pledge themselves not to use the veto in cases involving genocide and large-scale human rights abuses. He also recommends, among other things, that the Commission reject unequivocally the intentional killing of all civilians and non-combatants, no matter by whom and no matter what the circumstances.

The first addendum to the report of the Special Rapporteur (Add.1) contains a summary of cases transmitted to and received from 67 Governments.

The second addendum to the report (Add.2) contains information on the mission of the former Special Rapporteur on extra-judicial, summary or arbitrary executions, Asma Jahangir, to the Sudan in June 2004. The Special Rapporteur finds that it is beyond doubt that the Government of the Sudan is responsible for extra-judicial and summary executions of large numbers of people over the last several months in the Darfur region, as well as in the Shilook Kingdom in Upper Nile State, though on a lesser scale. In the Sudan, the Special Rapporteur found that a number of individuals had been sentenced to death for crimes committed when they were under the age of 18, which is a clear violation of international standards as well as national legislation. With regard to the future, the Special Rapporteur recommends that the immediate priority be to ensure effective humanitarian assistance and human rights protection to the vulnerable populations in Darfur as well as in the South, in order to protect the right to life of the people of the Sudan and that all attacks against the civilian population must stop. The two rebel movements in Darfur should also guarantee safe humanitarian access and the United Nations must continue to highlight the need to protect the human rights of civilians.

Presentation by Special Rapporteur on Independence of Judges and Lawyers

LEANDRO DESPOUY, Special Rapporteur on the independence of judges and lawyers, noted that the international community had rejected terrorism, and had done the same regarding violations of human rights in the name of fighting terrorism. Three and a half years after 11 September 2001, his current report looked into the treatment of detainees by the United States Government at Guantanamo Bay, Cuba. In conjunction with the Independent Expert on protection of human rights and fundamental freedoms in countering terrorism, he had examined the situation with regard to the presumption of innocence, the right to defense and other threats to impartial judicial processes. The report also noted that the United States Supreme Court had extended the protection of habeas corpus to detainees.

However, Mr. Despouy noted that the requested visit to four places of detention had not taken place, in spite of the United States' willingness to undertake a dialogue with the Commission's special mechanisms. Specific circumstances, laws and other measures could compromise the respect for detainees' integrity, he continued, and their right to be tried before an independent court. Transformations in criminal legislation, changes to the laws of habeas corpus and guarantees for fair trials, and changes in the competence of courts to try individuals not only posed the threat of transgressing international standards for human rights, but also had the potential to provoke regression in the principle of legality and changes to the state of law. The Commission must do more to ensure respect for the independence of the judiciary, and to reaffirm the right of all to physical and moral integrity, and to an independent trial.

Regarding the issue of justice and transition, he said the immense experience of the international community, and the United Nations, must be applied to situations of transition, which were characterized by the need to introduce sizeable institutional changes. Also of particular concern were three phenomena that seemed to be on the rise: the killing of judges and advocates, threats against their integrity, and interference by the executive with regard to the administration of justice. Such actions were increasingly frequent and severe. He also wished to note that, in December 2004, he had taken urgent action concerning a judicial action in Italy, which had come before the President. Expressing his intention to refer to it in a later addendum to the report, he said that if the action was ratified and implemented, it would represent a serious threat to the independence of the judiciary, particularly in high profile trials. He welcomed the President's decision not to ratify the action, but to reopen the issue so that there would be no negative future impact on the independence of the judiciary.

On his country visits, Mr. Despouy noted that Kazakhstan still had to implement structural changes in its executive, and to redress the presence of the prosecutor during certain parts of the trial process. These old practices must be overcome and cooperation and training of judges with the Office of the High Commissioner for Human Rights would help. On the situation in Brazil, he noted that his visit had coincided with the national debate on reforms to the justice system, which had finally been adopted after 12 years. The principle problems affecting the Brazilian system were tardiness in the judicial process, the low representation of women, indigenous people and people of African descent in the judiciary, and a tendency to nepotism. Most seriously, there was a lack of access to justice by large sectors of the population. The country needed an ombudsman to serve as a key public figure. Finally, regarding his visit to Ecuador, he said the objective had been to analyze the National Congress' decisions regarding the three highest courts. There was no proper selection process for judges which had led to social agitation in Ecuador. It was urgent to establish the full state of law and to redress the actions that had led to the current situation. The country must establish an independent Supreme Court of Justice, and the international community must require strict compliance with international standards for human rights concerned with independence of the judiciary.

