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COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF NICARAGUA
30 April 2009
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Committee against Torture
MORNING
30 April 2009
The Committee against Torture this morning began its consideration of the initial report of Nicaragua on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Carlos Robelo Raffone, Permanent Representative of Nicaragua to the United Nations Office at Geneva, observed that, despite the fact that Nicaragua was not a party to the Convention at that date, the prohibition against torture was already present in its Constitution, which also established the humanist nature of the penitentiary system, with a view to re-educating prisoners so that they could be reinserted into society. Moreover, the new Criminal Code, which had entered into force in July 2008, defined the crime of torture and provided that any person who submitted another to any type of physical or mental torture as part of a criminal investigation, or as a means of intimidation or other end, would face a sentence of 7 to 10 years imprisonment. It also set out similar penalties for public employees committing torture, who, in addition to penal sanctions, would be banned from public service for a number of years.
As part of the modernization of the legal system, Nicaragua had also set up a new Code of Criminal Procedure, which replaced the prior inquisitorial system with an adversarial system which was humanist in the treatment of the accused. In compliance with those principles, it set out that those charged or accused could not be subject to torture and other cruel, inhuman or degrading treatment or punishment. Similarly, in 2003 the National Assembly had adopted the Prison System and Enforcement of Sentences Act, which ensured that the national prison system was based on the recognition of the dignity of the human person and the respect for human rights. Mr. Robelo Raffone stressed that in no case would internees be subjected to torture and other cruel, inhuman or degrading treatment or punishment.
Serving as Rapporteur for the report of Nicaragua, Committee Expert Nora Sveaass applauded Nicaragua's ratification of the Optional Protocol to the Convention, and welcomed other progress made with regard to new legislation. She asked about the time frame for detainees to be informed of the reasons for their detention, and to enjoy other rights, such as access to a lawyer. Among concerns were reports that, despite a legal 3-month limit for such detentions, immigrants were regularly held in detention for longer in poor conditions. Of particular concern was violence against women and children, who were often maimed for life mentally and bodily after extreme violence by their own husbands, fathers or neighbours, and the increase in these incidents. There was also a prohibition against abortion in the Criminal Code, including in cases of rape, incest and presumed life threatening pregnancy. Not to speak of the victims, that law made the health workers involved participants in action that might constitute torture or cruel, inhuman and degrading punishment.
Luis Gallegos Chiriboga, the Committee Expert serving as Co-Rapporteur for the report, asked about specific details of investigations carried out following torture complaints and convictions obtained. The Human Rights Centre had informed the Committee that the National Police were abusers of human rights. Other concerns raised regarded systematic harassment and attacks against human rights defenders; overcrowding and poor conditions in custodial centres; and compensation for victims.
Other Committee Experts asked questions related to, among others, reports of incommunicado detentions; severe punishments for drug users; whether deportation orders, which were subject only to administrative procedures, provided sufficient humanitarian guarantees; the situation of minors in detention; information on how judges were regulated; whether the Government had implemented the recommendation to establish a register for detainees; reasons for increases in imprisonment of women and statistics on the number of female prisoners; and statistics on violence against female prisoners.
Also representing the delegation of Nicaragua was María Elsa Frixion Ocón, the Deputy Public Prosecutor responsible for international criminal affairs and human rights, and Juan Báez, the Inspector General of the National Police, as well as members of the Permanent Mission of Nicaragua in Geneva.
The delegation will return to the Committee at 10 a.m. on Friday, 1 May, to provide its responses to the questions raised today.
Nicaragua is among the 146 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Chad to the questions posed by Experts on 29 April.
Report of Nicaragua
The initial report of Nicaragua (CAT/C/NIC/1) notes that the Criminal Code of Nicaragua dates from over 100 years ago and therefore does not cover the crime of torture as such except by way of classification of the offence of wounding and abuse of authority. A new Criminal Code, which includes classification of the offence of torture in line with the Convention, is currently being debated in the National Assembly. Additionally, the Constitution of Nicaragua states that “No one shall be subjected to torture or to cruel, inhuman or degrading procedures, punishment or treatment. Violation of that right shall constitute an offence punishable by law.” In addition, a new Code of Criminal Procedure contains safeguards, protection and a human dimension with regard to the treatment of prisoners and also states that any defendant has the right “Not to be subjected to torture or other cruel, inhuman treatment or treatment degrading to his personal dignity”. In January 2006, the Human Rights Procurator swore in the Special Procurator for Prisons to inspect the treatment given to persons in detention centres (National Police), persons who are being held for trial or who have been convicted (National Prisons System) and illegal migrants (Office of Migration and Alien Affairs).