Response from Concerned Countries

ZHOLYMBET N. BAISHEV (Kazakhstan), speaking as a concerned country, said the report of the Special Rapporteur was a balanced one. His visit to Kazakhstan had been welcomed by the Government and the authorities had carefully studied his recommendations. The country's judicial body was separated from the political sphere and the executive did not intervene in the affairs of the judiciary. The judiciary interpreted the laws freely without any interference from the other State powers. The rights of citizens in matters of the judiciary had been guaranteed by making that body independent. In addition, the role of lawyers had been strengthened in their activities in defending legal cases. The Supreme and local courts had been made open to all hearings. Internet services had been made available to the judiciary. Judges were the most highly paid professionals, similar to ministers, and they were appointed for life. Thus, judges could not be corrupted for financial benefits and were not dependent on the executive for their reappointment. The Government had improved prison conditions and raised the standards to an internationally accepted situation.

There was freedom of conscience for all people. The Constitution guaranteed the freedom of opinion and expression. There were a number of churches and mosques which people frequented freely. The Government was ready to cooperate and work with the High Commissioner for Human Rights, the Commission and its mechanisms.

SERGIO TAMM RENAULT, Secretary of Reform of the Ministry of Justice of Brazil, speaking as a concerned country, said as the Special Rapporteur had observed during his mission to Brazil, the independence of judges and lawyers was one of the main pillars of the Brazilian political system. Nonetheless, even before the Federal Constitution entered into force in 1988, there were already discussions on the reform of the Judiciary. The lateness in the delivery of justice, the obsolescence and the relative inefficiency of the system of justice were some problems pointed out which justified the need for reform. The basic objectives of the reform were broadening the access of the population to the jurisdictional services and improving such services to those who already had access. It was an important challenge to ensure full and prompt access as a means of guaranteeing the exercise of a fundamental right to everyone. On the other hand, the functioning of the judiciary system demanded improvements capable of making it apt to handle social needs.

The implementation of measures of modernisation of the management of the judiciary branch could bring important results for the improvement of the administration of justice. The incorporation of new technologies of information, the standardisation of procedures, the simplification of operational systems, the training of staff and the de-bureaucratisation of the administrative apparatus were examples of initiatives that could make the judiciary more efficient and agile without legislative changes. Besides making justice more expedite, the reforms sought to confer greater effectiveness to the decisions of lower courts, to simplify the system of appeals and resources, and to allow a faster solution of conflicts.

During his mission to Brazil, the Special Rapporteur had followed the national debate regarding the reform of the system of justice. Most of the innovations already underway coincided with the conclusions and recommendations contained in his report. The Brazilian Government considered that the conditions for further reform were in place, specially regarding modernisation of management of the courts and changes in procedural legislation. The problems of lateness and low effectiveness of judicial decisions delayed national development and sometimes generated impunity. The construction of a new justice system in Brazil was a necessary condition for the perfectioning of the institution and the consolidation of democracy and human rights. The Minister hoped that the constructive, fruitful and frank dialogue with the Special Rapporteur and with the Commission would continue in order to achieve these essential objectives.

LETICIA BAQUERIZO GUZMAN (Ecuador) speaking as a concerned country, said Ecuador's open-ended invitation to all special procedures was still in effect, and the contribution of these visits to the implementation of international commitments was of great importance. The visit of Mr. Despouy had been welcomed. During the visit he had had the support of the Government and had met with senior authorities of the executive field, including members of parliament and magistrates from the Court of Justice. He had also had a heavily-packed agenda with meetings of members of civil society in a spirit of transparency. This had demonstrated the high level of cooperation of the Government in the context of human rights and the decision to commit to make the judiciary viable and free of interests.

Ecuador had adopted the fundamental principles guiding the United Nations. The Head of the State had shown his willingness to contribute enthusiastically to refining democracy in the country, as had the Ecuadorian people. All bodies and powers of the State should work together to this end. Ecuador was not falling short in its efforts to build national consensus around democracy, and the Government showed unlimited respect for all fundamental freedoms and the rule of law. It would examine the guidelines and recommendations in the report in order to implement them as soon as possible.

The President of Ecuador had carried out his aim to establish independence and modernisation of the judiciary in order to overcome problems and to make the judiciary a yardstick for the establishment of the democratic system. Among the changes made for the independence of the judiciary, work had been carried out to de-politicise the system. A reform bill on an Organic Law for the Functioning of the Judiciary was aimed to reform justice so that it reinforced the four democratic principles, including full respect for the human rights of the individual. Legal reform would be ratified by popular consultation. The State spared no effort to clarify acts of violence committed against members of the judiciary and to punish those responsible. The State was willing to make progress in the context of national and international law and to reach consensus allowing the country to have independent and impartial courts of justice, but it was up to the people, as the first and final beneficiaries, to find ways and means of improving the situation.

Interactive Dialogue

JORGE CABRERA HURTATE (Guatemala) said the judiciary of Guatemala was grateful for the Special Rapporteur's report. Progress had been made in the national judiciary, he added, which had strengthened the rule of law and the democratic process. Community courts had been created in five of the principle indigenous areas of the country. Glossaries containing Mayan legal terms had also been developed in an attempt to promote multi-cultural justice. Mayan defense bodies had also been established, which had given considerable impetus to alternative justice systems. The country had been able to decongest courts, including through use of customary law. Two mobile courts had also been created in order to bring the justice system closer to individuals living in extreme poverty. The training of judges, justice auxiliaries and court clerks was being carried out by a special school, and women's participation rates were the highest in the area of justice systems.

SERGIO CERDA (Argentina) said paragraph 66 of the report had done much to establish the fact that vulnerable groups existed, including those living in extreme poverty, and that additional attention must be paid to them. How did the Special Rapporteur envisage undertaking such a task? He also recalled that a specific draft resolution was being prepared on the right to truth, and asked the Special Rapporteur to elaborate upon his recommendations in that respect.
LUIS VARELA QUIROS (Costa Rica) acknowledged that periods of transition could destabilize the justice process, and noted that particular problems often came in the wake of peace negotiations. The Special Rapporteur had cited the need to struggle against impunity and to re-establish the truth as the most urgent problems to be faced. He had also stressed that all members of society required attention to prevent future conflicts. The speaker also noted that the Special Rapporteur had indicated that the capacities of the United Nations remained inefficient in these periods of transition, and had suggested that lists of existing and needed tools be created. How did the Special Rapporteur see the role of the independence of the judiciary in connection with these initiatives?

RODOLFO REYES RODRIGUEZ (Cuba) regretted that the United States Government's delaying tactics in its attempt to evade its obligations to cooperate with the Commission's special thematic mechanisms had made it impossible for the Special Rapporteur to visit Guantanamo Bay and other detention centres. The Special Rapporteur should continue to insist upon his request, which would be most valuable in avoiding future incidents of actions such as had been seen in the past year. The Special Rapporteur should submit a proposal for basic guidelines and principles to avoid the future emergence of practices such as the creation of ad hoc military tribunals to try so-called illegal combatants, and other interpretations that had been created by the United States administration, and which remained illegal according to the entire framework of international human rights law and international humanitarian law, including the Geneva Conventions.

ORSOLYA TOTH (Hungary) asked if the Special Rapporteur would be ready to present his full report on his visit to Ecuador to the next session of the General Assembly. He also asked for the Special Rapporteur's views on how to improve the flow of information and internal interactions among the special mechanisms of the Commission on Human Rights, and the Office of the High Commissioner for Human Rights.

DANIELA GREGR (Luxembourg) noted that the Special Rapporteur had examined the issue of respect for human rights within the framework of combating terrorism, and had cited the doctrine of enemy combatants as one of his principal concerns. What were the principal challenges perceived by the Special Rapporteur for the legal framework in that context, and how did they affect the independence of judges? On the issue of justice and transition, the Special Rapporteur was asked to indicate examples in which the balance between safeguarding social peace and re-establishment of truth about human rights violations had been maintained, particularly in reference to amnesties. What were lessons learned by judges in previous situations?

ANDREI MOLCHAN (Belarus) asked to what extent the decision taken by the United States Supreme Court on extension of habeas corpus had made it possible to improve the situation of detainees at Guantanamo Bay, Cuba.