The general view is that the rules and measures to help prevent torture and other cruel, inhuman or degrading treatment or punishment have been effective to the extent that instances of physical or psychological ill-treatment or any other procedure prejudicial to a detainee’s human dignity which has been meted out by staff performing duties of control, re-education and prison security have been isolated and duly punished. Pursuant to international obligations to respect, safeguard and guarantee the right to personal integrity, on 14 March 2007 the Government of Reconciliation and National Unity, which is committed to the prohibition and prevention of the offence of torture, acceded to the Optional Protocol to the Convention against Torture, thereby strengthening the protection of persons deprived of their liberty against torture and ill-treatment by judicial and non-judicial means of a preventive nature, such as regular visits to places of detention.
Presentation of Report
CARLOS ROBELO RAFFONE, Permanent Representative of Nicaragua to the United Nations Office at Geneva, began by reaffirming the firm commitment of Nicaragua to the promotion and protection of human rights and fundamental freedoms for all Nicaraguans in the light of obligations entered into under the various international human rights instruments. The Government of National Reconciliation and Unity, when it took over its mandate in January 2007, set as one of its priorities compliance with Nicaragua's international obligations entered into, such as under the Convention against Torture. The first task had been to ensure reports were drawn up. To do that, the Government had set up a follow-up unit within the Ministry for Foreign Affairs and an Inter-Institutional Committee, involving civil society in the process. Through that institutional mechanism, the government intended to provide permanent follow-up to Nicaragua's obligations, which in turn would contribute to the development of social policies and the improvement of conditions for vulnerable groups.
In evaluating the implementation of the Convention since its ratification in 2005, it was necessary for the Committee to take into consideration the socio-economic conditions in the country, and particularly the poverty and extreme poverty, as well as the evolution of the situation in recent years, including the judicial and institutional reforms undertaken. For the Government, it was fundamental that all citizens could enjoy their most basic rights, such as the right to a dignified life. They were convinced that a population subject to poverty and extreme poverty suffered the most serious of human rights violations. Therefore the Government's national policy focused on making up that gap and allowing all Nicaraguans to enjoy their most basic rights. The Government had put in place a number of programmes to do that, including Zero Hunger, Food Security for Life, human rights education, a literacy programme, "Yes, I Can", and a Human Development Plan, 2009-2012, Mr. Robelo Raffone said.
Mr. Robelo Raffone said that, despite the fact that Nicaragua was not a party to the Convention against Torture at that date, the prohibition against torture was already present in its Constitution, which also established the humanist nature of the penitentiary system, with a view to re-educating prisoners so that they could be reinserted into society.
The new Criminal Code, which had entered into force in July 2008, was one of the most important legislative advances relating to the Convention, Mr. Robelo Raffone highlighted. Whereas previously there had been no criminal provision for the crime of torture, the new Code provided that any person who submitted another to any type of physical or mental torture as part of a criminal investigation, or as a means of intimidation or other end, would face a sentence of 7 to 10 years imprisonment. It also set out similar penalties for public employees committing torture, who, in addition to penal sanctions, would be banned from public service for a number of years. For example, any public employee who did not report such a crime that they were aware of was subject to penal sanction and in addition would be impeded from filling a public post for five to nine years.
Mr. Robelo Raffone said that, for the purposes of the new Code, torture was defined to be intentionally causing pain or suffering, be it physical or mental, of persons under someone's custody or control.
As part of the modernization of the legal system, Nicaragua had also set up a new Code of Criminal Procedure, Mr. Robelo Raffone continued, which replaced the prior inquisitorial system with an adversarial system which was humanist in the treatment of the accused. In compliance with those principles, it set out that those charged or accused could not be subject to torture and other cruel, inhuman or degrading treatment or punishment.
Similarly, in 2003 the National Assembly had adopted the Prison System and Enforcement of Sentences Act, which laid down the rules governing the operation of the National Prisons System and prescribed the activities it undertook while sentences were being served and custodial measures enforced, in conformity with the principles of re-education and social reinsertion. The Act ensured that the national prison system was based on the recognition of the dignity of the human person and the respect for human rights. In no case would internees be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also prohibited physical or psychological ill-treatment and any other treatment that was contrary to the dignity of the human person.
With a view to monitoring compliance with those activities, in 2006 the Special Prosecutor for Human Rights appointed a Special Prison Defender of Human Rights who was responsible for monitoring the situation of those in deprivation of liberty situations, including prisoners, detainees, and asylum-seekers in centres, Mr. Robelo Raffone added.
With regard to the National Police, they were a civilian body responsible for guaranteeing human rights. The National Police was professional, apolitical, and non-partisan in nature. The professionalism of the Police had been well recognized by everyone. Mr. Robelo Raffone quoted a number of those who had praised the National Police, including the resident representative of the United Nations Development Programme in Managua who had said "The Nicaragua Police had always shown stellar behaviour and were a model for the Central American region and in Latin America itself."
It was important to highlight that throughout the country the National Police participated in a weekly session to study laws and government policies. In addition, the police academy covered issues relating to the promotion and protection of human rights in their training programmes.
Regarding complaints of torture or abuse of power in the prison system, administrative investigations were carried out through the General Inspectorate, and it established procedures to undertake administrative investigations into all cases of human rights violations brought to its attention. The authorities could undertake investigations either by direct complaints received by the accuser or his family, or they could undertake investigations on their own account following information received from media reports or others.
As for the National Police, complaints against police officials were handled by the internal affairs division, which then suspended from their duties anyone who was denounced in that manner while the investigation was carried out, Mr. Robelo Raffone concluded.
Questions Raised by Committee Experts
NORA SVEAASS, the Committee Chairperson serving as Rapporteur for the report of Nicaragua, particularly applauded Nicaragua's ratification of the Optional Protocol to the Convention. Also welcome was the fact that the National Assembly had unanimously passed the law for the protection of refugees in 2008, as well as the adoption of the Prison System and Enforcement of Sentences Act in 2003, prescribing, among other things, activities to be undertaken while sentences were being served – including re-education, social reintegration and security of detainees in prisons.
Among questions, Ms. Sveaass asked why it had taken so long from signature to ratification of the Convention (20 years). With regard to the Inter-Institutional Committee, what was it exactly and what parts of civil society were represented? How did it differ from the working group on the Convention?
Regarding the Optional Protocol, that had been adopted more quickly, Ms. Sveaass noted, but they were not aware that any formal national preventive mechanism had been established yet. She asked about steps taken to establish such a mechanism, in consultation with civil society.
Regarding the definition of torture in the new Criminal Code, Ms. Sveaass observed that it was very similar to the definition in article 1 of the Convention, but that it did not specify that such pain or suffering was inflicted by or at the instigation of or with the acquiescence of a public person or official or other person acting in an official capacity. Would Nicaragua consider bringing their definition in line with the Convention?
On detainees' rights, Ms. Sveaass, understood that persons had to be brought before designated legal authorities within 48 hours following detention, but asked about the time frame for the right to know the reasons for detention, the right to inform a family member or other person, and the right to legal counsel. Also, it was unclear if detainees had the right to see an independent doctor at an early stage of their detention.
Ms. Sveaass was concerned, with respect to legal aid, that while defendants had the right to a lawyer, there were only 79 public defenders in the country, and asked what consequences that had on the right to justice?
Ms. Sveaass also asked for more information about the rights of Criminal Enforcement Judges to visit centres for extended imprisonment, including the number of their visits, petitions received and actions taken; reports that, despite a legal 3-month limit for such detentions, immigrants were regularly held in detention for longer in poor conditions, such as had been the case for 60 Chinese immigrants; and budget limitations which prevented an improvement of prison conditions.
Of particular concern to Ms. Sveaass was the area of violence against women and children – both physical violence as well as sexual and psychological violence. She had been working in Nicaragua 12 years ago and had been alarmed after her countless meetings with children and women who had been maimed for life mentally and bodily after extreme violence, with knives and even machetes by their own husbands, fathers or neighbours, as well as rape and sexual abuse of very young girls. According to police statistics, 30,000 crimes against women were reported in the first six months of 2006, as compared 32,000 crimes reported for all of 2005, an increase of 88 per cent. She asked what the State was doing to address this, but also to make filing complaints a real option, to support and provide legal assistance to victims, and to punish those responsible and to provide compensation to victims.