LEANDRO DESPOUY, Special Rapporteur on the independence of judges and lawyers, welcomed the measures adopted by Kazakhstan following his visit and his recommendations in which he had expressed concerns with regard to the legal defence system. Concerning Ecuador, he also welcomed the measures taken and the efforts made by that country, particularly in strengthening access to justice by all citizens. The President of Ecuador had also given assurances that the judiciary would remain independent. Argentina had raised the issue of extreme poverty, in which people who were deprived of their economic and social rights were excluded from access to justice. The lack of financial availability had impeded people from accessing justice. The right to truth had been raised and the issue of protection of justice in time of crisis had also been invoked.

Other countries that intervened had asked questions on the independence of the judiciary in matters concerning terrorists. There were some errors committed in that area. The suspected terrorists had the right to know the charges against them; however, they were kept in prisons without knowing the reasons for their detention. The measures taken against terrorism had affected other rights such as the right to assembly and freedom of movement. The situation of transition in certain countries might affect the judicial system. However, the transition process should take international parameters and respect international norms. The transition from dictatorship to democracy posed some difficulties to the judicial system and it might take some time before the judicial system would adapt itself to the transition.

Intervention by Senior Official from Brazil

MATILDE RIBEIRO, Special Secretary on Policies for Racial Equality of Brazil, noted that there were 80 million Brazilian citizens of African descent, who comprised 46.2 per cent of the national population. Noting that racism in Brazil represented a historic construction that had been linked to the institution of slavery, she said that the Government had developed a national policy for the promotion of racial equality. Her secretariat dealt with problems related to instances of racism, and addressed the educational, cultural, health and management training aspects of racial equality issues. Among other initiatives, the Government had also established a National Council for the Promotion of Racial Equality, and an Intergovernmental Forum for the Promotion of Racial Equality. The federal government had also decided to consecrate 2005 as the national year for the promotion of racial equality.

Within the context of the "Santiago plus 5" event, which proposed to analyze governmental and non-governmental action to counter racism and racial discrimination in the Americas, she said that affirmative policies on ethnic, racial and gender equality were being undertaken, including the monitoring of countries, including in terms of evaluating the implementation of the Durban commitments. Brazil also intended to present a draft resolution on the incompatibility of democracy and racism during the present session of the Commission. That draft would draw attention to how institutions of democratic society could be misused to bring to power political parties that promoted racist platforms. She also noted that Brazil had been working to establish a Special Rapporteur on the rights of people of African descent within the Organization of American States, which would help to develop regional legal instruments to address that issue. It was to be hoped that that Special Rapporteur could work with the relevant special mechanisms of the Commission on Human Rights.

The 1988 Federal Constitution had set forth the principle that all were equal before law, had consecrated the principle of racial equality, had prohibited ethnic and racial discrimination, and had identified racism as an imprescriptible crime prohibited before the law, she recalled. The President had also signed a decree in 2003, which had acknowledged the competence of the Committee on the Elimination of Racial Discrimination to receive and examine complaints of racism and discrimination in Brazil. In conclusion, she wished to highlight the fact that the complexity and magnitude of social discrimination required a head-on confrontation with various forms of inequality. Racial inequality constituted an impediment to the development of nations and to the exercise of democratic rights. The international community must work to develop integrated action, and to include players in both international and national bodies. Only through including the concepts of gender and race would all be enabled to enjoy their civil and political rights. There was an essential link among the various sectors of civil and political life, which should work to build an agenda for social and racial justice.

Statement Under General Debate on Civil and Political Rights

REINER FUNKE, Member of the German Bundestag and Chairperson of its Committee on Human Rights and Humanitarian Aid, said regarding the issue of torture, Germany was firmly convinced that the prohibition of torture, inhuman and degrading treatment was absolute and applied in all conceivable circumstances. There was no doubt that this was the legal situation; nevertheless, tens of thousands of torture cases came to light every year. Since many cases were never reported, the actual number was far higher. Every effort should therefore continue to be made to combat torture. This included ensuring that there was no doubt that torture was prohibited in all circumstances, and that there were no circumstances which justified recourse to torture. It was also important in this context that the Optional Protocol to the Convention against Torture be ratified quickly and by as many countries as possible.

Another very worrying phenomenon, to which insufficient attention had thus far been paid in the work of the Commission, was the recent rise in anti-Semitism. The United Nations should draw inspiration from the Berlin Conference on Anti-Semitism in April 2004, where the States of the Organization for Security and Cooperation in Europe had agreed on many important measures to combat anti-Semitism in the region. Adopting similar measures would also do the United Nations credit since it was unfortunately a global and not a regional problem.

Regarding the "Dalits", or people who suffered massive discrimination because of their occupation or descent, it was a welcome fact that greater efforts were being made in the countries concerned to improve the legal protection of these people and also to counter discrimination against them in many ways. The situation of Dalits in many towns and cities had generally improved. However, in the countryside, these people still suffered widespread and systematic discrimination. All countries concerned should therefore take all necessary measures to continue the battle against the discrimination of Dalits and ensure effective and consistent progress in combating a human rights violation that had persisted for far too long.

Presentation by Special Rapporteur on Torture

MANFRED NOWAK, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said most of the issues that he would present today actually reflected the last report of his predecessor, Theo van Boven. The obligation to prevent torture in the Convention against Torture necessarily included the enactment of measures to stop the trade in instruments that could easily be used to inflict torture and ill-treatment. Among valuable recommendations to States were the prohibition of the manufacture, transfer and use of certain forms of equipment specifically designed for or which had no or virtually no practical use other than for the purpose of torture, the introduction of strict controls on the export of other security and law enforcement equipment and to consider the development of an international regulatory mechanism.

Torture was one of the most serious violations of human rights as it constituted a direct attack on the core of the human personality and its dignity. As a consequence, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment constituted one of the few human rights which were absolute under international law, and therefore permitted no exception. As such, freedom from torture and other forms of ill-treatment constituted a peremptory norm of international law and a non-derogable right which could not be suspended under any circumstance, including armed conflict, situations of public emergency or in the context of counter-terrorism measures. Governments which practised, condoned or tolerated torture or ill-treatment in fact had been well aware that they were violating a binding universal norm which had been firmly established in both treaty and customary law. There was deep concern about any attempts to circumvent the absolute nature of the prohibition of torture and other forms of ill-treatment in the name of countering terrorism. In its resolution on torture, the Commission should, in as strong terms as possible, reconfirm that all attempts at undermining the absolute and non-derogable nature of the prohibition of torture and other forms of ill-treatment were illegal under international law.

Country visits were an important tool for Special Rapporteurs to carry out their mandates effectively, and the Special Rapporteur was grateful to the Governments of Georgia, China, Nepal and Mongolia, Georgia which he had visited and the other three for their recent invitations for a country visit. The visit to Georgia took place without any restrictions. The Government was committed and was making efforts to tackle corruption, to reform the law enforcement and criminal justice system, to strengthen the rule of law and to combat torture. At the same time, the Special Rapporteur had concluded that torture and ill-treatment by law officials still existed in Georgia. In addition, the conditions of detention were deplorable. Impunity for acts of torture should end and any public official involved in torture practices should be brought to justice.

The adoption of the Optional Protocol to the Convention against Torture would be a particularly valuable development. A preventive mechanism could be far more effective in reducing ill-treatment and improving conditions of detention than the traditional reactive mechanisms, and consideration should be given by Governments on how to organise such a mechanism, and how to integrate it into existing national human rights institutions. If the Government of a country in which no national human rights institution existed yet, was in the process of ratifying the Optional Protocol, it could use the opportunity to establish such a national institution. In future activities, the Special Rapporteur would attach particular importance to promoting the ratification of the Optional Protocol and the establishment of a truly independent domestic visiting mechanism.

Response by Concerned Country

ALEXANDER CHIKVAIDZE (Georgia) expressed appreciation to the Special Rapporteur Manfred Nowak for visiting Georgia. No country was beyond reproach. Certainly not one that for centuries had been deprived of the historic luxury of a democratic tradition and institutions, and had endured decades of totalitarian ideology and practice. Just one year ago, the people of Georgia had said "no" to a collapsing, incompetent and corrupt Government, a ruined economy and a hopeless future, and had united behind the universal principles of freedom, democracy, human rights and democratic governance. During the past year, the reform priorities of the new Government had been successful in stopping the country's slide into an abyss and had marked the first serious gain returning the nation to a path of development. Most importantly, rule of law had been re-established and a devastating blow had been dealt to the cancer of corruption that had paralysed the country. The Georgian Government had targeted impunity as a concept and as a practice for eradication.