Ms. Sveaass underscored that there had been a number of killings of women as well – a growing number according to non-governmental organization (NGO) reports. Also of concern was the prohibition against abortion in the Criminal Code, including in cases of rape, incest and presumed life threatening pregnancy. Not to speak of the victims, this law made the health workers involved participants in action that might constitute torture or cruel, inhuman and degrading punishment, by forcing them to refrain from action or to condone actions that went against international ethnical standards, for example forcing a 12-year-old rape victim to go through with an unwanted pregnancy, even if it threatened her life. Would the State consider this law?
Finally, on the issue of refugees, Ms. Sveaass asked what mechanisms were in place to prevent refoulement of rejected asylum-seekers to countries where there were substantial grounds for believing that they would be at risk from torture or other cruel, inhuman or degrading treatment or punishment.
LUIS GALLEGOS CHIRIBOGA, the Committee Expert serving as Co-Rapporteur for the report of Nicaragua, referring to training of medical staff in the prison system, noted that there was training in human rights, but stressed that it was necessary to have specific training on torture. It was the State's responsibility to have a general approach to such training, not just in the penitentiary sphere. With regard to vulnerable groups, migrants and others, there was a particular risk for torture and other cruel, inhuman or degrading treatment or punishment. This was also applicable to the situation in the country regarding violence against women. There was a lack of administrative and judicial officials to deal with issues such as femicide or sexual violence against children, in particular in the family context. In judges training, in particular, there should be a component on violence against women. He was particularly concerned that persons working with children and adolescents should receive such training.
Mr. Gallegos Chiriboga also asked about specific details of investigations carried out following torture complaints and convictions obtained. To prevent torture it was essential to ensure that there was no impunity for such crimes.
The Human Rights Centre had informed the Committee that the National Police were abusers of human rights. There had also been individual cases brought in which the Police had used excessive force that was up to the level of torture. Mr. Gallegos Chiriboga asked if the delegation could provide some details about what was happening with those complaints.
Similarly, Mr. Gallegos Chiriboga asked about concrete cases brought on charges of domestic violence and whether convictions had been obtained.
On compensation for crimes of torture and other cruel, inhuman or degrading treatment or punishment, Mr. Gallegos Chiriboga asked if the compensation mechanisms in place were also applicable to non-citizens, refugees for example. Also did the compensation include provisions for medical and psychological treatment?
Turning to living conditions in custodial centres, the report acknowledged that budgetary restrictions had posed obstacles to improving the situation. Singled out in the report had been a lack of even minimum conditions for prisoners, for example, in the Blue Fields centre, and that there was a huge internal crime rate as a result. What was the Government doing to address this situation, Mr. Gallegos Chiriboga asked?
Finally, Mr. Gallegos Chiriboga said the Committee was worried by an increase in attacks on human rights defenders, and a number of legal challenges against such human rights defenders. What measures had been taken to do away with systematic harassment of human rights defenders and death threats against them, as well as ill-treatment of this group when kept in police detention?
Other Committee Experts asked questions related to, among others, reports of incommunicado detentions; severe criminal punishments for drug users; whether deportation orders, which were subject only to administrative procedures, provided sufficient humanitarian guarantees; the situation of minors in detention; information on how judges were regulated; whether the Government had implemented the recommendation to establish a register for detainees; reasons for increases in imprisonment of women and statistics on the number of female prisoners; and statistics on violence against female prisoners.
An Expert said that according to an NGO report, 30 per cent of the National Police had been involved in abuse of power or other ill-treatment of individuals. However, only 10 per cent of those who had been the subject of complaints had been punished. That related directly to issues of training and sanctions and she asked what was being done.
An Expert said that reports had pointed to a pattern of vigilante violence in the country, used against civil society and human rights groups alike. Complaints had been laid that the Government was not investigating this vigilante violence and even ordered that no such investigations were to take place. The Expert asked about such investigations undertaken and any convictions brought in such cases.