The Government's expectations in inviting the Special Rapporteur to visit the country were fully realized. He had undertaken a thorough assessment of the situation throughout the territory of the country, including the separatist regions of Abkhazia and Samachablo, the latter most often referred to in the international community by its old Soviet designation of South Ossetia. As a result of his visit, the Special Rapporteur had put forth a number of far-reaching recommendations, which as a package would seriously improve the situation throughout the country. Georgia was working hard to eliminate some of the worst vestiges of the past and was grateful to international organizations and bodies at large, and to the Commission in particular, for its assistance. Georgia was determined to demonstrate its commitment to offering the highest moral standards in the protection and promotion of human rights.

Interactive Dialogue

SERGIO CERDA (Argentina) asked what would be the follow-up given to the issue of instruments that could be used for torture. It was hoped that the Special Rapporteur would follow up on the task started by his predecessor. Regarding the Optional Protocol, there was a particular interest in whether this related to Federal States, and the implementation of it. Could this issue be analysed by the Special Rapporteur. There had already been some activity by non-governmental organizations on a subject which affected all international human rights instruments as regarding Federal States and provisions for internal application.

SUGEESHWARA GUNARATNA (Sri Lanka) said in previous years as in this one, the addendum to the report usually came out very late, and this negatively affected the work of the delegations; a change in this would make a qualitative difference. What criteria did the Special Rapporteur intend to use when screening communications before transmitting them to Governments for replies.

PAUL MEYER (Canada) asked what action taken by the international community had proven the most effective in inciting Governments to implement a policy against torture, and what policies implemented by national Governments had helped to get rid of torture when this had been common. What key indicators should judges be aware of when reviewing evidence that could alert them to use of torture or cruel and unusual punishment.

ALEJANDRO NEYRA SANCHEZ (Peru) said regarding equipment for torture, it was deplored that there were many companies fabricating this equipment, particularly in Latin America. Concerning the proposal of the Special Rapporteur under paragraph 37(f) regarding a mechanism to regulate at the international level this equipment, he asked whether there was any other regional experience the Special Rapporteur was aware of and whether this could converge into an instrument as suggested here. Had he considered following-up the work of Mr van Boven in this respect?

DANIELA GREGR (Luxembourg) said in the past, the proper follow-up of activities and recommendations of the Special Rapporteur on Torture had been discussed, and all agreed on the importance of this issue. How could this follow-up be improved, in particular with regard to those countries which did not respond to requests for information. Regarding the production and trade in devices for torture, it was now up to Governments to implement these recommendations made by Mr van Boven, did the new Special Rapporteur have any new suggestions?

JEAN-DANIEL VIGNY (Switzerland) said the fight against torture and inhuman and degrading treatment was very important, and the mandate was essential. Regarding the transfer of torture equipment, if not vigorously controlled and monitored, equipment risked being used for torture. Private security companies where ex-military officers could encourage the use of such treatment were also a problem. Regarding the prohibition of torture and the practices of non-refoulement, would the Special Rapporteur examine the link between them?

RODOLFO REYES RODRIGUEZ (Cuba) said this was a very important mandate, which was dangerous in its nature, in particular in the context of the hegemonistic power which did not respect human rights and which had worked to be excluded from the Convention against Torture, and was working to redesign the very scope of the definition of torture. This mandate was therefore particularly important at this moment in time. Regarding the use of instruments particularly designed for torture and inflicting suffering, an instrument with guidelines or a framework should be proposed making it clear that certain principles should be complied with. Regarding the issue of the visit to the International Centre of Torture that was the Guantanamo base, there should be an end to the justifications made by the United States; the Special Rapporteur should be able to visit the United States and Guantanamo, and should be able to submit a report next year on the considerable allegations of torture and cruel and degrading treatment submitted by those released from the Guantanamo and Abu Ghraib centres

ANDREI MOLCHAN (Belarus) said the attention of the Member States should be drawn to the absence of Belarus in the list of countries in the report. The concern expressed by the Special Rapporteur regarding terrorism in Iraq and the situation in Guantanamo was interesting, and the level of cooperation expressed by the relevant countries in this respect should be further examined. Did the Special Rapporteur intend to investigate the whereabouts of those in Guantanamo and Abu Ghraib?