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For use of the information media; not an official record
MORNING
30 April 2009
The Committee against Torture this morning began its consideration of the initial report of Nicaragua on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Carlos Robelo Raffone, Permanent Representative of Nicaragua to the United Nations Office at Geneva, observed that, despite the fact that Nicaragua was not a party to the Convention at that date, the prohibition against torture was already present in its Constitution, which also established the humanist nature of the penitentiary system, with a view to re-educating prisoners so that they could be reinserted into society. Moreover, the new Criminal Code, which had entered into force in July 2008, defined the crime of torture and provided that any person who submitted another to any type of physical or mental torture as part of a criminal investigation, or as a means of intimidation or other end, would face a sentence of 7 to 10 years imprisonment. It also set out similar penalties for public employees committing torture, who, in addition to penal sanctions, would be banned from public service for a number of years.
As part of the modernization of the legal system, Nicaragua had also set up a new Code of Criminal Procedure, which replaced the prior inquisitorial system with an adversarial system which was humanist in the treatment of the accused. In compliance with those principles, it set out that those charged or accused could not be subject to torture and other cruel, inhuman or degrading treatment or punishment. Similarly, in 2003 the National Assembly had adopted the Prison System and Enforcement of Sentences Act, which ensured that the national prison system was based on the recognition of the dignity of the human person and the respect for human rights. Mr. Robelo Raffone stressed that in no case would internees be subjected to torture and other cruel, inhuman or degrading treatment or punishment.
Serving as Rapporteur for the report of Nicaragua, Committee Expert Nora Sveaass applauded Nicaragua's ratification of the Optional Protocol to the Convention, and welcomed other progress made with regard to new legislation. She asked about the time frame for detainees to be informed of the reasons for their detention, and to enjoy other rights, such as access to a lawyer. Among concerns were reports that, despite a legal 3-month limit for such detentions, immigrants were regularly held in detention for longer in poor conditions. Of particular concern was violence against women and children, who were often maimed for life mentally and bodily after extreme violence by their own husbands, fathers or neighbours, and the increase in these incidents. There was also a prohibition against abortion in the Criminal Code, including in cases of rape, incest and presumed life threatening pregnancy. Not to speak of the victims, that law made the health workers involved participants in action that might constitute torture or cruel, inhuman and degrading punishment.
Luis Gallegos Chiriboga, the Committee Expert serving as Co-Rapporteur for the report, asked about specific details of investigations carried out following torture complaints and convictions obtained. The Human Rights Centre had informed the Committee that the National Police were abusers of human rights. Other concerns raised regarded systematic harassment and attacks against human rights defenders; overcrowding and poor conditions in custodial centres; and compensation for victims.
Other Committee Experts asked questions related to, among others, reports of incommunicado detentions; severe punishments for drug users; whether deportation orders, which were subject only to administrative procedures, provided sufficient humanitarian guarantees; the situation of minors in detention; information on how judges were regulated; whether the Government had implemented the recommendation to establish a register for detainees; reasons for increases in imprisonment of women and statistics on the number of female prisoners; and statistics on violence against female prisoners.
Also representing the delegation of Nicaragua was María Elsa Frixion Ocón, the Deputy Public Prosecutor responsible for international criminal affairs and human rights, and Juan Báez, the Inspector General of the National Police, as well as members of the Permanent Mission of Nicaragua in Geneva.
The delegation will return to the Committee at 10 a.m. on Friday, 1 May, to provide its responses to the questions raised today.
Nicaragua is among the 146 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Chad to the questions posed by Experts on 29 April.
Report of Nicaragua
The initial report of Nicaragua (CAT/C/NIC/1) notes that the Criminal Code of Nicaragua dates from over 100 years ago and therefore does not cover the crime of torture as such except by way of classification of the offence of wounding and abuse of authority. A new Criminal Code, which includes classification of the offence of torture in line with the Convention, is currently being debated in the National Assembly. Additionally, the Constitution of Nicaragua states that “No one shall be subjected to torture or to cruel, inhuman or degrading procedures, punishment or treatment. Violation of that right shall constitute an offence punishable by law.” In addition, a new Code of Criminal Procedure contains safeguards, protection and a human dimension with regard to the treatment of prisoners and also states that any defendant has the right “Not to be subjected to torture or other cruel, inhuman treatment or treatment degrading to his personal dignity”. In January 2006, the Human Rights Procurator swore in the Special Procurator for Prisons to inspect the treatment given to persons in detention centres (National Police), persons who are being held for trial or who have been convicted (National Prisons System) and illegal migrants (Office of Migration and Alien Affairs).
The general view is that the rules and measures to help prevent torture and other cruel, inhuman or degrading treatment or punishment have been effective to the extent that instances of physical or psychological ill-treatment or any other procedure prejudicial to a detainee’s human dignity which has been meted out by staff performing duties of control, re-education and prison security have been isolated and duly punished. Pursuant to international obligations to respect, safeguard and guarantee the right to personal integrity, on 14 March 2007 the Government of Reconciliation and National Unity, which is committed to the prohibition and prevention of the offence of torture, acceded to the Optional Protocol to the Convention against Torture, thereby strengthening the protection of persons deprived of their liberty against torture and ill-treatment by judicial and non-judicial means of a preventive nature, such as regular visits to places of detention.
Presentation of Report
CARLOS ROBELO RAFFONE, Permanent Representative of Nicaragua to the United Nations Office at Geneva, began by reaffirming the firm commitment of Nicaragua to the promotion and protection of human rights and fundamental freedoms for all Nicaraguans in the light of obligations entered into under the various international human rights instruments. The Government of National Reconciliation and Unity, when it took over its mandate in January 2007, set as one of its priorities compliance with Nicaragua's international obligations entered into, such as under the Convention against Torture. The first task had been to ensure reports were drawn up. To do that, the Government had set up a follow-up unit within the Ministry for Foreign Affairs and an Inter-Institutional Committee, involving civil society in the process. Through that institutional mechanism, the government intended to provide permanent follow-up to Nicaragua's obligations, which in turn would contribute to the development of social policies and the improvement of conditions for vulnerable groups.
In evaluating the implementation of the Convention since its ratification in 2005, it was necessary for the Committee to take into consideration the socio-economic conditions in the country, and particularly the poverty and extreme poverty, as well as the evolution of the situation in recent years, including the judicial and institutional reforms undertaken. For the Government, it was fundamental that all citizens could enjoy their most basic rights, such as the right to a dignified life. They were convinced that a population subject to poverty and extreme poverty suffered the most serious of human rights violations. Therefore the Government's national policy focused on making up that gap and allowing all Nicaraguans to enjoy their most basic rights. The Government had put in place a number of programmes to do that, including Zero Hunger, Food Security for Life, human rights education, a literacy programme, "Yes, I Can", and a Human Development Plan, 2009-2012, Mr. Robelo Raffone said.
Mr. Robelo Raffone said that, despite the fact that Nicaragua was not a party to the Convention against Torture at that date, the prohibition against torture was already present in its Constitution, which also established the humanist nature of the penitentiary system, with a view to re-educating prisoners so that they could be reinserted into society.
The new Criminal Code, which had entered into force in July 2008, was one of the most important legislative advances relating to the Convention, Mr. Robelo Raffone highlighted. Whereas previously there had been no criminal provision for the crime of torture, the new Code provided that any person who submitted another to any type of physical or mental torture as part of a criminal investigation, or as a means of intimidation or other end, would face a sentence of 7 to 10 years imprisonment. It also set out similar penalties for public employees committing torture, who, in addition to penal sanctions, would be banned from public service for a number of years. For example, any public employee who did not report such a crime that they were aware of was subject to penal sanction and in addition would be impeded from filling a public post for five to nine years.
Mr. Robelo Raffone said that, for the purposes of the new Code, torture was defined to be intentionally causing pain or suffering, be it physical or mental, of persons under someone's custody or control.
As part of the modernization of the legal system, Nicaragua had also set up a new Code of Criminal Procedure, Mr. Robelo Raffone continued, which replaced the prior inquisitorial system with an adversarial system which was humanist in the treatment of the accused. In compliance with those principles, it set out that those charged or accused could not be subject to torture and other cruel, inhuman or degrading treatment or punishment.