ANNE MERCHANT (Norway) asked if the Special Rapporteur planned to look more closely into the inter-sectional violence against women, in particular in the context of sexual violence and torture? Was cooperation with the Special Rapporteur on violence against women an option? What did the Special Rapporteur think could be done to improve States' responsiveness and follow-up to communications received from the special procedures of the Commission?

JOSE ANTONIO GUEVARA (Mexico) said in the last few days, the President of Mexico had signed the instrument ratifying the Optional Protocol against Torture. The Government was committed to the effective implementation of the Protocol and had scheduled several seminars in different parts of the country to discuss how to best carry out such visits. In this context, could the Special Rapporteur give some more information about the models he had found or the ideas he had in this field that could be helpful and would constitute good practice when implementing such mechanisms.

NICOLA HILL (New Zealand) said there was disappointment that so many urgent appeals from the Special Rapporteur were being gone ignored. Regarding the oral statement presenting the report by the Special Rapporteur, when he said that the principle of non-refoulement applied equally to torture and other ill treatment, could the Special Rapporteur clarify further what he meant.

MANFRED NOWAK, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, thanked the Government of Georgia inviting him to visit the country and for taking into consideration his recommendations. Argentina had raised the issue of the Optional Protocol to the Convention against Torture. He supported the idea of creating national mechanisms to carry out visits to all places of detention within a country. On the screening of allegations, he said whether the allegations were made by individuals, non-governmental organizations or other parties, a close examination was necessary. Every individual allegation was scrutinized and the accurateness of the case was examined before it was sent to the respective governments. Upon receiving the allegations, Government should also be able to investigate the cases and verify their correctness. The establishment of domestic procedures was essential for preventing torture, as commented by some States. With regard to non-refoulement, asked by Switzerland and New Zealand, he said that it was a traditional principle to prevent the use of torture in the country of refoulment. With regard to Guantanamo, he said the United States was requested to allow Commission mechanisms to visit Guantanamo and other detention centres, and it was hoped that the negotiations would soon be fruitful.

Presentation by Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions

PHILIP ALSTON, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, said situations of armed conflict and internal strife had grown significantly in recent years. The very large number of civilians and persons "hors de combat" who were being killed in such situations were a central concern of his mandate. Indeed, if such killings were outside the mandate its scope and its ability to respond to the key challenges confronting the Commission would be dramatically reduced. But international norms in that area continued to come under challenge. The first major challenge came in the form of practices to justify illegal executions. Thus, it was increasingly common to read arguments along the lines that "targeting and eliminating known terrorists was more efficient and cost fewer lives than waging conventional war". While such an approach was sometimes portrayed as a limited "exception" to international norms, it actually created the potential for an endless expansion of the relevant category to include any enemies of the State, social misfits, political opponents, or others. And it made a mockery of whatever accountability mechanisms might have otherwise constrained or exposed such illegal action under humanitarian or human rights law. In response, the Commission needed to reject unequivocally the killings of innocent civilians and non-combatants by no matter whom and in no matter what circumstances. That would include those struggling against foreign occupation, for whom an exception was sometimes claimed.

Issues involving the death penalty were inevitably contentious. It was surprising that in many countries information concerning the death penalty was cloaked in secrecy. No statistics were available as to executions, or as to the numbers or identities of those detained on death row, and little if any information was provided to those who were to be executed or to their families. Such secrecy was incompatible with human rights standards in various respects. It undermined many of the safeguards, which might operate to prevent errors or abuses, and to ensure fair and just procedures at all stages. It denied the human dignity of those sentenced, many of whom were still eligible to appeal, and it denied the rights of family members to know the fate of those closest relatives. For a Government to insist on a principled defence of the death penalty but to refuse to divulge to its own population the extent to which, and the reasons for which, it was being applied was unacceptable. No democratic choice to maintain the death penalty could have been made in those countries where the details remained shrouded in secrecy. The Commission should insist that every country that used capital punishment undertake full and accurate reporting of all instances thereof, and should publish a consolidated report prepared on at least an annual basis.

In June 2004, the Special Rapporteur on Genocide had visited Sudan and she had concluded that it was beyond doubt that the Government of the Sudan was responsible for extrajudicial and summary executions of large numbers of people and that the Government was largely responsible for the humanitarian disaster in Dafur. Because of the magnitude and gravity of that situation, and because of the inadequacy of previous responses, he joined with many other special procedures to issue a statement last month calling upon the United Nations to taken strong and effective action in that regard.