Similarly, in 2003 the National Assembly had adopted the Prison System and Enforcement of Sentences Act, which laid down the rules governing the operation of the National Prisons System and prescribed the activities it undertook while sentences were being served and custodial measures enforced, in conformity with the principles of re-education and social reinsertion. The Act ensured that the national prison system was based on the recognition of the dignity of the human person and the respect for human rights. In no case would internees be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also prohibited physical or psychological ill-treatment and any other treatment that was contrary to the dignity of the human person.
With a view to monitoring compliance with those activities, in 2006 the Special Prosecutor for Human Rights appointed a Special Prison Defender of Human Rights who was responsible for monitoring the situation of those in deprivation of liberty situations, including prisoners, detainees, and asylum-seekers in centres, Mr. Robelo Raffone added.
With regard to the National Police, they were a civilian body responsible for guaranteeing human rights. The National Police was professional, apolitical, and non-partisan in nature. The professionalism of the Police had been well recognized by everyone. Mr. Robelo Raffone quoted a number of those who had praised the National Police, including the resident representative of the United Nations Development Programme in Managua who had said "The Nicaragua Police had always shown stellar behaviour and were a model for the Central American region and in Latin America itself."
It was important to highlight that throughout the country the National Police participated in a weekly session to study laws and government policies. In addition, the police academy covered issues relating to the promotion and protection of human rights in their training programmes.
Regarding complaints of torture or abuse of power in the prison system, administrative investigations were carried out through the General Inspectorate, and it established procedures to undertake administrative investigations into all cases of human rights violations brought to its attention. The authorities could undertake investigations either by direct complaints received by the accuser or his family, or they could undertake investigations on their own account following information received from media reports or others.
As for the National Police, complaints against police officials were handled by the internal affairs division, which then suspended from their duties anyone who was denounced in that manner while the investigation was carried out, Mr. Robelo Raffone concluded.
Questions Raised by Committee Experts
NORA SVEAASS, the Committee Chairperson serving as Rapporteur for the report of Nicaragua, particularly applauded Nicaragua's ratification of the Optional Protocol to the Convention. Also welcome was the fact that the National Assembly had unanimously passed the law for the protection of refugees in 2008, as well as the adoption of the Prison System and Enforcement of Sentences Act in 2003, prescribing, among other things, activities to be undertaken while sentences were being served – including re-education, social reintegration and security of detainees in prisons.
Among questions, Ms. Sveaass asked why it had taken so long from signature to ratification of the Convention (20 years). With regard to the Inter-Institutional Committee, what was it exactly and what parts of civil society were represented? How did it differ from the working group on the Convention?
Regarding the Optional Protocol, that had been adopted more quickly, Ms. Sveaass noted, but they were not aware that any formal national preventive mechanism had been established yet. She asked about steps taken to establish such a mechanism, in consultation with civil society.
Regarding the definition of torture in the new Criminal Code, Ms. Sveaass observed that it was very similar to the definition in article 1 of the Convention, but that it did not specify that such pain or suffering was inflicted by or at the instigation of or with the acquiescence of a public person or official or other person acting in an official capacity. Would Nicaragua consider bringing their definition in line with the Convention?
On detainees' rights, Ms. Sveaass, understood that persons had to be brought before designated legal authorities within 48 hours following detention, but asked about the time frame for the right to know the reasons for detention, the right to inform a family member or other person, and the right to legal counsel. Also, it was unclear if detainees had the right to see an independent doctor at an early stage of their detention.
Ms. Sveaass was concerned, with respect to legal aid, that while defendants had the right to a lawyer, there were only 79 public defenders in the country, and asked what consequences that had on the right to justice?
Ms. Sveaass also asked for more information about the rights of Criminal Enforcement Judges to visit centres for extended imprisonment, including the number of their visits, petitions received and actions taken; reports that, despite a legal 3-month limit for such detentions, immigrants were regularly held in detention for longer in poor conditions, such as had been the case for 60 Chinese immigrants; and budget limitations which prevented an improvement of prison conditions.
Of particular concern to Ms. Sveaass was the area of violence against women and children – both physical violence as well as sexual and psychological violence. She had been working in Nicaragua 12 years ago and had been alarmed after her countless meetings with children and women who had been maimed for life mentally and bodily after extreme violence, with knives and even machetes by their own husbands, fathers or neighbours, as well as rape and sexual abuse of very young girls. According to police statistics, 30,000 crimes against women were reported in the first six months of 2006, as compared 32,000 crimes reported for all of 2005, an increase of 88 per cent. She asked what the State was doing to address this, but also to make filing complaints a real option, to support and provide legal assistance to victims, and to punish those responsible and to provide compensation to victims.
Ms. Sveaass underscored that there had been a number of killings of women as well – a growing number according to non-governmental organization (NGO) reports. Also of concern was the prohibition against abortion in the Criminal Code, including in cases of rape, incest and presumed life threatening pregnancy. Not to speak of the victims, this law made the health workers involved participants in action that might constitute torture or cruel, inhuman and degrading punishment, by forcing them to refrain from action or to condone actions that went against international ethnical standards, for example forcing a 12-year-old rape victim to go through with an unwanted pregnancy, even if it threatened her life. Would the State consider this law?
Finally, on the issue of refugees, Ms. Sveaass asked what mechanisms were in place to prevent refoulement of rejected asylum-seekers to countries where there were substantial grounds for believing that they would be at risk from torture or other cruel, inhuman or degrading treatment or punishment.
LUIS GALLEGOS CHIRIBOGA, the Committee Expert serving as Co-Rapporteur for the report of Nicaragua, referring to training of medical staff in the prison system, noted that there was training in human rights, but stressed that it was necessary to have specific training on torture. It was the State's responsibility to have a general approach to such training, not just in the penitentiary sphere. With regard to vulnerable groups, migrants and others, there was a particular risk for torture and other cruel, inhuman or degrading treatment or punishment. This was also applicable to the situation in the country regarding violence against women. There was a lack of administrative and judicial officials to deal with issues such as femicide or sexual violence against children, in particular in the family context. In judges training, in particular, there should be a component on violence against women. He was particularly concerned that persons working with children and adolescents should receive such training.
Mr. Gallegos Chiriboga also asked about specific details of investigations carried out following torture complaints and convictions obtained. To prevent torture it was essential to ensure that there was no impunity for such crimes.
The Human Rights Centre had informed the Committee that the National Police were abusers of human rights. There had also been individual cases brought in which the Police had used excessive force that was up to the level of torture. Mr. Gallegos Chiriboga asked if the delegation could provide some details about what was happening with those complaints.
Similarly, Mr. Gallegos Chiriboga asked about concrete cases brought on charges of domestic violence and whether convictions had been obtained.
On compensation for crimes of torture and other cruel, inhuman or degrading treatment or punishment, Mr. Gallegos Chiriboga asked if the compensation mechanisms in place were also applicable to non-citizens, refugees for example. Also did the compensation include provisions for medical and psychological treatment?
Turning to living conditions in custodial centres, the report acknowledged that budgetary restrictions had posed obstacles to improving the situation. Singled out in the report had been a lack of even minimum conditions for prisoners, for example, in the Blue Fields centre, and that there was a huge internal crime rate as a result. What was the Government doing to address this situation, Mr. Gallegos Chiriboga asked?
Finally, Mr. Gallegos Chiriboga said the Committee was worried by an increase in attacks on human rights defenders, and a number of legal challenges against such human rights defenders. What measures had been taken to do away with systematic harassment of human rights defenders and death threats against them, as well as ill-treatment of this group when kept in police detention?
Other Committee Experts asked questions related to, among others, reports of incommunicado detentions; severe criminal punishments for drug users; whether deportation orders, which were subject only to administrative procedures, provided sufficient humanitarian guarantees; the situation of minors in detention; information on how judges were regulated; whether the Government had implemented the recommendation to establish a register for detainees; reasons for increases in imprisonment of women and statistics on the number of female prisoners; and statistics on violence against female prisoners.
An Expert said that according to an NGO report, 30 per cent of the National Police had been involved in abuse of power or other ill-treatment of individuals. However, only 10 per cent of those who had been the subject of complaints had been punished. That related directly to issues of training and sanctions and she asked what was being done.
An Expert said that reports had pointed to a pattern of vigilante violence in the country, used against civil society and human rights groups alike. Complaints had been laid that the Government was not investigating this vigilante violence and even ordered that no such investigations were to take place. The Expert asked about such investigations undertaken and any convictions brought in such cases.
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For use of the information media; not an official record
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