Response by Concerned Country

OMER DAHAB MOHAMED (Sudan) speaking as a concerned country, said the opinion expressed by the last Special Rapporteur in her report was shared by all of Sudan, which looked forward to an end to violence and a beginning of peace. It was the Government which had the responsibility for establishing peace and freedom, and it was responsible for asserting this in the Darfur province. Sudan was determined to reach a negotiated peaceful settlement within the African Community and through the Abuja talks once those who carried arms returned to the negotiation table. The violations and horrors that took place in Darfur were due to those who had taken up arms, and the Acting High Commissioner on Human Rights, Mr. Bertrand Ramcharan, had agreed on this.

The international community and the United Nations also agreed that violence should not be used to reach political goals. The Government had been working to lift all bureaucratic difficulties to ensure access of relief to Darfur. Lives had been lost in the process so far, and these actions had not been reflected sufficiently in the international media. The Government had redoubled its efforts to re-establish law and order in Darfur, sending policemen, additional judges, and had made changes in the legislation in order to halt impunity. In Sudan, the President could commute the sentence of capital punishment, and it was possible for the family of a victim to accept blood money, thus ensuring relief for the killer.

The system in Sudan was an ancient one, that could change, whilst cooperating with the international judiciary. The establishment of courts in Darfur was a sign of that flexibility. Armed conflicts systematically led to the violation of human rights, and this was an unfortunate fact, although much was being done in Sudan to end this. In Darfur, the rebels disguised themselves in military uniform in their attacks against civilians. Charges had been made against 60 people in one month only of dressing up as military forces, and this was being investigated and reported. The OHCHR should respond to this and recognise it to a greater extent. The allegations of marginalisation of the province were only a pretext for violence.

Interactive Dialogue

SERGIO CERDA (Argentina) said paragraph 86 of the report referred to the non-use of the veto on issues related to genocide during United Nations Security Council deliberations. How should respect for exclusion of the veto in instances of genocide be ensured? He also asked how the Special Rapporteur envisaged the issue of the right to truth in respect of his mandate.

RODOLFO REYES RODRIGUEZ (Cuba) said that the Special Rapporteur should study the question of the use of scorched earth policies against civilian populations. The United States seemed to have taken on for itself the right to execute people everywhere in the world in the framework of the fight against terror. The Special Rapporteur should examine that practice. He also raised the issue of summary killings and torture in the framework of private security agencies, and asked whether such violations could be considered under the existing system, or whether a separate category would have to be established for them.

JOHN VON KAUFMANN (Canada) welcomed the Special Rapporteur's support for the International Criminal Court, and for the application of the principle of accountability for Governments to prosecute those accused of war crimes and crimes against humanity. He asked for the Special Rapporteur's opinion on the Sudanese Government's capacity to prosecute those accused of war crimes fairly. Additionally, what would the Special Rapporteur recommend as necessary information to be included in a comprehensive report on the use of the death penalty in those States that retained the practice?

ANDREI MOLCHAN (Belarus) said his Government had not ignored any of the Special Rapporteur’s requests, and had provided detailed answers to all his questions. The Special Rapporteur had, however, sent 13 requests to the United States Government, either individually or in conjunction with other special procedures. No response had been received. How did the Special Rapporteur assess this type of "cooperation" from a Member State?

DANIELA GREGR (Luxembourg) asked for the Special Rapporteur's opinion on how to reinforce the complementarity between international human rights law and international humanitarian law.

JEAN-DANIEL VIGNY (Switzerland) asked about the lack of transparency on certain international positions on the death penalty. What could be the specific elements of an international strategy to promote transparency in respect of this issue? He also asked the Special Rapporteur's take on the high-level panel's recommendation that the veto not be used in instances of genocide.

ANNE MERCHANT (Norway) expressed concern about low response rates to the Special Rapporteur's questionnaires, and asked whether the steps taken by the Special Rapporteur in response to that low response rate had led to improvement in the situation. What should the Commission do to improve the situation?

JUAN PABLO VEGAS TORRES (Peru) asked how the Special Rapporteur would approach those countries, which had a lesser developed civil society. Like Norway, his delegation was also concerned about the position of non-State actors in respect of this issue.

NICOLA HILL (New Zealand) congratulated the Special Rapporteur on his thorough and useful report. All the questions that he had wished to ask had already been posed by other delegations
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